Search Results for: environmental


HS2 challenges fail but powerful dissent

26 July 2013 by

_65547471_65547470R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport, 24 July 2013, Court of Appeal – read judgment 

HS2 is the proposed high speed rail link to Birmingham and beyond.  Its opponents sought to challenge the decision to promote it by way of a hybrid Bill in Parliament, saying that the process as a whole breached the various EU rules, including the need for Strategic Environmental Assessment under the Strategic Environmental Assessment Directive 2001/42/EC and the Environmental Impact Assessment Directive 2011/92/EU.

The Court of Appeal rejected these contentions, as had the judge before them. But Sullivan LJ, a highly experienced planning judge, was far from convinced. He thought that a key question about the SEA Directive ought to be determined by the EU Court (the CJEU) before domestic judges could form a settled view on it.

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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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HS2 challenges fail, except “unlawful” consultation on compensation

15 March 2013 by

_65547471_65547470R (o.t.a Buckingham County Council and others) v. Secretary of State for Transport, 15 March 2012, Ouseley J  – read judgment – Updated

In a 259-page judgment, Ouseley J has today rejected all but one of the challenges brought to the Government’s plans for HS2. This is the proposed high speed rail link to Birmingham, and potentially beyond.  The host of challengers (including local authorities, local residents and action groups (under the umbrella of HS2AA), and  – wait for it – Aylesbury Golf Club) brought a host of challenges – 10 in all, of which 9 were unsuccessful. I shall do my best to summarise those of wider interest.

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When is access to environmental justice “prohibitively expensive”?

22 September 2010 by

Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin) – Read judgment

A recent decision of the High Court, relating to a challenge to planning permission for a power station, could significantly limit access to environmental justice for local community groups.

The Aarhus Convention requires that access to justice and effective remedies be provided to members of the public in environmental matters, and that the procedures be “fair, equitable, timely and not prohibitively expensive.”

Both the UK and the EU are signatories to the Convention; the access to justice provisions are given effect in EU law in the Directive 85/377 EEC, which requires that such access be given to “members of the public concerned” who have a sufficient interest or  are maintaining the impairment of a right.

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M4 Newport relief road scrapped: environment v economics

24 June 2019 by

Listen to Alaisdair Henderson on Episode 85 of Law Pod UK

Plans to build a fourteen mile, six lane motorway through the Gwent Levels south of Newport to relieve congestion on the M4 have been scrapped by the Welsh government. The announcement by first minister Mark Drakeford was welcomed by environmentalists, local residents and small businesses who opposed the scheme at last year’s public inquiry. Alasdair Henderson, Dominic Ruck Keene and Hannah Noyce from 1 Crown Office Row with other barristers from Guildhall Chambers (Brendon Moorhouse) and Garden Court (Irena Sabic and Grace Brown) represented Gwent Wildlife Trust and an umbrella of other environmental objectors in the proceedings which lasted from February 2017 to September 2018. All these barristers acted for free. Environmental NGOs such as the Environmental Law Foundation, should be particularly pleased by Drakeford’s acknowledgement the campaigners’ efforts:


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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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New expenses rules for environmental litigation in Scotland: protective or defective? — Dr Ben Christman

22 November 2018 by

Scottish_Bagpiper_at_Glen_Coe,_Scotland_-_Diliff.jpgThe Scottish Government sets itself apart from its UK counterpart in its approach to protecting human rights. The SNP vocally opposed proposals to withdraw the UK from the ECHR and repeal the Human Rights Act. An expert group appointed by the First Minister Nicola Sturgeon will report this year with recommendations on how Scotland “can continue to lead by example in human rights”, and appears to be considering incorporating a range of rights from international human rights law into the Scottish legal system.

In environmental rights however, the lack of progress is conspicuous. As David Hart QC explained, the Aarhus Convention aims to protect the right to live in an environment adequate to health and wellbeing – the foundation on which other human rights are built. It recognises the rights of NGOs and members of the public to access information, participate in decision-making, and access justice. These rights encourage citizens to get involved in environmental decision-making. Article 9 requires that NGOs and members of the public must be able to challenge situations where their Convention rights are denied or national environmental laws are broken. Critically, access to justice must be “not prohibitively expensive”.

Yet environmental litigation (mainly judicial review) in Scotland is extortionate. Litigants face six figure bills if they lose. The Convention’s Meeting of the Parties and Compliance Committee (ACCC) have found Scotland to be non-compliant with the requirements of Article 9 (the latter has done so repeatedly). Instead of recognising this deficiency, recent Scottish Government consultation documents note Scotland’s “ongoing compliance” and disparage the Compliance Committee as “not a judicial body”.

2018 brings a new development. New protective expenses orders rules for environmental litigation in Scotland were created last week. This post examines these rules, and argues that they remain out of line with the Convention.

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The Environmental Tribunal: the view from Auckland

8 July 2011 by

Access to environmental justice is as topical as ever. Delegates at the recent conference of the United Kingdom Environmental Law Association (UKELA), held in late June at UEA in Norwich (yards from the Climatic Research Unit much in the news) argued that the current regime in this country is unsatisfactory – because of the cost, but also, and less predictably, because of a lack of basic fairness.

One QC who specialises in planning law pointed to the fact that a developer who is dissatisfied with a planning decision can appeal it, but an affected third party (often a disgruntled resident) cannot. He commented off the record that in his experience both as an advocate and as a decision-maker, decisions were affected by the knowledge that developers could readily challenge refusals, whereas third parties could not challenge grants other than by way of judicial review.

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The subtle hand of human rights – and more Aarhus

20 October 2016 by

1440788_1738fc0eR (o.t.a. Dowley) v. Secretary of State for Communities and Local Government [2016] EWHC 2618 (Admin) Patterson J, 20 October 2016 – read judgment

This challenge was about a landowner not wishing to let those wishing to develop Sizewell C nuclear power station onto her land to carry out surveys and investigations. But it came down to a disagreement about the terms which such entry might occur. For s.53 Planning Act 2008 enables the Secretary of State to allow such entry, subject to conditions, and with the proviso that the landowner may claim compensation for “damage caused to lands or chattels” (s.53(7)) via a claim to the Upper Tribunal.

The entry in question was not insubstantial; the developer wished to have access to some 75 acres of the 420 acres of the claimant’s estate, for surveys relating for possible spoil storage, roads and builders accommodation if the project was to proceed.

The major fall-out was over the issue of the extent of compensation. And this, as we shall see, is where human rights came in, albeit in a topsy-turvy way.

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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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Aarhus Convention update: Government still ignoring private nuisance claims

26 January 2017 by

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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Igniting the Green Revolution: some brain storming from environmental lawyers

21 April 2018 by

Image may contain: 3 people

Image Credit: Tobias Schreiner, PIEL UK

On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.

This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’

In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’

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What have the Inuit got to do with keeping EU law in check?

20 June 2012 by

In a recent post I mentioned that there has been criticism of the scope of the EU Aarhus Regulation inserting provisions about transparency, public participation and access to justice into EU processes themselves. It struck me just how confusing the whole area of EU challenges to EU measures is, so I thought I would summarise it as best I can in this and a following post. Here goes; the going may get a bit bumpy, but it is important stuff. I hope also to give some EU context to the debate about whether something is or is not a legislative act under Aarhus which I trailed in that post.

The EU signed up to the Aarhus Convention on environmental matters, as have all the member states. And the EU has made member states implement Aarhus-compliant procedures in major areas such as environmental impact assessment and industrial emissions, via the 2003 Public Participation Directive. The EU also requires member states to introduce a wide-ranging right to environmental information, transposed in the UK via the Environmental Information Regulations. The European Court has also chipped in with its own Aarhus gloss in the Slovakian Bear case; whenever a member state is considering some provision of EU environmental law, it must interpret that provision, if possible, so that it complies with Aarhus standards of public participation, even though those standards may be in the parts of the Aarhus Convention which have not received their own direct transposition into EU, let alone domestic, law.

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Jackson LJ on costs in all judicial reviews: Aarhus rules to apply

31 July 2017 by

 

Review of Fixed Recoverable Costs: Supplemental Report, 31 July 2017 – here

Jackson LJ is still toiling away at costs issues some 8 years after his main report. The original report changed the whole way in which the civil courts go about working how much, if anything, is due from one side to another at the end of a case – budgets being one key element. The main part of this new report concerns extending fixed costs further.

This post is about something different, judicial review. Rather different factors may come into play when you are challenging public authorities. You may have a direct financial or other interest in the outcome, or you may just think that the law needs properly enforcing against those authorities. It does not follow that the winner should recover costs on the same rules as elsewhere in the civil system. And Jackson LJ returns to the question of costs in this context in Chapter 10 of his report.

Since 2013, things have been different in the area of environmental judicial reviews. With substantial prods from the EU, things are now better off for claimants, though recent reforms have sought to put further obstacles in the way of claimants: see my post here.

So it is refreshing to read something from a very senior judge which recognises the true value of judicial review as a whole and why the costs rules need adjusting in this area for the benefit of claimants.

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Aarhus costs cap challenge succeeds

16 September 2017 by

RSPB, Friends of the Earth & Client Earth v. Secretary of State for Justice [2017] EWHC 2309 (Admin), 15 September 2017, Dove J – judgment here

In my March 2017 post here, I explained that amendments to the costs rules for public law environmental claims threatened to undo much of the certainty that those rules had achieved since 2013. Between 2013 and February 2017, if you, an individual, had an environmental judicial review, then you could pretty much guarantee that your liability to the other side’s costs would be capped at £5,000 (£10,000 for companies) if you lost, and your recovery of your own costs would be limited to £35,000 if you won. In this way, the rules sought to avoid the cost of such claims becoming prohibitively expensive and thus in breach of Art.9(4) of the Aarhus Convention.

The most worrying element in the February 2017 amendments was a new CPR 45.44  giving the courts a broad discretion to vary those amounts, apparently at any time. This seemed like an open invitation to the defendants to try to do this, aided by the financial information which claimants are now obliged to provide. It was truly regressive, taking us back to the days when you spent many thousands of pounds arguing about a protective costs order which was intended to save money.

In my March post, I explained that the new rules were being challenged by NGOs, and Friday’s judgment is the upshot of this challenge.

It is essentially a success for the NGOs.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey 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 appeal Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement 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 football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court 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 legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring 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 public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly 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 sexual orientation 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 UK Supreme Court unduly harsh united nations USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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