Thinking about reasons again

_70626907_792ccfc-arielsiteplan2R (o.t.a. Oakley) v. South Cambridgeshire District Council [2017] EWCA Civ 71, 15 February 2017, read judgment

There is, I am glad to say, an insistence these days in the Court of Appeal that the giving of proper reasons is a necessary part of what can be expected of a planning authority when it grants permission: see my post here for a case last year.

And the current case is another good example. The CA, reversing Jay J, decided that the planning authority had acted unlawfully in not giving reasons in this case.

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Aarhus Convention update: Government still ignoring private nuisance claims

F_AarhusConventionIn November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.

Article 9 of this Convention 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. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.

First, the limited bit of good news in the governmental response.

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Free Trade Agreements and the White House – where are we now?

ceta_signing_qtp_848x480_796869187661Trump’s inauguration seems not a bad moment to be having a look at the Free Trade Agreements (FTAs, actual or potential) which are swirling around at the moment, and their likely reception in the changed world which we face.

First on the list, our own tried, tested, and found electorally wanting, EU Treaties. They are FTAs, but with lots of knobs on – free movement of people, of establishment, level playing fields about employment rights, the environment and consumer protection, to name but a few.

The first thing to say is that FTAs, wherever they are, don’t come all that unencumbered these days. Continue reading

Why EU law will not make the trains run on time

pay-southern-rail-train-strikeGovia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment 

As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP  – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers. 

Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.

But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.

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When the court should look over the shoulder of a decision-maker


NO2_PicR (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J,
21 November 2016, transcript awaited

A quick follow-up ruling to the judgment of 2 November (here) in which the UK’s air pollution plans under EU and domestic laws were found wanting by the Administrative Court. The pollutant was nitrogen dioxide – a major product of vehicle exhaust fumes. 

This Monday’s hearing was to decide precisely what the Government should be ordered to do in respect of the breach. The judgment was extempore, but the short reports available (e.g. here) suggest that the ruling is of some interest. 

The parties had already agreed that it was unnecessary  to quash the existing plan, which could remain in place until the following year whilst DEFRA prepared a new plan – presumably on the basis that a defective plan was better than no plan at all.

This week’s disputed issues related to timing for a new plan and whether and how the court could or should keep a watchful eye on Governmental progress.

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Court says – again – UK must comply with EU air pollution law


NO2_PicR (ClientEarth No.2) v Secretary of State for Environment, Food &  Rural Affairs, Garnham J, 2 November 2016, judgment here

This is all about nitrogen dioxide in air, an unwanted byproduct of the internal combustion engine. Its effect on UK mortality has been estimated at 23,500 deaths per year. 

The long way of telling the story involves circling around 6 hearings, to the Supreme Court, twice, to the CJEU in 2014 (C404-13, my post here), and now to a trenchant judgment from Garnham J. 

The short version is this.

The UK has been non-compliant with EU Directive 2008/50 on nitrogen dioxide (et al) over the last 6 years. Art.23 of the Directive requires that the period in which a state is obliged to remedy any non-compliance is to be “as short as possible”.

The UK Air Quality Plan (AQP) produced in 2015 (and responding to the 2nd Supreme Court judgment here) was simply not up to ensuring that urgently required result.

In so concluding, Garnham J started with the construction of Art.23, in response to a Defra argument that it imports an element of discretion and judgment.

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A new animation about the birth of the European Convention on Human Rights

Almost six years ago, not long after this blog started, we published a lovely post by Tom Blackmore, the grandson of David Maxwell Fyfe. Maxwell Fyfe was a Conservative lawyer and politician who went from being the British Deputy Chief Prosecutor at the Nuremberg War Crimes trials to being instrumental in drafting the European Convention on Human Rights.

Since then, I have been trying to find an opportunity to bring this fascinating story to life. So I am delighted to share this short film which RightsInfo, along with the Met Film School, have just released to mark the 70th anniversary of the end of the Nuremberg Trials. Please share widely and enjoy! If you are looking for a subtitled version, click here.

 

  • Read more about David Maxwell Fyfe here
  • Read Tom Blackmore’s original post here