We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
Running a hearing can be difficult enough when you are sitting as a judge and are faced with parties in a civil case. At least then you have an agenda set by the legal documents (or pleadings) and your primary role as judge is to decide whether the points made by one or other side are good or bad. Sometimes you may be sorely tempted to suggest better ones, but usually you do not run parties’ cases for them. And if you do, it is obviously fair for you to tell both parties what is going through your mind. After all, there may be very good reasons why a party has not taken a point apparently advantageous to them. Anyway, you must give the other side the opportunity to deal with the point.
All the more difficult in an inquiry, of which a planning inquiry is a good example. Here you are not just the judge. Your job is to inquire into whatever you think is necessary to decide whether to let a scheme proceed. Much of the time, it is a bit like a civil case, with the local planning authority trying to uphold its grounds for refusal, and the developer trying to show why the grounds do not stack up. But then in many planning appeals you have the third or fourth dimension, a group or groups of (usually) objectors who are saying that there are additional grounds for refusing the scheme. Sometimes, these issues come out all tidily before the inquiry starts, because the objectors have asked to participate in the formal procedures (Rule 6 parties in the jargon). On other occasions, it all just comes out as the inquiry proceeds.
A lot is happening in various challenges related to the long-running and shameful exclusion of the Chagossian people from their islands in the Indian Ocean.
Here are the headlines, with a reminder of what these cases are about:
First, the Court of Appeal has just (2 April 2014) heard an appeal by the Chagossians against the dismissal of their challenge to the designation of the waters around the islands as a Marine Protected Area.
Second, the closed hearing of the UNCLOS Arbitral Tribunal on the merits of the Chagos dispute (Mauritius v UK) is to be held at Istanbul on 22 April 2014. This also concerns the designation of the MPA.
Thirdly, the public hearing in the UK Information Tribunal on access to Diego Garcia pollution data appeal under the Environmental Information Regulations 2004, which the FCO — contrary to the view of the Information Commissioner — says is inapplicable to overseas territories) is to be held on May 1st, 2014.
The UK Human Rights Blog aims to provide a free, comprehensive and balanced legal update service. Our intention is not to campaign on any particular issue, but rather to present both sides of the argument on issues which are often highly controversial. We post on a huge range of legal issues, from human rights, to public, medical and environmental law.
The Blog is written by members of 1 Crown Office Row. Its searchable archive of case reports and comments dating back to 1998 (when the acclaimed Human Rights Update service was launched) is freely available. The Blog also delivers a weekly Rights Round-up, written by our talented team of recent law graduates. We welcome posts from legal academics as well as practising lawyers.
In May 2017 the podcast series Law Pod UK was introduced alongside the Blog, featuring lively interviews with members of Chambers on caselaw and general legal developments.
Adam Wagner founded the Blog in 2010. The Blog has had over 6 million hits and averages well over 500,000 hits a year. The blog also has thousands of subscribers across email, Facebook and Twitter. It is regularly acclaimed by commentators and cited by leading lights in the legal community.
Darragh Coffey accepts instructions in all areas of Chambers’ work and is developing a broad practice with a particular focus on public law. He appears in courts and tribunals on behalf of both Claimants and Defendants in a range of civil hearings.
Jasper is developing a broad practice and accepts instructions in all chambers’ practice areas. As well as clinical negligence, public law, discrimination, data law, inquests and tax, Jasper gained experience as a pupil in commercial disputes and is comfortable with cases containing contractual or other commercial elements.
Since joining 1COR, Jasper has undertaken advocacy in the high court, county court and coronial court. He has appeared in several inquests, including ‘Article 2’ and jury inquests. He is currently instructed as junior counsel to the Commissioner of the Metropolitan Police in the Undercover Policing Inquiry, and is the Co-Commissioning Editor of the UK Human Rights Blog.
Rosalind English is one of the editors of the UK Human Rights Blog. She also presents Law Pod UK, a series of podcasts on legal developments relevant to Chambers work.
She teaches law at Cambridge University Institute of Continuing Education.
Angus McCullough has a varied practice which covers public law (including human rights), professional negligence, regulatory and disciplinary law, and the environment. He has acted as a special advocate in many of the most high profile national security cases in recent times (e.g. Abu Qatada, Ekaterina Zatuliveter, Al Jedda). Instructed by the Attorney General, he has appeared in contempt of court applications against the press and jurors (including the ‘Facebook juror‘ and the first internet press contempt case to be brought). He is also a recognised expert in medical law: complex and high value medical claims constitute a major part of his practice and in 2009, the year before taking silk, he was named ‘Personal Injury and Clinical Negligence Junior of the Year by Chambers & Partners. Before becoming a QC in 2010 he was on the panel of Treasury Counsel (A list from 2001-2010).
Martin Downs practises in the field of equality and human rights. He has co-authored two books about Civil Partnership and Same-Sex Marriage and is a regular contributor to Family Law and Tolley’s Employment Law. He lectures on employment, equality, education and family law amongst other subjects and has made a number of media appearances – particularly about radicalisation. He is very interested in the history, culture and politics of South Asia as well as Ireland. He tweets on legal matters too.
David Hart practises in environmental law, medical law (particularly clinical negligence), professional negligence and construction. He has also appeared at a number of major public inquiries. David has particular experience of group actions in the environmental field and in medical cases.
He has been Chair of the Environmental Law Foundation since 2016, and has done pro bono work for them. He sat on a Research Ethics Committee at St Thomas’ Hospital for 10 years, and he has a particular interest in genetics. He is an accredited mediator. He has been a regular contributor to the Blog for the last 5 years, on all subjects under the sun.
Jim was the Blog’s Commissioning Editor in 2017. His practice spans human rights, inquests, clinical negligence and employment law. Before transferring to the Bar in 2012, Jim was a solicitor whose work involved human rights cases on behalf of Iraqi civilians, British soldiers, jobseekers and immigrants.
After becoming a tenant at 1 Crown Office Row, he acted as Judicial Assistant to Lord Reed and Lord Hodge at the UK Supreme Court in 2013-14.
Jonathan joined chambers as a tenant in September 2017 after completion of 12 months of pupillage. He has a broad practice across all areas of chambers’ work, with particular expertise in public and human rights law, asylum and immigration, clinical negligence and inquests. He appears regularly in the County Court, the Coroner’s Court and the Immigration Tribunals, and has also undertaken hearings in the High Court.
Before coming to the Bar, Jonathan undertook voluntary work at The Death Penalty Project, Simons, Muirhead & Burton LLP. He also worked on a pro bono basis for the School Exclusion Project, acting as lay legal representative for the parents of excluded pupils at hearings in front of school governors and independent review panels. Jonathan was the Blog’s Commissioning Editor from 2017-2022.
Adam was the founding editor of the UK Human Rights Blog. He was longlisted for the 2011 Orwell Prize for blogging. He is a tenant at Doughty Street, specialising in public law, human rights and medical law. In 2015 he set up RightsInfo, an innovative new website that aims to bring human rights to life using infographics, stories and social media.
1COR is a leading set of civil law Chambers. We are recognised as having leading practitioners in all aspects of healthcare law, clinical negligence and personal injury, professional disciplinary proceedings, public and administrative law, human rights, employment, professional negligence, costs, matrimonial finance, VAT and environmental law. We also have a team of 15 accredited mediators. You can read more about 1COR by clicking here.
Comments Policy
i) You grant us a perpetual license to reproduce your words in your comment and a name/web site link in attribution.
ii) You acknowledge that a name, email address and IP address will be recorded and held by us on submission of your comment for so long as your comment remains on the site.
iii) The email address and IP address will not be used by us for any purpose save those directly connected with the administration of the site and/or your comment(s). The email address and IP address will not be released or passed to third parties unless we are required to so so by law.
iv) We reserve the right to delete or edit comments without notice. The following is a non-exhaustive list of circumstances in which we will delete or edit comments:
the comment is actually or potentially defamatory against an identifiable person.
the comment constitutes advertising.
the comment contains abuse directed at authors of the site, or other commenters, or an identifiable person.
the comment is wholly irrelevant to the post under which it is made.
the comment is, in the opinion of the editor, spam.
the comment contains a link to a commercial website which is in our opinion not appropriate or merited.
The decision to edit or delete a comment is final.
v) We cannot offer advice on individual’s situations and cannot allow others to respond to comments containing individuals’ legal problems or situations. Comments by individuals seeking advice or assistance will be deleted without notice.
vi) You acknowledge that you are the author of your comment and that the editor and other authors of the site take no responsibility for your comment. You are responsible for any inaccuracies, errors, omissions, and statements in your comment.
vii) You agree that, if your comment or comments contain or allegedly contain defamatory phrases, you indemnify the editor and/or any authorised author of this site in respect of any and all costs and/or losses and/or damages incurred by them in respect of that comment or comments.
viii) The editor of the site reserves the right to ban any commentor from posting further comments on what, in the opinion of the editor, is a breach of these conditions.
A long saga with a very new twist which should make even the most strident critic of international courts think again.
On 12 December 1999, the Erika sank some 60 nautical miles off the Brittany coast, spilling some 20,000 tonnes of heavy fuel which in due course polluted some 400 km of the French coastline. On 24 May 2012, the Cour de Cassation is due to rule on whether Total is criminally liable for the spill. Previous courts (the Criminal Court of First Instance, and the Court of Appeal in Paris) had said that it was. But now Advocate-General Boccon-Gibod has recently advised the Cour de Cassation that Total has no criminal liability. The problem, as often with international environmental issues, particularly criminal ones, is the jurisdiction for the offence charged – can, in this instance, the French prosecute this crime, even though someone can also do so somewhere else? What better reason for the founding of an international environmental court – a forum where one tribunal can seek to enforce common rules against those responsible for major pollution, wherever the pollution occurs and wherever the parties may be resident.
U & Partners (East Anglia) Ltd, R (on the application of) v. The Broads Authority [2011] EWHC 1824 (Admin) 13 July 2011. Read judgment
I posted recently about a case, Buglife, which affects the rule that judicial review must be commenced “promptly and in any event not later than 3 months.” Buglife decided that, contrary to a previous Court of Appeal case, Finn-Kelcey, a court could not bowl out certain claims if they were commenced within those 3 months, even if not “promptly”. And the Broads case of this week reached the same conclusion. The key to these cases is that they involve challenging the application of a Euro-directive.
Welcome back to the human rights roundup. Our full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
Tackling the problem of delay seems to be the heart of the Family Justice Review’s proposals, evidenced by this piece, written by David Norgrove, who chaired the Family Justice Review, about the need to tackle the problem of delay in the family justice system when it comes to child protection cases. Norgrove says such delays are damaging to children and suggests, amongst other things, that children’s welfare should not be trumped by parents’ rights in these circumstances.
This time, not a post about the Environmental Information Regulations (posts passim), but a celebration of the North Norfolk sea, wind, and saltmarsh, by me and nearly 30 other kayakers on Saturday, in order to raise money for a fantastic website, Law and Your Environment.
I have previously posted on the decision leading to this successful appeal by the Planning Inspectorate, against an order that they produce their legal advice concerning a planning appeal. The decision of the First-Tier Tribunal in favour of disclosure was reversed by a strong Upper Tribunal, chaired by Carnwath LJ in his last outing before going to the Supreme Court. So the upshot is that PINS can retain whatever advice which led them to refuse this request for a public inquiry in a locally controversial case.
Now for a bit of background. The claim for disclosure of documents arose out of a planning application by a wind farm operator to install an 80m tall anemometer (and associated guy wires radiating over about 0.5ha) near Fring in North Norfolk. This was to assess the viability of a wind farm near the site. The local planning authority refused permission for the anemometer, and the wind farmer appealed. There are three ways of deciding such an appeal – a full public inquiry with oral evidence and submissions, an informal hearing or written representations. The locals people wanted a public inquiry. They were supported in that by the council, and the local MP thought that the council was the best body to judge that. PINS said no; no complex issues arose for which a public inquiry was necessary.
North Norfolk District Council v. Secretary of State for Communities and Local Government, [2014] EWHC 279 (Admin), Robin Purchas QC sitting as a Deputy High Court Judge, 14 February 2014 – read judgment
In my last post, I explained how Chris Grayling’s proposed reforms might affect planning and environmental challenges, and, hey presto, within the week, a perfect illustration of one of the points which I was making – with implications for all judicial reviews.
One of the proposals in the Criminal Justice and Courts Bill (see here) is that a challenge to an unlawful decision should fail if it is highly likely that the outcome for the applicant would not have been substantially different, had the public authority not acted unlawfully. This compares with the current test which is that the decision should be quashed unless it is inevitable that the decision would be the same.
Cue a proposed wind turbine (86.5m to blade tip) to be placed on one of the highest points of Norfolk and affecting the setting of two Grade I listed buildings (Baconsthorpe Hall and Barningham Hall) and a number of Grade II* churches. The Inspector allowed the turbine on appeal from the local planning authority, which decision the judge has now set aside. Continue reading →
The Chagos Refugees Group in Mauritius v. Foreign and Commonwealth Office, First Tier Tribunal, 4 September 2012, read judgment
and Bancoult v. FCO, 25 July 2012, Stanley Burnton LJ, read judgment
The manoevres by which the Chagossians were evicted from their islands in the Indian Ocean, the late 1960s and early 1970s, so to enable the US to operate an air base on Diego Garcia, do not show the UK Foreign Office in its best light. Indeed, after a severe rebuke from the courts in 2000, the FCO accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
The first of these new cases is an environmental information appeal concerning the next phase of the story – how the FCO decided that it was not feasible to resettle the islanders in 2002-2004.
This decision was taken in the modern way – backed by a feasibility study prepared by consultants supporting the stance which the FCO ultimately were to take. And this case concerns the islanders’ attempts to get documents lying behind and around the taking of this decision.
In episode 180 of Law Pod UK, Lucy McCann speaks to Dr Stefan Theil, the John Thornley Fellow and Director of Studies in Law at Sidney Sussex College, University of Cambridge, about what role the law can play in tackling the climate crisis. Dr Theil discusses the framework and central argument in his recent book ‘Towards the Environmental Minimum’ (Cambridge University Press, 2021). In the episode Dr Theil argues for an incremental human rights-based approach to combat the climate crisis and environmental degradation, and explores the extent to which courts are well placed to adjudicate on environmental issues. The discussion covers the concept of polycentricity, protections offered by domestic constitutions and the value of ascribing rights beyond human beings.
In R (Friends of the Earth Ltd) v Secretary of State for International Trade/UK Export Finance (UKEF) [2023] EWCA Civ 14, the Court of Appeal considered the implications of the Paris Agreement on climate change for governmental decision-making in relation to investing in a liquified natural gas project in Mozambique (the “Project”). Sir Geoffrey Vos MR, with whom Lord Justice Bean and Sir Keith Lindblom SPT agreed, dismissed Friends of the Earth’s appeal against the Divisional Court’s decision to dismiss their application for judicial review.
Photograph: Tom Pilgrim/PA; the Guardian.
The judgment sets out the approach which is to be taken where the government declares itself to be acting in accordance with the UK’s obligations under an unincorporated international treaty. The Court of Appeal also considered the well-established duty that a decision-maker must “ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly” (Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065, known as the “Tameside duty”). Put briefly, the Court of Appeal held that:
the question of whether funding the Project was consistent with the UK’s international obligations under the Paris Agreement was accepted by the parties to be justiciable;
however, the Paris Agreement, as an unincorporated international treaty, did not give rise to domestic legal obligations;
having decided to have regard to the Paris Agreement, the respondents did not need to be right that funding the Project was consistent with it, so long as that view was “tenable”; and
failing to quantify the indirect greenhouse gas emissions from the downstream distribution, storage and use of the gas produced (known as “Scope 3” emissions) – which would undoubtedly be by far the greatest part of the emissions caused by the Project – before deciding to finance the Project, was not a breach of the Tameside duty.
The Fisheries Bill 2020, part of the government’s core legislative program on post-Brexit environmental policy, is currently in the House of Lords at committee stage, and is expected to receive royal assent in the coming months (although exactly when is subject to how successfully the House of Lords can adapt to meeting via Microsoft Teams). It would establish Britain’s departure from the Common Fisheries Policy (CFP) on January 1st 2021, and sets out how fishing rights would work post transition period and CFP.
Given the passion that fishing rights raise, you might be forgiven for thinking that they were absolutely essential to the functioning of the UK and EU economies. In fact, fishing accounts for around 0.1% of both. A joke going around environmental blogs is that green bills are like buses – none come when you need them, then they all arrive at once. Perhaps for the Environment and Agriculture Bills – discussed by me here and here. But the Fisheries Bill feels more like the Brexit Bus than a local routemaster. It promises the repatriation of sovereign powers and gains in the millions by taking back control of our waters, while hiding potential losses in the billions, if issues with fishing rights derail trade negotiations – a slim but real possibility.
Even the most entrenched remainer, however, would have to recognise the multiple failures of the CFP. It has been plagued by mismanaged quotas and outsized lobbying interests since its inception, and it has clearly favoured certain member states over others. The Fisheries Bill has as such been largely well received by environmental groups, such as Greener UK, who comment that the “focus on climate change and sustainability is very helpful”. I’ll start with what the bill actually says, then discuss the EU negotiation position and conclude with a few comments about what the legislation may mean for the future relations.
Further details of the sinking of a Greek fishing boat carrying up to 800 people – including up to 100 children – have come out, placing the Greek authorities under intense scrutiny. The tragedy, which occurred on Wednesday 14th June, has seen the confirmed deaths of at least 78 people and only 104 confirmed survivors – with no women or children surviving. The Greek authorities have so far claimed that the boat had no issues navigating until close to the time when it began to sink and that the people onboard had refused help from the Greek coastguard. However, marine tracking evidence obtained by the BBC suggests that the overcrowded fishing vessel was not moving for at least seven hours before it capsized. This has raised questions over the actions of the Greek coastguard, prompting the UN to call for an investigation into Greece’s handling of the situation amid claims more action should have been taken earlier to initiate a full-scale rescue attempt. Up to 500 people are still unaccounted for. In slightly more positive news, nine of the people traffickers involved in the disaster have been apprehended by Greek police and pled not guilty in a Kalamata court to trafficking charges.
The Italian prosecutor for Padua, Valeria Sanzari, has demanded the cancellation of 33 birth certificates of children born to lesbian couples dating back to 2017, saying the name of the non-biological mother should be removed. The mother whose name is eliminated will no longer be able to fulfil a series of tasks, including picking up her child from school without the written permission of her partner. If the legally recognised parent dies, the children could be taken from the family home and become a ward of the state. This comes against the backdrop of the election of Meloni’s right-wing government and a debate in Italy’s lower house on a new law that would make it a crime, punishable by up to two years in jail, for couples who go abroad to have a surrogate baby, even in places where it is legal. Critics of the move, such as Italian parliamentarian Alessandro Zan, have called the proposal “cruel [and] inhumane”, saying it will result in children being “orphaned by decree”.
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.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
Dudgeon Offshore Wind v. Secretary of State for Communities and Local Government et al, HHJ Waksman QC, hearing 23 March 2012, read judgment
A long saga with a very new twist which should make even the most strident critic of international courts think again.
U & Partners (East Anglia) Ltd, R (on the application of) v. The Broads Authority [2011] EWHC 1824 (Admin) 13 July 2011. 
This blog is run by
Recent comments