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 DayFacts:

• 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 Decision-

Making 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])