ENVIRONMENTAL LAW UPDATE FEBRUARY 2015 RICHARD WALD CATHERINE DOBSON

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1 ENVIRONMENTAL LAW UPDATE FEBRUARY 2015 RICHARD WALD CATHERINE DOBSON Part 1: Nuisance, costs and Aarhus Overview 1. In the days before statutory regulation, private nuisance claims provided an important means of providing effective environmental control. It might have been thought the advent of planning and environmental controls would limit the role for nuisance. However, a number of high profile cases before the appellate courts in recent years have confirmed that private nuisance claims provide a key means of remedying and compensating interferences with property rights and, in some cases, preventing environmental harm. 2. One of the central issues that has arisen is the relationship between the existing statutory controls and the ability of those affected to bring a claim in private nuisance. This issue was the subject the Court of Appeal s judgment in Barr v Biffa Waste Services Ltd [2012] EWCA 312. Last year, the issue was considered by the Supreme Court in Lawrence v Fen Tigers [2014] UKSC 13. Consistent with the Court of Appeal in Barr v Biffa, a majority of the Supreme Court held that the fact that an activity which is said to give rise to a nuisance is carried out in accordance with statutory controls (in Lawrence, the owners of the Fen Tigers had planning permission to carry out motocross at the stadium) is no answer to a claim in nuisance: There is no principle that the common law should march with a statutory scheme covering similar subject matter. Short of express 1

2 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 Lawrence confirms that (a) the view of a planning authority or other regulator on whether an activity is acceptable should not affect private property rights and (b) that common law nuisance claims should be available to vindicate those rights. 4. However, two further recent developments in the law of nuisance may make it more difficult to (a) to use private nuisance claims to bring an end to activities causing environmental harm and (b) fund a claim in private nuisance. 5. The first is the Supreme Court s decision, also in Lawrence v Fen Tigers, that 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. Having concluded that external regulation is not sufficiently authoritative a judgment on the public interest to feed into liability, the Supreme Court went on to say that the existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to cause a nuisance would be a factor in favour of refusing an injunction and compensating the claimant in damages. This idea is a departure from the orthodox position in the 19 th century case of Shefler, that a person ought not to be able to buy the right to commit a nuisance against land by paying damages. 6. In reaching this conclusion, the Supreme Court appeared concerned about the prospect of a court restricting or prohibiting an activity approved by a statutory body in the public interest. Balancing the public interest against interference with private property rights, the court concluded that could be adequately compensated in damages. However, it is difficult to see how paying the current owner of a property can adequately compensate for the environmental harm that may be caused; it will not provide a remedy for the broader environmental harms caused by the nuisance activity. It may be that the courts will need to weigh that in the balancing that they carry out. 1 Lord Carnwath in Barr v Biffa, approved by Lord Neuberger in Lawrence v Fen Tigers 2

3 7. The second development relates to the funding for nuisance claims. Funding a nuisance claim is difficult. They are expensive cases to run, involving potentially lengthy trials of fact and expert evidence in multiple disciplines. This became clear to the Supreme Court in Lawrence v Fen Tigers (No 2) [2014] UKSC 13 where it was revealed that the claimants legal costs (together with success fee and ATE insurance premium) ran to over 1m. 8. Such were the concerns about the scale of these costs that, in a highly unusual move, the Supreme Court agreed to entertain an argument from the respondent s counsel that an order to pay ATE insurance premium and a success fee amounted to an interference with their Article 6 rights. That issue was heard at the beginning of February 2015 and judgment is awaited. 9. Insofar as it relates to recovery of ATE premiums and the CFA success fee, the outcome of that hearing will soon become of historic interest only. That is because, following the Jackson reforms, it is no longer possible to fund nuisance claims under the CFA/ATE model. There is real concern that under the new costs regime it may not be possible for claimants with genuine grievances to access the courts to bring claims in private nuisance. The cost of running cases being high, the non-recoverability of CFA success fees makes nuisance cases less attractive for lawyers. As damages awarded for historic nuisance tend to be in the region of 2,000-3,000 per household per annum, there is little scope for costs to be recovered from the damages awarded. 10. The changes to the cost regime governing private nuisance claims has therefore been the subject of a complaint (communications ACCCC/2013/85 and 68) against the UK to the Aarhus Compliance Committee by the Environmental Law Foundation and Mrs Austin. It has been argued that the Jackson reforms have made it prohibitively expensive for many individuals to bring claims in private nuisance in relation to environmental matters contrary to Article 9 of the Aarhus Convention. Oral submissions on these 3

4 communications were heard in March 2014 and a recommendation from the Committee is awaited. 11. Meanwhile, in the domestic courts, efforts are being made to mitigate for the nonavailability of ATE insurance for private nuisance claims. The costs of the defendant in Lawrence v Fen Tigers was in the region of 600,000. In the absence of ATE insurance, the prospect of a costs award against an unsuccessful claimant makes a claim in private nuisance an impossible risk for most claimants to take. In Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, the claimant argued that the courts should grant protective costs orders to claimant in respect of a claim in private nuisance relating to noise and dust generated by an opencast coal mine in Merthyr Tydfil. The Court of Appeal refused Mrs Austin s application on the basis that it did not fall within the scope of Article 9(3) of the Aarhus Convention because, although the claim raised issues concerning compliance with planning conditions imposed to mitigate environmental harm, it was brought principally to protect private property interests and the action would achieve limited public benefits. 12. It is unclear how this decision can be reconciled with the Court of Appeal s decision (some months later) in Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539 that a section 288 challenge to a grant of planning permission for the construction of a new house in the garden of a Victorian terrace house fell within the scope of Article 9(3). In that case the Court of Appeal endorsed the reasoning of Lang J that because the claimant s case was that a policy restricting garden grabbing had not been properly applied, and there was evidence that garden-grabbing has considerable impact on the environment, the challenge amounted to a matter relating to the environment. 13. An application for permission to appeal the Court of Appeal s decision in Austin is currently before the Supreme Court. 4

5 Case summaries Nuisance/waste Lawrence v Fen Tigers [2014] UKSC 13 Manchester Ship Canal Company Ltd v United Utilities Water plc [2014] UKSC 40 Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] Env. L.R. 28, Costs/Aarhus Lawrence v Fen Tigers (No 2) [2014] UKSC 13 Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012 Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539 Communications ACCCC/2013/85 and 68 to the Aarhus Convention Compliance Committee Lawrence v Fen Tigers [2014] UKSC In Lawrence v Fen Tigers, a claim in nuisance was brought by two home-owners in relation to the noise generated by a motor sports stadium. Speedway racing had been held at the stadium since A certificate of lawful use for speedway racing had been obtained in 1997 and a series of temporary permissions had been granted for motocross racing since In 2006, the claimants moved into a bungalow around 500 metres from the stadium. The bungalow was built in the 1950s. They complained to the local planning authority, which subsequently issued an abatement notice. Following delays in complying with the abatement notices, the claimants brought a claim in private nuisance. 15. The claimants had argued successfully at first instance that the fact that a racing circuit had been authorised by various planning permissions was not relevant to the claim in nuisance. The judge made an injunction restricting the use of the stadium to 12 weekends a year. 5

6 16. The Court of Appeal reversed the first instance decision, holding that the claimants had failed to establish that the activities at the stadium constituted a nuisance. Jackson LJ, who gave the main judgment, held that the judge had gone wrong in holding that the actual use of the stadium, with planning permission, could not be taken into account when assessing the character of the locality for the purpose of determining whether an activity is a nuisance. 17. The Supreme Court reversed the Court of Appeal s decision and reinstated, subject to further submissions, the injunction made by the judge at first instance. The Supreme Court considered five issues: (1) The extent to which it is open to a defendant to contend that he has established a prescriptive right to commit what would otherwise be a nuisance by means of noise; (2) The extent to which a defendant to a nuisance claim can rely on the fact that the claimant came to the nuisance ; (3) The extent to which it is open to a defendant to a nuisance claim to invoke the actual use of his premises, complained of by the claimant, when assessing the character of the locality; (4) The extent to which the grant of planning permission for a particular use can affect the question of whether that use is a nuisance; (5) The approach to be adopted when deciding whether to grant an injunction to retrain a nuisance being committed. 18. Lord Neuberger, with whom Lords Mance, Clark and Sumption SCJJ agreed, delivered the lead judgment. 19. On the first, issue, the Supreme Court held that although there would be practical difficulties in establishing a prescriptive right to commit what would otherwise be a nuisance, it is possible to obtain by prescription a right to carry on an activity which would otherwise cause an actionable nuisance: para 41. 6

7 20. On the second issue, the Supreme Court reaffirmed the received view that it is no defence for a defendant to a nuisance claim to argue that the claimant case to the nuisance. Lord Neuberger noted that this approach is consistent with the fact that nuisance is a property-based tort, so that the right to allege a nuisance should run with the land : para 52. He also made clear that this would only be the case where there was no change of use in the claimant property, articulating the principle as follows: where the claimant in nuisance uses her property for essentially the same purpose as that for which it has been used by her predecessors since before the alleged nuisance started: in such a case, the defence of coming to the nuisance must fail : para On the third issue, Lord Neuberger held that the defendant s lawful activities should be taken into account when assessing the character of the locality, but only to the extent that those activities do not constitute a nuisance; and, if the activities could not be carried out without creating a nuisance, then they would have to be entirely discounted when assessing the character of the neighbourhood. That meant, Lord Neuberger said, that in the present case where the judge concluded that the activities at the stadium and the track were actually carried on in such a way as to constitute a nuisance, although they could be carried on so as not to cause a nuisance, the character of the locality should be assessed on the following basis that (i) it includes the stadium and the track, and (ii) they could be used for speedway, stockcar, and banger racing and for motocross respectively, but (iii) only to an extent which would not cause a nuisance : para Lord Carnwath SCJ disagreed with this approach. The cases were clear that an existing activity of the defendant contributes to the character of the locality against which any new of intensified use that may constitute a nuisance is to be considered: para 187. The question was also whether a change in the intensity of character of an existing activity resulted in a nuisance and this was a matter for the judge to decide as a question of fact and degree: para

8 23. The fourth issue followed on from Court of Appeal s decision in Barr v Biffa. The majority of the Supreme Court, Lord Carnwath SCJ dissenting on this point, held that the fact that the activity which is said to give rise to the nuisance has the benefit of a planning permission is no answer to a claim in nuisance. Lord Neuberger provided the following analysis of the effect of planning permission on private law rights (at paras 89 and 90): 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. Logically, it might be argued, the grant of planning permission for a particular activity in 1985 or 2002 should have no more bearing on a claim that that activity causes a nuisance than the fact that the same activity could have occurred in the 19th century without any permission would have had on a nuisance claim in those days. Quite apart from this, it seems wrong in principle that, through the grant of a planning permission, a planning authority should be able to deprive a property owner of a right to object to what would otherwise be a nuisance, without providing her with compensation, when there is no provision in the planning legislation which suggests such a possibility. 24. Lord Neuberger did, however, recognise that planning permission could be of some evidentiary relevance in a nuisance case, stating (at para 96): The fact that the planning authority takes the view that noisy activity is acceptable after 8.30 am, or if it is limited to a certain decibel level, in a particular locality, may be of real value, at least as a starting point in a case where the claimant is contending that the activity gives rise to a nuisance if it starts before 9.30 am, or is at or below the permitted decibel level. While the decision whether the activity causes a nuisance to the claimant is not for the planning authority but for the court, the 8

9 existence and terms of the permission are not irrelevant as a matter of law, but in many cases they will be of little, or even no, evidential value, and in other cases rather more. 25. In reaching this conclusion, Lord Neuberger approved Carnwath LJ s (as he then was) analysis in Barr v Biffa of the relationship between the common law of nuisance and statutory regulation (at para 92): The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century. 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. 26. Lord Carnwath disagreed with this analysis, distinguishing his own judgment in Barr v Biffa. In that case, Lord Carnwath said he was speaking about environmental regulation rather than planning control. In exceptional cases, he stated a planning permission may be the result of a considered policy decision by the competent authority leading to a fundamental change in the pattern of uses which cannot sensibly be ignored in assessing the character of the area against which the acceptability of the defendant s activity is to be judged : para The Justices agreed on the issue of remedies. The Supreme Court took the opportunity to signal a move away from the strict criteria derived from Shelfer [1985] 1 Ch 287 : para In Shelfer, the Court of Appeal had established as a default position that the claimant would be entitled to an injunction, but that damages could be given in lieu of an injunction in circumstances where: (1) the injury to the plaintiff s legal rights is small, (2) is one which is capable of being estimated in money, (3) is one which can be adequately 9

10 compensated by a small money payment, and (4) the case is one in which it would be oppressive to the defendant to grant an injunction. 29. Lord Neuberger summarised the approach that should now be taken at para 123 of his judgment: First, the application of the four tests must not be such as to be a fetter on the exercise of the court s discretion. Secondly, it would, in the absence of additional relevant circumstances pointing the other way, normally be right to refuse an injunction if those four tests were satisfied. Thirdly, the fact that those tests are not all satisfied does not mean that an injunction should be granted. 30. Although Lord Neuberger made clear that the question of public interest involved a balancing of all competing factors, he made the following general observations, at paras : The fact that a defendant s business may have to shut down if an injunction is granted should, it seems to me, obviously be a relevant fact, and it is hard to see why relevance should not extend to the fact that a number of the defendant s employees would lose their livelihood, although in many cases that may well not be sufficient to justify the refusal of an injunction. Equally, I do not see why the court should not be entitled to have regard to the fact that many other neighbours in addition to the claimant are badly affected by the nuisance as a factor in favour of granting an injunction. In some cases, the grant of planning permission for a particular activity (whether carried on at the claimant s, or the defendant s, premises) may provide strong support for the contention that the activity is of benefit to the public, which would be relevant to the question of whether or not to grant an injunction. Accordingly, the existence of a planning permission which expressly or inherently authorises carrying on an activity in such a way as to 10

11 cause a nuisance by noise or the like, can be a factor in favour of refusing an injunction and compensating the claimant in damages. This factor would have real force in cases where it was clear that the planning authority had been reasonably and fairly influenced by the public benefit of the activity, and where the activity cannot be carried out without causing the nuisance complained of. 31. On the question of quantum, Lord Neuberger stated (at para 128): A final point which it is right to mention on this issue is the measure of damages, where a judge decides to award damages instead of an injunction. It seems to me at least arguable that, where a claimant has a prima facie right to an injunction to restrain a nuisance, and the court decides to award damages instead, those damages should not always be limited to the value of the consequent reduction in the value of the claimant s property. While double counting must be avoided, the damages might well, at least where it was appropriate, also include the loss of the claimant s ability to enforce her rights, which may often be assessed by reference to the benefit to the defendant of not suffering an injunction. Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] Env. L.R For completeness, this review of recent cases in nuisance should include reference to two further cases. The first is Northumbrian Water Ltd v Sir Robert McAlpine Ltd [2014] Env LR 28. In that case, the Court of Appeal reviewed the authorities on the relationship between the law of nuisance and the rule in in Rylands v Fletcher. Moore- Bick LJ derived three key principles from the authorities: (i) although liability in nuisance has traditionally been regarded as strict, in the sense that it does not depend on proof of negligence, if the defendant s user of his land is reasonable, he will not be liable for interference with his neighbour s enjoyment of his land; 11

12 (ii) unless the case can be brought within the scope of the rule in Rylands v Fletcher, the defendant is not liable for damage caused by an isolated escape, i.e., one that is not intended or reasonably foreseeable. (iii) foreseeability of harm of the type suffered by the claimant is necessary for the defendant to be liable in damages for nuisance. 33. The Court rejected the Claimant s contention that there is a general rule imposing strict liability in respect of nuisance causing physical damage to property. On the facts, the claim failed because the escape of concrete from land occupied by Sir Robert McAlpine Ltd and the consequent damage to Northumbrian Water s sewer were unforeseeable. Manchester Ship Canal Company Ltd v United Utilities Water plc [2014] UKSC The second is the Supreme Court s decision in Manchester Ship Canal Company Ltd v United Utilities Water plc. That case involved a statutory sewerage undertaker s appeal against a decision ([2013] EWCA Civ 40) that the right of discharge onto third party property of the respondent owner of a private watercourse had not been transferred to private water companies as part of the privatisation process. 35. The Supreme Court held that sewerage companies do not enjoy an implied right under the provisions of the Water Industry Act 1991 to discharge sewage from outfalls created after 1991 into private canals or onto private land. They do, however, continue to have an implied right of discharge from pre-privatisation outfalls subject to the safeguards contained in the 1991 Act about foul sewage and interference with the assets of canal and other statutory undertakers, and payment of full compensation for damage caused. Costs & nuisance claims Lawrence v Fen Tigers (No 2) [2014] UKSC The hearing in Lawrence v Fen Tigers was restored for further hearing in May and June 2014, principally to consider whether the landlords could be liable for damages in respect of the nuisance in their capacity as landlords. The defendants took the opportunity to challenge the level of its costs liability. The judge had ordered that the 12

13 defendants should pay 60% of the claimants costs. The claimants costs amounted to around 1,067,000, comprising base costs, success fee and the ATE premium. 37. It was argued on behalf of the defendants that their rights under article 6 and A1P1 ECHR would be infringed if they were required by the court to pay 60% of the success fee and ATE premium. 38. This argument was received sympathetically by Lord Neuberger, who described the figures as very disturbing before going on to make the following comment (at para 35): 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. 39. Lord Neuberger went on to say that in light of the Strasbourg court s decision in MGN v United Kingdom 53 EHRR 195, it must follow that the issue of whether the 1999 Act costs regime, and in particular a claimant s right to recover any success fee and ATE premium from an unsuccessful defendant, infringes the Convention, is one which it is open to this court to reconsider. 13

14 40. Lord Neuberger concluded that the Supreme Court could not consider this issue without the Government having had the opportunity to address the issue. He therefore adjourned the issue of costs to a further hearing. That hearing took place at the beginning of February Article 9 of the Aarhus Convention and Costs 41. In Fen Tigers (No 2) the defendants had advanced as a further argument that their liability for costs under the 1999 Act costs recovery regime would infringe article 9 of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Unlike the argument advanced on the basis of the ECHR, this was given short shrift by Lord Neuberger who dismissed it in a single sentence, stating (at para 48): [Articles 9.3 and 9.4] are concerned with those who wish to challenge acts and omissions... which contravene provisions of [the] national law which relate to the environment. That may well apply to a claimant seeking to prevent a common law nuisance by noise, but I do not see how it can extend to a defendant who is being sued for causing a nuisance by noise. Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ Lord Neuberger s casual observation that Article 9 might well apply to a claimant bringing a claim in private nuisance was made two days after judgment was handed down by the Court of Appeal in Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ That case concerned a claim in private nuisance brought by a local resident (Mrs Austin) arising from dust and noise associated with an opencast coal mine near Mrs Austin s home in Merthyr Tydfil. Mrs Austin applied for a protective costs order ( PCO ) to 14

15 relieve her of liability to pay costs if she lost her claim for nuisance. The application for a Protective Costs Order (PCO) had been refused by the High Court. 44. Her PCO application raised an important question of principle: is a nuisance claim a judicial procedure within the scope of Article 9(3) of the Aarhus Convention? If so, then the Convention would require it not to be prohibitively expensive (Article 9(4)), and that would be a factor for the Court to take into account when considering the grant of a PCO. 45. Giving the judgment of the (unusually, two man) Court, Elias LJ held that private nuisance actions are capable of constituting procedures which fall within the scope of Article 9(3), so long as (i) the nature of the complaint has a close link with the environmental matters regulated by the Aarhus Convention, and (ii) the claim, if successful, would confer significant public environmental benefits. Elias LJ said that a claim brought principally to protect private property interests with only limited or incidental public benefits would be unlikely to fall within the scope of the Convention. He gave, by way of examples, a complaint about damage from tree roots or water leaks from an upstairs flat. 46. The court went on to consider what significant, if any, the Convention has when costs are under consideration. The court found that it was under no obligation directly to give effect to article 9(4), but that the article 9(4) obligation would be a factor to take into account when deciding whether to grant a PCO. 47. On the facts, the Court found that Mrs Austin s claim in private nuisance did not fall within the scope of Article 9(3). Although the court accepted that the claim raised issues concerning compliance with the planning conditions imposed to mitigate environmental harm, it did not fall within the scope of article 9(3) because of the limited public benefit which the action would achieve: para 46. It further held that even if it did fall within the scope of article 9(3), it would not have granted Mrs Austin a PCO due to, among other points, the strong element of private interest in the claim: para

16 48. An application for permission to appeal to the Supreme Court has been made but not yet considered. Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ At the end of November 2014, the Court of Appeal handed down its judgment in Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ At first instance, Lang J had accepted that the claim brought under section 288, Town and Country Planning Act 1990, to quash a decision granting planning permission to build a new house in the garden of a Victorian terrace house in London, fell within the scope of the Aarhus Convention. In reaching this conclusion, Lang J stated that, having regard to the definition of environmental information in Article 2(4) and the guidance contained in the Aarhus Convention: Implementation Guide (2013), it was clear that the Convention s application is intended to be broad and comprehensive: para The claimant s case was that a policy restricting garden-grabbing had not been properly applied. Lang J referred to the evidence from a number of environmental charities that garden-grabbing had considerable impacts on the environment in terms of drainage, climate change resilience, urban temperatures, air quality, habitats, and the quality of the human and social environment. Lang J therefore concluded that the claimant s challenge was to an act or omission contravening national law relating to the environment and fell within Art 9(3): para On appeal, the Secretary of State did not challenge this aspect of Lang J s decision. The Secretary of State s sought to argue that Article (3) was not engaged because the relevant law which the claimant alleged was engaged was section 70(2) of the TCPA 1990, which could not be characterised as a law relating to the environment. This argument was rejected by the Court of Appeal on the basis that in circumstances where the UK has chosen to implement a great deal of environmental protection in local and 16

17 national planning policies, section 70(2) TCPA, as the law by which those policies which do relate to the environment are given effect, is properly characterised as national law relating to the environment : para At first instance, Lang J had held that that a challenge under section 288 fell outside the scope of the costs protection provided by CPR rule 45.43, which was limited to judicial review proceedings only. 54. Lang J concluded that the inherent jurisdiction of the court to grant protective costs orders provided an alternative means of giving effect to the UK s obligations under the Convention: para She reasoned that, although the Convention had not been implemented into UK domestic law, UK law should be interpreted and applied in harmony with its provisions where possible: para 36. In this case that meant the adoption of the approach in R (Garner) v Elmbridge BC [2010] EWCA Civ 107, modifying the Cornerhouse criteria to take account of the Aarhus Convention procedural rights. That meant treating the public importance and public interest for making a protective costs order as met because the claim raised environmental matters within the scope of the Convention para In order to satisfy the requirement of Article 9(4) of the Convention, that access to justice in the case was not prohibitively expensive, she applied the reasoning of the European Court of Justice in Edwards v Environment Agency [2013] 1 WLR 2914 and made an order that the claimant s costs be limited to 3, In the Court of Appeal, the Secretary of State did not challenge Lang J s conclusion (at para 11 of her judgment) that the Convention was intended to be broad and comprehensive in his application and accepted that since administrative matters likely to affect the state of the land are classed as environmental under Aarhus the 17

18 definition of environmental in the Convention is arguably broad enough to catch most, if not all, planning matters : paras 10 and The court gave short shrift to the Secretary of State s argument that the challenge was that there was a failure to take the relevant policy into account in accordance with section 70(2) of the TCPA 1990 and that section 70(2) could not be characterised as a law relating to the environment. The Court of Appeal therefore endorsed Lang J s conclusion that the claimant s section 288 falls within Article 9(3). 59. In reaching this conclusion, the Court of Appeal did not refer to the judgment of Elias LJ in Austin and did not engage with the second-limb of the test he applied namely, whether the claim, if successful, would confer significant public environmental benefits. It is difficult to see how the claimant in Venn, whose motivation appears to have been concern for the impact of her neighbour s property on her home, would satisfy this test when the alleged nuisance complained of by Mrs Austin affected a large group of local residents (the claim had initially been attempted as a group action). Elias LJ said that a claim brought principally to protect private property interests with only limited or incidental public benefits would be unlikely to fall within the scope of the Convention. 60. The Court of Appeal went on to find that it should not exercise its discretion to grant a PCO. Sullivan LJ, with whom Gloster and Vos LJJ agreed, set out the basis of this decision at para 33 of his judgment: Once it is accepted that the exclusion of statutory appeals and applications from CPR was not an oversight, but was a deliberate expression of a legislative intent, it necessarily follows that it would not be appropriate to exercise a judicial discretion so as to side-step the limitation (to applications for judicial review) that has been deliberately imposed by secondary legislation. It would be doubly inappropriate to exercise the discretion for the purpose of giving effect under domestic law to the requirements of an 18

19 international Convention which, while it is an integral part of the legal order of the EU, is not directly effective and which has not been incorporated into UK domestic law 61. Sullivan LJ expressed reluctance in reaching this conclusion, remarking that it is now clear that the costs protection regime introduced by CPR is not Aarhus compliant insofar as it is confined to applications for judicial review, and excludes statutory appeals and applications. He stated, however, that the flaw should not be remedied by judicial discretion and noted that government is reviewing the current costs regime in environmental cases and suggested that the review might like to take the Courts of Appeals conclusions into account in the formulation of a costs regime that is Aarhus compliant. Communications ACCCC/2013/85 and 68 to the Aarhus Convention Compliance Committee 62. Mrs Austin and the Environmental Law Foundation have submitted joint communications to the Aarhus Compliance Committee in relation to the costs regime governing claims in private nuisance following the Jackson cost reforms. There are essentially three aspects to the compliant: (1) Private nuisance proceedings concerning environmental matters fall within the scope of Article 9 of the Convention; (2) By enacting section 46 of the Legal Aid, Sentencing and the Punishment of Offenders Act 2012 (LASPOA 2012), the UK government had made it prohibitively expensive for many individuals to bring claims in private nuisance in relation to environmental matters; (3) 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. 19

20 63. Submissions on this communications were heard in March 2014 and a recommendation from the Committee is awaited. Part 2: EIA, SEA and Nature Conservation Case Summaries EIA R. (Mouring) v West Berkshire Council [2014] EWHC 203 (Admin) R (CBRE Lionbrook (General Partners) Ltd) v Rugby Borough Council [2014] EWHC 646 (Admin) SEA R (Buckinghamshire CC) v Secretary of State for Transport [2014] 1 WLR 324 R (HS2 Action Alliance Ltd & LB Hillingdon) v Secretary of State for Transport [2014] EWHC 2759 (Admin) and [2014] EWCA Civ 1578) No Adastral New Town Ltd v Suffolk Coastal DC [2014] EWHC 223 (Admin) Performance Retail Ltd Partnership v Eastbourne BC [2014] EWHC 102 (Admin) Nature Conservation R (Badger Trust) v Secretary of State for Environment [2014] EWCA 1405 RSPB v Secretary of State for Environment [2014] EWHC 1645 R(Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2014] EWCA Civ 708 EIA/SEA 2 2 Acknowledgment and thanks are given to Stephen Tromans QC for assistance with this section of the paper. 20

21 64. In R. (Mouring) v West Berkshire Council [2014] EWHC 203 (Admin) Collins quashed a planning permission for an 800 square metres warehouse development (with ancillary offices) in the AONB on the basis that the Council had failed to consider whether it was EIA development (i.e. falling with Sched. 2, para. 10(b) as an urban development project ). Whilst it may have been open to the local planning authority to conclude that, notwithstanding the development s sensitive location within the meaning of the EIA Regulations (R(Goodman) v Lewisham LBC [2003] EWCA Civ 140 followed), there was a lack of evidence that this had been considered properly or at all. The computergenerated tick-box exercise upon which the authority relied in contending that the matter had been considered impressed neither Blake J (who granted permission at the renewed oral application, whilst at the same time indicating that the Defendant should provide any evidence of consideration of EIA) nor Collins J at the substantive judicial review. The ex post fact witness statement supplied not by the officer responsible for the original application but by his successor at the Council was met with the judicial reluctance to be expected (see e.g. R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302, CA per Hutchison LJ. Furthermore an received from the relevant officer in effect confirmed that he had not considered the EIA aspect of the proposal [26]-[27]. Given the wide and generous interpretation to be given to the ambit of Sched. 2 Collins J held that the local planning authority ought to have appreciated that the development was capable of falling within that class of development and therefore to have carried out a screening opinion (Reg 7 of the EIA Regs). The officers report to committee identified an urbanising effect on locality which would demonstrably harm the visual quality and intrinsic character and beauty of the area and yet he made no reference to even the possibility of EIA development. Had the authority considered EIA it was by no means certain that the same decision would have been reached and Collins therefore exercised the Court s discretion to quash the permission. 65. By contrast, EIA considerations were very much in the mind of the decision-maker in R (CBRE Lionbrook (General Partners) Ltd) v Rugby Borough Council [2014] EWHC 646 (Admin), a case in which certain adjustments to a proposal were made after a screening opinion had been issued and no further screening opinion was carried out. Lindblom J 21

22 considered that the Council had been entitled to take the view that the adjustments were not such as to change the proposal in any material way, so that the outcome of any further screening would, unlike in inevitably have been the same. He found that the words where it appears to the relevant planning authority in Regulation 7 of the 2011 Regulations provided an element of discretionary judgment for the authority including in relation to Regulation 7(b) whether the development in question has not been the subject of a screening opinion. Furthermore, he found that the concept of development having been the subject of a screening opinion is broad enough to include a previous screening process for an earlier version of a proposal. It is for the authority to judge whether any changes are such as to cast doubt on the continuing validity of the earlier screening opinion, subject only to review on Wednesbury grounds by the court. If the Council is still entitled to rely on its earlier screening opinion, the amended proposal will therefore itself have been the subject of a screening opinion for the purposes of Regulation 7(b) and no further screening opinion will be required. 66. Similarly, the requirements of EIA has not been overlooked in R(Gilbert) v Secretary of State for Communities and Local Government [2014] EWCA 1952 (Admin), in which Supperstone J held that the test for whether a development required an EIA was whether the project was likely to have significant effects on the environment, as judged by planning authorities having regard to the precautionary principle. The Claimant, living in the vicinity of Bruntingthorpe Proving Ground (having, according to the LPA s planning officer a very complicated and vast planning history [5]), requested a screening opinion when an application was made for permanent planning permission (following the grant of a temporary one) for a range of noisy activities. The local planning authority conducted a screening assessment but concluded that no EIA was necessary and went on to grant permanent planning permission. The Claimant challenged the grant of permission. It was accepted that if the screening opinion was unlawful then so was the permission itself. Supperstone J held that screening assessments are, by their nature, not as detailed as planning permission assessments (see e.g. R (Bateman) v South Cambridgeshire DC [2011] EWCA Civ 157). The ssecretary 22

23 of State had asked the right questions, equipped himself with the relevant information and applied Wednesbury principles. The decision maker had considered the evidence, including the cumulative effects of noise emissions and traffic congestion, and had found that a significant impact was unlikely. Furthermore, the reasons for the Secretary of State s conclusions were expressed in clear and precise terms, as required by the regulations, and were intelligible and adequate. 67. R(Buckinghamshire CC & Ors) v Secretary of State for Transport [2014] UKSC 3 case was one of the most significant environmental case of last year. It concerned a command paper (the DNS) issued in January 2012 by which the Government signalled its intention that HS2 should be taken forward by way of hybrid bills in Parliament. It raised weighty issues on EIA. 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 the elements relevant to assessing environmental impacts. The question on EIA was whether the hybrid bill procedure was compliant with these requirements. Lord Reed (with whom the rest of the court agreed) held that it was acte clair that it would. In coming to this view, he provided a detailed analysis of the separation of powers in the United Kingdom and the parliamentary process. 68. The Buckinghamshire case is also of key importance in relation to SEA. The issues for the Supreme Court so far as SEA were concerned were whether the DNS was a plan or programme which set the framework for development consent and was required by administrative provisions within the meaning of articles 2 to 3 of the SEA Directive and whether article 3(2)(a) of the SEA Directive was inconsistent with article 7 of the Aarhus Convention. Lord Carnwath gave the main judgment concerning the SEA issues. He was prepared to proceed on the assumption that the DNS was required by administrative provisions for the purposes of Article 2(a) or at least that there is a referable issue on the meaning of that part of the definition (paragraph 22) and devoted the majority of his judgment to the question of whether the DNS set the framework for the purposes of Article 3. In his judgment, influence in the ordinary sense was not sufficient to set the framework. Rather, the influence must be such as to constrain subsequent 23

24 consideration, and to prevent appropriate account from being taken of all of the environmental effects which might otherwise be relevant (paragraph 40). He considered that the DNS did not in any way constrain the decision-making process and so did not require SEA. He also dispatched the Aarhus point in brief terms at paragraph 52, finding that the SEA Directive must be interpreted and applied on its own terms and that, if this falls short of full compliance with the Aarhus Convention, it does not invalidate the Directive so far as it goes. It simply means that a possible breach of the Convention may have to be considered as a separate and additional issue. In the HS2 case the point was academic because no such breach was alleged. 69. More recently, in R (HS2 Action Alliance Ltd & LB Hillingdon) v Secretary of State for Transport [2014] EWHC 2759 (Admin) and [2014] EWCA Civ 1578, Lindblom J considered a second judicial review claim brought by the HS2 Action Alliance Ltd, arguing that safeguarding directions for the proposed route of Phase 1 of HS2 ought to have been assessed under the regime for strategic environmental assessment (R (HS2 Action Alliance Ltd & LB Hillingdon) v Secretary of State for Transport [2014] EWHC 2759 (Admin)). It was argued that such directions, unlike the Command Paper, operated as a legal constraint on development consent for various projects, including EIA development. In rejecting that submission, Lindblom J characterised such directions as safeguards taking their shape from project which had already been found by the Supreme Court not to constitute a plan or project setting the framework for future development consent. It was again critical that they did not constrain the discretion of the decision-maker considering the development consent in due course. 70. In a judgment handed down in December ([2014] EWCA Civ 1578), the Court of Appeal agreed that the safeguarding directions did not constitute a plan or programme setting the framework for future development consent under the SEA Directive 2001 or implementing regulations. The Court of Appeal considered that the safeguarding directions were a procedural addition to the legislation which governs development control decision-making in the safeguarded zone but they did not constrain the 24

25 discretion of the decision-maker in making decisions about developments in that area. As such, the directions did not prevent the likely environmental impacts from being taken into account in applications for planning permission. The safeguarding directions were not an evolution of the HS2 project into a plan or programme setting the framework for future development consent. Thus, it was the Court of Appeal s clear view that HS2 is being pursued by specific legislation rather than pursuant to any plan or programme for the purposes of the SEA Directive. 71. SEA has sometimes been viewed an obstacle course with tripwires lurking for the unwary. Early cases such as Heard v Broadland DC [2012] EWHC 344 (Admin) and Save Historic Newmarket Ltd v Forest Heath DC [2011] EWHC 606 (Admin) well illustrate this. However, it is not the case that errors will necessarily prove fatal, as illustrated by the flexible approach of the High Court in Cogent Land LLP v Rochford DC [2012] EWHC 2542 (Admin); [2013] 1 P. & C.R This sort of flexible approach was also applied in the recent case of No Adastral New Town Ltd v Suffolk Coastal DC [2014] EWHC 223 (Admin) in which a failure to conduct environmental assessment in the first 4 years of the plan process was found not to vitiate the entire SEA process. 72. The limited role of the courts in assessing the adequacy of environmental reports is evident in the case of Shadwell Estates Ltd v Breckland DC [2013] EWHC 12 (Admin) which concerned a challenge to the Thetford Area Action Plan based on criticisms of a highly detailed nature concerning evidence relating to stone curlews. Beatson J gave a useful summary of the authorities relating to the limited role of the court at paragraphs of his judgment and rejected the challenge in robust terms. A similarly robust view is evident in Performance Retail Ltd Partnership v Eastbourne BC [2014] EWHC 102 (Admin) in which Mr CMG Ockelton (sitting as a deputy) refused to accept that an SA/SEA was vitiated by the lack of assessment of a minor modification recommended by the Inspector at Examination in Public. The approach of a reasonably limited role for the courts is also evident in two recent judgments of Sales J, in both of which he emphasised the wide discretion enjoyed by planning authorities in planning judgments concerning SEA (see Ashdown Forest Economic Development LLP v Secretary of State for 25