Category: Environment


Slow but steady on access to environmental justice from supreme court

20 December 2010 by

R (on the application of Edwards and another) (Appellant) v Environment Agency & others(Respondents) [2010] UKSC 57 – Read judgment

The development of the principles of access to justice in environmental cases moves on apace.

This case arose out of a failed attempt to seek judicial review of the Environment Agency’s decision to issue a permit for the operation of a cement works. The application was made under the Environmental Impact Assessment Directive 85/337/EC and the Intergrated Pollution Prevention and control Directive 96/61/EC, both of which incorporate Article 9 of the Aarhus Convention, which requires that costs for environmental proceedings should not be prohibitively expensive.

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Environmental compliance body urges major changes to law

8 December 2010 by

This time two years ago two obscure environmental groups,  Clientearth and the Marine Conservation Society , took a step that may make more difference to the enforcement of environmental rights in this country than all the recent high-profile “green” NGO campaigns put together.

They submitted a complaint – euphemistically called a “communication” – to the enforcement body of the Aarhus Convention, a treaty which lays down baseline rules for proper environmental justice in the EU, alerting it to various shortcomings in the legal system of England and Wales (inelegantly but conveniently referred to in the report as E & W).
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Costing the planet: should environmental cases have a free run?

30 November 2010 by

Big business between government and property developers may be at risk from public interest challenges in the courts if current obstacles are removed.

Following  critical findings by a UN environmental body, the Government has set out its latest proposals for allocating the costs burden in environmental cases.  The current position is that an applicant who seeks to dispute the lawfulness of a decision, say, to grant permission for a development, will only  get a court order preventing commencement of construction if they are prepared to pay for the developer’s loss should their claim fail at the full trial of the merits.

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Analysis: Pet shock collar ban – barking, or a new era for rights?

23 November 2010 by

Updated | The recent High Court decision upholding the ban on electronic training collars for domestic animals raises the interesting and topical issue of animal welfare and its role in EU law.

In her post on the case Catriona Murdoch discusses the various arguments involved,  from human rights to irrationality to proportionality under EU law, and the extent to which the language of human rights can be enlisted in the service of animal protection. Conor Gearty has analysed this topic in a persuasive paper published in 2008; here we  look at the question in relation to permitted justifications for impeding free movement for goods and services in the Community.

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Warning: Wild Lawyers at Large

28 September 2010 by

A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.

Sixty years of human rights and it feels like they’ve been with us for ever.  Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.

In Paul Simon’s words, there are

Too many people on the bus from the airport

Too many holes in the crust of the earth

The planet groans

Every time it registers another birth

People’s rights and aspirations, as set out in these pioneering aristocratic instruments, may have reached the end of their useful life.

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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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Box ticking or thinking: what are the duties of planners?

30 June 2010 by

The Queen on the Application of Janet Harris (Appellant) v London Borough of Haringey (Respondent) and Grainger Seven Sisters Ltd (2) Northumberland And Durham Property Trust Ltd (Interested Parties) and The Equality and Human Rights Commission (Intervener) [2010] EWCA Civ 703 22 June 2010 – read judgment

In granting planning permission for redevelopment of a site in an area made up predominantly of ethnic minority communities, a local authority had failed to discharge its duties under the Race Relations Act 1976 s.71(1)(b) as the requirements of s.71 had not formed, in substance, an integral part of the decision-making process –

The appellant challenged a decision to grant planning permission to the first interested party (“Grainger”) for the development of a site in Tottenham which incorporated an indoor market. The grant permitted the demolition of all the business and residential units on the site, and erection of mixed use development with parking and “public realm improvements”.
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New Coalition abolishes Infrastructure Planning Commission after less than a year of operation

28 May 2010 by

The Infrastructure Planning Commission (“IPC”) is to be one of the first fatalities of the new coalition government. What impact will another change to the controversial system have on the fairness of planning decisions?

In a letter on 24 May 2010, the head of the IPC, Sir Michael Pitt, has confirmed the government is planning to scrap the organisation as a part of a wider overhaul planning powers in the Department for Communities and Local Government.

The IPC was set up as part of a number of planning reforms under the Planning Act 2008. The goal of the IPC is described on the website as “making the application process for nationally significant infrastructure projects faster, fairer and easier for people to get involved in”. Whether the IPC was achieving this goal is hard to say, as the body only began operation on 1 October 2009, and only began to receive applications on 1 March 2010.

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European Commission warns the UK about unfair cost of challenging environmental decisions

28 March 2010 by

The European Commission has sent an official warning letter to the UK regarding the prohibitive expense of challenging the legality of environmental decisions.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed by the United Kingdom in 1998, and came into force in October 2001.  It was ratified by the United Kingdom in February 2005, at the same time as its ratification by the European Community.  Article 9(4) of the Convention provides that access to environmental justice must be fair, equitable, timely and not prohibitively expensive.

The European Convention on Human Rights (ECHR) does not provide for a specific human right to a clean environment, nor a right to environmental justice, although Article 2 (right to life), Article 6 (right to a fair trial) and Article 8 (respect for family and private life) do provide some scope for environmental protection, Conventions such as Aarhus are important in supporting these rights in an environmental context, particularly where the ECHR may provide inadequate protection. This connection is recognised in the preamble to the Aarhus Convention which identifies that, “the adequate protection of the environment is essential for human well-being and the enjoyment of basic human rights, including the right to life itself.”

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Supreme Court refers question of public interest in disclosure about mobile phone masts to ECJ

29 January 2010 by

Office of Communications v Information Commissioner [2010] UKSC 3

SC (Lord Hope (Deputy President), Lord Saville, Lady Hale, Lord Mance, Lord Collins) January 27 2010

Article 4(2) of the European Directive 2003/4 imposes a duty to disclose environmental information. The Environmental Regulations were passed in 2004 to give effect to the Directive, the duty being contained in Regulation 12.. There are a number of different exceptions to this duty, one of which is the public safety exception in reg 12(5)(a), and another the intellectual property rights exception in reg. 12(5)(c).

The information commissioner had ordered that the respondent (OFCOM) disclose information as to the precise location of mobile telephone base stations in the United Kingdom. The Information Tribunal had dismissed OFCOM’s appeal against the order, finding that although disclosure fell within the scope of the two exceptions under 12(5)(a) and (c), both were outweighed by the public interest in disclosure.

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The Grainger case – a double edged sword for climate change campaigners?

18 January 2010 by

Grainger PLC v T Nicholson

Employment Appeal Tribunal (Burton J), November 3 2009 – Read judgment

The Employment Appeal Tribunal has found that belief in climate change is capable of constituting a “philosophical belief” within the meaning of the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”).

The decision of 3 November 2009 also provides important guidance for what constitutes a “philosophical belief” under the 2003 Regulations, as well as raising a number of questions regarding the status of ‘beliefs’ in relation to ‘scientific evidence’, a matter which, the EAT’s findings do not entirely resolve.


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Buglife: An important decision on Protective Costs Orders

30 November 2009 by

R (Buglife) v. Thurrock Thames Gateway Development Corporation [2008] EWHC 475 (Admin), [2008] EWCA Civ 1209, [2009] EWCA Civ 29

By Angus McCullough, One Crown Office Row

Protective Costs Orders (PCOs) are a relatively new feature on the legal landscape. The Buglife case is of general significance in relation to the procedure and approach to be adopted in relation to PCOs, and associated costs caps, as set out in the Court of Appeal’s judgment of 4 November 2008, which is reported at [2009] Env LR 18 (Buglife (1)). Separately and more specifically, the substantive claim for judicial review is also notable, as an example of the Court’s approach to a planning decision to allow a development on a site of environmental significance. This was also considered by the Court of Appeal: Buglife (2).

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Court sets out producers’ obligations under waste electronic equipment directive

18 September 2009 by

R (on the application of REPIC Ltd) v (1) Secretary of State for Business Enterprise and Regulatory Reform (2) Environment Agency (Defendants) & (1) Scottish Environment Protection Agency (2) Electrolink Recylcing Ltd and (3) WERC Ltd T/A City Compliance Scheme (Interested Parties) [2009] EWHC 2015 (Admin)

QBD (Admin) (Wyn Williams J) 31 July 2009

The Regulations adopted pursuant to the Waste Electrical and Electronic Equipment Directive of 2002 were not breached when an operator of a producer compliance scheme collected more waste electrical and electronic equipment from private households than was necessary to meet its obligations.

The claimant, an electronics producer operating a compliance scheme under the WEEE Regulations applied for a declaration, by way of judicial review, that the defendants had failed to discharge their duties to enforce the Regulations when they refused to take action against the over-collection by the Second and Third Interested Parties.

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