Planning and Environmental Law
Update
10th November 2015
Environmental Case Law Update
Richard Wald
Topics
•
CONSERVATION, BIRDS AND HABITATS
•
NUISANCE
• ENVIRONMENTAL SENTENCING
•
AARHUS & COSTS IN ENVIRONMENTAL JR
Conservation, Birds & Habitats
• R(Badger Trust) v SSEFRA & Natural England [2014] EWCA
Civ 1405
• RSPB v SSEFRA & (1) BAE Systems (2) Natural England
[2015] EWCA Civ 227
• R (Savage) v Mansfield DC & Lindhurst Group [2015] EWCA
Civ 4
• Diane Smyth v SSCLG & Ors. [2015] EWCA Civ 174
• R (Bancoult) v SSFCA [2014] EWCA Civ 708
Badger Trust
Facts:
• Appeal by the “leading voice for badgers in the UK” [2] v refusal of JR of decision
to cull to eradicate “the most pressing animal health problem in England” (bTB)
[1].
• SS issued policy on bTB & badger control in Dec 2011 (2 pilot cull areas,
overseen by IEP) & guidance (s15(2) NERCA 2006) to NE re grant of licenses
(s10(2)(a) PBA 1992).
• On 05.03.14 the IEP recommended improvements to effectiveness and
humaneness but were not retained beyond the 1st season.
• Foreward to 2011 doc referred to IEP underpinning any decision to extend the
cull.
Issue:
• Did the Cl. have a substantive legit. expectation (LE) that IEP would be retained
until the cull was demonstrably effective and humane?
Badger Trust
CoA Held:
• CA held no clear, unambiguous and unqualified promise to establish a LE (per Bingham
LJ in MFK Underwriting [24-26]) that IEP would be engaged beyond a 6-week pilot period.
• 2011 Foreward could not be relied upon and a policy could not generally be construed by
ref. to an earlier doc created for a different purpose.
• Nor could Hansard reports of DEFRA Ministers “in the hurly burly of Question Time” found
a LE.
• In any event SS guidance indicated that culling, once commenced, was to continue for a
minimum of 4 yrs. and the IEP envisaged no ongoing role for itself.
Comment:
• Detailed textual construction / paper chases / Hansard all unlikely to ever found a LE
given requirement of clarity.
• A post Reprotech e.g. of judicial bar to fettering of discretion.
• Any LE would not have bound NE, which carried out the cull pursuant to guidance, in any
event.
RSPB
Facts:
• BAE aerodrome for manufacture/testing of aircraft near SPA with gulls
resulting in risk of bird strike.
• NE granted BAE s28E WCA 1981 consent for a partial cull only.
• SS allowed BAE’s appeal (under s28F) and directed NE to consent to a full
gull cull and operations to maintain reduced population levels.
Issue:
• Was the SS entitled to direct NE to grant consent to cull.
RSPB
CoA Held:
• The SS was required to assess the likely impact of a plan/project and to
agree to it only after ascertaining it would not adversely affect the integrity
of a SAC or SPA (Art 6.3 Habitats Directive)
• The SS was entitled to reach the judgments she did as to the conservation
objectives of the site, the scale of the cull which would not adversely affect
the site’s integrity and that the cull would have only a temporary effect on
gull habitat.
Comment:
• Judicial irritation at EU legislation and case law reminiscent of Stanley
Burnton J in Castle Cement v EA
• Most (the 1st 4/5s) of the judgment unravel relevant law. The details of the
reasoning of the decision were regarded as secondary [37].
R (Savage) v Mansfield District Council
Facts:
• Outline PP granted for mixed use development nr Harlow Wood containing
nightjar and woodlark. NE, consulted due to nearby SSSI, advised of potential
SPA and to take a risk-based approach
• C made proposals for wildlife protection including physical barrier, a ranger
service and cat restrictions.
• NE neither objected not supported, given no SPA
• PP granted subject to a s106 compensation ouster
Issues:
• Did the grant of PP fail to follow advice?
• Was an AA necessary?
• Did the s106 contravene CIL Regs 2010 Reg 122 because
used to overcome a planning objection?
R (Savage) v Mansfield District Council
CoA Held:
• Since woodland not an SPA no need for an AA or obligation to consult NE,
which had power to advise (as if a non-stat. consultee) under Reg 129 of
Conservation of Habitats & Species Regs 2010 but the weight to attach to
that advice was for the LA Risk-based approach referred to the risk of a
reassessment (i.e. the financial risk of paying compensation).
• Cl. 6 of s106 only operative if PP revoked and dev acceptable w/o it [66-70]
Comment:
• s106 excluding compensation was acceptable means of risk management.
• LPA’s “decision tree” re future risk an internal document and not a MPC
• Ct’s reluctance to interfere with an imaginative solution to a possible future
problem
Diane Smyth v Secretary of State for Communities and Local Government
Facts:
• Challenge to PP for 65 residential units 350 m from nearest part of Exe Estuary SPA in Devon
(incl. the Dawlish Warren SAC and SSSI). The entire SPA is protected under EU law (Dir. 92/43).
• LPA carried out screening and appropriate assessments (following finding that the development
would have a significant effect on the area) and concluded no significant adverse effect, given
mitigation.
• But permission refused for reasons unrelated to the Directive but granted on appeal
Issue:
• Whether the grant of PP complied with Art.6(3) of Habitats Dir, given uncertainty of mitigation
measures through contrib. to proposed SANGS
• Had the Inspector failed to comply with the precautionary principle given that he could not be
certain of no adverse effects on the area?
• Did mitigation measures provide sufficient assurance?
Diane Smyth v Secretary of State for Communities and Local Government
CoA Held:
• CoA undertook in-depth analysis of case law which requires strict
precautionary approach under Habitats Directive.
• Significant effect on the area only due to in-combination effects, whilst
development itself was minor
• Ins had further info (ecology report) and was well placed to assess Art.6(3)
compliance and need for an AA
Comment:
• Confirmation that the standard of review in Habitats cases is Wednesbury
• Usual judicial deference to an expert decision-maker
Bancoult (3)
Facts:
• Expulsion of Chagossians from BIOT in 1960’s to allow the est. of a US air base (Diego
Garcia etc.).
• Enactment of world’s largest MPA by SSFCA on 01.04.2010, following consultation.
• WikiLeak Cable records 2009 meeting between US and UK officials and Cl sought to rely
on it as evidence of improper purpose.
• Div Ct (Richards LJ and Mitting J) ruled cable inadmissible because inviolable under
Vienna Convention on Diplomatic Relations (VCDR) 1961.
Issues:
• Was the MPA enacted for the improper purpose of preventing resettlement and should the
Cable have been admitted as evidence of that?
• Was the consultation flawed for failure to disclose that the MPA would interfere with
Chagossians traditional fishing rights?
• Did the decision breach the UK’s EU obligations?
Bancoult (3)
CoA Held:
• Cable was not protected by VCDR 1961 and was admissible. However, its exclusion had
made no difference to the XX of UK officials.
• The consultation had properly addressed the MPA’s impact and had concluded that there
was no Chagossian fishing at the time of the decision.
• No unlawful breach of the Chagossians’ right to associate with the EU under EU law.
Comment:
• A rare example of an improper purpose case because of the unusual circumstances
enabling an insight into HMG motivation.
• An illustration of the wide range of case arising in env. Law and where
conservation/habitats can take you
• Case currently being appealed to the SC along with Bancoult (2) (revisited).
Nuisance
• Coventry v Lawrence [2014] UKSC 13
• Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014]
Env LR 28
Coventry v Lawrence
Facts:
• 1st R operated a speedway/stock-car stadium est. 1976. 2nd R operated a motocross track
nearby. PP granted covering both and CLEUD covered stock-car racing.
• 2006 L moved to a bungalow near the stadium
Issues:
• Established prescriptive right to commit what would otherwise be a nuisance?
• Defence that Cl “came to a nuisance”?
• Could a Def rely on the actual use of his premises when assessing the character of the
area?
• Whether PP for a particular use relevant to whether that use is a nuisance?
• Correct approach re injunction to restrain nuisance / damages in lieu?
Coventry & Ors v Lawrence & Anor
SC Held:
• Poss. to obtain by prescription a right to what would otherwise be a nuisance [41]
• No defence that Cl came to a nuisance, but may be if Cl changes use thereby [58]
• D may rely on activities as part of character but only to the extent that they do not constitute
a nuisance [74-5]
• PP does not legitimise a nuisance [90,94]
• Whether to award damages or grant injunction is a matter of judicial discretion with public
interest being a material consideration. The 1st instance injunction was restored in this case.
Comment:
• One of, if not the most important environmental decisions of last year
• Lord Neuberger expressed ‘grave concern’ re the level of costs & ATE insurance premia
• Consistent with Barr v Biffa and confirms that the view of a regulator re whether an activity is
acceptable should not affect private rights and common law nuisance should be available to
vindicate those rights
Northumbrian Water Ltd v Sir Robert McAlpine Ltd
Facts:
• SRM block a private drain in Newgate St. during piling works at Eldon Sq. in
Newcastle.
• No negligence since the drain and damage were unforeseeable (despite
1908 plan in local museum subsequently found).
Issues:
• Was SRM negligent in failing to search museum archives and locate private
drain?
• Was foreseeability relevant where SRM caused an escape and physical
harm (Cliff v Welsh Office [1999] 1 WLR 796)?
Northumbrian Water Ltd v Sir Robert McAlpine
CoA Held:
• Judge was right to dismiss negligence claim as search of museum not reasonable.
• As per Cambridge Water v Eastern Counties Leather [1994] 2 A.C. 264:
(i) If D’s use of land was reasonable then not liable even where interference with neighbour’s
land.
(ii) No liability for isolated escape unless Rylands v Fletcher
(iii) Foreseeability of the type of harm was necessary.
• Claim failed because the escape of concrete was unforeseeable.
Comment:
• Case highlights the importance of due diligence and site investigations in risk assessments.
• Provided reasonable precautions have been taken negligence claims can be defended
Environmental Sentencing
• R v Thames Water Utilities Ltd [2015] EWCA Crim 960
• Natural England v Day [2014] EWCA Crim 2683
R v Thames Water Utilities Ltd [2015]
EWCA Crim 960
Facts:
• Discharge from Appellant’s sewage pumping station driven by 2 pumps.
• Both pumps failed when clogged with discarded rags.
• In the previous 5 months >16 failures of the pumps and pre-discharge
alarms went unnoticed. Recorder imposed £.25M
• Site close to a very special nature site.
Issues:
• Correct approach to sentencing?
• Whether this fine should be reduced.
R v Thames Water Utilities Ltd
CoA Held:
• Guidelines inapplicable to very large organisations.
• CJA 2003 ss142-3 & 164 therefore a suitable starting point.
• Sentences hitherto had failed to punish offenders by reference to their particular features.
• Remedial measures were mitigation but Def’s size even more important where negligent
and past record also relevant. £.25k considered lenient.
Comment:
• 1st case of its kind to come before a court since the Sentencing Council’s guideline on
environmental offences.
• No longer just a matter of the punishment fitting the crime, but now must fit the criminal too.
• cf PI damages.
• Clear that an even higher fine would have been imposed here (if x-appealed).
Natural England v Day
Facts:
• Appeal v conviction under WCA 1981 s28E(1) and s28P(1) & £.45k fine
• D owned woodland, partly SSSI and felled trees without NE permission. Then threatened to
prosecute disgruntled residents for trespass and pleaded guilty
• D caused the felling by instructing his estate manager to clear wood for pheasant shooting
(after which change of plea).
Issues:
• Correct to apply Empress Car?
• Correct to take account of conduct after offence?
• Did fine reflect D’s culpability and was it proportionate?
• Relevance of NE agreeing to summary trial?
• Personal wealth relevant?
• Conviction opprobrium relevant?
Natural England v Day
CoA Held:
• Causation not in issue, given guilty plea. But Empress Cars likely to apply
• Post offence conduct was an aggravating circumstance
• Fine proportionate given (i) D’s wealth (ii) public interest in SSSIs (iii) need
for deterent.
• D’s election of trial by indictment renders NE’s position irrelevant.
• D’s means (£300m.) were relevant.
• Opprobrium an intentional effect of conviction
Comment:
• A pre-guidelines judgment reflecting similar principles to Thames Water
some months later.
• A sea change in environmental sentencing.
Aarhus & Costs in Environmental JR
• Austin v Miller Argent [2014] EWCA Civ 1012
• Venn v SSCLG [2014] EWCA Civ 1539
• R(HS2AA) v SSfT [2015] EWCA Civ 203
Article 9 of the Aarhus Convention
• Art. 9(1) – access to review procedure for any person whose request for
environmental information has been ignored, refused or inadequately
answered
• Art. 9(2) – access to review procedure for members of the public concerned
to challenge substantive or procedural legality of decisions, acts or
omissions subject to public participation provisions of art. 6
• Art. 9(3) – access to administrative or judicial procedures for members of
the public to challenge other acts or omissions which contravene provisions
of national law relating to the environment
• Art. 9(4) – these procedures shall provide adequate and effective remedies,
and be fair, equitable, timely and not prohibitively expensive.
Aarhus and Costs
•
R(Corner House Research) v SSTI [2005] EWCA Civ 192
PCOs to be awarded only in exceptional circumstances and according to the
principles set out by the CoA in that case
•
R(Buglife) v Thurrock Thames Gateway Development Corp. [2008] EWCA Civ 1209:
“there should be no difference in principle between the approach to PCOs in cases
which raise environmental issues and the approach in cases which raise other serious issues and
vice versa”
(paras 17-18)
•
Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, per Carnwath LJ:
“…The UK may be vulnerable to action by the Commission to enforce the
Community's own obligations as a party to the treaty. However, from the point of view of a
domestic judge, it seems to us (as the DEFRA statement suggests) that the principles of the
Convention are at the most something to be taken into account in resolving ambiguities or
exercising discretions (along with other discretionary factors including fairness to the defendant).”
(para 44)
Aarhus and Costs cont.
• R(Garner) v Elmbridge BC [2010] EWCA 1006, per Sullivan LJ:
“…the Court of Appeal recognised in Morgan that some more specific
modification of our domestic costs rules may be required.”
(para 32)
• 24/08/11 - Decision of the Aarhus Compliance Committee ACCC/C/2008/33 that
the UK’s regime for costs in Aarhus environmental cases was not compliant with
Aarhus
• 19/10/11 - UK Government’s Consultation Paper CP16/11 Costs Protection for
Litigants in Environmental Judicial Review Claims
• 01/04/13 - CPR 45.41
CPR 45.41
“VII COSTS LIMITS IN AARHUS CONVENTION CLAIMS
Scope and interpretation
45.41
(1) This Section provides for the costs which are to be recoverable between the
parties in Aarhus Convention claims.
(2) In this Section, ‘Aarhus Convention claim’ means a claim for judicial review of a
decision, act or omission all or part of which is subject to the provisions of the
UNECE Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters done at Aarhus, Denmark on
25 June 1998, including a claim which proceeds on the basis that the decision, act or
omission, or part of it, is so subject.”
Other Environmental Claims
SSCLG v Venn [2014] EWCA Civ 1539
Question for the Court of Appeal: could the costs protection afforded to Environmental judicial
reviews be extended to other forms of environmental claim (here s.288 of the Town and Country
Planning Act 1990):
Answer: A reluctant no.
“…it is now clear that the costs protection regime introduced by CPR 45.41 is not Aarhus compliant
insofar as it is confined to applications for judicial review, and excludes statutory appeals and
applications. A costs regime for environmental cases falling within Aarhus under which costs
protection depends not on the nature of the environmental decision or the legal principles upon which
it may be challenged, but upon the identity of the decision-taker, is systemically flawed in terms of
Aarhus Compliance”
(per Sullivan LJ [34])