Legislative limits on environmental decision-making: The application of the administrative law doctrines of jurisdictional fact and ultra vires

摘要

It is possible, having regard to the declining state of many aspects of the environment, that Parliament may wish to enact legislative limits on the decision-making powers of the executive so that, if an action is going to have a specified, unacceptable impact on the environment, an executive decision-maker will not have the power or jurisdiction to allow it to proceed. An essential consideration in imposing substantive limits on environmental decision-making is to ensure that the proposed limits can be judicially enforced without unduly straining the role of the courts in the process of judicial review. Through a consideration of the administrative law doctrines of jurisdictional fact and substantive ultra vires, this article evaluates possible techniques for limiting the discretion of environmental decision-makers and suggests the most appropriate means of doing so.