Archive for the 'Environmental courts & tribunals' Category

Judicial Review Reforms

By Centre for Law and Environment , on 15 November 2013

In September 201Trade Union_63 the Ministry of Justice published proposals for further reforms to Judicial Review procedures.  These include the possible creation of a specialist Land and Planning Chamber within the Upper Tribunal to handle planning JRs, and more controversially ideas for restricting standing, and minimize ‘political’ JRs designed primarily to delay Government decision-maker.  Professor Macrory has made a personal submission to the Consultation Document.

Key points in Professor Macrory’s submission which focuses on environmental JRs are:

  • The Consultation Paper focuses on planning JRs and acknowledges that many of its proposals cannot apply to Aarhus environmental JRs. Yet many planning JRs will inevitably engage Aarhus.
  • Aarhus does not entitled people to bring frivolous or unwarranted claims but the the vision of Aarhus for economical and speedy access to review procedures requires a more radical rethink on how JRs have been traditionally handled.
  • There is considerable merit in the proposal of the Upper Tribunal (Lands Chamber) in handling planning JRs.  Environmental JRs should also be transferred, starting with those areas of environmental law where statutory appeals to the First Tier Environment Tribunal now lie.  The new Chamber should be called the Land, Planning and Environment Chamber.
  • Third parties who had participated in environmental regulatory procedures should have a limited right of appeal to the First Tier Environmental Tribunal on the substantive or procedural legality of the decision in question. Providing an appeal in this way would be more consistent with Aarhus aspirations than JR actions and by channeling such challenges through the First Tier Tribunal would help dampen unrealistic and expensive JR claims.
  • There is a limited discretion under Aarhus to define standing requirements under national rules for environmental NGOs but it is unlikely that doing so will meet concerns expressed in the Consultation Paper, and it is preferable to rely on judicial discretion.

UPDATE  FEBRUARY 2014

The Government responded to the consultation in February 2014 – Cm 8811

  • The Government has decided not to set up  a new chamber in the Upper Tribunal for planning and environmental JRs. Instead it will create a new Planning Court within the High Court -  “The Government is satisfied that the Planning Court continuing to hear cases in the High Court will deliver the improvements it had been minded to seek through the creation of a Planning Chamber in the Upper Tribunal. The Planning Court should be up and running more quickly without introducing uncertainty around the development of new rules and case management procedure that a Planning Chamber in the Upper Tribunal would have required”.
  • The Government has decided not to change existing rules on standing in planning and environment JRs – “The Government is clear that the current approach to judicial review allows for misuse, but is not of the view that amending standing is the best way to limit the potential for mischief. Rather, the Government’s view is that the better way to deliver its policy aim is through a strong package of financial reforms to limit the pursuit of weak claims and by reforming the way the court deals with judicial reviews based on procedural defects.”

 

ENVIRONMENTAL TRIBUNAL decides over 400 Nitrate Vulnerable Zone appeals

By Centre for Law and Environment , on 14 August 2013

Moreinfo2_nvz_map_2002The First-tier Tribunal (Environment) was set up in 2010 but only in 2013 has it handled  a signficiant work-load.    Until 2012 appeals against the designation of Nitrate Vulnerable Zones (NVZs) by the Department of Environment Food and Rural Affairs were heard by a Panel appointed by the Secretary of State.   In his 2011 Report,  Consistency and Effectiveness – Strengthening the New Tribunal,  Professor Macrory, co-director of the Centre, recommended that environmental regulatory appeals, including the designation of NVZs, should in principle be transferred to the new Tribunal, and under regulations made in 2012 (Nitrate Pollution Prevention (Amendment) Regulations 2012), NVZ appeals in England were duly transferred to the new Tribunal.  In Wales, appeals are heard by Planning Inspectors whose decisions are binding on government. Designations across England and Wales take place around every 4 years, and last August the Secretary of State proposed the current designations, giving land-owners the right of appeal within 28 days.

Appeals have been heard during 2013, and according the Tribunal, there were 455 appeals in all, with 37.8% (172) allowed, and  12.75% (57) part-allowed.  A small number (11) were dealt with by a Consent Order.  31.21% (142) appeals were dismissed, and the remainder were either struck out or withdrawn.

Environment Tribunal in England and Wales Gaining New Powers

By Centre for Law and Environment , on 11 February 2013

The First-tier (Environment) Tribunal was set up in 2010 to hear appeals against civil sanctions imposed by environment regulators, and in line with the recommendations in Professor Macrory’s Cabinet Office Sanctions Report which led to Part III of  the Regulatory Enforcement and Sanctions Act 2088.  No appeals against civil sanctions have yet been heard by the Tribunal.  In 2011 in a report Consistency and Effectiveness – Strengthening the New Environment Tribunal commissioned by the then President of Tribunals, Lord Carnwath, Professor Macrory recommended that a wide range of administrative appeals under environmental legislation, currently scattered amongst many different bodies, should be transferred to the new Tribunal.  The Government accepted the general argument in Professor Macrory’s report, and the process of transfer is beginning to happen. The  Tribunal has been gaining new powers over 2012 , the latest being  appeals concerning greenhouse emission trading which were transferred on January Ist 2013.  In February 2013 the Department of Environment Food and Rural Affairs launched a consultation document,  proposing, inter alia, that appeals  under Environmental Permitting should be transferred from the Planning Inspectorate to the Tribunal. The Tribunal heard its first appeal in 2012. This concerned  a remediation notice under the Marine and Coastal Access Act 2009 and  a short report by the barristers involved is available on 39 Essex Street Chambers web-site. Deatils of the case and outcome are to found on the web=site of the Marine Management Organization : http://www.marinemanagement.org.uk/news/news/121112.htm

Strengthening the New Environmental Tribunal

By Centre for Law and Environment , on 26 October 2012

In 2010 a specialized tribunal dealing with appeals from new environmental civil sanctions was established as part of the new First-tier Tribunal in England and Wales. In 2011 Professor Macrory was asked by the then Senior President of Tribunals to examine the provision for statutory appeals in some 60 pieces of environmental legislation from emissions trading to environmental permitting. Consistency and Effectiveness – Strengthening the New Tribunal (Centre for Law and the Environment 2011) concludes that the appeals go to a wide range of different bodies and that the current arrangements lack common procedures and intellibility. It argues that such appeals would be better handled by the new Environmental Tribunal.

Consistency and Effectiveness: Strengthening the New Environment Tribunal

By Centre for Law and Environment , on 1 January 2011

More than 50 government lawyers attended the 25 January launch of Professor Richard Macrory’s new report on environmental tribunals. The report was commissioned by Lord Justice Carnwath, Senior President of Tribunals, who chaired the event.

Consistency and Effectiveness examined over fifty examples of appeals provisions in contemporary British environmental legislation, and found a complete lack of coherence — appeals concerning licences or the service of enforcement notices went to a wide range of different bodies including magistrates courts, the planning inspectorate, and the Secretary of State. Often there was no right of appeal.

Professor Macrory argues that it would be far more effective if most of these appeals went to the new Environment Tribunal set up in 2010, to determine appeals against civil penalties now available to environmental regulators. The report identifies a set of priorities for transfer.

The proposals are entirely consistent with the current regulatory reform agenda. Professor Macrory noted, “Over the years we have developed a system of environmental appeals which is complex and confusing. There is now a unique opportunity to make the current structure more coherent, simple and effective.”

For more information:
View this report
Richard Macrory