The House of Lords European Union Committee published  its report “Brexit: environment and climate change” on February 14.  The wide-ranging report gives a valuable overview of policy and legal challenges that will emerge over the next few years.  It notes:

“Policy stability will be critical during the process of, and in the immediate aftermath of, withdrawing from the EU to avoid the emergence of legislative gaps and avoidable uncertainties in the sphere of environmental protection. Once the UK has withdrawn from the EU, environment legislation and policy will be more vulnerable to short term and less predictable changes at a domestic level”.

Professor Maria Lee, director of the Centre, and Professor Richard Macrory gave oral evidence to the Committee at the end of last year and their views feature prominently in the report.

House of Lords Report

Brexit-Environment-Climate-Change-Written-Oral-Evidence-Volume 2

House of Lords Macrory supplementary note 2

On 26 October Professor Maria Lee, director of the Centre, and Professor Macrory were invited to give evidence to the House of Laws EU Sub-committee on Energy and the Environment. together with Professor Andrew Jordan of the University of East Anglia. The sub-committee is holding a short inquiry  exploring the future of environment and climate change policy following the vote to leave the European Union.  The session explored a broad range of issues including the Great Repeal Bill, the possible implications on UK environmental law depending on different models of exit, enforcement issues, and the future role of international environmental law within the UK.   A video of the session can be found at http://parliamentlive.tv/Event/Index/9bf1e256-4143-4ec6-b8f9-05fadf1f54e1

All the written evidence and transcripts  of the oral evidence is now published : Brexit-Environment-Climate-Change-Written-Oral-Evidence-Volume 2

Professor Macrory was asked to provide a supplementary note on the challenges of ensuring a ‘roll-over’ of EU environmental legislation once EU laws no longer has independent legal force in the UK  :  House of Lords Macrory supplementary note 2

Speakers at the conference of enforcement of environmental law held at the Faculty on March 30th have kindly provided their power point presentations, which are available here.

Richard Gordon QC, Visiting Professor with the Faculty and widely recognized as one of the leading contemporary barristers practicing in administrative and public law, recently took part in the conference to mark Richard Macrory’s 65th birthday.  His session was concerned with access to environmental justice, and Richard argued that judicial review before the Administrative Court was unlikely to meet the requirements of the Aarhus Convention.  Instead, for reasons of history, politics, and structure,  the Upper Tribunal within the reorganized tribunal system was likely to provide a more effective forum for Aarhus legal challenges than the conventional courts.  In view of the potential wider  interest in his analysis, Richard Gordon has made his Speaking Notes available on the Centre site.

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.

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In September 2013 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.”

The 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.

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

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.