Study on Environmental Appeals

Professor Richard Macrory has conducted a study of 57 appeals decided by the Planning Inspectorate over the past three years. The study was carried out at the end of last year when DEFRA was considering transferring environmental permitting appeals from the Inspectorate to the First Tier Environment Tribunal in line with the Macrory Report: Consistency and Effectiveness – see here for the initial consultation proposals.

The purpose of the study was to see what sorts of issues were likely to arise in practice to help focus recruitment priorities in the Tribunal.

In the event the Government has recently decided not to transfer for the time being, mainly on the grounds of the current Tribunal charges imposed on Departments as compared with the Planning Inspectorate, see here.

Nevertheless it still seems valuable to publish this information which was based on Decision Letters kindly supplied by the Planning Inspectorate.

Core findings of the study were:

• The majority of appeals (50) were against decision of the Environment Agency as opposed to local authorities. The majority of Agency appeals concerned waste.
• Most cases were decided by written representation – only in 30% of appeals was there a hearing or public inquiry. But in nearly every case the Inspector made a site visit.
• Many of the cases involving a judgment as to evidence and predictions of potential environmental harm, though in a few appeals some fairly complex legal issues arose (interpretation of regulations, planning histories, etc.). Only in one case were the legal uncertainties raised sufficiently strong that the Inspector felt it preferable to quash the notice, and let the parties try to first resolve the legal issues.
• The number of successful appeals was very small. Only in 7 appeals (just under 14%) against Agency decisions were appeals upheld, and in 5 of these this was with the agreement of the Agency.  In the local authority appeals there were two appeals successful in part.

To read the full study see: Environmental Statutory Appeals 2010-2013