The Environmental Tribunal: the view from Auckland

8 July 2011 by

Access to environmental justice is as topical as ever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.

One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.

This inequality is explicitly dealt with by the Environment Court of New Zealand. In the litigation working-group session of the conference, delegates were treated to an informative talk from Trevor Daya-Winterbottom, a barrister and senior lecturer at the University of Waikato. He explained that rights of appeal are extended to anyone who has made
submissions on a particular decision, permission etc. This could mean a disappointed applicant, or one which wished to challenge a condition of a permit, but it could equally mean a third party who lived near to a proposed facility.

The NZ Court also has a costs regime similar to that in the English Tribunal system, and one which would probably comply with the Aarhus Convention requirement that access to environmental justice should not be “prohibitively expensive” (see previous posts). In the Environment Court, there is no general rule that an unsuccessful party should pay the costs of the successful party. However, there is a limited residual jurisdiction to award costs against a party which has behaved unreasonably. This has the vital advantage for third party appellants that they know what their own legal bill will be, and that it will be no more than that.

The Court has taken an innovative approach to the precautionary principle. It does not apply the normal standard of the balance of probabilities when assessing future risk, i.e. it does not decide that because the likelihood of a particular harm occurring is less than 50%, therefore it will not happen. Instead, in a recent decision the Court held that it had to balance the seriousness of the potential risk and the percentage probability. If there was a small chance of serious harm – a 10% risk of catastrophic effects – the Court could refuse to permit that activity.  This sounds a bit like the test adopted in projects affecting areas (SACs or SPAs) protected under the Habitats Directive –namely that the developer must show that no reasonable scientific doubt remains as to the absence of the effect of the development upon the protected sites –
he must thus prove an onerous negative.

The Court’s rules of evidence might also give English lawyers a moment’s pause. There is a justifiable concern about expert evidence, and in particular about “hired gun” experts. It is possible to obtain the reports produced by an expert witness in previous cases, and see if there is an inconsistency between the two. If the expert said in a previous case that a particular technology was unsafe, or that a particular was risk was considerable, and then in a later case appears to have changed his mind, the expert can be challenged on it. The possibilities for cross-examination (and humour) must be considerable.

The Coalition government is well-known for preferring mediation to litigation where possible. Some commentators, including practising lawyers, have felt that this is wrong, and is an unconvincing Trojan horse for the government’s deficit-reduction agenda. However, the experience of the NZ Court and other environmental tribunals shows what can be achieved. Before 2002, there was a backlog of some 3,000 cases. Woolf-style case management reforms were introduced there with a particular emphasis on mediation. The backlog was reduced by more than half, and 40% of cases are settled in whole or in part by mediation. But that is not the limit – moving off over the Tasman Sea, the Planning and Environment Court of Queensland operates a system of mandatory mediation, and 90% of cases settle before a hearing.

So there is a lot to consider for judges, lawyers and litigants in the First Tier Tribunal. However, as I said in my previous
post, whether the First TT ever develops the jurisdiction to deal with problems like those above is something on which we will have to wait and see.

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1 comment;

  1. The UK’s test case in the European Courts and prime example of lack of access to justice, and lack of fairness, with judges exerciing their discretion, is the infamous Rugby Cement case: Edwards and another versus the Environment Agency. Warwickshire County Council granted a planning permission in 1996, without any EIA, and with a very limited planning statement, after 2 weeks “consultation”. They then proceeded to alter the planning permit until the plant had trebled in size when it opened in February 2000, without any public consultation at all. In September 1999 just before !PPC came in, it got an illegal IPC operating permit, in secret, without any consultation or payment to the Agency, where the new chair/long term board member was the same person as the chair of Rugby Cement’s own board! Then they immediatley applied to become a co-incinerator, (claiming to be an existing plant – under the IPPC wire) without any planning permissions, to burn 10 tonnes an hour of tyres. The Judicial Review started in 2003, and is still ongoing. The citizens of Rugby lost because the Environment Agency hid the crucial documents and reports and “misdirected” the courts all the way through. Even the five Law Lords – bless them – got all confused as fisrt RMC and then Cemex introduced more and more unnecessary data. This also cost us a lot of money and time to respond. When the case was finally lost in the Lords in “tragic circumstances” the EA made false witness statements about the claimant an dthe people of Rugby, an dthe situation in general, in order to gain £106,000 out of the claimants, who had already borne their own huge costs. The barrister (now QC) for the EA and Treasury repeated “misinformation”, excusing himself as being “so directed” by the solicitors at the Agency and Treasury.

    Now year on year Cemex are burning more and more waste, permitted 97,000 tpa Tyres, and 300,000 tpa Refuse, and emissions are increasing greatly – just as we said they would. To stop the public finding out the Agency has hidden from the public and Rugby Borough Local Authority the 2009 and 2010 annual emissions report – “retained” is written on the front. Of course they do not want the public to know that the facts remain as we always said – waste burning massively increases toxic carcinogenic emissions. Mercury for example went up from 1.2 kilos in 2008 to 85 kilos in 2009. Even NO2 has doubled from 1,226 tonnes in 2008 to 2,020 tonnes in 2010. Do not mention the huge increase in lorry pollution, all this in a smoke control zone, in an Air Quality Management Area, in a residential area to the west of a town, so the emissions predominantly blow onto us. Who would have built such a plant in the twenty first century with NO raw materials within the vicinity? Chalk is pumped 60 miles in 40% sewage slurry to be dried out over our heads. It is an obvious environmental disaster, and even more energy inefficient than any other plant. No raw materials, no trains, and virtually no roads!

    There must be access to justice, and the last 2 Supreme Court cases showed that the justices and Lords are now far more aware of the injustice the people of Rugby have suffered, and hopefully, when we finally get there, the European Courts will cane the UK government for its attitude to the public, the environment, air quality and human health, and will ensure that Aarhus is finally on the statute book in the UK.

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