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Developments in environmental law in 2012-2013

James Burton1

Based on previous papers by Stephen Tromans QC, Justine Thornton, Ned Helme,

Philippa Jackson and Daniel Stedman Jones2

Overview

1. This paper considers developments in environmental law in 2012 and 2013. It does

not pretend to be comprehensive.3 Issues covered include: private nuisance;

enforcement; EIA; SEA; habitats; waste; and environmental judicial review,

including the new Aarhus Convention costs regime embodied in the CPR.

2. It also includes a short digest of other cases.

Private Nuisance

3. It is worth remembering that until relatively recently the tort of private nuisance was

something of a litigation backwater, perhaps with the honourable exception of tree

root claims. Certainly if judged by the number of reported cases. The reasons why

were many and various, and the planning system is perhaps owed some credit for

doing its job reasonably well and keeping incompatible uses apart. But three obvious

and interlinked factors that tended to discourage claims were (a) their relatively low

value, (b) the high cost of litigation (often requiring expensive expert evidence) and

(c) difficulties in securing funding protection. Unsurprisingly, individual potential

claimant homeowners tended to grin and bear it rather than confront what was

typically a commercial concern causing the problem.

4. Then, claimant solicitors increasingly began to apply the tools made available to them

by the CPR and Access to Justice reforms; group litigation orders, CFAs and, most

importantly, ATE insurance. The relatively low value of the claims had not changed,

but solicitors were now willing to pursue these claims, and claimants could do so safe

in the knowledge that they were at no risk as to costs so long as they followed advice.

1 Barrister, Thirty Nine Essex Street Chambers; james.burton@39essex.com 2 Barristers, Thirty Nine Essex Street Chambers. 3 For a reasonably comprehensive overview of developments month-by-month, see the Bulletins to the Encyclopedia of Environmental Law (Sweet & Maxwell) (“the Encyclopedia”).

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5. Barr v Biffa was one such group action, an odour nuisance claim arising out of the

Defendant’s use of the Westmill 2 landfill in Hertfordshire. The Court of Appeal’s

decision ([2012] EWCA Civ 312) has attracted a great deal of commentary, but

perhaps the most remarkable feature of the case is that some considered the appellate

result was ever in doubt.

6. The principles underlying the tort of nuisance have barely altered since they were first

firmly established in the 19th century, including when challenged by the emergence of

a statutory town planning system in the mid-20th century. The courts’ response to that

(see the Gillingham Docks case) was not necessarily to alter the basic principles, but

rather to acknowledge that the character of an area that informs the ultimate test of

reasonable give and take between neighbours (the twin concepts of reasonableness of

user and reasonableness of interference) might be changed by a sufficiently

strategic/significant grant of planning permission. Put in terms of the old saw about

what might be a nuisance in Berkeley Square not necessarily being so in Bermondsey,

a sufficiently significant grant of planning permission might make Bermondsey a little

more like Mayfair, or vice versa. A fortiori in the case of more than one similar

strategic/significant planning permissions in an area.

7. In Barr v Biffa the Defendant relied upon compliance with its environmental permit

as a complete answer to the claims against it. In essence, its case was that the modern

regulatory regime had overtaken the common law. However, the environmental

permitting regime was not only not intended to supplant the common law of nuisance,

it is also plainly not apt to deal with the land-use planning issues that may result in a

change in character. As such, the first-instance decision of Coulson J, accepting the

Defendant’s case regarding the significance of compliance with its environmental

permit, was ripe for challenge.4

8. Allowing the appeal, the Court of Appeal re-affirmed classic principles. Carnwath LJ

(as he then was) explained the basics:

36. “In my view this case is governed by conventional principles of the law of

nuisance, which are well-settled, and can be found in any of the leading

textbooks. Thus, in Clerk & Lindsell on Torts 20th ed. chap 20, the third category

4 See, for example, our extended discussion of the first instance decision in Encyclopedia Bulletin 176.

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of nuisance is that caused by a person “unduly interfering with his neighbour in

the comfortable and convenient enjoyment of land”. Typical examples include

“creating smells by the carrying on of an offensive manufacture or otherwise”:

paras. 20-06 to 20-09. Relevant to this case are the following rules:

(i) There is no absolute standard; it is a question of degree whether the

interference is sufficiently serious to constitute a nuisance. That is to be decided

by reference to all the circumstances of the case: para. 20-10.

ii) There must be a real interference with the comfort or convenience of living,

according to the standards of the average man (para. 20-11), or in the familiar

words of Knight Bruce VC: “… not merely according to elegant or dainty modes

and habits of living, but according to plain and sober and simple notions among

the English people” (Walter v Selfe (1851) 4 De G&Sm 315, at p 322).

iii) The character of the neighbourhood area must be taken into account. Again in

familiar 19th century language, “what would be a nuisance in Belgrave Square

would not necessarily be so in Bermondsey…”: para. 20-13, citing Thesiger LJ,

Sturges v Bridgman (1879) 11 ChD 852, 856.

iv) The duration of an interference is an element in assessing its actionability, but

it is not a decisive factor; a temporary interference which is substantial will be an

actionable nuisance: para. 20-16.

v) Statutory authority may be a defence to an action in nuisance, but only if

statutory authority to commit a nuisance is express or necessarily implied. The

latter will apply where a statute authorises the user of land in a way which will

“inevitably” involve a nuisance, even if every reasonable precaution is taken:

para. 20-87.

vi) The public utility of the activity in question is not a defence: para. 20-107.

9. In short, the character of the neighbourhood coupled with the nature of the

interference are the key planks in the analysis of give-and-take.

10. A more successful attempt to rely upon the modern regulatory regime, albeit the

planning regime that the common law of nuisance has long accommodated, was

Coventry v Lawrence [2012] 1 WLR 2127, where the Court held that motor racing

activities, carried on for a considerable time, first without permission, then with the

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benefit of a Certificate of Lawful Use and then a planning permission subject to

detailed conditions, had indeed become part of the “character of the neighbourhood”

against which the reasonableness of the defendant's use of the land (and so the alleged

nuisance) had to be judged.

11. The case involved the ownership and operation of a stadium and track used for

various forms of motor sport racing at Mildenhall, Suffolk. There was a long

planning history, including temporary permissions, a CLEUD and then permanent

planning permission for the track in 2002. Planning officers’ reports over the years

between 1992 and 2002 showed that the local planning authority had given careful

consideration to the differing interests of those who lived in the locality; the need to

protect residents from undue disturbance, but also the valuable social function of the

facility. The Claimants had purchased a bungalow in 2006, which was 560 metres

from the stadium, and 864 metres from the track. Whether they were aware of the

Stadium and Track activities before purchase was a matter of dispute. They argued

that the use generated such noise as to amount to a nuisance to them in their home,

and made complaints to the District Council, which served breach of Condition

Notices, and also Statutory Nuisance Abatement Notices, which abatement works

were completed in January 2009 to the Council’s satisfaction. Those works reduced,

but did not eliminate, the noise. The Claimants brought private nuisance proceedings,

seeking damages and injunctions. They also sought aggravated and exemplary

damages. The first instance judge rejected the claims for aggravated and exemplary

damages, but awarded ordinary damages for the nuisance and granted injunctions to

limit the noise which could be generated. He noted that there was no authority for the

proposition that one could acquire a right to cause nuisance-generating noise by

prescription, and found that the law did not recognise an easement of noise. On

appeal against both key findings, Jackson L.J. summarized the law relevant to the

first ground in four propositions:

(i) A planning authority by the grant of planning permission cannot authorise the

commission of a nuisance;

(ii) Nevertheless the grant of planning permission followed by the

implementation of such permission may change the character of a locality;

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(iii) It is a question of fact in every case whether the grant of planning permission

followed by steps to implement such permission do have the effect of changing

the character of the locality; and

(iv) If the character of a locality is changed as a consequence of planning

permission having been granted and implemented, then:

(a) the question whether particular activities in that locality constitute a nuisance

must be decided against the background of its changed character; and

(b) one consequence may be that otherwise offensive activities in that locality

cease to constitute a nuisance.

12. When the Claimants had bought the bungalow, the noise of motor sports emanating

from the track and the stadium were an established part of the character of the locality

and they could not be left out of account when considering whether a nuisance had

occurred. Had the Appellants conducted their business at noise levels above those

permitted by the planning permissions, the Respondents might have been able to make

out a case in nuisance, but that did not appear to be the case. Accordingly the appeal

was allowed on the first ground, namely the consequence of obtaining and

implementing the various planning permissions, hence the alleged nuisance had not

been established and the claim stood to be dismissed.

13. In relation to the second ground, Lewison L.J. added that in his judgment there was no

doubt that the law would recognise an easement exercisable between certain times of

day, and could see no reason in principle why an easement exercisable during certain

times of the year was incapable of creation. The question of whether an ‘easement of

noise’ was possible was one which should be left open.

14. Whilst Coventry v Lawrence turns on its own facts, it does suggest a more

sympathetic judicial approach to the significance of planning permission than has

historically been the case.

15. Permission to appeal to the Supreme Court in Barr v Biffa having been refused, but

granted in Coventry v Lawrence we await the Supreme Court’s decision in the latter

and the re-run of Barr v Biffa before Coulson J in the TCC, but in the meantime we

have Anslow v Norton [2012] EWHC 2610 to consider.

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16. Anslow was a group action by claimants who alleged a private nuisance through

emissions of phenolic and sulphurous odours, noise, smoke and dust from a foundry,

and is probably the most significant first instance case post Barr v Biffa. Only the

odour complaints had merit. The court (HHJ McKenna QC) applied the classic

principles reaffirmed in Barr v Biffa, but the case is interesting for three reasons:

(1) The central role of the odour experts including the use of odour

modelling;

(2) The fact that the judge decided upon an odour unit threshold

for nuisance by reference to the EA’ H4 guidance note, albeit

one a little above that typically sought by the EA when setting

permit conditions for this type of odour; and

(3) The approach to quantification of damages.

17. The (lengthy) judgment includes a comprehensive consideration of the

merits/demerits of the approach taken by the various odour experts involved. It was

clear that the odours in question were not to be equated with “less offensive” odours

such as those from a bakery (for which H4 suggests a threshold of 6OU). Equally it

was not “most offensive”. Ultimately the Judge decided on an odour unit threshold of

5. That is a little above the level one would expect based on H4, but given an action

for nuisance will not lie unless the interference is “substantial” seems justified.

18. The approach to quantification of damage was novel. This was not a case where it was

possible to determine a loss of value by reference to decreased rental, and the Judge

was reluctant to extrapolate from the evidence of local surveyors. Ultimately, the

approach taken was to arrive at an annual sum to represent loss of enjoyment due to

odour interference and multiply it by the number of affected years, with the result

compared to awards in the personal injury sphere with a view to ensuring that it did

not result in a level of compensation for those who have suffered nuisance that would

appear disproportionate compared to those who have suffered injury.

19. The Court’s approach certainly has the benefit of simplicity, but it is open to criticism.

Nuisance is a tort to land, and damage is the loss of value to the affected property

interest. By apparently severing the link between land values and the award, the

Court arguably stepped too far away from basic principles. However, Anslow was not

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appealed (it is understood the defendant was impecunious) and it will be some time

before quantification is considered at appellate level.

20. Another case to grapple with the implications of Barr v Biffa and Coventry v

Lawrence was Thomas v Merthyr Tydfil Car Auction Ltd [2013] Env. LR 12. The

Claimants complained of noise and fumes amounting to a nuisance arising from a

vehicle auction business. The Defendant business was granted planning permission to

use the land for storage, parking and valeting of vehicles to be sold at auction.

Applying Biffa and Coventry in the Court of Appeal, Wyn Williams J gave judgment

for the claimants in granting a limited award of general damages of £9,000. The case

is being appealed as the Supreme Court’s judgment in Coventry is awaited.

21. Finally, in Dobson & Others v Thames Water Utilities Ltd (where damages were

sought in relation to odour nuisance from the defendant’s waste water treatment

works) the TCC has now given judgment regarding the correct approach to awarding

interest on general damages for nuisance, claimed under section 35A of the Senior

Courts Act 1981 (see [2012] EWHC 986 (TCC)).

22. The Claimants argued that as the damages were based on a percentage of the monthly

rental values which could be obtained for the properties owned by them, and were

assessed as a sum by way of damages annually, the interest should be awarded at the

full special account rate from the end of each calendar year during which the nuisance

was suffered until payment. The Defendant argued (1) that the damages awarded

related to non-pecuniary loss for interference with the enjoyment and amenity of land,

and so the quantum was assessed as at the date of the judgment and not at any earlier

point of time; and (2) that the interest rate on general damages for non-economic loss,

such as for nuisance or personal injury, should be two per cent per annum between the

service of proceedings and the date of judgment, rather than the full special account

rate claimed. Ramsey J found that general damages for personal injury or death raised

issues which were different and not relevant to an award of general damages for

nuisance. There was no authority as to the principles upon which the statutory

discretion to award interest should be exercised in the case of an award of damages

for nuisance. The approach taken had been to assess the damages to which each

claimant had been entitled for a particular year, so that the total sum awarded

constituted a number of sums awarded for each year. That approach meant that there

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was an ascertainable amount of damages for each year to which a claimant was

entitled. Any award of interest was not compensation for that damage done, but for

the particular claimant being deprived of the money which should have been paid to

them. Accordingly, it was appropriate for the court to exercise its discretion and

award interest under s.35A on each annual sum awarded as damages. There was no

basis for applying the two per cent rate used in the context of damages for personal

injury. The special account rate which varied from time to time reflected the fact that

a party had been kept out of the money for a particular period. Whilst it was not

generally used as a rate of interest applied to debt and damages outside personal

injury claims, that rate had reflected a margin of 0 per cent to 2.75 per cent above the

Bank of England base rate over the relevant period. It would not under or over-

compensate the claimants and so would be adopted as the appropriate rate.

23. If anything, this decision further underlines the tension between awards of “general”

damages in nuisance claims, not pegged to property values, as approved in Anslow

and the classic position.

Enforcement

Nullity

24. The classic statement of the test for validity of an enforcement notice is that of

Upjohn LJ in Miller-Mead v. Minister of Housing and Local Government [1963] 2

Q.B. 196:

"does the notice tell (the person on whom it is served) fairly what he has done

wrong and what he must do to remedy it?"

25. The recipient is:

"entitled to say that he must find out from within the four corners of the

document exactly what he is required to do or abstain from doing"

26. A notice will be a nullity where it is defective on its face. It may, for example, fail

altogether to specify a date upon which it is to take effect. That defect must be fatal to

the notice: without it, the notice never can take effect. Or the notice may fail to define

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a period within which the required steps are to be taken; or it may do so in such an

ambiguous manner as to fall short of the statutory requirement that these matters be

"specified" in the notice. There are a variety of ways in which a careless regulator

may produce a worthless piece of paper.

27. But the easiest trap to fall into, and the most deadly given it often requires litigation to

achieve recognition of nullity, is a failure to sufficiently specify steps to be taken.

28. This crops up time and again. In statutory nuisance cases, the leading authority

covering the requirements of a notice as a whole remains R v Falmouth Port Health

Authority, ex p South West Water [2001] QB 445 (CA). South West Water had

installed a sewage outfall at Black Rock, replacing outfalls at Middle Point and

Pennance Point which were affecting the quality of bathing waters at three nearby

beaches. The water company had the benefit of a discharge consent for the outlet from

the EA. The Health Authority received complaints about the outlet, and resolved to

serve an abatement notice pursuant to s.80 EPA 1990, alleging statutory nuisance

under s.79(1)(h) of that Act, namely a nuisance under s.259(1)(a) of the Public Health

Act 1936 because the watercourse known as Carrick Roads was so foul or in such a

state as to be prejudicial to health or a nuisance. The abatement notice required the

cessation of discharge from the outfall within three months of service, pursuant to

s.80(1)(a) EPA 1990 as follows:

"within three months from the service of this notice…cease the discharge of

sewage…via the said New Long Sea Outfall from the sewerage system"

29. The notice imposed no requirement under s.80(1)(b) EPA 1990 for, "the execution of

such works, and the taking of such other steps, as may be necessary for any of those

purposes". The water company complained that it was defective as a result. The Court

of Appeal disagreed, but added an important rider:

"in all cases the local authority can if it wishes leave the choice of means of

abatement to the perpetrator of the nuisance. If, however, the means of

abatement are required by the local authority, then they must be specified; the

Network case, 93 LGR 280 and the Sterling case [1996] Env. LR 121 remain

good law."

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30. Sterling Homes v Birmingham City Council [1996] Env.LR 121 (Divisional Court)

concerned an industrial operation in close proximity to a residential property known

as Queen's Court. Part of the operation involved stamping, pressing and toolmaking

with a 450 ton press known as "Big Bertha". The operation of the press gave rise to a

great deal of noise and vibration which could be felt by some of the occupants of

Queen's Court. Sterling Homes owned Queen's Court, and had been the applicant for

planning permission. Given the building's location near to an industrial operation the

planning permission had included conditions designed to ensure that noise did not

unduly affect residential amenity. Sterling believed it had identified a way to ensure

that was achieved. In practice, its solution proved false.

31. In due course the City Council investigated a complaint of statutory nuisance and

proceeded to serve an abatement notice, so far as material as follows:

"TAKE NOTICE that Birmingham City Council being satisfied of the

existence of a statutory nuisance at:

Number 1 in Queen's Court ...

arising from

The transmission of noise and vibration through the structure of the premises

from the nearby industrial unit so as to be prejudicial to health or a nuisance.

Do hereby require you to abate the said nuisance within 56 days from the

service of this notice upon you, and for that same purpose require you to carry

out such works as may be necessary to ensure that the noise and vibration does

not cause prejudice to health or a nuisance, take any other steps as may be

necessary for that purpose."

32. On a casual reading, that notice might appear sufficient. It is not. A direction that a

person carry out "such works as may be necessary" requires the person to take steps

but then fails to specify the steps to be taken. It is this kind of vague catch-all

language that is a particular pitfall in these cases.

33. The notice in Sterling was a nullity, with the result that the appeal was allowed and

the matter remitted to the magistrates with a direction to acquit.

34. However, enforcing authorities continue to fall into the trap.

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35. In R. (on the application of European Metal Recycling Ltd) v Environment Agency

[2012] EWHC 2361 (Admin) HHJ Pelling QC (sitting as a high court judge)

considered a claim for judicial review seeking, inter alia, declaratory relief that a

suspension notice issued by the EA was a nullity. The claimant operated a sizeable

scrap metal facility, subject to an environmental permit. Its activities generated noise,

and there were considerable neighbour complaints. As of 31st August 2011 the

conditions to the permit required that:

"Emissions from the activities shall be free from noise and vibration at levels

likely to cause pollution outside the Site, as perceived by an authorised officer

of the Environment Agency, unless the operator has used appropriate

measures, including but not limited to those specified in any approved noise

and vibration management plan to prevent or where that is not practical to

minimise the noise and vibration".

36. Complaints continued, and the EA resolved to serve a suspension notice pursuant to

Reg.37 of the Permitting Regs 2010. The notice provided, so far as material, that:

"Under regulation 37 … we may suspend an environmental permit if we

consider that operation of the regulated facility involves a risk of serious

pollution.

Accordingly the Environment Agency has decided to suspend the

environmental permit to the extent specified in Schedule 1 with effect from

midnight on 26th February 2012.

In addition you are required to take the steps specified in Schedule 2 to

remove the risk.

The reason for this decision is that we consider that the noise arising from

operation of the regulated facility involves a risk of serious pollution.

…

Schedule 1

Extent to which the Environmental Permit is suspended

All movement of waste onto, within and off the site.

…

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Schedule 2

Steps to Be Taken To Remove Risk of Serious Pollution

Design and implement measures that eliminate the risk of serious pollution

from noise …[by] 31 August 2012."

37. The EA's position was not that all noise from the site was to cease, but that noise

constituting serious pollution should cease. The EA has issued guidance concerning

its enforcement activities. As regards suspension notices it states that, amongst other

things, the notice must … "say what the risk of serious pollution is … say what steps

must be taken to remove the risk …".

38. The claimant challenged Schedule 2 of the notice on the following grounds:

i) It failed to specify what if any steps were required to be taken; and/or

ii) It failed to provide a defined threshold criterion objective, or defined threshold

criteria or objectives, that had to be satisfied by (the claimant) if it was to comply;

and/or

iii) It was otherwise vague and imprecise.

39. It was common ground that "specify" within Reg.37 meant "to state explicitly", but as

the Judge observed the crucial question was what it was that was required to be stated

explicitly. He noted that, unlike abatement notices under the statutory nuisance

provisions, Reg.37 makes it mandatory upon the EA to specify the steps that must be

taken. As regards the contents of Sch.2 to the notice, he said this at §25:

Schedule 2 to the SN specifies the steps that have to be taken as being to

"…Design and implement measures that eliminate the risk of serious pollution

from noise". As a matter of language a requirement to state explicitly the steps

required to be taken to eliminate an identified risk cannot sensibly be said to

be satisfied by a requirement to design and implement measures to eliminate

that risk. There is no material difference between a measure and a step, or

between "eliminate" and "remove", or between "taken" and "design and

implement" in this context. In my judgment it is obvious as a matter of

language that a requirement to state explicitly the steps that must be taken to

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remove an identified risk is not satisfied by a statement requiring the recipient

to take steps to remove the identified risk. If this is correct as a matter of

language I do not see how a requirement to design and implement measures to

eliminate the risk is any more compliant. Had the EA's position been that any

noise emanating from the Site as a result of regulated activity pursuant to the

Permit had to be eliminated then it might have been possible to say that a

provision to this effect was satisfactory because it required the elimination of

all noise. However, it is not the EA's case that this is what is required. Thus it

seems to me that as a matter of language, what is required for Schedule 2 to be

compliant with Regulation 37(4)(a)(ii) is the identification of either outcomes

or criteria that have to be achieved by whatever means EMR choose to adopt

and/or the identification of specific steps that are required to be taken.

40. The suspension notice was therefore a nullity and of no effect.

41. Unless the enforcing authority take real care when drafting notices they may not only

end up with egg on their face and an adverse costs bill, but the nuisance that they wish

to enforce against may go unchecked for some considerable time whilst the

ramifications of what might be no more than a drafting error are resolved.

42. However, the Courts will tend to attempt to save notices rather than strike them down.

43. In R. (on the application of Fullers Farming Ltd) v Milton Keynes Council ([2011]

EWHC 3784 (Admin)) the Administrative Court dismissed an appeal against the

serving of an abatement notice on grounds that it was defective for not specifying the

type of Statutory Nuisance alleged. The Appellant was a farming enterprise which

carried out fertilizing operations involving the spreading of chicken litter manure into

fields. Best practice would have been to plough in the chicken litter following the

spreading, but on one occasion the tractor which was to plough in the chicken litter

suffered a puncture rendering the operation unsuccessful. As a result, an odour arose

and the respondent local authority served an abatement notice under Part III of the

Environmental Protection Act 1990, having determined that the odour constituted a

statutory nuisance under s.79(1)(d). The Appellant appealed on the grounds that the

notice was defective as it failed to specify whether the statutory nuisance in question

was one which constituted by an odour being prejudicial to health or merely an odour

which was a nuisance.

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44. The District Judge held that the notice was not defective and the Appellant appealed

to the Administrative Court. Wyn Williams J found that it was not necessary for an

abatement notice to set out precisely whether the nuisance alleged was one which was

prejudicial to health or a common-law nuisance, or both. There was a requirement

that the acts which constituted the statutory nuisance were sufficiently alleged so that

the person served with the notice knew what he was being required to do to abate the

nuisance. The District Judge had not erred in law in ruling that the abatement notice

was not required to set out which of the two forms of statutory nuisance in the form of

odour was alleged.

Abuse of process

45. The case of London Borough of Newham v John Knights (ABP) Limited is an

interesting case study in enforcement under the Environmental Permitting

Regulations. The company were prosecuted for alleged breaches of an environmental

permit and in particular the odour conditions. The company ran an abuse of process

argument that a Planning Inspector and not the Criminal Courts should consider

complex matters like BAT for odour control. The abuse argument was rejected. The

company was convicted and fined £120,000, plus £68,000 costs, plus compensation

orders of £250 each to affected residents. This is the largest fine yet obtained by a

local authority under the environmental permitting regime (the second largest being

the £75,000 imposed on the same company in February 2011).

Environmental Impact Assessment

46. EIA is an area that has generated a significant quantity of case law over recent

decades. It has continues to do so. The 2011 Directive merely codified matters, rather

than changing the litigation landscape. Whether a proposed amendment to the EIA

Directive will do anything to stem the flow of EIA litigation, as appears to be the

Commission’s aim, remains to be seen.

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Test for EIA development

47. In R (Loader) v SSCLG and others [2012] 3 CMLR 29 the Court of Appeal has given

helpful guidance regarding the proper test for EIA to be applied at screening, and in

particular regarding the meaning of "significant effects on the environment" within

Art.2.1 of the Directive (85/337/EEC):

"Member States shall adopt all measures necessary to ensure that, before

consent is given, projects likely to have significant effects on the environment

by virtue, inter alia, of their nature, size or location are made subject to a

requirement for development consent and an assessment with regard to their

effects. Those projects are defined in Article 4".

48. The project in question was the redevelopment of a bowls club for 41 sheltered

apartments, along with a reconfigured bowling green. The Claimant/Appellant

challenged a negative Screening Direction under the old EIA Regs (the 1999 Regs),

but there is no difference between the Directive/1999 Regs and the codified 2011

Directive/2011 Regs relevant to the issue here. The Screening Direction was in fact

made after the proposal had already won permission once (on appeal) only for that

decision to be quashed and remitted to a different Inspector for redetermination.

49. The Claimant's complaint was that the Screening Direction approached "significant

effects" too narrowly, without due regard to the precautionary and preventative

principles enshrined in Art.191(2) of the Treaty, and in particular that the test of

"significance" should be that found in the Commission's 2001 Guidance on EIA

Screening, which suggests checklists for screening, as follows:

"Those responsible for making screening decisions often find difficulties in

defining what is "significant". A useful simply check is to ask whether the

effect is one that ought to be considered and to have an influence on the

development consent decision…"

50. On that basis, the Claimant advanced the following test:

"a significant environmental effect, as defined by the Directive, is one that has

a real prospect of influencing the outcome of the application for development

consent."

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51. Plainly, this formulation placed a significant gloss on the language of Art.2.1 of the

Directive, and ran counter to a long line of domestic authority that the test is that

framed by Art.2.1, without gloss, and a matter for judgment of the competent

authority. The Claimant sought to buttress his argument by reference to the approach

taken to appropriate assessment under the Habitats Directive; see Waddenzee etc.

52. The Court of Appeal rejected the Claimant's formulation (Pill LJ suggesting at [46]

that such an approach would "devalue the entire concept") and affirmed that the test to

be applied is: "is this project likely to have significant effects on the environment?", a

matter of judgment for the competent authority having regard to the particular

circumstances and applying the criteria set out in the EIA Regulations, including

taking into account mitigation where sufficiently certain.

53. The Court of Appeal did emphasise, though, that the decision-maker must have regard

to the precautionary principle and the degree of uncertainty as to environmental

impact at the date of the decision. There would be some cases where the uncertainties

are such that a negative decision cannot be taken [44].

54. The same concepts appear elsewhere in environmental law, and it will be interesting

to see whether this fairly restrictive approach to those matters that require EIA will

bear on the approach to the new Aarhus costs regime.

55. In Champion v North Norfolk District Council & Natural England [2013] EWHC

1065, the Council had granted planning permission for the erection of two silos, a

lorry park and other development near a river designated as an SSI and an EU Special

Area of Conservation ("SAC"). The proximity of the river gave rise to a risk of

pollution, and the Council had carried out ecological and flood risk assessments and

consulted Natural England, which advised that there would not be a likely significant

effect on the river as a result of the grant of planning permission, and that no EIA or

Appropriate Assessment was therefore required. However the Council granted

planning permission subject to conditions requiring the water quality to be monitored,

which addressed the risk of pollution.

56. The Claimant challenged the grant of permission on the grounds that the Council's

decision was internally inconsistent and irrational. The imposition of conditions could

only be justified if there was a risk of pollution, and this conclusion could not be

17

reconciled with the decision that an EIA or Appropriate Assessment was not required.

The High Court agreed. It held that the Council could not rationally adopt both

positions at once, and that the decision should be quashed in order for the Council to

reconsider whether there was a relevant risk of pollution. If there was no such risk,

the Council could grant planning permission, but would not be entitled to impose the

conditions for the control of pollution. If there was such a risk, the Council would

have to require an Appropriate Assessment and an EIA.

Split projects

57. Three recent cases concerning splitting are of note. Generally speaking, the courts are

alive to attempts to "salami-slice" projects and will stamp down on those seeking to

avoid the requirements of the Directive by such means. Equally, the courts will not

force developers to undertake EIA of hypothetical or speculative add-ons to projects.

58. The first of the three cases is Bowen-West v SSCLG [2012] EWCA Civ 321 in which

Laws LJ held that the question whether an environmental statement for the deposit of

low level radioactive waste should have considered a larger scheme (a future

expansion of the landfill in question intended to be achieved by 2026) within the

context of "indirect, secondary or cumulative effects" (para.4 of Pt I of Sch.4 to the

1999 Regs) was an issue of fact and judgment. The Court rejected the Appellant's

contention that the question is one of law and declined to refer the matter to the ECJ.

It is understood that the Supreme Court has refused permission to appeal.

59. The second is R (Burridge) v Breckland DC [2013] EWCA Civ 228, in which the

Court of Appeal considered the screening opinion requirements of the 1999

Regulations in the context of a renewable energy facility application which had been

'split' into two sites. In the High Court, HHJ Waksman QC held that Regulation 7

required the authority to consider the "application before it" and that the

"development in question" referred only to the development in the individual

application. This decision was challenged in the Court of Appeal, on the basis that,

although this construction accorded with domestic principles of construction, a

broader purposive construction of the Regulations focusing on the proper 'project' was

required under Marleasing principles.

18

60. The Court of Appeal held that the domestic Regulations must be construed in light of

the purpose of the Directive's focus on projects, and this could require several

planning applications to be screened together. Having found that the planning

permissions in question had been granted in breach of the Regulations the Court was,

however, divided on how it should exercise its discretion, ultimately deciding to

refuse to quash on the facts following evidence from the planning officer after the fact

that the applications had been screened together. Permission to appeal has been

sought and it may be that the Supreme Court accepts to invitation to give further

guidance as to the principles to apply when exercising judicial discretion in EIA

cases.

61. The third case is Catt v Brighton and Hove City Council [2013] EWHC 977

(Admin), which will be familiar to practitioners from previous EIA challenges by the

same Claimant. Lindblom J dismissed the latest claims for judicial review of three

planning permissions granted by Brighton and Hove City Council, for development at

Withdean Stadium.

62. The main issue was whether, in screening the development under the EIA

Regulations, the Council had unlawfully split the project into sub-projects. The

Council conceded that its first screening opinion was flawed, but argued that its errors

in the first opinion had been remedied in a second opinion, in which it had considered

the impacts of the development as extended, and as a whole.

63. Rejecting the challenge, Lindblom J held in relation to this issue that there could be

no doubt that the second opinion screened not only the extension to the development,

but the development on the site in its extended form, as it would be as a result of the

proposals. It did not divide a long-term project into a series of temporary consents,

and it did not screen less than the full project [79]. It did not leave out consideration

of cumulative effects, but in considering the cumulative effects, it would have been

wrong to consider uses of the site that had ceased [80-81]. Equally, it had not erred

by limiting the screening exercise to the definite proposals for "Phase 1" of the

development, without also going on to screen provisional or possible options for

future development, which "were too uncertain, not only in their content and timing,

but also in their prospect of coming to fruition, to be regarded as part of the project."

[85-86].

19

Screening

64. EIA development is, of course, development that falls into either Sch.1 or Sch.2 of the

Town and Country Planning (Environmental Impact Assessment) Regulations 2011

(previously 1999). However, less well known is that the Secretary of State has power,

pursuant to Reg.4(8) of the EIA Regulations (now replaced by Regulation 4(9) of the

2011 Regulations), to subject an application for planning permission to EIA screening

even where it falls outside the criteria/thresholds set by Schedules 1 and 2.

Increasingly, objectors to development, including rival developers, are seeking to

challenge a refusal by the Secretary of State to exercise the Reg.4(8) power. R ((1)

Threadneedle (2) Zurich) v (1) Southwark LBC (2) Secretary of State, & ors [2012]

EWHC 855 (Admin) was one such case. The result was a clear judgment from

Lindblom J emphasising the discretionary nature of the Reg.4(8) power.

65. The development in question was student accommodation in Southwark. It fell

outside Sch.1 of the EIA Regulations and was well below the threshold for an urban

development project under Sch.2. The local planning authority, Southwark, had

consistently answered requests for a screening opinion with a "negative" screen, that

the development was not EIA development. Despite those conclusions, which as per

Berkeley v The Secretary of State [2002] EWCA Civ 1012 meant that the Council

need not go further, the Council had proceeded to consider whether, in fact and in

light of Sch.3 to the EIA Regulations, the development would have significant effects

upon the environment. It had concluded not.

66. The Claimants had an interest in a nearby site, which they wished to redevelop. They

argued that the index development would, cumulatively with other development

consented or proposed, have impacts upon daylight, historic London monuments and

key views across the capital. When the Secretary of State indicated that he was

considering called the planning application in for his consideration, they wrote to him

urging him to do so and arguing that if he did so he should exercise his power under

Reg.4(8) and screen. In fact, the Secretary of State decided not to call in, the

application remained with the Council and it proceeded to grant planning permission.

20

67. Faced with the Claimants' pre-action letter warning of judicial review, the Secretary of

State made plain that he had not even considered exercising his Reg.4(8) power, as

once the decision had been taken not to call the application in, the condition precedent

to the Claimants' request that he do so if he called the application in had not been met.

68. The key question for the Court was whether the Secretary of State erred in law by not

even considering whether to exercise his Reg.4(8) discretion.

69. Lindblom J noted that the Reg.4(8) power is, in effect, a power, reserved to the

Secretary of State alone, to deem a project EIA development even though it is not, and

in that sense plainly a power to make an exception to the normal operation of the

statutory regime under the EIA regulations. The effect of a Reg. 4(8) direction is to

require the submission and consideration of an environmental statement before the

decision-maker can lawfully grant planning permission, and such a direction "shall

determine for the purpose of [the EIA Regulations] whether development is or is not

EIA development".

70. The decision of the Court of Appeal in Berkeley v The Secretary of State for the

Environment, Transport and the Regions and another ("Berkeley (No.3)") [2002] 1 P.

& C.R. 265 (at paras. 47(5) and 49) was on point. There the Court of Appeal held that

the EIA Directive was appropriately transposed into domestic law by incorporating

into the EIA Regulations, in Sch. 2, thresholds and criteria by which to determine

whether a particular development is EIA development, leaving to the Secretary of

State the discretionary power to direct, under Reg. 4(8), that a particular development

is EIA development even though it does not qualify as such under either Sch. 1 or

Sch. 2. The decision also established that Reg.4(8) was not required for the adequate

transposition of the EIA Directive, but was permitted by it, as recognised by the first

instance judgment of Mr Duncan Ouseley QC, as he then was, sitting as a deputy

judge of the High Court in Berkeley (No.3) [2001] J.P.L. 660 (at para. 39), where he

noted that Reg. 4(8) is "not purely a domestic add on" and "should be seen and

construed as part of the United Kingdom's implementation of [the EIA Directive]"

(ibid., para. 40).

71. Building on that jurisprudence, the Judge identified four features of the Reg.4(8)

power "worth noting":

21

(1) Reg.4(8) is unlike others in the EIA Regulations in that no

procedure for it is prescribed (see paras. 37 and 38 of Collins

J's judgment in R (Baker v Bath and North East Somerset

Council [2009] EWHC 595 (Admin));

(2) the power may be used only by the Secretary of State (see

paras. 34 and 44 in the first instance judgment in Berkeley

(No.3));

(3) a decision not to exercise the power in regulation 4(8) will not

amount to a breach either of the EIA Directive or the EIA

regulations (see para. 39 of the judgment of the Court of

Appeal in Berkeley (No.3));

(4) there is no general obligation on the Secretary of State to

consider making a Reg.4(8) direction; such an obligation

would be inimical to the purpose of the EIA regulations in

providing thresholds and criteria (see paras. 37 and 46 of the

first instance judgment in Berkeley (No.3), and para. 45 of the

Court of Appeal's judgment).

72. The Judge also noted that the power is exceptional, as the procedure in Circular 02/99,

§77(b), where LPAs may "exceptionally" draw a particular development to the

attention of the Secretary of State, makes clear. The same was true of interested

parties. He saw force in the submission, for the Secretary of State, that he is,

ordinarily, only required to consider exercising his power in regulation 4(8) at the

instigation of a local planning authority, or a third party, if an express request to do so

is made to him, bringing to his attention a particular feature of the development that is

said to be likely to have a significant effect on the environment.

73. Whether or not it had been lawful for the Secretary of State not to consider his

Reg.4(8) power depended on the context. Here there had been no true request for him

to do so, given the conditional nature of the request. Nor had it been wrong of him, in

the absence of a true request, not to do so. The challenge failed.

74. In R (on the application of Holder) v Gedling Borough Council [2013] EWHC 1611

(Admin) (8 June 2013), the Claimant sought to challenge the lawfulness of a

22

screening opinion, on the grounds that the Council had erred in law and failed to

apply paragraph 44 of Circular 02/99, which stated that the thresholds set out in

Annex A of that Circular were not determinative of the question of whether an EIA

was required, but rather should be taken into account together with the general

guidance contained in that circular. In other words, the thresholds set out at Annex A

were an aid to, not a substitute for, analysis of the need for an EIA. The Claimant

contended that, on the face of the screening opinion, the Council's planning officer

had looked no further than the threshold, which she had used as a substitute for proper

analysis.

75. The court agreed that the natural reading of the opinion was that the threshold was

determinative of the analysis. However, the planning officer had provided a witness

statement in which she explained that she had, in fact, carried out the requisite

analysis. The court accepted this evidence, and the challenge therefore failed on the

facts. The court also noted that the Claimant had not sought to argue that the decision

that no EIA was required was itself legally flawed; and that such a submission would

be very difficult to sustain in light of the principles established in Loader v Secretary

of State for Communities and Local Government, referred to above.

Concept of 'consent'

76. In Case C-121/11 Pro-Braine ASBL and others v Commune de Braine-le-Chateau

(19 April 2012) the Third Chamber of the ECJ held that a definitive decision relating

to the carrying on of operations at an existing landfill site, taken on the basis of a

conditioning plan, pursuant to Article 14(b) of the Landfill Directive (1999/31), does

not constitute a 'consent' within the meaning of Article 1(2) of the EIA Directive

unless that decision authorises a change to or extension of that installation or site,

through works or interventions involving alterations to its physical aspect, which may

have significant adverse effects on the environment within the meaning of point 13 of

Annex II to the EIA Directive and thus constitute a 'project' within the meaning of

Article 1(2) of that Directive.

Definition of 'development'

23

77. In R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset

Council [2013] Env LR 8 Lang J found that the Council had erred in law in taking too

narrow an approach to the meaning of 'development' in relation to some poultry units.

On the basis of that error, the Council had not addressed itself to the question of

whether the units fell within the scope of the EIA Directive or Regulations. Lang J

found that the units were capable of coming under 'intensive livestock installation'

under the Regulations and, as such, should have been considered by the Council for

an EIA. Of particular interest in this case is Lang J's view (see [113]) that the EIA

Directive could only be effectively implemented in the UK if the definition of

'development' in section 55 of the TCPA was interpreted broadly, so as to include

projects which required an EIA under either the Directive or the Regulations.

78. In R. (on the application of Lyon) v Cambridge City Council [2012] EWHC 2684

(Admin) the claimant sought judicial of a decision to grant planning permission for

the demolition of an existing sports pavilion and the relocation and erection of a new

sports pavilion, together with a Protective Costs Order. It was argued that the

proposed development fell within the scope of the Town and Country Planning

(Environmental Impact Assessment) Regulations 2011 (S.I. 2011/1824) as it was a

Schedule 2 development likely to have significant effects on the environment by

virtue of factors such as its nature, size or location and the area of the development

exceeded 0.5 hectares. Accordingly, the Claimant argued that the Defendant local

planning authority's failure to carry out a screening opinion as required by Regulation

7 and Schedule 2, paragraph 10 (b) of the Regulations rendered the grant unlawful.

The Defendant refused to accept that the proposed sports pavilion was an "urban

development project" for the purposes of Sch.2; that even if it was there was no

reasonable basis for concluding that its construction would have significant effects

upon the environment; that, in any event, the area of the proposed development was

less than 0.5 hectares; and that even on the Claimant's own calculations the error, if

any, in calculating the area of the development was de minimis.

79. HHJ Birtles found that the demolition of the existing pavilion and the construction of

a new sports pavilion as described in the Planning Committee report could not amount

to an "urban development project". Schedule 2 paragraph 10 was headed

"infrastructure projects" and all of the developments listed in paragraph 10 (a)-(p)

24

were infrastructure projects. In any true meaning of the construction of the phrase

"infrastructure projects" the construction of a small sports pavilion on a small sports

pitch could not be classed as an infrastructure project. Paragraph 10(b) supported that

because the references were to "the construction of shopping centres and car parks,

sport stadiums, leisure centres and multiplex cinemas." The proposed development

was a far cry from a sports stadium or a leisure centre. If that was not correct, there

was the question of whether or not there was a reasonable basis for the Defendant

concluding that significant environmental effects were not likely. The Defendant had

taken the view that the development was not likely to have significant effects on the

environment by virtue of factors such as its nature, size or location, and had been

entitled to do so. The third issue was the area of the project. Schedule 2 Regulation

10(b) provided that the Regulations only bit if the area of the development exceeded

0.5 hectares. Although the Court of Appeal in R (on the application of Goodman and

Hedges) v London Borough of Lewisham ([2003] Env LR 28) had not specifically

addressed the issue of the correct approach for the court in deciding whether a

proposed development was an urban development project within the second criterion

of Schedule 2 paragraph 10(b) (i.e. the precise area), that seemed to be a matter of fact

and not a matter of interpretation of phrases in a piece of legislation. As such it was

only reviewable on traditional Wednesbury grounds. The Defendant's evidence was

compelling and it was not arguable that its decision on the issue had been unlawful.

Consultation

80. In R (Halebank Parish Council) v Halton Borough Council [2012] EWHC 1889

(Admin) HHJ Gilbart QC found that a decision not to extend a consultation period on

an environmental statement amounted to a breach of Article 6 of the EIA Directive

and a breach of a procedural legitimate expectation the Parish Council had as to the

conduct of the consultation process.

EIA and enforcement

81. R (Baker) v Bath and North East Somerset Council & Hinton Organics Ltd has

come before the court again, this time in relation to the issue of enforcement: see

25

[2013] EWHC 946 (Admin). Hinton Organics Ltd operates a waste-composting site.

The Claimant lives near the site. In a judgment dated 19 February 2009, Collins J

held that paragraph 13 of Schedule 2 of the 1999 EIA Regulations did not properly

implement applicable EU law, with the result that applications required to be

screened. This led to various planning permissions on the site being quashed, but

Hinton Organics continued to operate the site after this date. The Secretary of State

subsequently made positive screening directions and, accordingly, there were before

the Council three live applications for planning permission which would, if granted,

operate with retrospective effect. The purported environmental statement submitted

by Hinton Organics was inadequate and, fourteen months later, the Council decided to

grant a further three months to present a complete environmental statement. The issue

of whether an enforcement notice should be issued was therefore withdrawn from its

agenda.

82. The Claimant sought to challenge this decision by way of judicial review. The court,

in dismissing the claim, held that there was no duty on the authority under EU law

immediately to issue an enforcement notice in the circumstances. It noted that the

statements produced by Hinton Organics were "significantly deficient", and that it had

offered no real explanation, convincing or otherwise, for this failure. It considered

that by allowing Hinton Organics a further opportunity, the Council ran the risk of

acting inconsistently with established case law concerning its obligations under the

EIA Directive. However, notwithstanding these misgivings, the court concluded that

the authority had reached a fair, reasonable and proportionate decision on the relevant

issue. In particular, there was objectively a real probability that Hinton Organics

would produce a compliant environmental statement, notwithstanding past failures;

and the deadline set was not a lengthy one. Moreover "the issue of an enforcement

notice would not be likely to bring the unauthorised operations to an end, but would

be likely only to transfer the planning applications, supported by such environmental

statement, to the Secretary of State" [34]. The grant of retrospective planning

permission in respect of an EIA development was permissible if there were

exceptional circumstances, Ardagh Glass Ltd v Chester City Council [2010] EWCA

Civ 172, [2011] 1 All E.R. 476.

26

The role of inspectors

83. Judge Keyser QC has drawn attention to the limited role of Inspectors under

Regulation 9(2) of the 1999 EIA Regulations (now Regulation 12(2) of the 2011

Regulations) in Gregory v Welsh Ministers [2013] EWHC 63 (Admin).

84. If on a section 78 appeal there is a question as to whether the application is an EIA

application: (i) a negative screening opinion from the local planning authority is not

conclusive of the issue; and (ii) the Inspector's role is to ask himself whether the

application "may be" an EIA application; if he answers that in the affirmative he must

refer the question to the Secretary of State and has no jurisdiction to determine the

appeal (except by refusing planning permission) before he receives a screening

direction.

Proposed amendment to the EIA Directive

85. The EIA Directive has been in existence for over 25 years. It is considered by the

European Commission to be in need of a "comprehensive overhaul". On 26 October

2012 the Commission published a draft Directive proposing various amendments to

the current Directive (2011/92/EU). Amongst the amendments are a change to the

definition of "project" in Art 1 to make it clear that demolition works are included and

amending Art 2(3) to introduce an EIA "one-stop shop" to allow for the coordination

of assessment procedures under the EIA Directive and other EU legislation. The

Commission also proposes an amendment to Art 4 to streamline the screening

procedure and to seek to enhance the consistency of Member States' approaches to

ensure that EIAs are required only when it is clear that there are significant

environmental impacts.

86. Perhaps more important are proposals to ensure that alternatives are considered within

ESs (so moving EIA in line with SEA – though query whether the new text actually

achieves this) and provisions to ensure post-development monitoring of key

environmental effects.

87. Given that the new Directive is not expected to become law until March 2014, a more

extensive consideration is reserved for a future occasion.

27

SEA

Non-compulsory plans/programmes

88. In Inter-Environnement Bruxelles ASBL & Others v Région de Bruxelles-Capitale

(Case C‑567/10) the ECJ gave judgment in a case regarding the application of the

SEA Directive (2001/42) to procedures for the repeal of land use plans that were not

compulsory under national law. Proceedings were brought by Belgian NGOs alleging

that domestic law was incompatible with Directive 2001/42 in that it did not require

an environmental report to be drawn up for the total or partial repeal of the plans.

Whilst, formally, Article 2(a) of the directive related only to the adoption and

modification of land development plans, the applicants argued that, in order to

preserve its effectiveness, the directive had to be interpreted as also applying to the

repeal of those plans. In the present case, repeal of a specific land use plan modified

the context in which planning permissions were issued and were liable to amend the

framework for consents issued for future projects. The applicants also argued that

‘plans and programmes’ within the meaning of Article 2(a) were, generally, those

provided for by national legislative or regulatory provisions and not only those whose

adoption was compulsory under those provisions. They submitted that it would not be

consistent with the objective and practical effect of the directive to exclude from its

scope a repealing measure whose adoption, although optional, had taken place. The

Constitutional Court referred two questions to the ECJ:

“(1) Must the definition of ‘plans and programmes’ in Article 2(a) of

Directive 2001/42 … be interpreted as excluding from the scope of that

directive a procedure for the total or partial repeal of a plan such as that

applicable to a specific land use plan, provided for in [the domestic

provisions]?; and

(2) Must the word ‘required’ in Article 2(a) of that directive be understood

as excluding from the definition of ‘plans and programmes’ plans which are

provided for by legislative provisions but the adoption of which is not

compulsory, such as the specific land use plans referred to in [the domestic

provisions]?”

28

89. The court found that plans and programmes whose adoption was regulated by national

legislative or regulatory provisions, which determined the competent authorities for

adopting them and the procedure for preparing them, had to be regarded as ‘required’

within the meaning, and for the application, of Directive 2001/42. Accordingly, they

had to be subject to an assessment of their environmental effects as laid down in the

directive. It followed that the answer to the second question was that the concept of

plans and programmes ‘which are required by legislative, regulatory or administrative

provisions’, appearing in Article 2(a) of Directive 2001/42, included specific land

development plans, such as the one covered by the national legislation at issue in the

main proceedings. On the first question, the directive referred expressly only to

measures modifying plans and programmes, and not to repealing measures. Given its

objective of providing for a high level of protection of the environment, however, the

provisions which delimited the directive’s scope, in particular those setting out the

definitions of the measures envisaged by the directive, had to be interpreted broadly.

It was possible that the partial or total repeal of a plan or programme was likely to

have significant effects on the environment, since it may involve a modification of the

planning envisaged in the territories concerned. Thus, a repealing measure may give

rise to significant effects on the environment because such a measure necessarily

entailed a modification of the legal reference framework and consequently altered the

environmental effects which had been assessed under the procedure prescribed by

Directive 2001/42.

90. Inasmuch as the repeal of a plan or programme may modify the state of the

environment as examined at the time of adoption of the measure which was to be

repealed, it had to be taken into consideration with a view to scrutiny of the

subsequent effects that it might have on the environment. Accordingly, Article 2(a)

had to be interpreted as meaning that a procedure for the total or partial repeal of a

land use plan, such as the procedure laid down in the domestic provisions, fell in

principle within the scope of the directive, so that it was subject to the rules relating to

the assessment of effects on the environment laid down. In principle, that was not the

case if the repealed measure fell within a hierarchy of town and country planning

measures, as long as those measures laid down sufficiently precise rules governing

land use, they had themselves been the subject of an assessment of their

environmental effects, and it might reasonably be considered that the interests which

29

the directive was designed to protect had been taken into account sufficiently within

that framework.

91. For a domestic application, see Wakil.

Habitats

Adverse effects

92. In Case C-258/11 Sweetman v An Bord Pleanála , the Court of Justice responded to

a request from the Irish Supreme Court for a preliminary ruling on the interpretation

of Article 6 of the Council Directive 92/43/EEC (the Habitats Directive).

93. The underlying dispute concerned An Bord Pleanála’s grant of a development consent

on 20 November 2008 for the N6 Galway Bypass. The road scheme involves the

permanent loss within the Lough Corrib SCI of approximately 1.47 hectare of karstic

limestone pavement which is a priority habitat type referred to in Annexe 1 to the

Directive. The Lough Corrib was not formally designated as a SCI until after the

decision at issue but under National Law, the An Bord Pleanála was required to apply

equivalent legal protections to those under Article 6 (2) of the Habitats Directive to

the site from 2006 onwards. An Bord Pleanála had concluded that the proposed

development would not adversely affect the integrity of this candidate special Area of

Conservation.

94. Mr Sweetman applied to the High Court seeking judicial review of the grant of the

consent on the grounds that An Bord Pleanála had erred in its interpretation of Article

6 of the Habitats Directive in reaching this conclusion. At first instance he was

unsuccessful but was granted permission to appeal before the Supreme Court. The

Supreme Court sought clarification as to the circumstances in which, where an

appropriate assessment of a plan or project is carried out pursuant to Article 6(3) of

the Habitats Directive, such a plan or project is likely to have ‘an adverse effect on the

integrity of the site’. The Supreme Court stated that the judgment in Case C 127/02

Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I 7405 had not

fully dispelled its doubts.

95. The Court dealt with the questions referred together noting that in essence the

Supreme Court was asking whether Article 6(3) of the Habitats Directive must be

30

interpreted as meaning that in a situation such as that in the main proceedings a plan

or project not directly connected with or necessary to the management of a site

adversely affects the integrity of that site and further, that the referring court sought

clarification as to the possible effect of the precautionary principle and the question of

the relationship between Article 6(3) and Article 6(4) of the Habitats Directive for the

purposes of that interpretation.

96. The Court reiterated that Article 6(3) of the Habitats Directive establishes an

assessment procedure intended to ensure, by means of a prior examination, that a plan

or project not directly connected with or necessary to the management of the site

concerned but likely to have a significant effect on it is authorised only to the extent

that it will not adversely affect the integrity of that site. This procedure comprises two

stages - (i) the assessment and (ii) the consideration of whether there are adverse

effects. In appraising the scope of the expression ‘adversely affect the integrity of the

site’ in its overall context, the provisions of Article 6 of the Habitats Directive must

be construed as a coherent whole in the light of the conservation objectives pursued

by the directive.

97. Article 6(2) to (4) of the Habitats Directive impose upon the Member States a series

of specific obligations and procedures designed, as is clear from Article 2(2) of the

directive, to maintain, or as the case may be restore, at a favourable conservation

status natural habitats and, in particular, special areas of conservation. Article 1(e) of

the Habitats Directive establishes that the conservation status of a natural habitat is

taken as ‘favourable’ when, in particular, its natural range and areas it covers within

that range are stable or increasing and the specific structure and functions which are

necessary for its long-term maintenance exist and are likely to continue to exist for the

foreseeable future. The Habitats Directive has the aim that the Member States take

appropriate protective measures to preserve the ecological characteristics of sites

which host natural habitat types (see Case C 308/08 Commission v Spain [2010] ECR

I 4281, paragraph 21, and Case C 404/09 Commission v Spain, paragraph 163).

Consequently, it should be inferred that in order for the integrity of a site as a natural

habitat not to be adversely affected for the purposes of the second sentence of Article

6(3) of the Habitats Directive the site needs to be preserved at a favourable

conservation status; this entails the lasting preservation of the constitutive

31

characteristics of the site concerned that are connected to the presence of a natural

habitat type whose preservation was the objective justifying the designation of that

site in the list of SCIs, in accordance with the directive.

98. Authorisation for a plan or project, as referred to in Article 6(3) of the Habitats

Directive, may therefore be given only on condition that the competent authorities –

once all aspects of the plan or project have been identified which can, by themselves

or in combination with other plans or projects, affect the conservation objectives of

the site concerned, and in the light of the best scientific knowledge in the field – are

certain that the plan or project will not have lasting adverse effects on the integrity of

that site. That is so where no reasonable scientific doubt remains as to the absence of

such effects: Case C 404/09 Commission v Spain, paragraph 99, and Solvay and

Others, paragraph 67. Since the authority must refuse to authorise the plan or project

being considered where uncertainty remains as to the absence of adverse effects on

the integrity of the site, the authorisation criterion laid down in the second sentence of

Article 6(3) of the Habitats Directive integrates the precautionary principle and makes

it possible to prevent in an effective manner adverse effects on the integrity of

protected sites as a result of the plans or projects being considered. A less stringent

authorisation criterion than that in question could not ensure as effectively the

fulfilment of the objective of site protection intended under that provision:

Waddenvereniging and Vogelbeschermingsvereniging, paragraphs 57 and 58.

99. The assessment under Article 6(3) cannot have lacunae and must contain complete,

precise and definitive findings and conclusions capable of removing all reasonable

scientific doubt as to the effects of the works proposed on the protected site

concerned. It is for the national court to establish whether the assessment of the

implications for the site meets these requirements.

100. Accordingly the Court concluded that Article 6(3) of the Habitats Directive must be

interpreted as meaning that a plan or project not directly connected with or necessary

to the management of a site will adversely affect the integrity of that site if it is liable

to prevent the lasting preservation of the constitutive characteristics of the site that are

connected to the presence of a priority natural habitat whose conservation was the

objective justifying the designation of the site in the list of SCIs, in accordance with

the directive. The precautionary principle should be applied for the purposes of that

32

appraisal. If the competent authority “concludes that the plan or project will lead to

the irreparable loss of the whole or part of a priority natural habitat type whose

conservation was the objective that justified the designation of the site… the view

should be taken that such a plan or project will adversely affect the integrity of the

site” [47]”.

Duties of planning authorities

101. In R (on the application of Prideaux) v Buckinghamshire County Council [2013]

EWHC 1054 and R (Kolb) v Buckinghamshire County Council [2013] EWHC 1055,

Lindblom J considered two judicial review claims against Buckinghamshire County

Council’s grant of planning permission for the construction of an energy from waste

facility, to treat up to 300,000 tonnes of residual waste each year. The first claim was

brought on three grounds, namely (i) whether the Council had complied with its duties

in respect of European Protected Species (namely bats and great crested newts); (ii)

whether the Council unlawfully failed to apply relevant national policy on nature

conservation in the NPPF; (iii) whether the Council had failed to provide adequate

reasons. The second claim was brought by Mr Kolb as a litigant-in-person, and

focused on the way in which the Council had considered flood risk.

102. Lindblom J dismissed both claims, but his reasoning in relation to the first ground in

Prideaux is of particular significance. He found that the Council had “discharged its

duty under regulation 9(5) in this case with no less rigour than was required to comply

with the approach indicated by the Supreme Court in Morge. It did at least as much

as it had to do to satisfy itself that the necessary derogations were not unlikely to be

licensed”. He held that the relevant legal duty on the planning authority was that set

out in Morge v Hampshire County Council [2011] UKSC 2, namely to have regard to

the requirements of the Habitats Directive so far as those requirements may be

affected by the decision whether or not to grant a planning permission, and that the

more onerous test established by HHJ Waksman QC in (Woolley) v Cheshire East

Borough Council [2010] Env LR 5 could no longer be regarded as good law5.

5 See paragraph 27 of that judgment

33

103. The court also considered what was meant by the phrase “no satisfactory alternatives”

in the test to be applied for licensing derogations from the Habitats Directive. It held

that there was no requirement to undertake a comparative assessment of the possible

effects of each suggested alternative on the European Protected Species. Moreover

Article 16 of the Habitats Directive “does not provide that a licence must be refused if

an alternative emerges with no foreseeable impact on European Protected Species, or

an impact less harmful than that of the project in hand”, and the suggestion that an

alternative could only be regarded as satisfactory when that was so was incorrect. He

concluded that:

“113…To be satisfactory an alternative has to be a real option, not merely a

theoretical one. When planning permission for it would likely be refused

because, for instance, it would strain the capacity of local roads, or disturb

people in their homes, or mar the setting of a listed building, or harm flora or

fauna important in a Site of Special Scientific Interest, it may well be

reasonable to dismiss it as a “satisfactory alternative”. Without the planning

permission it would require a hypothetical option of that kind would not be a

real alternative; it could not meet the identified need.

114. Judging what is, or may be, a satisfactory alternative in a particular case

requires a focus on what is sought to be achieved through the derogation, and

on the likely effects of the works on the species in question.”

Multiple authorities

104. The Court of Appeal has given practical guidance upon division of responsibility for

appropriate assessment under the Habitats Directive (92/443/EEC) and the domestic

implementing regulations, the Habitats and Species Regulations 2010 (“the Habitats

Regulations”), when a plan or project requires a permission, consent or authorisation

from multiple competent authorities, each with responsibilities under Reg.61 of the

Habitats Regulations. A classic case is when a project requires both a planning

consent, either from the local planning authority or, if the application is called in, the

Secretary of State, and also an environmental permit from the Environment Agency.

34

105. That was the position in Cornwall Waste Forum St Dennis Branch v (1) Secretary of

State (2) SITA Cornwall Ltd [2012] EWCA Civ 379, where the project in question

was a waste power plant located near St Austell in the vicinity of two Special Areas of

Conservation and the applicant, SITA Cornwall Ltd, applied for planning permission

and an environmental permit in parallel. Regulation 65, dealing with co-ordination

where more than one competent authority is involved, explains at (2) that nothing in

Reg.61(1) requires a competent authority “to assess any implications of a plan or

project which would be more appropriately assessed under that provision by another

competent authority.”

106. The Environment Agency issued a draft permit some time before the planning

application reached the Secretary of State’s appointed Inspector, the Secretary of State

having recovered the application for his determination. However, prior to the

planning inquiry the Planning Inspectorate advised objectors, including both the

Cornwall Waste Forum St Dennis Branch, that the Inspector would, if he considered

the Reg.61 threshold test met, himself carry out an appropriate assessment of the

project and advise the Secretary of State accordingly. Hence the objectors aimed their

fire regarding appropriate assessment at the Inspector, not the Environment Agency.

In particular, before the Inspector they criticised the Agency’s approach to the so-

called “1% rule”: that is, that if the long term “process contribution” for a pollutant is

less than 1% of the relevant Air Quality Standard, its effects are deemed

“insignificant” (see Environmental Permit para A3.1(ii)). Both the Forum and the

County Council argued at the inquiry that the “1% rule” should not be applied where

pollution levels were already substantially above the “critical load”.

107. During the course of the Inquiry concessions made by the County Council’s witnesses

in relation to water quality, hydrology, dust and traffic emissions, led to the position

whereby the only impacts requiring appropriate assessment were those pertaining to

air quality due to emissions from the stack. Those were matters that would be

controlled by the permitting regime operated by the Environment Agency rather than

the development control regime operated by the local planning authority/the Secretary

of State, and hence the Inspector considered it right to rely upon the Agency’s

appropriate assessment. That was after the Agency had issued a final permit. The

35

Secretary of State adopted his Inspector’s position, and deferred to the Agency’s

appropriate assessment. He granted planning permission.

108. The Forum’s challenge succeeded at first instance before Collins J, largely on the

basis of breach of a procedural legitimate expectation that the Secretary of State

himself would act as competent authority and conduct an appropriate assessment, not

defer to the Environment Agency, thus denying the Forum the opportunity to take

“arguable” points against the 1% rule with the Agency.

109. The Court of Appeal allowed the Secretary of State’s appeal and restored the planning

permission. Carnwath LJ, gave the lead and only judgment. He noted, firstly, that the

competent authority was the Secretary of State, not the Planning Inspector nor the

Inspector, neither of whom had authority to give a commitment that the Secretary of

State would conduct a Reg.61 appropriate assessment. Secondly, that circumstances

had changed since the Planning Inspectorate’s pre-inquiry representation. Thirdly,

and most importantly, that in the context of this planning appeal the debate about

responsibility under the Habitats Directive was in itself of no practical significance.

That was because whether or not the Secretary of State remained the decision-maker

for the purposes of the Habitats Directive, he could not avoid responsibility for the

planning decision, one aspect of which, as he recognised, was whether there would be

“harm to acknowledged nature conservation interests”. On the facts of this case the

two issues were inextricably linked. By the same token, in so far as the possibility of

harm to those interests arose from stack emissions, he was entitled – in either capacity

– to be guided by the expertise of the relevant specialist agencies, the Environment

Agency and Natural England. It would be only if their guidance was shown to be

flawed in some material way that his own decision, relying on that guidance, would

become open to challenge for the same reason.

110. The Forum had made no submission that the Agency’s approach to the 1% rule was

legally flawed. Hence there was no true case made against the only substantive

criticism of the Secretary of State’s decision, namely his reliance, through the

Agency, on the 1% rule as a test of “significance” under the Directive.

Appropriate assessment and material considerations

36

111. The Court of Appeal has rejected an application for judicial review relating to impacts

on the Carmarthen Bay European Marine Site. In R (on the application of Hughes) v

Carmarthenshire County Council & Others ([2012] EWCA Civ 1509), the Claimant

was a licensed cocklepicker and chair of the Llanelli Cocklepickers Association,

which was concerned about cockle mortality in Carmarthen Bay. The area comprised

the Carmarthen Bay and Estuary Special Area of Conservation, Carmarthen Bay

Special Protection Area and the Burry Inlet Special Protection Area and Ramsar Site.

Those sites were often collectively referred to as the “European Site”. The Claimant

sought to challenge the grant of reserved matters approval for two substantial

residential developments. He was concerned that the water quality in the bay would

be adversely affected by the drainage from the two developments. It was common

ground that an ‘appropriate assessment’ had to be carried out for each development in

accordance with the requirements of the Habitats Directive (92/43) before the

approval of reserved matters could lawfully be granted. It was also common ground

that in each case an appropriate assessment was carried out and published before

reserved matters approval was granted. The Claimant argued that the appropriate

assessments were not lawful because the Defendant County Council had: a) failed to

have regard to a material consideration, namely the views of the Environment Agency

for Wales, in particular as those views were expressed in its ‘Review of Consents’;

and b) had regard to an irrelevant consideration, namely certain “infrastructure

works”, which were relied upon as mitigating the impact of the drainage from the two

developments.

112. All of the relevant statutory bodies, the Environment Agency for Wales, the

Countryside Council for Wales, the County Council, Cardiff City Council and Welsh

Water, had reached a consensus in a non-binding Memorandum of Understanding in

February 2010. As part of the Memorandum, the Environment Agency was

undertaking a Review of [Discharge] Consents. As an interim measure, the local

councils were funding nutrient removal processes at treatment works, in order to free

up capacity for new residential property developments (including those the subject of

the judicial review application). The claimant argued that the Review of Consents cast

doubt on the Memorandum of Understanding because of nutrient contamination of the

Bay from agricultural run offs elsewhere. The Environment Agency had not

challenged the lawfulness of the reserved matters approvals. On the second ground,

37

the claimant argued that in undertaking the appropriate assessment the council was

required to consider the impact of the projects, the two housing developments, and in

doing that the County Council could not ‘trade off’ the beneficial effects of the

“infrastructure works” because they were not part of the projects in question. When

considering the question of cumulative impact of the projects when combined with

others, the County Council could not “pick off” some beneficial works and then

ignore the wider picture: that the integrity on the site had not been achieved and more

works were needed in order to achieve this.

113. Lord Justice Sullivan (with whom Lord Justice Patten and Sir David Keene agreed)

noted that the Environment Agency had written to the claimant but that nothing in that

letter suggested that, for the purposes of the appropriate assessments, its Review of

Consents added anything material to the consensus which had been reached in the

Memorandum of Understanding to which it was a party. Nor did it suggest that the

appropriate assessments failed to consider any material factor that it might have

wished to have been considered from its point of view. Nothing in the Review of

Consents had affected the consensus in the Memorandum. A revised Memorandum

had been published after the Review of Consents which had reaffirmed the position

regarding scope for additional residential development. There was no substance

whatsoever in the first limb of the claimant’s challenge to the appropriate

assessments. The “infrastructure works” that were the subject of the second ground

had been completed before the appropriate assessments were published. It would

make it much more difficult, if not impossible to release the 2000 new dwellings,

which all of the relevant statutory authorities had agreed could be accommodated

without having an adverse effect on the bay because of the infrastructure works that

had been undertaken, until such time as the water quality of the bay had been

improved by further measures to deal with other sources of pollution such as

agricultural run-off, because site integrity would not have been achieved until those

further measures have been implemented. The Directive did not compel such an

unrealistic conclusion. In effect, it treated a failure to contribute to a wider

improvement in environmental quality as an adverse impact on environmental quality.

Article 64 of the Directive was concerned with the consideration on review of existing

consents and not with the granting of new consents, but Article 64(3) indicated the

common sense approach:

38

“ The decision, or the consent, permission or other authorisation, may be

affirmed if it appears to the competent authority reviewing it that other action

taken or to be taken by them, or by another authority, will secure that the plan

or project does not adversely affect the integrity of the site.”

114. Looking at the matter through the prism of that paragraph, an action had been taken

and infrastructure works provided by Welsh Water were in operation. All the relevant

statutory authorities were agreed that, given the existence of those works, the two

housing developments would not adversely affect the current nutrient status of the

bay. The fact that it was an objective to improve that status and the two developments

would not contribute to that improvement did not mean that they would have an

adverse effect on the integrity of the European site. For those reasons, the claims for

judicial review would be dismissed.

IROPI

115. Elliott v SSCLG [2013] EWCA Civ 703 concerned a challenge to the proposed

“makeover” of Crystal Palace Park. There were five grounds of challenge, the fourth

of which concerned bats and raised issues relating to “imperative reasons of

overriding public interest” for the purposes of Regulation 62 of the Habitats

Regulations. The Inspector had raised an issue as to whether the planned makeover

might constitute IROPI but had not decided the point. The SSCLG did not spell out

that he had considered IROPI but Keith J held that he must have done so. The point

of wider interest in the case concerns Keith J’s assessment of the Claimant’s

contention that the need to raise funds for a development could not as a matter of

Community law constitute exceptional circumstances forming the basis of an IROPI.

116. At first instance, Keith J noted the passage in Solvay v Region Wallonne (C-182/10)

where the ECJ stated at [76]-[77] that “[w]orks intended for the location or expansion

of an undertaking [will] only in exceptional circumstances” satisfy the condition that

the development “must be of such importance that it can be weighed up against [the]

directive’s objective of the conservation of natural habitats …”. But he went on to

find that:

39

“you cannot get from that that if a particular feature of a set of proposals was

included only because it would provide some of the funding for the

development as a whole, and if it happened to be that aspect of the

development which would have an impact on the conservation of natural

habitats, there cannot have been imperative reasons of overriding public

interest for permitting the development”.

117. The Claimant therefore failed on the habitats ground and also failed on the other

grounds. The Court of Appeal dismissed the appeal, Laws LJ giving the lead

judgment upholding Keith J on all points.

Waste

Deposit

118. In R (Thames Water Utilities Ltd) v Bromley Magistrates' Court and The

Environment Agency [2013] EWHC 472 (Admin), a two-judge Administrative Court

(Gross LJ and Singh J) dismissed Thames Water's application for judicial review of

the decision of Bromley Magistrates' Court (District Judge Lynch), that unintentional

escapes of sewage from Thames Water's system in 2003 amounted to "deposits" for

the purposes of s.33(1)(a) of the EPA 1990.

119. The Court (Gross LJ giving the lead judgment, with which Singh J agreed) found that

the word "deposit" in ss.33(1)(a) was to be given its ordinary meaning, which

meaning included unintentional escapes, and that this conclusion was supported by

the statutory scheme as a whole.

120. Though the case concerned unintentional escapes of sewage, it is of general

application to all "deposits" for the purposes of s.33(1)(a).

121. The underlying facts concerned a number of occasions between February and April

2003, when sewage escaped from Thames Water's system onto land in the London

Borough of Bromley. The land included residential properties, allotments and the

public highway. The EA brought criminal proceedings in 2004, which included

charges that by the escapes Thames Water had contravened s.33(1)(a) EPA. Thames

Water was eventually convicted, after the question of whether the sewage that had

escaped from its system was "controlled waste" had been to both the CJEU and the

40

Court of Appeal. Thames Water was convicted by the District Judge primarily on the

basis that "deposit" was an ordinary English word, apt to include unintentional as well

as intentional acts, and that the s.33(7) defence further supported that conclusion.

122. It is worth remembering that ss.33 and 34 of the EPA provide, so far as material, that:

33.(1) ….a person shall not -(a) deposit controlled waste, or knowingly cause

or knowingly permit controlled waste to be deposited in or on any land unless

a waste management licence authorising the deposit is in force and the deposit

is in accordance with the licence;

[contravention of s.33(1) is an offence]

(7) It shall be a defence for a person charged with an offence under this

section to prove

-(a) that he took all reasonable precautions and exercised all due diligence to

avoid the commission of the offence

34. (1) ….it shall be the duty of any person who imports, produces, carries,

keeps, treats or disposes of controlled waste or, as a broker, has control of

such waste, to take all such measures applicable to him in that capacity as are

reasonable in the circumstances –

(a) to prevent any contravention by any other person of section 33 above;

……

(b) to prevent the escape of the waste from his control or that of any other

person; ….

123. The Court's focus was, of course, on the "first limb" of s.33(1)(a), it being assumed

that Thames Water had neither known nor intended the escapes of sewage to occur.

124. In finding against Thames Water, and giving s.33(1)(a) the broader interpretation

contended for by the EA and found by the District Judge below, the Administrative

Court considered first the ordinary English meaning of the word "deposit", agreeing

with the District Judge that this was "put, place(d) or set down", and then found that a

construction by reference to ordinary usage was appropriate. Hence the test for the

41

Court was "whether an unintended escape falls within a reasonable range of meanings

for "deposit" ". It had no real difficulty in finding that it did, basing its judgement on

the following: the striking contrast between the first "limb" of s.33(1)(a), which

contains no requirement of "knowledge", and the second and third "limbs", which do;

and the existence of the statutory defence of due diligence pursuant to s.33(7), which

would ameliorate the potential harshness of an offence of strict liability that required

no mens rea.

125. The Court rejected Thames Water's contentions that the existence of s.34 was proof

that s.33 applied only to "intentional" deposits, else the EA would be free to prefer the

more serious s.33 offence and cast the burden of proof on the defendant. The answer

to that contention was straightforward on the present facts; s.34 had no application,

because the sewage was not "controlled" waste until it had escaped the system, as up

until that point it was within the provisions of the Urban Waste Water Directive

(91/271/EEC) and so outside the Waste Directive (75/442/EEC) as "already covered

by other legislation". As the EA put it "that which was in the pipes was not controlled

waste; once it had escaped, it was not in the control of Thames" and so, on the present

facts, s.34 had "no scope…to bite".

126. Whilst the Court's reasons for rejecting Thames Water's reliance upon the existence of

s.34 seem well-founded on the facts before it, the potential difficulty is that its

conclusion that a "deposit" for the purposes of s.33(1)(a) can include an unintentional

escape is of general application, not limited to escapes from a sewerage system

governed by its own particular statutory regime. It rejected Thames Water's example

of a shopper who trips, falls and in the process "deposits" the contents of their

shopping bag as having little force, on the basis that the s.33(7) defence would be

available and that prosecutors and the courts would see to it that such unwarranted

cases would not be pursued. However, there will doubtless be other, more pertinent,

examples thrown up on the inevitably unpredictable canvas humanity paints, where

the force of this judgment will be felt most acutely.

Scope of duty of care

42

127. The Administrative Court has provided guidance on the scope of the Duty of Care for

Waste imposed by virtue of section 34 of the Environmental Protection Act 1990. See

Mountpace Ltd v Haringey London Borough Council [2012] EWHC 698 (Admin).

Transfrontier shipment of waste

128. R v Ezeemo [2012] EWCA Crim 2064, saw the Court of Appeal consider the

Transfrontier Shipment of Waste regime6 for the third time7 in 12 months. The cases

before the Court arose from the large scale high profile prosecutions by the Agency in

relation to the shipping of televisions and paper to Africa and South Korea. Whilst

the prosecutions have been hugely expensive for the Agency and the fines low, the

Agency will no doubt be satisfied that all Defendants pleaded guilty or changed their

plea over the course of 18 months as the Court of Appeal successively rejected their

defences.

129. In short, the three cases establish the following about the regime: 1) the criminal

offence of transporting hazardous waste to a country that is not a member of the

OECD is one of strict liability and is not ultra vires the EU parent Regulation or

disproportionate. 2) Art 36 of the EU Reg (exports for recovery to non OECD

countries is prohibited ) contains 2 simple but key concepts a) waste must be destined

for recovery b) export is the action of waste leaving the EU. 3) Waste can be destined

for foreign parts long before it gets anywhere near the English/Welsh docks but it is a

question of fact to determine when it is ‘destined’ for another country. 4) The breadth

of activities caught by the regime is wide – anyone involved in the transport of waste

(by road, rail, sea) from point of origin where waste is collected/stored to the point it

is delivered to the foreign country. 5) Whether household waste has become paper

waste is a question of fact for the jury. There appears to be a de minimis threshold for

‘contamination’ by other materials but this is a question of fact (but the CA thought

the EA should produce guidance).

6 EU Regulation 1013/2006 and UK TFS Regulations (2007) 7 The other cases are KV & Othrs v R [2011] EWCA Crim 2342 and R v Ideal Paper Co

[2011] EWCA Crim 3237

43

Environmental judicial review

Intensity of review

130. The courts have tended to adopt a relatively deferential approach to environmental

decision makers like the Environment Agency and Natural England, interfering only

where the decision-maker can be shown to have acted irrationally in the traditional

Wednesbury sense. However Lang J in R (Manchester Ship Canal Co Ltd & Peel

Holdings Ltd) v Environment Agency [2012] EWHC 1643 took an interventionist

approach to the interpretation of the Environment Agency’s flood defence policies

and the Court of Appeal has recently dismissed the EA’s appeal; [2013] EWCA Civ

542. By categorising sluices along the Manchester Ship Canal as formal flood

defences for the purpose of assessing flood risk, the EA had misunderstood and

misconstrued its own policies.

131. For the moment, this can be viewed as nothing more than an application of the (new)

approach to policy interpretation laid down in Tesco v Dundee.

Discretion

132. Berkeley v Sec of State remains the high point for claimants seeking to argue that the

Court has no discretion not to quash a defective environmental decision. Lord

Carnwath has however been mounting a steady campaign to limit its boundaries, the

latest expression of which is in Walton v The Scottish Ministers [2012] UKSC 44 at

[124]-[140]. The domestic courts are to balance the principle of ‘effectiveness’ in

exercising rights under European law with the practical effect of any breach and the

public interest, Lord Carnwath finding (at [139]):

“Where the court is satisfied that the applicant has been able in practice to

enjoy the rights conferred by the European legislation, and where a procedural

challenge would fail under domestic law because the breach has caused no

substantial prejudice, I see nothing in principle or authority to require the

courts to adopt a different approach merely because the procedural

requirement arises from a European rather than a domestic source.”

133. This may provide the basis for the exercise of greater discretion in granting remedies

than has been apparent over the last decade or so.

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Promptness

134. It has been a central requirement of judicial review that a claim should be filed

promptly and in any event not later than 3 months after the grounds to make the claim

first arose. So far as decisions under the planning acts from 1st July 2013 are

concerned, that position has now been altered by CPR Rule 54.5(5) and (6), which

replaces the “within three months and in any event promptly” time limit with a

straight six weeks. However, there will still be environmental JR claims where the

ordinary rule applies.

135. Following C-406/08 Uniplex; R. (Buglife) v Medway Council and R (U & Partners

(East Anglia) Ltd) v The Broads Authority, it is clear that promptness is disapplied in

environmental cases which raise EU law. However, the Court of Appeal’s decision in

Berky v Newport City Council [2012] EWCA Civ 378 is now the leading case in the

domestic context.

136. The Claimant in Berky sought judicial review of a grant of planning permission for a

supermarket on the basis of inadequate reasoning in EIA screening, bias and

irrationality, but failed at the first hurdle; promptness. On appeal from refusal of

permission, the Court of Appeal gave obiter but extensive consideration to the

question of whether or not Uniplex and legal certainty applied not only to excluded

promptness from the EIA ground but also the “domestic” grounds, and further

whether s.31(6) of the Senior Courts Act 1981 might allow refusal of relief on

grounds of delay even if Uniplex barred reliance on a lack of promptitude. Their

Lordships gave three differing opinions on the subject. A majority felt that s.31(6)

would offend the principle of legal certainty just as much as the promptness

requirement, but equally the Court was happy to countenance a differing approach to

domestic as opposed to EU grounds.

137. It remains to be seen how long it remains the position that there are different timing

requirements for making a claim according to whether the claim raises matters of EU

law or not.

Consultation

45

138. R (Friends of the Earth, Homesun, Solar Century & Others) v Secretary of State for

Energy and Climate Change [2012] EWCA Civ 28, is authority for the proposition

that, exceptionally, a challenge to a potential decision can be brought during a

consultation period on the decision. The proposed change of position there would

have affected vested rights to feed-in-tariffs for small scale renewables and done so

retrospectively from their implementation, contrary to the scheme of the enabling act.

The Court of Appeal readily upheld Mitting J at first instance and struck down the

consultation. The case turned more on principles of general application than anything

specific to environmental law, but is perhaps another example of judicial willingness

to engage with a challenge because it touches environmental issues, so of interest to

all, rather than particularly individual interests.

139. In this context, note the Ministry of Justice Consultation Paper entitled “Judicial

Review Proposals for Reform” Ministry of Justice, Consultation Paper CP25/2012.

Administrative decision making and expert evidence and reasons

140. Inspectors, who are experts in their own right, are finding it tricky to know how much

they need to explain the view they take of expert evidence before them. The Courts

also appear to be struggling. The present position is that Inspectors need only give the

main reasons for their decisions, not why it is they have decided to reject the evidence

of a particular expert. In Macarthur v Secretary of State for Communities and Local

Government [2013] EWHC 3 (Admin) Lang J made clear that she thought the Court

of Appeal in RWE v N Power had got it wrong with the consequence that ‘an

unsuccessful party will usually not know, in any detail, why the evidence of an expert

has been accepted or rejected by the Inspector and therefore will not be able to discern

whether the Inspector has correctly understood and applied the evidence of the

expert’. She was however bound to follow the Court of Appeal and did so. It looks

like this issue will rumble on.

Costs protection in environmental cases and the Aarhus Convention

141. Funding has always been an issue for administrative challenges to environmental

decision-making. However exercised a person or a group might be about, say, a

46

negative screening decision for EIA Directive Annex II development, or a worryingly

imprecise condition to an environmental permit, it requires real commitment to take

on a substantial costs risk in an area of litigation where ATE insurance has been

notoriously difficult to come by and where there might well be no impact on that most

British obsession (property prices). The natural response has been to seek whatever

costs protection the system allows. Equally, the courts have generally, though not

invariably, been prepared to accept that challenges to environmental decision-making

are brought for the benefit of all, relieving claimants of the need to make the running

on each and every PCO hurdle.

142. As a result, environmental judicial review has tended to lead the way in seeking to

relax the Cornerhouse requirements for PCOs, often with a leg up from the Aarhus

Convention. In the case of such as EIA challenges, the incorporation of Aarhus

Art.9(4) into the EU Directives improved matters, but even there the uncertain nature

of the position as regards the actual cap did much to put many potential claimants off.

Whilst the courts struggled with the practical implementation of the Aarhus Art.9(4)

requirement that litigation not be “prohibitively expensive”, and whether this was to

be decided on an 'objective' basis (by reference to the average citizen) or on a

'subjective' basis (ie the Claimant in question), we spent what seemed an age waiting

for the CJEU to respond to the Supreme Court’s reference in C-260/11 Edwards v

Environment Agency:

How should a national court approach the question of awards of costs against

a member of the public who is an unsuccessful claimant in an environmental

claim, having regard to the requirements of Article 9 (4) of the Aarhus

Convention, as implemented by Article 10a 85/337/EEC and Article 15a

96/61/EEC (“the Directives”)?

Should the question of whether the cost of the litigation is or is not

prohibitively expensive within the meaning of Article 9 (4) of the Aarhus

Convention as implemented by the Directives be decided on an objective basis

(by reference, for example, to the ability of an ordinary member of the public

to meet the potential liability for costs), or should it be decided on a subjective

basis (by reference to the means of the potential claimant) or upon some

combination of these two bases?

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Or is this entirely a matter for national law of the Member State subject only

to achieving the result laid down by the Directives, namely that the

proceedings in question are not “prohibitively expensive”?

In considering whether proceedings are, or are not, “prohibitively expensive,

is it relevant that the claimant had not in fact been deterred from bringing or

continuing with the proceedings?

Is a different approach to these issues permissible at the stage of (i) an appeal

or (ii) a second appeal from that which requires to be taken at first instance?

143. In the meantime, Jackson LJ spent some time considering environmental challenges

for the purposes of his report. From the summary of consultation responses, it seems

he was rather impressed by the views of a certain Cambridge firm well known for its

claimant work in the environmental field (that claimant lawyers had no need of CFA

uplifts, and that it should be possible to successfully prosecute an “environmental”

judicial review for no more than some £30,000).

144. Until 1st April 2013, funding had been less of an issue for individuals seeking to

uphold private environmental rights in the face of a nuisance, these claims being

treated much like personal injury litigation, but the abolition of recoverable ATE,

without an equivalent to the QOCS regime that will now cover personal injury, means

that it will now come to take centre stage.

145. Oral argument in Edwards was heard by the CJEU last autumn. The Commission

intervened on the side of Denmark and Greece and Ireland on behalf of the UK.

Advocate General Kokott suggested in her opinion, at §2, that “in examining whether

costs of proceedings are prohibitive, account must be taken of the objective and

subjective circumstances of the case, with the aim of enabling wide access to justice.”

She said further that “it is necessary always, hence including when determining the

costs which can be expected of claimants having capacity to pay, to take due account

of the public interest in environmental protection.”

146. On 11 April 2013, the CJEU presented its judgment, which advanced the position

very little. It held that the requirement that “judicial proceedings should not be

prohibitively expensive means” that persons covered by the relevant European

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legislation “should not be prevented from seeking, or pursuing a claim for, a review

by the courts that falls within the scope of those articles by reason of the financial

burden that might arise as a result.” The judgment went on, at §45:

Where a national court is called upon to make an order for costs against a member

of the public who is an unsuccessful claimant in an environmental dispute or, more

generally, where it is required – as courts in the United Kingdom may be – to state

its views, at an earlier stage of the proceedings, on a possible capping of the costs

for which the unsuccessful party may be liable, it must satisfy itself that that

requirement has been complied with, taking into account both the interests of the

person wishing to defend his rights and the public interest in the protection of the

environment.

46. It must therefore be held that, where the national court is required to determine,

in the context referred to in paragraph 41 of the present judgment, whether judicial

proceedings on environmental matters are prohibitively expensive for a claimant, it

cannot act solely on the basis of that claimant’s financial situation but must also

carry out an objective analysis of the amount of the costs. It may also take into

account the situation of the parties concerned, whether the claimant has a

reasonable prospect of success, the importance of what is at stake for the claimant

and for the protection of the environment, the complexity of the relevant law and

procedure, the potentially frivolous nature of the claim at its various stages, and the

existence of a national legal aid scheme or a costs protection regime.

147. It seemed that we had waited a very long time to be told nothing that we did not

already know.

148. However, Lord Justice Jackson had by then reported and wheels had begun to turn at

the Ministry of Justice, in the form of a costs regime for judicial review cases falling

within the scope of the Aarhus Convention and the EU Public Participation Directive.

A PCO would limit the liability of a claimant to pay a defendant’s costs to £5,000,

and £10,000 in the case of an organisation. It would limit the liability of a defendant

to pay the claimant’s costs to £35,000.

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149. These reforms have now been introduced into the CPR by CPR Rule 45.41 and

following:

a. An Aarhus Convention claim is now defined in CPR 45.41 as “a claim for

judicial review of a decision, act or omission all or part of which is subject

to the provisions of the UN ECE Convention on Access to Information,

Public Participation in Decision making and Access to Justice in

Environmental Matters… including a claim which proceeds on the basis

that the decision, act or omission, or part of it, is so subject.”

b. CPR 45.42 provides that the Claimant must state on the claim form that the

claim is an Aarhus Convention claim and that the Claimant wishes the

special rules to apply.

c. Costs are limited as above.

d. The Defendant is able to challenge whether the claimant is in fact an

Aarhus Convention claim under CPR 45.44.

e. However, the Defendant does so at its own substantial costs risk – if it

loses that argument it will pay the costs of the issue on the indemnity

basis.

150. We are still waiting for the first authoritative decision on the new Rules, the High

Court having sidestepped the issue when considering a challenge to consent for

demolition of a listed building on the Sheffield Hospital case last week. It is fair to

say that previous judicial sidesteps, in relation to, say, non-EIA town and country

planning (e.g. R (Macrae) v Herefordshire [2012] EWCA Civ , where the Court of

Appeal was also able to sidestep promptness in non-EIA cases) and private nuisance

(e.g. Austin & Others v Miller Argent (South Wales) Ltd ([2011] EWCA Civ. 928,

where £200 per claimant in a group action not prohibitively expensive, but the Court

of Appeal did not need to decide whether private nuisance might fall within Aarhus as

a matter of principle given the points taken on appeal had not been run below) mean

that there is not a wealth of previous authority to draw upon. However, drawing the

threads together from case law and the proposed amendments to the EIA Directive,

we can note the following:

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The courts having shown a determination to keep the application of the EIA

Directive within bounds, limited to projects likely to have “significant effects”

on the environment (e.g. Loader) and the Commission having taken the view

that some further clarification of the EIA Directive is required to achieve the

same end.

That would suggest that it is unlikely that the courts will permit Art.9(3) Aarhus

to be interpreted such that it applies to each and every challenge to a grant of

planning permission, let alone private nuisance proceedings. Particularly when

that approach would arguable render Art.9(2) otiose.

However, the removal of Legal Aid, and non-recoverability of ATE, are

powerful factors weighing on the judicial mind, and might prise Art.9 open to a

wider cohort.

151. This author’s forecast is that only those claimants bringing claims squarely within

Art.9(1) or 9(2) will feel confident of protection under 45.41 etc.

Other Areas - Case Digest

Air quality

152. In March 2013 the Supreme Court heard the case of R(oao ClientEarth) v Secretary

of State for Environment Food and Rural Affairs (UKSC 2012/0179). The issue

arising is whether, as regards areas where compliance with nitrogen dioxide limits set

out in Directive 2008/50/EC (the Air Quality Directive) cannot be achieved by 1

January 2010, the Air Quality Directive requires the Respondent to prepare an air

quality plan which demonstrates compliance by 1 January 2015.

153. The case was heard in the Supreme Court and their Lordships made a reference to the

CJEU with the following questions:

Where in a given zone or agglomeration conformity with the limit values for

nitrogen dioxide cannot be achieved by the deadline of 1 January 2010

specified in annex XI of Directive 2008/50/EC (“the Directive”), is a Member

State obliged pursuant to the Directive and/or article 4 TEU to seek

postponement of the deadline in accordance with article 22 of the Directive?

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If so, in what circumstances (if any) may a Member State be relieved of that

obligation?

If the answer to (i) is no, to what extent (if at all) are the obligations of

Member State which has failed to comply with article 13 , and has not made

an application under article 22 , affected by article 23 (in particular its second

paragraph)?

In the event of non-compliance with article 13 , and in the absence of an

application under article 22 , what (if any) remedies must a national court

provide as a matter of European law in order to comply with article 30 of the

Directive and/or article 4 or art19 TEU ?

154. In addition, the court held that, in any event, the UK was in breach of Article 13 of the

Air Quality Directive (which the Government acknowledged) and that, in this regard

at least, enforcement action could now be taken.

Freedom of Information

155. In Birkett v DEFRA [2011] EWCA Civ 1606, the Court of Appeal has held that a

public authority that holds environmental information for the purposes of the

Environmental Information Regulations 2004 and, faced with a request for

information made pursuant to the Regulations, refuses to give disclosure and states its

reliance upon one of the permitted exceptions in accordance with Reg.14(3), may then

rely as of right upon a different exception or exceptions in proceedings before the

Information Commissioner and/or the First-Tier Tribunal (General Regulatory

Chamber) (Information Rights) so long as the new or additional exceptions are set out

within the notice of appeal, or response to a notice of appeal.

IPPC directive

156. The meaning of sows in subheading 6.6(c) of Annex 1 was considered in Møller v.

Haderslev Kommune (Case C-585/10). The Court found that the expression ‘places

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for sows’, in subheading 6.6(c) of Annex I to Directive 96/61, has to be interpreted as

meaning that it includes places for gilts.

Liability of parent for actions of subsidiary

157. The conclusions of the Court of Appeal in Chandler v Cape plc [2012] EWCA Civ

525 may prove of wider application than the asbestos personal injury litigation they

arose in.

158. In appropriate circumstances the law may impose on a parent company responsibility

for the health and safety of its subsidiary’s employees. Those circumstances include a

situation where, as in the present case: (1) the businesses of the parent and subsidiary

are in a relevant respect the same; (2) the parent has, or ought to have, superior

knowledge on some relevant aspect of health and safety in the particular industry; (3)

the subsidiary’s system of work is unsafe as the parent company knew or ought to

have known; and (4) the parent knew or ought to have foreseen that the subsidiary or

its employees would rely on it using that superior knowledge for the employee’s

protection.

Contaminated Land

159. The Administrative Court has granted a declaration that a grant of planning

permission was unlawful because of failure to address contaminated land issues; R.

(on the application of Gawthorpe) v Sedgemoor DC [2012] EWHC 2020 (Admin).

EU emissions trading and aviation

160. In Case C-366/10, Air Transport Association of America et al. v. Secretary of State

for Energy and Climate Change, the European Court upheld the validity of the

application of EU emissions trading to passenger aircraft. The decision repays careful

attention on various fronts, in particular the close analysis of the relevance of

international agreements and public international law generally to the approach in

considering Directives. In the event, no incompatibility was found between Directive

2008/01 and the international material, in particular the EU/US “Open Skies”

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Bilateral Agreement signed in Washington DC in 2007. The key point was that the

EU ETS scheme was (a) non-discriminatory and (b) was not in the nature of an

obligatory levy, duty, tax, fee or charge.

Rylands & Fletcher and fire

161. The Court of Appeal has handed down judgment considering the application of the

rule in Rylands v Fletcher to cases involving the escape of fire; Mark Stannard (t/a

Wyvern Tyres v Gore [2012] EWCA Civ 1248.

162. The Appellant carried on business supplying, fitting and balancing car and van tyres.

The business was conducted at a Trading Estate in Hereford. The Respondent’s

premises were behind the Appellant’s. At first instance the Recorder found that the

defendant “squeezed stock” into the room, some tyres being “haphazardly and

untidily” and others were “piled high in ‘chimneys’” ”, some of them being located

along the wall which divided the Respondent’s premises from the Appellant’s. A fire

broke out as a result of an electrical problem and spread to the Respondent’s premises.

The fire spread with great intensity and rapidity. A claim was brought in both

negligence and strict liability under Rylands v Fletcher. The negligence claim was

dismissed as there was no evidence of negligence in maintaining the electrical system

or appliances. The Recorder found that there had plainly been an ‘escape’ within the

meaning of the Rylands v. Fletcher rule and that liability therefore turned on whether

or not the Appellant’s activities on the premises were dangerous and a non-natural use

of his land. Although the tyres were not themselves flammable, the Recorder found

that they had a special fire risk quality if ignited and that risk was foreseeable. He

also considered that the numbers involved and haphazard means of the storage of

tyres was a state of affairs created by the Appellant that was out of the ordinary.

Finding that to be non-natural use, judgment was entered for the Respondent. The

Appellant appealed on the ground that the Recorder had erred in his application of the

test for strict liability under the rule in Rylands v Fletcher as applied to fire cases.

163. The Court of Appeal allowed the appeal, Ward L.J. finding that the proper approach

was:

(1) The defendant must be the owner or occupier of land.

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(2) He must bring or keep or collect an exceptionally dangerous or mischievous

thing on his land.

(3) He must have recognised or ought reasonably to have recognised, judged by the

standards appropriate at the relevant place and time, that there is an exceptionally

high risk of danger or mischief if that thing should escape, however unlikely an

escape may have been thought to be.

(4) His use of his land must, having regard to all the circumstances of time and

place, be extraordinary and unusual.

(5) The thing must escape from his property into or onto the property of another.

(6) The escape must cause damage of a relevant kind to the rights and enjoyment of

the claimant’s land.

(7) Damages for death or personal injury are not recoverable.

(8) It is not necessary to establish the defendant’s negligence but an Act of God or

the act of a stranger will provide a defence.

164. The next question was whether there was any other or some special rule for cases

involving damage caused by the spread of fire. Cases of fire damage were likely to be

very difficult to bring within the rule because: (1) it was the “thing” which had been

brought onto the land which must escape, not the fire which was started or increased

by the “thing”; (2) while fire may be a dangerous thing, the occasions when fire as

such was brought onto the land may be limited to cases where the fire had been

deliberately or negligently started by the occupier or one for whom he was

responsible; and (3) in any event, starting a fire on one’s land may well be an ordinary

use of the land. Applying these principles to the case under appeal:

(1) The “thing” brought onto Wyvern’s premises was a large stock of tyres.

(2) Tyres, as such, were not exceptionally dangerous or mischievous.

(3) There was no evidence that Mr Stannard recognised nor ought he reasonably to

have recognised that there was an exceptionally high risk of danger or mischief if

the tyres, as such, should escape.

(4) The tyres did not escape. What escaped was the fire, the ferocity of which was

stoked by the tyres which were burning on, and remained burning on, Wyvern’s

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premises. The Recorder had been wrong to conclude it was the escape of fire that

brought the case within Rylands v Fletcher principles.

(5) In any event, keeping a stock of tyres on the premises of a tyre-fitting business,

even a very large stock, was not for the time and place an extraordinary or unusual

use of the land. Here again the Recorder erred.

(6) Therefore Rylands v Fletcher liability was not established and, no negligence

having been proved, the claim failed and the appeal would be allowed.

JAMES BURTON

Thirty Nine Essex Street, WC2R 3AT

1st July 2013

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