Urgent Agenda/Urgenda

There appears to be a new domestic political urgency about climate change (to the extent that there is space for anything other than the B word). After saying as little as possible about the politics, the focus of this blog post is on law, and specifically, climate change litigation, although as can be the case with some constitutional law cases (not to mention judicial reviews in our little Planning Court world), climate change law is an area where the purpose of the proceedings, succeed or fail, is often simply to change the politics.

The politics

Party members backed a radical “Green New Deal” motion at last week’s Labour party conference Labour set to commit to net zero emissions by 2030 (Guardian, 24 September 2019). If that is to form part of the next manifesto, some serious thinking is going to be required as to how to turn headlines into costed, politically and socially acceptable reality, but the starting gun has perhaps been fired.

Ahead of the Conservative party conference this week, as I write this morning we are waiting for a series of Government announcements, trailed overnight in pieces such as ‘21st Century Conservatism’: Tories unveil fresh wave of net zero measures (Business Green, 28 September 2019) and Tories ignore tough climate change recommendations in 2050 net zero plan, but promise nuclear fusion instead (Independent, 28 September 2019), which follows Theresa May’s June 2019 tightening of the minimum 80% reduction against 1990 levels figure in the Climate Change Act 2008 Act to 100% ie net zero greenhouse emissions by 2050, with an announcement on 12 June 2019 and the making of the Climate Change Act 2008 (2050 Target Amendment) Order 2019 on 26 June 2019. The amended target excluded international aviation and shipping pending further analysis and international engagement. The Committee on Climate Change on 24 September 2019 published advice to the Secretary of State for Transport as to how emissions from these sectors could be brought within the 2050 target.

UN

It was of course also the UN Climate Action Summit last week, with a series of actions announced, trackable via this detailed portal.

Convention on the Rights of the Child petition

Greta Thunberg announced at the UN that proceedings were being brought under the UN Convention on the Rights of the Child against Argentina, Brazil, France, Germany and Turkey, as G20 countries which are alleged not to have kept previously made pledges in international climate change conventions and agreements. The detailed petition (96 pages of reasoned argument, with evidence) to the Committee on the Rights of the Child (which monitors states’ compliance with the Convention) alleges that:

⁃ “each respondent has failed to prevent foreseeable human rights harms caused by climate change by reducing its emissions at the “highest possible ambition.” Each respondent is delaying the steep cuts in carbon emissions needed to protect the lives and welfare of children at home and abroad.”

⁃ “as members of the G20, which makes up 84% of all global emissions, each respondent has failed to use all available legal, diplomatic, and economic means to protect children from the life-threatening carbon pollution of the major emitters (China, the U.S., the E.U., and India) and other G20 members. As G20 members, the respondents have diplomatic, legal, and economic tools at their disposal. Yet, none of the respondents have used, much less exhausted, all reasonable measures to protect children’s rights from the major emitters”.

By recklessly causing and perpetuating life-threatening climate change, the respondents have failed to take necessary preventive and precautionary measures to respect, protect, and fulfill the petitioners’ rights to life (Article 6), health (Article 24), and culture (Article 30) and are thus violating the Convention. Under the Convention, states must “limit ongoing and future damage” to these rights, including those caused by environmental threats.”

The five states were selected as the five largest emitters of carbon that are signatories to the Convention. China, USA, Saudi Arabia and Russia are not signatories.

Obviously, steps like these are taken for a variety of motives – direct legal redress is unlikely, but it all adds to the political pressure and of course shines a more direct light publicly on the relevant issues. It also made me realise that I should perhaps write this follow up to my 10 August 2019 climate change blog post The Big CC (which, I’m sorry, was a bit of a monster) to reference some of the other climate change litigation that we have been seeing.

Heathrow

The appeals from the Heathrow court rulings that I summarised in my 4 May 2019 blog post Lessons From The Heathrow Cases will be heard by the Court of Appeal on 17, 18, 22, 23, 24 & 25 October 2019. They will be live streamed.

Whilst the attacks by the various claimants to the Secretary of State’s decision to designate the Airports National Policy Statement were wide-ranging, challenges brought by Plan B Earth and Friends of the Earth focused on climate change arguments.

Plan B Earth sought to establish that “government policy” to be taken into account in designating the NPS included a commitment to the Paris Agreement limit in temperature rise to 1.5oC and “well below” 2oC. The Secretary of State acted unlawfully in not taking into account that commitment; and in taking into account an immaterial consideration, namely the global temperature limit by 2050 of 2oC above the pre-industrial level which, by the time of the designation, had been scientifically discredited as recognised by the UK Government as a party to the Paris Agreement and other announcements of support for the 1.5oC limit upon which the Paris Agreement was based (Plan B Earth Ground 1).

However, the Divisional Court held that “the Secretary of State was not obliged to have foreshadowed a future decision as to the domestic implementation of the Paris Agreement by way of a change to the criteria set out in the CCA 2008 which can only be made through the statutory process; and, indeed, he may have been open to challenge if he had proceeded on a basis inconsistent with the current statutory criteria. Nor was he otherwise obliged to have taken into account the Paris Agreement limits or the evolving knowledge and analysis of climate change that resulted in that Agreement.”

Plan B Earth also sought to argue that the “Secretary of State erred and failed to act in accordance with section 3 of the Human Rights Act 1998, which requires legislation to be read and given effect in a way which is compatible with the ECHR rights, by failing to read and give effect to the phrase in section 5(8) of the PA 2008, “Government policy relating to the mitigation of, and adaptation to, climate change”, as including the Paris Agreement” and that “in any event, irrespective of the terms of the PA 2008, the Secretary of State acted irrationally in taking into account the discredited 2oC limit and not taking into account the 1.5oC limit to which, by the time of the designation, the Government was committed.” Both grounds were also rejected.

Friends of the Earth argued, unsuccessfully, that the NPS did not adequately explain how the 2050 carbon target as set out in section 1 of the Climate Change Act 2008 had been taken into account and /or that in a number of respects the NPS was “internally contradictory or otherwise unclear” as to its compatibility with the 2050 emissions target.

They also argued that section 10 of the Climate Change Act 2008 “requires the Secretary of State, on the basis of up to date information and analysis, to take into account the ability of future generations to meet their needs, which includes taking into account international agreements such as the Paris Agreement and the underlying science of climate change which bear upon that question.” However, the court held that “international commitments were a consideration in respect of which he had a discretion as to whether he took them into account or not.

It is well-established that where a decision-maker has a discretion as to whether to take into account a particular consideration, a decision not to take it into account is challengeable only on conventional public law grounds. In our view, given the statutory scheme in the CCA 2008 and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re-visited on the basis of the then up to date scientific position.

Lastly, Friends of the Earth argued unsuccessfully that the obligations of the Paris Agreement should have been taken into account in the environmental report that was prepared for the purposes of the strategic environmental assessment that informed the Secretary of State’s decision to designate the NPS.

Generally, the passages in the judgment in relation to climate change (paragraphs 558 to 660) are well worth reading. Will the Court of Appeal hold to the same line?

Plan B Earth “carbon target” litigation

Plan B Earth had previously brought a challenge to the Secretary of State’s refusal to revise the 2050 carbon target under the 2008 Act, on the basis that he was obliged to do so following the Paris Agreement.

The proceedings, Plan B Earth v Secretary of State (Supperstone J, 20 July 2018), were dismissed as unarguable.

One of the grounds of challenge was that the Secretary of State’s refusal to amend the 2050 target constitutes a violation of the claimants’ human rights. “The Claimants rely on the rights conferred by Articles 2 and 8 of the ECHR, and by Article 1 of the First Protocol, both individually and in conjunction with Article 14. Mr Crow submits that in so far as the Secretary of State is acting inconsistently with his Treaty obligations and with general principles of international law, he is in breach of his positive obligations to uphold the Claimants’ Convention rights. This ground, Mr Crow acknowledges, raises a novel issue under the HRA 1998. However he observes that it is difficult to conceive of any issue that would be of greater significance to each member of the British public than the threat of climate change, which the Government has acknowledged as constituting an “existential threat”. In this context, he submits that the Government’s delay is inexcusable (Ground 4).

Mr Palmer submits that the decision not to amend the 2050 target at this time does not amount to an interference with any identifiable victim’s rights under any of the Articles relied upon. Mr Crow accepts there is no interference with any identifiable victim’s rights, but submits that there has been a violation of those rights, which have an environmental dimension. The Claimants do not identify any interference to which that decision gives rise, but only to the effects of climate change generally. The violation arises, it is said, because of the failure of the Secretary of State to take proper preventive measures. I reject this submission. The Government is committed to set a net zero emission target at the appropriate time. I agree with Mr Palmer that this is an area where the executive has a wide discretion to assess the advantages and disadvantages of any particular course of action, not only domestically but as part of an evolving international discussion. The Secretary of State has decided, having had regard to the advice of the Committee, that now is not the time to revise the 2050 carbon target. That decision is not arguably unlawful, and accordingly the human rights challenge is not sustainable.”

Permission to appeal was refused by the Court of Appeal on 22 January 2019.

Urgenda

It is interesting to contrast these two rulings with the Dutch proceedings brought by campaign group, Urgenda. As summarised by the LSE/Grantham Research Institute on Climate Change and the Environment, the Hague Court of Appeal ruled (unofficial English translation, 9 October 2018) “that by failing to reduce greenhouse gas emissions by at least 25% by end-2020, the Dutch government is acting unlawfully in contravention of its duty of care under Articles 2 and 8 of the ECHR. The court recognized Urgenda’s claim under Article 2 of the ECHR, which protects a right to life, and Article 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The court determined that the Dutch government has an obligation under the ECHR to protect these rights from the real threat of climate change. The court rejected the government’s argument that the lower court decision constitutes “an order to create legislation” or violation of trias politica and the role of courts under the Dutch constitution. In response to these appeals, the court affirms its obligation to apply provisions with direct effect of treaties to which the Netherlands is party, including Articles 2 and 8 of the ECHR. Further, the court found nothing in Article 193 of the Treaty on the Functioning of the European Union that prohibits a member state from taking more ambitious climate action than the E.U. as a whole, nor that adaptation measures can compensate for the government’s duty of care to mitigate greenhouse gas emissions, nor that the global nature of the problem excuses the Dutch government from action.

An appeal was heard by the Dutch Supreme Court in May 2019 and its ruling is anticipated before the end of the year.

The end of the year? I think they need a Lady Hale.

Simon Ricketts, 28 September 2019

Personal views, et cetera

No Time To Be 21: Where Are We With Aarhus Costs Protection?

As with blog posts, it is helpful for legislation to have a snappy title.

The United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is therefore better known as the Aarhus Convention, after the city in Denmark where it was signed on 25 June 1998.

It currently has 47 parties. The UK ratified it in February 2005, as did the EU.

The Convention has three pillars:

⁃ access to information

⁃ public participation in decision making

⁃ access to justice

You will know that the Aarhus Convention requires that access to justice in environmental matters should be “be fair, equitable, timely and not prohibitively expensive”, a challenging requirement in jurisdictions such as ours where access to justice in environmental matters frequently relies upon access to the High Court and appellate courts thereafter, and where processes are almost by definition prohibitively expensive – not just your own lawyers’ costs (cough) but, if the dice roll the wrong way, your liability for those of the defendant authority.

I last properly blogged on Parliament’s, and the English courts system’s, response to that challenge in my blog post dated 11 March 2017, Aarhus: Caps In The Air Again.

I agreed to speak on this subject at the Kingsland Conference event at King’s College London arranged for this Tuesday to mark the 21st anniversary of the signing of the Convention. If this post whets your appetite to hear that day from much more knowledgeable people than me on every aspect of the Convention’s three pillars, then do sign up.

In itself, the Convention has no direct effect in domestic law and its enforcement is indirect, at member state level via meetings of the parties to the Convention and non-binding communications by the Aarhus Convention Compliance Committee. I say “in itself” because it does have direct effect in domestic law via specific EU directives in relation to environmental protection, which was the basis for the European Court of Justice’s preliminary ruling in Edwards (CJEU, 11 April 2013).

At the time of my March 2017 blog post the Civil Procedure (Amendment) Rules 2017 had just come into force, which tightened up the regime in various ways.

The claimant’s default cap against exposure to the defendant’s legal costs in an Aarhus Convention claim) is still £5k where the claimant is an individual and otherwise £10k, with the default cap on how much the claimant can claim if successful still capped at £35k. The caps apply to each party where there are multiple claimants or multiple defendants.

An Aarhus Convention claim is basically defined as a claim brought by a member of the public, challenging the legality of a decision on grounds which concern environmental matters as defined in Articles 9 (1), (2) and (3) or the Convention, whether the claim is by judicial review, or under two specific forms of statutory review:

⁃ section 289 of the Town and Country Planning Act 1990 (challenges to decisions in relation to enforcement notice appeals)

⁃ section 65 of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 ((challenges to decisions in relation to listed building enforcement notice appeals)

The 2017 changes introduced the requirement that, where a claimant brings a claim and is seeking Aarhus costs protection it must say so on the claim form and must file a schedule of financial resources. The court may remove or vary the cap in these circumstances if satisfied that “to do so would not make the costs of the proceedings prohibitively expensive for the claimant“.

Proceedings are to be considered prohibitively expensive if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant, or

(b) are objectively unreasonable having regard to –

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous“.

Where the court considers the financial resources of the claimant, “it must have regard to any financial support which any person has provided or is likely to provide to the claimant”.

Three aspects of the 2017 rule amendments were challenged by the the RSPB, Friends of the Earth and ClientEarth in R (RSPB) v Secretary of State for Justice (Dove J, 15 September 2017):

1. The ability for the court to vary costs caps at any stage in the litigation would not meet the EU law requirement for “reasonable predictability

2. No express provision for hearings to be in private when a claimant or a third party supporter’s financial details may be discussed and examined.

3. Uncertainty as to whether the claimant’s own costs of bringing the litigation should be included in any assessment of their financial resources.

Dove J’s judgment is essential reading for an understanding of the background to costs capping in environmental matters, including the domestic and CJEU authorities.

He found against the claimants on the first ground but the issue was addressed in any event by Parliament in the Civil Procedure (Amendment) Rules 2018 which tightened up the procedural rules to make it clear that, save where there is a significant change in circumstances, variation of the caps can only be considered by the court if either the applicant had so requested in his claim form or if the defendant had so requested in his acknowledgement of service.

He found for the claimants on the second ground and the rules have again been changed to specify that hearings in relation to examination of claimants’ financial details must be heard in private.

He found that it was unnecessary to make a formal declaration to deal with the third ground but considered that it was clear that the court may indeed take account of a claimant’s reasonable costs in determining whether proceedings are “prohibitively expensive“.

The 2017 rule amendments defined “environmental matters” by reference to matters falling within the scope of Article 9 (1) to (3) of the Convention. I had wrongly assumed in my previous blog that the effect might be to limit the scope of the procedure but that has not been the case, following the broad meaning given by the Court of Appeal in Secretary of State v Venn (Court of Appeal, 27 November 2014).

I had also wondered whether the reference to “members of the public” in the amended rules might exclude parish councils from seeking Aarhus costs protection, but that assumption may also have been misplaced. At the permission stage of Crondall Parish Council v Secretary of State (Dove J, 14 May 2019), deputy judge John Howell QC accepted that the parish council was indeed a “member of the public”.

The 2017 rule amendments do not extend the automatic costs capping process to the Court of Appeal and beyond. It will be for the appellate court to consider whether the costs of the appeal proceedings will be prohibitively expensive for a party which was a claimant (with no guidance as to how the costs of previous stages in the litigation are to be taken into account).

The UK is still under some international pressure as to its approach to compliance. In its September 2017 decision VI/8k, the Economic Commission for Europe noted that “while the 2017 amendments to the cost protection system in England and Wales introduced some positive improvements, the 2017 amendments overall appear to have moved [the UK] further away from meeting the requirements of its 2014 decision V/9n, namely that the UK should:

“(a) Further review its system for allocating costs in all court procedures subject to article 9, and undertake practical and legislative measures to ensure that the allocation of costs in all such cases is fair and equitable and not prohibitively expensive;

(b) Further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice;

(d) Put in place the necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement article 9, paragraph 4, of the Convention”.

Furthermore, “by failing to ensure that private nuisance proceedings within the scope of article 9, paragraph 3, of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned fails to comply with article 9, paragraph 4, of the Convention“.

There is also a complaint which is being investigated by the Aarhus Convention Compliance Committee. It is based on (1) the exclusion from current system of automatic costs capping for section 288 challenges of planning appeal decisions and (2) the risk of public disclosure of claimants’ financial means.

The complainant sets out the position as follows:

In 2008 a property developer sought to obtain planning permission to build an estate of 18 houses in open countryside outside of Ashover, Derbyshire. Permission to carry out this development was refused. The developer then reapplied for planning permission to develop 26 houses in 2014 and again in 2015. These applications were both refused. An appeal was made against the most recent decision and an Inspector was appointed by the Secretary of State for Communities and Local Government to hear the evidence and make a recommendation to the Secretary of State. After hearing all evidence over a four-day period and visiting the site the Inspector recommended that the appeal be dismissed and planning permission be refused. The Secretary of State disagreed with his Inspector’s recommendation, allowed the appeal, and granted planning permission.

Challenging the Decision

Objectors to the development sought a legal opinion on challenging the Secretary of State’s decision. It was the opinion of counsel that challenging the Secretary of State’s decision would be extremely costly and could fail. The costs protection regime for “Aarhus claims” would not be available for challenges to decisions of the Secretary of State even though the only difference rendering it inapplicable was the identity of the decision-maker. As a result of the uncertainty as to costs no member of the public had the appetite to challenge the decision.

We have been made aware that amendments were made to Part 45 Section VII of England and Wales’ Civil Procedure Rules (“CPR”) (“The 2017 Amendments”) on 28th February 2017. These mean that any claimant or a third party supporter of a claim now risks public disclosure of their financial means.”

DEFRA’s response dated 8 March 2019 is interesting:

1. Section 288 challenges will be brought within the scope of the rules later this year.

2. The new Civil Procedure (Amendment) Rules 2019 change the criteria as to when a hearing will be held in private but one of the criteria is whether “it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality“.

There do remain various open questions, for instance:

1. Post-Brexit, how will we see the Government flesh out the principle outlined in the draft Environment (Principles and Governance) Bill of “access to justice in relation to environmental matters“?

2. Does the current process give claimants “reasonable predictability“?

2. What are the practical risks for a defendant, in terms of potentially thereby elongating proceedings, in seeking to vary or remove a costs cap?

3. What effects are the changes having in practice on potential claimants as well as third party funders?

4. Where there is no Aarhus costs protection, are we going to see more applications for security for costs by defendants: the £250,000 required of Heathrow Hub Limited for example in the recent Heathrow proceedings (to be heard in the Court of Appeal in November) or the £60,000 required of the claimant in We Love Hackney v London Borough of Hackney (Farbey J, 17 April 2019).

Happy birthday, Aarhus Convention. Let them eat cake?

Simon Ricketts, 22 June 2019

Personal views, et cetera

Slow Claim Coming: Limiting JRs

To live outside the law, you must be honest

(Bob Dylan)

This blog post covers:

⁃ the principles to be applied in relation to bringing a late claim for judicial review

⁃ the Environmental Audit Committee’s scrutiny of the enforcement and JR aspects of the draft Environment (Principles and Governance) Bill

⁃ The Supreme Court’s ruling on legislative provisions that seek to exclude the right to legal challenge.

Exciting, not?

Late JR claims

My 7 April 2018 blog post Fawlty Powers: When Is A Permission Safe From Judicial Review? looked at the whole question of JR time limits and referred to the High Court’s ruling in the Thornton Manor case, where the court allowed a claimant to bring a claim for judicial review more than five and a half years after the decision complained of.

That ruling has now been upheld in R (Thornton Hall Hotel Limited) v Wirral MBC (Court of Appeal, 30 April 2019).

Do read my previous blog post, or more reliably the judgment itself, for an account of the exceptional facts with which the court was faced. In deciding whether the judge was wrong to extend time for the claim to be brought, the Court of Appeal helpfully set out the principles to be applied:

(1) When a grant of planning permission is challenged by a claim for judicial review, the importance of the claimant acting promptly is accentuated. The claimant must proceed with the “greatest possible celerity” – because a landowner is entitled to rely on a planning permission granted by a local planning authority exercising its statutory functions in the public interest.”

(2)  When faced with an application to extend time for the bringing of a claim, the court will seek to strike a fair balance between the interests of the developer and the public interest (see Sales L.J. in Gerber, at paragraph 46). Where third parties have had a fair opportunity to become aware of, and object to, a proposed development – as would have been so through the procedure for notification under the Town and Country Planning (General Development Management Procedure) Order 2010 (“the 2010 Order”) – objectors aggrieved by the grant of planning permission may reasonably be expected to move swiftly to challenge its lawfulness before the court. Landowners may be expected to be reasonably alert to proposals for development in the locality that may affect them. When “proper notice” of an application for planning permission has been given, extending time for a legal challenge to be brought “simply because an objector did not notice what was happening” would not be appropriate. To extend time in such a case “so that a legal objection could be mounted by someone who happened to remain unaware of what was going on until many months later would unfairly prejudice the interests of a developer who wishes to rely upon a planning permission which appears to have been lawfully granted for the development of his land and who has prudently waited for a period before commencing work to implement the permission to ensure that no legal challenge is likely to be forthcoming …” (see Sales L.J. in Gerber, at paragraph 49). When planning permission has been granted, prompt legal action will be required if its lawfulness is to be challenged, “unless very special reasons can be shown ...””

“(3)  Developers are generally entitled to rely on a grant of planning permission as valid and lawful unless a court has decided otherwise (see Sales L.J. in Gerber, at paragraph 55). A developer is not generally required “to monitor the lawfulness of the steps taken by a local planning authority at each stage of its consideration of a planning application””.

“(4)  What is required to satisfy the requirement of promptness “will vary from case to case”, and “depends on all the relevant circumstances”. If there is a “strong case for saying that the permission was ultra vires”, the court “might in the circumstances be willing to grant permission to proceed”, but “given the delay, it requires a much clearer-cut case than would otherwise have been necessary” (see Keene L.J. in Finn-Kelcey, at paragraphs 25 to 29).”

“(5)  The court will not generally exercise its discretion to extend time on the basis of legal advice that the claimant might or should have received.”

“(6)  Once the court has decided that an extension of time for issuing a claim is justified and has granted it, the question cannot be re-opened when the claim itself is heard.”

“(7)  The court’s discretion under section 31(6)(b) requires an assessment of all relevant considerations, including the extent of hardship or prejudice likely to be suffered by the landowner or developer if relief is granted, compared with the hardship or prejudice to the claimant if relief is refused, and the extent of detriment to good administration if relief is granted, compared with the detriment to good administration resulting from letting a public wrong go unremedied if relief is refused…8)  It being a matter of judicial discretion, this court will not interfere with the first instance judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment

“(8)  It being a matter of judicial discretion, this court will not interfere with the first instance judge’s decision unless it is flawed by a misdirection in law or by a failure to have regard to relevant considerations or the taking into account of considerations that are irrelevant, or the judge’s conclusion is clearly wrong and beyond the scope of legitimate judgment”

Applying these principles:

The extension of time sought in this case – an extension of more than five years from the date of the challenged decision – is, to use the judge’s word, “extreme”. That is undeniable. As the authorities show, it would only be in the most unusual circumstances that such an extension would ever be granted (see, for example, Schiemann L.J. in Corbett, at paragraph 14; and Hobhouse L.J. in ex p. Oxby, at pp.294 to 296 and 302 to 303). It is, in our view, very important to emphasise this. One cannot say, however, that the court’s power to extend time is automatically extinguished after any given period has elapsed. We are concerned here with a judicial discretion, not a fixed statutory limitation. A clear theme in the relevant case law, as one would expect, is that in every case where delay has occurred the court must look closely at all the relevant facts in the round. The facts will vary widely from case to case. In Corbett a total delay of six years was not in itself fatal to the granting of relief, but it was held that there was no longer a need to quash the planning permissions because they had in the meantime been modified by an order under section 100 of the 1990 Act, made by the Secretary of State, and a quashing order would deny the landowners the compensation due to them for the modification. In ex p. Oxby this court granted relief after a delay of about two years, during which the existence and facts of the unlawfulness infecting the local planning authority’s decision emerged. Generally, of course, very late challenges will not be entertained. However, as Sales L.J. said in Gerber (at paragraph 49), in a particular case there may be “special reasons” to justify the extension sought. To say, as this court did in Connors (at paragraph 87), that an exercise of judicial discretion to allow “very late challenges” to proceed in planning cases will “rarely be appropriate” implies that sometimes it may be appropriate – and necessary in the interests of justice.

There can be no doubt that the circumstances of this case, viewed as a whole, are extremely unusual. Indeed, we would go further. They are unique. The question for us, however, is whether, in combination, they can properly be said to amount to an exceptional case for extending time to allow the challenge to be brought before the court. In our view, in agreement with the judge, they clearly can.”

Factors in this case:

“The first point to be made, and a crucial one, is that the scope of the proceedings in this case is not the usual scope of a claim for judicial review in the planning context. As Mr Alan Evans for the council accepted, and as the judge recognised, it is beyond dispute that the planning permission under challenge ought not to have been issued without its conditions. It was issued in that form without lawful authority.

“This is not a case […] in which the practical effect of the unlawfulness was immediate upon the grant of planning permission.”

“We accept, as all three parties submit, that the council acted unlawfully in concealing its error. It initially attempted to put matters right by generating a fictitious decision notice and manipulating the planning register. Whether its intention was to reverse its error or to obscure it, the effect of the action it took was only to disguise what it had in fact done. It has not, however, resisted the claim. It could, of course, have done a good deal more than it has. It might, for example, have made use of its statutory power of revocation under section 97 of the 1990 Act, or its power to make a discontinuance order under section 102 – though this could have given rise to a claim for compensation by Thornton Holdings. It might have been able to deploy its powers of enforcement at an appropriate stage. It might have brought the matter before the court itself by a timely claim for judicial review issued in the name of a councillor – as was done, for example, in ex p. Oxby. It did none of those things, and even now it shows no such inclination. However, it now acknowledges that the decision notice it issued on 20 December 2011 was, and remains, clearly invalid. Far from resisting the challenge, or adopting a neutral stance, it has actively supported the claim, urged the judge to quash the planning permission, and has appeared in this court to resist the appeal. That is another highly abnormal feature of these proceedings.”

It is also, we think, a factor of considerable weight in this case that Thornton Holdings were well aware from the outset that the planning permission had been wrongly issued, and knew precisely what the council’s error had been.”

“In the circumstances, contrary to the argument presented to us by Mr Christopher Lockhart- Mummery Q.C. for Thornton Holdings, we cannot accept that they have suffered any material hardship or prejudice as a result of the delay in the claim being issued. Indeed, if anything, the delay worked in their favour, in the sense that it enabled them to take advantage of an unrestricted grant of planning permission that they knew the council had never resolved to grant. That too is a most unusual feature of this case, in sharp distinction to others – such as Finn-Kelcey, Gerber and Connors – where the court has rejected lengthy extensions of time. The reality is that, from December 2011 until the judge’s order, Thornton Holdings had the benefit of a more generous grant of planning permission than would have been so if the council had not mistakenly issued the decision notice it did. If at any stage they were concerned about the risk of the council’s error being discovered and a claim for judicial review being made, they decided to operate in the knowledge of that risk, and in spite of it.”

The late claim was allowed. But the court has set out its reasoning carefully, such that I cannot see that the ruling will in any way open the floodgates to a greater risk of late, unexpected, challenges.

OEP JRs

My 22 December 2018 blog post The Office For Environmental Protection covered DEFRA’s draft Environment (Principles and Governance Bill) and in particular the proposal in the draft Bill that the Office for Environmental Protection once established could bring judicial reviews in its own right, outside usual judicial review timescales.

The House of Commons Environmental Audit Committee has now published its report on its pre-legislative scrutiny of the draft Bill (25 April 2019). On the proposed judicial review procedure there is this passage in relation to the OEP’s proposed enforcement powers, including potential to seek judicial review:

The UK Environmental Law Association (UKELA) told us the proposed notice procedures are very slow, with two-month time periods for response. It said that if a breach is serious or ongoing, this could be too long a delay before court action can be taken by the OEP. Tim Buley agreed that since the time limit for judicial review is very strict, “three months ordinarily, six weeks in some environmental contexts”, it would not be appropriate to have it at the end of the process while the OEP has been conducting its investigation and the harm may have already happened. UKELA supported the OEP having a power to make an emergency application for judicial review and Tim Buley said the OEP should have the ability to bring a judicial review at the start of the process. Professor Macrory outlined that it would be helpful for the OEP to have an additional power to be able to intervene in environmental judicial reviews undertaken by other parties. He said that the Equality and Human Rights Commission (EHRC) which has such powers under Equality Act 2006, has made very effective use of them.”

The Committee recommended as follows:

We recommend that:

The Bill should allow the Office for Environmental Protection to bring a judicial review at the start of the process in rare cases where a delay could cause further environmental harm.

The Bill should specify that the Office for Environmental Protection bringing enforcement proceedings does not prevent others who wish to bring a judicial review.

The Office for Environmental Protection should be given the power to act as an intervener in environmental judicial reviews undertaken by other parties.

Clauses 22 and 23 should be amended to include an obligation on the Office for Environmental Protection to act on responses to information or decision notices, or to explain to the complainant why no further action has been taken. This would provide a ratcheting approach to enforcement.

Overall, the enforcement procedure lacks imagination and the Government must consider alternative mechanisms. We have heard compelling evidence that there should be an expanded role for the First-tier Tribunal. This would help to resolve more cases before the need to apply for judicial review.

We recommend the Government looks further into a bespoke enforcement procedure and an expansion of the role and remit of the General Regulatory Chamber in the First-tier Tribunal. For example, where the Office for Environmental Protection is able to issue notices (at first advisory, then latterly binding) with a range of compliance recommendations, to which the public authority must then comply, or set out proportionate reasons why not. The Office for Environmental Protection would then be able to challenge a decision not to comply with the notice at the tribunal. The tribunal would undertake a substantive review of the authority’s decision not to comply with the notice. Any failure to comply with a decision should amount to contempt and be referable to the Upper Tribunal. Section 202 of the Data Protection Act 2018 provides a useful guide as to how this could be achieved in the legislation.”

Ouster clauses

Finally, superficially away from planning law but very relevant to bear in mind for any future re-framing of the system, the Supreme Court handed down judgment last week in R (Privacy International) v Investigatory Powers Tribunal (Supreme Court, 15 May 2019), a significant public law case as the legal effectiveness (or not) of “ouster” clauses in legislation, which seek to limit or remove rights to challenge in the courts matters carried out pursuant to the particular legislation. The strict six week time limit in judicial review in relation to decisions made pursuant to town and country planning legislation is of course a limitation. Such limitations have been held to be reasonable and permissible, as opposed to outright exclusions – held not to be legally effective by a 3 – 2 majority in the House of Lords in the 1968 Anisminic v Foreign Compensation Commission case.

The Privacy International case concerned the legal effectiveness or not of Parliament’s attempt in legislation to prevent legal challenges to decisions of the tribunal which hears complaints about, amongst other matters, general warrants granted to government agencies to intercept electronic communications.

The Investigatory Powers Tribunal (“IPT”) is a special tribunal established under the Regulation of Investigatory Powers Act 2000 (“RIPA”) with jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters (“the intelligence services”). Section 67(8) provides:

“Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court.””

“There is an obvious parallel with the “ouster clause” considered by the House of Lords in the seminal case of Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (“Anisminic”). Section 4(4) of the Foreign Compensation Act 1950 provided:

“The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.””

In the course of lengthy discussion in the judgments as to the extent of the courts’ power to override legislative limitations as to legal challenge, the planning system gets a quick specific mention:

“...the courts have not adopted a uniform approach, but have felt free to adapt or limit the scope and form of judicial review, so as to ensure respect on the one hand for the particular statutory context and the inferred intention of the legislature, and on the other for the fundamental principles of the rule of law, and to find an appropriate balance between the two. Even if this was not always the way in which the decisions were justified at the time, it may be seen as providing a sounder conceptual basis. Thus in the planning cases, it having been accepted that the statutory grounds cover all the traditional ground of judicial review, there is no difficulty in holding that the six-week time-limit provides a proportionate balance between effective judicial review, and the need for certainty to enable such decisions to be acted on with confidence.”

The Supreme Court held by a 4 – 3 majority that the absolute prohibition on legal challenge in the Regulation of Investigatory Powers Act was not legally effective.

No doubt a blow to any future governments looking to sidestep the undoubted inconvenience to their activities that judicial review represents. But fundamentally important for all of us who worry how tempting it would be for the courts’ role as a check on the unjustified use of state power, to be neutralised in various areas of legislation.

Interesting to see that the Policy Exchange think tank, with its free market views on the planning system, popped up to denigrate the Supreme Court for allowing the appeal:

Professor Richard Ekins, head of thinktank Policy Exchange’s Judicial Power Project, said the ruling ‘undermines the rule of law and violates the sovereignty of parliament’.  He said: ‘A majority of the court has chosen to misinterpret an ouster clause – the statutory provision which expressly limits the High Court’s jurisdiction to review decisions of the Investigatory Powers Tribunal. Parliament chose to limit judicial review by creating a specialist tribunal to consider complaints against the intelligence services. It is not the Supreme Court’s place to unravel this choice.'” (Law Society Gazette, 15 May 2019).

You don’t need a weatherman to know which way the wind blows.

Simon Ricketts, 18 May 2019

Personal views, et cetera

Pic courtesy Bob Dylan

Lessons From The Heathrow Cases

In my 15 October 2016 blog post Airports & Courts I made the obvious prediction that publication by the Secretary of State for Transport of the Airports National Policy Statement (“ANPS”) would inevitably lead to litigation. The ANPS is important because under the Planning Act 2008 it sets the policy basis for a third runway at Heathrow to the north west of the current runways (the “NWR Scheme”).

It was always going to be important for the High Court to be able to rise to the (in a non-legal sense) administrative challenge of disposing of claims efficiently and fairly. The purpose of this blog post is to look at how that was achieved (no easy feat) and what we can learn more generally from the court’s approach to the litigation

The ANPS was designated on 26 June 2018 and five claims were brought seeking to challenge that decision:

⁃ A litigant in person, Neil Spurrier (a solicitor who is a member of the Teddington Action Group)

⁃ A group comprising the London Borough of Richmond-upon-Thames, the Royal Borough of Windsor and Maidenhead, the London Borough of Hammersmith and Fulham, Greenpeace and the Mayor of London

⁃ Friends of the Earth

⁃ Plan B Earth

⁃ Heathrow Hub Limited and Runway Innovations Limited [unlike the other claimants above, these claimants argue for an extension of the current northern runway so that it can effectively operate as two separate runways. This scheme was known as the Extended Northern Runway Scheme (“the ENR Scheme”)]

Arora Holdings Limited joined as an interested party to each set of proceedings in pursuance of their case for a consolidated terminal facility to the west of the airport.

The Speaker for the House of Commons intervened in the Heathrow Hub Limited claim to object to various statements made to Parliament and Parliamentary Committees being admitted in evidence.

The first four claims raised 22 separate grounds of challenge. The fifth claim raised a further five grounds of challenge.

As Planning Liaison Judge, ie effectively lead judge within the Planning Court, Holgate J in my view has played an extremely effective role. Following a directions hearing, ahead of a subsequent pre-trial review three months later, he laid down a comprehensive set of directions on 4 October 2018 which provided for:

⁃ the first four claims to be heard at a single rolled up hearing, followed by the fifth claim

⁃ the cases to be heard by a Divisional Court (ie two or more judges, normally a High Court Judge and a Lord Justice of Appeal. In the event, the four claims were heard by a Divisional Court comprising Hickinbottom LJ and Holgate J. The fifth claim was heard immediately afterwards by a Divisional Court comprising Hickinbottom LJ, and Holgate and Marcus Smith JJ.)

⁃ video link to a second court room and (paid for jointly by the parties in agreed proportions) live searchable transcripts of each day’s proceedings

⁃ procedure to be followed in relation to expert evidence sought to be submitted in support of the first claim

⁃ statements of common ground

⁃ amended grounds of claim, with strict page limits and against the background of a request from the judge to “review the extent to which they consider that any legal grounds of challenge previously relied upon remain properly arguable in the light of the Acknowledgments of Service“, and with specific claimants leading on individual issues

⁃ bundles and skeleton arguments complying with strict page limits and other requirements

⁃ payment of security for costs by Heathrow Hub Limited in the sum of £250,000

⁃ cost capping in the other claims on Aarhus Convention principles

The main proceedings were heard over seven days in March, with the Heathrow Hub proceedings then taking a further three days (followed by written submissions). As directed by Holgate J, hearing transcripts were made publicly available.

Less than six weeks after close of the Heathrow Hub hearing, judgment was handed on 1 May 2019 in both case:

R (Spurrier & others) v Secretary of State (Divisional Court, 1 May 2019)

R (Heathrow Hub Limited & Runway Innovations Limited) v Secretary of State (Divisional Court, 1 May 2019)

The transcript of the first judgment runs to 184 pages and the transcript of the second judgment runs to 72 pages.

I am not going to summarise the judgments in this blog post but happily there is no need as the court at the same time issued a summary, which serves as a helpful précis of the claims and the court’s reasoning for rejecting each of them.

The Divisional Court found that all but six grounds were unarguable (the six being two Habitats Directive grounds from the first case, two SEA grounds from the first case and two from the second case (legitimate expectation and anti-competition). “All the other grounds were not considered not to have been arguable: the claimants may apply for permission to appeal against the Divisional Court’s decision concerning those grounds to the Court of Appeal within 7 days. The remaining six grounds were ultimately dismissed. The claimants may apply to the Divisional Court for permission to appeal within 7 days. If the Divisional Court refuses permission to appeal to the Court of Appeal, the claimants may re-apply directly to the Court of Appeal.”

The Secretary of State for Transport gave a written statement in the House of Commons on the same day, welcoming the judgments.

The two judgments will be essential reading in due course for all involved in similar challenges; the 29 grounds, and various additional preliminary points, cover a wide range of issues frequently raised in these sorts of cases and each is carefully dealt with, with some useful textbook style analysis.

In the Spurrier judgment:

– the scope for challenge of an NPS (paras 86 to 90)

⁃ relationship between the NPS and DCO process (paras 91 to 112)

⁃ extent of duty to give reasons for the policy set out in the NPS (paras 113 to 123)

⁃ consultation requirements in relation to preparation of an NPS (paras 124 to 140)

⁃ standard of review in relation to each of the grounds of challenge (paras 141 to 184)

⁃ the limited circumstances in which expert evidence is admissible in judicial review (paras 174 to 179)

⁃ whether updated information should have been taken into account (paras 201 to 209)

⁃ whether mode share targets were taken into account that were not realistically capable of being delivered (paras 210 to 219)

⁃ the relevance of the Air Quality Directive for the Secretary of State’s decision making (paras 220 to 285)

⁃ compliance with the Habitats Directive (paras 286 to 373)

⁃ compliance with the Strategic Environmental Assessment Directive (paras 374 to 502)

⁃ whether consultation was carried out with an open mind (paras 503 to 552)

⁃ whether the decision to designate the ANPS was tainted by bias (paras 553 to 557)

⁃ the relevance of the Government’s commitments to combat climate change (paras 558 to 660)

⁃ whether there was a breach of the European Convention on Human Rights (paras 661 to 665)

In the Heathrow Hub judgment:

⁃ legitimate expectation (paras 113 to 138)

⁃ use of Parliamentary material in the context of Article 9 of the Bill of Rights (paras 139 to 152)

⁃ competition law (paras 157 to 209).

As we wait to see whether any of these claims go further, I note that Arora has commenced pre application consultation ahead of submitting a draft DCO for a “consolidated terminal facility to the west of the airport, which we are calling Heathrow West, related infrastructure and changes to the nearby road and river network.” Now that is going to be another interesting story in due course. I’m not sure we have previously seen duelling DCOs…

Simon Ricketts, 4 May 2019

Personal views, et cetera

The Office For Environmental Protection

And through it all the Office for Environmental Protection

A lot of love and affection

Whether I’m right or wrong..”

The Secretary of the Environment, Food and Rural Affairs, Michael Gove, presented the draft Environment (Principles and Governance) Bill to Parliament on 19 December 2018.

It is important that we understand the new regime that is proposed and start to form views as to whether it is fit for purpose, given that (1) its provisions will replace the environmental protections currently provided by way of EU law and that (2) it would be unfortunate if any new system were to introduce additional uncertainties, unnecessary requirements or causes of delay. What will the implications be for the English planning system?

Having said that we don’t yet have the full picture.

First, because (following a commitment given by the prime minister in July 2018) this draft Bill is going to be rolled into a wider Environment Bill in 2019 which, according to the draft Bill’s foreword by Michael Gove, “will contain specific measures to drive action on today’s crucial environmental issues: cleaning up our air, restoring and enhancing nature, improving waste management and resource efficiency, and managing our precious water resources better.”

Secondly, because this draft Bill does not yet include the Government’s commitment in the withdrawal agreement to “non regression” from current EU environmental laws (see my 16 November 2018 blog post Big EU News! (Latest CJEU Case on Appropriate Assessment & A Draft Withdrawal Agreement))although of course we wait to see what happens to that agreement, yet to be approved by Parliament.

Thirdly, because the provisions in the draft Bill are a framework for more detail to come forward by way of, for instance, a Government policy statement on environmental principles and a strategy to be prepared by the proposed Office for Environmental Protection setting out how it intends to exercise its functions. More on this later. What this draft Bill does do is discharge the requirement in section 16 of the EU (Withdrawal) Act 2018 for draft legislation to be published setting out the way in which environmental principles will be maintained post-Brexit, and the statutory body that will be established to police them (see my 18 September 2018 blog post Planning, Brexit).

Deal or no deal?

The intention is that this new legal regime should in place ready for when we leave the jurisdiction of EU law. Whilst if we have a withdrawal agreement this will be at the end of any transition period, we could be left with a potential hiatus in the case of a “no deal” Brexit. If there’s no deal there will be more urgently newsworthy issues than the implications of that situation for the environment (it was noteworthy that the publication of the draft Bill last week attracted no real attention from the mainstream media as far as I could see) but this was rightly a matter of concern for the House of Commons Environmental Audit Committee in its report on the Government’s 25 Year Plan for the Environment, to which the Government in its 6 November 2018 Response said this:

Government is confident of leaving the EU with a deal on an implementation period, which the EU has also confirmed it would like to agree. However, we are stepping up preparations within government and Defra to make sure that a new statutory body is in place as soon as is practically achievable in the event of a no deal exit, with the necessary powers to review and, if necessary, take enforcement action in respect of ongoing breaches of environmental law after the jurisdiction of the CJEU has ended. This will mean that the Government will be held accountable as under existing EU law from the day we leave the EU.

As mentioned previously, the EU (Withdrawal) Act will ensure existing EU environmental law continues to have effect in UK law after exit, providing businesses and stakeholders with maximum certainty as we leave the EU. Until the new body is in place, for example, existing mechanisms will continue to apply: the Parliamentary Ombudsman will process complaints about maladministration; and third parties will be able to apply for Judicial Review against government and public authorities.”

The draft Bill

If you click into the draft Bill – and please do because this blog post is not a complete summary – you will see that the draft legislation itself (34 clauses and a schedule) is sandwiched between:

⁃ Michael Gove’s foreword – the first paragraph will give you an idea of the tone:

Leaving the European Union is a once-in-a-lifetime opportunity for this country to help make our planet greener and cleaner, healthier and happier. We are seizing this chance to set a new direction for environmental protection and governance, in line with the government’s ambition to leave our environment in a better state than we inherited it.”

⁃ A long set of explanatory notes which include an explanation of the policy and legal background as well as a detailed commentary on the provisions of the draft Bill, including much by way of statements of what is intended that is absent from the draft Bill itself.

The foreword describes the two main strands of the draft Bill (although in the reverse order to how they are actually dealt with).

Firstly, we will establish a world-leading, statutory and independent environment body: the Office for Environmental Protection (OEP). This body will scrutinise environmental policy and law, investigate complaints, and take action where necessary to make sure environmental law is properly implemented.

Secondly, we will establish a clear set of environmental principles, accompanied by a policy statement to make sure these principles are enshrined in the process of making and developing policies

Definitions

The “environment” can often have a broad meaning.

For instance in the Environmental Impact Assessment Directive the following factors need to be addressed in environmental impact assessment:

“(a) population and human health;
(b) biodiversity, […];
(c) land, soil, water, air and climate;
(d) material assets, cultural heritage and the landscape;

(e) the interaction between the factors referred to in points (a) to (d).”

However, in the draft Bill a much narrower definition is adopted:

“31 (2) Environmental matters are—

(a)  protecting the natural environment from the effects of human activity;

(b)  protecting people from the effects of human activity on the natural environment;

(c)  maintaining, restoring or enhancing the natural environment;

(d)  monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).”

So this is just about the “natural environment“, defined in clause 30 as

“(a)  wild animals, plants and other living organisms,

(b)  their habitats,

(c)  land, water and air (except buildings or other structures and water or
air inside them),

and the natural systems, cycles and processes through which they interact.”

Environmental law” is even narrower, as it is defined as any legislative provision (other than legislation devolved to the Scottish Parliament, Welsh Assembly or, without the Secretary of State’s consent, the Northern Ireland Assembly) that is mainly concerned with an environmental matter and that is not concerned with an excluded matter – excluded matters are:

⁃ greenhouse gas emissions;

⁃ access to information;

⁃ the armed forces, defence or national security;

⁃ taxation, spending or the allocation of resources with government.

The Secretary of State can by regulations specify specific legislative provisions as falling within or outside the definition of “environmental law“.

The explanatory notes to the draft Bill say that, based on these provisions “most parts of legislation concerning the following matters, for example, would normally be considered to constitute environmental law:

⁃ air quality (although not indoor air quality);

⁃ water resources and quality;

⁃ marine, coastal or nature conservation;

⁃ waste management;

⁃ pollution;

⁃ contaminated land.

They go on to assert that the following matters would not normally constitute environmental law:

⁃ forestry;

⁃ flooding;

⁃ navigation;

⁃ town and country planning;

⁃ people’s enjoyment of or access to the natural environment;

⁃ cultural heritage;

⁃ animal welfare or sentience;

⁃ animal or plant health (including medicines and veterinary products);

⁃ health and safety at work.

“”Environmental principles” means the following principles—

(a)  the precautionary principle, so far as relating to the environment,

(b)  the principle of preventative action to avert environmental damage,

(c)  the principle that environmental damage should as a priority be rectified at source,

(d)  the polluter pays principle,

(e)  the principle of sustainable development,

(f)  the principle that environmental protection requirements must be integrated into the definition and implementation of policies and activities,

(g)  the principle of public access to environmental information,

(h)  the principle of public participation in environmental decision-making, and

(i)  the principle of access to justice in relation to environmental matters”

What the Secretary of State must do

The draft Bill provides that Secretary of State must prepare a policy statement on environmental principles. “The statement must explain how the environmental principles are to be interpreted and proportionately applied by Ministers of the Crown in making, developing and revising their policies.” It may also explain how ministers, “when interpreting and applying the environmental principles, are to take into account other considerations relevant to their policies.” Ministers must “have regard” to the policy statement “when making, developing or revising policies dealt with by the statement“. Nothing in the statement shall require a minister to take (or to refrain from taking) any action if it “would have no significant environmental benefit” or “would be in any way disproportionate to the environmental benefit“.

Wow! Regardless of how robust or otherwise the policy statement turns out to be, count the get-outs in that last paragraph.

The draft Bill also provides that the Secretary of State must prepare an environmental improvement plan. The first one will be the current document entitled “A green future: our 25 year plan to improve the environment” (11 January 2018). It must be kept under review, with the next to be completed by 31 January 2023 and thereafter at least every five years.

The Office for Environmental Protection

Details of the membership, staffing and functions of this new body are set out in the schedule to the draft Bill.

The Office for Environmental Protection would monitor and report on environmental improvement plans, monitor the implementation of environmental law, and advise on proposed changes to environmental law. It would also have an important enforcement role.

It must prepare a strategy setting out how it intends to exercise its functions, including its complaints and enforcement policy, having regard to “the particular importance of prioritising cases that it considers have or may have national implications, and the importance of prioritising cases—

(a)  that relate to ongoing or recurrent conduct,

(b)  that relate to conduct that the OEP considers may cause (or has caused) significant damage to the natural environment or to human health, or

(c)  that the OEP considers may raise a point of environmental law of general public importance.”

The explanatory notes suggest that individual planning decisions will not be a focus of the OEP’s attention:

The definition of national implications will be for the OEP to determine, but this provision is intended to steer the OEP to act in cases with broader, or more widespread significance, rather than those of primarily local concern. For example, an individual local planning or environmental permitting decision would not normally have national implications, whereas a matter with impacts or consequences which go beyond specific local areas or regions could have.

Anyone except public bodies can raise a complaint with the OEP where a public authority has failed to comply with environmental law. The public authority’s internal complaints procedure must first have been exhausted. The explanatory notes state:

A wide range of bodies including the Environment Agency, Natural England and the Planning Inspectorate, for instance, operate complaints procedures which will apply to their functions concerned with the implementation of environmental law.”

Complaints must be made within a year of the failure complained of, or within three months of when any internal complaints procedure was exhausted. The OEP “may” carry out an investigation if in its view the complaint indicates that the authority has failed to comply with environmental law and “the failure is serious“. It must provide to the authority a report as to whether it considers that the authority has failed to comply with environmental law, its reasoning and recommendations (whether for the authority or generally) in the light of its conclusions. There will be a process of information notices and decision notices. The authority receiving a decision notice must respond within two months or such later timescale is given, setting out whether it agrees with the notice and what steps it intends to take.

There is then a curious clause, clause 25, which deals with enforcement. Within three months of the deadline for the authority responding to the decision notice, the OEP can make an application to the High Court for judicial review. After any such proceedings, the relevant authority must publish a statement “that sets out the steps (if any) it intends to take in light of the outcome of those proceedings“.

So what would these proceedings seek to achieve? A declaration from the court or something more, some kind of enforcing order? Would the authority’s decision that is the subject of the complaint be liable to be quashed? If so, plainly concerns arise that decisions will no longer be able to be safely relied upon by parties where the usual judicial review period has expired – it would be worrying if decisions could be at risk for much longer via this elongated OEP complaints procedure.

Concluding thoughts

Without seeing the rest of what will be in the eventual Environment Bill, and without see the nature of any “non regression” commitment (if indeed it survives the current politics), I’m left feeling entirely unclear what practical role the mechanisms in the draft Bill will really have. There are certainly numerous questions:

⁃ Are the definition of environmental matters and environmental law too narrow?

⁃ Will the policy statement on environmental principles either be too weak or alternatively extend its reach into other regimes, for instance leading to the risk of causing confusion as to the application of principles set out in the National Planning Policy Framework?

⁃ Are there too many get-outs on the part of Government?

⁃ Will the OEP really be able to influence the Government’s approach when it comes to politically contentious issues? The Committee on Climate Change has not been a good precedent.

⁃ Is there confusion as to the role of the OEP when it comes to investigating possible breaches of environmental law, in that surely this is a matter for existing enforcement bodies such as the Environment Agency and for the courts?

And whilst from the explanatory notes the intention appears to be that this regime would not directly affect town and country planning, in reality matters such as environmental impact assessment, strategic environmental assessment and the treatment of protected nature conservation sites are central to the planning process, so it seems to me that unfortunately this isn’t a debate that planners and planning lawyers can ignore.

Simon Ricketts, 22 December 2018

Personal views, et cetera

Town Library, New Wing: Decision Letters

Town announcement

One of the joys of starting up Town Legal with colleagues has been the opportunity to play with technology so as to see how up to date information relevant to planners and planning lawyers can be made more readily available, with a little bit of focus on where the gaps are. We have constantly asked ourselves what may be useful to increase people’s understanding and ability to predict outcomes, but which may not be fully accessible?

That was the rationale for the Planning Court Judgments weekly update (with its click through to a full, searchable, list of Planning Court judgments since 2014), announced in my 2 August 2018 blog post . The update now has around 370 subscribers. The latest update, for the week ending 16 November 2018, is at this link. Free subscription is still available via this link. I am really grateful for the hard work of Susie Herbert and other Town associates in preparing, to a weekly deadline, the various case summaries.

We can now announce another Town Library service: a weekly list of decision letters issued in the preceding week by the Secretary of State or Planning Inspectorate. The list comprises section 77 and 78 appeals in relation to proposals for major development that have been determined following a public inquiry, rather than informal hearing or written representations. The latest update, for the week ending 16 November 2018 is at this link. Free subscription is available via this link.

This latest service goes beyond the Planning Court judgments service in that it is fully automated. It was again devised by us in association with legal engineers Wavelength Law, drawing upon the Planning Inspectorate’s website. We are grateful to the Planning Inspectorate for its online service and hope that our weekly updates will assist people both in accessing its content and in generally gaining a better understanding of likely appeal outcomes. Not part of the free update service but with Wavelength’s help we can re-cut the PINS data (which we have in a searchable database going back to 2012) in all manner of ways for individual requirements – if this would be useful for a particular project that we are acting on do let me know – or another Town partner.

Please bear with us as we continue to experiment with update formats and continue to iron out various issues but, as always, comments and suggestions are very welcome. We have plenty more strands of development underway.

I have always loved libraries.

Simon Ricketts, 22 November 2018

Personal views, et cetera

A Promise Is A Promise

I set out the principles of legitimate expectation in my 24 March 2018 blog post Once More Unto The Breach Of Legitimate Expectation, Dear Friends and referred to 29 November 2017 Lang J’s judgment at first instance in Save. The Court of Appeal has now partly overturned that judgment, in R (Save Britain’s Heritage) v Secretary of State (Court of Appeal, 4 October 2018). The case resulted from the Secretary of State’s decision not to call in the application for planning permission for the proposed Paddington Cube development, although given that planning permission and listed building consent was subsequently granted by Westminster City Council for that development, which was beyond challenge, these proceedings continued to the Court of Appeal on a basis which was only academic as far as that development was concerned.

Lang J had reached a curious conclusion. She accepted that a legitimate expectation had arisen, as a result of statements in 2001 (first in a green paper and then in ministerial statements), repeated in a 2010 ministerial statement, that the Secretary of State would give reasons when deciding not to exercise his power to call in planning decisions. But she found that “in 29 February 2014, in the course of preparation for the High Court case of Westminster City Council v Secretary of State for Communities and Local Government [2014] EWHC 708 (Admin), a departmental decision was made to cease the practice of giving reasons” and therefore the earlier statements and practice relied upon by the claimant “could no longer found an expectation that reasons would be given. If any such expectation was held, it had ceased to be a legitimate one, because of the change in practice.”

Lang J accordingly dismissed the claim, in effect concluding that a promise could be publicly given by Government and privately retracted.

The Court of Appeal took a different view. The judgment of Coulson LJ is pretty scornful as to the Government’s position and the circumstances of the alleged 2014 change in policy:

It is the SoS’ case that, at some unknown date early in 2014, a decision was taken not to give reasons for a decision declining to call in an application and that, since then, such decision letters have been issued without giving reasons. The confused circumstances in which this change came about, and the extent to which it could fairly be said to be a change of policy at all, are dealt with in greater detail in Section 5 below.”

“…it is a recipe for administrative chaos if a legitimate expectation can be generated by an unequivocal ministerial promise, only for it then to be lost as a result of an unadvertised change of practice.”

“…it is worth noting how and why the SoS says that this change of practice occurred. It appears that, in the Westminster case, the Minister had given reasons for not calling in the decision which were plainly wrong on their face. As a result of this error, somebody (and it is quite unclear who) within the Department for Communities and Local Government decided that it would be more prudent for reasons not to be given under s.77. In consequence, changes were made to the template letter sent out (to the relevant LPAs, or to the objectors who had requested call in) when a decision was made not to call in an application under s.77. Mr Harwood QC was therefore right to say that this was not an open or transparent way to withdraw a public ministerial promise made in Parliament.”

“…a close textural analysis of the samples included in the court bundle only serves to confirm that the alleged change of practice relied on by the SoS was negligible.

From the SoS’ point of view, therefore, so far, so bad: but it gets worse. Ms Lieven QC was counsel for the SoS in the Westminster case. When Lang J asked her how it was that the change in practice had occurred, it was apparent from her answers (given on instructions) that, at the time of the Westminster case in 2014, nobody in the Department recalled or had in mind the unequivocal promise made in 2001 (and repeated in 2010). Thus, Mr Harwood QC was right to submit that the change in practice relied on by the SoS was brought about in ignorance of the 2001 policy promise. So, even on the SoS’ case, the promise to give reasons was never consciously withdrawn, whether for good reason or not; it had instead been forgotten altogether. In consequence, neither of the typical answers to a legitimate expectation claim identified in paragraph 39 above (a conflict with other statutory duties or a reasonable decision not, after all, to honour the promise) can arise on the facts of this case. It is difficult to see how a person can be said to have changed a policy of which they were unaware at the relevant time.”

Accordingly, it seems to me that the legitimate expectation rightly identified by Lang J did not come to an end as a result of the confusion and muddle generated by the Westminster case and/or the apparent decision to make, at best, minor changes to the template letter. An unequivocal promise was made, and that unequivocal promise should have been publicly withdrawn when (or if) a conscious decision was taken no longer to give reasons for not calling in applications under s.77. For these reasons, I consider that SAVE’s legitimate expectation case has been made out.”

A separate ground of appeal, that Lang J was wrong not to find that there was a general duty to give reasons, quite aside from any legitimate expectation, failed.

The 2014 Westminster case referred to in Save did indeed cause “confusion and muddle“. That case related to a challenge by English Heritage to the decision of the then Secretary of State not to call in an application for planning permission made to Lambeth Borough Council for the redevelopment of Elizabeth House, next to Waterloo Station. In that case Westminster City Council was an objector, having objected to the application and having sought call-in without success.

Whilst it was accepted that there was no general duty to give reasons, the argument made was that the Secretary of State had volunteered reasons and therefore they had to be adequate.

The Secretary of State’s letters to Westminster City Council and Lambeth Borough Councils, informing them that the application would not be called in, were said by Collins J to be “badly drafted” and on their face showing errors in the application of the Secretary of State’s call in policy.

The judgment contains this classic sentence in relation to the letter sent to Lambeth:

It is so obviously wrong particularly, as will become apparent, when read with the advice given that it cannot and does not reflect the defendant’s thinking.”

Collins J accepted the submissions of Nathalie Lieven QC, on behalf of the Secretary of State, that the letter was so bad that it could not have been intended to contain any reasoning!

Ms Lieven supported by Mr Harris and Mr Simons submitted that the letter was doing no more than informing the recipient LBL that the defendant had decided not to call in the application. She accepted as was inevitable that it was poorly drafted and that in effect that part of it should be ignored. It was not purporting to give reasons. She relies on the advice given to the defendant and in effect submits that since neither the defendant nor Mr Boles could conceivably have believed that it did not engage some of the matters which required consideration to be given to calling in the application it could not have set out the defendant’s thinking nor could it properly have done so.

Mr Cameron understandably expressed surprise that it was said that the letter was so obviously wrong that the defendant could not have meant what is set out in it. However, I am satisfied that regrettably that is the case. The letter cannot be regarded as one which was intended to give reasons. The defendant was relying on his right not to give reasons and the letter must be read accordingly. It is plain when the advice to him is seen that he could not have been unaware of nor could he have misunderstood his policy. It follows that the first three grounds relied on must fail since in addition there is no question of giving reasons. While it may be that it would be desirable if the defendant were required to give reasons why he decided not to call-in in a case which did meet the criteria for call-in but it is not open to me in the light of the existing authorities to impose such a duty.”

A brave but successful defence. No wonder that in the context of those letters being under the microscope, civil servants presumably decided that it would be safer to stay well away from giving reasons – although the Secretary of State was fortunate that the claimant did not argue breach of legitimate expectation, because surely, on the basis now of Save, that case was wrongly decided

So what is the practical effect of the Court of Appeal’s ruling in Save? It is a useful statement of the law in relation to legitimate expectation where that expectation arises by way of a promise and of immediate effect in relation to future decisions which the Secretary of State may make as to whether or not to call in planning applications for his own determination but of course the Secretary of State can change his policy on giving reasons at any time, as long as he does it formally and openly. Will he?

Simon Ricketts, 5 October 2018

Personal views, et cetera

Pic courtesy of Mixology