Category: Environment


Flooding claims from Vladivostok get to Strasbourg – and win

27 March 2012 by

Kolyadenko v. Russia

EHCtR, 28 February 2012 

This was the scene in the riverbed lying below a large reservoir near Vladivostok. There had been very heavy rain, causing the managers of the reservoir to let water through into that riverbed for fear that the reservoir might collapse. But the channel beneath was not exactly clear of obstructions, as the image shows. 6 flooded applicants obtained no redress in the Russian Courts, and had to go to Strasbourg to get damages – nearly 11 years after the flood in August 2001.

It might be thought that similar claimants here would not go uncompensated. But that is far from clear, as English law on flooding liabilities is by no means straightforward. Hence, the interest of the case, in which claims under Articles 2 (right to life), 8 (right to private and home life) and Article 1 Protocol 1 (right to possessions) were successful.

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The game changed back: Barr v. Biffa reversed

19 March 2012 by

Barr v. Biffa, CA, 19 March 2012, read judgment

For the last year or so, the law of nuisance has been in a state of flux pending this appeal. In this case about an odorous landfill,  Coulson J had ruled that compliance with the waste permit amounted to a defence to a claim in nuisance, and that a claimant had to prove negligence in the operation of the landfill before he could claim in nuisance. The Court of Appeal has today reversed this decision.

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Wind and peat: another step along the reasons trail

15 March 2012 by

Welsh Ministers v. RWE Npower Renewables Ltd [2012] EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council [2011] EWHC 1778 (Admin) Read judgment

In my previous post on this case, I summarised the judge’s findings as to why this Planning Inspector had gone wrong at the wind farm inquiry. The Inspector turned down the appeal because the positioning of individual turbines might lead to damage to deep deposits of peat found on this site.  The judge, Beatson J, thought the inspector had not explained his reasons for his conclusions in sufficiently clear a form. Nor did the Inspector give the wind farm developer an opportunity  to deal with his concerns.

So said the judge. But the Court of Appeal disagreed – showing how it is not easy to “call” the merits of these reasons challenges.

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Annulment: all or nothing? Walloons in a mess about muck-spreading

4 March 2012 by

Case C-41/11,Inter-Environnement Wallonie ASBL,Terre wallonne ASBL v Région wallonne, CJEU, 28 February 2012, read judgment

Some years ago, Belgium got itself into trouble for not properly implementing the Nitrates Directive, a measure designed to limit the amount of water pollution arising from muck-spreading and other good old-fashioned agricultural activities. And then it got itself into trouble under another Directive (the Strategic Environmental Assessment Directive) for the way that it then went about amending the law to address nitrates. So the nitrates amending law got annulled. But what to do then? Because a defective nitrates law was better than none at all. This was the conundrum which faced the CJEU in this recent case.

The latest round of this saga started when NGOs challenged the way in which the Walloon government sought to amend their water law in line with the Nitrates Directive. They went to the Conseil d’Etat to annul the amendment, because it did not comply with the SEA Directive. In 2009, the Conseil d’Etat referred the case to the CJEU, asking whether the nitrates amendment was a strategic plan or programme with the meaning of the SEA Directive. In 2010, (C-105/09) the CJEU said it was, in principle, it being for the domestic court ultimately to rule on the issue. In due course, the Conseil d’Etat confirmed this view by ruling that the nitrates amendment was in fact such a measure.

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Belgium bitten by Aarhus – again

19 February 2012 by

Solvay, CJEU, 16 February 2012 read judgment

This case is a sequel to C-128/09 Boxus, CJEU, 18 October 2011, for which see my post. Boxus was a reference from the Belgian Conseil d’Etat. Solvay was a reference from the Belgian Constitutional Court, with a wide set of questions asking, in effect, whether ratification by the Walloon Parliament of various airport and railway projects got round various challenges set by the Aarhus Convention, the EIA Directive, as amended, and the Habitats Directive.

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Does a risk of an explosion engage Article 8?

15 February 2012 by

Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment

This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.

As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.

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Aarhus and environmental judicial review: cracking legal costs per Jackson LJ

2 February 2012 by

In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims, in which  the Ministry of Justice wheeled out its proposals to get it out of the various scrapes caused by the expense of environmental challenges.  The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and both the European Commission and the Aarhus Compliance Committee don’t think that the English system complies – it costs way too much.

In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.

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Small solar: Court of Appeal confirms that changes were unlawful

25 January 2012 by

Secretary of State for Energy and Climate Change v. Friends of the Earth and others, CA, 25 January 2012, read judgment 

So, after an anxious wait for the affected businesses, the Court of Appeal has confirmed today that the Minister was too hasty in the way he went about modifying the scheme for subsidising small solar power schemes. But, as often, the Court went about things differently from the judgment below (see my initial and follow-up posts on this)

The Court held that the Minister had no power to do what he did, which was to say he was going to modify the subsidy rules in respect of schemes which had become eligible prior to the modification coming into effect. The legislation and rules are characteristically impenetrable, but the Minister proposed in a consultation, which closed on 31 October 2011, to reduce the subsidies for schemes which became eligible after 12 December 2011. The key point is that he proposed that this modification should come into force on 1 April 2012, and that those who had signed up to such a scheme between December 2011  and April 2012 lost much of their subsidy from 1 April 2012. The original scheme paid participants 43.3p per kilowatt hour for 25 years. The proposed revised scheme for these new joiners would pay them that rate until April 2012, but thereafter 21p per kilowatt hour for the rest of the 25 years.

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The god of free trade: why Austria cannot stop big lorries from using its motorways

21 January 2012 by

C-28/09, European Commission v. Austria, 21 December 2011 – read judgment 

Many countries in the EU are struggling to comply with its laws about air pollution. The UK is in continuing breach of its nitrogen dioxide emission limit: see my post just before Christmas. But one way a country can try to comply with these laws is by banning or limiting heavy traffic. And that is exactly what Austria did in respect of an important bit of its motorway network; it prohibited lorries of over 7.5 tonnes carrying certain goods from using a section of the A 12 motorway in the Inn valley. And just before Christmas, it paid the price.

The EU Court told Austria it was infringing EU law, in particular, Articles 28 and 29 of the EC Treaty (now Arts 34 and 35 of TFEU) which are the core provisions protecting free movement of goods. Why, given that it was trying to comply proactively with another requirement of EU law?

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Small solar systems on tenterhooks: Court of Appeal deliberates

17 January 2012 by

R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change , Mitting J, 21 December 2011, hearing in the CA 13 & 16 January 2012 

Avid readers of this blog (posted unpromisingly between Christmas and New Year) may recall this successful challenge to a proposal to modify solar power subsidies for small photovoltaic proposals (called by the judge, charmingly, “small solar systems”). At that stage, all I had was a short summary of the decision. Now a full transcript is available, albeit from behind a paywall. As importantly, the case has already bounded its way to the Court of Appeal, who have just finished hearing it, and are due to give judgment in February. I shall therefore not deal with the basis upon which the judge ruled that the change of policy was unlawful, but the broader point in my last post –  when can you challenge a proposal?

The judgment is pithy and helpful for those tussling with such a problem. The Minister contended that he could consult on any proposal, and provided he had not made up his mind, he could not be judicially reviewed whilst this process was happening. Yes, said Mitting J, I agree with all that…

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Smells and mosquitoes but no extra damages under the Human Rights Act

2 January 2012 by

Dobson and others v Thames Water Utilities Ltd [2011] EWHC 3253 – read judgment

David Hart QC acted for the defendants in this case. He has played no part in the writing of this post.

An operator carrying out activities authorised by legislation is immune from common law nuisance liability unless the claimant can prove negligence. Any damages for such a nuisance will constitute “sufficient just satisfaction” for the purpose of the Human Rights Act; even if breach of a Convention right is proved, no further remedy will be available.

Background

It has been a long established canon of common law that no action will lie in nuisance against a body whose operation interferes in one way or another with neighbouring land, where Parliament has authorised the construction and use of an undertaking or works, and there is a statutory scheme in existence which is inconsistent with such liability.

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EU Court upholds greenhouse gas scheme against US airlines challenge

2 January 2012 by

Case C-366/10 The Air Transport Association of America and Others, judgment of the CJEU, 21 December 2011 Opinion of Advocate-General Kokott, 6 October 2011

On 1 January 2012, the EU Emissions Trading Scheme started applying to airlines for real. So it was perhaps no coincidence that just before Christmas, and rather more speedily than usual, the EU Court (the CJEU) effectively threw out a challenge by US airlines to the scheme brought in the UK Courts which was referred to the CJEU. The airlines had said that a raft of international rules and conventions were inconsistent with the scheme. The UK denied the unlawfulness; it said, if you want to land in the EU, you have to obey EU rules. I posted on the Advocate-General’s opinion, and the Court has come to the same conclusion albeit by a slightly different route. But, first, what are these emissions trading schemes about?

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The solar power subsidies case : when can you judicially review a proposal?

29 December 2011 by

R (on the application of (1) Homesun Holdings (2) Solar Century Holdings (3) Friends of the Earth) v Secretary of State for Energy and Climate Change 

Admin. Ct, Mitting J, 21 December 2011, extempore judgment, so no transcript available

This successful challenge to a proposal to modify subsidies for solar power arose out of the decision by the climate change Department to amend the rules under which the subsidies were to be payable. The essential questions were whether DECC could do this whilst a statutory consultation period was running, and further whether judicial review lay against a proposal to change the system, as distinct from a challenge to the change itself.

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UK’s EU failure on air pollution: who enforces?

22 December 2011 by

R (CLIENTEARTH) v SECRETARY OF STATE FOR ENVIRONMENT FOOD &  RURAL AFFAIRS (2011), QBD (Admin) Mitting J, 13 December 2011, extempore so transcript not available.

For some time now, the United Kingdom has known that it is in trouble under EU legislation, Directive 2008/50, limiting the amount of nitrogen dioxide in the air we breathe. The date for meeting these levels was 1 January 2010. ClientEarth, an environmental NGO, brought proceedings to enforce this obligation. They failed, despite an admitted breach by the UK. Why?

ClientEarth  sought a declaration and mandatory orders against the Government for failing to comply with the levels set out in Article 13 of the Directive. Only 3 out of 43 areas and conglomerates in the UK met that target. Under Article 22, it was possible to extend the time for compliance with the limits by a maximum of five years. Recital nine to the 2008 Directive stated that where the objectives were not met, Member States were required to take steps to ensure compliance. In particular Articles 22 and 23 said that where an extension to the compliance time was sought, a Member State should publish an air quality plan indicating how compliance with the limits would be reached.

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Uninterrupted Morris Dancing rights beaten by an A1P1 claim?

7 December 2011 by

Leeds Group v. Leeds City Council et al [2011] EWCA Civ 1447

Retrospective legislation often gives rise to claims under Article 1 Protocol 1 of the Convention – you  may have some legal advantage (whether it be property or a legal claim) which you then find yourselves losing as a result of the change of law. I have posted on some of these, the ban of the pub fag machine, or the change in the law that meant insurers had to pay compensation for pleural plaques caused by asbestos. These A1P1 cases are not easy to win, not least because the courts are wary in thwarting legislative changes via one of the less fundamental and most qualified rights in the Convention locker.

The Leeds Group case is a good example of this. The Countryside and Rights of Way Act 2000 (CROW) changed the basis on which town and village greens could be registered. Put very shortly, you can register some land as a green if people had “indulged” in “lawful sports and pastimes” on the land for not less than 20 years, in the rather quaint and de haut en bas language of the drafter. The changes under CROW were quite subtle. You now have to show a “significant number” so indulging, but these people can come from “any neighbourhood within a locality”, rather than from a “locality” – a term on which previously masses of ink has been split and by which otherwise meritorious claims for greens disallowed. And the sports and pastimes now had to continue to the date of registration – you and your fellow Morris dancers could not just stop dancing or whatever once you had done your 20 years, if you wanted to register the greens.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza genetics Germany Google Grenfell Health HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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