Category Archives: Environment

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Who “holds” the working papers of the Climategate inquiry?

emailgate_mockup_k_SMLHolland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013  - read judgment

In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.

UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER  concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information. 

This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them.  UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.

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Supreme Court refers air pollution case to the EU Court


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs  [2013] UKSC 25, Supreme Court, 1 May 2013 – read judgment

on appeal against Court of Appeal 30 May 2012 read CA judgment

The Supreme Court has taken the UK’s lack of compliance  with EU legislation, Directive 2008/50 (limiting the amount of nitrogen dioxide in air)  much more seriously than the courts below.  It has made a declaration that the UK is in breach and has referred questions of interpretation concerning the Directive and remedies to the CJEU.

The UK has been in breach of Article 13 the Directive since 1 January 2010, because at that date 40 “zones and agglomerations” had nitrogen dioxide at concentrations greater than the limit values set out in the Directive. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and, given the admission, the Court of Appeal said that there was no point in granting any declaratory relief. It was for the EU Commission, if it wished, to take infraction proceedings.

This seemed to me like a cop-out – it is for the Commission and the courts to enforce directives, as I suggested in my previous posts (e.g. here) on this case.

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Chagossians: Wikileaks cables not admissible in court

9780199275670Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 16-24 April 2013, judgment awaited, but see 25 July 2012, Stanley Burnton LJ for an earlier judgment   UPDATED

A quick update at the end of the recent judicial review on 24 April by Mr Bancoult on behalf of the Chagossian islanders, but before judgment. The challenge was to the designation of the waters around their islands as a “no take” Marine Protected Area, i.e. one which could not be fished.

I have posted on this saga before, which started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.

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The CJEU on “prohibitively expensive” and the new protective costs order regime

R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,

and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45

Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.

The first development is a decision by the CJEU on the meaning of those words.

The second is a new set of rules providing for protective costs orders in environmental judicial review claims. Continue reading →

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Habitats: the CJEU’s judgment in Sweetman

Sweetman v. An Bord Pleanala, CJEU, 11 April 2013, read judgment

I posted back in November 2012 on Advocate-General Sharpston’s  opinion in this important case concerning the Habitats Directive. 

John Jolliffe from 1COR will be covering the judgment of the CJEU soon, but in the interim it may be worth setting out key passages from the judgment. As will be seen from them, the Court broadly followed the approach taken by the AG – though any first-time student of this area of law would do better to start with the AG’s opinion, rather than with the rather bland text of the judgment.

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Planning policy versus the UN rights of the child

a-1-rose-lane-ripleyStevens v. Secretary of State for Communities & Local Government, Hickinbottom J, 10 April 2013 read judgment

As the judge explicitly recognised, this case raised the clash of two principles – how to resolve the policy-driven field of planning with the rights of family under Article 8 ECHR and of the child under Article 3 of the UN Convention on the Rights of the Child (UNCRC).

The battlefield was the well-trodden one of a Gypsy family living in caravans within the Green Belt, but without existing planning permission for those caravans. Ms Stevens sought to regularise this by applying for retrospective permission. The Council turned her down, and her appeal to a planning inspector was dismissed. She then made a statutory challenge to that decision under section 288 of the Town & Country Planning Act 1990, seeking to quash it and have it re-determined.

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4 slaughterhouses hit high fives: Article 6(1) breaches found

37788084345565012_8oFmp54f_222Julius Kloiber Schlachthof GMBH and others v. Austria, ECtHR, 4 April 2013, read judgment

These ECtHR decisions are the latest in a number of claims by slaughterhouses that their rights were infringed by the exaction of a surcharge by the Austrian national agricultural board. The Court decided that (a) the process of surcharging by administrative bodies engaged the criminal part of Article 6 and (b) the Austrian courts hearing appeals against the surcharges did not have the jurisdiction to carry out a “full review” of the decision to surcharge; only that way could one turn the combination of administrative decision and court decision into a decision by a “tribunal” complying with Article 6.

Now to unpack these complex but important ECtHR rules, and to look at how they play out domestically.

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HS2 challenges fail, except “unlawful” consultation on compensation

_65547471_65547470R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J  - read judgment - Updated

In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond.  The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and  - wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.

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EU claims for damages because no environmental assessment


715fe4f7980414b6f0287ee346131a95_MLeth v. Austria,  CJEU, 14 March 2013  read judgment

You live very close to an airport. The airport expands without carrying out an Environmental Impact Assessment as required by the EIA Directive.  You want to sue the state for loss in value of your property. Can you claim? This is the strikingly simple question the subject of this judgment of the Court of Justice of the EU. And on the day the HS2 ruling came out (post to follow shortly, but compensation consultation unlawful) it is an interesting question to look at.

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Court of Appeal downplays Aarhus

_66025376_3166618Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 - read judgment

There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.

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Lost renewables subsidies successfully claimed as human rights damages


gascollection-labeledOfgem (Gas & Electricity Markets Authority) v. Infinis) [2013] EWCA  Civ 70, Court of Appeal 13 Feburary 2013 read judgment, on appeal from decision of Lindblom J Read judgment and my previous post

This decision upholding an award of damages for a claim under Article 1 Protocol 1 (right to possessions) may seem rather straightforward to a non-lawyer. Infinis lost out on some subsidies because the regulator misunderstood a complex legal document.  It could not claim those subsidies any more, so it claimed and got damages from the regulator. But the relatively novel thing is that English law does not generally allow claims for damage caused by unlawful action by the state. And yet the Court of Appeal found it easy to dismiss the regulator’s appeal on this point.

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Inuit, standing and the gates to the Luxembourg Court

flagInuit Tapiriit Kanatami et al v. European Parliament opinion of Advocate General Kokott, 17 January 2013, read opinion, on appeal from the General Court read judgment & my post on it

The EU makes a rule. When can the ordinary person affected seek annulment of the rule on the basis that it is unlawful? This is the big issue tussled with in this important and informative Advocate General’s opinion. You might have thought that if the basic ground for challenge was unlawfulness (and that is a high hurdle in itself), then as long as you were in some way affected by the decision, then you should be able to complain about the decision. That is broadly how we do things here in our UK system of judicial review.

But when you get to the EU Courts very different rules of engagement apply – far fewer people can complain about the illegality directly.

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Human rights claims against undercover police to be heard in secret – Simon McKay

Mark Kennedy

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

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The polluted air that we breathe: Supreme Court to hear case


NO2_PicR (Clientearth) v Secretary of State for Environment, Food &  Rural Affairs, forthcoming Supreme Court appeal against Court of Appeal 30 May 2012 read CA judgment Updated

Back in the late spring, it seemed as if ClientEarth’s claim against Defra in respect of air pollution had run into the buffers. It had been refused by the Court of Appeal, in reasons given extempore: see my earlier post before Bailii received the judgment. Not many such refused cases make it to the Supreme Court, but this one has.

The Supreme Court lets appeals within its doors or denies them in an inscrutable way – it says yea, or, more commonly, nay, with no reasons. But the Justices thought that there was more to this case than had met the eye of the Court of Appeal. Anyway, hearing on March 7 2013, as the excellent Supreme Court website tells us. I am also told that the Court granted ClientEarth a Protective Costs Order.

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EU’s non-disclosure of UK EU Charter “opt-out” documents is a breach of the EU Charter


11374Decision of the European Ombudsman on complaint against the European Commission, 17 December 2012 – Read decision

The UK secured what Tony Blair described as an opt-out in respect of the EU Charter on Fundamental Rights as part of the negotiations leading up to the Lisbon Treaty – which contains the Charter. Rosalind English has summarised here what the Charter involves, and whether the “opt-out” really changes anything. This recent EU Ombudsman’s decision concerns the attempts of an NGO to extract certain EU Commission documents in the run-up to the Lisbon Treaty. The EU Commission was taking its usual head-in-the-sand approach to disclosure (see various posts listed below), hence the complaint to the Ombudsman. And, as we shall see, the Ombudsman gave the Commission both barrels in this highly critical decision.

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