Local authorities and judicial review: they should not put their heads completely in the sands

728631_de6cf1deMidcounties Co-Operative Ltd v. Forest of Dean [2015] EWHC 1251 (Admin) 6 May 2015, Singh J, read judgment here

Out of what some may think to be an everyday spat between the Co-Op (existing  supermarket) and an out-of-town supermarket proposer, comes a salutary reminder from Singh J that local authorities cannot behave like private litigants when they are judicially reviewed. Different rules apply.

A little bit of context. Cinderford, like many small towns, has been subject to supermarket wars for some years. Unfortunately, the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, and then twice, and then, as we shall see, for a third time. And the response on this last occasion to the challenge – we disagree with the challenge, but we won’t appear to dispute it, and will leave it all to the supermarket to whom we gave planning permission to say why we were not unlawful in granting them permission.

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A1P1 claims by photovoltaics get to the Court of Appeal

Department of Energy and Climate Change v. Breyer Group plc and others  [2015] EWCA Civ 408, 28 April 2015 read judgment

In 2011, DECC decided to change the rules about subsidies for photovoltaic schemes, and caused substantial losses to those who had contracted or were about to contract on the basis of the more generous old subsidies. 

This is prime territory for a damages claim under A1P1 ECHR. The Court of Appeal has recently dismissed an appeal by DECC against a decision of Coulson J (see my post here) supportive of such claims.  The decision was on preliminary issues involving assumed facts, but important legal arguments advanced by DECC were rejected by the CA. 

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Supreme Court: no excuses, UK must comply with EU air pollution law


NO2_PicR (ClientEarth) v Secretary of State for Environment, Food &  Rural Affairs, Supreme Court, 29 April 2015, judgment here

Bit of a history to this one, with 5 hearings so far. The short version is that in May 2013, the UK Supreme Court (here), faced with the UK’s non-compliance with EU Directive 2008/50 (nitrogen dioxide etc in air), decide  to refer various issues to the CJEU in Luxembourg.  In 2014, the CJEU said its piece, (C404-13 and my post here), and its views are now considered by the Supreme Court, hence this second SC judgment.

The UK has been in breach of Article 13 of the Air Quality Directive since 1 January 2010, by not complying with pollution limits in specified areas. ClientEarth, an environmental NGO, sought to enforce the Directive in the national courts.  Defra admitted breach of Article 13 and the lower courts said that, given that admission, it was for the EU Commission, if it wished, to take infraction proceedings.  The Supreme Court’s 2013 judgement disagreed; it granted a declaration that the UK was in breach of Article 13, and posed various questions about the meaning and enforcement of the Directive to the CJEU.

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Supreme Court says Welsh NHS charges Bill in breach of A1P1

Asbestos-588x340Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: reference by Counsel General for Wales [2015] UKSC 3, 9 February 2015 – read judgment here

Sounds like a rather abstruse case, but the Supreme Court has had some important things to say about how the courts should approach an argument that Article 1 of Protocol 1 to ECHR (the right to peaceful enjoyment of possessions) is breached by a legislative decision. The clash is always between public benefit and private impairment, and this is a good example. 

The Welsh Bill in issue seeks to fix those responsible for compensating asbestos victims (say, employers) with a liability to pay the costs incurred by the Welsh NHS in treating those victims. It also places the liability to make such payments on the insurers of those employers.

In short, the Supreme Court found the Bill to be in breach of A1P1, as well as lying outside the legislative competence of the Welsh Assembly.  Let’s see how they got there, and compare the conclusion with the failed A1P1 challenge brought in the AXA case (see [2011] UKSC 46, and my post here) concerning Scottish legislative changes about respiratory disease.
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Why Somali pirates got damages from Strasbourg

disaster2008_Ponant14Ali Samatar and others v. France, 4 December 2014, ECtHR, Fifth Section, read judgment 

There is a good deal of froth about this case in the media, with little of it looking at what our pirates got their damages for. I also suspect that some of the hostility comes from elements who may not wish to trouble themselves with a judgment only in French. So let’s have a quick look at what the case was actually about. 

The surrounding facts are terrifying but France’s liability to pay damages occurred for mundane reasons, as we shall see.

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Geoff Hoon sting case fails in Strasbourg

9b316a14-1a4d-41c5-abc3-035aa1e6a91bHoon v. United Kingdom, 13 November 2014, ECtHR, read judgment

Most people’s political memories are short, but we may recall Geoff Hoon’s exquisite discomfiture when he was duped by a journalist, and then criticised by a Parliamentary Committee for his conduct in trying to drum up work. Still piqued, he complained of his treatment to Strasbourg, but, as we shall see, to no avail.

In February 2010, Hoon was an MP and a former Secretary of State for Defence. He had also taken up a voluntary position as one of twelve special advisors to the Secretary-General of NATO. He then announced he would not be contesting the May 2010 elections. He was  contacted by  Claire Webster on behalf of “Anderson Perry Associates”, an organisation that purported to be a “US communications company”.  The company was looking to hire consultants who had an intimate and expert knowledge of government affairs.

Hoon was indeed interested. 

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Why domestic Aarhus rules are not wide enough to comply with the Convention

F_AarhusConventionSecretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014  – read judgment  

Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.

Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.

Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.

Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?

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