Media By: David Hart QC


ROC Sugar: keep the swings and ignore the roundabouts?

3 June 2011 by

Tate and Lyle Sugars Ltd v Secretary of State for Energy and Climate Change & Anor [2011] EWCA Civ 664 – Read judgment

You depend on a subsidy for developing a new technology. You say that Government is not giving you a big enough subsidy. You sue Government who says, er, yes we worked it out wrong – but now, doing it right, we come up with the answer we came up with in the first place. A lawful or unlawful decision by Government?

This was the conundrum facing the Court of Appeal in Tate & Lyle v. Department of Energy & Climate Change.

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No right to enforce EU air pollution law: only a Crackerjack pencil

31 May 2011 by

More fossil fuel power stations in the news (see my previous post), and more struggling with which bits of Euro environmental law ordinary people are allowed to enforce, and which bits are for the Commission.

Various NGOs challenged the grant of permits to 3 new power stations in the Netherlands, because the state was exceeding its emission limits for sulphur dioxide (SO2) and nitrogen oxides (NOx) and the grant of permits would simply add to these exceedences. The case was referred to the CJEU. The Advocate-General  thought that the exceedences were relevant to whether the permits should be granted – her opinion has been translated into virtually all Euro languages (including Maltese) but not English. Last week, the CJEU disagreed  – in English.

The problem arose because the EU made two directives which didn’t talk to each other.

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Old laws v. new policies: Parliamentary privilege but not a footballer in sight

28 May 2011 by

What happens when the government changes its mind about an existing law but new law has not yet been enacted?

Easy, really. You have to follow the old law, whatever the government may currently think about it. But it gets more complicated when the area of law, like planning, has a wide area of policy-making and policy-following built into it. So now we have old law, and new policy announced but no new law yet to underpin that policy other than in the broadest sense.

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“Prompt” means 3 months and not a day less for Euro-cases

23 May 2011 by

Buglife, R (on the application of) v Natural England [2011] EWHC 746 (Admin) – Read judgment

All public lawyers know that judicial review must be commenced “promptly and in any event not later than 3 months” after the public act complained of, failing which a claimant is at the mercy of the court as to whether to extend time.

And the word “promptly” in that context means that one can bowl out a claim even if it is commenced within those 3 months: see the Court of Appeal in Finn-Kelcey.

Or perhaps not. A recent environmental case, Buglife, grapples with this problem, and decides that, on the contrary, a claimant has an “unqualified entitlement to a period of up to three months before it must file its claim.” Hence the decision is of real practical importance, and there are big questions about its “reach”.
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Do something for nothing: there’s help out there

20 May 2011 by

If you don’t charge your client anything, how can you charge the other side? Answer:  completely lawful, it’s all in the statute.   Essentially, if you, a pro bono advocate, file a statement of the costs which you would have charged, had you been doing it for money. If you follow the right procedures, you may recover costs from the losing party. And it is as simple as that. If anyone is in any doubt, the Court of Appeal has just followed this rule in  Grand v. Gill [2011] EWCA Civ 554, where it made an award of £2,500 to the successful tenant, who had increased her damages on appeal.

Though there was a certain amount of publicity when this provision came in, this case is a good reminder of this power. However, for those pro bono advocates who scent possible recompense for themselves, remember, you are not the beneficiary of the money when paid. It goes to “the prescribed charity,” namely the Access to Justice Foundation.
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Don’t mention the Umwelt – for once, we beat the Germans to the pool

18 May 2011 by

The decision of the CJEU (a.k.a ECJ) in Case C-115/09 Bund Für Umwelt on 12 May goes right to the heart of environmental challenges. 

Friends of the Earth wanted to challenge the grant of planning permission for a whopping new coal-fired power station in Lünen, Germany, where these carnivallers are from. The power station is  destined to produce up to 1,750 MW of heat and 750 MW of electricity (to give an idea of scale, one huge offshore wind turbine might deliver 5MW when the wind is really blowing).

The case was about the adequacy of the Environmental Impact Assessment carried out on the proposed plant, not least because there were 5 Special Areas of Conservation within 8km of the site. The local court was concerned that the domestic law (including the EIA rules in the Umwelt-Rechtsbehelfgesetz) stood in the way of  FoE’s challenge, because it precluded challenges unless the impugned legislative provisions conferred “individual rights”.
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Albie Sachs – start with the issues, forget the parties

27 April 2011 by

Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 – read judgment

Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.

I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.

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Pearls and badgers – location, location, location

14 April 2011 by

Here we are, back with the  access to environmental information question…From rape, bees and lettuces , a coda, involving a diversion via a new road scheme planned for Aberdeen taking in pearls and badgers, crossing the River Dee Special Area of Conservation.

An opponent of the project brought a claim against the UK government before the Aarhus Compliance Committee; findings of the Committee were adopted on 25 February 2011. The complaints ranged far and wide but the point of interest arose under an exemption to disclosure in Article 4 of the Aarhus Convention, namely that disclosure would adversely affect “(h) the environment to which the information relates, such as the breeding sites of rare species.” This has found its way into reg.12(5)(g) of the Environmental Information Regulations 2004/3391, shorn, in a typically English way, of the helpful explanatory words underlined. Wouldn’t want the reader to get its meaning at a glance, would one?

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Aarhus breaches all round?

13 April 2011 by

On 6 April 2011, the European Commission announced that it has decided to refer the UK Government to the Court of Justice of the European Communities under Article 258 TFEU, for failing to provide affordable access to justice in environmental cases.

This blog has previously charted some of the twists and turns in the process of showing that environmental challenges are currently “prohibitively expensive” within the meaning of Article 9(4) of the Aarhus Convention – not the least of which was a complaint to the Aarhus Compliance Committee which was upheld by that Committee in October 2010. And the underlying concern is the state of the costs rules under which a claimant may be ordered to pay tens of thousands of pounds of costs if he loses, despite the developing case law on Protective Costs Orders designed to mitigate this.
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Oilseed rape, bees, lettuces and mobile phone masts: the right to information

11 April 2011 by

A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.

In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000. 
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Enemy of the people – what price water information?

21 December 2010 by

Smartsource v Information Commissioner + 19 other parties [2010] UKUT 415 (AAC) 23rd November 2010 – read judgment

Ibsen’s Enemy of the People has Dr Stockmann complaining to his Norwegian municipality about contamination of its water supply. We think that these sorts of disputes are part of a modern problem, so it is striking to find Ibsen being invoked, judicially, in this far from 19th century fight about environmental information.

The question was the less than dramatic one as to whether information about water and wastewater billing etc was environmental information, and that in turn involved deciding whether water companies and sewage undertakers were “public authorities”. Ibsen might not have found that answer too difficult to provide: what local authorities used to do in the 19th century and much of the 20th century, here, in Norway, and elsewhere, included supplying you with clean water and taking away your foul water.
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Pressure grows for reform of access to environmental justice

15 September 2010 by

Hard on the heels of the UN-ECE Aarhus Compliance Committee (see my previous post), Lord Justice Sullivan’s Working Party on Access to Environmental Justice has similarly condemned the current system under which judicial review claimants face an onerous costs burden when they advance claims which do not ultimately succeed.

The Working Party reported initially in May 2008 on access to justice in environmental cases, and was critical of the current costs regime. Its current focus is rather narrower that the recent conclusions of the Aarhus Compliance Committee, but potentially more effective thanks to that focus. It reviews the rather fuzzy case-law on Protective Costs Orders, fashioned by the judges to help Claimants against unlimited costs liabilities. The report can be read here.

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Environmental judicial review is “prohibitively expensive”, uncertain and insufficient

31 August 2010 by

A Geneva-based international committee has just said (provisionally) that domestic judicial review law is in breach of international law in environmental cases. Why? And does it matter? In this post we will try and explain why, and suggest that it does matter.

On 25 August 2010, the UN-ECE Aarhus Compliance Committee issued draft rulings in two long-running environmental challenges which, if confirmed, may have wide implications for how environmental judicial reviews are conducted in the UK. A key finding was that such challenges were “prohibitively expensive” to mount and this puts the UK in breach of its “access to justice” obligations under Article 9(4) of the Aarhus Convention. In addition, the Committee ruled that the UK’s grounds for judicial review of the substantive legality of decisions were too narrow, and said that the domestic rules as to timing of these challenges were insufficiently certain.

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