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.
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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  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.
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,  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.
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  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.
R (on the application of) Friends of Antique Cultural Treasures Ltd v Department for the Environment, Food and Rural Affairs – read judgment
“We believe that the legal market presents opportunities for criminals to launder recently poached ivory as old ivory products.” (Defra’s statement in consultation in introducing the Ivory Bill)
The Ivory Act 2018, which received Royal Assent in December 2018, proposes to prohibit ivory dealing with very limited exceptions. This includes antique items made with ivory. According to the Government, the Act contains “one of the world’s toughest bans on ivory sales”. No date has yet been fixed for it to become law.
The purpose of the Act is to enhance the protection of African and Asian elephants in the face of ongoing threats to their survival. It does so by prohibiting the sale, as opposed to the retention, of all ivory (that is, anything made out of or containing ivory), subject to a very limited and tightly defined exemptions. These prohibitions are backed by criminal and civil sanctions.
The claimant company represented UK dealers in antique worked ivory such as Chinese fans, walking canes with sculpted ivory tops and furniture with ivory inlay. The appeal of these items is not confined to Sinologist antiquarians. Netsuke, smaller carved ornaments worn as part of Japanese traditional dress, are an example. Even for the non connoisseur, Edmund de Waal’s novel The Hare with the Amber Eyes is a celebration of the significance and aura that these ornaments bestow on their owners, not just for the carving, but for the material of which they are made. Religious, hierarchical, magical, and even medicinal.
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.
Welsh Ministers v. RWE Npower Renewables Ltd  EWCA Civ 311 read judgment, reversing RWE Npower Renewables v. Welsh Ministers & Swansea Council  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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