Between rules and discretion: Legislative principles and the "relevant considerations" ground of review

Abstract

Principles may be included in legislation for administrators to apply in the exercise of discretionary powers. But can courts enforce them and, if so, how? This article examines the difficulties that arise when applicants challenge decisions on the basis of improper application of legislative principles. It does so by examining challenges that are made, according to the relevant considerations ground of review, to the administration of the principles of ecologically sustainable development. The article examines the elements of the relevant considerations ground that make it difficult for courts to enforce legislative principles. It also examines the normative factors that are likely to lead courts to exercise restraint when faced with claims that legislative principles, and in particular environmental principles, have not been properly applied.