UCL Centre for Law and Environment

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.

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.

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