What can an Environmental Tribunal do?

6 June 2011 by John Joliffe

Access to environmental justice is a subject close to the hearts of various contributors to this blog, as one can see from the posts listed below. But not only to them – Sullivan LJ was the chairman of the working group that in 2008 wrote “Ensuring Access to Environmental Justice in England and Wales”. Jackson LJ returned to the issue in his report on the costs of civil litigation. In December last year the Supreme Court referred to the Court of Justice of the EU, Edwards, a case about the English costs regime, and whether it complies with the Aarhus convention. Finally, in April 2011 the European Commission said it was going to refer the UK to the CJEU for failing to comply with the costs element of the Convention.

So the UKELA seminar on “Developing the new Environmental Tribunal” hosted by Simmons & Simmons on 16^th May 2011, was timely, to say the least, particularly as the speakers included Lord Justice Sullivan, and Lord Justice Carnwath the senior president of the Tribunals, and Professor Richard Macrory Q.C., author of a new report on the Environment Tribunal.

Richard Macrory: the Environment Tribunal

The Tribunal was set up in 2010, and has jurisdiction to hear appeals against civil sanctions imposed by regulators. It has a number of advantages as an appeal forum. Most importantly for potential Aarhus compliance, it is cheap – parties normally bear their own costs, subject to the small chance of costs awards to penalize unreasonable conduct. It is also a tribunal with expertise in environmental issues, with specialised judges and a flexible procedure.

One or two highly specialised categories of appeal have been added to its remit, namely the Eco-Design for Energy-Using Products (amendment) (Civil Sanction) Regulations 2010, and the Single Use Carrier Bag Charges (Wales) Regulations 2010. Appeals in respect of sanctions under these provisions are unlikely to rush the Tribunal off its feet. However, and this is Macrory’s main point, there are currently 64 separate legislative provisions concerning appeals and challenges to decision under various acts of parliament and statutory instruments, all going places other than the Tribunal. The appeal fora include the County Court, the High Court, the Magistrates Court, various different secretaries of state (DEFRA, BIS, DECC etc), and OFWAT. Somewhat bizarrely, for certain health and safety matters, the appeal goes to the Employment Tribunal.

Macrory described this as haphazard, and suggested that the current system lacks principle. He said that the present array of appeal routes should be transferred to the Tribunal, although by increments rather than at a single stroke. For future legislation, there should be a presumption that anyone seeking a licence or served with a notice imposing an obligation (such as to remediate) would have an unrestricted right of appeal to the Tribunal.

The Tribunal currently has no jurisdiction to hear judicial review claims. Macrory suggested that this be kept under review, and commented that in a number of other jurisdictions, such as New Zealand, there is just such a right for all parties, including affected third parties, to go to such tribunals to challenge the grant of permits. He noted that many judicial reviews are brought, often by industry, which are in substance merits reviews but dressed in the clothes of JR.

If there is a reform of the current High Court costs rules to make them comply with Aarhus and its requirement that costs in environmental matters not be “prohibitively expensive”, one effect might be to increase the number of challenges brought to environmental decisions. This would place additional strain on the Administrative Court. Transferring some jurisdiction for environmental JR to the Tribunal would have the advantages of relieving the Admin Court, and dealing with the claims in a cost-effective specialist court.

Panel discussion

Heading the discussion was Robert McCracken QC, the President of the Lands Tribunal George Bartlett Q.C., and Rynd Smith of the Planning Inspectorate. One issue that sharply divided participants was Alternative Dispute Resolution. The Tribunal is supposed to promote other ways of resolving disputes, and ADR is one of them. The panel acknowledged that ADR can be a useful tool in horizontal disputes, i.e. between two parties of equal standing, such as the parties in a private law nuisance claim. However, how useful is it in vertical disputes, e.g. between an applicant and a regulator, with the chance of affected third parties wanting to be involved, such as residents, the applicant’s competitors etc? There was no consensus. In the view of this author, it depends. While it should be possible in theory for a regulator and an applicant to solve their differences out of court, as the number of parties increases the likelihood of being able to accommodate the competing agenda will diminish.

The Tribunal is still in its earliest days, but for political reasons it may not survive and acquire new powers. DEFRA has announced that there is to be a cross-government review of the civil sanctions system. The Environment Agency’s power to issue civil sanctions for permitting infringements was to have come into effect in April, but because of the DEFRA review this is now stalled. Its power to impose sanctions for other offences came in during January, and remains in force – but the Agency has not yet issued any sanctions.

A Radical Plan from Letwin

Meanwhile, cabinet office minister Oliver Letwin MP has come up with a different proposal: that the power to issue civil sanctions be taken away from regulators altogether, and instead transferred to the courts. If this was done, it would remove what is perhaps the most convenient solution to the costs/Aarhus problem. It would also get rid of the whole purpose of the civil sanctions in the first place, namely their flexibility as compared to the traditional courts system. Whether this visceral mistrust of the “bureaucrat” will blow over remains to be seen.