climate change


The Climate Change Act, Heathrow and HS2

17 April 2020 by

The latest episode of Law Pod UK features energy expert Thomas Muinzer of Aberdeen University and David Hart QC of 1 Crown Office Row. They discuss the complex provisions of the Climate Change Act 2008, the extent to which the UK has reached its own goals for carbon emission reduction, and two recent challenges in the courts to projects involving GHG emissions:

R(on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214 and Christopher Packham CBE v Secretary of State for Transport and the Prime Minister [2020] EWHC 829 (Admin).

This is all the more topical, given the recent decision to go ahead HS2, despite the current lockdown.

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CA declares Heathrow expansion decision unlawful on climate change grounds

27 February 2020 by

[2020] EWCA Civ 214 – read judgment

Airport expansion has taken a long and winding road, not least at Heathrow. But the proponents of the 3rd runway at Heathrow would have been heartened by the Secretary of State’s decision in June 2018 to set out a policy which preferred Heathrow over Gatwick and which was designed to steer planning processes thereafter in support of the new runway.

It is this decision which has just been declared unlawful by the Court of Appeal.

I am afraid this is where the planning jargon starts and the acronyms proliferate. The challenged decision was an Airports National Policy Statement (ANPS). Under planning legislation, an ANPS “sets the fundamental framework within which further decisions will be taken,” as the CA put it in [275]. Those further decisions include the grant of permission for the particular project, done through the Development Consent Order (DCO) process. But you cannot challenge that fundamental framework later in the DCO process; you cannot say later, for instance, that expansion is not necessary at all, or there is a better alternative, say, Gatwick, if the ANPS has decided otherwise.


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The Round Up: Facial Recognition Technology and Failings by Prisons, Police and the CPS

30 January 2020 by

Civil liberties groups have responded with opprobrium to the Metropolitan Police’s plan to begin using live facial recognition (LFR) cameras on London’s streets as of next month. Purportedly, the Met’s technology compares the structure of faces to those recorded in a database of suspects, and alerts officers on the scene if a match is found. If no alert is generated, the image is deleted. The Met has claimed that the system is 70% effective at spotting wanted suspects and only produced a false identification in one in a thousand cases. In addition, it claimed 80% of people surveyed backed the move. 


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Subsidy withdrawal from renewable energy entirely lawful – Court of Appeal

26 October 2016 by

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Infinis Energy Holdings Ltd v HM Treasury and Anor [2016] EWCA Civ 1030 – read judgment

In July 2015 the government announced that it was removing a subsidy for renewable energy. Its decision in fact was to take away the exemption that renewable source electricity enjoyed from a tax known as the climate change levy. We have covered previous episodes in the renewables saga on the UKHRB in various posts.

The appellant, the largest landfill gas operator in the UK and one of the leading onshore wind generators, challenged the government’s removal of the subsidy on the basis of the EU law principles of foreseeability, legal certainty, the protection of legitimate expectations or proportionality. At first instance the judge upheld the Secretary of State’s decision, and the Court of Appeal dismissed the appeal against this finding.

Legal and Factual Background

The subsidy took the form of an exemption for renewable source electricity (RSE) such as that provided by the appellant’s company, from the climate change levy (CCL). (The judgment is replete with these acronyms so it’s worth getting to grips with them before reading.)

Jay J, the judge at first instance, summarised the government’s reasons for removing the exemption. The government wanted to move away from a system of indirect support to one of direct support, the latter being more efficient and cost-effective. The exemption, it was said, benefited foreign generators and there were incentives and support in place that would continue to support domestic generators of renewable energy.  The government had considered the impact of this decision on companies such as Infinis,  but it was decided that it was outweighed by the public interest. 
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Wind turbines, noise and public information

7 November 2014 by

3844964938R (o.t.a Joicey) v. Northumberland County Council , 7 November 2014, Cranston J  read judgment

An interesting decision about a Council not supplying some key information about a wind turbine project to the public until very late in the day. Can an objector apply to set the grant of permission aside? Answer: yes, unless the Council can show that it would have inevitably have come to the same conclusion, even if the information had been made public earlier.

Mr Barber, a farmer, wanted to put up one turbine (47m to tip) on his land. The claimant was an objector, another farmer who lives 4km away, and who campaigns about subsidies for renewables – it is him in the pic. The planning application was complicated by the fact that an application for 6 turbines at Barmoor nearby had already been approved (where Mr Joicey is standing), and the rules on noise from wind turbines looks at the total noise affecting local people, not just from Mr Barber’s turbine.

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Bike repair and cycling training for your firm – and all for a good cause

15 April 2014 by

Screen Shot 2014-04-15 at 12.05.40Not too long ago, a friend of mine, Jem Stein, set up a brilliant social enterprise called the Bike Project. It has gone from strength to strength. The project is now loking for (i) new corporate clients for its very reasonable and professional bike repair service and/or bike training service, (ii) new bikes to repair. All details below and in this flier – Adam Wagner

The Bike Project was set up in late 2012 with the primary aim of refurbishing second hand bikes to give to destitute refugees and asylum seekers in London.

Many people come to this country with nothing, often escaping persecution. Whilst a number are forced to live on as little as £35 per week and unable to work as their status as a refugee is approved, those who are able to work find getting around on public transport simply too expensive. The effect that a bike can have is underestimated. It provides access to all that London has to offer: reaching charities that help with food, healthcare, education, and even the lawyer who can aid their application process. Of course, a bike can aid employment, if they are lucky enough to receive refugee status.

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Judicial review changes: inevitably the same result if no unlawfulness?

16 February 2014 by

baconsthorpe-castleNorth 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.
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Aarhus, the A-G, and why the rules on interim remedies need to change

27 September 2013 by

SheernessCommission v. UK, Opinion of Advocate-General Kokott, 12 September 2013 read opinion here 

I did an initial post here summarising this opinion from the A-G to the CJEU saying that the UK was in breach of two EU Directives about environmental assessment and pollution control – the breaches concerned our system for litigation costs. It struck me that there was a lot in the opinion, and after some re-reads, I continue to think so. So I will deal in this post with one aspect, namely the finding that the UK is in breach, in requiring an undertaking as to damages by the claimant to back up the claimant’s interim injunction – in the jargon, a cross-undertaking. 

We are back on the well-trodden path of the UN-ECE Aarhus Convention to which the EU has subscribed. Article 9(4) requires that there be review procedures in environmental cases which shall provide “adequate and effective remedies including injunctive relief as appropriate, and be fair, timely and not prohibitively expensive.” And a requirement for a cross-undertaking, the A-G concluded, infringed that provision.

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Incomplete information and the right to know: Climategate’s long tail

10 June 2013 by

ImageVaultHandler.aspxStephen McIntyre v Information Commissioner (Environmental Information Regulations 2004) [2013] UKFTT 156 (17 May 2013) – read judgment and [2013] UKFTT 51 (7 May 2013) read judgment

These are the latest in a series of  freedom of information requests for disclosure of material from the UEA’s Climatic Research Unit (CRU).  These requests arose following the ‘climategate’ affair where hacked university emails suggested that individuals within CRU might have attempted to abuse the process of peer review to prevent publication of opposing research papers and evidence. Hence the sensitivity of the data to both requester and CRU, and the passions engendered on these appeals.

Both cases turned on whether disclosure could be denied on the basis of the public interest exception to the default rule that information should be disclosed, in other words the chilling effect on sharing ideas and unpublished research, and the potential distortion of public debate by the disclosure of incomplete material. 
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Who “holds” the working papers of the Climategate inquiry?

7 May 2013 by

emailgate_mockup_k_SMLHolland v. Information Commissioner & University of East Anglia, First Tier Tribunal, 29 April 2013  – read judgment

In 2009 someone hacked into e-mails belonging to the Climate Research Unit at UEA and leaked them widely. Climate change sceptics whooped with delight because they thought that the e-mails showed attempts to suppress or gerrymander climate data (see e.g. this example from James Delingpole with some of the ticklish e-mails, and for more background, less tendentiously put, my post on an earlier UEA case). And the CRU data was important; it had made its way into the highly influential IPCC reports.

UEA understandably thought that something needed doing in response to the leaks, and commissioned an inquiry, the Independent Climate Change E-mail Review. ICCER reported in 2010: see here for the report and here for a short summary. ICCER  concluded that there had not been any systematic manipulation of data, though there had been a lack of openness by CRU in dealing with requests for information. 

This recent decision concerns a campaigner’s efforts to get copies of the working papers of the Review. The First Tier Tribunal (as the Information Commissioner before it) refused to order UEA to produce them.  UEA did not “hold” them, ICCER did. And ICCER was not a public authority capable of being ordered to produce them.

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Human rights claims against undercover police to be heard in secret – Simon McKay

18 January 2013 by

Mark Kennedy

Mark Kennedy

AKJ & Ors v Commissioner of Police for the Metroplis & Ors [2013] EWHC 32 (QB) – Read judgment

The High Court has ruled that the Investigatory Powers Tribunal was the exclusive jurisdiction for Human Rights Act claims against the police as a result of the activities of undercover police officers, authorised as Covert Human Intelligence Sources, where such conduct was not a breach of a fundamental right. The Tribunal did not have jurisdiction to determine proceedings brought by Claimants at common law.  

The decision of AKJ and related litigation is the latest instalment of the fallout from the activities of undercover police officer or Covert Human Intelligence Source (CHIS) Mark Kennedy and another police officer.  Kennedy infiltrated environmental protest groups including those that resulted in convictions following events at Ratcliffe on Soar power station. The convictions were later quashed following revelations about Kennedy’s activities which included allegations he had engaged in sexual relationships with a number of female protestors and other prosecutorial impropriety: R v Barkshire [2011] EWCA Crim 1885 (UKHRB post). A number of those affected by Kennedy’s actions subsequently brought claims in tort (for example alleging deception) and under the Human Rights Act 1998.

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Metropolitan Police succeed in G20 “kettling” appeal

19 January 2012 by

R (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 – Read judgment 

The Metropolitan Police has succeeded in its appeal against a Divisional Court ruling (see previous post) that the use of crowd control measures – in this case, containment or “kettling” – against Climate Camp protesters did not constitute “lawful police operations”.

In reaching its decision, the Court of Appeal considered three issues: (i) whether the Divisional Court adopted the wrong approach to the question of whether a breach of the peace was imminent, (ii) whether Chief Superintendent Mr. Johnson’s apprehension that there was an imminent breach of the peace was reasonable, and (iii) whether, on Mr. Johnson’s own evidence, he should not have ordered containment of the Climate Camp.

by Wessen Jazrawi


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Freedom of information – no longer the Cinderella of rights

17 November 2011 by

BUAV v Information Commissioner and Newcastle University (EA/2010/0064) – read judgment

There is no doubt that freedom of expression plays a starring role in the human rights fairy tale. While she is carried aloft on the soaring rhetoric of citizens’ rights from the newsrooms to protesters’ rallies, the right to information, her shy stepsister, is rarely allowed out. How can that be? Surely we can’t have the one without the other?

The key lies in the Strasbourg Court’s traditionally restrictive interpretation of  the relevant part of Article 10 – “the freedom to … to receive and impart information” (10(1)). Although the right to information is explicit (unlike many of the other rights the Court has conjured from the Convention), it does not entitle a citizen a right of access to government-held information about his personal position, nor does it embody an obligation on the government to impart such information to the individual (Leander v Sweden (1987) 9 EHRR 433). This approach is changing, particularly in relation to press applicants. But the culture remains hostile; as the Court says  “it is difficult to derive from the Convention a general right of access to administrative data and documents” (Loiseau v. France (dec.), no. 46809/99, ECHR 2003-XII – a self-serving statement if ever there was one, given that it is not the Convention but the Court’s own case law that has been so tight-fisted in the past.

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Did undercover climate officer go native?

10 January 2011 by

In a plot worthy of a Hollywood film, the trial of six environmental campaigners charged with conspiring to shut down a power station has apparently collapsed after an undercover police officer switched sides.

According to the BBC:

The six were charged with conspiring to shut down the Ratcliffe-on-Soar power station in Nottingham in 2009. The case was due to start on Monday, but was abandoned after Pc Mark Kennedy contacted the defence team to say he would be prepared to help them. The prosecution subsequently dropped their case. Mr Kennedy had been intimately involved in the green movement since 2000.

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Warning: Wild Lawyers at Large

28 September 2010 by

A group of lawyers, academics and campaigners has been deciding how to shake up our legal landscape to make the future safer for our environment.

Sixty years of human rights and it feels like they’ve been with us for ever.  Two hundred and nine years since the founding fathers’ Bill of Rights came into effect in the United States; two hundred and eleven since the French National Assembly adopted the Declaration of the Rights of man. Now, there are more humans to seek out and flourish those rights than was ever imaginable in those brave new worlds.

In Paul Simon’s words, there are

Too many people on the bus from the airport

Too many holes in the crust of the earth

The planet groans

Every time it registers another birth

People’s rights and aspirations, as set out in these pioneering aristocratic instruments, may have reached the end of their useful life.

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