39 ESSEX CHAMBERS

ENVIRONMENTAL LAW UPDATE

25th February 2015

NUISANCE, COSTS & AARHUS

Catherine Dobson

Nuisance

Lawrence v Fen Tigers [2014] UKSC 13

(1) The fact that a planning authority or other regulator takes the view that an activity is acceptable should not affect private property rights and common law nuisance claims should be available to vindicate those rights.

“The grant of planning permission for a particular development does not mean that that development is lawful. All it means is that a bar to the use imposed by planning law, in the public interest, has been removed.” Lord Neuberger at [89]

NuisanceLawrence v Fen Tigers [2014] UKSC 13

(1) The fact that a planning authority or other regulator takes the view that an activity is acceptable should not affect private property rights and common law nuisance claims should be available to vindicate those rights.

“There is no principle that the common law should “march with” a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance ... there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights.”

Lord Neuberger at [92], citing with approval Carnwath LJ in Barr v Biffa

NuisanceLawrence v Fen Tigers [2014] UKSC 13

(2) an award of damages in lieu of an injunction might be the appropriate remedy in cases where the defendant’s nuisance-generating activity has significant public interest dimensions

Departure from Shelfer:

“a person by committing a wrongful act (whether it be a public company for public purposes or a private individual) is not thereby entitled to ask the court to sanction his doing so by purchasing his neighbour’s rights, by assessing damages in that behalf, leaving his neighbour with the nuisance, or his lights dimmed, as the case may be.”

Nuisance and costsLawrence v Fen Tigers (No 2) [2014] UKSC 13

“[The figures] give rise to grave concern even if one ignores the success fee and ATE premium. The fact that it can cost two citizens £400,000 in legal fees and disbursements to establish and enforce their right to live in peace in their home is on any view highly regrettable. The point is reinforced when one takes into account the value of their home, which is less than £300,000 (coupled with the effect of the nuisance on that value, £74,000 at the most) and the fact that there will have been very significant further “base costs” incurred as a result of four-day appeals in the Court of Appeal and this court. The point can equally forcefully be made from the point of view of the respondents. As relatively small business operators, they are not only having to fund their own costs, which presumably would be of the same order, but in addition they are going to have to pay some £240,000 towards the appellants’ costs. It is true that the respondents lost, but they were seeking to defend their businesses and they plainly had a reasonable case, as is evidenced by the fact that they won in the Court of Appeal.” Lord Neuberger at [35]

Nuisance and costsCommunications ACCCC/2013/85 and 68 to the Aarhus Convention Compliance Committee

• Private nuisance proceedings concerning environmental matters fall within the scope of Article 9 of the Convention

• By enacting section 46 of LASPOA 2012, the UK government made it prohibitively expensive for many individuals to bring claims in private nuisance in relation to environmental matters

• Private nuisance claims provide a key means of remedying and compensating environmental harm; removing the availability to take proceedings in private nuisance will result in gaps in access to environmental justice which cannot be filled by alternative remedies

Nuisance and Aarhus

Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012

“We agree with the judge that the public benefit is both relatively limited and uncertain in this case. We accept that her claim in private nuisance is sufficiently linked to the development because it is likely, at least indirectly, to raise issues concerning compliance with the planning conditions imposed to mitigate environmental harm. But having regard to the limited public benefit which this action would achieve, we are not satisfied that it falls within the scope of Article 9.3.” Elias LJ at [46]

Nuisance and Aarhus

Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539

Approved reasoning of Lang J [2013] EWHC 3546, who found at [16] that “some of the issues are pure planning, not environmental. But I have concluded that her first ground, which relates to the failure to apply Lewisham and London-wide policies on protecting gardens from development, does raise environmental matters, within the meaning of the Convention”.

EIA, SEA & NATURE CONSERVATION

Richard Wald

EIA, SEA and Nature ConservationCases considered:

1. R(Mouring) v W Berkshire Council [2014] EWHC 203 (Admin)2. R(Lionbrook) v Rugby BC [2014] EWHC 646 (Admin)3. R(Gilbert) v SSCLG [2014] EWHC 1952 (Admin) 4. R(Bucks CC & Ors.) v SSfT & HS2 Ltd [2014] UKSC 3 5. R(HS2 Action Alliance & Ors.) v SSfT & HS2 Ltd [2014] EWCA Civ 15786. R(Badger Trust) v SSEFRA & NE [2014] EWCA Civ 14057. RSPB v SSEFRA & (1) BAE (2) NE [2014] EWHC 1645 (Admin) 8. R(Bancoult) v SSFCA [2014] EWCA Civ 708 (“Bancoult (3)”)

Mouring Facts:• Cl JR’d PP for warehouse + office in AONB• 800 sq m with no public access• LPA relied on an automated questionnaire re EIA

checks.

Issues:• Was this a UDP (per Sched 2 para 10(b)) requiring

EIA (1999 Regs applicable but materially the same as the 2011 ones)?

• Had the LPA considered the matter at all?• If not, how should the Court’s discretion be

exercised?

MouringHeld:• AONB (i.e. ‘sensitive’ area) required EIA consideration, and

therefore also whether the proposal was Sched. 2 development (i.e. as a UDP).

• Whilst this is a matter for the LPA (Goodman), Sched 2 was to be given a wide and generous interpretation (Commission v Spain) and the proposal was capable of being a UDP.

• It would have been impossible to decide other than this was EIA development, so a screening opinion was required.

• Because a different outcome was possible, PP quashedComment: • Complexity of the EIA Regs can still elude LPAs and even

judges [24]. OR recommended refusal on grounds of harm to AONB but made no mention of EIA.

• Ct’s discretion exercised even though the building had been erected.

• Almost 2 years delay between PP (06.03.12) & Judgment (15.01.14). The Planning Court moves faster [1],[24].

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LionbrookFacts:• Cl JR’d PP for retail park

redevelopment outside Rugby• Proposal was altered post screening

and no further opinion givenIssues:• Could LPA rely on a –ve screening

opinion in 2011 for a revised proposal in 2012?

• Had LPA properly considered policy compliance?

• Had LPA failed to reconsider the proposal in light of a Lionbrook letter post-resolution notifying of an imminent rival application?

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LionbrookHeld:• Lindblom J found that “where it appears to the relevant planning

authority” (Reg 7 of 2011 Regs) allowed an LPA to judge whether changes called for a fresh opinion [46]-[52] and its decision not to require one here was “legally impeccable” [38] (Lebus and Berkeley distinguished [39] and [52]).

• On non EIA points, policy properly applied and rival application not material.

Comment: • Useful survey of EIA jurisprudence [15-22]• Cf Wheatcroft principles. Despite the rigours of e.g. Hoffmann in

Berkeley much is left to the LPA’s discretion• Relevant that the same officer dealt with both PAs and that

Lionbrook raised no EIA point in its PA objections

Gilbert

Facts: • Cl sought to quash (i) a –ve screening opinion made under

Reg 6 of the 2011 EIA Regs on 26.03.13 and (ii) the grant of PP of 27.03.13 for +’al vehicular activities at Bruntingthorpe Proving Ground

• The PP removed noise limiting Condition 1. • OR concluded that the use was appropriate & breaches of

temp PP ltd. SO concluded that BPG was in/nr a sensitive area but that significant effects on the env. were unlikely

Issues: Did the LPA fail to:(i) consider the precautionary principle which considering the

effectiveness of the noise control regime?(ii) consider cumulative effects?(iii) give intelligible, proper and adequate reasons?

GilbertHeld: • The precautionary principle must be considered

in the light of the stage of the decision-making process (Loader) [43]. Here the LPA reasonably concluded there would be no significant impact on the basis of the evidence at a 4-day Enforcement Inquiry and a 2-year noise trial (with only 4 breaches of noise conditions).

• Paras 9-10 of the SO made clear that cumulative impacts were considered and the reasons for it.

Comment: • Gilbert makes explicit what for a long time has

been implicit in EIA, namely that consideration of likely significant effects requires a precautionary approach.

Bucks CC

Facts• Appeal v a decision dismissing challenges to SSfT’s

proposals for HS2, contained in a DNS (Cm 8247 of 10/01/12), and proposing a hybrid bill process to implement the scheme.

• Select Committee not to consider issues of principle• 2nd & 3rd readings both subject to a Government

whipIssues• Was the hybrid bill process EIA compliant? • Did the DNS amount to a plan/programme requiring

SEA?

Bucks CC

Held: • Where a project is authorised by legislative acts it may be

exempted from the general scheme of the EIA Directive but will still need to comply with all EIA requirements. The Hybrid Bill process does so (per Lord Reed [56-118])

• DNS did not constrain Parliament and so did not require an SEA (per Lord Carnwath [40])

Comment: • Interesting analysis of development in an unusual context

and of the separation of powers and the parliamentary process.

• Cf pace of this litigation with e.g. Mouring

HS2 Action AllianceFacts:• JR of safeguarding directions (SDs) to “protect

the planned railway route from conflicting development before construction starts.”

• Full background set out by Lindblom J [2014] EWHC 2759 (Admin) [1-32] and adopted by Sullivan J

Issues:• Were the SD’s a plan/programme setting the

framework for future development consent?• Were the SD’s required by

legislative/administrative provisions?

HS2 AllianceHeld:• Lindblom J was right to conclude that the SDs did

not set the framework for development consent for projects and might have been achieved by ss74 & 77 of TCPA 1990 (which it was agreed did not do so).

• It was common sense that the SDs did not determine the extent of the HS2 project. The zone took its shape from the project which was pursued by specific legislation and not pursuant to any plan/project (Bucks CC applied [20]).

Comment: • In common with Bucks CC, it was critical that the

SDs did not constrain the decision-maker, but were rather procedural measures.

Badger Trust

Facts: • Appeal by the “leading voice for badger 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 improve 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 that IEP would be

retained until the cull was demonstrably effective and humane?

Badger TrustHeld: • CA held no clear, unambiguous and unqualified promise to

establish a legitimate expectation (LE) (per Bingham LJ in MFK Underwriting [24-26]) that IEP would be engaged beyond a 6-week pilot period.

• 2011 Foreward could nor 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 with resulting 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 a full gull cull and operations to maintain reduced population levels.

Issue: • Was the SS entitled to direct NE to grant consent to cull.

RSPBHeld: • 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 caselaw 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].

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)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• Case currently being appealed to the SC along with Bancoult (2)

(revisited).

ENVIRONMENTAL TAXES

Kelly Stricklin-Coutinho

Environmental Taxes

“An important instrument in the national and global response to climate change and evolving energy

policy”

“…regulation, incentives, quotas and voluntary agreements”

Environmental Taxes

What should an environmental tax do?

• Raise Revenue

• Behavioural change

– Explicit link to government environmental objectives– Encourages environmentally positive behavioural change– The more polluting the behaviour, the greater the tax levied

Environmental Taxes

UK Environmental Taxes• Landfill Tax

• Climate Change Levy

• EU Emissions Trading Scheme

• The Carbon Floor Price

• Carbon Reduction Commitment Energy Efficiency Scheme

• Aggregates Levy

Environmental Taxes

Landfill Tax

• £1.2 billion in 2014

• Transformed Industry – 1,140 site operators with 2000 sites in late 90s, now 209 operators with 700 sites

Environmental Taxes

Criticisms

• The bands are not sufficiently sophisticated to deal with different types of waste

• The measure is punitive rather than incentive

• Disputes over what is or isn’t taxable have lead to uncertainty and have arguably influenced market conditions

Environmental Taxes

Current issues

• Waste “used” at the site outside the scope of the tax

• Roads/engineering

• Layers of “fluff”?

• September 2009 – Legislation means “fluff” is taxable

• January 2014 – HMRC position – “fluff” was always taxable

Environmental Taxes

Climate Change Levy

• Tax on the supply of certain energy products (electricity, gas, coal for light, heat and power) by business consumers

• Does not apply to domestic consumers or charitable non business use

• Intended to change business behaviour to either reduce energy consumption or use renewable energy sources

• Includes Carbon Price Floor, which taxes the use of fossil fuels

Environmental Taxes

Challenges

• BAA Aggregates Levy challenge

• Other State Aid challenges

• Current litigation likely to run to another 5-10 years

• New issues likely to arise – e.g. Gas Extraction for Landfill

Any questions?

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