Wind farms, birds, and that pesky thing called the rule of law

bp_whimbrel_15_240409_500Sustainable Shetland, Re Judicial Review, 24 September 2013, Lady Clark of Calton  read judgment

The current storms brought down a turbine in Teignmouth: see here for good pics of this and other mayhem. And the rule of law recently brought down a massive wind farm proposed for Shetland. The Scottish Ministers had waved aside a request for a public inquiry, and ended up drafting reasons which ignored the obligations in the Wild Birds Directive in respect of this bird – the whimbrel. Lady Clark quashed the consent on this ground, and also decided that the wind farmer could not apply for the consent anyway because it had not got the requisite licence which she concluded was a pre-condition for such an application. 

And there is a very good chance that the NGO which brought this challenge would not be entitled to do so if Mr Grayling gets his way, because it might well not have been held to have “standing”. Such a change he would regard as “firmly in the national interest”: see my post of last week on proposed reforms to judicial review rules. There are, to say the least, two sides to that argument about national interest, hence the importance of responding to his consultation paper, with its closing date of 1 November 2013.

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When a decision-maker gives retro-reasons

_57148667_012889212-1Lanner Parish Council (R ota) v. the Cornwall Council [2013] EWCA Civ 1290 read judgment

This planning judicial review tackles the problem posed by an authority who says one thing in its formal reasons granting planning permission, and another thing in the court proceedings when the grant is challenged.

Coastline wanted to construct 25 affordable dwellings in Lanner. The Parish in Lanner objected, on the basis that 25 was too many. It referred to a local planning policy (H20) which said that there should be no more than “about 12″ houses on any new development in a large village such as Lanner.

The planning officer supported the grant of planning permission, and the Council agreed. The Council’s reasons for grant said that the proposal “accords with” policy H20. But it didn’t, because the policy referred to 12 houses, and the proposal was for 25 houses, and this error in the reasons was one of the Parish’s main points on the judicial review.

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Aarhus, A-G Kokott’s opinion, and the PCO reciprocal cap

julianekokott-300x192Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013              read opinion here 

Forgive me for returning to this case, but it raises all sorts of questions. On the face of it, it concerns 2 specific environmental directives, but it has implications for costs generally in environmental cases.

And why do I go on about costs? Because the prospect of being seriously out of pocket deters even the most altruistic environmentalist if they lose. Some may be purely NIMBYs, but most have a rather wider sense of the things that matter and that is not just about protecting their own assets. Claimants are normally up against public authorities and/or developers, so the balance of power has to be struck in the right place between them.

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More press nonsense, this time on human rights damages

Screen Shot 2013-10-12 at 21.11.11“Human Right to Make a Killing”, screamed the Daily Mail last week, publishing details from a “damning dossier” which showed “Judges in Strasbourg paid out £4.4m to some of Britain’s worst criminals”.

The figures were taken from the response to a Parliamentary question put by Conservative MP Philip Davies. You can hear me debating him about the issue on BBC Radio 5 Live by clicking here – from 1:41:15 – watch out for the ‘human rights gravy train’ steaming into the debate around half way through.

Here is the full table if you are interested in the facts, which the Mail,  Telegraph and no doubt others were clearly not.

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No standing for the Inuit in Luxembourg

ipTteC6iztnEInuit Tapiriit Kanatami et al v. European Parliament, CJEU, 3 October 2013 (read judgment), following Advocate General Kokott, 17 January 2013, read opinion and my post

This important case is all about “standing” before the EU courts, namely the ability to complain about some EU act that affects you. Lack of standing means that even if a measure was wrong and unlawful, you cannot get your foot in the door of the court. Domestic rules are quite relaxed, though proposals by Government to make it more difficult to sue Government and other public authorities are currently being consulted upon. But you cannot say that an EU law is unlawful without going to Luxembourg.

The EU Courts have always been very restrictive about the circumstances in which an individual can do so. A brief blip (C-50/00 UPA) a few years ago by a UK Advocate-General suggesting that things be done differently was squashed by the Court. And since then it has been one-way traffic in the EU Courts, brushing off criticism from NGOs and indeed the Aarhus Convention Compliance Committee in 2011 (see here). For a good summary of the EU case law up to 2011, see the ACCC at [20]-[31]

Recent Treaty amendments in Lisbon have, it will be seen, made little difference to the result.

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Aarhus for real beginners

aarhus

Aarhus seems to seep into cases everywhere, so I thought it was about time to start from scratch. 

1. What is Aarhus? Denmark’s second city. You can write it like Århus, if you want a bit more Jutland cred. Ryanair fly there-ish (45km away).

2. How do you say it? Something like Orr-hoose: Danes, any better transliteration?

3. Why do lawyers go on about it? Because the UN-ECE Aarhus Convention was signed there in 1998. It came into force on 30 October 2001.

4. UN-ECE? United Nations Economic Commission for Europe, a regional organisation made under Article 68 of the UN Charter

5. What is the Convention about? 3 things (or pillars, in treaty-argot).

  • Access to environmental information
  • public participation in environmental decision-making, and
  • access to justice in environmental matters.

6. Is the UK signed up? Yes, founder member. It ratified it in 2005, when the EU did.

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Why Mrs Litvinenko did not get her PCO – but what if it had been an environmental claim?

Marina LitvinenkoR (on the application of LITVINENKO) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2013) QBD (Admin)  4 October 2013, judgment behind Lawtel paywall       UPDATED x 2 

An extraordinary story which would have raised our eyebrows at its implausibility had it come from our spy novelists. In late 2006, Alexander Litvinenko was murdered by polonium-210 given to him in London. He was an ex-Russian Federation FSB agent, but by then was a UK citizen. He had accused Putin of the murder of the journalist Anna Politovskaya. He may or may not have been working for MI6 at the time of his death. The prime suspects for the killing are in Russia, not willing to help the UK with its inquiries. But rightly, in one form or another, we want to know what really happened.

Not entirely surprisingly, Marina Litvinenko said that her husband had been murdered on orders from the Russian Federation. An inquest started, though the UK Government said that much of what the coroner wanted to inquire was off limits because covered by public interest immunity. In the light of this stance, the coroner, Sir Robert Owen, a senior high court judge, had said that any investigation into Litvinenko’s death could only be adequately carried out by a public inquiry. The secretary of state refused to order such an inquiry, saying that it could take place after the inquest if necessary. The inquest continues, but it can therefore only look at part of the story.

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Aarhus, the A-G, and why the rules on interim remedies need to change

SheernessCommission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

I did an initial post here summarising this opinion from the A-G to the CJEU saying that the UK was in breach of two EU Directives about environmental assessment and pollution control – the breaches concerned our system for litigation costs. It struck me that there was a lot in the opinion, and after some re-reads, I continue to think so. So I will deal in this post with one aspect, namely the finding that the UK is in breach, in requiring an undertaking as to damages by the claimant to back up the claimant’s interim injunction – in the jargon, a cross-undertaking. 

We are back on the well-trodden path of the UN-ECE Aarhus Convention to which the EU has subscribed. Article 9(4) requires that there be review procedures in environmental cases which shall provide “adequate and effective remedies including injunctive relief as appropriate, and be fair, timely and not prohibitively expensive.” And a requirement for a cross-undertaking, the A-G concluded, infringed that provision.

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Judge quashes “exclusive” golf course decision- and why we need judicial review

22-ep-cherkley-court-2-W1200Cherkley Campaign Ltd, (R o.t.a ) v. Longshot Cherkley Court Ltd, Haddon-Cave J, 22 August 2013 read judgment

This is a successful judicial review of the grant of planning permission to a proposed new golf club in leafy Surrey – where one central issue was whether, in planning policy terms, there was a “need” for the club. The local planning officers had advised the council against the proposal, but the members voted in favour of it (just), hence this challenge. It succeeded on grounds including perversity, which is pretty rare, especially in the planning context, but, when one looks at the judgment, you can readily see why the judge concluded as he did. 

The judgment contains some pungently expressed reminders that the planning system is not just about facilitating “business” but requires a proper assessment of the public interest. And dressing up the provision of very very expensive golf to a few very very rich people as “need” does not wash.

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What is a “public authority” for the purposes of environmental information?

water_tapFish Legal v The Information Commissioner, United Utilities, Yorkshire Water and Southern Water (Case C-279/12) – read Opinion of AG Cruz Villalon

In this most recent case concerning access by private individuals to environmental information held by public authorities,  the AG grasps the nettlish question of what precisely a public authority is. The issue was a subject of debate because the request for information had  been addressed to private companies which manage a public service relating to the environment.  The question therefore was whether, even though the companies concerned are private, they may be regarded as “public authorities” for the purposes of the Directive governing access to environmental information (Directive 2003/4).

Clearly the definition of the concept of “public authority” is an issue of importance not just in relation to access to information, but across the board, whether involving EU law or the application of the Human Rights Act 1998 and judicial review in domestic law. Continue reading

Aarhus: UK seems to be in trouble again, this time with the CJEU

julianekokott-300x192Commission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

“It is well known that in United Kingdom court proceedings are not cheap” – a masterly understatement opening this opinion from our pictured AG to the CJEU about whether the UK system on legal costs complies with the obligation now in two EU Directives about environmental assessment and pollution control. The AG thinks that our way of doing costs is not up to scratch – with the origin of this obligation to be found in  the UN-ECE Aarhus Convention to which the EU has subscribed (albeit abstemiously when the EU comes to its own affairs – funny that). 

Bit of context – the EU has been warning the UK about costs for some years, with formal warnings going back to 2007 – and the Aarhus Convention Compliance Committee has been doing likewise from Geneva. But the EU courts are more scary – all the ACCC can do is wrap the odd knuckle. And on this topic, we have one individual case which has been to the CJEU (Edwards, where the UK does not look in good shape - see my post), and now this case saying that the UK has a systemic problem with excessive costs.

But one thing we must remember. The law according to the AG looks at the law before the UK had a go at sorting the problem out – see my post, as above. on the new UK regime. There is some important stuff about how the old system did not comply, which will have implications for the new rules.

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Aarhus watch: a UK breach, and a fudge

023stirling1DM_468x312ACCC/C/2012/68 read draft findings here and ACCC/C/2010/45 read findings here

Two interesting decisions from the Geneva-based Aarhus Convention Compliance Committee (ACCC) about whether the UK planning system complies with the UN-ECE Aarhus Convention.

The first was given excellent recent coverage in the Independent – a Scottish wind farm case where UK plans for renewable energy had not received the public consultation which Article 7 of the Convention required. The second, which promised much (see my previous post), ducked the issues in a rather unsatisfactory way.

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HS2 challenges fail but powerful dissent

_65547471_65547470R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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Permission to amend after expiry of time limits – and an unfair hearing

dunmow-map-alldev2Secretary of State for Communities and Local Government v San Vicente and Carden [2013] EWCA Civ 817, Court of Appeal, 18 June 2013read judgment

There is a curious if not bizarre set of anomalies about planning and environmental challenges. Where they involve an attack on a decision by the Secretary of State (typically in respect of a decision by a planning inspector after inquiry), the route is via section 288 of the Town & Country Planning Act 1990. There is a strict 6 week time limit, with no discretion to extend – but no need for permission to apply as in judicial review. But where there is a challenge to any other decision, the time limit (at the moment) is 3 months, with discretion to extend – but also a discretion to disallow if the application was not “prompt” even within the 3 months  (see my post on this last point) and the permission hurdle to clear.

Yet in each case the substantive grounds are effectively the same – but to what extent should procedures differ other than those required by the statutory underpinning?

The conundrum in this case was – what to do about a set of grounds (drafted by lawyers)  filed after the s.288 time limit, in substitution for grounds (by the clients doing it themselves) filed within the 6 weeks.

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Sea fishing, quotas and A1P1: “no-one owns the sea”

carouselThe UK Association of Fish Producer Organisations v. Secretary of State for Environment, Food and Rural Affairs, Cranston J,  10 July 2013  read judgment 

Interesting alignment of parties in this challenge to Defra’s new system of allocating fish quota brought by an industry body (UKAFPO), in practice representing the larger fishing fleet – vessels over 10 metres in length –  Defra was supported by Greenpeace (how often does that happen?), and by the New Under Ten Fishermen’s Association. And this was because Defra had transferred some fishing quota from the larger to the smaller fishing fleet, namely those under 10 metres in length who fish inshore waters.

The first claim was that UKAFPO had a substantive legitimate expectation in their favour which was unlawfully frustrated by Defra’s change of policy. The second was that there was a breach of Article 1 of Protocol 1 (A1P1) of ECHR, or its EU analogue, Article 17 of the Charter. The third was that UKAFPO was being discriminated against unlawfully – comparable situations must not be treated differently under EU law, and only English fishermen who were members of English fish producers organisations were affected.

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