Environmental Judicial Review 9781472565655, 9781849460019

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Preface In judicial review context is everything. The willingness of the courts to intervene through judicial review is influenced by a host of considerations, including the relevant statutory scheme, the nature of the decision maker, the particular species of power under scrutiny, the status and motives of the claimant, as well as the nature of the rights and interests at stake. Consequently, administrative lawyers must not only be fluent in the general principles of judicial review; they must also understand how the application of those principles is shaped by the particular administrative context under consideration. This is especially true in the case of judicial review claims relating to the environment, which possess a number of distinctive characteristics that greatly influence the application of familiar judicial review principles. First, environmental claims tend to be among the most factually complex judicial review proceedings, involving voluminous factual, policy and technical material. Second, there is considerable pressure on the judiciary to become engaged in substantive review of high-level policy in environmental cases (for example, policies on the future of nuclear power or the location of new airports). Third, much of environmental law is affected by esoteric principles of European Union (EU) law, such as ‘the polluter pays’ and the ‘precautionary principle’. These principles influence the interpretation of the relevant statutory scheme and determine purposes for which a decision-maker may act. Fourth, there is a much greater emphasis on the need for public participation and consultation in the environmental context. Environmental law is the pathfinder in terms of developing duties to consult, disclose and give reasons. Finally, problems of economic access to justice are particularly acute in the environmental law sphere, leading to many procedural disputes concerning standing, protective costs orders and security for costs. This book seeks to provide a detailed analysis of how the general principles of judicial review operate in the context of environmental law. It does not seek to provide an account of any particular substantive area of environmental law; rather, its aim is to provide readers with a clear understanding of the way in which the courts approach environmental judicial review claims. Chapter one examines the dynamics of environmental judicial review claims and identifies the key controversies that environmental judicial review gives rise to. Chapter two identifies the main sources of substantive environmental law and policy and considers the ways in which the courts interpret and review them. Chapter three focuses on the general principles of environmental law, such as the precautionary principle. In particular, it considers the extent to which these general principles are legally enforceable. Chapters four through seven consider the procedure governing judicial review claims, in particular the questions of standing, disclosure and litigation funding. Chapter eight explores the remedies available in environmental judicial review claims. Chapters nine through fifteen analyse how the courts apply the traditional grounds for judicial review in the environmental context. These chapters consider review for error of law and fact, retention of discretion, abuse of discretion, legitimate expectations, fair hearings, bias and predetermination, and human rights.

vi Preface The final part of the book examines the importance of EU law in relation to public law claims concerning the environment. Chapter sixteen contains a detailed discussion of the principle of direct effect and explains the rights that individuals may derive from EU environmental legislation. Chapter seventeen describes the preliminary reference procedure. Chapter eighteen explains the limited utility of the action for annulment and the action for failure to act in the environmental context and how this is attributable to the unduly restrictive standing rules applied by the Court of Justice of the European Union (ECJ). Chapter nineteen focuses on the European Commission’s enforcement powers and examines the extent to which they complement individuals’ rights and can be harnessed to overcome some of the difficulties faced by prospective claimants, such as the prohibitively high costs of environmental judicial review. Finally, chapter twenty analyses the detailed regime governing access to environmental information. Fifteen years ago there would have been no need for a book such as this. Environmental judicial review claims were rarer than the species and habitats they sought to protect. But now environmental judicial review is thriving, thanks to a significant increase in regulatory action to protect and preserve the environment. Some of that regulatory action significantly curtails commercial operators’ activities; some of it does not go as far as environmentalists would like; and some of it is subject to fierce scientific debate. But one thing is certain: all of it makes work for the Administrative Court.

Acknowledgements There are many people to whom I owe a large debt of thanks. I am extremely grateful to Leon Glenister and Yaaser Vanderman for the invaluable research assistance that they provided. I was also fortunate enough to secure the excellent research assistance of Alistair Mills, whose work at the proof stage has saved me from a number of infelicities. I am grateful to Fitzwilliam College, Cambridge for the research leave which enabled me to complete the majority of the text. My colleagues Professor Richard Hooley and Nicky Padfield have been particularly supportive and encouraging. I would like to express my warm thanks to my colleagues at Landmark Chambers whose generous and insightful comments have greatly assisted me. In particular, the advice and encouragement I have received from David Elvin QC and James Maurici is very gratefully acknowledged. I am grateful to all those at Hart Publishing who have been involved with the production of this book, especially Richard Hart, Mel Hamill, Tom Adams and Lisa Gourd. I have sought to state the law as at 31st March 2011, but it has been possible to include some material since that date. This book is lovingly dedicated to my wife Eleanor. Richard Moules

table of cases A v Secretary of State for the Home Department (No 2) [2007] UKHL 71, [2006] 2 AC 221...............................................................................................................................25 Aannemersbedrifj PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C–72/95) [1996] ECR I–5403............................................. 40, 176, 297–99, 301, 319 Aegis Group Plc v Inland Revenue Commissioners [2005] EWHC 1468 (Ch)....................78 AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507..........133 Airedale NHS Trust v Bland [1993] AC 789.........................................................................152 Airey v Ireland Series A, No 32 (1979–80) 2 EHRR 305............................................... 251–52 Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780............................186 American Cyanamid Co v Ethicon Ltd [1975] AC 396................................................. 161–62 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147........165–66, 171–72 Antonelli v Allen (No 2), The Times, 8 December 2000.......................................................133 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd (Case C–253/00) [2002] ECR I–7289........................................293 Anufrijeva v Southwark LBC [2003] EWCA Civ 1406, [2004] QB 1124..................... 276–78 Archer v IC and Salisbury DC (EA/2006/0037) IT, 9 May 2007..................................351, 356 Ardagh Glass Ltd v Chester City Council and Ellesmere Port Authority [2009] EWHC 745; upheld [2010] EWCA Civ 172, [2010] Env LR 32.........................149, 241–42 Artegodan GmbH v Commission (Case T–74/00) [2002] ECR II–4945..............................55 Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320........................................................................................................................183 Ashley v Secretary of State for Communities and Local Government [2011] EWHC 1892 (Admin).....................................................................................................................251 Ashworth v United Kingdom, Application No 39561/98, 20 January 2004........................283 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223..................................................................... 3, 176, 194, 208, 213–22, 231–32, 244 Associazione Italiana per il World Wildlife Fund v Regione Veneto (Case C–118/94) [1996] ECR I–1223................................................................................................... 299–300 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546...................................................................................275 Atlanta Fruchthandelgesgesellschaft mbH v Bundesamt für Ernährung und Forstwirtshaft (Case C–465/93) [1995] ECR I–3761.......................................................323 ATRAL SA v Belgian State (Case C–14/02) [2003] ECR I–4431.........................................296 Attorney General of Gambia v N’Jie [1961] AC 617............................................................115 Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629...................225, 229, 233 Austin v Commissioner of Police of the Metropolis [2005] EWHC 480 (QB)..................279 Austin v Secretary of State for Communities and Local Government [2008] EWHC 3200 (Admin)........................................................................................................134 Ayr Harbour Trustees v Oswald (1882–83) 8 App Cas 623.......................................... 198–99 Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817.................................226

xiv  Table of Cases Barbone v Secretary of State for Communities and Local Government [2009] EWHC 463 (Admin), [2009] Env LR D12..............................................................19–20, 46 Bard Campaign v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin)..............................................................................................124 Barnard v National Dock Labour Board [1953] 2 QB 18....................................................186 Barwick and Rusz v Bridgend County Borough Council [2009] EWHC 1723 (Admin)..............................................................................................................................243 Becker (Ursula) v Finanzamt Münster-Innenstadt (Case 8/81) [1982] ECR 53....295, 302–3 Begum v Tower Hamlets LBC [2003] 2 AC 430...................................................................180 Behuli v Secretary of State for the Home Department [1998] Imm AR 407......................226 Belfast City Council v Miss Behavin’ Ltd (Northern Ireland) [2007] UKHL 19, [2007] 1 WLR 1420............................................................................................................222 Belize Alliance of Conservation Nongovernmental Organisations v Department of the Environment [2004] UKPC 6, [2004] Env LR 38..............................12, 118, 181–82 Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467.....................................................273 Bennett v Secretary of State for Communities and Local Government [2007] EWHC 737 (Admin)..........................................................................................................134 Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2001] 2 AC 603...........................................................................40–41, 159–60, 241 Birkdale District Supply Co Ltd v Southport Corp [1926] AC 355............................. 198–99 Blackburn v Attorney General [1971] 1 WLR 1037...............................................................24 Blackland Park Exploration Ltd v Environment Agency [2003] EWCA Civ 1795, [2004] Env LR 652.................................................................................................................7 Board of Education v Rice [1911] AC 179............................................................................149 Boddington v British Transport Police [1999] 2 AC 143...............................................94, 147 Boddy v Information Commissioner and North Norfolk DC, IT, 23 June 2008................354 Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176.....................134 Bourgoin v Ministry of Agriculture, Fisheries and Food [1986] QB 716...........................315 Bovis Homes Ltd v New Forest DC [2002] EWHC 483 (Admin)...............................261, 264 Boyle v Criminal Cases Review Commission [2007] EWHC 8 (Admin)...........................279 Brasserie du Pêcheur SA v Bundesrepublik Deutscheland; R v Secretary of State for Transport, ex p Factortame Ltd (Cases C–46/93 and C–48/93) [1996] ECR I–1029................................................................................................................. 313–16 Breen v Amalgamated Engineering Union [1971] 2 QB 175........................................ 237–38 Brinkmann Tabakfabriken GmbH v Skatteministeriet (Case C–319/96) [1998] ECR I–5255........................................................................................................................316 British Aggregates Association v European Commission (Case T–210/02) [2006] ECR II–2789.........................................................................................................................32 British Aggregates Association v European Commission (Case C–487/06 P) [2008] ECR I–10505........................................................................................................................32 British Colombia (Minister of Forests) v Okanagan Indian Band (2003) 114 CCR 2d 108.................................................................................................................................138 British Oxygen Co Ltd v Minister of Technology [1971] AC 610.......................................195 British Steel v Customs & Excise Commissioners (No 1) [1996] 1 All ER 1002..................92 British Transport Commission v Westmoreland CC [1958] AC 126..................................199 Bromley v Information Commissioner (EA/2006/0072) IT 31 August 2007.....................358 Bromley LBC v GLC [1983] 1 AC 768..................................................................................196

Table of Cases  xv Bruyère v Belgian State (Case C–297/94) [1996] ECR I–1551............................................328 Bugdaycay v Secretary of State for the Home Department [1987] AC 514........................207 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Amsberg (Case C–115/09), unreported, 12 May 2011...............108 Bund Naturschutz in Bayern eV and Others v Freistaat Bayern (Case C–244/05) [2006] ECR I–8445............................................................................................................335 Bunney v Burns Anderson Plc [2007] EWHC 1240...............................................................93 Burgess v Information Commissioner and Stafford Borough Council (EA/2006/0091), 7 June 2007.........................................................................................................................359 Bushell v Secretary of State for the Environment [1981] AC 75..................... 20, 46, 191, 251 C, re [2007] EWCA Civ 2.......................................................................................................279 Calvin v Carr [1980] AC 574.................................................................................................260 Campus Oil v Minister for Industry and Energy (Case 72/83) [1984] ECR 2727..............327 Carltona Ltd v Commissioners of Works [1943] 2 All ER 560..................................... 190–93 Carter Commercial Developments v Bedford BC [2001] EWHC Admin 669.....................93 Celestini v Saar-Sektkellerei Faber GmbH & Co KG (Case C–105/94) [1997] ECR I–2971........................................................................................................................327 Chassagnou v France (2000) 29 EHRR 615..........................................................................286 Cheshire County Council v Secretary of State for the Environment [1988] JPL 30... 188–89 Chundawadra v IAT [1988] Imm AR 161.............................................................................226 CIA Security International SA v Signalson SA (Case C–194/94) [1996] ECR I–2201.......309 CILFIT (Case 283/81) [1982] ECR 3415..............................................................................326 Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988................74, 92–93 Coast National Park Authority [2005] EWHC 1872 (Admin)..............................................25 Cocks v Thanet District Council [1983] 2 AC 286.................................................................91 Coedbach Action Team v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin).............................................................................................................103, 145 Collins v United Kingdom (2003) 36 EHRR CD6........................................................ 231–32 Comitato di Coordinamento per la Difesa della Cava v Regione Lombardia (Case C–236/92) [1994] ECR I–483.....................................................................300–1, 304 Commission v Belgium (Case 293/85) [1988] ECR 305......................................................338 Commission v Belgium (Case C–207/97) [1999] ECR I–275.............................................339 Commission v Council (Case 45/86) [1987] ECR 1493......................................................331 Commission v France (Case 167/73) [1974] ECR 359........................................................339 Commission v France (Case C–166/97) [1999] ECR I–1719..............................................304 Commission v France (Case C–374/98) [2000] ECR I–10779............................................304 Commission v France (Case C–292/99) [2002] ECR I–4097..............................................305 Commission v France (French Nitrates) (Case C–258/00) [2002] ECR I–5959....302, 304–5 Commission v France (Case C–177/03) [2004] ECR I–11671............................................339 Commission v France (Case C–239/03) [2004] ECR I–9325................................................29 Commission v Germany (Case C–131/88) [1991] ECR I–825............................................304 Commission v Germany (Case C–361/88) [1991] ECR I–2567..................................299, 304 Commission v Germany (Leybucht Dykes) (Case C–57/89) [1991] ECR I–883.......301–2, 340 Commission v Germany (Case C–58/89) [1991] ECR I–4983............................................299 Commission v Germany (Case C–59/89) [1991] ECR I–2607....................................299, 304 Commission v Germany (Case C–317/92) [1994] ECR I–2093..........................................339 Commission v Germany (Case C–422/92) [1995] ECR I–1097..........................................339

xvi  Table of Cases Commission v Germany (Case C–217/97) [1999] ECR I–5087..........................................343 Commission v Greece (Case 192/84) [1985] ECR 3967......................................................337 Commission v Greece (Case 272/86) [1988] ECR 4875......................................................343 Commission v Greece (Case C–45/91) [1991] ECR I–2509................................................340 Commission v Germany (Case C–287/00) [2002] ECR I–5811..........................................339 Commission v Greece (Case C–420/02) [2004] ECR I–11175..................................... 340–41 Commission v Ireland (Case 74/82) [1984] ECR 317..........................................................338 Commission v Ireland (Case C–494/01) [2005] ECR I–3331.........................336–37, 340–41 Commission v Ireland (Case C–215/06) [2008] ECR I–4911.............................................242 Commission v Ireland (Case C–427/07) [2009] ECR I–6277...............................29, 116, 136 Commission v Italy (Case 39/72) [1973] ECR 101..............................................................293 Commission v Italy (Case 92/79) [1980] ECR 1099..............................................................30 Commission v Italy (Case C–33/90) [1991] ECR I–5987....................................................337 Commission v Italy (San Rocco) (Case C–365/97) [1999] ECR I–7773...............305, 339–41 Commission v Italy (Case C–82/03) [2004] ECR I–6035....................................................337 Commission v Netherlands (Case 96/81) [1982] ECR 1391........................................ 342–44 Commission v Netherlands (Case C–3/96) [1998] ECR I–3031.................................304, 338 Commission v Netherlands (Case C–96/89) [1991] ECR I–2461.......................................339 Commission v Netherlands (Case C–41/02) [2004] ECR I–11375.......................................55 Commission v Netherlands (Case C–350/02) [2004] ECR I–6213.....................................339 Commission v Portugal (Case C–239/04) [2006] ECR I–10183...........................................58 Commission v Spain (Case C–355/90) [1993] ECR I–4221............................209, 301, 303–4 Commission v Spain (Case C–278/01) [2003] ECR I–14141..............................................342 Commission v United Kingdom (Case C–337/89) [1992] ECR I–6103.............................294 Commission v United Kingdom (Case C–508/03) [2006] ECR I–3969.............................318 Congreve v Home Office [1976] QB 629..............................................................................203 Cooper v HM Attorney General [2010] EWCA Civ 464, [2010] 3 CMLR 28.....................................................................................................88, 312, 317–20 Cooperativa Agricola Zootecnica S Antonio v Amministrazione delle finanze dello Stato (Case C–246/94) [1996] ECR I–4373......................................................................295 Corbiau v Administration des Contributions du Grand-Duché de Luxembourg (Case C–24/92) [1993] ECR I–1277.................................................................................324 Costa v ENEL (Case 6/64) [1964] 3 ECR 585...............................................................290, 325 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374............................................................................................ 24, 68, 100, 214, 225, 232 Cox v Secretary of State for Communities and Local Government [2010] EWHC 104 (Admin)..........................................................................................................180 CREEDNZ v Governor General [1981] 1 NZLR 172...........................................................204 Criminal Proceedings against Antonio Niselli (Case C–457/02) [2004] ECR I–10853......................................................................................................................295 Criminal Proceedings against Euro Tombesi (Case C–304/94) [1997] ECR I–3561..........295 Criminal Proceedigns against Kolpinghuis.Nijmegen BV (Case 80/86) [1987] ECR 3969............................................................................................................................294 Criminal Proceedings against Luciano Arcaro (Case C–168/95) [1996] ECR I–4705..........................................................................................................295, 310–11 Criminal Proceedings against Lyckeskog (Case C–99/00) [2002] ECR I–4839, [2003] 1 WLR 9..................................................................................................................325

Table of Cases  xvii Criminal Proceedings against Marco Antonio Saetti (Case C–235/02) [2004] ECR I–1005........................................................................................................................295 Criminal Proceedings against Saddik (Case C–458/93) [1995] ECR I–511.......................324 Criminal Proceedings against Tullio Ratti (Case 148/78) [1979] ECR 1629......294, 296, 307 Cummings (FH) v Weymouth and Portland BC [2007] EWHC 1601 (Admin)................250 Customs and Excise Commissioners v ApS Samex [1983] 1 All ER 1042..........................327 D v Home Office [2005] EWCA Civ 38, [2006] 1 WLR 1003................................................93 Da Costa (Cases 28/62 to 30/62) [1963] ECR 61.................................................................326 Dainton v Information Commissioner and Lincolnshire CC (EA 2007/0020) IT, 10 September 2007.............................................................................................................361 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] AC 1 69....................................................................................................222 Demouche v Fonds de garantie automobile and Bureau central français (Case C–152/83) [1987] ECR 3833.............................................................................................323 Denev v Sweden, Application No 12570/86, 59 DR 127......................................................286 Denkavit International v Bundesamt für Finanzen (Cases C–283/94, C–291/94 and 292/94) [1996] ECR I–5063..............................................................................................315 Dennis v Ministry of Defence [2003] EWHC 793, [2003] Env LR 34................................286 Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin).....................................................................212 Dias (Case C–343/90) [1992] ECR I–4673...........................................................................326 Dillenkofer v Bundesrepublik Deutschland (Case C–178/94) [1996] ECR I–4845...........315 Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301.............................262–63, 271 Dinedor Hill Action Association v County of Herefordshire District Council [2008] EWHC 1741 (Admin), [2009] 1 P & CR 4.................................................... 119–20 Dobson v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC), [2008] 2 All ER 362; [2009] EWCA Civ 28, [2009] 3 All ER 319...........................................279, 284–85 Doughty v Rolls Royce Plc [1992] IRLR 126........................................................................306 Downs v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664, [2009] 3 CMLR 46..................................................16, 36–37, 217–18, 282 DPPv Haw [2008] 1 WLR 379...............................................................................................193 Dragaggi & Others (Case C–117/03) [2005] ECR I–167, [2005] Env LR 31........................58 Dreyfus v Commission (Case C–386/96 P) [1998] ECR I–2309.................................. 334–35 Durayappah v Fernando [1967] 2 AC 337............................................................................237 E v Secretary of State for the Home Department [2004] QB 1044.............................. 180–81 Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566............................114 Ecologistas en Acción-CODA v Ayuntamiento de Madrid (Case C–142/07) [2008] ECR–I 6097..................................................................................................................40, 176 Eley v Secretary of State for Communities and Local Government [2009] EWHC 660 (Admin).......................................................................................................................181 Elli, The see Golden Fleece Maritime Inc v ST Shipping and Transport Inc Ellis v Dubowski [1921] 3 KB 621.........................................................................................194 Erich Gasser Gmbh v MISAT Srl (Case C–116/02) [2005] 1 QB 1, [2003] ECR I–14693......................................................................................................................324 Eshugbayi Eleko v Government of Nigeria [1931] AC 662.................................................183 Essex County Council v Minister of Housing and Local Government (1967) 66 LRG 23.............................................................................................................................49

xviii  Table of Cases European Parliament and Denmark v Commission (Cases C–14/06 and C–295/06) [2008] ECR I–1649....................................................................................................... 41–42 Ezeh v United Kingdom (2004) 39 EHRR 1.........................................................................250 Fadeyeva v Russia (2007) 45 EHRR 10.................................................................................281 Findlay, re [1985] AC 318......................................................................................................204 Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496...........................246 Foglia v Novello (Case 104/79) [1980] ECR 745..................................................................324 Foglia v Novello (No 2) (Case 244/80) [1981] ECR 3045....................................................324 Foster v British Gas plc (Case C–188/89) [1990] ECR I–3313................................306–7, 311 Foto-Frost v Hauptzollamt Lübeck-Ost (Case 314/85) [1987] ECR 4199..............8, 323, 335 Francis v Home Office [2006] EWHC 3021 (QB)...............................................................279 Francovich v Italian Republic (Cases C–6/90 and 9/90) [1991] ECR I–5357....................................................................................303, 311–14, 316–17, 326 Franklin v Minister of Town and Country Planning [1948] AC 87....................................261 Fratelli Costanzo SpA v Comune di Milano (Case C–103/88) [1989] ECR 1839....................................................................................................................................307 Fratelli Variola SpA v Amministrazione italiana delle Finanze (Case 34/73) [1973] ECR 981..............................................................................................................................292 Friends of the Earth v Information Commissioner and Export Credit Guarantee Department (EA/2006/0073), 30 August 2007.................................................................358 Friends of the Earth and Help the Aged v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin)....................................................210 Garland v British Rail Engineering Ltd [1983] 2 AC 751....................................................310 Ghaidan v Mendoza [2004] UKHL 30, [2004] 2 AC 557.....................................................273 Giacomelli v Italy, Application No 59909/00, 2 November 2006.................................. 281–82 Gianni Bettati v Safety Hi–Tech Srl (Case C–341/95) [1998] ECR I–4355...........................56 Gillick v West Norfolk and Wisbech AHA [1986] AC 112............................................ 151–53 Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781............................................................................................................................... 266–67 Golden Fleece Maritime Inc v ST Shipping and Transport Inc (The Elli) [2008] EWCA Civ 584, [2008] 2 Lloyd’s Rep 119...........................................................................25 Goodson v HM Coroner for Bedfordshire and Luton [2005] EWCA Civ 1172, [2006] CP Rep 6...................................................................................................137–39, 141 Gouriet v Union of Post Office Workers [1978] AC 435.............................................. 99–100 Greenpeace v Commission (Case T–585/93) [1995] ECR II–2205.....................................333 Greenpeace v Commission (Case C–321/95) [1998] ECR I–1651......................................333 Griffin v South West Water Services Ltd [1995] IRLR 15....................................................307 Grimaldi v Fonds des maladies professionnelles (Case C–322/88) [1989] ECR 4407.......322 Guerra v Italy (1998) 26 EHRR 357..............................................................................280, 283 Gunn-Russo v Nugent Care Society [2001] EWHC 566 (Admin), [2002] 1 FLR 1...........196 Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004] EWCA Civ 576, [2004] 1 WLR 3002...............................................................................................76 Hardy v Pembrokeshire County Council [2006] EWCA Civ 240..........................................86 Hart v Relentless Records Ltd [2002] EWHC 1984 (Ch), [2003] FSR 36...........................266 Hatton v United Kingdom (2003) 37 EHRR 28...........................................................272, 283 Hauer v Land Rheinland-Pfalz (Case 44/79) [1979] ECR 3727..........................................221 Hayange (Case 105/79) [1979] ECR 2257............................................................................328

Table of Cases  xix Hertfordshire CC v Secretary of State for Communities and Local Government [2009] EWHC 1280 (Admin)............................................................................................212 High v Billing (1903) 89 LT 550............................................................................................186 Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities and Local Government [2009] EWHC 2287 (Admin)....................................................................................................................... 114–15 HK (An Infant), re [1967] 2 QB 617.....................................................................................239 Hoffmann-La Roche (F) and Co AG v Secretary of State for Trade and Industry [1975] AC 295............................................................................................................. 162–63 Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581.............................................................................................222 Hunter v Canary Wharf Ltd [1997] AC 655.........................................................................284 Ilhan v Turkey (2002) 34 EHRR 36.......................................................................................112 Ingetraut Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda (Case C–419/92) [1994] ECR I–505............................................................................................307 Inter-Environmental Wallonie ASBL v Région Wallonie (Case C–129/96) [1997] ECR I–7411................................................................................................................. 296–97 Irish Creamery Milk Suppliers Association v Irish Government (Cases 36/80 and 71/80) [1981] ECR 735......................................................................................................327 Janecek (Dieter) v Friestaat Bayern (Case C–237/07) [2008] ECR I–6221.........................291 Jégo Quéré (Case T–177/01) [2002] ECR II–2365...............................................................334 JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418..........................................................................................................................24–25, 225 Johnson v Chief Constable of the Royal Ulster Constabulary (Case 222/84) [1986] ECR 1651............................................................................................................................306 Kanda v Government of the Federation of Malaysia [1962] AC 322..................................249 Keston Ramblers Association v Information Commissioner and Bromley LBC (EA/2005/0024) IT, 26 October 2007................................................................................355 Kingsley v United Kingdom (2002) 35 EHRR 177...............................................................271 Kirkaldie v Information Commissioner and Thanet DC (EA/2006/001) IT, 4 July 2006..........................................................................................................349, 351, 359 Klass v Germany (1978) 2 EHRR 214...................................................................................113 Köbler v Austria (Case C–224/01) [2003] ECR I–10239......... 111, 289, 311–12, 316–19, 326 Kofisa Italia Srl v Ministero delle Finanze (Case C–1/99) [2000] ECR I–207....................324 Kurt v Turkey (1999) 27 EHRR 373......................................................................................112 Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113.................................................262 Lambeth LBC v Secretary of State for the Environment [1990] JPL 196............................233 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C–127/02) [2004] ECR I–7405.........................................................................58, 299 Lane v Esdaile [1891] AC 210..................................................................................................79 Lars and Astrid Fagerskiold v Sweden, Application No 37664/04, 26 February 2008........283 Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231........................................................................................................................194 Leary v NUVB [1971] Ch 34.................................................................................................260 Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270......................................................................................................................59

xx  Table of Cases Ledyayeva v Russia, Application Nos 53157/99, 53247/99, 53695/00 and 56850/00, 26 October 2006.................................................................................................................281 Lee v Secretary of State for Education and Science (1967) 111 Sol Jo 756.........................245 Leech v Deputy Governor of Parkhurst Prison [1988] AC 533.............................................71 Leeson v General Council of Medical Education and Registration (1890) LR 43 Ch D 366............................................................................................................................262 Legg v ILEA [1972] 1 WLR 1245...........................................................................................247 Lesoochranárske Zoskupenie VLK v Slovakia (Case C–240/09), unreported , 8 March 2011................................................................................................................. 107–8 Liversidge v Anderson [1942] AC 206...................................................................................193 Lloyd v McMahon [1987] AC 625.......................................................................5, 239–40, 248 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451.........................263–64, 267, 270 López Ostra v Spain Series A, No 303–C (1995) 20 EHRR 277..................................280, 283 Lough v First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557....................223 Lownds v Home Office [2002] EWCA Civ 365, [2002] 1 WLR 2450..................................134 M v Home Office [1994] 1 AC 377.........................................................................150, 155–56 Macarthys v Smith [1979] 3 CMLR 44, [1980] 2 CMLR 217..............................................310 Maclaine Watson & Co Ltd v Attorney General [1990] 2 AC 418.........................................68 Mangold (Werner) v Rüdiger Helm (Case C–144/04) [2005] ECR I–9981........................297 Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42....................223, 275 Markinson v Information Commission (EA/2005/0014; FER0061168) IT, 28 March 2006....................................................................................................................351 Markku Sahlstedt v Commission (Case C–362/06 P) [2009] ECR I–2903.........................334 Marleasing SA v La Comercial Internacional de Alimentacion SA (Case 106/89) [1990] ECR 4135................................................................................................................310 Marshall v Southampton and South-West Hampshire Area Health Authority (Case 152/84) [1986] ECR 723..............................................................................305–6, 308 Mass Energy Ltd v Birmingham City Council [1994] Env LR 298................................ 81–82 Maxwell v United Kingdom, Series A, No 300–C, (1995) 19 EHRR 97..............................250 McArthur v Lord Advocate [2006] SLT 170.................................................................138, 140 McInnes v Onslow-Fane[1978] 1 WLR 1520................................................................ 238–39 Medicaments and Related Classes of Goods (No 2), re [2001] 1 WLR 700........................265 Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513......................264 Meilicke (Case C–83/91) [1992] ECR I–4871......................................................................326 Merricks v Heathcoat-Amory [1955] Ch 567.......................................................................156 Mersey Tunnel Users Association v Information Commissioner and Halton BC (EA/2009/0001) IT 24 June 2009......................................................................................355 Milch-, Fett- und Eierkontor (Case 29/68) [1969] ECR 165...............................................329 Milk Marketing Board of England and Wales v Tom Parker Farms Ltd [1998] 2 CMLR 721.......................................................................................................................229 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273..........................................................................................................225–27, 229–30 Ministère public v Mathot (Case 98/86) [1987] ECR 809...................................................323 Ministère public v Oscar Traen (Cases 372–374/85) [1987] ECR 2141..............................295 Moch v Nedtravel (Pty) Ltd 1996 (3) SA 1...........................................................................265 Mohit v DPP of Mauritius [2006] UKPC 20, [2006] 1 WLR 3343.......................................68 Monge v Hampshire County Council [2010] EWCA Civ 608, [2010] PTSR 1882..............31

Table of Cases  xxi Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, [2009] Env LR 30.........................................................................................................25, 29–30, 141 MT (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808.......180 Municipal Council of Sydney v Campbell [1925] AC 338...................................................202 Nahar v Social Security Commissioners [2001] EWHC Admin 1049 [2002] FCR 442; endorsed on appeal [2002] EWCA Civ 859, [2002] ACD 105.........................................228 Nakkuda Ali v Jayaratne [1951] AC 66.................................................................................239 National Association of Health Stores v Secretary of State for Health [2003] EWHC 3133....................................................................................................................................244 National Union of Teachers v Governing Body of St Mary’s Church of England (Aided) Junior School [1997] 1 IRLR 242........................................................................307 Nelms v Roe [1970] 1 WLR 4................................................................................................192 Netherlands v Council (Case C–58/94) [1996] ECR I–2169.......................................... 20–21 Network Rail Ltd v Information Commissioner and Network Rail Infrastructure Ltd (EA/2006/0061 and EA/2006/0062) IT, 17 July 2007.......................................................353 New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466.........130 Norris v Ireland (1988) 13 EHRR 186..................................................................................112 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration (Case 26/62) [1963] ECR 3............................292–93, 297 O’Reilly v Mackman [1983] 2 AC 237...................................................... 90–93, 119, 172, 262 O’Rourke v Camden LBC [1998] AC 188...............................................................................91 Oerlemans v Netherlands, Application No 12565/86, 62 DR 200.......................................286 OFCOM v Information Commissioner and T–Mobile Ltd (EA 2006/0078) IT, 4 September 2007...................................................................................350–51, 357, 359–60 Öneryildiz v Turkey (2005) 41 EHRR 20..............................................................................285 OSS Group v Environment Agency [2007] EWCA Civ 611, [2007] 3 CMLR 30............ 9–10 Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25, [2006] 2 AC 674.................................................................................................................153 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997......................202, 206 Palm Developments Ltd v Secretary of State for Communities and Local Government and Medway Council [2009] EWHC 220 (Admin), [2009] 2 P & CR 16...........................4 Paola Faccini Dori v Recreb Srl (Case C–91/92) [1994] ECR I–3325.................................305 Pascoe v First Secretary of State [2006] EWHC 2356 (Admin), [2007] 1 WLR 885..........253 Pearlman v Keepers and Governors of Harrow School [1979] QB 56................................172 Pelham Homes v Secretary of State for the Environment (1995) 69 P & CR 64................233 People’s Union for Civil Liberties v Union of India [1999] 2 LRC 19................................226 Petition of Kincardine and Deeside District Council v Forestry Commissioners [1993] Env LR 151.............................................................................................................307 Pfeiffer v Deutsches Rotes Kreuz (Cases C–397/01 to C–403/01) [2004] ECR I–8835......310 Pfizer Animal Health SA v Council (Case T–13/99) [2002] ECR II–3305..................... 56–57 Phillips v Eyre (1870–71) LR 6 QB 1....................................................................................271 Plaumann v Commission (Case 25/62) [1963] ECR 95............................................... 332–33 Poh, re [1983] 1 WLR 2...........................................................................................................80 Politi sas v Ministry for Finance of the Italian Republic (Case 43/71) [1971] ECR 1039............................................................................................................................292 Port of London Authority v Information Commissioner and Hibbert (EA/2006/0083) IT, 31 May 2007..................................................................................................................353

xxii  Table of Cases Porter v Magill [2001] UKHL 67, [2002] 2 AC 357...............................................201, 264–66 Posti and Rahko v Finland (2003) 37 EHRR 6.....................................................................286 Powell and Rayner v United Kingdom Series A, No 172 (1990) 12 EHRR 355........... 282–83 Practice Statement (Administrative Court: Listing and Urgent Cases) [2002] 1 WLR 810............................................................................................................................80 Pretore di Salo v Persons Unknown (Case 14/86) [1987] ECR 2545....................294–95, 328 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402.................12, 182 Procureur de la République v Association de Défense de Brûleurs d’Huiles Usagées (Case 240/83) [1985] ECR 531............................................................................................30 Provident Mutual Life Assurance Association v Derbyshire City Council [1981] 1 WLR 173................................................................................................................... 187–89 Proxxon v Oberfinanzdirektion Köln (Case C–500/04) [2006] ECR I–1545.....................328 R (on the Application of A, B, X and Y) v East Sussex County Council [2005] EWHC 585 (Admin)..........................................................................................................134 R (on the Application of ABNA Ltd) v Secretary of State for Health and Food Standards Agency [2003] EWHC 2420 (Admin), [2004] Eu LR 88........................321, 323 R (on the Application of Actis SA, Actis Insulation Ltd) v Secretary of State for the Communities and Local Government [2007] EWHC 344 (Admin)................. 123–24 R (on the Application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295......................................180 R (on the Application of Alison Hardy) v Milford Haven Port Authority [2007] EWHC 1883 (Admin), [2007] EWCA Civ 1403........................................................ 128–29 R (on the Application of Amvac Chemical UK Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2001] EWHC Admin 1011....................60–61, 245 R (on the Application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837...................................................................................213 R (on the Application of Anti-Waste Ltd) v Environment Agency [2007] EWCA Civ 1377, [2008] 1 WLR 923...............................................................................................74 R (on the Application of Asif Javed v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129.............................................................................215 R (on the Application of Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397.........................221 R (on the Application of B) v Camden LBC [2005] EWHC 1366 (Admin).......................279 R (on the Application of Badger Trust) v Welsh Ministers [2010] EWCA Civ 807................................................................................ 169–70, 177–78, 184, 207–8, 220 R (on the Application of Baiai) v Secretary of State for the Home Department [2006] EWHC 1035 (Admin)............................................................................................279 R (on the application of Baird) v Environment Agency [2011] EWHC 939 (Admin)..............................................................................................................................243 R (on the Application of Baker) v Bath and North East Somerset Council [2009] EWHC 3320 (Admin)........................................................................................................149 R (on the Application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453.................................... 227–28 R (on the Application of Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 1031 (Admin)..............................................................134 R (on the Application of Bapio Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139; [2008] UKHL 27, [2008] 1 AC 1003...........228, 242

Table of Cases  xxiii R (on the Application of Barker) v Bromley LBC (Case C–290/03) [2006] ECR I–3949, [2006] QB 764........................................................................................................39 R (on the Application of Barker) v Bromley LBC [2006] UKHL 52, [2007] 1 AC 470.............................................................................................................................318 R (on the Application of Bateman and Bateman) v Legal Services Commission [2001] EWHC Admin 797.................................................................................................133 R (on the Application of Beale) v Camden LBC [2004] EWHC 6 (Admin).......................245 R (on the application of Bedford) v Islington LBC [2002] EWHC 2044 (Admin), [2003] Env LR 22........................................................................................................ 125–26 R (on the Application of Bernard) v Secretary of State for the Home Department [2005] EWHC 452 (Admin)..............................................................................................279 R (on the Application of Bibi) v Newham LBC [2001] EWCA Civ 607, [2002] 1 WLR 237........................................................................................206–7, 224, 229, 232–34 R (on the Application of Biglife: the Invertebrate Conservation Trust) v Medway Council [2011] EWHC 746 (Admin).................................................................................85 R (on the Application of Birch) v Barnsley MBC [2010] EWHC 416 (Admin), [2010] Env LR 38; [2010] EWCA Civ 1180..............................................................190, 207 R (on the Application of Blewett) v Derbyshire County Council [2004] EWCA Civ 1508, [2005] Env LR 15...............................................................................................205 R (on the Application of Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724.....................................................................228 R (on the Application of Blow-Up Media UK Ltd) v Lambeth LBC [2008] EWHC 1912 (Admin), [2009] 1 P & CR 10........................................................................... 188–89 R (on the Application of Bodimeade) v Camden LBC [2001] EWHC Admin 271, (2001) 4 CCLR 246............................................................................................................234 R (on the Application of Boggis and Easton Bavents Conservation) v Natural England [2009] EWCA Civ 1061, [2010] PTSR 725........................18, 70, 159–60, 178–79 R (on the application of Boxall) v The Mayor and Burgesses of Waltham Forest LBC (2001) 4 CCLR 258....................................................................................................135 R (on the Application of Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800......................................................................................... 73–74 R (on the Application of the British Medical Association) v Secretary of State for Health [2008] EWHC 599 (Admin).................................................................................232 R (on the Application of Bristol-Myers Squibb Pharmaceuticals Ltd) v National Institute for Health and Clinical Excellence [2009] EWHC 2722 (Admin), [2010] CMLR 31.......237 R (on the Application of the British Union for the Abolition of Vivisection) v Secretary of State for the Home Department [2006] EWHC 250 (Admin)...........136, 140 R (on the Application of Buglife) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209, [2009] CP Rep 8........................................... 140–41 R (on the Application of Buglife) v Thurrock Thames Gateway Development Corporation [2009] EWCA Civ 29, [2009] 2 P & CR 8.............................................. 44–45 R (on the Application of Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273..........................................................................................................153 R (on the Application of Burkett) v Hammersmith and Fulham LBC (No 1) [2002] UKHL 23, [2002] 1 WLR 1593..................................................................80, 83, 119 R (on the Application of Burkett) v Hammersmith and Fulham LBC [2003] EWHC 1031.................................................................................................................12, 181

xxiv  Table of Cases R (on the Application of Chief Constable of West Midlands Police) v Birmingham Justices [2002] EWHC 1087 (Admin), The Times, 5 June 2002......................................192 R (on the Application of Clays Lane Housing Co-operative Ltd) v Housing Corporation [2004] EWCA Civ 1658, [2005] 1 WLR 2229...................................................................223 R (on the Application of CND) v The Prime Minister [2002] EWHC 2712 (Admin)......136 R (on the Application of Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749, [2009] 1 WLR 1436.....................................................................................139, 141 R (on the Application of Condron) v Merthyr Tydfil CBC [2010] EWCA Civ 534, [2010] 3 CMLR 32...............................................................................................................88 R (on the Application of Condron) v National Assembly for Wales [2006] EWCA Civ 1573, [2007] 2 P & CR 4...................................................................................... 268–69 R (on the application of Co-operative Group Ltd) v Northumberland County Council [2010] EWHC 373 (Admin), [2010] Env LR 40...............................................................183 R (on the Application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600..................................136–41, 143–45 R (on the Application of Countryside Alliance) v Attorney General [2006] EWCA Civ 817, [2007] QB 305.....................................................................................................113 R (on the Application of Cowl) v Plymouth City Council [2001] EWCA Civ 1935, [2002] 1 WLR 803....................................................................................................74–75, 77 R (on the Application of Cummins) v Camden LBC [2001] EWHC Admin 1116....................................................................................................................................261 R (on the Application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.......................................................197, 216–17, 222–23 R (on the Application of Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166, [2008] 1 WLR 878.............................................................................................132 R (on the Application of Delena Wells v Secretary of State for Transport, Local Government and the Regions (Case C–201/02) [2004] ECR I–723...........88–89, 308, 318 R (on the Application of Derwent Holdings Ltd) v Trafford BC [2009] EWHC 1337 (Admin)........................................................................................................................87, 119 R (on the Application of Dhadly) v Greenwich LBC [2001] EWCA Civ 1822...................148 R (on the Application of Eastway) v Secretary of State for Trade and Industry [2000] 1 WLR 2222........................................................................................................................317 R (on the Application of Edwards) v Environment Agency (No 1) [2004] EWHC 736 (Admin), [2004] 3 All ER 21..........................................................................105–6, 136 R (on the Application of Edwards) v Environment Agency (No 2) [2006] EWCA Civ 877; [2008] UKHL 22, [2008] 1 WLR 1587................... 69, 146, 158, 160, 243, 246–49 R (on the Application of Edwards and Pallikaropoulos) v Environment Agency [2010] UKSC 57.................................................................................................................146 R (on the Application of Enfield LBC) v Mayor of London [2007] EWHC 1795 (Admin), [2008] Env LR 9.................................................................................................220 R (on the Application of Enfield LBC) v Secretary of State for Health [2009] EWHC743 (Admin)...........................................................................................................244 R (on the application of England) v Tower Hamlets LBC [2006] EWCA Civ 1742...........139 R (on the Application of English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin)................................................................................81–82, 89–90, 132 R (on the Application of European Roma Rights Centre) v Immigration Officer at Prague Airport [2003] EWCA Civ 666...................................................................... 226–27

Table of Cases  xxv R (on the Application of Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583, [2006] 1 WLR 1260.............................................................78, 97, 131–32 R (on the Application of Faisaltex Ltd) v Crown Court at Preston [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687....................................................................................87 R (on the Application of Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546, [2004] 1 WLR 1761......................................105 R (on the Application of Finn-Kelcey) v Milton Keynes Borough Council [2008] EWHC 1650 (Admin), [2009] Env LR 4...........................................................83, 86–87, 90 R (on the Application of Fisher) v English Nature [2004] EWCA Civ 663, [2005] 1 WLR 147..........................................................................................................................203 R (on the Application of Friends of the Earth) v Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 2983 (Admin).......................... 124–25 R (on the Application of Friends of the Earth Ltd and Greenpeace) v Secretary of State for Environment, Food and Rural Affairs [2001] EWCA Civ 1847, [2002] Env LR 24.............................................................................................................................80 R (on the Application of Friends of the Earth and Help the Aged) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin)..........................................................................................................................38, 42 R (on the Application of Garner) v Elmbridge BC [2010] EWCA Civ 1006............... 143–46 R (on the Application of Gentle) v Prime Minister [2005] EWHC 3119 (Admin)................................................................................................................................81 R (on the Application of Goodman and Hedges) v Lewisham LBC [2003] EWCA Civ 140, [2003] Env LR 28...........................................................................176–77, 190, 219 R (on the Application of Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673..................................................................276, 278–80 R (on the Application of Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWCA Civ 1036, [2002] 1 WLR 3304............................154 R (on the Application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), [2007] Env LR 29............................. 47, 49, 150, 235, 243–47 R (on the Application of H) v Ashworth Hospital Authority [2001] EWHC Admin 872, [2002] 1 FCR 206.......................................................................................................196 R (on the Application of Hadfield) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1266 (Admin)..........................................252 R (on the Application of Hardy and Maile) v Pembrokeshire County Council and Pembrokeshire Coast National Park Authority [2005] EWHC 1872 (Admin)................22 R (on the Application of Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin), [2009] JPL 365.............................................58 R (on the Application of Hillingdon LBC) v Lord Chancellor [2008] EWHC 2683 (Admin)..............................................................................................................................243 R (on the Application of Hillingdon LBC) v Secretary of State for Transport [2010] EWHC 626 (Admin), [2010] JPL 976.............................................................47–48, 50, 243 R (on the Application of Holding & Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295......195, 221 R (on the Application of Horner) v Lancashire CC [2007] EWCA Civ 784, [2008] Env LR 10...............................................................................................................206 R (on the Application of Hughes) v Liverpool City Council [2005] EWHC 428 (Admin)..............................................................................................................................279

xxvi  Table of Cases R (on the Application of Hulme) v Secretary of State for Communities and Local Government [2010] EWHC 2386 (Admin).............................................................. 160–61 R (on the Application of IATA and ELFA) v Secretary of State for Transport (Case C–344/04) [2006] ECR I–403.................................................................................323 R (on the Application of Ibrahim) v Redbridge LBC [2002] EWHC 2756 (Admin).........234 R (on the Application of International Association of Independent Tanker Owners) v Secretary of State for Transport [2006] EWHC 1577 (Admin), [2007] Env LR 8...........................................................................................................25, 323 R (on the Application of International Association of Independent Tanker Owners) v Secretary of State for Transport (Case C–308/06) [2008] ECR I–4057............................26 R (on the application of Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, [2005] Imm AR 535................................................................................180 R (on the Application of Island Farm Development Ltd) v Bridgend County BC [2006] EWHC 2189 (Admin), [2007] BLGR 60...............................................................268 R (on the Application of Jeremy Guiney) v Greenwich LBC [2008] EWHC 2012 (Admin)................................................................................................................................86 R (on the Application of Jacqueline Tratt) v Horsham District Council [2007] EWHC 1485 (Admin)........................................................................................................257 R (on the Application of Jones) v Mansfield District Council [2003] EWCA Civ 1408, [2004] Env LR 21.............................................................................................183, 219 R (on the Application of Jones) v Swansea City and County Council [2007] EWHC 213 (Admin)..........................................................................................................158 R (on the Application of Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37....238 R (on the Application of Lebus) v South Cambridgeshire DC [2002] EWHC 2009 (Admin), [2003] Env LR 17...............................................................................................183 R (on the Application of Lewis) v Redcar & Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83......................................................................................................... 269–70 R (on the Application of Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304, [2001] 3 PLR 33........................................................................................22 R (on the application of Lika) v Secretary of State for the Home Department [2002] EWCA Civ 1855.................................................................................................................226 R (on the Application of Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin)..................................................................................... 256–57 R (on the Application of London & South East Railway Ltd v British Transport Police [2009] EWHC 1255 (Admin).................................................................................134 R (on the Application of Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin)..............................................................................................................................180 R (on the Application of Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840..............................................................................................................222 R (on the Application of Malster) v Ipswich Borough Council [2001] EWHC Admin 711, [2002] PLCR 14..........................................................................................................219 R (on the Application of Marchiori) v Environment Agency [2002] EWCA Civ 3, [2002] Eu LR 225.......................................................................................................... 45–46 R (on the application of McDougal) v Liverpool City Council [2009] EWHC 1821 (Admin)..............................................................................................................................180 R (on the Application of McVey) v Secretary of State for Health [2010] EWHC 1225 (Admin), [2010] CP Rep 38..............................................................................................117

Table of Cases  xxvii R (on the Application of Medway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin), [2003] JPL 583...............................................................................................47, 49–50, 113, 243–44 R (on the Application of Mellor) v Secretary of State for Communities and Local Government) (Case C–75/08) [2009] ECR I–3799............................................................... 258–59 R (on the Application of Midcounties Co-operative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin)...................................................................... 257–58 R (on the Application of the Ministry of Defence) v Wiltshire and Swindon Coroner [2005] 4 All ER 40..............................................................................................................138 R (on the Application of MK (Iran)) v Secretary of State for the Home Department [2010] EWCA Civ 115, [2010] 1 WLR 2059.....................................................................272 R (on the Application of Morge) v Hampshire County Council [2010] EWCA Civ 608, [2010] PTSR 1882; upheld on appeal [2011] UKSC 2 [2011] IWLR 268.........................................................................................172–73, 175, 177, 208–9 R (on the Application of Morris) v Newport City Council [2009] EWHC 3051 (Admin)..............................................................................................................................246 R (on the Application of Mount Cook Land Ltd and Mount Eden Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, [2004] CP Rep 12..............67, 130–32 R (on the Application of Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [2004] QB 395...................................................................................................157 R (on the Application of Murray) v Derbyshire County Council [2002] EWCA Civ 31, [2003] QB 503.......................................................................................................205 R (on the Application of Napier) v Secretary of State for the Home Department [2004] EWHC 936 (Admin), [2004] 1 WLR 3056...........................................................279 R (on the Application of National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154..............................................................126–27, 191 R (on the Application of Newport City Council) v Welsh Ministers [2009] EWHC 3149 (Admin), [2010] Env LR 27.........................................................................218 R (on the Application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74......................125, 218 R (on the Application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755.......................................................................................225, 230, 232 R (on the Application of Noble Organisation Ltd) v Thanet District Council [2005] EWCA Civ 782, [2006] Env LR 8..........................................................................13–14, 219 R (on the Application of Norton) v Lambeth LBC [2007] EWHC 3476 (Admin)..............87 R (on the Application of O) v Secretary of State for the Home Department [2010] EWHC 709 (Admin)..........................................................................................................134 R (on the Application of Office of Communications) v Information Commissioner [2009] EWCA Civ 90; [2010] UKSC 3, [2010] Env LR 20........................................ 356–57 R (on the Application of Ortona Ltd) v Secretary of State for Communities and Local Government [2009] EWCA Civ 863.......................................................................267 R (on the Application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002.............................................................93, 197 R (on the Application of P) v Secretary of State for the Home Department [2003] EWHC 2953 (Admin)........................................................................................................279 R (on the Application of Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin)................................85

xxviii  Table of Cases R (on the Application of Partingdale Land Residents’ Association) v Barnet LBC [2003] EWHC 947 (Admin)..............................................................................................243 R (on the Application of Patel) v Lord Chancellor [2010] EWHC 2220 (Admin)...............90 R (on the Application of Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin).......................................................................................................................226 R (on the Application of Primary Health Investment Properties Ltd) v Secretary of State for Health [2009] EWHC 519 (Admin)..................................................................123 R (on the Application of Queen Mary University of London) v Higher Education Funding Council for England (HEFCE) [2008] EWHC 1472 (Admin).................. 122–23 R (on the Application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72l [2008] QB 836.................................................................................44 R (on the Application of Ralph Bulger) v Secretary of State for the Home Department [2001] EWHC Admin 119, [2001] 3 All ER 449..............................................................103 R (on the Application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, [2005] Imm AR 608............................................................. 229–30 R (on the Application of Redcar and Cleveland Borough Council) v Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 1847 (Admin)..............................................................................................................................126 R (on the Application of Repic Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] EWHC 2015 (Admin), [2010] Env LR 24........................35, 62 R (on the Application of Richards) v Secretary of State for the Home Department [2004] EWHC 93 (Admin)................................................................................................279 R (on the Application of Roberts) v Secretary of State for Communities and Local Government [2008] EWHC 677 (Admin).......................................................................232 R (on the Application of Rockware Glass Ltd) v Chester City Council and Quinn Glass Ltd [2005] EWHC 2250 (Admin), [2006] Env LR 30....................................... 14–15 R (on the Application of Roudham & Larling Parish Council) v Breckland Council [2008] EWCA Civ 714 Costs LR 282.................................................................................132 R (on the Application of Royal Borough of Kensington and Chelsea) v Secretary of State for Communities and Local Government [2009] EWHC 1854 (Admin)................................................................................................................................44 R (on the Application of Rushbridger) v Attorney General [2003] UKHL 38, [2004] 1 AC 357.....................................................................................................................113, 154 R (on the Application of Sardar) v Watford Borough Council [2006] EWHC 1590.........243 R (on the Application of SB) v Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, [2006] 2 WLR 719.............................................................................................222 R (on the Application of Selter Associates Ltd) v Leicestershire City Council [2005] EWHC 2615 (Admin)........................................................................................................189 R (on the Application of Smeaton) v Secretary of State for Health (Costs) [2002] EWHC 886 (Admin), [2002] 2 FLR 146...................................................................133, 153 R (on the Application of Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin), (2003) 6 CCL Rep 251..............................................................................247 R (on the Application of TH) v Crown Court at Wood Green [2006] EWHC 2683 (Admin), [2007] 1 WLR 1670...........................................................................................279 R (on the Application of Thames Water Utilities) v Bromley Magistrates’ Court (Case C–252/05) [2007] ECR I–3883 (ECJ), [2008] EWHC 1763 (Admin), [2009] 1 WLR 1247..........................................................................................................................10

Table of Cases  xxix R (on the Application of Theophilus) v Lewisham LBC [2002] EWHC 1371 (Admin), [2002] 3 All ER 851............................................................................................................234 R (on the Application of Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 1580, [2005] 1 WLR 1267................................................................................................................286, 334 R (on the Application of United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 675, [2002] Env LR 21...............................................................................................................152 R (on the Application of Vale of White Horse District Council) v Secretary of State for Communities and Local Government [2009] EWHC 1847 (Admin)..............................44 R (on the Application of Valpak) v Environment Agency [2002] EWHC 1510 (Admin), [2002] Env LR 36.................................................................................................................61 R (on the Application of Wagstaff) v Secretary of State for Health [2001] 1 WLR 292.....229 R (on the Application of Wall) v Brighton & Hove City Council [2004] EWHC 2582 (Admin), [2005] 1 P & CR 3...................................................................................... 255–57 R (on the Application of Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin), [2006] 1 EGLR 91......................................................................47, 247 R (on the Application of WB) v Leeds School Organisation Committee [2002] EWHC 1927 (Admin).....................................................................................................................136 R (on the Application of Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363...................................................................................275 R (on the Application of Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419...................................................................................93 R (on the Application of Woolley) v Cheshire East BC [2009] EWHC 1227 (Admin), [2010] Env LR 5.................................................................................................................207 R (on the Application of Wye Valley Action Association Ltd) v Herefordshire Council [2009] EWHC 3428 (Admin), [2010] Env LR 18; reversed [2011] EWCA Civ 20...............................................................................................................40, 219 R (on the Application of Zeqiri) v Secretary of State for the Home Department [2001] EWCA Civ 342; [2002] Imm AR 42......................................................................226 R (William Kemp (a Patient by His Litigation Friend, Derek Kemp)) v Denbighshire Local Health Board [2006] EWHC 181 (Admin), [2007] 1 WLR 639..............................78 R v Aston University Senate, ex p Roffey [1969] 2 QB 538..................................................260 R v Barnet LBC, ex p B [1994] ELR 357...............................................................................243 R v Bexley LBC, ex p Barnehurst Golf Club Ltd [1992] COD 382......................................233 R v Birmingham City Council, ex p Dredger [1993] COD 340..........................................233 R v Birmingham City Council, ex p Ferrero Ltd [1993] All ER 530..............................70, 260 R v Board of Visitors of HM Prison, The Maze, ex p Hone [1988] AC 379........................250 R v Bouchereau (Case 30/77) [1977] ECR 1999...................................................................221 R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119...........................................................................................146, 263–64, 270 R v Brent LBC, ex p Dorot Properties [1990] RA 137..........................................................157 R v Brent LBC, ex p Gunning (1985) 84 LGR 168.......................................................233, 243 R v Brentwood Superintendent Registrar of Marriages, ex p Arias [1968] 2 QB 956.............................................................................................................................158 R v British Coal Corporation, ex p Ibstock Building Products Ltd [1995] Env LR 277.....350 R v Brixton Prison Governor, ex p Enahoro [1963] 2 QB 455............................................186

xxx  Table of Cases R v Broadcasting Complaints Commission, ex p Owen [1985] QB 1153...........................206 R v Cambridge Health Authority [1995] 1 WLR 898...........................................................211 R v Camden LBC, ex p Martin [1997] 1 WLR 359...............................................................130 R v Ceredigion County Council, ex p McKeown [1998] 2 PLR 1...................................83, 87 R v Chief Constable of Merseyside, ex p Calverley [1986] QB 424.......................................71 R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418.......................................................................................................207, 211–12, 216 R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin).......79 R v Chiswick Police Station Superintendent, ex p Sacksteder [1918] 1 KB 578.................193 R v City of London Corporation, ex p Matson [1997] 1 WLR 765.....................................254 R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310............................254 R v Commission for Racial Equality, ex p Cottrell and Rothon [1980] 1 WLR 1580........186 R v Commissioner for Local Administration, ex p Croydon LBC [1989] 1 All ER 1033................................................................................................................................89 R v Commissioners for Customs and Excise, ex p Cooke and Stevenson [1970] 1 All ER 1068......................................................................................................................157 R v Commissioners for Custom and Excise, ex p F&I Services Ltd [2001] EWCA Civ 762, [2001] STC 939....................................................................................................228 R v Commissioners for Customs and Excise, ex p Mortimer [1998] 3 All ER 229...............70 R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330................................180 R v Dairy Produce Quota Tribunal for England and Wales, ex p Caswell [1990] 2 AC 738...............................................................................................................................82 R v Darlington BC and Darlington Transport Company Ltd, ex p the Association of Darlington Taxi Owners [1994] COD 424...................................................................106 R v Department of Education and Employment, ex p Begbie [2000] 1 WLR 1115..............................................................................................................225, 228–29, 232 R v Derbyshire County Council, ex p Woods [1998] Env LR 277, [1997] JPL 958.................................................................................................................................43 R v Devon County Council, ex p Baker [1995] 1 All ER 73.........................................230, 242 R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326..................................226 R v Durham County Council, ex p Huddlestone [2000] Env LR D21................................163 R v East Sussex CC, ex p Tandy [1998] AC 714....................................................................209 R v Epping and Harlow General Commissioners, ex p Goldstraw [1983] 3 All ER 257......70 R v Falmouth and Truro Port Health Authority, ex p South West Water [2001] QB 445..................................................................................................................74, 229, 233 R v Felixstowe Justices, ex p Leigh [1987] QB 582...............................................................102 R v Gaming Board of Great Britain, ex p Benaim and Khaida [1970] 2 QB 417...............249 R v Gloucestershire CC, ex p Barry [1997] AC 584..............................................................209 R v Gough [1993] AC 646.......................................................................................262, 264–65 R v Hammersmith and Fulham LBC, ex p Trustees of the Council for the Protection of Rural England (London Branch) (2001) 81 P & CR 73..............................................317 R v Hereford Magistrates’ Court, ex p Rowlands [1998] QB 110..........................................73 R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242................................................................................................................... 253–54 R v Hillingdon Health Authority, ex p Goodwin [1984] ICR 800.......................................246 R v Hillingdon LBC, ex p Pulhofer [1986] AC 484..............................................................179 R v HM Coroner for Greater Manchester, ex p Tal [1985] QB 67................................ 173–74

Table of Cases  xxxi R v HM Customs and Excise, ex p Davies Products (Liverpool) Ltd, unreported, 25 June 1991................................................................................................................ 327–28 R v HM Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329..........................................................................................................................99, 104 R v HM Treasury, ex p British Telecommunications plc (Case C–392/93) [1996] ECR I–1631........................................................................................................................315 R v HM Treasury, ex p Smedley [1985] QB 657...................................................................102 R v Home Secretary, ex p Duggan [1994] COD 258............................................................233 R v Home Secretary, ex p Oladehinde [1991] 1 AC 254............................................... 191–93 R v Home Secretary, ex p Simms [2000] 2 AC 115..............................................................197 R v Home Secretary, ex p Tarrant [1985] QB 251................................................................250 R v Howard [1902] 2 KB 363................................................................................................271 R v Hull University Visitor, ex p Page [1993] AC 682............................................172–74, 177 R v Huntingdon District Council, ex p Cowan [1984] 1 All ER 58.......................................72 R v Inhabitants of Leake 110 ER 863; (1833) 5 B & Ad 469.................................................198 R v Inland Revenue Commissioners, ex p MFK Underwriters [1990] 1 WLR 1545..........227 R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses (NFSSB) Ltd [1982] AC 617................................100–2, 111, 118–19 R v Inland Revenue Commissioners, ex p Preston [1985] AC 835................................. 70–71 R v Inner London Education Authority, ex p Westminster City Council [1986] 1 WLR 28............................................................................................................................204 R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139.................................265 R v International Stock Exchange, ex p Else Ltd [1993] QB 534.........................................327 R v Kirklees Metropolitan Borough Council, ex p Beaumont [2001] ELR 204..................134 R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941............................................ 119–20 R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711.................................................. 102–3 R v Leicester County Council, ex p Blackfordby & Boothorpe Action Group Ltd [2000] EHLR 215................................................................................................... 106–7 R v Liverpool CC, ex p Newman (1993) 5 Admin LR 669...................................................135 R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299.........................................................................................................148, 233 R v London CC, ex p Corrie [1918] 1 KB 68........................................................................196 R v Lord Chancellor, ex p The Law Society, The Times, 26 June 1993.................................233 R v Lord Saville of Newdigate, ex p B (No 2) [2000] 1 WLR 1855......................................216 R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574.............................................164 R v Minister for Immigration, ex p Lam (2003) 195 ALR 502............................................226 R v Minister of Agriculture, Fisheries and Food, ex p Fedesa (Case C–331/88) [1990] ECR I–4023..........................................................................................55–56, 221–22 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Case C–5/94) [1996] ECR I–2553..................................................................................................... 315–16 R v Ministry of Defence, ex p Murray [1998] COD 134......................................................253 R v Ministry of Defence, ex p Smith [1996] QB 517..............................................214–16, 223 R v Ministry of Defence, ex p Walker [2000] 1 WLR 806....................................................231 R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763..................................................................................................................158, 187 R v Monopolies and Mergers Commission, ex p South Yorkshire Transport [1993] 1 WLR 23....................................................................................................................174, 177

xxxii  Table of Cases R v Nat Bell Liquors Ltd [1922] 2 AC 128............................................................................183 R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213.......................................................................................... 216, 225, 231–33, 243, 245 R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977...........................196 R v North Yorkshire County Council, ex p Brown [2000] 1 AC 397.......................16, 175–76 R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338... 170–71 R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146.........................70 R v Parliamentary Commissioner for Administration, ex p Balchin (No 1) [1998] 1 PLR 1...............................................................................................................................216 R v Pharmaceutical Society of Great Britain, ex p Association of Pharmaceutical Importers [1987] 3 CMLR 951.........................................................................................326 R v Port Talbot Borough Council, ex p Jones [1988] 2 All ER 207.....................................157 R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905..................................154 R v Rand (1865–66) LR 1 QB 230.........................................................................................263 R v Redbridge LBC, ex p G [1991] COD 398.........................................................................90 R v Reigate Justices, ex p Curl [1991] COD 66.......................................................................95 R v Richmond LBC, ex p JC [2001] ELR 21.........................................................................136 R v Rochdale Metropolitan Borough Council, ex p Cromer Ring Mill Ltd [1982] 3 All ER 761..........................................................................................................................89 R v Searby [2003] EWCA Crim 1910, [2003] 3 CMLR 15.....................................................94 R v Secretary of State for Commonwealth and Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552..........................................................................................................24, 68, 97 R v Secretary of State for Education and Employment, ex p National Union of Teachers [2000] Ed CR 603...............................................................................................245 R v Secretary of State for Education and Science, ex p Avon CC (No 2) [1991] 1 QB 558................................................................................................................................161 R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1.................................................................................................................................151 R v Secretary of State for the Environment, ex p Berkshire, Buckinghamshire and Oxfordshire Naturalists Trust [1997] Env LR 80.............................................................199 R v Secretary of State for the Environment, ex p Greenwich LBC [1989] COD 530.........152 R v Secretary of State for the Environment, ex p Hammersmith and Fulham LBC [1991] 1 AC 521.................................................................................................................215 R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304............................................................................................................261 R v Secretary of State for the Environment, ex p Nottinghamshire CC [1986] AC 240....215 R v Secretary of State for the Environment, ex p Ostler [1977] QB 122.............................166 R v Secretary of State for the Environment, ex p Rose Theatre Trust Co (No 2) [1990] 1 QB 504............................................................................................................ 104–5 R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds (Case C–44/95) [1996] ECR I–3805; [1997] QB 206.......................................63, 209 R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds [1997] Env LR 431....................................................................................................163 R v Secretary of State for the Environment, ex p Standley and Metson [1997] Env LR 589...................................................................................................................................51 R v Secretary of State for the Environment, ex p Standley and Metson (Case C–293/97) [1999] ECR I–2603..............................................................................................................52

Table of Cases  xxxiii R v Secretary of State for the Environment, Transport and the Regions, ex p Challenger [2001] Env LR 12...............................................................................................................252 R v Secretary of State for the Environment, Transport and the Regions, ex p First Corporate Shipping Ltd (Case C–371/98) [2000] ECR I–9235.................................63, 210 R v Secretary of State for the Environment, Transport and the Regions, ex p Marson, unreported, 23 March 1998; on appeal [1998] 3 PLR 90.................................................354 R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386.................................................................104–5, 118–19, 201 R v Secretary of State for Health, ex p Alcohol Recovery Project [1993] COD 344.............90 R v Secretary of State for Health, ex p Eastside Cheese Company (1999) 11 Admin LR 254.................................................................................................................................134 R v Secretary of State for Health, ex p Imperial Tobacco Ltd [1999] COD 138.................321 R v Secretary of State for the Home Department, ex p Ahmed [1999] Imm AR 22....................................................................................................................225–26, 229 R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696......................................................................................................................215, 221, 226 R v Secretary of State for the Home Department, ex p Capti-Mehmet [1997] COD 61.....70 R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531......................................................................................................................193, 240, 254 R v Secretary of State for the Home Department, ex p Doorga [1990] Imm AR 98............70 R v Secretary of State for the Home Department, ex p Fayed (No 1) [1998] 1 WLR 763..............................................................................................................................118, 249 R v Secretary of State for the Home Department, ex p Gallagher [1996] 2 CMLR 951....315 R v Secretary of State for the Home Department, ex p Harrison [2001] ACD 2...............135 R v Secretary of State for the Home Department, ex p Hickey (No 2) [1995] 1 WLR 734..........................................................................................................................249 R v Secretary of State for the Home Department, ex p Hindley [2001] 1 AC 410.............230 R v Secretary of State for the Home Department, ex p Khan [1984] 1 WLR 1337............225 R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74...........95, 179 R v Secretary of State for the Home Department, ex p Mapere [2001] Imm AR 89..........228 R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539.................259 R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482........89 R v Secretary of State for the Home Department, ex p Rukshanda Begum [1990] COD 107..............................................................................................................................81 R v Secretary of State for the Home Department, ex p Swati [1986] 1 WLR 477................70 R v Secretary of State for the Home Department, ex p Venables [1998] AC 407.195–96, 213 R v Secretary of State for the Home Department, ex p Wynne [1993] 1 WLR 115...........154 R v Secretary of State for the Home Department, ex p Zeqiri [2002] UKHL 3 [2002] Imm AR 296...........................................................................................................231 R v Secretary of State for National Heritage, ex p J Paul Getty Trust [1997] Eu LR 407....134 R v Secretary of State for Social Security, ex p Sherwin (1996) 32 BMLR 1.......................192 R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1....................................................................................................158, 244–45 R v Secretary of State for Social Services, ex p Child Poverty Action Group [1990] 2 QB 540...............................................................................................................................99 R v Secretary of State for Trade and Industry, ex p Duddridge [1995] Env LR 151 (Div Ct); [1996] Env LR 325 (CA)............................................................................... 58–60

xxxiv  Table of Cases R v Secretary of State for Trade and Industry, ex p Eastway [2000] 1 WLR 2222......... 79–80 R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525.............36 R v Secretary of State for Transport, ex p Factortame (Case C–213/89) [1990] ECR I–2433................................................................................................................290, 328 R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603.........151, 161 R v Secretary of State for Transport, ex p Factortame (No 5) [2000] 1 AC 524.......... 314–15 R v Secretary of State for Transport, ex p Pegasus Holdings (London) Ltd [1988] 1 WLR 990..........................................................................................................................260 R v Secretary of State for Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121.............................................................................................................................83, 89 R v Shropshire Health Authority, ex p Duffus [1990] 1 Med LR 119, [1990] COD 131......................................................................................................................................246 R v Somerset County Council and ARC Southern Ltd, ex p Dixon [1998] Env LR 111............................................................................................................................ 102–3 R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037, [1995] 1 All ER 513..................................................................................................................36, 169, 201 R v Special Commissioner for the Purposes of the Income Tax Acts, ex p Stipplechoice Ltd (No 1) [1985] 2 All ER 465...........................................................................................72 R v St Edmundsbury Borough Council, ex p Walton [1999] Env LR 879..................187, 190 R v Stratford on Avon District Council, ex p Jackson [1985] 1 WLR 1319..........................89 R v Sussex Justices, ex p McCarthy [1924] 1 KB 256............................................................265 R v Swale Borough Council and Medway Ports Authority, ex p Royal Society for the Protection of Birds (1990) 2 Admin LR 760...............................................................40, 133 R v Tandridge District Council, ex p Al-Fayed (2000) 79 P & CR 227.................................60 R v Tavistock General Commissioners, ex p Worth [1985] STC 564....................................90 R v Thames Magistrates’ Court, ex p Polemis [1974] 2 All ER 1219...................................248 R v Traffic Commissioner for the North Western Traffic Area, ex p ‘Brake’ [1996] COD 248............................................................................................................................106 R v Trafford Borough Council, ex p Colonel Foods Ltd [1990] COD 31...........................133 R v Uxbridge Magistrates’ Court, ex p Adimi [2001] QB 667...................................... 225–26 R v Warwickshire CC, ex p Collymore [1995] Ed LR 217...................................................196 R v Wicks [1998] AC 92...........................................................................................................94 R v Worcestershire Health Authority, ex p Kidderminster and District Community Health Council, unreported , 28 May 1999......................................................................244 Racal Communications Ltd, re [1981] AC 374............................................................. 172–73 Raffinerie Mediterranee (ERG) v Ministero dello Sviluppo economico (Case C–378/08), not yet reported................................................................................................52 Rayner v United Kingdom (1987) 9 EHRR CD375.............................................................286 Rechberger and Greindl v Austria (Case C–140/97) [1999] ECR I–3499...........................316 Région Wallone v Commission (Case C–95/97) [1997] ECR I–1787.................................331 Regione Toscana v Commission (Case C–180/97) [1997] ECR I–5245..............................331 Residents Against Waste Site Ltd v Lancashire CC [2007] EWHC 2558 (Admin), [2008] Env LR 27...................................................................................................106, 205–6 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein (Case 120/78) [1979] ECR 649..................................................................................................................221 Rhondda Cynon Taff CBC v Watkins [2003] EWCA Civ 129, [2003] 1 WLR 1864.............93 Ridge v Baldwin [1964] AC 40..............................................................................237, 239, 261

Table of Cases  xxxv Rieser Internationale Transporte GmbH v Asfinag Autobahnen Und Schnellstrassen Finanzierungs-Aktiengesellschaft (Case C–157/02) [2004] ECR I–1477.......................307 Rijksdienst voor Werknemeerspensioenen v Vlaeminck (Case 132/81) [1982] ECR 2953............................................................................................................................326 Road Sense v Scottish Ministers [2011] CSOH 10...............................................................136 Robert Hitchins Ltd v Secretary of State for Communities and Local Government [2010] EWHC 1157 (Admin)..............................................................................................44 Roberts v Hopwood [1925] AC 578................................................................................. 202–3 Robinson v Information Commissioner and East Riding of Yorkshire Council (EA/2007/0012) IT, 9 October 2007..................................................................................351 Roy v Kensington & Chelsea & Westminster Family Practitioners Committee [1992] 1 AC 624...................................................................................................................91 Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800......................................................................................................152 Rutili v Minister of the Interior (Case 36/75) [1975] ECR 1219.........................................221 S, re; W, re [2002] UKHL 10, [2002] 2 AC 291.....................................................................276 S v France (1990) 65 DR 250.........................................................................................282, 286 Salgoil SpA v Italian Ministry for Foreign Trade (Case 13/68) [1968] ECR 661................323 Salonia v Poidomani and Baglieri (Case 126/80) [1981] ECR 1563...................................325 Save Britain’s Heritage v Secretary of State for Communities [2011] EWCA Civ 334 [2011] Env LR 6.................................................................................................................163 Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg (Case C–15/96) [1998] ECR I–47............................................................................................................................317 Secretary of State for Communities and Local Government and Peak District National Park Authority v Bleaklow Industries [2009] EWCA Civ 206.........................................251 Secretary of State for Education and Science v Tameside MBC [1977] AC 1014...........5, 183 Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409.................................................................................................................119 Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780..........................................81 Sherwood v Secretary of State for the Environment and Islington LBC [1996] JPL 925...197 Silver v United Kingdom Series A, No 67 (1984) 6 EHRR CD62........................................277 Simmenthal v Italian Minister of Finance (Case 35/76) [1976] ECR 1871........................290 Sita UK Ltd v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch), [2010] 2 CMLR 48; upheld [2011] EWCA Civ 156..................................................86 Smith v East Elloe Rural District Council [1956] AC 736............................................ 165–66 Società Italiana Dragaggi SpA v Ministero delle Infrastrutture e dei Trasporti (Case C–117/03) [2005] ECR I–167....................................................................................... 303–4 Sodiprem SARL v Direction Générale des Douanes (Cases C–37/96 and 38/96) [1998] ECR I–2039............................................................................................................323 Soering v United Kingdom (1989) 11 EHRR 439................................................................113 South Buckinghamshire DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953........................................................................................................................12, 254–55 South East Asia Fire Bricks Sdn v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363......................................................................................172 Spurgeon v Information Commissioner and Horsham DC (EA/2006/0089) IT, 29 June 2007.......................................................................................................................351 Stadt Papendburg v Germany (Case C–226/08), not yet reported......................................210

xxxvi  Table of Cases Steel & Morris v United Kingdom (2005) 41 EHRR 22.......................................................251 Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281.....................196 Sweden v Commission (Case T–229/04) [2007] ECR II–2437..............................................55 Syndicat professionnel coordination des pecheurs de l’étang de Berre et de la région v Electricité de France (Case C–213/03) [2004] ECR I–7357.............................................302 Taskin v Turkey (2006) 42 EHRR 50.............................................................................281, 283 Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528....................................................266 Taylor v Williamsons (A Firm) [2002] EWCA Civ 1380......................................................266 Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759.........................208 Thomas v Baptiste [1999] UKPC 13, [2000] 2 AC 1............................................................225 Thorson v Canada (Attorney General) [1975] 1 SCR 138.....................................................98 Timurtas v Turkey (2001) 33 EHRR 6..................................................................................112 Tolputt (H) & Co Ltd v Mole [1911] 1 KB 836....................................................................271 Traghetti del Mediterraneo SpA v Italy (Case C–173/03) [2006] ECR I–5177...................317 Trust House Forte Ltd v Secretary of State for the Environment (1987) 53 P & CR 293.........................................................................................................................212 Trustees of Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840.............91 Twalib v Greece (2001) 33 EHRR 24.....................................................................................250 Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, [2007] 1 AC 650...............................................................................................................118, 120–27 Uniplex (UK) Ltd v NHS Business Services Authority (Case C–406/08) [2010] 2 CMLR 47.................................................................................................................... 84–85 United Kingdom v Commission (Case C–180/96) [1998] ECCR I–2265..................... 54–56 United Kingdom v Council (Case 131/86) [1988] ECR 905................................................331 UPA v Council (Case C–50/00 P) [2002] ECR I–5137....................................................8, 330 URSSAF (Case C–95/96) [1996] ECR I–12..........................................................................328 Van Binsbergen v Bestuur van de Bedrifjsvereniging voor de Metaalnijverheid (Case 33/74) [1974] ECR 1299..........................................................................................221 Van Colle v Chief Constable of Hertfordshire Police [2006] EWHC 360 (QB), [2006] 3 All ER 963; [2007] EWCA Civ 325, [2007] 1 WLR 1821; [2008] UKHL 50, [2009] 1 AC 225.......................................................................................................... 279–80 Van Duyn v Home Office (Case 41/74) [1974] ECR 1337...........................................294, 306 Van Gend en Loos see NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration (Case 26/62) Vaneetveld v Le Foyer SA (Case C–316/93) [1994] ECR I–763...........................................305 Vearncombe v United Kingdom and Germany, Application No 12816/87, 59 DR 186.....286 Verband deutscher Daihatsu-Handler eV v Daihatsu Deutschland GmbH (Case C–97/96) [1997] ECR I–6843............................................................................................308 Vine v National Dock Labour Board [1957] AC 488...........................................................150 von Colson v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891.........................310 Wandsworth v Winder [1985] AC 461....................................................................................94 Weatherill v Lloyds TSB Bank [2000] CPLR 584.................................................................263 Webb v EMO (Air Cargo) Ltd [1995] 4 All ER 577.............................................................310 Webb v Minister of Housing and Local Government [1965] 1 WLR 755..........................203 Webb v R (1994) 181 CLR 41................................................................................................265 Westminster City Council, re [1986] AC 668.......................................................................247 Westminster Corporation v London & NW Rly [1905] AC 426.........................................204

Table of Cases  xxxvii Wheeler v Leicester City Council [1985] AC 1054...............................................................203 White and Collins v Minister of Health [1939] 2 KB 838....................................................180 Wilkinson v Kitzinger [2006] EWHC 835, [2006] 2 FLR 397...............................137, 139–40 William Ashton v Secretary of State for Communities and Local Government and Coin Street Community Builders Ltd [2010] EWCA Civ 600.................................. 114–16 WWF v Autonome Provinz Bozen (Case C–435/97) [1999] ECR I–5613..........................298 YL v Birmingham City Council [2007] UKHL 27, [2008] 1 AC 95....................................275 Younger Homes (Northern) Ltd v First Secretary of State [2003] EWHC 3058 (Admin), [2004] JPL 950; upheld on appeal [2004] EWCA Civ 1060, [2005] Env LR 12.............................................................................................................183, 188–90 Zuchtverband für Ponys v Burgenlandische Ländesregierung (Case C–216/02) [2004] ECR I–10683..........................................................................................................300 Zuckerfabrik (Cases C–143/88 and C–92/89) [1991] ECR I–415.......................................328

table of legislation National Legislation

UK Statutes Abortion Act 1967..................................................................................................................152 Access to Justice Act 1999 s 11......................................................................................................................................135 s 54(4)...................................................................................................................................79 Acquisition of Land Act 1981 s 23(1).................................................................................................................................253 Ancient Monuments and Archaeological Areas Act 1979 s 1........................................................................................................................................104 Animal Health Act 1981.................................................................................................. 169–70 s 21......................................................................................................................................177 (2)(b).............................................................................................169, 177–78, 184, 207 Chronically Sick and Disabled Persons Act 1970 s 2(1)...................................................................................................................................209 Climate Change Act 2008..................................................................................................42, 47 s 1(1).....................................................................................................................................42 Constitutional Reform and Governance Act 2010 s 20........................................................................................................................................25 Control of Pollution Act 1974 Pt II.......................................................................................................................................38 Crown Proceedings Act 1947 s 21............................................................................................................................... 155–56 (1)(a)............................................................................................................................155 (2).......................................................................................................................... 155–56 Education Act 1902................................................................................................................149 Education Act 1997 s 2(2)...................................................................................................................................228 Electricity Act 1989..................................................................................................................11 s 36..............................................................................................................................103, 145 Environment Act 1995 s 4(1).....................................................................................................................................69 (3).....................................................................................................................................69 Environmental Protection Act 1990......................................................................7, 38–39, 152 Pt 2A.....................................................................................................................................69 s 1(2).......................................................................................................................................3 s 79(1)(a)................................................................................................................................7

xl  Table of Legislation (d).................................................................................................................................7 (e).................................................................................................................................7 (f)..................................................................................................................................7 (fa)................................................................................................................................7 (g).................................................................................................................................7 s 80(3)...................................................................................................................................71 European (Amendment) Act 2008..........................................................................................31 Fair Trading Act 1973 s 64(1)(a)............................................................................................................................174 Finance Act 2001......................................................................................................................32 Food and Environment Protection Act 1985..........................................................................94 Freedom of Information Act 2000........................................................................................352 s 39......................................................................................................................................349 Greater London Authority Act 1999 s 356....................................................................................................................................220 Housing Act 1936 s 75......................................................................................................................................180 Human Rights Act 1998.................. 80, 96, 111, 139, 221, 223, 265, 272–80, 283–85, 334, 353 s 2........................................................................................................................................272 s 3..........................................................................................................................113, 272–73 s 4..........................................................................................................................113, 273–74 (5)...................................................................................................................................273 s 6..........................................................................................................................113, 274–75 s 7............................................................................................................111–13, 139, 275–76 (1)...................................................................................................................................275 (3)...........................................................................................................................272, 275 (5)...................................................................................................................................275 (7)...................................................................................................................................275 s 8..................................................................................................................113, 275–77, 285 Immigration Act 1971............................................................................................................180 s 13(5).................................................................................................................................193 Immigration and Asylum Act 1999............................................................................................. s 31......................................................................................................................................226 Interpretation Act 1978 s 5........................................................................................................................................352 Sch 1...................................................................................................................................352 Local Authority Social Services Act 1970 s 7B.......................................................................................................................................75 Local Government Act 1974 s 32(2).................................................................................................................................360 Local Government Act 1992 s 101............................................................................................................................. 187–88 London Local Authorities Act 1995 s 11......................................................................................................................................189 Marine and Coastal Access Act 2009 Pt 1........................................................................................................................................10 Pt 8........................................................................................................................................11

Table of Legislation  xli s 246......................................................................................................................................11 s 253......................................................................................................................................11 s 259......................................................................................................................................11 s 268......................................................................................................................................11 s 269......................................................................................................................................11 s 272......................................................................................................................................11 s 279......................................................................................................................................11 s 280(5).................................................................................................................................11 (6).................................................................................................................................11 s 282......................................................................................................................................11 Matrimonial Causes Act 1973...............................................................................................273 Merchant Shipping Act 1988.........................................................................................151, 162 Merchant Shipping Act 1998 Pt II.....................................................................................................................................313 Metropolis Management Act 1855 s 62......................................................................................................................................203 National Parks and Access to the Countryside Act 1949........................................................70 Overseas Development and Co-operation Act 1980 s 1(1)...................................................................................................................................203 Planning Act 2008....................................................................................................................48 s 12........................................................................................................................................48 (1)...................................................................................................................................49 Planning and Compulsory Purchase Act 2004........................................................................... s 38(6)...................................................................................................................................43 Pollution Prevention Act 1999................................................................................................38 Port of London Authority Act 1968......................................................................................353 Post Office Act 1953...............................................................................................................100 Public Processions (Northern Ireland) Act 2006..................................................................120 s 6........................................................................................................................................120 s 8........................................................................................................................................120 Race Relations Act 1976 s 71......................................................................................................................................203 Radioactive Substances Act 1993 s 13........................................................................................................................................45 Rent Act 1977.........................................................................................................................273 Sea Fish (Conservation) Act 1967 s 4..........................................................................................................................................11 Senior Courts Act 1981 s 29........................................................................................................................................67 s 31........................................................................................................................67, 150, 156 (3).....................................................................................................................5, 100, 111 (6)...................................................................................................................................82 s 33......................................................................................................................................127 s 42......................................................................................................................................132 s 43........................................................................................................................................67 s 51......................................................................................................................................130 (1).................................................................................................................................132

xlii  Table of Legislation Town and Country Planning Act 1990......................................................... 4, 69, 94, 149, 212 Pt III......................................................................................................................................88 s 73......................................................................................................................................257 s 78......................................................................................................................................212 s 106....................................................................................................................................351 s 225....................................................................................................................................189 s 287....................................................................................................................................120 s 288...................................................................6, 104, 115–16, 120, 125, 145, 159, 181, 251 (1)...............................................................................................................................114 Treason Act 1848....................................................................................................................154 Warm Homes and Energy Conservation Act 2000..........................................42, 124, 210–11 s 2(1).............................................................................................................................42, 210 (2).....................................................................................................................................42 (5).............................................................................................................................42, 210 Waste and Emissions Trading Act 2003................................................................................218 Water Resources Act 1991........................................................................................................38 Wildlife and Countryside Act 1981.........................................................................................70 s 16........................................................................................................................................11

UK Statutory Instruments British Indian Ocean Territory Order 1965 SI No 1965/1920.............................................227 Civil Procedure Rules 1998, SI 1998/3132........................................................................67, 87 Pt 1..................................................................................................................................74, 93 r 1.1(2)(d)............................................................................................................................93 r 1.3.......................................................................................................................................93 r 1.4(2)(e).......................................................................................................................74, 93 r 3.1(2)..................................................................................................................................82 Pt 7........................................................................................................................................90 Pt 8..............................................................................................................................7, 90, 93 r 8.2.......................................................................................................................................80 Pt 23......................................................................................................................................95 Pt 24............................................................................................................................... 92–93 r 25.1(1)(b).........................................................................................................................151 r 31......................................................................................................................................121 r 31.6...........................................................................................................................118, 127 r 31.12.................................................................................................................................118 r 31.14.................................................................................................................................118 r 31.16.................................................................................................................................127 r 38.6(1)................................................................................................................................78 r 44.3(1)..............................................................................................................................133 (2)..............................................................................................................................133 r 44.4(1)..............................................................................................................................134 r 52.15(3)..............................................................................................................................79 Pt 54...................................................................................................... 6, 79, 92–93, 116, 118 r 54.1(2)(f).........................................................................................................................116 r 54.4.....................................................................................................................................79

Table of Legislation  xliii r 54.5...............................................................................................................................84, 85 (1)......................................................................................................................... 84–85 (3)...............................................................................................................................82 r 54.6.............................................................................................................................80, 116 r 54.7(b)..............................................................................................................................116 r 54.13...................................................................................................................................79 r 54.17(1)............................................................................................................................117 (2)............................................................................................................................117 r 54.19.................................................................................................................................148 Pt 68....................................................................................................................................328 r 68.2(1)..............................................................................................................................328 (a)........................................................................................................................325 r 68.4...................................................................................................................................328 Conservation (Natural Habitats etc) Regulations 1994, SI 1994/2716...............................160 reg 48..................................................................................................................................244 reg 49..................................................................................................................................244 Conservation (Natural Habitats etc) Regulations 2010, SI 2010/49.............................70, 160 reg 48....................................................................................................................................49 reg 49....................................................................................................................................49 Control of Pesticides Regulations 1986, SI 1986/1510...........................................................94 Environmental Assessment of Plans and Programmes Regulations 2004, SI 2004/1633......213 Environmental Information Regulations 2004, SI 2004/3391......................................26, 125, 127–29, 347, 349–61 reg 2(1)........................................................................................................................ 350–52 (2)...............................................................................................................................352 (b)..........................................................................................................................353 (c)................................................................................................................... 352–53 (d)................................................................................................................... 352–54 reg 3(3).......................................................................................................................354, 359 reg 5(1).......................................................................................................................352, 355 (2)...............................................................................................................................356 (6)...............................................................................................................................360 reg 6(1)...............................................................................................................................356 reg 7............................................................................................................................128, 358 (1)...............................................................................................................................356 reg 8(1)...............................................................................................................................355 (3)...............................................................................................................................355 (5)–(6)........................................................................................................................356 reg 9............................................................................................................................354, 358 (2)...............................................................................................................................355 (b)..........................................................................................................................355 (3)...............................................................................................................................355 (4)...............................................................................................................................356 reg 10(1)...................................................................................................................... 356–57 reg 11(1)–(2)......................................................................................................................356 reg 12..................................................................................................................129, 213, 356 (4)...................................................................................................................... 356–58

xliv  Table of Legislation (a).................................................................................................................... 357–58 (b)..................................................................................................................355, 358 (c)...........................................................................................................................358 (d)..........................................................................................................................358 (e)...........................................................................................................................358 (5).................................................................................................................356, 358–61 (a)...........................................................................................................................359 (b)................................................................................................................... 359–60 (c).................................................................................................................... 359–60 (d)..........................................................................................................................360 (e)...........................................................................................................................360 (f)...........................................................................................................................361 (g)..........................................................................................................................361 (6)–(7)........................................................................................................................356 (8)...............................................................................................................................358 reg 14..................................................................................................................................356 (4)...............................................................................................................................358 reg 15(1).............................................................................................................................359 (3).............................................................................................................................359 reg 18(1)–(7)......................................................................................................................355 Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962 SI No 1962/2187 art 4(1)(b)(ii).....................................................................................................................171 Pollution Prevention and Control (England and Wales) Regulations 1999 SI No 1999/1973 158, 247 Pollution Prevention and Control (England and Wales) Regulations 2000, SI 2000/1973.......................................................................................................................249 Producer Responsibility Obligations (Packaging Waste) Regulations 2007, SI 2007/871.................................................................................................................... 61–62 Protection of Water against Pollution (England and Wales) Regulations 1996, SI 1996/888...........................................................................................................................51 Public Contracts Regulations 2006, SI 2006/5........................................................................86 reg 47(7)(b)..........................................................................................................................84 Regulation of Prices (Tranquillising Drugs) (No 3) Order, SI 1973/1093..........................162 Rules of the Supreme Court SI No 1980/346 Ord 53.......................................................................................................................90–91, 93 Rules of the Supreme Court (Northern Ireland) SI No 1980/346 Ord 24.................................................................................................................................121 Statutory Nuisance (Appeals) Regulations 1995, SI 1995/2644.........................................7, 70 reg 2(2)...................................................................................................................................7 Sched 3 para 1(3)...................................................................................................................7 Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, SI 1988/1199 Sched 2................................................................................................................................187 Town and Country Planning (Environmental Impact Assessment) Regulations 1999, SI 1999/293.................................................................................................................39 reg 4(3)...............................................................................................................................258

Table of Legislation  xlv Sched 1....................................................................................................................39–40, 219 Sched 2............................................................................................ 39–40, 183, 190, 207, 219 Town and Country Planning (General Development Procedure) Order 1995, SI 1995/419 art 22(1)....................................................................................................................... 255–58 Urban Regeneration Agency (Edge Lane West, Liverpool) Compulsory Purchase Order 2005....................................................................................................................................253 Waste Electrical and Electronic Equipment Regulations 2006, SI 2006/3289..........34–35, 62 Sched 7............................................................................................................................35, 62 Waste Management Licensing Regulations 1994, SI 1994/1056..................................... 205–6 reg 19..................................................................................................................................205 Sched 4 para 2(1)...............................................................................................................205 para 4(1)...............................................................................................................205

Australia Sydney Corporation Amendment Act 1905 s 16......................................................................................................................................202

India Constitution Art 51(c).............................................................................................................................226

EU Legislation

Treaties EC Treaty Art 10..................................................................................................................................159 Art 12..................................................................................................................................292 Art 87(1)...............................................................................................................................32 Art 100..................................................................................................................................30 Art 235..................................................................................................................................30 Art 249................................................................................................................................305 Lisbon Treaty............................................................................................................31, 322, 335 Single European Act.......................................................................................................... 30–31 Treaty on European Union (TEU) Art 4(3)...............................................................................................................312, 337, 343 Treaty on the Functioning of the European Union (TFEU) Title XX................................................................................................................................31 Art 4(3).......................................................................................................................293, 296 Art 30..................................................................................................................................292 Arts 34–37..........................................................................................................................222 Art 36....................................................................................................................................55 Art 107..................................................................................................................................32

xlvi  Table of Legislation Art 191......................................................................................................................31, 51, 60 (1).............................................................................................................................31 (2).......................................................................................................................31, 54 (3).............................................................................................................................31 Art 192..................................................................................................................................31 (4)...........................................................................................................................294 Art 228......................................................................................................................... 292–93 (2)...........................................................................................................................341 Art 258......................................................................................................................... 336–44 Art 260..................................................................................................................336, 342–44 (1)...........................................................................................................................341 (2).............................................................................................................338, 341–42 Art 263..................................................................................................321, 329, 330–32, 335 Art 264................................................................................................................................330 Art 265................................................................................................................................331 Art 267..........................................................................................................151, 321–25, 327 Art 278................................................................................................................................340 Art 279................................................................................................................................340 Art 288.................................................................................... 289–90, 293–94, 296, 305, 312 Art 340................................................................................................................................314

Directives Access to Environmental Information Directive 90/313 [1990] OJ L158/56..............343, 349 Access to Environmental Information Directive 2003/4 [2003] OJ L41/26..........26, 166, 349 Art 2(6)...............................................................................................................................352 Art 3(1)...............................................................................................................................352 Art 4(2)...............................................................................................................................357 Ambient Air Quality Assessment and Management Directive 96/92 [1996] OJ L296/55.....291 Art 7(1)...............................................................................................................................291 (3)..............................................................................................................................291 Assessment of Environment Plans Directive 2001/42 [2001] OJ L197/30..........................213 Art 5....................................................................................................................................213 Bathing Water Directive 76/160 [1976] OJ L31/1......................................................... 342–44 Art 12..................................................................................................................................343 Batteries and Accumulators and Waste Batteries and Accumulators Directive 2006/66 [2006] OJ L37/1...................................................................................................................68 Birds Directive 79/409 [1979] OJ L103/1........................... 54, 63, 68, 209, 295, 299–303, 338 Art 1....................................................................................................................................304 Art 4....................................................................................................................................304 (4)..............................................................................................................................303 Art 5....................................................................................................................................299 Art 7(1)...............................................................................................................................299 Art 9........................................................................................................................... 299–300 Annex II..............................................................................................................................299 Birds Directive 2009/147 [2010] OJ L20/7...........................................................................203 Drinking Water Directive 80/778 [1980] OJ L229/11..........................................................294

Table of Legislation  xlvii Environmental Impact Assessment Directive 85/337 [1985] OJ L175/40............... 12, 40, 68, 84, 88–89, 159, 163, 175–77, 181, 190, 241–42, 297–99, 301, 307–9, 312, 318, 333 Art 1(2)...............................................................................................................................108 Art 2(1)...............................................................................................................................298 Art 4(2)...............................................................................................................................298 Art 6(2)...............................................................................................................................159 Art 10a...................................................................................... 29, 107–10, 115, 143–46, 259 Annex II......................................................................................................................177, 298 Environmental Liability Directive 2004/35 [2004] OJ L143/56................................51–52, 69 Art 1......................................................................................................................................51 Equal Treatment Directive 2000/78 [2000] OJ L303/16......................................................297 First Companies Directive 68/151 [1968] OJ L65/8.............................................................308 Free Movement of Goods Directive 83/189 [1983] OJ L109/8............................................309 Art 8....................................................................................................................................309 Art 9....................................................................................................................................309 Fresh Water Quality Directive 78/659 [1978] OJ L222/1.....................................................295 Habitats Directive 92/43 [1992] OJ L206/7...........63, 68, 159–60, 177, 199, 207, 210, 334–35 Art 6....................................................................................................................................159 (2).......................................................................................................................................303 (3).........................................................................................................................58, 299, 303 Art 12..................................................................................................................................175 (1)(b).......................................................................................................................173 Hormones in Livestock Directive 88/146 [1988] OJ L70/16.................................................55 Integrated Pollution Prevention and Control Directive 96/61 [1996] OJ L257/26..........6, 29 Art 15a..........................................................................................................................29, 107 Integrated Pollution Prevention and Control Directive 2008/1 [2008] OJ L24/8........29, 107 Management of Waste from Extractive Industries Directive 2006/21 [2006] OJ L102/15...........................................................................................................................68 Nitrates Directive 91/676 [1991] OJ L375/1.....................................................51–52, 302, 304 Packaging and Packaging Waste Directive 94/62 [1994] OJ L365/10..............................61, 68 Plant Protection Products (Pesticides) Directive 91/414 [1991] OJ L230/1 Art 4(1).................................................................................................................................37 Annex VI..............................................................................................................................37 Pollution Caused by Dangerous Substances Directive 76/464 [1976] OJ L129/23..... 310–11 Pollution Emission Limit Values Directive 83/513 [1983] OJ L291/1.................................311 Procurement Decisions Directive 89/665 [1989] OJ L395/33...............................................84 Art 1(1).................................................................................................................................84 Procurement Procedures in Water, Energy, Transport and Telecommunications Sectors Directive 90/531 [1990] OJ L84/26...................................................................................315 Art 8....................................................................................................................................315 Protection of Workers in Insolvency Directive 80/987 [1980] OJ L283/23..........303, 312–13 Public Participation in Environment Plans Directive 2003/35 [2003] OJ L156/17............166 Restrictions of Hazardous Substances Directive 2002/95 [2003] OJ L37/19............41–42, 68 Art 4......................................................................................................................................41 (2)................................................................................................................................41 Art 5......................................................................................................................................41

xlviii  Table of Legislation Annex...................................................................................................................................41 Ship Source Pollution of the Marine Environment Directive 2005/35 [2005] OJ L255/11 Art 4......................................................................................................................................25 Art 5......................................................................................................................................25 Sixth Value-Added Tax Directive 77/388 [1977] OJ L145/1........................................... 302–3 Art 13B...............................................................................................................................302 Strategic Environmental Assessment Directive 2001/42 [2001] OJ L197/30......................307 Taxes Other than Turnover Taxes Directive 79/32 [1979] OJ L10/8...................................316 Uniform Standards for Slaughter Directive 74/557 [1974] OJ L316/10.............................315 Waste Electronic and Electrical Equipment Directive 2002/96 [2002] OJ L37/24...........................................................................................................34–35, 62, 68 Art 1......................................................................................................................................34 Art 5......................................................................................................................................34 Waste Framework Directive 75/442 [1975] OJ L194/39........................................296, 340–41 Art 4................................................................................................................205, 300–1, 305 Arts 5–11............................................................................................................................301 Art 7(1)...............................................................................................................................305 Waste Framework Directive 2006/12 [2006] OJ L114/9....................................................9, 19 Art 1......................................................................................................................................10 (a)............................................................................................................................. 9–10 Annex I...................................................................................................................................9 Waste Framework Directive 2008/98 [2008] OJ L312/3..........................................9, 295, 304 Art 4(1)...............................................................................................................................300 (2)..............................................................................................................................300 Art 23..................................................................................................................................309 Water Framework Directive 2000/60 [2000] OJ L327/1................................................51, 295 Art 9......................................................................................................................................51

Regulations Evaluation and Control of Risks Regulation 793/93 [1993] OJ L84/1..................................41 Ozone Depleting Substances Regulation 2037/2000 [2000] OJ L244/1..............................290 Trade in Endangered Species Regulation 338/97 [1997] OJ L61/1.....................................290 Waste Shipment Regulation 259/93 [1993] OJ L30/1..........................................................290

International Conventions

Aarhus Convention on Access to Information, Public Participation on DecisionMaking and Access to Justice in Environmental Matters 1998...............26–30, 96, 107–11, 135, 163–64, 166, 254, 259, 347–49 Art 2(2)...............................................................................................................................347 (4).................................................................................................................................19 (5).................................................................................................................26, 108, 110 Art 3(9)...............................................................................................................................109 Art 4......................................................................................................................................28

Table of Legislation  xlix (1)...............................................................................................................................347 (a).........................................................................................................................348 (2)...............................................................................................................................348 (3)...............................................................................................................................348 (4)........................................................................................................................ 348–49 (5)...............................................................................................................................349 (6)...............................................................................................................................349 (7)...............................................................................................................................349 (8)...............................................................................................................................348 Art 5......................................................................................................................................21 (9).................................................................................................................................21 Art 6........................................................................................................................19, 27, 109 (2).......................................................................................................................... 27–28 (3).................................................................................................................................28 (4).................................................................................................................................28 (6).................................................................................................................................27 (7)...............................................................................................................................109 Art 7......................................................................................................................................19 Art 8......................................................................................................................................19 Art 9......................................................................................................................................28 (1).........................................................................................................................28, 349 (2).....................................................................................................................28, 108–9 (3)...................................................................................................................17, 28, 107 (4)........................................................................................................... 17, 28, 142, 146 Annex I.................................................................................................................................27 European Convention on Human Rights 1950.............................. 111–13, 200, 222, 226, 272 Art 2.................................................................................................... 112, 139, 279, 281, 285 Art 3............................................................................................................................112, 278 Art 4....................................................................................................................................278 Art 5............................................................................................................................277, 279 Art 6............................................................................................................ 139, 259, 271, 278 (1).........................................................................................................131, 251–53, 265 Art 8.............................................................................. 113, 197, 223, 231, 273, 278, 280–85 (2)...............................................................................................................................197 Art 9....................................................................................................................................121 Art 10..........................................................................................................................121, 154 Art 11..................................................................................................................................121 Art 14..................................................................................................................................273 Art 34....................................................................................................................111–13, 275 Art 41..................................................................................................................................112 Protocol 1 Art 1....................................................................................................223, 285–86 International Convention for the Prevention of Marine Pollution from Ships 1973 (MARPOL).................................................................................................................... 25–26 International Convention on the Rights of the Child 1989.................................................226 Refugee Convention 1951 Art 31..................................................................................................................................226

1 Introduction I.  What is Environmental Judicial Review?

A. Introduction This book examines the core public law principles and doctrines such as Wednesbury unreasonableness and the right to a fair hearing, and it explains how they are and, most importantly, should be applied in cases concerned with the environment. It argues that judicial review cases involving environmental law have their own concepts and principles, and consequently they form a distinctive subset of judicial review, meriting separate attention. Thus, a decision about natural justice in the context of a deportation will be of limited utility when deciding whether the grant of a permit under the Integrated Pollution Prevention and Control Regulations was procedurally fair; a decision concerning the rationality of a Parole Board decision will provide scant guidance to a court assessing the rationality of the scientifically expert views of the Environment Agency; and whether the family of a murder victim has standing to challenge the level of a murderer’s tariff has little bearing on whether a nongovernmental organisation (NGO) may challenge decisions concerning the disposal of nuclear waste. This first chapter seeks to set the scene by explaining the place of judicial review in the wider public law landscape before examining the defining features of environmental judicial review. As will be seen, the development of environmental judicial review is heavily influenced by considerations of political theory, such as the importance of economic access to justice, the value of public participation and transparency in public decision-making. The application of the familiar grounds for judicial review is therefore shaped by competing theories of environmental governance and justice, and it is necessary first to understand the context before considering the detail.

B.  What is Environmental Law? The starting point is that there is no clearly agreed definition of ‘environmental law’, let alone of the concept of ‘environmental judicial review’. Both statute and policy make attempts to describe the environment: for example, section 1(2) of the Environmental Protection Act 1990 states that ‘[t]he “environment” consists of all, or any, of the following media, namely, the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground’. And Environmental Management Standard ISO 14001 refers to ‘air, water, land, natural

4 Introduction resources, flora, fauna, humans and their interrelationship’. However, none of these descriptions purports to be a universally applicable definition of the environment or environmental law. The difficulty of delimiting environmental law is underlined by that fact that there are many legal provisions that, although not specifically adopted with the aim of protecting the environment, do in practice provide incidental environmental protection. For example, the provisions of the Town and Country Planning Act 1990 relating to tree preservation orders are not concerned with biological diversity or nature conservation but rather with whether trees have an amenity value.1 Despite this, once a tree preservation order has been made, activities such as cutting down or lopping the trees are prohibited without consent, and this may serve in practice to safeguard an environmental asset. Nevertheless, as Bell and McGillivray argue,2 environmental law does have its own conceptual apparatus, in the sense that there is a set of principles and concepts that exist across the range of substantive envir­ onmental topics. There may be debate about the extent to which those principles are universally accepted and the extent to which they have meaningful legal effect, but ‘there can be little doubt that environmental law has now matured into an identifiable discipline in its own right’.3

C. Administrative Law as a Body of Doctrine Recognition that environmental judicial review is distinctive prompts a more general enquiry into the nature of judicial review and administrative law. In particular, it calls into question whether administrative law forms a coherent body of doctrine in the same way as does, for example, the law of contract. The current edition of Wade and Forsyth’s leading textbook on administrative law rightly points to the need to identify general principles of administrative law in order that the subject does not become a ‘wilderness of single instances’.4 However, the authors also claim that the ‘central body of legal rules which regulate governmental power’ are ‘based upon elementary concepts of legality, reasonableness and fairness which are self-evident in their own right and are even further detached from politics than are the principles of constitutional law’.5 This latter assertion is questionable. While it is true that in a modern liberal democracy it should be readily accepted that public power ought to be exercised fairly and rationally, those terms are not self-executing. Rather, they depend on more abstract conceptions of justice grounded in political theory. As such, it is doubtful whether administrative law does consist of a determinate collection of universally applicable ‘rules’. Allan is surely correct to point out the paradox that ‘the deeper the roots of public law are laid in the terrain of political theory, the greater the sensitivity required to adapt the principles of legitimate governance to the huge diversity of social and political contexts arising’.6 Thus, although the general standards of legality, rationality and procedural fairness are uncontroversial, their application to the facts of a 1   Palm Developments Ltd v Secretary of State for Communities and Local Government and Medway Council [2009] EWHC 220 (Admin), [2009] 2 P & CR 16 (Cranston J). 2  S Bell and D McGillivray, Environmental Law, 6th edn (Oxford, Oxford University Press, 2006) 5. 3   Ibid. 4  C Forsyth, Wade and Forsyth’s Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) xii and 5. 5   Ibid, 8. 6  TRS Allan, ‘Doctrine and Theory in Administrative Law: An Elusive Quest for the Limits of Jurisdiction’ (2003) Public Law 429, 431.

What is Environmental Judicial Review?  5 particular case – and hence their concrete meaning – is largely dependent upon the specific context under review.7 Ultimately the familiar standards of public law legality are no more than ‘labels to be affixed to conclusions drawn from examination of claims of injustice or impropriety in particular circumstances’.8 The rules of natural justice provide a good example of the importance of political theory to the outcome of judicial reasoning in judicial review. In Lloyd v McMahon,9 Lord Bridge famously declared: The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.10

Whether or not a written hearing will suffice to satisfy the rules of natural justice cannot therefore be determined by an appeal to the abstract principle that public bodies must afford individuals a fair hearing. It is necessary to consider whether procedural propriety has an intrinsic, non-instrumental value as dignitarian theorists would argue; or whether its value is purely instrumental and designed simply to achieve accurate outcomes.11 Formal, conceptual reasoning is no substitute for consideration of deeper questions of political theory in the particular statutory context. Political theory also has an important role in shaping the procedure for judicial review. As explained below in chapter five, rival theories of justice or governance are responsible for the different approaches taken to the sufficient interest test for standing in section 31(3) of the Senior Courts Act 1981. The cases reveal that the ‘dispute resolution model’ of judicial review has been displaced by an ‘expository justice model’ which reflects a preference for communitarian ideals over individualism. This had led to a considerably more liberal application of the standing test. Recognition of the importance of political theory in judicial review generally, and envir­ onmental judicial review specifically, means that we cannot expect neat juristic answers to problems of jurisdictional error, procedural fairness or abuse of discretion. Public law adjudication does not in truth involve the application of an established and determinate body of doctrine to the facts of the case before the court. Rather, it requires the court to apply the abstract grounds for review sensitively to the specific statutory context in the light of the applicable constitutional and political values. This book does not therefore purport to be an encyclopaedic manual of judicial review. Indeed it is premised on the belief that undertaking such an enterprise would be impossible given the critical importance of the particular context to the application of the grounds for judicial review. Instead, it seeks to explain the background constitutional and political theories affecting environmental judicial review claims and to relate those to the detail of the case law. The aim is to analyse how the law does and should develop in this area. 7   Ibid. See also Secretary of State v Tameside MBC [1977] AC 1014, 1047F (per Lord Wilberforce): ‘there is no universal rule as to the principles on which the exercise of discretion may be reviewed: each statute or type of statute must be individually looked at.’ 8  Allan (above n 6) 431. 9   Lloyd v McMahon [1987] AC 625. 10   Ibid, 702H. 11   For discussion of these rival approaches, see TRS Allan, ‘Procedural Fairness and the Duty of Respect’ (1998) 18 Oxford Journal of Legal Studies 497.

6 Introduction

II.  Public Law Enforcement of Environmental Norms

A.  Public Law Regulation of the Environment Regulators use a number of different techniques for public law to protect the environment. Each form of regulation reflects a particular theory of governance, and the legislative choice is likely to affect the judicial approach to the relevant statutory scheme. For example, in chapter eight the question of a court’s discretion to refuse relief in a successful claim for judicial review is discussed. It will be seen that the courts have distinguished between the environmental impact assessment regime, which places great emphasis on the public right to participate (militating strongly against the courts exercising a discretion to refuse relief) and, on the other hand, the habitats regime, which does not include a participatory role for the public at the stage of carrying out an appropriate assessment (which militates in favour of refusing relief). It is important therefore to be aware of the various regulatory techniques common in environmental law. There are six main ways in which public law regulates the environment. First, public law regulation may involve the setting of standards, for example in relation to water or air quality. Second, public law may require the authorisation of certain activities, such as the town and country planning regime, which requires planning permission to be obtained before development is carried out, or the environmental permitting system created by the Integrated Pollution Prevention and Control Directive, which requires certain environmentally harmful activities to be licensed. Third, public law may prescribe particular procedures to be carried out before an activity may be undertaken. A good example of this is the requirement for environmental impact assessment and strategic environmental assessment. Fourth, public law regulation may identify certain land or species that must be protected. Thus, EU and domestic law provides protection for designated species and habitats, as well as the greenbelt, Areas of Outstanding National Beauty and Sites of Special Scientific Interest. Fifth, public law regulation may lead to the banning of certain activities, for example, fly-tipping. Finally, civil liability may be created, penalising environmentally harmful activity such as contaminating land.

B. Routes for Bringing a Public Law Challenge Although this book is primarily concerned with environmental claims brought by way of judicial review under Civil Procedure Rules (CPR) 1998, Part 54, it is helpful to examine the wider public law landscape, because claimants for judicial review must first exhaust alternative remedies, and thus other routes of redress are relevant to whether judicial review will actually be available. In addition, statutory planning applications and direct actions before the European Court of Justice (ECJ) rely on the same environmental principles (such as the polluter-pays and the precautionary principles) as are applicable in judicial review, and the jurisprudence is germane to judicial review claims. 1.  Statutory Challenges Section 288 of the Town and Country Planning Act 1990 empowers a court to quash a decision of the Secretary of State when persuaded by the claimant that the decision is invalid.

Public Law Enforcement of Environmental Norms  7 There are two statutory bases for the grant of such relief: (i) the decision is not within the powers bestowed by the 1990 Act; and (ii) the claimant has been substantially prejudiced by non-compliance with relevant requirements. These grounds for appeal essentially provide a statutory form of judicial review, and therefore much of what is said in the following chapters applies to statutory planning appeals. The procedure is subject to a statutory sixweek time limit and is open only to an applicant claiming to be a ‘person aggrieved’. As explained below in chapter five, this test of standing has been interpreted much more narrowly than the test of sufficient interest in judicial review proceedings. 2.  Part 8 Proceedings for a Declaration If a claimant wishes to know whether particular conduct is or is not lawful, the claimant may sometimes be able to seek a declaration using ordinary proceedings under CPR Part 8.12 This can be particularly valuable in the environmental context, where the law is often uncertain, given the open textured language used in European directives and the frequent disputes concerning whether domestic legislation properly transposes EU law. However, as chapter eight explains, the English courts are reluctant to give advisory declarations and rule on the law in the abstract. 3.  Appeal by Case Stated in the Divisional Court Decisions of the magistrates’ courts in areas such as statutory nuisance may be appealed by way of case stated to the Divisional Court. The Statutory Nuisance (Appeals) Regulations 1995 provide that a person served with an abatement notice under the Environmental Protection Act 1990 in respect of a statutory nuisance may appeal to the magistrates’ court within 21 days following the date of service. The Regulations set out an extensive list of grounds of appeal,13 including: (i) the abatement notice was not justified under the Act; and (ii) in circumstances where use of best practicable means is a legitimate defence,14 such means were used to prevent or counteract the effects of the nuisance. Although the Regulations provide a further right of appeal from the magistrates to the Crown Court,15 the parties have an alternative route of challenge by way of case stated to the Divisional Court. An appeal by way of case stated requires the High Court to consider the questions of law or jurisdiction set out in the stated case, and unlike an appeal to the Crown Court, it does not take the form of a full rehearing on the facts and law. In the environmental context there are a large number of appeals by way of case stated, contending that the magistrates have made an error of law by misconstruing the relevant regulatory provisions, for example the meaning of ‘waste’.16 4.  Infraction Proceedings by the EU Commission Chapter nineteen considers enforcement proceedings by the EU Commission against Member States. Such enforcement proceedings may be initiated following a complaint by  See, eg, Blackland Park Exploration Limited v Environment Agency [2003] EWCA Civ 1795, [2004] Env LR 652.  See Regulation 2(2).   In cases of a nuisance falling within s 79(1)(a), (d), (e), (f), (fa) or (g) where any of the prescribed nuisances (the dust, steam, smell or other effluvia, accumulation or deposit, animal kept, insects emanating or noise) arrived on industrial, trade or business premises. 15  Sched 3, para 1(3). 16  See below section III. 12

13 14

8 Introduction individuals. Given the significant barriers claimants face in terms of economic access to judicial review, infraction proceedings provide an attractive alternative mechanism for ensuring compliance with EU environmental law with no risk to the individual. The involvement of members of the public also benefits the Commission. The Commission lacks the resources and the time to gather evidence of a Member State’s breach of environmental law, and therefore the provision of information and the making of complaints by ordinary members of the public are often of great assistance to the Commission in its role as enforcement agent. 5.  Individual Claims in EU Law Chapter eighteen considers the ability of individuals to bring judicial review proceedings in respect of decisions and legislation of the EU institutions. These proceedings take place before the General Court, formerly known as the Court of First Instance (CFI), and the European Court of Justice (ECJ) because the national courts do not have the power to set aside supreme EU law.17 As will be seen, the ability of individuals to challenge decisions and legislation affecting the environment is significantly curtailed by the extremely restrictive standing requirements applied by the ECJ. The rather cumbersome solution suggested by the ECJ is that individuals lacking standing to bring a direct action for annulment should seek to challenge the measure or decision in the domestic courts, seeking a preliminary reference to the ECJ.18 By this circuitous route it is argued that the validity of the impugned EU measure may be adjudicated upon by the ECJ. Preliminary references are analysed in chapter seventeen, where it is explained that applicants have no right to a preliminary reference, and there is no guarantee that the national court will make a reference.

III. Defining Features of Environmental Judicial Review

A. Dynamics of the Dispute In order to understand the dynamics of environmental judicial review it is helpful to identify the various different parties who might bring a claim and to explore their motivations for doing so. This is important because the identity of the parties to an environmental dispute influences judicial decisions on issues such as costs, standing and the award of discretionary remedies. Exploring the parties who are likely to bring an environmental judicial review claim also gives an insight into how effective the enforcement of environmental law actually is in practice. The picture that emerges shows that there is no single archetypal environmental judicial review claim. Instead there is a complex network of interests affected by environmental issues. Some of those interests are commercial interests, some are concerned with local amenity and others are ideological interests. As a result, four major categories of envir­ onmental dispute may be identified: (i) disputes between the regulator and the regulated; (ii) disputes between a disappointed applicant and the decision maker; (iii) challenges by  Case 314/85, Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199.  See, eg, Case C-50/00 P, UPA v Council [2002] ECR I-6677.

17 18

Defining Features of Environmental Judicial Review  9 interest groups or individual members of the public; and (iv) challenges by commercial competitors. 1.  Regulator versus Regulated A large number of environmental judicial review claims are disputes between environmental regulators and the industries that they regulate. As the principal environmental regulator in England and Wales, the Environment Agency frequently engages in regulatory action that involves limiting one party’s freedom of action in order to protect the environment. It regulates flood risk, coastal management, industrial pollution, waste management, radioactive substances, water quality and water abstraction. It is not surprising that such regulatory actions give rise to disputes, especially given the fact that the regulatory framework is usually dominated by EU legislation, which is a fertile ground for disputes concerning proper interpretation and implementation of directives. Since the ECJ regards the interpretation of EU law as a question for it alone to determine (according to the autonomous meaning principle19) such disputes may often involve preliminary reference to the ECJ.20 A good example of this type of dispute is the case law that has arisen when the Environment Agency has regarded a particular material or process as being ‘waste’ for the purposes of the Waste Framework Directive 2006/12/EC (WFD).21 The concept of waste is defined in Article 1(a): [a]ny substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.

The categories of waste listed in Annex I are non-exhaustive, and the final category refers to ‘any materials, substances or products which are not contained in the abovementioned categories’. Much of the litigation in this area has been concerned with whether the substance in dispute is one which the holder ‘discards’ or ‘intends to discard’. The ECJ case law on this issue has failed to provide a clear, predictable and workable test for whether material is ‘waste’ or not. Carnwarth LJ’s judgment in OSS Ltd v Environment Agency22 exposes the policy-based value judgments that the ECJ uses to determine whether a given substance should be treated as regulated ‘waste’ or not. It is hardly surprising that regulated individuals and companies should engage in lengthy disputes with the Environment Agency about the meaning of waste when the definition of waste is so opentextured and malleable. OSS concerned a company that collected waste lubricating oil from garages and workshops and converted it into fuel oil for burning. The question for the Court of Appeal was when did this material cease to be waste. The Environment Agency contended that the material was waste right up until it was burned. OSS, however, argued that the material ceased to be waste once it had been recovered and prepared for use as fuel oil, and therefore the costly controls under the Waste Incineration Directive did not apply to the burning of the material. Carnwarth LJ (with whom Maurice Kay LJ and Sir Anthony Clarke MR concurred) agreed with OSS and held that the material ceased to be waste at the completion of the  See below ch 10, section II.  See below ch 17. 21   [2006] OJ L114/9. The Waste Framework Directive was revised in November 2008, and the resulting Directive 2008/98/EC [2008] OJ L312/3 was required to be transposed by Member States by 12 December 2010. 22   OSS Group v Environment Agency [2007] EWCA Civ 611, [2007] 3 CMLR 30. 19 20

10 Introduction process of preparing it for use as fuel. He was highly critical of the case law on the definition of waste and pointed out that the problems stemmed from adherence to the definition in Article 1(a) WFD. Whereas the subjective ‘intention to discard’ test may be useful for determining the status of a substance in the hands of its original producer, it is difficult to apply that test to determine the status of material in the hands of someone who purchased the material in order to recycle or reprocess it. In no ordinary sense can that person be said to be discarding or getting rid of the material, since their intention is precisely the opposite. It is understandable why the ECJ has held that a material does not cease to be waste merely because it has passed into the possession of someone who intends to put it to a new use. But, Carnwarth LJ argued, the real reason for that conclusion had nothing to do with the Article 1 definition of waste; rather it was because, in accordance with the aims of the Directive, material that was originally waste needs to continue to be treated as waste until acceptable recovery or disposal had been achieved. In other words, the ECJ, although paying lip service to the subjective discarding test in Article 1, has effectively been applying an objective test derived from the policy underlying the Directive. Thus Carnwarth LJ concluded: [A]lthough the Court continues to [pay] lip-service to the ‘discarding’ test, in practice it sub­ ordinates the subjective question implicit in that definition, to a series of objective indicators derived from the policy of the Directive. What is required from the national court is a value judgment on the facts of the particular case in the light of those indicators.23

Carnwarth LJ’s observations in OSS did not, however, stem the tide of case law on the meaning of waste. A reflection of just how complicated the case law has become is the fact that in the Thames Water saga it took one Magistrates’ Court decision, two Divisional Court decisions and a ruling from the ECJ to determine the seemingly obvious point that sewage spilt onto land from leaking pipes was waste.24 With so much uncertainty surrounding the key legal concept upon which the whole regulatory scheme is based, and with the categorisation of a material as regulated waste usually dramatically increasing the operator’s costs, it frequently makes financial sense to challenge the Environment Agency’s interpretation of the Directive. Although challenges by the regulated to decisions of the regulator are very common in environmental law, it is not always the case that judicial review is the proper forum for resolving the dispute. A common issue that arises in disputes between regulators and regulated is the question of alternative remedies.25 Very often statute will provide an alternative remedy by way of appeal against a regulator’s decision, and the Administrative Court may insist that the alternative remedy be exhausted before judicial review proceedings can be initiated. Alternatively, the alternative remedy may preclude judicial review and channel disputes exclusively into a system of appeals. Precisely such a dispute concerning alternative remedies arose in the first judicial review case to be brought against a new environmental regulator, the Marine Management Organisation (MMO). Under Part 1 of the Marine and Coastal Access Act 2009 the MMO is given various marine licensing functions that were previously carried out by the Secretary

  Ibid, para 59.  Case C-252/05 R (Thames Water Utilities) v Bromley Magistrates’ Court [2007] ECR I-3883 (ECJ), [2008] EWHC 1763 (Admin), [2009] 1 WLR 1247 (Divisional Court). 25  See below ch 4. 23 24

Defining Features of Environmental Judicial Review  11 of State for the Environment, Food and Rural Affairs.26 Part 8 of the Act provides the MMO with broad powers of enforcement, such as the power to board and inspect vessels and marine installations;27 the power to seize and detain items;28 and the power to direct a vessel to port and detain it there.29 The MMO’s fishery enforcement powers include powers to seize and detain fish and gear for the purposes of forfeiture;30 to detain vessels in connection with court proceedings;31 and to enter into bonds for the release of seized fish or gear and detain vessels.32 The first judicial review against the MMO was brought in respect of the exercise of these enforcement powers.33 In July 2010 the MMO detained a Spanish fishing vessel pursuant to section 279 of the 2009 Act on suspicion of various fisheries offences, and it set a £500,000 bond for the ship’s release. The ship owners applied to the Truro Magistrates’ Court for the release of the vessel and for reduction of the bond. The application was refused, and the owners appealed to the Crown Court. However, at the same time, they issued judicial review proceedings against both the MMO and the magistrates’ court, contending that the decisions to detain the vessel and to set such a high bond were unlawful. The MMO’s defence argued that the owners had a number of alternative remedies open to them which should be used in preference to judicial review.34 The owners made a further application to the magistrates’ court for release of the vessel and reduction of the bond, but the magistrates declined to hear their case when they had judicial review proceedings pending. The owners therefore voluntarily withdrew their claim for judicial review, and the magistrates heard the case and reduced the bond to £150,000. This case serves to illustrate that those seeking to challenge environmental regulators should be fully aware of all the available means of doing so because, certainly in the case of modern legislation such as the Marine and Coastal Access Act 2009, a claim for judicial review will not usually be permitted as the claimant’s first move. 2.  Disappointed Applicant versus Decision-Maker Due to the number of activities affecting the environment that require some form of license or permission, inevitably there are large numbers of judicial review decisions by disappointed applicants. Typically, these involve a challenge to a decision made on appeal by or on behalf of the Secretary of State. Often the decision requires the assimilation of a large volume of complex technical and scientific information, and this provides many oppor­ tunities for claimants to argue that the decision-maker has made an error of fact, has 26   For example, licensing of fishing boats under s 4 of the Sea Fish (Conservation) Act 1967; licensing the taking and killing of seals under s 16 of the Wildlife and Countryside Act 1981; and granting of consents under the Electricity Act 1989 for offshore energy generation installations, including windfarms, wave and tidal devices between 1 and 100 megawatts. 27  S 246 Marine and Coastal Access Act 2009. 28   Ibid, s 253. 29   Ibid, s 259. 30   Ibid, ss 268 and 269. 31   Ibid, s 279. 32   Ibid, ss 272 and 282 respectively. 33   I am grateful to James Maurici, Counsel for the MMO, for providing me with details of this litigation. 34   First, the owners could apply to the magistrates’ court under s 282 of the 2009 Act for the release of the detained vessel; second, since s 280(5) provides that the MMO must withdraw a notice of detention if any of the grounds in s 280(6) apply, the owners could advance further grounds to the MMO for the withdrawal of the notice; third, the owners could appeal the decision of the magistrates’ court by way of case stated to the Crown Court; fourth, the owners already had an appeal to the Crown Court pending.

12 Introduction followed an unfair process in determining the facts or has given insufficient reasons to explain his conclusions. The courts have, however, taken a pragmatic approach to such alleged failings and have tended to quash only decisions vitiated by material errors. This approach is particularly evident in the context of the Environmental Impact Assessment Directive, where the courts have held that an error in the environmental statement need not be fatal if it is corrected by the authority gathering further information. Rather than focusing on the alleged inadequacies of the environmental statement, regard should be had to the totality of the ‘dynamic process’ of environmental assessment.35 In BACONGO v Department of the Environment,36 the Privy Council approved the pragmatic observations of Cripps J in the Land and Environment Court of New South Wales in Prineas v Forestry Commission of New South Wales:37 I do not think the [statute] . . . imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower etc. In my opinion, there must be imported into the statutory obligation a concept of reasonableness . . . [P]rovided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision maker and members of the public . . . to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations.38

As will be seen below in chapter thirteen, a similarly robust approach has been taken by the courts when determining whether the reasons given to justify an adverse decision are sufficient. The courts do not require overly elaborate reasons; it is enough that the reasons are intelligible and enable readers to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of fact or law was resolved.39 Even if disappointed applicants manage to persuade a court that the impugned decision was unlawful, judicial review does not guarantee a favourable decision. A successful judicial review claim will result only in the quashing of an unlawful decision in the matter being remitted to the decision-maker for redetermination on the correct legal basis. After redetermination, it is entirely possible for the decision-maker to reach exactly the same decision and refuse the license or permission. 3.  Public Interest Challenges and Individual Challenges An increasing number of environmental judicial review claims are brought by groups or individuals in the public interest. These claims are motivated by ideological concerns and are part of the wider phenomenon of green politics or environmentalism. There are a large 35   R (on the application of Burkett) v London Borough of Hammersmith and Fulham [2003] EWHC 1031, paras 33 and 37 (Newman J). 36   Belize Alliance of Conservation Nongovernmental Organisations v Department of the Environment [2004] UKPC 6, [2004] Env LR 38 [70]. 37   Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402. 38   Ibid, 417. 39   South Buckinghamshire DC v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953.

Defining Features of Environmental Judicial Review  13 number of prominent and well-resourced pressure groups in the environmental field, such as Friends of the Earth, Greenpeace and the Campaign for Nuclear Disarmament. They play an extremely important role in the enforcement and development of environmental law and policy. Environmental pressure groups represent an important way of holding environmental decision-makers to account politically and legally. Many breaches of environmental law do not harm any individual in particular, and there is little incentive for ordinary members of the public to enforce environmental duties. In many cases an environmental pressure group with a particular concern for a given species or habitat is likely to be the only potential challenger. As will be seen in the chapters below on standing40 and costs,41 the modern trend is for the judiciary to facilitate access to justice by such pressure groups in order to promote the effective enforcement of environmental law. Pressure groups may also influence policy formation through lobbying for their members’ interests. For example, during the footand-mouth crisis, farmers’ unions representing the agricultural sector had a huge influence on the development of government policy on vaccination of the national herd. The work of such pressure groups is not entirely adversarial and confrontational. Frequently such bodies possess knowledge and expertise that is able to assist both decisionmakers and the courts. The Royal Society for the Protection of Birds, for example, contributes to government policy by monitoring and reporting on bird populations. Despite the benefits that pressure groups can bring to the legal process it is important that the courts should not become a surrogate political process. Although environ­mentalism is increasingly influential in British politics it is by no means certain that envir­onmental initiatives will always be favoured by government. There are competing social and economic demands, and difficult choices have to be made. The danger is that the Administrative Court becomes a forum for pressure groups to refight political battles that have been lost following the democratic process. As will be seen,42 the courts afford environmental decision-makers a wide margin of discretion when balancing competing social and economic concerns, and they are astute to dismiss political challenges dressed up as legal ones. 4.  Challenges by Commercial Competitors In contrast to challenges brought by pressure groups and ideologically motivated individuals, challenges by commercial competitors are entirely self-interested. Such challenges are usually brought against the decision to grant a valuable permission or license to a commercial rival. The claimant typically argues that the decision to grant permission or license to the rival company was unlawful because of a breach of environmental law, and consequently the decision should be quashed. This is a spoiling tactic designed either to enable the claimant a fresh opportunity to bid for a permission or license itself, or to delay the rival’s operations while a fresh permission or license is sought. Because of the importance of environmental impact assessment in planning law, the number of challenges by commercial competitors seeking to prevent development by their rivals is growing. A good example of this is the case of R (on the Application of Noble Organisation Limited) v Thanet District Council,43 which concerned a challenge to the   Below ch 5.   Below ch 7. 42  See below chs 11 and 15. 43   R (on the Application of Noble Organisation Ltd) v Thanet District Council [2005] EWCA Civ 782, [2006] Env LR 8. 40 41

14 Introduction decision of the defendant planning authority not to require an environmental impact assessment at the approval of reserved matters stage for a proposed multiplex cinema. The claimant was a commercial rival of the developer that had been granted planning permission, and Auld LJ deprecated the use of the courts’ judicial review jurisdiction for such commercial, tactical purposes: I would dismiss the appeal. In doing so I add a note of dissatisfaction at the way the availability of the remedy of judicial review can be exploited – some might say abused – as a commercial weapon by rival potential developers to frustrate and delay their competitors’ approved developments, rather than for any demonstrated concern about potential environmental or other planning harm. By the time of the hearing of this appeal, as is often the case, the approved scheme in issue is clearly of a piece with surrounding and much larger approved proposals already taking shape around it. It could not conceivably be regarded as a significant addition to the overall environmental impact of such development. This may be the cause of great economic harm to individual developers and, more importantly, it is likely to frustrate the public interest in much needed regeneration in areas such as the Isle of Thanet. However seemingly complicated the issues are, or how sophisticated and technical the statement of facts and grounds supporting the initial claim for judicial review, they should be subject to rigorous examination by the single judge at the permission stage of a claim for judicial review.44

Commercial challengers have also exploited the integrated pollution prevention and control regime, most notably in R (on the Application of Rockware Glass Limited) v Chester City Council and Quinn Glass Ltd.45 The defendant authority had granted an integrated pollution prevention and control permit to the interested party, Quinn Glass, to operate the largest glass container factory in Europe. The claimant was a commercial rival at risk of being put out of business by Quinn’s new factory. It argued that: (i) the local authority had wrongly failed to consider whether alternative configurations, size or design of furnace to that proposed would have produced lower emissions of pollutants; (ii) the authority had misinterpreted and misapplied statutory notes and other relevant documents on achievable emissions levels; (iii) the authority had breached the EU and UK codes for pollution control by imposing emission limits for oxides of nitrogen that were higher than those that were achievable; (iv) the authority had failed to have regard to a material consideration, namely the evidence before it that lower emission limits were achievable for oxides of nitrogen if alternative techniques were used; and (v) the chief executive of the authority had acted beyond his delegated powers in issuing the permit. Judge Gilbart QC held that the claimant had standing to challenge the grant of a permit to its rival. He held that ‘the mere fact that a claimant is a commercial competitor does not provide the necessary standing to challenge a decision taken within the [pollution prevention and control] system’, and ‘one must also guard against the type of challenge with which Auld LJ was dealing.’46 He then explained that the question of standing is more nuanced, and it does not follow that a commercial competitor cannot have sufficient standing simply because he is seeking to protect his commercial position. Whether he does so or not depends on the subject matter: As with all such matters there is inevitably a spectrum of cases falling on either side of the line. To take an example from the planning field, suppose AB plc gets permission for a superstore a mile   Ibid [68].   R (on the Application of Rockware Glass Ltd) v Chester City Council and Quinn Glass Ltd [2005] EWHC 2250 (Admin), [2006] Env LR 30. 46   Ibid, para 170. 44 45

Defining Features of Environmental Judicial Review  15 outside the town centre on a playing field, in breach of statutory Development Plan and national policies, and those policies have been overlooked or misinterpreted by the local planning authority. CD plc which has a superstore built on another playing field a mile from the same town centre would have little basis for a challenge, whereas EF plc, which has bought a town centre site allocated for retailing in the statutory Development Plan, would almost certainly do so. They both have the same commercial interest, but their cases are quite different.47

The deputy judge also noted that a commercial interest in one part of the economy (for example, retail) should not be taken as representative of an interest in any other part of the economy (such as glass manufacture). The glass manufacture industry is characterised by the fact that there are only a few manufacturers, and the unchallenged evidence in the case was that Quinn’s new factory would create a 25 per cent excess capacity overproduction in the United Kingdom.48 This particularly acute impact on the claimant militated in favour of it being granted standing, as did the fact that compliance with the relevant environmental protection regime was a costly and time-consuming exercise. It was therefore legitimate for a commercial rival to seek to ensure its competitors were subject to the same rigorous standards of compliance: [I]n an industrial sector with substantial investment decisions to be made on capital works, it is a proper interest to seek to ensure that one’s few competitors are subject to the same consistency of approach.49

The more nuanced approach to standing in Rockware is to be welcomed, and it means that there can be no generalisations as regards the ability of a commercial rival to challenge decisions in favour of its competitors. Each case must be considered in its circumstances, in particular having regard to the relevant regulatory scheme, the nature of the decision and its impact on the claimant and the particular industry in question.

B. Central Issues There are a number of perennial problems raised by environmental judicial review challenges. The development of both procedural and substantive law in this area is shaped by policy concerns such as the need to facilitate economic access and the importance of public participation and transparency in environmental decision-making. This section highlights some of the main challenges faced by the courts in environmental judicial review claims and seeks to explain the effect that they have on the development of the law. 1.  Factual and Scientific Complexity Environmental judicial review claims are amongst the most factually complex judicial review proceedings. Frequently they involve voluminous factual, policy and technical material, often requiring a court to understand complicated scientific processes or modelling.50 Not only does this threaten to compromise the speed and efficiency of the judicial review   Ibid.   Ibid, para 171.   Ibid, para 174. 50   For example, in R (on the Application of Hardy and Maile) v Pembrokeshire County Council and Pembrokeshire Coast National Park Authority [2005] EWHC 1872 (Admin), in addition to the claim bundle, appendices to the grounds of challenge and supporting witness statements, there were eight volumes of supporting documents running to over 5000 pages. 47 48 49

16 Introduction jurisdiction, but it also has the potential to draw the courts beyond their constitutional function and lead them to consider the merits of decisions made by scientific experts and democratically accountable decision-makers. For example, in Downs v Secretary of State for the Environment, Food and Rural Affairs,51 the Court of Appeal was required to determine a dispute concerning the models that the government’s Advisory Committee on Pesticides used to ensure safety from pesticide exposure and, in particular, whether the models were adequate to deal with the exposure of local residents. The Court of Appeal overturned Collins J’s decision,52 holding that he had substituted his own evaluation of the available evidence for that of the decision-maker.53 The problems of factual and scientific complexity are exacerbated by the fact that private civil litigation traditionally occupies a subordinate role in terms of enforcement of environmental law. Private litigants have no rights to investigate or inspect sites where they suspect breaches of environmental law may be occurring. This makes it extremely difficult to gather the necessary evidence to support a judicial review claim. By contrast, the EU Commission does enjoy extensive powers of investigation, but it lacks the time and resources to investigate fully all suspected breaches of EU environmental law.54 Consequently, it is doubtful whether environmental law is as effectively enforced as it ought to be.55 2.  The EU Dimension The vast majority of UK domestic environmental legislation has been passed in order to implement EU environmental law. Consequently, environmental judicial review claims frequently involve questions concerning directly effective EU provisions. English courts do not have a free reign in interpreting the concepts used in EU environmental law, such as ‘waste’ or ‘development consent’ because the ECJ has held that concepts such as these have autonomous meaning to be determined by the ECJ and applied in a uniform fashion across all Member States.56 Consequently, as chapter seventeen explains below, it is frequently necessary for domestic courts to refer questions of interpretation to the ECJ. Although this procedure promotes the uniformity of EU environmental law, it also adds considerably to the cost of litigation and causes considerable delay and uncertainty pending judgment. 3.  Access to Environmental Justice There are significant practical and financial hurdles facing private persons contemplating civil litigation to enforce environmental law. A claimant will have to obtain funding for its own legal advice and representation, and in the event of defeat, it may face exposure to paying the legal costs of the victor. These costs are likely to be considerable and in many cases will prove a prohibitive financial burden. Not only will the costs include legal and court fees but also expenditure necessary to obtain, analyse and present often complex scientific evidence. Even NGOs face considerable difficulty in funding environmental litigation. They are forced to make difficult decisions over the allocation of scarce budgetary resources, and 51   Downs v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664, [2009] 3 CMLR 46. See further below ch 2. 52   [2008] EWHC 2666 (Admin). 53   [2009] EWCA Civ 664, para 76 (Sullivan LJ). 54  On infraction proceedings brought by the Commission, see below ch 19. 55   P Wennerås, The Enforcement of EC Environmental Law (Oxford, Oxford University Press, 2007). 56  See, eg, R v North Yorkshire Council, ex p Brown [2000] 1 AC 397, 401 (Lord Hoffmann).

Defining Features of Environmental Judicial Review  17 the pursuit of litigation has to compete with other political strategies to enhance environmental protection and awareness. Article 9(3) of the Aarhus Convention provides a right of access to administrative or judicial procedures to challenge acts and omissions by private and public bodies that contravene domestic law relating to the environment. Importantly, Article 9(4) provides that the contracting states must ensure that the procedure for exercising that right of access is ‘not prohibitively expensive’. As explained in chapter seven below this provision is at the heart of radical changes currently taking place in relation to protective costs orders and the funding of judicial review claims. 4.  Participation and Access to Information This section examines the extremely important and increasing trend for legislatures to confer procedural rights on the public to participate, be informed and be consulted in relation to environmental decision-making. The concept of public participation in the environmental context is a broad one. It includes open and transparent procedures and decisions, consultation, as well as the right to review on environmental decisions through litigation or other forms of dispute resolution. Public participation can of course occur to various degrees. At its simplest it may entail consultation allowing external views to be considered by a decision-maker, who takes an autonomous decision based on his conception of the overall public interest. In such a ‘thin’57 form of participation the public interest is conceived of as being an aggregate of the competing individual interests. This may be contrasted with broader notions of deliberative democracy that promote rational argument and the provision of reasons that are capable of recognition as reasons by others who disagree. There is no single reason for the growth of public right to participate in environmental decision-making. At the EU level, a consequence of concerns about the democratic deficit has been an increase in the degree to which the public may participate in decisions affected by EU environmental law. As Lee has explained, A turn to more participatory procedure, in all its complexity, is now almost an instinctive response to concerns about the legitimacy of decision-making, concerns that arise with some regularity in EC law. In the specifically environmental context, public participation has the potential to provide a response both to the disputed democratic credentials of EC environmental law and to criticisms of the effectiveness of EC environmental law.58

The democratic deficit in environmental law is heightened by the fact that at the domestic level many environmental decisions are delegated to independent agencies with only indirect and weak links to the electoral process. Delegation of this kind is justified by the need for technical and scientific expertise in environmental decision-making. Nevertheless, as explored below in chapter two, environmental decision-making is not merely a technical matter; it involves political and value judgements and affects multiple competing interests. Participatory mechanisms such as transparent decision-making, consultation and rights of review go some way to bridging the gap between the independent agencies and the general public. 57   J Black, ‘Proceduralizing Regulation: Part 1’ (2000) 20 Oxford Journal of Legal Studies 597; and J Black, ‘Proceduralizing Regulation: Part 2’ (2001) 21 Oxford Journal of Legal Studies 33. 58  M Lee, EU Environmental Law: Challenges, Change and Decision-Making (Oxford, Hart Publishing, 2005) 113.

18 Introduction Another factor contributing to the rise in process rights in environmental law is the difficulty legislators face of translating environmental quality into enforceable individual rights. The setting of environmental standards requires a balance to be struck between environmental protection and other social and economic objectives. It also requires the prioritisation of competing environmental interests. Legislators and courts have therefore shied away from recognising individual rights to particular environmental quality.59 Instead, there has been a growth of what is inelegantly described as ‘proceduralisation’, whereby the EU imposes procedural constraints on national decision-makers at the same time as it creates more flexible, open-ended substantive environmental obligations.60 The importance of public participation in the environmental context is also intimately linked to the development of discrete environmental principles such as sustainable development. Principle 10 of the Rio Declaration states, ‘Environmental issues are best handled with the participation of all concerned citizens’;61 and the Johannesburg Declaration states that sustainable development requires ‘broad-based participation in policy formulation, decision-making and implementation at all levels’.62 As Lee has observed, ‘sustainable development is also a multifaceted, complex and normative objective, crying out for multiple perspectives and a range of knowledge.’63 Justifications for public participation may be both instrumental and non-instrumental. Non-instrumental rationales emphasise that public participation is inherently beneficial, whereas instrumental rationales by contrast emphasise the link between public parti­ cipation and improved substantive outcomes. Public participation is said to improve substantive outcomes by increasing the information available to decision-makers, in particular by providing them with local knowledge. Participation also provides decision-makers with an alternative perspective. Given that environmental decisions are not purely technical but involve normative considerations, better decisions are likely to be reached if a decision-maker is able fully to consider the competing values. However, the link between public participation and improved substantive outcomes is complex. It assumes that the best, or at least an improved, substantive outcome is the one that protects the environment to the greatest extent. Even where it is agreed that the best outcome is the one most protective of the environment, there is still room for legitimate disagreement as to what environmental protection entails in any particular case. For example, in R (on the Application of Boggis) v Natural England,64 the claimant landowner challenged the decision of Natural England to designate an area as a Site of Special Scientific Interest on the grounds that it was wrongly based on the approach that the ‘process of exposure’ of the cliffs was a geological feature of special interest. The Court of Appeal dismissed the challenge and held that even if ‘conservation’ meant ‘preserving’, allowing nature to take its course would ‘preserve’ the exposure of the cliff face, while hindering those processes would harm it by obscuring it. 59  The European Court of Human Rights has largely conceived environmental rights in procedural terms. See further below ch 15. 60   J Scott, ‘Flexibility, “Proceduralization”, and Environmental Governance in the EU’ in J Scott and G de Búrca (eds), Constitutional Change in the European Union (Oxford, Hart Publishing, 2000). 61  Rio Declaration on Environment and Development (1992), available at www.un.org/‌documents/‌ga/‌conf151/‌ aconf15126-1annex1.htm. 62  Johannesburg Declaration on Sustainable Development (2002), para 26, available at www.rrcap.unep. org/‌wssd/‌Political%20declaration_4%20Sep%2002.pdf. 63  Lee (above n 58) 124. 64   R (on the Application of Boggis) v Natural England [2009] EWCA Civ 1061, [2010] PTSR 725.

Defining Features of Environmental Judicial Review  19 Public participation is not, however, seen as a universal good. There is a tension between, on the one hand, facilitating public participation and, on the other hand, enabling decision-makers to make reasonably swift decisions. This has led the Commission to resist arguments in favour of a generally applicable legally binding requirement for consultation: Such an over-legalistic approach would be incompatible with the need for timely delivery of policy, and with the expectations of the citizens that the European Institutions should deliver on substance rather than concentrating on procedures.65

Such efficiency- and effectiveness-based concerns are legitimate in the environmental context, where it is sometimes necessary for regulators to act quickly and decisively in order to prevent environmental harm. Therefore the degree to which third parties are given process rights in environmental decision-making depends upon the balance struck by a legislator between participation and effectiveness. A critical issue in relation to public participation is who should constitute ‘the public’ and have rights of participation, information and consultation. The international approach is to define the public in a broad fashion. A key provision of the Aarhus Convention is Article 2(4), which expressly includes environmental interest groups in the definitions of the ‘public’ and ‘public concerned’, thereby enabling them to take advantage of the principles contained in the Convention.66 This is significant because regulated environmental industries are already closely involved with policymaking, and otherwise their perspective may tend to dominate the policy debate. The Aarhus Convention requires there to be opportunities for public participation in decision-making at three stages: ‘decisions on specific activities’;67 ‘plans, programmes and policies relating to the environment’;68 and ‘the preparation of executive regulations and/or generally applicable legally binding normative instruments’.69 Participation by ‘ordinary’ members of the public is unlikely at the strategic, plan-­ making stage because it will often be difficult for lay members of the public to appreciate the tangible effect of such deliberations. It is therefore sensible that environmental interest groups have also been included in the definition of those who are allowed to participate in environmental decision-making. These groups often have a national and supranational outlook which enables them to participate meaningfully in high-level policy formation and legislative drafting at an early stage. This is crucial because local participation in opposition to a particular development proposal takes place against a background of law and policy. For example, local participation opposing the permitting of a waste incinerator must accept as a given that EU law requires reduced reliance on landfill.70 The difficulty that local opposition has in halting decisions that are alleged to harm the environment is illustrated by the unsuccessful judicial review brought by representatives of the ‘Stop Stansted Expansion’ campaign group. In Barbone v Secretary of State for Communities and Local Government,71 the claimants challenged the grant of planning permission to the British Airports Authority (BAA) and Stansted Airport 65   European Commission, Towards a Reinforced Culture of Consultation and Dialogue – General Principles and Minimum Standards for Consultation of Interested Parties by the Commission COM (2002) 704 final, 10. 66  See further ch 5 below on the standing of NGOs promoting environmental protection. 67  Art 6. 68  Art 7. 69  Art 8. 70   Waste Framework Directive (above n 21). 71   Barbone v Secretary of State for Communities and Local Government [2009] EWHC 463 (Admin).

20 Introduction that had the effect of lifting the annual throughput of passengers at Stansted airport from 25 million passengers per annum to 35 million passengers per annum and of increasing the number of air traffic movements to a figure not exceeding 264,000 overall in any period of 12 calendar months. The grant of permission was supported as a matter of national policy by the ‘Future of Air Transport’ White Paper,72 but the claimant argued that the Secretary of State had failed to consider: (i) the economic effects of the proposal, in particular its impact on the UK balance of trade; (ii) the noise impact of the proposal; and (iii) the fact that the proposal would result in emissions of millions of tons of carbon dioxide. Sir Thayne Forbes held that the question was whether, in the light of government policy, the approach adopted by the inspector and the Secretary of State was a legitimate one.73 Quoting the following passage from the speech of Lord Diplock in Bushell v Secretary of State for the Environment,74 he emphasised that public inquiries and judicial review hearings are not the place to attack the merits of government policy: ‘Policy’ as descriptive of departmental decisions to pursue a particular course of conduct is a protean word and much confusion in the instant case has, in my view, been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside.75

The White Paper had acknowledged the widening gap in the tourism balance of payments, and it was clear that the tourism deficit had been taken into account when formulating the government policy. The White Paper did not, however, suggest that the widening gap should be reduced by restricting outbound tourism by UK residents. Sir Thayne Forbes therefore concluded: [B]y seeking at a planning appeal to bring ‘tourism deficit’ into account against a particular air transport scheme . . . [Stop Stansted Expansion] were in reality calling into question the government’s judgment of national economic policy, which had already taken that phenomenon into account. As Lord Diplock said in Bushell . . . a planning inquiry into a particular transport proposal promoted in the context of settled national policy is not to the appropriate forum for such a debate.76

Likewise, he judged that the claimant’s points in relation to climate change were also an impermissible attack on national planning policy.77 Access to environmental information enables the public to monitor the performance of environmental regulators and polluters. Exposing the activities of these bodies to public scrutiny has the potential in itself to improve their performance, and it also facilitates private enforcement of environmental law. But just as with public participation, access to environmental information may also fulfil non-instrumental goals. As AG Tesauro noted in Netherlands v Council, 72  Department for Transport, The Future of Air Transport (White Paper, Cm 6046, Dec 2003), available at webarchive. nationalarchives.gov.uk/+/http://www.dft.gov.uk/about/strategy/whitepapers/air/utureofairtransportwhite5694.pdf. 73   Barbone (above n 71) para 46. 74   Bushell v Secretary of State for the Environment [1981] AC 75, 98. 75   Barbone (above n 71) para 47. 76   Ibid, para 50. 77   Ibid, para 85.

Defining Features of Environmental Judicial Review  21 [O]penness of decision-making processes [constitute] an innate feature of any democratic system and the right to information, including information in the hands of the public authorities, is a fundamental right of the individual.78

The access provisions discussed below in chapter twenty are very extensive and sometimes impose a positive duty to create information. Thus, in addition to the right of access to existing information, Article 5 of the Aarhus Convention imposes duties on public authorities actively to collect and disseminate environmental information. This obligation includes a requirement that parties establish ‘a coherent, nationwide system of pollution inventories or registers on a structured, computerized and publicly accessible database compiled through standardized reporting’.79 Such a positive obligation to collect environmental information assists policymaking, and it enables the effectiveness of environmental protection to be measured. Despite the extensive provisions concerning access to environmental information, it is doubtful whether full transparency can be achieved given the difficulties experienced by the lay public in assimilating and understanding large quantities of highly technical information. It is regrettable that the Aarhus Convention pays little attention to the presentation of environmental information in a user-friendly, easily comprehensible manner. 5. Standing In many legal systems, access to the courts has traditionally been limited to those individuals whose interests or rights have been harmed. This approach sits uneasily with the collective and diffuse nature of harm to environmental interests. Harm to the environment sometimes disproportionately affects an individual or small number of persons; but more often environmental harm either touches large numbers, as in the case of air pollution, or touches no one in a perceptible way, as in cases of the loss of biodiversity. As chapter five explains below, English law has responded to this problem by liberalising the rules on standing to bring an environmental judicial review claim. It is not uncommon for such claims now to be brought by NGOs and action groups claiming to represent the public interest. To describe environmental action groups as ‘public interest’ litigants is, however, slightly misleading. These groups cannot claim to represent the public interest because environmental problems are polycentric and give rise to a range of legitimate competing public interests. When disputes arise concerning waste incineration or wind farms it is often the case that local and international environmental groups hold differing views. What is an environmentally progressive and beneficial decision globally may be a disproportionate burden on a particular local community. Moreover, the claims of an environmental action group to ‘represent’ even its own members may sometimes be exaggerated because of weak democratic links between the leadership and the organisation’s membership. 6.  Interested Parties Environmental judicial review claims frequently involve challenges to licences, such as a planning permission or a pollution control permit, and therefore they inevitably affect the beneficiary of that authorisation. Accordingly, environmental judicial review claims frequently involve interested parties, sometimes more than one. For example, in  Case C-58/94 Netherlands v Council [1996] ECR I-2169, para 6, cited with approval by the ECJ at para 34.  Art 5(9).

78 79

22 Introduction R v Pembrokeshire County Council and Pembrokeshire Coast National Park Authority,80 in a claim involving challenges to the grant of planning permission and hazardous substances consent for two large projects for liquefied natural gas terminals at Milford Haven, there were four interested parties (two developers, the Health and Safety Executive and Milford Haven Port Authority). The involvement of interested parties, particularly those defending a licence that they have been granted, often adds significantly to the volume of evidence presented, especially in relation to delay and the prejudice thereby caused to the interested party. Interested parties often incur a large cost defending decisions favourable to them, and this exacerbates the problems of economic access to justice faced by claimants. As explained in chapter seven, the response of the English courts is to limit the extent to which interested parties may seek to recover costs against an unsuccessful claimant. 7. Delay As chapter four explains, environmental judicial review claims often present problems of delay, given the potential effect of a lack of promptness on third parties. The English time limit for judicial review is extremely restrictive, requiring proceedings to be commenced within three months of the date of the impugned decision, and in any event promptly. Time begins to run from the date of the impugned decision rather than the date on which the claimant learned of the decision or of the grounds for challenge. Delay is an important issue in many claims for environmental judicial review, but there are no hard and fast rules because decisions on promptitude are inevitably fact sensitive,81 involving scrutiny of the conduct of the parties and of any prejudice to third parties or to good administration. The restrictive approach taken to delay arguably hinders the effective enforcement of environmental law because three months is often barely sufficient time for ordinary members of the public to seek legal advice, obtain funding and commence proceedings. As will be seen in chapter four, considerations of effectiveness have led to the ECJ and the Aarhus Convention Compliance Committee calling for a more generous time limit and for time to begin to run only when a claimant knew or ought to have known about the impugned decision. 8. Specialism Environmental law is increasingly viewed as a discrete legal specialism and there has been much debate as to whether there ought to be a specialist environmental court or tribunal to hear environmental cases. In 2010 a new ‘environment jurisdiction’ was conferred on the First Tier Tribunal (General Regulatory Chamber) in England and Wales. The Environment Tribunal has jurisdiction to hear appeals against civil sanctions imposed by regulators. This is an important development which could go some way to addressing the concerns outlined above. First, in terms of compliance with the Aarhus Convention, the Tribunal is an economical appeal forum – parties normally bear their own costs, subject to the small chance of costs awards to penalise unreasonable conduct. Second, the Tribunal has particu80   R (on the Application of Hardy and Maile) v Pembrokeshire County Council and Pembrokeshire Coast National Park Authority [2005] EWHC 1872 (Admin). 81   R (on the Application of Lichfield Securities Ltd) v Lichfield District Council [2001] EWCA Civ 304, [2001] 3 PLR 33, para 33 (Sedley LJ): ‘Promptness is simply a function of the factors, ranging from the systemic to the idiosyncratic, which affect the fairness of letting a particular application proceed in a particular situation after a particular lapse of time.’

Defining Features of Environmental Judicial Review  23 lar expertise in environmental issues, with specialised judges and a flexible procedure. This ought to facilitate the resolution of complex factual and scientific disputes. Currently, however, there is no power for the Tribunal to hear judicial review claims. Transferring some jurisdiction for environmental judicial review to the Tribunal would have the advantages of relieving the burden on the Administrative Court, and dealing with the claims in a costeffective specialist court.

2 Sources and Objectives of Environmental Law and Policy I.  International Law

A.  International Conventions 1. Introduction Given the transnational nature of most environmental problems, international conventions on environmental matters are becoming increasingly widespread and significant. There are many bodies that instigate international environmental conventions. The United Nations promotes international agreement on the environment through the United Nations Environment Programme (UNEP), and both the Organisation for Economic Cooperation and Development (OECD) and the Council of Europe have prompted environmental legislation at the international level. The key questions for English administrative lawyers are, first, what are the powers of the UK government to enter into such conventions; and second, what (if any) relevance do international environmental conventions have for a domestic claim for judicial review. 2.  Legal Effect The power of the UK government to enter into international agreements on the environment derives from the royal prerogative. It is well established that this prerogative power is non-justiciable, and its exercise cannot be subject to judicial review.1 Thus, in Blackburn v Attorney-General, Lord Denning explained: The treaty-making power of this country rests not in the courts but in the Crown; that is, Her Majesty acting on the advice of her Ministers. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one [the Treaty of Rome], they act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned in these courts.2

Previously there was no legally binding obligation for the executive to lay the text of a con­ vention or treaty before Parliament prior to ratification. The only ‘obligation’ to do so was contained in the Ponsonby Convention – a legally unenforceable constitutional convention.   Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418 (Lord Roskill).   Blackburn v Attorney-General [1971] 1 WLR 1037, 1040. See also JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; and R v Secretary of State for Commonwealth and Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552. 1

2

International Law  25 The Ponsonby Convention established that the Government’s practice in relation to treaty ratification was that it would lay on the table of both Houses of Parliament every treaty, when signed, for a period of 21 days, after which the treaty would be ratified and published and circulated in the Treaty Series. The Government would submit important treaties to the House for discussion within that 21-day period and would generally find time for discussion of other treaties if a formal demand was made by the Opposition or any other party. Section 20 of the Constitutional Reform and Governance Act 2010 enacted the Ponsonby Convention into statute, and it created a legally enforceable obligation, subject to some exceptions, to lay all treaties before the Houses of Parliament prior to ratification. As to the effect of a treaty once ratified, it is a well established proposition that unincorporated treaties cannot confer rights enforceable in domestic law. The United Kingdom operates a so-called dualist constitutional order whereby ratification of a treaty sounds only on the international plain. It is necessary to incorporate a treaty into domestic law via domestic legislation in order for it to create rights at the national level. As Lord Bingham has explained, ‘a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law’.3 But this does not mean that unincorporated treaties have no relevance for the UK domestic legal order. There are five ways in which an unincorporated treaty may potentially be relevant in English law. First, an unincorporated treaty may be used to help resolve some ambiguity or uncertainty in English law.4 Second, it has been suggested that an unincorpora­ ted treaty might be relevant to the exercise of a judge’s discretion.5 Third, it is open to the parties to a contract to agree that they will comply with the terms of an unincorporated treaty. For example, in Golden Fleece Maritime v ST Shipping and Transport,6 one of the clauses in an agreement for the charter of an oil tanker provided that the owners warranted that the vessel complied with the provisions of the International Convention for the Prevention of Marine Pollution from Ships (MARPOL). The chartered vessel did not comply with MARPOL because it was not double-hulled, and the charterers were held to be entitled to damages reflecting the loss of profits resulting from the owners’ breach of their obligation to provide vessels that were fit to transport fuel oil. Fourth, there is some support for the proposition that an unincorporated treaty may give rise to a legitimate expectation that the government will act consistently with the treaty.7 Finally, the validity of a measure of secondary EU legislation may be challenged on the basis that it is incompatible with a rule of international law. In R (International Association of Independent Tanker Owners) v Secretary of State for Transport,8 the claimants argued in judicial review proceedings that Articles 4 and 5 of Directive 2005/35/EC9 relating to ship source pollution of the marine environment were invalid because by providing for a strict liability regime of accidental discharges, they were inconsistent with existing international law   A v Secretary of State for the Home Department (No 2) [2007] UKHL 71, [2006] 2 AC 221 [27].   JH Rayner (Mincing Lane) (above n 2) 500 (Lord Oliver). 5   Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, [2009] Env LR 30, para 50 (Carnwarth LJ) in relation to the Aarhus Convention and the judicial discretion as to costs. See further below ch 7. 6   Golden Fleece Maritime Inc v ST Shipping and Transport Inc (The Elli) [2008] EWCA Civ 584, [2008] 2 Lloyd’s Rep 119. 7   See below ch 12. 8   R (on the Application of International Association of Independent Tanker Owners) v Secretary of State for Transport [2006] EWHC 1577 (Admin), [2007] Env LR 8. 9   [2005] OJ L255/11. 3 4

26  Sources and Objectives of Environmental Law and Policy governing marine pollution, including the provisions of MARPOL. Hodge J referred the question of validity to the European Court of Justice (ECJ) in a preliminary reference,10 and the ECJ held that, as a general principle, the validity of a measure of secondary EU legislation may be affected by the fact that it is incompatible with the rules of international law. This general principle was subject to three conditions: the European Union must be bound by the international rules in question; a review of the validity of the EU legislation may occur only when this is not precluded by the nature and broad logic of the international treaty; and the provisions of the treaty must be unconditional and sufficiently precise.11 On the facts, the Directive could not be impugned on the basis of inconsistencies with MARPOL because the European Union was not bound by that international agreement.

B. The Aarhus Convention 1. Introduction The most important international environmental agreement for the purposes of considering a judicial review claim is the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, known as the Aarhus Convention after the town in Denmark in which it was agreed. The Aarhus Convention was signed by the first parties, including the United Kingdom, in 1998, and it came into force in October 2001. The United Kingdom ratified the Convention in February 2005 at the same time as the European Community. The Aarhus Convention creates a number of rights for the public in relation to the envir­ onment, and its recitals state that one of its goals is the protection of the right of every person of present and future generations to live in an environment that is adequate to health and well-being. It differs in an important respect from many other international environmental agreements because it is not solely concerned with environmental protection. Instead, the Convention also focuses on individual rights in relation to environmental decision-making and on government accountability and transparency. It contains three broad themes or ‘pillars’: access to information, public participation and access to justice. The Convention confers rights on ‘the public’ – a concept that is given a broad definition by Article 2(5). The concept means the ‘public affected or likely to be affected by, or having an interest in, the environmental decision-making’. The definition also provides that ‘nongovernmental organizations promoting environmental protection and meeting any require­ments under national law shall be deemed to have an interest’. 2.  Access to Information The first pillar of the Aarhus Convention is concerned with access to information. It has been implemented in the United Kingdom by means of Directive 2003/4/EC and the Environmental Information Regulations 2004.12 These are discussed fully below in chapter twenty. The provisions on access to environmental information enable members of the   See below ch 17.   Case C-308/06 R (on the Application of International Association of Independent Tanker Owners v Secretary of State for Transport [2008] ECR I-4057, paras 43–45. 12   [2003] OJ L41/26 and SI 2004/3391 respectively. 10 11

International Law  27 public to obtain an extremely wide range of documentation concerning the environment and decisions taken in relation to it. Article 6(6) requires the competent public authorities to give the public access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, all of the following information relevant to decision-making: a) a description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions; b) a description of the significant effect of the proposed activity on the environment; c) a description of the measures envisaged to prevent and/or reduce the effects, including emissions; d) a non-technical summary of the above; e) an outline of the main alternatives studied by the applicant; and f) in accordance with national legislation, the main reports and advice issued to the public at the time when the public concerned shall be informed in accordance with Article 6(2). This information is vital to enable the public to participate in environmental decisionmaking, whether as part of a formal consultation exercise or by making objections to others’ applications for licences or permissions. In addition, as explained in chapter one, the provisions on access to environmental information both provide prospective claimants with an effective means of scrutinising decisions for judicially reviewable errors and help claimants to gather evidence in order to sustain their claims. 3.  Public Participation The second pillar of the Aarhus Convention is concerned with public participation. Article 6 guarantees the right to participate from an early stage in environmental decision-making concerning: (i) the activities specified in Annex I;13 and (ii) activities that may have a significant effect on the environment. In particular, Article 6(2) provides that the public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure and in an adequate, timely and effective manner of: a) the proposed activity and the application on which a decision will be taken; b) the nature of possible decisions or the draft decision; c) the public authority responsible for making the decision; d) the envisaged procedure, including, as and when this information can be provided; e) the commencement of the procedure; f) the opportunities for the public to participate; g) the time and venue of any envisaged public hearing; h) an indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public; i) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; 13  Annex I includes activities carried out: in the energy sector; in the course of production and processing of materials; in the mineral and chemical industries; in waste management; by water treatment plants with a capacity exceeding 150,000 population equivalent; by industrial plants; and in the construction of transport infrastructure such as railways, airports and roads.

28  Sources and Objectives of Environmental Law and Policy j) an indication of what environmental information relevant to the proposed activity is available; and k) the fact that the activity is subject to a national or transboundary environmental impact assessment procedure. These guarantees of public participation must include reasonable timeframes for the different phases, allowing sufficient time for informing the public in accordance with Article 6(2), as well as sufficient time for the public to prepare and participate effectively during the environmental decision-making.14 Moreover, the Aarhus Convention emphasises that public participation should be possible at an early stage ‘when all options are open and effective public participation can take place’.15 4.  Access to Justice The third pillar of the Aarhus Convention provides access to justice in three contexts: (i) review procedures with respect to information requests; (ii) review procedures with respect to specific decisions that are subject to public participation; and (iii) challenges to breaches of environmental law in general. In relation to information appeals, Article 9(1) of the Convention provides that a person who considers that his Convention request for information has been ignored, wrongfully refused, inadequately answered or otherwise not dealt with in accordance with the provisions of Article 4, must be provided with access to a review procedure by a court or another independent and impartial body established by law. In addition, Article 9(1) provides that where a party provides for review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than the court. In relation to matters subject to the public participation provisions in Article 6, Article 9(2) provides a right of access to justice in these terms: Each party shall, within the framework of its national legislation, ensure that members of the public concerned a) having a sufficient interest; or alternatively, b) maintaining the impairment of a right, where the administrative procedural law of a party requires this as a precondition, have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of Article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

Without prejudice to this right to challenge decisions subject to public participation, Article 9(3) provides the general right for members of the public to have ‘access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment’. Not only does Article 9 provide a formal right of access, it also regulates the terms on which access is made available. Article 9(4) requires that contracting states ‘shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair,  Art 6(3).  Art 6(4).

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International Law  29 equitable, timely and not prohibitively expensive’. As will be seen in chapter seven, the requirement that judicial procedures be ‘not prohibitively expensive’ has given rise to much litigation in English law challenging the English costs rules, which generally require the user to pay the winner’s costs. The guarantee of proceedings that are not prohibitively expensive has been instrumental in the development of the courts’ power to make protective costs orders in environmental judicial review. 5.  Status of the Aarhus Convention in English Law The Aarhus provisions regarding access to justice have been specifically incorporated into EU law as a result of amendments to both the Environmental Impact Assessment (EIA) Directive16 and the Integrated Pollution Prevention and Control (IPPC) Directive.17 Accordingly, in areas covered by these two Directives, individuals now have directly effective rights to a review procedure providing adequate and effective remedies that is fair, equitable, timely and not prohibitively expensive. Member States must therefore amend their national procedural rules in order to transpose these provisions. In Commission v Ireland,18 the Commission complained that Ireland had failed to implement these Directives properly because there was no applicable ceiling in Irish law as regards the amount an unsuccessful applicant would have to pay and no legal provisions that referred to the fact that procedures must not be prohibitively expensive. The ECJ agreed and held that Ireland had failed properly to transpose Article 10(a) of the EIA Directive and Article 15(a) of the IPPC Directive by failing to ensure that procedures for access to justice in respect of decisions made under those Directives were not prohibitively expensive. The status and effect of the Aarhus Convention were considered by the Court of Appeal in Morgan v Hinton Organics.19 Carnwarth LJ, giving the judgment of the Court, held that because it had the status of unincorporated treaty, the Aarhus Convention was not binding in domestic law. That remained the case even though the Convention had been ratified by the European Union.20 Ratification by the European Union does, however, mean that the European Commission has the right to ensure that Member States comply with the Convention in areas within Community competence.21 But from the point of view of a domestic judge, the provisions of the Aarhus Convention can only be taken into account in resolving ambiguities in legislation intended to give effect to the Convention22 or in exercising judicial discretion. Even then, it ‘is at most a matter potentially relevant to the exercise of a judge’s discretion’,23 along with other discretionary factors, including fairness to the defendant.24

16  Art 10(a) of Directive 85/337/EEC [1985] OJ L175/40 on the assessment of the effects of certain public and private projects on the environment, as amended by Directives 97/11/EC [1997] OJ L73/5 and 2003/35/EC, [2003] OJ L156/17. 17  Art 15(a) of Directive 96/61/EC [1996] OJ L257/26 concerning integrated pollution prevention and control; now codified into Directive 2008/1/EC [2008] OJ L24/8. 18   Case C-427/07 Commission v Ireland [2009] ECR I-6277. 19   Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107. 20   Ibid, para 50. 21   Ibid, para 22, citing Case C-239/03 Commission v France [2004] ECR I-9325, paras 25–31. 22   Morgan v Hinton Organics (above n 19) para 22. 23   Ibid, para 50. 24   Ibid, para 44.

30  Sources and Objectives of Environmental Law and Policy This last point has been implicitly criticised by the Aarhus Compliance Committee in its recent report concerning Communication ACCC/C/2008/33.25 The Committee stated: The Committee also notes the Court of Appeal’s judgement in Morgan v Hinton Organics, which held that the principles of the Convention are ‘at most’ a factor which it ‘may’ (not must) take into account, ‘along with a number of other factors, such as fairness to the defendant’. The Committee in this respect notes that fairness in Article 9, paragraph 4 [of the Aarhus Convention] refers to what is fair for the claimant, not the defendant.26

This comment appears to misunderstand the point that the Court of Appeal was making in Morgan. The Aarhus Convention may well elevate fairness to the claimant above the defendant’s interests in relation to access to justice, but in areas where the Convention is not binding on English judges (ie, all those areas not covered by the directly effective EU Directives reproducing the Conventions provisions) that priority is not legally enforceable. Carnwarth LJ’s analysis was a perfectly correct statement of English law. Nevertheless, by failing to give priority to the claimant’s interest in access to justice, English law may well be incompatible with the Convention.

II.  European Union Law

A.  Legislative Basis The EU Commission has estimated that 80 per cent of national environmental legislation stems from EU environmental policy.27 Given the vast swathes of environmental legislation that have emanated from the European Union in recent years, it is perhaps surprising that the original Treaty of Rome contained not a single mention of the environment. Specific provision in relation to the environment was made only in 1987 when the Single European Act was passed.28 That Act amended the Treaty of Rome and introduced a new Article 100a: 3. The Commission, in its proposals envisaged in paragraph 1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection.29  The report is currently in draft and due to be produced as an official UN document in due course.   Ibid, para 133. 27  COM (2007) 225 Mid-term review of the Sixth Community Environmental Action Programme EU Commission, Brussels. 28   Prior to 1987, EU environmental legislation was enacted on the basis of either Art 100 or Art 235 EC. The former empowered the Council ‘to issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affects the establishment or functioning of the common market’; and the latter provided that ‘if action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Community shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures’. The use of these legal bases was supported by the ECJ, which held that economic considerations could justify the enactment of environmental legislation (Case C-91/79 Commission v Italy [1980] ECR 1099) and that environmental protection was ‘one of the Community’s essential objectives’ despite the silence of the Treaty on this issue: C-240/83 Procureur de la République v Association de Défense de Brûleurs d’Huiles Usagées [1985] ECR 531. 29  The very first official reference to the environment was contained in a declaration made in October 1972 by the heads of the Member States, quoted in the Introduction to the 1st Action Programme [1975] OJ C112 at p.5: ‘Economic expansion is not an end in itself: its firm aim should be to enable disparities in living conditions to be reduced. It must take place with the participation of all the social partners. It should result in an improvement in the quality of life as well as in standards of living. As befits the genius of Europe, particular attention will be given 25 26

European Union Law  31 The Single European Act also introduced three new Articles setting out the principles of Community action on the environment. Those provisions cemented the protection of the environment as a central aspect of EU regulation. Thus, in Monge v Hampshire County Council, Ward LJ was able to conclude that ‘[p]reserving, protecting and improving the environment, including bio-diversity, are the essential objectives of general interest pursued by the European Community’.30 Following amendment and renumbering, these Articles are now contained in Title XX of the Treaty on the Functioning of the European Union (TFEU). Article 191(1) TFEU (ex-Article 174 EC) states that EU environmental policy ‘shall contribute to pursuit of the following objectives’: •  preserving, protecting and improving the quality of the environment; •  protecting human health; •  prudent and rational utilisation of natural resources; •  promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

Article 191(2) provides that EU environmental policy shall be based upon the following environmental principles: Union policy on the environment shall aim at a high level of protection, taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

Article 191(3) requires the European Union to take account of the following when preparing its policy on the environment: •  available scientific and technical data; •  environmental conditions in the various regions of the Union; •  the potential benefits and costs of action or lack of action; •  the economic and social development of the Union as a whole and the balanced development of its regions.

The Lisbon treaty also makes important procedural changes to the decision-making process in relation to nationally sensitive issues such as land use, water resources and town and country planning. Previously these sensitive areas were subject to a decision-making process requiring unanimity after consultation with the EU Parliament, even though in general the Council adopts most environmental legislation by way of qualified majority voting. The new arrangements in Article 192 TFEU for these nationally sensitive areas permit the Council, acting unanimously, to switch all or some of the relevant measures to fall under ordinary legislation rather than qualified majority voting. This would expand the role of the EU Parliament.31 The environmental principles in Article 191 TFEU are drafted in broad terms and are primarily designed to be political objectives assisting in the development of environmental to intangible values and to protecting the environment, so that progress may really be put at the service of mankind’. 30   Monge v Hampshire County Council [2010] EWCA Civ 608, [2010] PTSR 1882, para 23. 31   Switching to the ordinary voting procedure does require the unanimous decision of the Council. In that regard it is important to note that the European (Amendment) Act 2008 requires Parliamentary approval before the United Kingdom can agree to a Council decision to apply the ordinary legislative procedures to nationally sensitive legislative areas.

32  Sources and Objectives of Environmental Law and Policy policy at EU level. They are not therefore well-suited as the basis for litigation seeking to protect specific aspects of the environment. They afford a considerable margin of appreciation to the EU institutions and the Member States, especially in respect of implementing the broad policy objectives. As such, it is questionable whether any of the environmental policy provisions in the Treaty are sufficiently precise and unconditional to be directly effective.32 The environmental principles set out in the Treaty do, however, have some important legal effect because they are used by the ECJ as interpretive tools in determining whether the Member States have adhered to their environmental commitments.33 Although environmental protection is one of the European Union’s essential objectives, that does not mean that environmental protection trumps other provisions of the TFEU. This is illustrated by the decision in British Aggregates Association v European Commission,34 which concerned the question whether the British aggregates levy was a state aid or not. The levy had been introduced under the Finance Act 2001 in order to tax virgin aggregates and encourage the use of recycled material. The claimant, the British Aggregates Association, considered that the tax was selective and unfairly advantaged competitors within the industry. In particular, it objected that certain aggregates had no effective substitute made from recycled material and that by excluding the tax from exports, non-exporting companies were unfairly disadvantaged. The Commission determined that the levy was not a state aid, and the Court of First Instance (CFI) upheld this view, emphasising that in the absence of harmonisation measures, Member States have considerable discretion to introduce taxes as part of their national environmental policy.35 The ECJ rejected this non-interventionist approach. It held that the legal definition of a state aid in Article 107 TFEU (ex-Article 87) focused on the effect of the measure, rather than the objective of the policy concerned and that it requires the court to determine whether the measure constituted ‘an advantage for certain undertakings in comparison with others which are in a comparable legal and factual situation’.36 The ECJ held that the CFI had placed too much weight on the discretion of Member States in determining their own environmental policies and that environmental protection did not trump the provisions of the Treaty in relation to state aid. It concluded: The need to take account of requirements relating to environmental protection, however legit­ imate, cannot justify the exclusion of selective measures, even specific ones such as environmental levies, from the scope of Article 87(1) EC.37

B.  Environmental Policymaking Due to its growing membership and territorial coverage, the European Union is a major force in developing a global environmental policy. Currently the European Union is composed of 27 Member States and has a total population of more than 450 million. As one of the most important trading and political blocs in the world, the European Union has considerable influence on the world stage and is able to shape trade relations to take account of 32   L Krämer, ‘Direct Effect of EC Environmental Law’ in H Somsen (ed), Protecting the European Environment: Enforcing EC Environmental Law (London, Blackstone Press Ltd, 1996) 113. On the doctrine of direct effect see Ch 16. 33   See below ch 3. 34   Case C-487/06 P [2008] ECR I-10505. 35   Case T-210/02 British Aggregates Association v Commission [2006] ECR II-2789. 36   Case C-487/06 P [2008] ECR I-10505, para 82. 37   Ibid, para 92.

European Union Law  33 concerns about global warming and sustainable development. The content and scope of EU environmental policy is therefore highly influential. This section examines the way in which EU environmental policy is developed by the Commission through its environmental action programmes. The Commission develops EU environmental policy according to the agenda laid down in its current ‘Action Programme for the Environment’. To date there have been six such action programmes since 1973.38 The action programmes set out broad policy objectives, and the Commission seeks to bring forward proposals to implement those objectives. However, there is no guarantee that all of the objectives will be met during a particular programme. The programme objectives are not exhaustive, and so it is possible for proposals to be brought forward which were not originally referred to in a programme. The particular importance of the action programmes lies in the fact that they reflect a philosophy that prioritising the environment as part of the economic and social development of the European Union does not necessarily conflict with the European Union’s trade and market objectives. This philosophy has resulted in the successful integration of environmental policymaking with trade and economic growth. The First Environmental Action Programme articulated 11 ‘Principles of a Community Environmental Policy’ which continue to underpin EU environmental policy. The principles are that: a) pollution should be prevented at source rather than dealt with after the event; b) environmental issues must be taken into account at the earliest possible stage in planning and other technical decision-making processes; c) the abusive exploitation of natural resources is to be avoided; d) the standard of knowledge in the European Union should be improved to promote effective action for environmental conservation and improvement; e) the polluter should pay for preventing and eliminating ‘nuisances’, subject to limited exceptions and transitional arrangements; f) activities in one country should not degrade the environment of another; g) the European Union and the Member States must in their environment policies have regard to the interests of developing countries and should aim to prevent or minimise any adverse effects on their economic development; h)  there should be a clearly defined long-term European environmental policy that includes participation in international organisations and cooperation at both regional and international levels; i) environmental protection is a matter for everyone in the European Union, at all levels; their cooperation, and the harnessing of social forces, is necessary for success. Education should ensure the whole community accepts responsibilities for future generations; j) appropriate action levels must be established – local, regional, national, Community and international – for each type of pollution and area to be protected; k) major aspects of national environmental protection policies should be harmonised. Economic growth should not be viewed for purely quantitative aspects.

38  The first programme covered the period 1973–76 ([1973] OJ C112); the second covered 1977–81 ([1977] OJ C139); the third covered 1982–86 ([1983] OJ C46); the fourth covered 1987–92 ([1987] OJ C328); the fifth covered 1993–2001 ([1993] OJ C138); and the current action programme covers 2002–12 ([2002] OJ L242/1).

34  Sources and Objectives of Environmental Law and Policy It is beyond the scope of this book to examine the development of EU environmental policy in depth,39 but it is nevertheless helpful to consider the main trends and themes of the most recent Environmental Action Programmes, because some new approaches have been taken which will influence the drafting and interpretation of the EU environmental legislation, as well as the application of the grounds for judicial review. The first important trend began with the fifth Action Programme, entitled ‘Towards Sustainability’. It introduced the concept of sustainable development and moved away from a traditional command and control approach to regulation. Instead it declared: Environmental policy will rest on four main sets of instruments: regulatory instruments, marketbased instruments (including economic and fiscal instruments and voluntary agreements), horizontal supporting instruments (research, information, education etc) and financial support mechanisms.40

The fifth Action Programme also recognised that the goal of sustainable development can be achieved only by concerted action on the part of all of the relevant actors working in partnership. Thus, inherent in the ideal of sustainable development is the concept of shared responsibility for environmental protection. This concept of shared responsibility altered the way in which environmental protection policy was organised. Rather than concerning itself with specific environmental media, such as land, air and water, and how they should be protected, the fifth Action Programme focused on five sectors of economic activity: industry, energy, transport, agriculture and tourism. This enabled integrated policymaking and the sharing of responsibility between both public and private sectors within the specified areas of economic activity. A good example of this approach is the scheme created by Directive 2002/96/EC on Waste Electronic and Electrical Equipment,41 which focused on the position of many bodies involved in the electrical and electronic goods market and the disposal of electrical and electronic waste. Article 1 of the Directive states: The purpose of this Directive is, as a first priority, the prevention of waste electrical and electronic equipment (WEEE), and in addition, the reuse, recycling and other forms of recovery of such wastes so as to reduce the disposal of waste. It also seeks to improve the environmental perform­ ance of all operators involved in the life cycle of electrical and electronic equipment, eg, producers, distributors and consumers and in particular those operators directly involved in the treatment of waste electrical and electronic equipment.

The Directive places obligations upon producers (namely manufacturers, importers or re-branding sellers) of waste electrical and electronic equipment (WEEE) to finance the costs of collection, treatment, recovery and environmentally sound disposal of WEEE that is either deposited at a collection facility by members of the public or has returned to distributors.42 The United Kingdom has implemented the Directive and provided that makers of electrical goods must pay for WEEE recycling by joining compliance schemes, which arrange to collect waste appliances and obtain evidence of their recycling.43 In March, the Recycling   For a detailed account, see L Krämer, EU Environmental Law, 6th edn (London, Sweet & Maxwell, 2007).   European Commission, ‘Towards Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development’ [1993] OJ C138, ch 7. 41   [2003] OJ L37/24. 42  Art 5 Directive 2002/96/EC. 43  Waste Electrical and Electronic Equipment Regulations 2002, SI 2006/3289. 39 40

European Union Law  35 Electrical Producers’ Industry Consortium (REPIC), the largest UK scheme, began judicial review proceedings for what it said was the government’s failure to close loopholes that allowed other schemes to over-collect evidence. In particular, REPIC complained that two schemes had collected WEEE beyond their obligations, with a view to selling surplus evidence at ‘ransom prices’. Understanding the regulatory purpose of the Directive, in particular the emphasis on producer responsibility, proved to be crucial in determining whether such over collection was legally permissible. In R (REPIC) v Secretary of State for Business, Enterprise and Regulatory Reform,44 Wyn Williams J held that the principles underlying the WEEE Directive must be taken into account in interpreting the WEEE Regulations 2006. In that regard, he accepted that one of the underlying principles of the Directive was the concept of producer responsibility. Construing the 2006 Regulations in the light of the concept of producer responsibility showed that the obligation in Schedule 7 of the WEEE Regulations 2006 for a compliance scheme to have viable plans to collect WEEE ‘equivalent’ to their obligation meant that they must collect ‘no more and no less than is necessary to meet [their] obligation’.45 Although spot trading of evidence notes will be required ‘because of the difficulty in predicting the precise amount of WEEE . . . necessary to comply with obligations’, this should not be the basis of a scheme’s business model.46 This case demonstrates that the European Union’s general principles of environmental law are relevant to the interpretation of EU environmental law and domestic implementing measures. The second important trend in the EU Environmental Action Programmes is the emphasis on scientific knowledge. In areas such as global warming, chemicals and pesticide regulation, and air pollution, adequate scientific understanding is increasingly seen as being necessary to support environmental policymaking. In its midterm review of the sixth Action Programme, the Commission argued: The starting point for environmental policy is a scientific understanding of the state of our environment. Policymakers need to understand the extent to which environmental problems are getting better or getting worse.47

Accordingly, EU policymakers must ‘respond to the scientific reality’ in developing ‘forward-looking and ambitious environmental policy’.48 This increasing reliance on science and expertise as the basis for making decisions about environmental protection and environmental risk is not without controversy. As Fisher has identified, commentators tend to align themselves into two groups – ‘those that argue science and expertise are the primary basis for making decisions about technological risk, and those that argue democracy and ethical values are the primary basis’.49 The supposed dichotomy is captured by this comment by Collins and Evans: Technical decision-making in the public domain is where the pigeons of much recent social science are coming home to roost. The problem can be stated quite simply: Should the political legitimacy

44   R (on the Application of Repic Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] EWHC 2015 (Admin), [2010] Env LR 24. 45   Ibid, para 36. 46   Ibid, paras 38–39. 47  European Commission, ‘Midterm Review of the Sixth Community Environmental Action Programme’ COM (2007) 225, 4. 48   Ibid, 6. 49   E Fisher, Risk: Regulation and Administrative Constitutionalism (Oxford, Hart, 2007) 12.

36  Sources and Objectives of Environmental Law and Policy of technical decisions in the public domain be maximised by referring them to the widest democratic process, or should such decisions be based on the best expert evidence?50

Yet to conceive this debate as science versus democracy is to overlook the more fundamental controversy at the heart of risk regulation. As Fisher has expertly argued, disputes about environmental risk are not really disputes over whether scientific or democratic approaches are better ways to regulate but rather disputes over what should be the role and nature of public administration in regulating risk.51 In other words, the debate actually concerns the nature of administrative constitutionalism and raises important questions about how public administration should be constituted, limited and held to account. The courts are not insulated from the controversy surrounding the use of scientific evidence in policymaking and decision-taking. They are increasingly being called upon to determine the role of democratic decision-makers in relation to scientific data – a development that sits uncomfortably with the Administrative Court’s traditional constitutional role, which limits judicial review to questions of legality, rather than the merits of a decision.52 For example, in Downs v Secretary of State for the Environment, Food and Rural Affairs,53 the Court of Appeal was required to determine a dispute concerning the models that the government’s Advisory Committee on Pesticides used to ensure safety from pesticide exposure and, in particular, whether the models were adequate to deal with the exposure of local residents. The background to the case was a report in 2005 by the Royal Commission on Environmental Pollution, which had criticised the current methodologies and had recommended a more precautionary approach on the basis that it was reasonable to assume that spraying crops with pesticides could cause chronic ill health to local residents and other bystanders. The government’s Advisory Committee on Pesticides defended its approach, and the Minister rejected the Royal Commission’s recommendations. The claimant, a prominent pesticide campaigner, argued that the Minister had irrationally rejected the Royal Commission’s recommendations – in particular because the Minister himself had requested the Commission to consider the issue of resident bystander exposure to pesticides. At first instance, Collins J examined the scientific dispute between the advisory committee on pesticides and the Royal Commission, but he did not feel that it was appropriate to adjudicate on such issues. He stated, ‘I am not qualified to decide between those views; nor is it an appropriate exercise for a judge to undertake judicial review.’54 The test remained, Collins J explained, whether the Minister had acted irrationally in refusing to follow the Royal Commission’s advice. He concluded that the Minister had not acted irrationally and explained that ‘the defendant in this case was bound to act on the advice given to him by experts. The advice conflicted, and so he was entitled to choose between them.’55

50   H Collins and R Evans, ‘The Third Wave of Science Studies: Studies of Expertise and Experience’ (2002) 32 Social Studies of Science 235, 235–36. 51  Fisher, Risk (above n 49) 245. 52   See, eg, R v Secretary of State for Trade and Industry, ex p Lonrho Plc [1989] 1 WLR 525, 536D-E (Lord Keith): ‘the courts must be careful not to invade the political field and substitute their own judgment for that of the Minister. The courts judge the lawfulness not the wisdom of the decision’. See also R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 515c–g (Laws J). 53   Downs v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664, [2009] 3 CMLR 46. 54   [2008] EWHC 2666 (Admin), [2009] Env LR 19, para 38. 55   Ibid, para 64.

European Union Law  37 Despite dismissing the claim based on domestic law, Collins J went on to hold that the government’s policy breached the requirement in Article 4(1) of the Plant Protection Products (Pesticides) Directive 91/414/EEC56 to ensure that a pesticide is not authorised unless inter alia ‘it has no harmful effect on human or animal health, directly or indirectly’. He held that the fundamental requirement that human health be not harmed required that a precautionary approach be applied to ensure consideration of the protection of all who may be affected by use of a particular pesticide. Although Collins J did not consider it was for the courts to suggest what new policy the government should adopt, he did indicate that there was a strong case for buffer zones and that there was a ‘clear’ need to inform local residents of intended spraying and the composition of pesticides.57 He thereby vindicated the view of the Royal Commission. Collin’s J’s judgment was reversed by the Court of Appeal. Sullivan LJ held that Collins J had misconstrued the Directive. Compliance with the uniform principles in Annex VI of the Directive was a sufficient test of the harmful effects of a pesticide on human health. If no harmful effects were found by applying these principles, authorisation would be in compliance with Article 4(1). The uniform principles were designed to provide a comprehensive code for all Member States to apply. The purpose of the Directive was to harmonise authorisation procedures, and it would frustrate this purpose if Member States were able to introduce their own principles or policies for the purpose of establishing whether a pesticide had harmful effects on health. The Secretary of State had applied the uniform principles, and Defra’s crop-spraying authorisation policy was therefore compliant with the Directive. More importantly, Sullivan LJ went on to criticise the approach of Collins J on the basis that he had impermissibly strayed into realm of merits review. Sullivan LJ disapproved of such interference with the Minister’s discretion in these terms: In my judgment, Collins J in these passages was substituting his own evaluation of the available evidence for that of the Appellant. Whether the evidence does reasonably raise doubts as to the safety of those pesticides that have been authorised by Defra under the current approvals process, or whether it amounts to no more than ‘hypotheses that have not been scientifically confirmed’ is, in the first instance, for Defra to decide, having taken advice from the ACP. While the appellant’s decisions in this respect are not immune from judicial review, the hurdle of ‘manifest error’ in such a highly technical field is a formidable one. The Respondent is not able to surmount that hurdle.58

He held that the government had given a ‘very full and detailed explanation’ as to why it had not accepted the Royal Commission’s recommendations. The claimant’s contention that those reasons were not clear and compelling was in reality no more than an expression of a disagreement with those reasons.59 The judicial review process was not an appeal, and it was not appropriate for the courts to interfere with the Minister’s judgement. This case illustrates the potential for disputes concerning scientific data and modelling to embroil the courts in arguments about the substantive merit of government policy. Although the Court of Appeal was able to guard against such a constitutional solecism in this case, the problem is likely to continue, given the central role of science in environmental policymaking in the modern era.   [1991] OJ L230/1.   Downs (above n 54) para 70. 58   [2009] EWCA Civ 664, [2009] 3 CMLR 46, para 76 (citations omitted). 59   Ibid, para 102. 56 57

38  Sources and Objectives of Environmental Law and Policy Finally, the importance of scientific understanding and data in the context of environmental policymaking has resulted in a third trend, namely the setting of environmental targets. For example, the sixth Action Programme sets demanding targets by: (i) requiring a reduction of emissions of greenhouse gases by at least 30 per cent; (ii) setting a target for the production of renewable energy of 20 per cent and a 10 per cent target for the consumption for biofuels; and (iii) demanding increasing energy efficiency by reducing EU energy consumption by 20 per cent compared to projections for 2020. The use of scientific data to support the setting of such environmental targets is a complex exercise. Scientific uncertainty frequently occurs in the environmental context because the assessment of risk necessarily relates to future outcomes of action, which are inherently unpredictable.60 There are uncertainties inherent in many methods of sampling and data collection, especially in an ecological context. Modelling and monitoring techniques are constantly evolving and improving but are never perfect. Moreover, target-setting in relation to environmental risk can never be a matter of pure science because the determination of a socially acceptable risk requires consideration of political, social and ethical factors. In any event, it is doubtful whether these environmental targets will be met. The consequences of failure are likely, however, to be political only. A failure to meet an environmental target is unlikely to give rise to legal consequences given the decision in Friends of the Earth and Help the Aged,61 which indicates that the courts will be reluctant to construe environmental targets as imposing legally enforceable duty.62

III.  Domestic Law

A.  Domestic Legislation Bell and McGillivray have identified five characteristics that are common to all domestic environmental legislation.63 The first feature is that most of the detail of domestic environmental law is contained in statutory instruments rather than in primary legislation. Usually, statutes provide a limited description of the law, and they are supplemented by regulations, orders and rules made under delegated powers. This is the model followed by the Environmental Protection Act 1990, the Water Resources Act 1991 and the Pollution Prevention and Control Act 1999. This delegated legislation is frequently supplemented by soft law in the form of guidance, circulars and other technical advice. The complex inter­ actions of the various tiers of rules provide fertile ground for a judicial review claimant seeking to argue that a decision-maker has misconstrued the scope of its powers. The second feature of domestic environmental legislation is that commencement is often delayed. For example, the Control of Pollution Act 1974 contained provisions in Part II relating to water pollution that were not brought into force until 1986. In part, the 60  B Wynne, ‘Uncertainty and Environmental Learning’ (1992) 2 Global Environmental Change 111; and E Fisher, ‘Drowning by Numbers: Standard Setting in Risk Regulation and the Pursuit of Accountable Public Administration’ (2000) 20 Oxford Journal of Legal Studies 109. 61   R (on the Application of Friends of the Earth and Help the Aged) v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin). 62   See discussion below at p 41. 63   S Bell and D McGillivray, Environmental Law, 6th edn (Oxford, Oxford University Press, 2006).

Domestic Law  39 delay in the commencement of environmental legislation is necessary to enable regulated industries to familiarise themselves with new legislative requirements and to adapt their processes in order to bring them into compliance. Third, it is common for environmental legislation to preserve flexibility by including open-textured definitions such as, in the context of air pollution, the requirement in the Environmental Protection Act 1990 to use the ‘best practicable means’. This sort of flexible definition makes compliance with the statutory scheme a question of fact and degree for the regulator. This has important consequences for the scope of judicial review. Instead of policing compliance with hard-edged legal definitions, the Administrative Court is required to respect an exercise of the decision-maker’s professional judgement. The fourth characteristic of environmental legislation in the United Kingdm is that a broad definition is often included in primary legislation, and ministers are given power to create more specific lists of technical detail in secondary regulations. This often gives rise to judicial review challenges questioning whether the ministers’ attempt to transpose the relevant EU law is sufficient. Sometimes the detailed list in the statutory instrument may fail to include a matter that ought to be regulated, and sometimes it may be overly inclusive. A good example of such technical list-making in secondary legislation is the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which set out the forms of development subject to environmental impact assessment. Schedule 1 of the Regulations sets out 21 different descriptions of types of development, and Schedule 2 identifies a further 13 categories of development. An example of detailed secondary legislation being successfully challenged for being under-inclusive is the decision in R (Barker) v Bromley LBC,64 in which the ECJ held that the United Kingdom had failed properly to implement the EIA directive because the Regulations did not provide for environmental impact assessment for multistage processes at any time other than the initial application. It was therefore necessary to make amendments so that environmental impact assessment could be conducted at the stage of reserved matters approval if it had not been properly carried out at the stage of granting outline planning permission.65 The final common characteristic of UK environmental legislation is that it frequently confers very wide discretion on decision-makers. This could be discretion as to whether an area should be designated for special protection; discretion as to the setting of standards regulating the permitted level of the pollutant discharged or emitted; or it could be discretion as to enforcement. The large degree of administrative discretion conferred by environmental legislation means that the courts occupy an extremely important role in ensuring that the discretion is not exercised in an arbitrary or capricious manner. However, they must be alert to ensure that they do not step into the shoes of the environmental regulator and seek to exercise the discretion themselves. As will be seen, the courts are required to strike a difficult balance between allowing expert, democratically accountable decisionmakers sufficient discretionary freedom whilst at the same time upholding the rule of law. Because of the constant threat of judicial review proceedings, many environmental regulators have sought to structure their discretion by creating internal agency guidelines and strategies in order to formalise their decision-making. A good example is the adoption by 64   Case C-290/03 R (on the Application of Barker) v Bromley London Borough Council [2006] ECR I-3949, [2006] QB 764. 65  The Town and Country Planning (Environmental Impact Assessment) (Amendment) (England) Regulations 2008 (SI 2008/2093).

40  Sources and Objectives of Environmental Law and Policy the Environment Agency of a formal policy on prosecution and other enforcement action.66 These sorts of policies help to promote clarity and consistency, but they do provide scope for judicial review challenges arguing either that the policy itself is unlawful or that it has not been properly applied in the instant case.

B.  Interpretation of Environmental Legislation 1.  Purposive Interpretation The purposive interpretation of legislation is especially visible in the environmental context. For example, the ECJ has repeatedly emphasised that the EIA Directive must be applied purposively, noting in Ecologistas v Ayuntamiento de Madrid that ‘[t]he Court has stated on numerous occasions that the scope of Directive 85/337 and that of the amended directive is very wide’.67 The English courts have quickly followed suit and adopted a similarly purposive approach. For example, in determining whether a project should be the subject of an environmental impact assessment, the domestic courts originally took the view that this was a matter of fact and degree for the planning authority to decide.68 Subsequently, the ECJ determined that the purpose of the EIA Directive should not be undermined by giving unlimited discretion to Member States to decide whether projects would have significant effects on the environment.69 The English courts have now revised their interpretation of the EIA Regulations, and in R (Wye Valley Action Association) v Herefordshire Council, Ian Dove QC (sitting as a Deputy High Court Judge) summarised the current approach as follows: Thus, there are two stages. Stage A: Is the development within Schd 1 or Schd 2 of the regulations? The meaning in law of the description of the types of projects in Schd 2 is a matter for the court to determine and, unless the language is so open-textured or imprecise, and the factual circumstances so open to interpretation that a range of decision-makers, all acting rationally, could come to different conclusions, for the court to determine. Then, Stage B: If it is within Schd 2, would the project have significant environmental effects? That is pre-eminently a matter of planning judgment, which could only be interfered with on Wednesbury principles.70

This purposive approach to the interpretation of environmental legislation is also evident in the House of Lords decision in Berkeley v Secretary of State for the Environment.71 In Berkeley, planning permission was quashed because there was no environmental statement. Lord Hoffmann held that it was not sufficient that the information was available in a variety of different documents produced at different times and referenced in the developer’s statement of case: [Counsel for the Secretary of State] says that the equivalent of the applicant’s environmental statement can be found in its statement of case under the Inquiry Procedure Rules, read (by virtue of cross referencing) with the planning authority’s statement of case, which in turn incorporated the comprehensive officers’ report to the planning subcommittee, which in turn incorporated the   Environment Agency, ‘Enforcement and Prosecution Policy’ (July 2010).   Case C-142/07 Ecologistas v Ayuntamiento de Madrid [2008] ECR I-6097, para 28.   R v Swale BC, ex p RSPB [1991] 1 PLR 6. 69   Case C-72/95 Kraaijeveld v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403. 70   R (on the Application of Wye Valley Action Association Ltd) v Herefordshire Council [2009] EWHC 3428 (Admin), [2010] Env LR 18, para 25 (citations omitted). Reversed on the facts: [2011] EWCA Civ 20. 71   Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2001] 2 AC 603. 66 67 68

Domestic Law  41 background papers such as the letters from the National Rivers authority and the London ecology unit and was supplemented by the proofs of evidence available at the inquiry. Members of the public had access to all these documents and the right to express their opinions upon them at the inquiry. My Lords, I do not accept that this paper chase can be treated as equivalent of an environmental statement. In the first place, I do not think it complies with the terms of the Directive. The point about the environmental statement contemplated by the Directive is that it constitutes a single and accessible compilation, produced by the applicant at the very start of the application process, of the relevant environmental information and the summary in non-technical language. It is true that Article 6.3 gives Member States a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted. But I do not think it allows Member States to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirements to make available to the public the Annex III information which should have been provided by the developer.72

Thus, relying on a purposive approach to interpretation, the courts have stressed that the environmental statement should be clear so that the information is apparent to a member of the public. Extensive cross-references and incorporation of other documents by reference is unlikely to be acceptable. 2.  Restrictive Interpretation of Exceptions and Derogations The effectiveness of environmental legislation is strengthened by the related principle that exceptions or derogations from environmental protection will be given a narrow interpretation. Such a restrictive approach to derogations can be seen in the ECJ decision in European Parliament and Denmark v Commission,73 which concerned EC directive 2002/95/ EC.74 That Directive, known as the Restrictions of Hazardous Substances (RoHS) Directive, restricts the use of certain hazardous substances in electrical and electronic equipment. Article 4 of the Directive bans the marketing of equipment that contains a number of specified substances, including polybrominated diphenyl ethers. Article 4(2) provides, however, that the blanket ban does not apply to applications listed in the Annex to the Directive. The Annex as originally drafted contained several limited exceptions, and Article 5 allowed for it to be amended subsequently to adapt to scientific and technical progress. Such amendments to the Annex were permitted when elimination or substitution of the prohibited substance was technically or scientifically impracticable, or when substitution would cause great environmental, health or consumer safety impacts. The claim in European Parliament and Denmark concerned a flame retardant used in polymers, particularly casings for electrical and electronic equipment, known as decabrominated diphenyl ether (decaDBA). On the basis of a risk assessment in 2005 the Commission had amended the Annex to exempt decaDBA from the marketing ban. The claimant challenged the decision, contending that the risk assessment, carried out under Council Regulation 793/93,75 had been adopted in a different regulatory context and based on a different philosophy, rather than following the strict conditions for amendments to the Directive. The ECJ held that by adopting the Directive, ‘the intention of the legislature   Ibid, 617.   Cases C-14/06 and C-295/06 European Parliament and Denmark v Commission [2008] ECR I-1649. 74   [2003] OJ L37/19. 75   [1993] OJ L84/1. 72 73

42  Sources and Objectives of Environmental Law and Policy is to prohibit products referred to in the Directive and to grant exemptions only in accordance with carefully defined conditions’.76 Accordingly, it ‘must therefore be interpreted strictly’,77 so as to permit exemptions only if either elimination or substitution of the relevant substance was impracticable, or if the substitution posed environmental, health or consumer risks. 3.  Interpretation of Environmental Target Duties It is increasingly common for environmental legislation to set targets to be achieved. A key question is whether there is any legal remedy in the event that the targets are not met. The decision in Friends of the Earth and Help the Aged  78 indicates that the courts will be reluctant to construe environmental targets as imposing a legally enforceable duty. That case concerned the Warm Homes and Energy Conservation Act 2000, which requires the Secretary of State to publish a strategy setting out policies to ensure that ‘as far as reasonably practicable persons do not live in fuel poverty’.79 Section 2(5) of the Act provides that the Secretary of State is under a duty to take such steps that are in his or her opinion necessary to implement the strategy. The Secretary of State had published a strategy setting a target, so far as reasonably practicable, to end fuel poverty of vulnerable households by 2010 and to eliminate overall fuel poverty by the end of 2016. Despite some early success in implementing its strategy the government was not able to meet the 2010 target due to rising fuel prices, and approximately 1.3 million households remained in fuel poverty. The claimants argued that section 2(5) imposed a legal duty on the government to identify what is necessary and suitable to achieve the objectives of the strategy. McCombe J rejected that contention, and his observations concerning target-setting legislation have wider significance, for example in relation to the statutory carbon limits prescribed in the Climate Change Act 2008.80 He held that the primary obligation imposed by the 2000 Act was to publish a strategy, the contents of which was largely a matter for the Secretary of State’s discretion. Accordingly, the strategy was rightly couched ‘not in the language of legislation but of policy’.81 Nevertheless, section 2(5) did impose a legal duty to implement the strategy, and as McCombe J recognised, ‘the juxtaposition of policy and legal duty in this Act poses difficulties in the task of statutory construction.’82 McCombe J considered that the Act imposed a duty on the Secretary of State to take such steps as he considered necessary to achieve the fuel poverty objectives so far as reasonably practicable. But this did not mean that the targets were legally enforceable: [T]his is the language of ‘effort’ to achieve targets, rather than of guarantee that targets will be reached. However, the obligation remains to take steps considered necessary to make those efforts as far ‘as reasonably practicable’. To this extent, the language of policy has been translated into the language of statutory duty.83   European Parliament and Denmark (above n 73) para 74.   Ibid, para 71.  Above n 61. 79   S 2(1). 80   S 1(1) provides that it is ‘the duty of the Secretary of State to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline’. This target can be amended by the Secretary of State if there have ‘been significant developments in scientific knowledge about climate change or European or international law or policy’ (s 2(2)). 81   Friends of the Earth and Help the Aged (above n 61) para 14. 82   Ibid. 83   Ibid, para 19. 76 77 78

Domestic Law  43

C.  Environmental Policy 1. Introduction As explained above, UK environmental law consists of a number of different tiers: primary legislation, detailed secondary legislation and supplementary guidance and circulars. The use of circulars, codes and guidance is a helpful way of providing assistance with the interpretation and application of environmental law. They help to make law and practice of environmental regulation accessible to the public, even though they are not generally legally enforceable. However, as explained below in chapter eight, difficult questions arise concerning the extent to which nonbinding guidance and circulars may be the subject of judicial review. On the one hand, they have significant practical impact, and they are likely to be followed; but on the other hand, they have no legal effect, which is problematic since judicial review is only concerned with the legality of public law measures. In addition to providing guidance on practical day-to-day matters, policy is also a vehicle for announcing major government decisions, such as the location of new airports, motorways or power plants. Such decisions are highly political and involve the balancing of a number of competing socioeconomic considerations. This section first examines how the courts interpret environmental policy before examining the extent to which such high-level policymaking may be the subject of judicial review. 2.  Interpretation of Policy Policies play a critical role in planning decisions, and many of those planning policies are designed to protect the environment.84 Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides that planning determinations should be in accordance with the terms of the development plan unless material considerations indicate otherwise. National policy documents are also material considerations to be taken into account in reaching planning decisions. The proper interpretation of policy is therefore of paramount importance. Until recently there had been understood to be a relatively settled body of law concerning how to interpret planning policy. The established line of authority commenced with the Court of Appeal decision in R v Derbyshire County Council.85 The effect of Brooke LJ’s judgment in that case was that: (i) It is for the court to determine as a matter of law what words are capable of meaning; (ii) if in all the circumstances the wording of the relevant policy document is properly capable of more than one meaning and the planning authority adopts and applies a meaning which it is capable as a matter of law of bearing, then they will not have gone wrong in law. The court will intervene only if the judgment on the meaning was demonstrated to be perverse or otherwise bad in law; (iii) if the decision-maker attaches a meaning to the words which they are not properly capable of bearing, he will have made an error of law and failed properly to understand the policy. 84   See, eg, Department of Communities and Local Government, ‘Planning Policy Statement 2: Planning and Nature Conservation’; Department of Communities and Local Government, ‘Planning Policy Statement 11: Planning and Waste Management’; Department of Communities and Local Government, ‘Planning Policy Statement 18: Renewable Energy’; and Department of Communities and Local Government, ‘Planning Policy 21: Sustainable Development in the Countryside’. 85   R v Derbyshire County Council, ex p Woods [1998] Env LR 277, [1997] JPL 958.

44  Sources and Objectives of Environmental Law and Policy In R (Vale of White Horse) v Secretary of State for Communities and Local Government,86 the claimant argued that this line of authority had effectively been overruled by the Court of Appeal decision in R (Raissi) v Secretary of State for the Home Department,87 a case concerning the interpretation of an ex gratia scheme for the payment of compensation to persons detained in custody following a wrongful conviction or charge. In Raissi, the Court of Appeal had held that the test to be applied in interpreting a ministerial policy statement was to ask what a reasonable and literate person’s understanding of it would be, not whether the meaning attributed by the Minister to the words of the policy was a reasonable one. In Vale of White Horse, Robin Purchas QC, sitting as a Deputy High Court Judge, rejected the submission, preferring to apply the established approach to interpreting planning policy: For my part, I do not see anything in the judgment in Raissi which purports to overrule the general approach to planning policies in planning cases to which I have referred above, and in my judgment the proper approach should remain as set out in Woods.88

The court adopted exactly the same approach in R (Royal Borough of Kensington & Chelsea) v Secretary of State for Communities and Local Government,89 and both of these judgments were cited with approval by Nicol J in Robert Hitchins v Secretary of State for Communities and Local Government.90 It therefore appears beyond doubt that orthodoxy has been reaffirmed, and the proper test for interpreting planning policy is whether the meaning attributed by the minister to the words of the policy was a reasonable one. Just as with environmental legislation, the courts are reluctant to take an overly legalistic approach to the interpretation of environmental policy. This is exemplified by the Court of Appeal decision in R (Buglife) v Thurrock Thames Gateway Development,91 which concerned the interpretation of Planning Policy Statement 9, ‘Biological and Geological Conservation’ (PPS9).92 The case concerned the site of a former power station which a developer was proposing to develop as a major distribution depot for Royal Mail. The site was, however, one of the most important areas in Britain for rare or endangered invertebrates, including several species listed in the UK Biodiversity Action Plan. Natural England had objected to the planning application, but following negotiations concerning mitigation measures, it was satisfied that the development should go ahead subject to planning conditions being imposed to ensure that the development was phased to assist with the rehabilitation process. The claimant, the National Invertebrate Conservation Trust, contended that the grant of planning permission was flawed because the planning authority had not properly considered PPS9, which states in paragraph 1(vi): [L]ocal authorities will need to be satisfied that the development cannot be reasonably located on any alternative sites that would result in less or no harm. In the absence of any such alternatives, local planning authorities should ensure that before planning permission is granted, adequate mitigation 86   R (on the Application of Vale of White Horse District Council) v Secretary of State for Communities and Local Government [2009] EWHC 1847 (Admin). 87   R (on the Application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72l [2008] QB 836. 88   Vale of White Horse (above n 86) para 23. 89   R (on the Application of Royal Borough of Kensington and Chelsea) v Secretary of State for Communities and Local Government [2009] EWHC 1854 (Admin) paras 11–13. 90   Robert Hitchins Ltd v Secretary of State for Communities and Local Government [2010] EWHC 1157 (Admin) para 29(ii). 91   R (on the Application of Buglife) v Thurrock Thames Gateway Development Corporation [2009] EWCA Civ 29. 92   Department of Communities and Local Government, ‘Planning Policy Statement 9: Biological and Geological Conservation’ (2005).

Domestic Law  45 measures are put in place . . . [I]f significant harm cannot be prevented, adequately mitigated against, or compensated for, then planning permission should be refused.

Pill LJ held that it was necessary to consider alternative sites only if there was a prospect of significant harm. The key question then was whether it was appropriate to take into account proposed mitigation measures in determining the significance of the harm likely to be caused by the development. He rejected the analogy with cases concerning environmental impact assessment that suggested that unless mitigation measures are minor or easily achievable, planning authorities should ignore proposed remediation when considering whether a development has significant environmental effects. As he observed, the issue is not whether an environmental assessment is needed but rather ‘whether, and if so to what extent, remedial measures may be taken into account when reaching a decision on harm to species or their habitats’.93 Since on the evidence the planning authority had been entitled to consider the proposed mitigation and to conclude that the harm was not significant, the question of alternative sites did not arise. Pill LJ acknowledged that the planning authority had not analysed the biodiversity policy line by line but held that such policy documents should not be approached as if one were considering a statute.94 He therefore concluded, ‘In analysing this planning decision, consideration of the larger picture, the main issues, should not be defeated by over attention to detail, with the risk of thereby losing, in common parlance, the wood for the trees.’95 3.  Judicial Review of Policy The environment is frequently affected by high-level policy decisions concerning, for example, the location of new airports or investment in new nuclear power programmes. A citizen’s right to challenge high-level ministerial policy is, however, limited by constitutional principle. The separation of powers dictates that questions of social, economic and political policy are matters for the legislature and executive, not for the judiciary. Accordingly, the courts must not substitute their own view on questions of policy for that of the appropriate decision-maker. But that does not mean that policy decisions are immune from judicial review: as will be seen, the courts do still have an obligation to ensure that policy decisions are taken within the scope of the relevant power or duty and that they are arrived at fairly. This section begins by examining the restrictions on the courts’ ability to review policy decisions, before analysing the limited ways in which policy may be judicially reviewed. The first limitation on reviewing high-level policy is that very often such policy raises non-justiciable issues. A prime example in the environmental context is the failed challenge seeking judicial review of authorisations granted by the Environment Agency under section 13 of the Radioactive Substances Act 1993 for the discharge of radioactive waste from the United Kingdom’s military nuclear sites at Aldermaston and Burghfield.96 Since the only waste production at the sites was of the Trident missile, the claimant challenged the government’s policy to continue the programme to produce Trident warheads. Turner J rejected this complaint and held that the issue of whether the Trident programme was illegal under international law was beyond the remit of both the Environment Agency and the   Buglife (above n 91) para 37.   Ibid, para 51. 95   Ibid, para 52. 96   R (on the Application of Marchiori) v Environment Agency [2002] EWCA Civ 3, [2002] Eu LR 225. 93 94

46  Sources and Objectives of Environmental Law and Policy court. He concluded by quoting the following passage from the fifth edition of de Smith, Woolf & Jowell, Judicial Review of Administrative Action:97 There will be some questions of ‘high policy’ such as the making of treaties, the defence of the realm, the dissolution of Parliament and the appointment of Ministers where the courts as a matter of discretion do not intervene, because the matters are simply not justiciable.

The second main limitation on reviewing policy is the prohibition on questioning the merits, as opposed to the legality, of government policy decisions. It is well-established that a planning inquiry is not the appropriate forum for debating the merits of national planning policy, and the courts have firmly rejected challenges to inspectors’ decisions where a claim amounts to no more than a collateral attack on policy dressed up as an error of law. The leading case is Bushell v Secretary of State for the Environment, in which Lord Diplock explained: ‘Policy’ as descriptive of departmental decisions to pursue a particular course of conduct is a protean word, and much confusion in the instant case has, in my view, been caused by a failure to define the sense in which it can properly be used to describe a topic which is unsuitable to be the subject of an investigation as to its merits at an inquiry at which only persons with local interests affected by the scheme are entitled to be represented. A decision to construct a nationwide network of motorways is clearly one of government policy in the widest sense of the term. Any proposal to alter it is appropriate to be the subject of debate in Parliament, not of separate investigations in each of scores of local inquiries before individual inspectors up and down the country upon whatever material happens to be presented to them at the particular inquiry over which they preside.98

A good example of a collateral attack on policy formulated as an error of law by a planning inspector is provided by the case of Barbone v Secretary of State for Communities and Local Government,99 in which the claimant challenged an inspector’s decision to grant planning permission on appeal to BAA Ltd – a decision which had the effect of lifting the permitted annual throughput of passengers at Stansted Airport from 25 million passengers per annum to 35 million and of increasing the number of permitted air traffic movements to a figure not exceeding 264,000 in any 12-calendar-month period. The development proposal had been supported as a matter of national policy by the Future of Air Transport White Paper.100 The claimants argued that the Secretary of State, when approving his inspector’s recommendation, had failed properly to consider the economic effects of the proposal, its noise impact and the environmental effect of the emission of millions of additional tonnes of carbon dioxide. Sir Thayne Forbes held that the White Paper was ‘founded on the Government’s judgment that the balance of national socio-­ economic advantage favours [substantially expanding passenger travel from south-eastern airports]’.101 Therefore, in reality the claimants were calling into question the government’s judgment of national economic policy which had already taken account of the issues that they raised. Since judicial review cannot question the merits of a decision, the claim failed. 97   Marchiori (ibid) [2001] EWHC Admin 267, [2001] Env LR 47, para 49 (Turner J), quoting H Woolf, J Jowell and A Le Sueur, de Smith, Woolf and Jowell’s Judicial Review of Administrative Action, 5th edn (London, Sweet & Maxwell, 1995). 98   Bushell v Secretary of State for the Environment [1981] AC 75, 98. 99   Barbone v Secretary of State for Communities and Local Government [2009] EWHC 463 (Admin), [2009] Env LR D12. 100   Department for Transport, The Future of Air Transport (White Paper, Cm 6046, Dec 2003), available at webarchive. nationalarchives.gov.uk/+/http://www.dft.gov.uk/about/strategy/whitepapers/air/utureofairtransportwhite5694.pdf. 101   [2009] EWHC 463 (Admin) para 49.

Domestic Law  47 A third limitation on the review of high-level policy is that often such documents are of a preliminary nature and lack any substantive effect, making any challenge premature. This is well illustrated by R (London Borough of Hillingdon) v Secretary of State for Transport,102 in which the claimant local authority challenged the Labour Government’s January 2009 decision to commit to a new runway at Heathrow Airport. By way of background, the White Paper on the future of air transport, which had been published in 2003, in principle backed a new runway at Heathrow. Climate change was not such a policy priority at the time, and the government had committed to a 60 per cent reduction in CO2 emissions from 1990 to 2050. In 2007 the Secretary of State carried out a consultation exercise limited to the local environmental impacts of a new runway and the conditions identified in the 2003 White Paper. Climate change implications were expressly excluded. However, two legal and policy changes then occurred: first, the Climate Change Act imposed a statutory duty on the Secretary of State to ensure an 80 per cent reduction in CO2 emissions by 2050; second, the Planning Act 2008 provided for the preparation of national policy statements (NPSs) and for decisions on major infrastructure projects to be taken by an Infrastructure Planning Commission in the light of those NPSs. The claimants contended first that the January 2009 decision was fundamentally different from the subject matter of the consultation; second, that the defendant had failed to take account of or had an inaccurate appreciation of a number of material considerations;103 and third, that the defendant had failed to provide adequate reasons. Carnwarth LJ considered that the grounds of challenge depended to a large extent on the precise status and effect of the January 2009 decision. He noted that the mechanism used for making the decision was that of non-statutory consultation, followed by a policy announcement by the responsible Minister to Parliament. Thus, he concluded that ‘the 2009 Decisions are no more than policy statements without any direct substantive effect at this stage’.104 As a result, In the present case, following the 2003 White Paper and the 2009 Decision, we are still a long way from any ‘substantive event’ in the sense of a formal statutory authorisation for the construction of the third runway, following the procedure as now set out in the 2008 Act. Any grounds of challenge need to be seen in the context of a continuing process towards that eventual goal.105

As to whether such policy decisions could be the subject of judicial review, Carnwarth LJ relied on R (Medway Council) v Secretary of State for Transport106 and R (Wandsworth LBC) v Secretary of State for Transport107 as authority for the proposition that such ‘high-level’ ministerial statements of airport policy are susceptible in principle to judicial review, even if they have no direct substantive effects. However, he also endorsed the views of Sullivan J in R (Greenpeace) v Secretary of State for Trade and Industry108 that, in the absence of any 102   R (on the Application of London Borough of Hillingdon) v Secretary of State for Transport [2010] EWHC 626 (Admin), [2010] JPL 976. 103  These were: (i) changes that rendered the business case materially inaccurate; (ii) a mistaken assumption as to the potential of ‘green slots’ to contribute to carbon dioxide reductions; (iii) the impact of the proposal on the Piccadilly underground line and on-road transport; and (iv) the need for strategic environmental assessment. 104   London Borough of Hillingdon [2010] EWHC 626 (Admin) para 48. 105   Ibid. 106   R (on the Application of Medway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin), [2003] JPL 583. 107   R (on the Application of Wandsworth LBC) v Secretary of State for Transport [2005] EWHC 20 (Admin), [2006] 1 EGLR 91. 108   R (on the Application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), [2007] Env LR 29.

48  Sources and Objectives of Environmental Law and Policy statutory procedure, it might be very difficult to establish procedural impropriety; and given the judgemental nature of high-level, strategic decisions it will be well-nigh impossible to mount a Wednesbury irrationality challenge absent bad faith or manifest absurdity. Moreover, Carnwarth LJ added that this limited scope for review stems not only from the high-level nature of the policy but also from its preliminary nature: It is not simply the ‘high-level’ character of some of the policy judgments which limits the scope for review. I would also emphasise the preliminary nature of the decision. As I have said, any grounds of challenge at this stage need to be seen in the context, not of an individual decision or act, but of a continuing process towards the eventual goal of statutory authorisation. A flaw in the consultation process should not be fatal if it can be put right at a later stage. There must be something not just ‘clearly and radically wrong’, but also such as to require the intervention of the court at this stage. Similarly, failure to take account of material considerations is unlikely to justify intervention by the court if it can be remedied at a later stage. It would be different if the failure related to what I described in argument as a ‘show-stopper’: that is, a policy or factual consideration which makes the proposal so obviously unacceptable that the only rational course would be to abort it altogether without further ado.109

Turning to the grounds for review, Carnwarth LJ held that the failure to reopen the consultation to deal with the new aspects of departmental thinking on climate change was not a ‘show-stopper’ in the sense that the only rational response would be to abandon the whole project at this stage. He added: [T]he claimants’ submissions add up, in my view, to a powerful demonstration of the potential significance of developments in climate change policy since the 2003 White Paper. They are clearly matters which will need to be taken into account under the new Airports NPS.110

Whether these matters should have been treated as ‘fundamentally’ affecting the scope of the 2007 consultation appeared to Carnwarth LJ to be of ‘little moment, given that they will be subject to further statutory consultation and consideration under the NPS procedure’.111 The same approach was adopted in respect of the claimants’ other criticisms of the 2009 decision. Carnwarth LJ examined the procedures for making the Aviation NPS under the new framework of the Planning Act 2008, and he judged it to provide a comprehensive framework for consideration of all of the relevant issues, including those on which the present claimants relied.112 The NPS had to go through a statutory consultation process and Parliamentary procedure under the Act, and until that process was concluded, ‘there is nothing in law entitling the Secretary of State to limit that debate’.113 Carnwarth LJ noted that section 12 of the 2008 Act allows previous government policy to be incorporated within an NPS, although further consultation would then be required. During the course of the hearing, in response to the Judge’s questions, counsel for the government said that it was not the government’s intention to rely on this provision to incorporate the 2003 White Paper and 2009 decision into any NPS. Accordingly, since all fundamental policy questions underlying the need for the new runway could be reopened for discussion and debate in the process of making the new Aviation NPS, it was premature and unnecessary for the court to find the 2009 decision to be unlawful. Carnwarth LJ did,   London Borough of Hillingdon (above n 104) para 69.   Ibid, para 77. 111  Ibid. 112   Ibid, para 98. 113   Ibid, para 53. 109 110

Domestic Law  49 however, consider that ‘it would be appropriate to invite the Secretary of State to convert his ‘present intentions’ in respect of section 12(1) into an undertaking, so as to put that matter beyond doubt’.114 Subject to the three limitations discussed above, high-level ministerial policy may be reviewed on ordinary judicial review grounds. Thus, although claimants cannot challenge the merits of government policy in judicial review proceedings, they may attack the substance of the policy by arguing that it is unreasonable. However, the cases show that a high degree of irrationality is required before courts are prepared to intervene and quash a policy. As Sullivan J explained in Greenpeace, ‘given the judgmental nature of ‘high-level, strategic’ decisions it will be well-nigh impossible to mount a ‘Wednesbury irrationality’ challenge absent bad faith or manifest absurdity.’115 Thus, in Essex County Council v Ministry of Housing and Local Government,116 Plowman J held that it was quite futile to seek to impugn the government’s decision that Foulness should be developed as a third London airport on the ground of unreasonableness. The assertion that Cublington was a more suitable location simply did not demonstrate that the Minister’s decision was unreasonable. One rare example of a policy decision being held to be unreasonable is the decision of Maurice Kay J in Medway Council.117 The case concerned the policy decision to exclude Gatwick Airport from a consultation about the expansion of air transport capacity in southeast England. Maurice Kay J held that the decision was irrational because: (i) one of the reasons for the exclusion of Gatwick was that it could not be made a hub airport within the appropriate time frame, yet the consultation document made it clear that there was no decision to promote a hub airport; (ii) it was premature to exclude the Gatwick option at the consultation stage since the aim of the consultation period was to refine various assumptions; (iii) the conservation and environmental importance of the proposed alternative site in Kent meant that there was an obligation imposed on the local planning authority by Regulations 48 and 49 of the Conservation (Natural Habitats etc) Regulations to consider any reasonable alternatives, which would include Gatwick. This decision shows that the best way of successfully attacking the substance of a policy decision is to argue that the internal logic of the document is flawed. In Medway, for example, one of the reasons for excluding Gatwick was inconsistent with the statement that no decision had been taken about promoting a hub airport. By contrast, arguments that the outcome proposed by a policy document is unreasonable are highly unlikely to succeed. In terms of the procedural grounds for review, as Sullivan J indicated in Greenpeace, ‘in the absence of any statutory or other well-established procedural rules for taking such strategic decisions it may well be very difficult for a claimant to establish procedural impropriety’.118 On the facts of Greenpeace, however, the absence of procedural rules did not pose any difficulty to the claimant because a 2003 White Paper had promised that there would be the fullest public consultation before a decision was taken to support new nuclear build. This gave rise to a procedural legitimate expectation of full consultation to which the court held the defendant, because the defendant was unable to put forward any good reason for not honouring that promise.   Ibid, para 98.   Greenpeace (above n 108) para 54. 116   Essex County Council v Minister of Housing and Local Government (1967) 66 LRG 23. 117  Above n 106. 118   Greenpeace (above n 108) para 54. 114 115

50  Sources and Objectives of Environmental Law and Policy When there are no statutory procedural requirements and no legitimate expectation of a particular procedure, a decision is likely to be quashed on the grounds of procedural impropriety in only extreme cases. One such case was the Medway decision, in which Maurice Kay J held that it was procedurally unfair to operate the consultation process in such a way so as to effectively prevent the applicants from advocating Gatwick as an alternative solution at a later stage in the decision-making process. In summary, the courts have rejected attempts to argue that high-level ministerial policy is immune from judicial review. Nevertheless, the preliminary nature of many policy decisions, coupled with the broad issues of social and economic policy that they raise, means that judicial review challenges to policy rarely succeed absent the sort of ‘show-stopper’ point of public law referred to by Carnwarth LJ in Hillingdon.

3 General Principles of Environmental Law This chapter examines the general environmental principles upon which Article 191 of the Treaty on the Functioning of the European Union (TFEU) requires EU action in relation to the environment to be based. The particular focus is the extent to which the principles may be invoked as grounds for judicial review, either to challenge measures taken by the EU institutions or Members States, or to require action to be taken by those actors.

I.  The Polluter Pays Principle

The polluter pays principle is intended to ensure that the full costs of environmental damage caused by polluting activities are borne exclusively by the polluter. Thus the European Union’s first Action Programme on the Environment stated that the ‘cost of preventing and eliminating nuisances must in principle be borne by the polluter’.1 The principle is, according to Article 191 TFEU, one of the principles on which EU environmental policy shall be based. Furthermore, it is expressly referred to in specific environmental legislation, such as the Water Framework Directive 2000/60/EC, which provides: Member States shall take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis conducted according to Annex III, and in accordance in particular with the polluter pays principle.2

The polluter pays principle is also central to the Environmental Liability Directive 2004/35/ EC, Article 1 of which states that ‘[t]he purpose of this Directive is to establish a framework of environmental liability based on the “polluter-pays” principle, to prevent and remedy environmental damage.’3 Although it is well recognised in EU environmental policy and legislation, there has been little judicial consideration of the polluter pays principle.4 The leading case is R v Secretary of State for the Environment, ex p Standley and Metson,5 in which the claimant farmers sought judicial review of the designation of two Nitrate Vulnerable Zones (NVZs) pursuant to the Protection of Water against Agricultural Pollution (England and Wales) Regulations 1996, which implemented the Nitrates Directive 91/676/EEC.6 The government had designated the   European Community, ‘First Environmental Action Programme’ [1973] OJ C112, 6.   [2000] OJ L 327/1, art 9.   [2004] OJ L143/56. 4   See R Macrory and I Havercroft, ‘Environmental Principles in the United Kingdom’ in R Macrory (ed), Principles of European Environmental Law (Groningen, Europa Law Publishing, 2004) 200. 5   R v Secretary of State for the Environment, ex p Standley and Metson [1997] Env LR 589. 6   [1991] OJ L375/1. 1 2 3

52  General Principles of Environmental Law NVZs by adopting a three-stage analysis: first, it had identified bodies of water that were either heavily polluted or showed clear potential to be heavily polluted by nitrates; second, it had identified the known areas of land draining into those waters; and finally, it had assessed whether agricultural sources were making a significant contribution to the levels of pollution detected. The claimants contended that this methodology was flawed and that the government ought instead to have begun by considering the sources of pollution and identified only those waters where it could be said that the maximum levels of nitrate prescribed in the Nitrates Directive were exceeded by virtue of agricultural inputs alone. In other words, they claimed that in breach of the polluter pays principle they were being required to bear the cost of nitrate pollution caused by sources other than agriculture. Potts J made a preliminary reference to the European Court of Justice (ECJ). In his opinion, Advocate General Léger stated that the polluter pays principle must be understood as requiring the person who causes the pollution, and that person alone, to bear not only the costs of remedying pollution but also those costs ‘arising from the implementation of a policy of prevention’.7 As such, the principle may be relied upon either to impose reme­ diation costs upon a polluter after pollution has occurred or to impose the cost of prevention on a potential polluter before pollution has in fact occurred. The Advocate General concluded: [T]he Directive must be interpreted as requiring the Member States to impose on farmers only the cost of plant for the reduction or avoidance of the water pollution caused by nitrates for which farmers are responsible, to the exclusion of any other cost. That interpretation therefore complies strictly with the polluter pays principle.8

The ECJ, however, adopted a less strict test of causation by applying a purposive interpretation of the Directive. It held that the claimant’s contention ‘would lead to exclusion from the scope of the Directive of numerous cases where agricultural sources make a significant contribution to the pollution, a result which would be contrary to the Directive’s spirit and purpose’.9 The United Kingdom’s approach was therefore upheld. A similarly purposive approach, eschewing a strict test of causation, can be seen in the first case considering the meaning of the Environmental Liability Directive, Raffinerie Mediterranee (ERG) SPA v Ministero dello Sviluppo economic.10 The Directive requires the operator to have ‘caused’ the damage in question before liability can be attributed. In respect of pollution from petrochemical plants, the Italian authorities had sought to make the plants’ operators equally responsible for clean-up, without attempting to distinguish between past and present pollution and without assessing the direct responsibility of each operator. The ECJ held that Member States could introduce rules containing a presumption of causation, based on proximity of a site to the pollution, but there must be ‘plausible evidence’ justifying such a presumption, for example, evidence that the particular plant in fact uses the pollutants. However, where multiple polluters are involved, the Court did not require that the authority should identify precisely the origins of each element of the pollution.

7  Case C-293/97 R v Secretary of State for the Environment, ex p Standley and Metson [1999] ECR I-2603, para 93 (Opinion of Advocate General). 8   Ibid, para 98 (Opinion of Advocate General). 9   Ibid, para 33 (Judgment of the Court). 10  Case C-378/08 Raffinerie Mediterranee (ERG) v Ministero dello Sviluppo economico, not yet reported.

The Precautionary Principle  53 These cases suggest that it will be difficult for individuals or companies to challenge the imposition of remediation or preventative costs on the grounds that the costs exceed what is authorised by the polluter pays principle. Provided that there is a plausible connection between the individual or company and the pollution, the courts are likely to adopt a purposive interpretation of the polluter pays principle which allows the charge to be made in order to further the aim of effective environmental protection.

II.  The Precautionary Principle

It is often difficult to assess the environmental risk presented by phenomena such as climate change, exposure to chemicals, radiation or genetically modified organisms. Sometimes the link between the particular substance or activity and the environmental harm has not been scientifically established, and sometimes the extent of the risk may be impossible to predict with any certainty. Regulatory intervention may therefore be required before full scientific certainty has emerged. The precautionary principle is designed to provide a principled basis for deciding when precautionary regulation should or must take place in order to manage environmental risks. The precautionary principle applies at the EU level in two respects. First, the EU institutions apply the principle when drafting legislation and deciding whether Member States have correctly implemented EU environmental rules. Second, the principle is often invoked by Member States when justifying national policies that derogate from EU rules. There is no single universally accepted definition of the precautionary principle in environmental law. In the EU context, the Commission has defined the principle as being applicable . . . in those specific circumstances where scientific evidence is insufficient, inconclusive or uncertain, and there are indications through preliminary objective scientific evaluation that there are reasonable grounds for concern that the potential dangerous effects on the environmental, human, animal or plant health may be inconsistent with the chosen level of protection.11

The Commission also considers that all precautionary measures enacted should be proportionate, nondiscriminatory, consistent and subject to cost-benefit analysis, as well as taking scientific developments into account. Although a recognised feature of environmental policy and law-making, the precautionary principle has been criticised on the ground that it is poorly defined. For example, the House of Lords Select Committee on Economic Affairs has said that the principle is ‘illdefined and ambiguous’ and that it is ‘generally unhelpful’.12 This section explores whether, despite these criticisms, the precautionary principle has legal significance in environmental judicial review claims.

 Commission Communication on the Precautionary Principle, COM (2000) 1, 10.   Select Committee on Economic Affairs, Government Policy on the Management of Risk, Volume I: Report (HL 2005–06, 183-I) para 73. 11 12

54  General Principles of Environmental Law

A.  The Precautionary Principle in EU Law 1.  Nature and Origins The precautionary principle in EU law began its life in policy documents in the environmental context. The First Environmental Action Programme argued that in areas of scientific uncertainty, urgent reasons based on the protection of human health or protection of the environment may require provisional common standards to be laid down pending further research.13 Precautionary thinking was also incorporated into environmental protection legislation such as the Birds Directive 79/409/EEC,14 which includes protection of birds in no imminent danger of extinction. The precautionary principle now enjoys recognition in the Treaties. Article 191(2) TFEU declares that EU policy on the environment ‘shall be based on the precautionary principle’. However, the Treaty itself does not define what is meant by the precautionary principle. Some guidance is provided by the Rio Declaration on Environment and Development (1992), Principle 15 of which expresses the precautionary principle in the following terms: Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.15

This definition suggests that the precautionary principle permits action being taken to prevent environmental harm even when science has yet to establish a direct causal link between the activity in question and the relevant environmental harm. The precautionary principle therefore justifies taking early action in order to protect the environment. 2.  Judicial Review and the Precautionary Principle The ECJ has ultimate responsibility for determining whether EU measures based upon the precautionary principle are lawful. However, as will be seen, the ECJ case law establishes that the EU institutions enjoy broad discretionary powers, and review by the Court is limited to examining whether manifest errors have been committed or whether the institutions have misused their powers. Consequently the ECJ generally refrains from assessing the scientific evidence put before it in any detail, and it will therefore allow Member States and the EU institutions to select the level of protection that they consider to be appropriate. As the Commission Communication on the Precautionary Principle explains, the ECJ restricts itself to this limited form of review because ‘[j]udging what is an “acceptable” level of risk for society is an eminently political responsibility’.16 The ECJ first considered the precautionary principle to be a general principle in UK v Commission, a case concerning bovine spongiform encephalopathy (BSE), or ‘mad-cow disease’. The Court stated:

  First Environmental Action Programme (above n 1).   [1979] OJ L103/1. 15   UN General Assembly, ‘Rio Declaration on Environment and Development’, Annex I of the Report of the United Nations Conference on Environment and Development (Rio de Janeiro, 3–14 June 1992), http://www.un. org/‌documents/‌ga/‌conf151/‌aconf15126-1annex1.htm . 16   European Commission, ‘Communication on the Precautionary Principle’ COM (2000) 1, 4. 13 14

The Precautionary Principle  55 [W]here there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent.17

It is questionable, however, whether the precautionary principle may be relied upon to require action to be taken by the EU institutions. Although the Court of First Instance (CFI) held in Artegodan that the precautionary principle is ‘a general principle of Community law requiring the competent authorities to take appropriate measures’,18 there are few instances in which the ECJ or the CFI have compelled precautionary action. The reason for this is obvious: in order to require precautionary action on the part of the EU institutions, it would be necessary to define precisely what precautionary action actually means in the context of a particular case. In its current state of development, the precautionary principle is simply too open-textured and imprecise to be relied upon to compel action by the EU institutions. One rare example of the precautionary principle being relied upon to require the EU institutions to act in a precautionary manner is the CFI decision in Sweden v Commission.19 In that case, the CFI revoked a decision to authorise a pesticide (paraquat) on the basis that the Commission had not acted in a sufficiently precautionary manner when issuing the authorisation. The precautionary principle most commonly arises in judicial review at the EU level in claims arguing that precautionary measures that have been taken are unlawful. In such cases the ECJ has proved reluctant to examine the scientific merits of the issues at stake, and it has afforded the institutions and Member States a wide margin of appreciation. For example, in non-harmonised areas where Member States have taken precautionary measures under Article 36 TFEU, it has been held that the ‘discretion relating to the protection of public health is particularly wide where it is shown that uncertainties continue to exist in the current state of scientific research’.20 This doctrine of limited review was developed by the ECJ in Fedesa.21 In that case the ECJ was required to make a preliminary ruling on the validity of national regulations implementing Directive 88/146/EEC,22 which prohibits the use of a number of hormones in livestock. The validity of the ban was challenged because it was not based on scientific evidence and sought to address the unfounded fears of consumers. The ECJ refused to adjudicate on the scientific evidence underlying the Directive and merely stated: Even if it were to be held, as the applicants in the main proceedings have argued, that the principle of legal certainty requires any measure adopted by the community institutions to be founded on a rational and objective basis, judicial review must, having regard to the discretionary power conferred on the Council in the implementation of the common agricultural policy, be limited to examining whether the measure in question is vitiated by a manifest error or misuse of powers, or whether the authority in question has manifestly exceeded the limits of its discretion.23

Accordingly, the ECJ will not look closely at the substance of a impugned decision; it will consider only whether there has been a manifest error.  Case C-180/96 UK v Commission [1998] ECR I-2265, para 99.  Case T-74/00 Artegodan GmbH v Commission [2002] ECR II-4945, para 184.  Case T-229/04 Sweden v Commission [2007] ECR II-2437. 20  Case C-41/02 Commission v Netherlands [2004] ECR I-11375, para 43. 21  Case C-331/88 R v Minister of Agriculture, Fisheries and Food, ex p Fedesa [1990] ECR I-4023. 22   [1988] OJ L70/16. 23   Ibid, para 8. 17 18 19

56  General Principles of Environmental Law The ECJ also took a very broad view of what constitutes scientific uncertainty so as to justify invocation of the precautionary principle by the EU institutions. The ECJ was satisfied that the fact that different national authorities had made different assessments regarding the risk presented by hormones in livestock meant that there was sufficient scientific uncertainty to justify the precautionary measures: In the light of the foregoing, the claim based on the existence of scientific evidence demonstrating the safety of the five hormones in question cannot be upheld. It is not necessary to order any measures of inquiry to verify the accuracy of that allegation; it need merely be stated that, faced with divergent appraisals by the national authorities of the Member States, reflected in the differences between existing national legislation, the Council remained within the limits of its discretionary power in deciding to adopt the solution of prohibiting the hormones in question.24

In other words, the ECJ considered the interpretation of the scientific evidence to be within the Council’s discretion, and it would examine the evidence only to establish whether scientific uncertainty existed or not. Once scientific uncertainty is found to exist, the ECJ will not go further and examine the degree or cause of that uncertainty. This doctrine of limited review has been applied in many cases subsequently. For example, in UK v Commission,25 the United Kingdom argued that the inconclusive evidence as to the link between BSE and Creutzfeld-Jakob disease meant that the ban on the import of British beef to the rest of the European Union was unjustified. However, the ECJ held that there was no manifest error or misuse of powers and upheld the ban. Similarly, in Gianni Bettati v Safety Hi-Tech,26 the ECJ refused to quash an exemption from the general ban on hydrofluorocarbons used in fire-fighting equipment. The ECJ held that the task was not to adjudicate upon the scientific evidence and determine which risks should be regulated. It had not been shown that there was a manifest error on the part of the Commission when issuing the ban; therefore the challenge failed. The leading case of Pfizer Animal Health v Council 27 provides another good illustration of the EU courts being content merely to satisfy themselves that scientific uncertainty is present and then leaving the EU institutions considerable leeway in deciding what, if any, precautionary measures to take. Pfizer concerned the lawfulness of EC Regulation 2821/98,28 which introduced a ban on the use of certain antibiotics as additives in animal feeds. The justification for the legislation was the risk that animals might develop resistance to these antibiotics, and this might be transmitted to humans via the food chain. The claimant was the sole manufacturer of one of the banned antibiotics, virginiamycin. It argued that the EU legislators had wrongly concluded that the use of virginiamycin as a growth promoter in animal feed constituted a risk to human health justifying the ban. The available scientific evidence did not, contended the claimant, establish any link between the use of virginiamycin and humans developing streptogramin resistance. Accordingly, it submitted that precautionary action was not justified because the legislator first had to ‘show that the risk, although it has not actually become a reality, is nevertheless probable’.29

  Ibid, para 9.   Above n 17. 26  Case C-341/95 Gianni Bettati v Safety Hi-Tech Srl [1998] ECR I-4355. 27  Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305. 28   [1998] OJ L351/4. 29   Pfizer (above n 27) para 130. 24 25

The Precautionary Principle  57 The CFI held that it was not necessary for regulators to wait until they risk had become a reality: [W]here there is scientific uncertainty as to the existence or extent of risks to human health, the Community institutions may, by reason of the precautionary principle, take protective measures without having to wait until the reality and seriousness of those risks become fully apparent.30

The CFI also considered the circumstances in which the precautionary principle ought to apply, and it held that the application will ‘by definition [coincide] with a situation in which there is scientific uncertainty’.31 However, the Court did not consider that a risk assessment was required before the precautionary principle could be invoked: [A] risk assessment cannot be required to provide the Community institutions with conclusive scientific evidence of the reality of the risk and the seriousness of the potential adverse effects were that risk to become a reality.32

Nevertheless, the Court did emphasise that ‘a preventive measure cannot properly be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified’.33 Accordingly, a preventive measure may be taken only if the risk, although the reality and extent thereof have not been ‘fully’ demonstrated by conclusive scientific evidence, appears nevertheless to be adequately backed up by the scientific data available at the time when the measure was taken.34

The CFI restated its limited review doctrine in the following terms: It follows that in this case, in which the Community institutions were required to undertake a scientific risk assessment and to evaluate highly complex scientific and technical facts, judicial review of the way in which they did so must be limited. The Community judicature is not entitled to substitute its assessment of the facts for that of the Community institutions, on which the Treaty confers sole responsibility for that duty. Instead, it must confine itself to ascertaining whether the exercise by the institutions of their discretion in that regard is vitiated by a manifest error or a misuse of power or whether the institutions clearly exceeded the bounds of their discretion.35

The CFI concluded that the fact that the ban on antibiotics might entail an alteration in farming methods and thereby increase production costs did not mean that the regulation was unlawful because it did not demonstrate that there had been a manifest error on the part of the EU institutions. 3.  Precaution and Environmental Assessment A key technique used in EU environmental legislation is the requirement to carry out an assessment of the likely environmental effects of certain specified plans and projects. The precautionary principle plays a very important role in relation to such assessments because administrative decision-makers are required to act with precaution and may only proceed with a given plan or project if no reasonable doubts exist as to its environmental effects. As such, failure to follow a precautionary methodology can give rise to a ground for judicial review.   Ibid, para 139.   Ibid, para 142. 32  Ibid. 33   Ibid, para 143. 34   Ibid, para 144. 35   Ibid, para 169. 30 31

58  General Principles of Environmental Law An important example of this approach is the ECJ decision in Waddenzee.36 According to Article 6(3) of the Habitats Directive,37 there must be an assessment by the competent authority as to whether a project is likely to have ‘a significant effect’ on a European site, whether in combination with other plans or projects or alone. In Waddenzee the ECJ held that that assessment must be carried out on a precautionary basis. This does not require definite proof of significant effects on the European site, but rather it follows from ‘the mere probability that such an effect attaches to that plan or project’.38 If, applying that precautionary approach, there is likely to be such a significant effect, the competent authority must carry out an appropriate assessment. Having carried out an appropriate assessment, the authority may authorise the plan or project only if they ‘are convinced that it will not adversely affect the integrity of the site concerned’.39 The approach of the ECJ is of considerable importance: It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned. So, where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation. In this respect, it is clear that the authorisation criterion laid down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle . . . and makes it possible effectively to prevent adverse effects on the integrity of protected sites as the result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not as effectively ensure the fulfilment of the objective of site protection intended under that provision. Therefore, pursuant to Article 6(3) of the Habitats Directive, the competent national authorities, taking account of the conclusions of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned, in the light of the site’s conservation objectives, are to authorise such activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects.40

This means that a decision to authorise a plan or project may be quashed if the appropriate authority has failed to adopt a precautionary approach and had not satisfied itself that no reasonable scientific doubt remains as to the absence of adverse effects to the integrity of the site.41

B.  The Precautionary Principle in English Law The English courts were required to consider the application of the precautionary principle in R v Secretary of State for Trade and Industry, ex p Duddridge.42 The claimants sought judicial review of the Secretary of State’s decision not to issue regulations restricting the 36  Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405. 37   [1992] OJ L206/7. 38   Waddenzee (above n 36) para 41. 39   Ibid, para 56. 40   Ibid, paras 56–59. 41   See also, for example, Case C-117/03 Dragaggi & Others [2005] ECR I-167, [2005] Env LR 31, paras 23–27; Case C-239/04 Commission v Portugal [2006] ECR I-10183; and R (on the Application of Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin), [2009] JPL 365. 42   R v Secretary of State for Trade and Industry, ex p Duddridge [1995] Env LR 151 (Divisional Court), [1996] Env LR 325 (CA).

The Precautionary Principle  59 electromagnetic fields from electricity cables laid as part of the national grid. They contended that the non-ionising radiation emitted from the cables would enter their homes and schools and be at such levels as to expose them to a risk of developing childhood leukaemia. In other words, the claimants argued that the Secretary of State was required to take a precautionary approach to prevent the risk of damage to health. In particular, he should have asked whether there was any evidence of a possible risk to health, rather than asking whether there was evidence that exposure to electromagnetic fields did actually give rise to the risk of childhood leukaemia. The obligation to apply a precautionary approach was said to derive either from EU law, the government’s policy as expressed in its White Paper ‘This Common Inheritance’43 or as a matter of common sense. The Divisional Court held that it was not entitled to examine the scientific risk for itself. Smith LJ stated: [I]t is not the function of this Court to decide whether there is in fact an increased risk of leukaemia from exposure to high levels of [electromagnetic fields]. Still less is it for the Court to decide whether these applicants will be at any such increased risk.44

The expert evidence in the case was largely in agreement that there was a possibility of a connection between electromagnetic fields and childhood leukaemia, but that there was a need for further research. If the Secretary of State had been under an obligation to apply the precautionary principle, this level of scientific uncertainty would have required him to act in a precautionary manner. However, the Divisional Court held that the Secretary of State was not under a legal obligation to apply a precautionary approach. Smith LJ held that the White Paper did not give rise to such an obligation: If the government announces a policy which it intendes [sic] to adopt without being under any obligation to do so, it must be entitled to define the limits of that policy in any way it wishes. If the government says it will apply a precautionary policy when it perceives a significant risk of harm, it must, in my view, be entitled to apply that threshold for action. The Secretary of State says that he has considered the need for regulations in the light of this policy and has concluded that such are neither necessary nor appropriate. In my judgment, on the basis of the advice he has received, his conclusion that there is no significant risk of developing cancer from exposure to [electromagnetic fields] cannot be impugned is wholly unreasonable or perverse.45

He also denied that any obligation to apply a precautionary approach derived from common sense. The claimants’ argument had been based on the judgment of Stein J in the New South Wales Land and Environment Court decision in Leatch v National Parks and Wildlife Service and Shoalhaven City Council.46 Stein J had declared that ‘the precautionary principle is a statement of common sense and has already been applied by decision-makers in appropriate circumstances prior to the principle being spelt out’.47 Smith LJ rejected the argument that the precautionary principle was mandatory as a matter of common sense as a ‘startling proposition’.48

43   Department for the Environment, This Common Inheritance: Britain’s Environmental Strategy (White Paper, Cm 1200, 1990) esp para 1.15. 44   Duddridge (above n 42) [1995] Env LR 151, 155. 45   Ibid, 164. 46   Leatch v National Parks and Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270. 47   Ibid, 282. 48   Duddridge (above n 42) [1995] Env LR 151, 165.

60  General Principles of Environmental Law Whether EU law requires the precautionary principle to be applied was a more difficult question for the Court. It depended upon the classification of the general environmental principles in Article 191 TFEU [ex-Article 130 EC], in particular whether: (i) they had direct effect and conferred rights on citizens of Member States; or (ii) they imposed an immediate duty of compliance on Member States; or alternatively, (iii) they imposed no obligation in their own right but may do so after the EU institutions have promulgated a measure that does impose binding obligations on Member States. Smith LJ held that the principles upon which future EU environmental policy is to be based fall into the third category. Thus, they do not impose obligations on Member States to act in a particular way, and they cannot be invoked in relation to the Secretary of State’s refusal to issue precautionary regulations. As Glidewell LJ explained, upholding the Divisional Court decision in the Court of Appeal, Article [191 TFEU] sets out the aims which the Community policy shall be designed to achieve and principles to which such a policy should adhere. The Article does not of itself place any obligation on any organ of a national government. The repeated use of the future tense makes it clear that the Article itself does not contain or create such a policy.49

The English courts also refused to require the decision-maker to apply a precautionary approach in R v Tandridge DC, ex p Al-Fayed.50 The case concerned the risks posed by base stations from mobile telephones. The High Court held that the uncertainty surrounding the health implications of radiation from base stations was not sufficient to justify a precautionary approach. The Court of Appeal upheld this decision,51 which illustrates that English judges are prepared to examine the available scientific evidence to ascertain whether there is a scientifically supported allegation of risk necessarily to justify (but not mandate) a precautionary approach. Although an initial burden of proof rests with the government to indicate a potential risk with a substance, this level of proof is generally very low, and once it has been met the onus shifts to the claimant to show that the assumption of risk is unfounded. This low level of proof required to justify a precautionary approach, coupled with the wide margin of appreciation afforded by the courts to environmental regulators, means that it is difficult to foresee many situations in which a precautionary measure could be successfully challenged. Certainly, in areas surrounded by degrees of scientific uncertainty it will be extremely difficult for a claimant to persuade a court that a regulator’s actions were Wednesbury unreasonable. A similarly wide discretion has been afforded to the government in the context of pesticide regulation. In R (Amvac Chemical) v Secretary of State for Environment, Food and Rural Affairs,52 the claimant company sought to challenge a decision to suspend regulatory approvals for the pesticide dichlorvos. The claimant’s contention was that although the Secretary of State had purported to follow the precautionary principle, he had failed in fact to do so. Crane J explained that the claimant needed to establish three things in order to succeed: First, it must show that mechanisms were in place, as part of the application of the precautionary principle, to carry out an appropriate risk assessment. Secondly, it must show that the Defendants   Duddridge (above n 42) [1996] Env LR 325, 333.   R v Tandridge District Council, ex p Al-Fayed (2000) 79 P & CR 227. 51   (2000) 80 P & CR 90. 52   R (on the Application of Amvac Chemical UK Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2001] EWHC Admin 1011. 49 50

The Principle of Producer Responsibility  61 purported to follow the principle and its ancillary mechanisms. Thirdly, it must show that there was a failure to follow such mechanisms.53

The claim failed because Crane J’s firm conclusion was that there was no settled, specific or identifiable mechanism of risk assessment in the field of pesticide approval that the claimant was entitled to rely on the part of the precautionary principle, viewed as a separate basis for challenging a decision.54 These decisions illustrate that the precautionary principle does not have any independent legal status in English law, outside the context of EU law. Whether to take a precautionary approach in a particular case is a matter entirely for the discretion of the government. The absence of any binding provisions relating to the precautionary principle and the reluctance of the English courts to carry out substantive review mean that claimants are extremely unlikely to succeed by invoking the precautionary principle as a ground for judicial review.

III.  The Principle of Producer Responsibility

The principle of producer responsibility seeks to ensure that manufacturers and importers of products bear a degree of responsibility for the environmental impacts of their products throughout the products’ life-cycles. This includes ‘upstream’ impacts inherent in the selection of materials for the products; impacts from manufacturers’ production processes themselves; and ‘downstream’ impacts from the use and disposal of the products. Legislation and policy giving effect to this principle may regulate the design of products in order to minimise their environmental impact, or they may impose legal or economic responsibility for environmental impacts that cannot be eliminated by design. There has not yet been much litigation on the producer responsibility principle in the English courts, but as the volume of legislation based on the principle increases, there is likely to be a growth in the number of disputes concerning the precise meaning of ‘producer responsibility’. The cases decided to date certainly show that there is plenty of scope for arguments concerning who exactly is ‘the producer’ and what precisely they are ‘responsible’ for. For example, in R (Valpak) v Environment Agency,55 the issue concerned the obligations imposed by the Producer Responsibility Obligations (Packaging Waste) Regulations 199756 (passed in order to implement Directive 94/62 on packaging and packaging waste57) in relation to the supply of packaging. In particular, the question was whether the producer of a bottled drink sold in a pub or club was a seller to the end-user. The claimant, Valpak, contended that on a correct interpretation of the Regulations, the obligations imposed fell on the landlord or proprietor of the public house or club that sold the bottled drinks to the customers who drank them. The Environment Agency contended that in cases in which the publican opened the bottle when he served the customer, the obligations were imposed on the brewer who supplied the bottles of drink to the bar or club.   Ibid, para 68.   Ibid, para 84. 55   R (on the Application of Valpak) v Environment Agency [2002] EWHC 1510 (Admin), [2002] Env LR 36. 56   SI 2007/871. 57   [1994] OJ L365/10. 53 54

62  General Principles of Environmental Law Moses J held that the definition of sales or primary packaging in the Regulations looked to the future before sale, hence the use of the word ‘conceived’. ‘Conceived’ means contemplated or intended, so that the bottle must have been contemplated or intended to constitute a sales unit. In his view, a drinks bottle was conceived so as to constitute a sales unit to the final user at the point of purchase. The final user was the consumer of the drink, not the publican, even if the publican opened the drink and disposed of the bottle. Therefore the seller with producer responsibility under the Regulations was the publican, not the supplier. This decision illustrates the potential of disputes to arise concerning the identity of the ‘producer’ in respect of goods manufactured and sold in a multiparty chain of supply, with no single, clearly identifiable end-user. Disputes may also arise in relation to the extent of the producer’s responsibility. This is well illustrated by the decision in R (Repic) v Secretary of State for Business, Enterprise and Regulatory Reform,58 concerning Directive 2002/96/EC on Waste Electronic and Electrical Equipment (WEEE),59 which imposes producer responsibility on producers involved in the electrical and electronic goods market and the disposal of electrical and electronic waste. The United Kingdom has implemented the Directive by providing that makers of electrical goods must pay for WEEE recycling by joining compliance schemes, which arrange to collect waste appliances and obtain evidence of their recycling.60 In Repic, the claimant complained that two compliance schemes had collected more WEEE than they were responsible for, with a view to selling surplus evidence at ‘ransom prices’ to those, like the claimant, who had under-collected. Wyn Williams J held that the principles underlying the WEEE Directive must be taken into account in interpreting the WEEE Regulations 2006.61 In that regard, he accepted that one of the underlying principles of the Directive was the concept of producer responsibility. Construing the 2006 Regulations in the light of the concept of producer responsibility showed that the obligation in Schedule 7 of the WEEE Regulations 2006 for a compliance scheme to have viable plans to collect WEEE ‘equivalent’ to their obligation meant that they must collect ‘no more and no less than is necessary to meet [their] obligation’.62 Although spot-trading of evidence notes will be required ‘because of the difficulty in predicting the precise amount of WEEE . . . necessary to comply with obligations’, this should not be the basis of a scheme’s business model.63 In other words, producers could not set out to collect more WEEE than there were responsible for in order to profit by selling evidence notes to producers who had been unable to meet their responsibilities. The increasing complexity of EU legislation based on the producer responsibility principle and the sophistication of the compliance schemes that allow trading between producers mean that litigation in this area is likely to grow as producers seek to establish the precise scope of their obligations.

58   R (on the Application of Repic Ltd) v Secretary of State for Business, Enterprise and Regulatory Reform [2009] EWHC 2015 (Admin), [2010] Env LR 24. 59   [2003] OJ L37/24. 60   Waste Electrical and Electronic Equipment Regulations 2002, SI 2006/3289. 61  Ibid. 62   Repic (above n 58) [2009] EWHC 2015 (Admin), para 36. 63   Ibid, paras 38–39.

The Principle of Sustainable Development  63 IV.  The Principle of Sustainable Development

The principle of sustainable development essentially means that development should be sustainable in the long term and not compromise the environmental needs of future generations. The principle has not been discussed in depth by domestic or EU courts. Sustainability considerations are, however, implicit in some judicial decisions, such as the cases64 holding that present-day economic constraints are not relevant considerations when determining whether to designate special areas of conservation and special protection areas under the Habitats Directive65 and the Birds Directive respectively.66

64  Case C-44/95, R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds [1996] ECR I-3805; [1997] QB 206; and Case C-371/98 R v Secretary of State for the Environment, Transport and the Regions, ex p First Corporate Shipping Limited [2000] ECR I-9235. 65   Above n 37. 66   Above n 14.

4 The Claim for Judicial Review The judicial review procedure has been described as a ‘somewhat cumbrous and confusing . . . hierarchy of rules and guidance’.1 It comprises statutory provisions (sections 29, 31 and 43 of the Senior Courts Act 1981); the Civil Procedure Rules 1998 (CPR); a Practice Direction (PD);2 a Pre-action Protocol on Judicial Review;3 and finally, the Administrative Court Office Notes for Guidance on Applying for Judicial Review.4 This assortment of procedural rules combines to create the following key steps in a claim for judicial review: 1) 2) 3) 4) 5)

The exhaustion of alternative remedies and alternative dispute resolution (ADR); exchange of pre-action protocol letters; application for permission; disclosure and other interim applications; and substantive hearing.5

I.  Judicially Reviewable Acts and Omissions

A.  The Defendant Must be a Public Body Exercising a Public Function Judicial review is a process by which courts exercise a supervisory jurisdiction over the activities of public authorities in the field of public law. It follows therefore that judicial review is available only against public bodies in matters of public law. Thus for judicial review to be available, a) the body under challenge must be a public body or a body performing public functions; and b) the subject matter of the challenge must involve claims based on public law principles, not the enforcement of private rights.

1   R (on the Application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, para 67 (Auld LJ). 2   Practice Direction (PD) 54A, http://www.justice.gov.uk/‌civil/‌procrules_fin/‌contents/‌practice_directions/‌pd_ part54a.htm. There is also Practice Direction 54D, which concerns the venue at which a claim for judicial review should be issued: http://www.justice.gov.uk/‌civil/‌procrules_fin/‌contents/‌practice_directions/‌pd_part54d.htm. 3  Ministry of Justice, ‘Pre-action Protocol for Judicial Review’, http://www.justice.gov.uk/‌ civil/‌ procrules_ fin/‌contents/protocols/prot_jrv.htm. 4  http://www.hmcourts-service.gov.uk/cms/1220.htm. 5   Occasionally the application for permission and the substantive hearing will occur together in what is known as a ‘rolled up’ hearing: see Section VIII below.

68  The Claim for Judicial Review There is a presumption that the exercise of a power derived from statute raises a matter of public law suitable for resolution by judicial review.6 Since the overwhelming majority of environmental regulators exercise statutory power, there is seldom any doubt as to whether they are amenable to judicial review.7 The principal limitation on the scope of judicial review relevant to environmental claims is the fact that the prerogative power to enter treaties is not reviewable.8 This means that it is not open to an individual to challenge a decision of the executive to ratify an international convention on environmental protection.

B.  The Main Environmental Public Bodies 1.  Central Government Environmental regulation and policymaking are carried out in the United Kingdom by a number of different government departments. The Department for Environment, Food and Rural Affairs (DEFRA or ‘Defra’) is responsible for developing environmental policy and for drafting much of the domestic environmental legislation and guidance. It has responsibility for a significant number of sectors, including integrated pollution prevention and control, local air pollution control, air quality, and the remediation of contaminated land and water quality. Defra also plays a significant role in relation to EU environmental law and policy. It negotiates the content and drafting of EU environmental legislation with the European Commission; it prepares the necessary law and guidance to transpose EU environmental directives; and as part of that transposition process, it undertakes any necessary consultation processes. Defra is not the only department of central government to have environmental law and policy responsibility. The Department for Business Enterprise and Regulatory Reform deals with producer responsibility legislation, and so it had responsibility for implementing Directive 2002/95/EC9 on restrictions of hazardous substances, Directive 2002/96/EC10 on waste electrical and electronic equipment and Directive 2006/66/EC11 on batteries and accumulators and waste batteries and accumulators. It also shares responsibility with Defra for Directive 94/62/EC12 on packaging and packaging waste. The Department for Communities and Local Government (DCLG) is responsible for town and country planning, including implementing Directive 2006/21/EC13 on the management of waste from the extractive industries, the Habitats Directive 92/43/EEC,14 the Wild Birds Directive 79/409/EEC15 and the Environmental Impact Assessment (EIA) Directive 85/337/EEC.16 DCLG also formulates planning policy, including policies relating   Mohit v DPP of Mauritius [2006] UKPC 20, [2006] 1 WLR 3343, para 21.   For a detailed account of the case law on amenability to review, see C Lewis, Judicial Remedies in Public Law (London, Sweet & Maxwell, 2009). 8   Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 418 (Lord Roskill); Maclaine Watson & Co Ltd v Attorney General [1990] 2 AC 418; and R v Secretary of State for Commonwealth and Foreign Affairs, ex p Lord Rees-Mogg [1994] QB 552. 9   [2003] OJ L37/19. 10   [2003] OJ L37/24. 11   [2006] OJ L37/1. 12   [1994] OJ L365/10. 13   [2006] OJ L102/15. 14   [1992] OJ L206/7. 15   [1979] OJ L103/1. 16   [1985] OJ L175/40. 6 7

Judicially Reviewable Acts and Omissions  69 to the protection of the environment, such as ‘Planning Policy Statement 23: Planning and Pollution Control’.17 2.  Local Government Local authorities have important roles in respect of environmental protection. They are responsible for implementing and enforcing planning legislation under the Town and Country Planning Act 1990; they are the principal enforcement authority under Part 2A of the Environmental Protection Act 1990 in respect of contaminated land; and they have duties under the Environmental Liability Directive 2004/35/CE.18 They are also responsible for enforcing the statutory nuisance regime, noise legislation and air quality controls under the pollution prevention and control regime. 3.  The Environment Agency The Environment Agency is a non-departmental public body of Defra that is accountable to the Secretary of State for its day-to-day operations. Section 4(1) of the Environment Act 1995 states that the principal aim of the Environment Agency is to discharge its functions ‘so to protect or enhance the environment, taken as a whole, as to make the contribution towards attaining the objective of achieving sustainable development’ that is referred to in section 4(3). The Environment Agency’s main responsibilities include: •  integrated pollution prevention and control; •  waste management, including regulation of the treatment, storage, transportation and disposal of controlled waste, the provision of technical guidance on waste management, and carrying out surveys to identify waste disposal needs and priorities; •  the regulation of radioactive substances, including controls on the disposal of radioactive waste, storage and use of radioactive substances at non-nuclear sites and the monitoring of radioactivity levels in the environment; •  water quality, including the preservation and improvement of water quality and rivers, estuaries, coastal waters and groundwater, the control of pollution in such waters, implementation of the discharge consent system, the monitoring of trade effluent discharges and sewage treatment works, and the monitoring of the quality of fresh water, ground­ water and tidal waters; •  land quality, including implementation and enforcement of Part 2A of the Environmental Protection Act 1990 in respect of special sites and the publication of periodic reports on the state of contaminated land in England and Wales; •  flood risk management, including all matters related to flood defence, educating the public on flood risk, advising local authorities in relation to development in floodplains, providing flood warnings and responding to flooding incidents. It is well established that in the exercise of these functions the Environment Agency is amenable to judicial review.19

  Office of the Deputy Prime Minister, ‘Planning Policy Statement 23: Planning and Pollution Control’ (2004).   [2004] OJ L143/56.   See, eg, R (on the Application of Edwards) v Environment Agency (No 2) [2008] UKHL 22, [2008] 1 WLR 1587.

17 18 19

70  The Claim for Judicial Review 4.  Natural England Natural England has responsibilities for Sites of Special Scientific Interest, nature reserves and other designated sensitive ecological areas under a wide range of conservation legislation, including the Conservation of Habitats and Species Regulations 2010, the Wildlife and Countryside Act 1981 and the National Parks and Access to the Countryside Act 1949. Given that the designation of land as a Site of Special Scientific Interest restricts proprietary rights, it is not uncommon for Natural England to be the subject of judicial review proceedings.20

II. Exhaustion of Alternative Remedies and ADR

A. Introduction Due to the wide array of statutory appeal mechanisms and internal complaint systems that exist, judicial review is frequently not the only means of challenging decisions taken by public bodies. Litigants do not, however, have a free choice of which method of redress to pursue. The courts have developed a doctrine requiring the exhaustion of alternative remedies whereby a court may, in its discretion, refuse to grant permission to apply for judicial review,21 or it may refuse a remedy at the substantive hearing,22 if a claimant has failed to pursue an adequate alternative remedy. The principle has been forcefully affirmed in a number of cases, for example by Lord Scarman in R v Inland Revenue Commissioners, ex p Preston: A remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.23

The rationale for the exhaustion of alternative remedies rule was explained by Lord Donaldson MR in R v Panel on Take-overs and Mergers, ex p Guinness Plc.24 First, the point usually arises in the context of statutory schemes, and if Parliament directly or indirectly has provided for an appeals procedure, it is not for a court to usurp the functions of the appellate body. Second, the public interest normally dictates that if the judicial review jurisdiction is to be exercised, it should be exercised very speedily and, given the constraints   See, eg, R (on the Application of Boggis) v Natural England [2009] EWCA Civ 1061, [2010] PTSR 725.   R v Secretary of State for the Home Department, ex p Swati [1986] 1 WLR 477; and R v Secretary of State for the Home Department, ex p Capti-Mehmet [1997] COD 61. Permission was also set aside because of the non-exhaustion of an alternative remedy in R v Secretary of State for the Home Department, ex p Doorga [1990] Imm AR 98. 22   R v Birmingham City Council, ex p Ferrero Ltd [1993] All ER 530 (Court of Appeal allowing appeal and setting aside successful judicial review application due to claimant’s failure to use a statutory appeals procedure); and R v Commissioners for Customs and Excise, ex p Mortimer [1998] 3 All ER 229. 23   R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, 852. In a similar vein, Sir John Donaldson MR held in R v Epping and Harlow General Commissioners, ex p Goldstraw [1983] 3 All ER 257, 262: ‘it is a cardinal principle that, save in the most exceptional circumstances, [the judicial review] jurisdiction will not be exercised where other remedies were available and have not been used.’ 24   R v Panel on Take-overs and Mergers, ex p Guinness Plc [1990] 1 QB 146, 177E and 177G–178A. 20 21

Exhaustion of Alternative Remedies and ADR  71 imposed by limited judicial resources, this necessarily involves limiting the number of cases for which permission to apply should be given. It is also the case that the alternative remedy may be better able to deal with disputes of fact than judicial review, since disclosure and cross-examination are still rare in judicial review cases.25 Moreover, in environmental law many statutes contain appeal procedures because the matters raised are complex and are more suited to hearings before specialist tribunals.26 Notwithstanding these strong policy reasons for restricting access to judicial review, as the decision in Leech v Deputy Governor of Parkhurst Prison confirmed, the existence of an alternative remedy does not impliedly oust the jurisdiction of the High Court to grant permission or a remedy – that would be a constitutionally objectionable impediment to access to court. Instead, the availability of an alternative remedy is relevant to a court’s discretion to grant permission or a remedy.27 In practice the application of the exhaustion of alternative remedies doctrine is not as straightforward as Lord Scarman’s dicta in Preston suggests. As Lewis has observed, ‘there are qualifications of that principle, and different formulations and understandings of the principle can be seen in the case law.’28 Writing in 1992, he approved the exhaustion of alternative remedies doctrine as a matter of principle and pragmatism but cautioned: [T]here is a danger, in the short term at least, that the application of the rule will generate an additional burden for the courts . . . In the longer term, the courts ought to be able to lay down clear guidelines as to when an alternative remedy should be used.29

As will be seen, clear guidelines have not emerged, and instead the courts have adopted a flexible, pragmatic approach when applying the exhaustion of alternative remedies principle.

B. Exceptions The courts have attempted to mitigate the supposed inflexibility of the rule by developing a number of exceptions. First, permission for judicial review will not be refused where the alternative remedy is not adequate. In Leech v Deputy Governor of Parkhurst Prison,30 two prisoners wished to challenge the Deputy Prison Governor’s findings that they were guilty of disciplinary offences resulting in loss of remission. An alternative remedy to judicial review existed by way of petition to the Secretary of State, but the Secretary of State was only empowered to remit the punishment, not to quash the findings of guilt against the prisoners. Lord Bridge held that the prisoners could seek judicial review because the alternative remedy was not an adequate one. A finding of guilt against the prisoners would adversely affect their chances of parole, and so it was important that the prisoners were able to obtain a remedy that could reverse a finding of guilt.   See below ch 6.  See, eg, s 80(3) Environmental Protection Act 1990 and the Statutory Nuisance (Appeals) Regulations 1995/2644 as amended by the Statutory Nuisance (Appeals) (Amendment) (England) Regulations 2006/771. 27   Leech v Deputy Governor of Parkhurst Prison [1988] AC 533. 28   See C Lewis, ‘The Exhaustion of Alternative Remedies in Administrative Law’, [1992] Cambridge Law Journal 138, 145ff. In R v Chief Constable of Merseyside, ex p Calverley [1986] QB 424, 433, Sir John Donaldson MR stated that judges have exhibited ‘varying emphasis on the reluctance to grant judicial review’. 29  Lewis, ‘The Exhaustion of Alternative Remedies’ (ibid) 140. 30   Above n 27. 25 26

72  The Claim for Judicial Review Second, courts have also allowed a claimant to use judicial review notwithstanding the existence of an alternative remedy where there is a need for authoritative judicial guidance. In R v Huntingdon District Council, ex p Cowan,31 Glidewell J allowed the claimant to seek judicial review of a licensing decision rather than use an appeal procedure. The case raised for the first time the question of how local authorities are required to exercise their licensing functions under a particular statute. He held that it was in the public interest that the court should give a ruling that would provide authoritative guidance for all other local authorities. Third, the urgency of the matter may justify using judicial review in preference to an alternative remedy. Judicial review is capable of providing a swift means of resolving disputes. There is a special procedure for urgent cases whereby permission and interim remedies may be considered in a matter of hours.32 Therefore, in cases in which there is a genuine and urgent need to resolve a dispute, judicial review may be allowed even though an appeal right exists. Fourth, many alternative remedies do not allow a claimant to recover his costs even if he wins, and on occasion the courts have considered this to be a good reason for allowing the claimant to bring a claim for judicial review. For example, in R v Commissioner for the Special Purposes of the Income Tax Acts, ex p Stipplechoice,33 the Court of Appeal allowed the claimant to seek judicial review because the available remedy by way of appeal would not have enabled him to recover his costs.

C.  Assessment of the Principle The exhaustion of alterative remedies principle is stated in stark terms: an alternative must be used unless the case is an exceptional one. There is little room for judicial discretion in this formulation, and so flexibility can be attained only by manipulating the uncertain boundaries of the exceptions. Although the exceptions described above create flexibility, there is still a steady flow of cases in which one of the main issues is whether the case should have been pursued by way of judicial review, case stated or some other alternative remedy. This pointless satellite litigation is a waste of precious judicial time and is caused by an inability to define the boundaries of and the exceptions to the principle sufficiently precisely. The consequences are particularly unsatisfactory where the supposed alternative remedy is an appeal by way of case stated. In that context, the exhaustion of alternative remedies principle may insulate unlawful decisions from scrutiny because, due to the short time limit governing appeals by way of case stated, in many cases by the time the Administrative Court has refused permission for judicial review for failure to exhaust alternative remedies, the individual will be out of time for bringing an appeal by way of case stated.34 Where the alternative remedy is an appeal by way of case stated, there are already welcome signs of flexibility in a number of recent decisions. The foundations of this approach   R v Huntingdon District Council, ex p Cowan [1984] 1 All ER 58.   The claimant must complete a Request for Urgent Consideration, Form N463. 33   R v Special Commissioner for the Purposes of the Income Tax Acts, ex p Stipplechoice Ltd (No 1) [1985] 2 All ER 465. 34   This is because the time limits for appeals are often shorter than the three-month time limit for judicial review. 31 32

Exhaustion of Alternative Remedies and ADR  73 were laid by Lord Bingham CJ in R v Hereford Magistrates’ Court, ex p Rowlands.35 In that case, two applicants who had been convicted of assaulting a constable sought judicial review of the magistrates’ decision to refuse an adjournment which had prevented them from calling certain witnesses. Lord Bingham CJ held that judicial review was not precluded by the availability of an appeal to the Crown Court or by way of case stated. Importantly, Lord Bingham CJ expressly recognised the imperative of remedying unlawful action and the fact that the judicial review jurisdiction is a key constitutional safeguard vindicating the rule of law: So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates’ courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. The crucial role of the magistrates’ courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained.36

Drawing on the strong normative justification articulated by Lord Bingham CJ for permitting claims to proceed by way of judicial review notwithstanding the availability of alternative remedies, Stanley Burnton J’s decision in R (Brighton and Hove City Council) v Brighton and Hove Justices37 illustrates how the discretionary principle of exhausting alternative remedies can operate flexibly, fairly and predictably. In Brighton and Hove Justices, the claimant council sought judicial review of the decision of the defendant justices to set aside liability orders made by that court to secure payment of non-domestic rates. The claimant argued that the decision was Wednesbury unreasonable. Stanley Burnton J considered that the claim should ideally have proceeded by way of case stated: I nonetheless have no doubt that the appropriate procedure to challenge the decision of the justices . . . was by appeal by way of case stated. This is the normal procedure for challenging errors of law by justices. It has a number of advantages, not the least of which is that the discipline of a case stated normally ensures that the High Court has before it a statement by the justices of the issues they had to decide, the evidence before them, their findings of fact and the reasons for their decision . . . Furthermore, in an appeal by way of case stated, this Court is able to make any order that the lower court might have made . . . The powers of this court on judicial review are more limited: it can quash the lower court’s order and order it to make another order only if that other order is the only one properly open to it.38

Notwithstanding this, Stanley Burnton J emphasised that although the court may refuse relief in judicial review proceedings on the ground that an appeal by way of case stated is a more appropriate way to proceed, ‘the bar is discretionary, not mandatory’.39 He considered that the court should exercise its discretion as follows: [U]nless prejudice is caused to a party, or there is some other good reason to refuse to permit a party to proceed by way of judicial review . . . in my judgment the Court should be reluctant to cause a good claim to be defeated by an error as to the form of proceedings.40

On the facts of the case, he allowed the claim to proceed by means of judicial review: the objection was only made by the interested party six months after commencement of   R v Hereford Magistrates’ Court, ex p Rowlands [1998] QB 110.   Ibid, 125. 37   R (on the Application of Brighton and Hove City Council) v Brighton and Hove Justices [2004] EWHC 1800. 38   Ibid, para 23. 39   Ibid, para 24. 40   Ibid, para 25. 35 36

74  The Claim for Judicial Review proceedings;41 the defendant magistrates’ court did not object to the form of proceedings; and no prejudice would be caused. Stanley Burnton J’s approach in the Brighton and Hove Justices case provides a sound and predictable basis for exercising the discretion to refuse permission or relief for a failure to exhaust alternative remedies, and there are strong parallels between his approach and that of the Court of Appeal in Clark v University of Lincolnshire and Humberside in the context of procedural exclusivity.42 This new flexible approach was also applied in the environmental context by Simon Brown LJ in R v Falmouth and Truro Port Health Authority, ex p South West Water.43 He argued: If the applicant has a statutory right of appeal, permission should only exceptionally be given; rarer still will permission be appropriate in a case concerning public safety. The judge should, however, have regard to all relevant circumstances which typically will include, besides any public health consideration, the comparative speed, expense and finality of the alternative processes, the need and scope for fact-finding, the desirability of an authoritative ruling on any point of law arising, and (perhaps) the apparent strength of the applicant’s substantive challenge.44

On the facts, the case raised a discrete issue of statutory interpretation which could appropriately be resolved in judicial review proceedings. The benefits of such a flexible approach to the availability of an alternative remedy can clearly be seen from the case of R (Anti-Waste Ltd) v Environment Agency.45 In that case, proceedings had been commenced by the claimants in order to quash two decisions of the Environment Agency declining to issue permits for landfills in Norfolk. Declarations were sought in judicial review proceedings in relation to two specific questions of statutory construction. Then, in relation to the specific sites, the claimants agreed to pursue a statutory appeal to the Secretary of State against the refusals. Thus the factual and technical matters could be dealt with before a specialist tribunal in the light of the Administrative Court’s decision as to the law. This harnesses the advantages of each procedural route and avoids unnecessary formalism.

III.  Alternative Dispute Resolution (ADR)46

The courts are under a duty to further the overriding objective in Part 1 of the Civil Procedure Rules by ‘actively managing cases’. That duty includes ‘encouraging the parties to use an alternative dispute resolution procedure if the court considers that appropriate and facilitating the use of such procedure’.47 In R (Cowl) v Plymouth City Council, the Court of 41   The point really ought to be taken much sooner after proceedings are issued, as the defendant now has the opportunity to raise the point in the acknowledgement of service. 42   Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988. See below section VI for discussion of procedural exclusivity. 43   R v Falmouth and Truro Port Health Authority, ex p South West Water [2001] QB 445. 44   Ibid 474. 45   R (on the Application of Anti-Waste Ltd) v Environment Agency [2007] EWCA Civ 1377, [2008] 1 WLR 923. 46   There is a growing literature concerning ADR in public law. See A Le Sueur, ‘How to Resolve Disputes with Public Authorities’ (2002) Public Law 203; S Boyron, ‘The Rise of Mediation in Administrative Law Disputes: Experiences from England, France and Germany’ (2006) Public Law 320; and M Supperstone, D Stilitz and C Sheldon, ‘ADR in Public Law’ (2006) Public Law 299. 47   CPR, r 1.4(2)(e).

Alternative Dispute Resolution (ADR)  75 Appeal emphasised that the duty to encourage the appropriate use of ADR applies as much in public law litigation as in private law disputes.48 In Cowl the claimants were residents of a care home who sought judicial review of the defendant’s decision that their home should be closed. The defendant responded to the claim by offering to treat their grounds for seeking judicial review and their supporting evidence as a complaint to be considered under the procedures set out in section 7B of the Local Authority Social Services Act 1970. The Court of Appeal found that this would have yielded as good an outcome as the claimants could have hoped to achieve in litigation, and therefore the claimants ought to have pursued their dispute via that alternative means. Lord Woolf MR said that judicial review proceedings should not be regarded as the exclusive, nor even the primary, means of resolving disputes in ‘public law’ matters. He spoke of the ‘paramount importance of avoiding litigation whenever possible’49 in disputes with public authorities, and he suggested that the Administrative Court could take the initiative and order a ‘with notice’ hearing for the parties to explain what steps, if any, they have taken to resolve the dispute without recourse to litigation. He also suggested that the Legal Services Commission should co-operate with the Administrative Court to ‘scrutinise extremely carefully’ judicial review claims in order to ensure that the parties tried ‘to resolve the dispute with the minimum involvement of the courts’.50 The Judicial Review Pre-action Protocol identifies ‘some of the options’ for ADR in public law litigation as: discussion and negotiation; ombudsmen; early neutral evaluation; and mediation.51 However, voluntariness is a fundamental principle in ADR, and the Pre-action Protocol stress that it needs to be ‘recognised that no party can or should be forced to mediate or enter into any form of ADR’.52 The modern encouragement to explore ADR as a means of resolving claims for judicial review accords with the Ministry of Justice policy of proportionate dispute resolution. The 2004 White Paper ‘Transforming Public Services: Complaints Redress and Tribunals’ set out the government’s desire for ‘proportionate dispute resolution’ in the field of administrative justice.53 The proposals seek ‘to transform civil and administrative justice and the way that people deal with legal problems and disputes’,54 firstly by clarifying rights and responsibilities so as to reduce the risk of administrative error in the first place. Secondly, there will be a wider range of internal methods of handling complaints and a range of ADR services ‘so that different types of dispute can be resolved fairly, quickly, efficiently and 48   R (on the Application of Cowl) v Plymouth City Council [2001] EWCA Civ 1935, [2002] 1 WLR 803. Lord Woolf MR’s cri de Coeur was taken up by the lead judge of the Administrative Court, Scott Baker J, in his Practice Statement (Administrative Court: Listing and Urgent Cases), which stated: ‘I draw attention of litigants and legal advisers to the decision of the Court of Appeal in R (Cowl) v Plymouth City Council (Practice Note) [2002] 1 WLR 803. The nominated judges are fully committed to resolving disputes by alternative means where appropriate and are exploring ways of promoting this.’ 49   Cowl (ibid) para 1. 50   Ibid, para 2. 51   Pre-action Protocol (above n 3) para 3.2. 52   Ibid, para 3.4. 53  Department for Constitutional Affairs, Transforming Public Services: Complaints Redress and Tribunals (White Paper, Cm 6243, 2004). (Since May 2007, the Department for Constitutional Affairs has been called the Ministry of Justice.) See also National Audit Office, Citizen Redress: What Citizens Can Do if Things Go Wrong with Public Services (Report by the Comptroller and Auditor General, 2004–05, HC 21). For discussion, see M Alder, ‘Tribunal Reform: Proportionate Dispute Resolution and the Pursuit of Administrative Justice’ (2006) 69 Modern Law Review 958; and A Le Sueur, ‘Courts, Tribunals, Ombudsmen, ADR: Administrative Justice, Constitutionalism and Informality’ in J Jowell and D Oliver (eds), The Changing Constitution (Oxford, Oxford University Press, 2007). 54   Transforming Public Services (White Paper) (ibid) para 2.1.

76  The Claim for Judicial Review effectively, without recourse to the expense and formality of courts and tribunals where this is not necessary’.55 Judicial enthusiasm for alternative dispute resolution has been expressed outside the courtroom too. On 29 March 2008, Lord Phillips delivered a speech on alternative dispute resolution in which he described himself as a mediation enthusiast.56 He suggested: Parties should be given strong encouragement to attempt mediation before resorting to litigation. And if they commence litigation, there should be built into the process a stage at which the court can require them to attempt mediation – perhaps with the assistance of a mediator supplied by the court.57

Whilst he stopped short of arguing for compulsory mediation, Lord Phillips appeared to support it: What are the pros and cons of compulsory mediation? Strong views are expressed about this on both sides. Those opposed argue that compulsion is the very antithesis of mediation. The whole point of mediation is that it is voluntary. How can you compel parties to indulge in a voluntary activity? ‘You can take a horse to water, but you cannot make it drink’. To which those in favour of compulsory mediation reply, ‘Yes, but if you take a horse to water it usually does drink.’ Statistics show that settlement rates in relation to parties who have been compelled to mediate are just about as high as they are in the case of those who resort to mediation of their own volition.58

Sir Anthony Clarke MR (as he then was), gave a speech at the Civil Mediation Council’s national conference on the future of civil mediation in May 2008, which also demonstrated a stance in favour of compulsory mediation.59 In it he criticised the Court of Appeal decision in Halsey v Milton Keynes General NHS Trust  60 as being ‘overly cautious’ in its conclusion that compelling parties to mediate could constitute a violation of Article 6 of the European Convention on Human Rights.61 He suggested that this point may be open to review ‘either by judicial decision or in any event by rule change’.62 He said that he wanted to see directions to mediate made routinely by judges. Despite judicial exhortation, the use of mediation in connection with judicial review claims remains negligible. There are three principal reasons for the failure of ADR to take root in the public law context. First, many public law disputes are not suitable for ADR, for example, cases in which important legal principles are at stake or when it is necessary to establish a precedent. Lord Irvine recognised this concern and cautioned: Some unstinting admirers of ADR assert that all disputes are suitable for ADR and can benefit from them. I doubt that such unlimited enthusiasm does much to help promote the wider use of ADR in the long run. Courts have a vital – indispensable – part to play in the resolution of many categories of dispute. It is, at best, naïve to claim that mediation and its alternatives can adequately equate to this role. An obvious example is the establishment of significant judicial precedent . . . Or consider the  Ibid, para 2.3.  Lord Phillips, ‘Alternative Dispute Resolution: An English Viewpoint’, speech given in India on 29 Mar 2008, available at http://www.judiciary.gov.uk/Resources/JCO/Documents/lcj_adr_india_290308.pdf. 57  Ibid. 58  Ibid. 59   Sir Anthony Clarke, ‘The Future of Civil Mediation’, speech given at the Second Civil Mediation Council National Conference in Birmingham on 8 May 2008, available at http://www.judiciary.gov.uk/‌Resources/‌JCO/ ‌Documents/‌mr_mediation_conference_may08.pdf. 60   Halsey v Milton Keynes General NHS Trust; Steel v Joy and Halliday [2004] EWCA Civ 576, [2004] 1 WLR 3002. 61   Clarke (above n 59) para 10. 62  Ibid. 55 56

Alternative Dispute Resolution (ADR)  77 issues of cases which set the rights of the individual against those of the State. The experience of the United States suggests this is an extremely sensitive area, which must be approached with extreme care. I think the use of ADR in administrative cases is of necessity limited.63

Indeed, although the Lord Chancellor’s Department issued a pledge on behalf of the government on 23 March 2001 to seek to resolve disputes involving government departments through ADR wherever possible, the list of cases exempted from this pledge (on the grounds of unsuitability for settlement through ADR) included ‘cases involving . . . abuse of power, public law [and] Human Rights . . .’64 Second, as the procedural rules currently stand, pursuing ADR does not suspend the requirement that claims for judicial review must be made ‘promptly’ and in any event within three months. Claimants would therefore be well advised to commence a claim and then to seek a stay in order to explore ADR. Such prudent behaviour nevertheless undermines the objective of saving cost and avoiding resort to the Administrative Court. A third reason for the reluctance of prospective public law litigants to embrace ADR is that the alternative methods of resolving their disputes might not yield equivalent outcomes to claims for judicial review. However, in Cowl Lord Woolf MR acknowledged that there would often not be a precise correlation between judicial review and ADR, but that was no reason to shun ADR: It appears that one reason why the wheels of the litigation may have continued to roll is that both parties were under the impression that unless they agreed otherwise the claimants were entitled to proceed with their application for judicial review unless the complaints procedure on offer technically constituted an ‘alternative remedy’ which would fulfil all the functions of judicial review. This is too narrow an approach to adopt when considering whether an application to judicial review should be stayed. The parties do not today, under the Civil Procedure Rules, have a right to have a resolution of their respective contentions by judicial review in the absence of an alternative procedure which would cover exactly the same ground as judicial review. The courts should not permit, except for good reason, proceedings for judicial review to proceed if a significant part of the issues between the parties could be resolved outside the litigation process. The disadvantages of doing so are limited. If subsequently it becomes apparent that there is a legal issue to be resolved, that can thereafter be examined by the courts which may be considerably assisted by the findings made by the complaints panel.65

Although there has been considerable enthusiasm amongst policymakers and some members of the judiciary for increased use of mediation, the actual take-up of mediation in judicial review cases is negligible. The Public Law Project undertook a major study exploring the value and limits of mediation in judicial review.66 It concluded that public lawyers are unduly resistant to ADR. Although it is difficult to envisage negotiations and compromises at the expense of constitutional rights and freedoms, and although it is impossible to 63  Lord Irvine of Lairg, ‘Inaugural Lecture to the Faculty of Mediation and ADR’ (London, 27 Jan 1999), available at http://www.adr.civiljusticecouncil.gov.uk/Category.go?category_id=56. Similarly, the Bowman Committee did not consider ADR to be suitable in the context of judicial review, noting in its Report, ‘There is . . . generally little room for compromise in the public law field’: Bowman Committee, Review of the Crown Office List: A Report to the Lord Chancellor (‘The Bowman Report’) Lord Chancellor’s Department (London, 2000) 66–67. 64  Quoted in Ministry of Justice, The Annual Pledge Report 2008/09: Monitoring the Effectiveness of the Government’s Commitment to using Alternative Dispute Resolution (March 2010), 2, available at http://www.justice. gov.uk/publications/docs/alternative-dispute-resolution-08-09.pdf. 65   Cowl (above n 48) [2001] EWCA Civ 1935, para 14. 66  V Bondy, L Mulcahy, M Doyle and V Reid, Mediation and Judicial Review: An Empirical Research Study (Public Law Project, 2009), http://www.publiclawproject.org.uk/‌documents/‌MediationandJudicialReview.pdf

78  The Claim for Judicial Review compromise directly effective rights under EU law, many public law claims do not involve issues of high principle, nor do they engage the wider public interest. Moreover, given the extreme pressure of work that the Administrative Court is currently under, it would be irresponsible and a waste of public money for all public law disputes inexorably to be channelled to the Administrative Court.

IV.  The Pre-action Protocol

The Pre-action Protocol for Judicial Review is declared to be a ‘code of good practice’, and it contains the steps that prospective parties should follow before a claim for judicial review is made.67 The principal features of the Pre-action Protocol are as follows: first, a prospective claimant must send a letter to the defendant before making a claim (the letter before action); second, there is a corresponding duty on the defendant to reply to the letter before action (normally within 14 days) and to supply any documentation requested by the claimant (or explain the refusal to supply it);68 finally, the preamble to the Pre-action Protocol states that it does not affect the time limit for bringing a claim for judicial review. The last point is extremely important. As explained below, claims for judicial review must be brought within three months and, in any event, promptly.69 Prospective claimants therefore have a very narrow timeframe in which to comply with the Pre-action Protocol before issuing proceedings. The purpose of the letter before claim is ‘to identify the issues in dispute and establish whether litigation can be avoided’.70 The courts regard this as an important objective. They normally expect parties to comply with the Pre-action Protocol and take non-compliance into account when giving directions for case management or making orders for costs.71 For example, in Aegis Group Plc v Inland Revenue Commissioners, where the claimant discontinued its claim for judicial review, Park J awarded the successful defendant only 85 per cent of its costs because its response to the judicial review pre-action letter had been late and there was no adequate explanation for the delay.72 Brooke LJ endorsed this approach in R (Ewing) v Office of the Deputy Prime Minister.73 He held that where the claimant fails to comply with 67   See para 5 of the Pre-action Protocol (above n 3). The Protocol came into force on 4 Mar 2002, and an update concerning alternative dispute resolution came into force on 6 Apr 2006. 68   The Pre-action Protocol (above n 3) states at para 6 that it does not impose any obligation on a public body to disclose documents relevant to its decision or reasons for that decision greater than that which is already provided for by statute and common law. 69   See below section V-D. 70   Pre-action Protocol (above n 3) para 8. A standard form letter is provided, which claimants ‘should normally use’ (para 9). 71   See Pre-action Protocol (above n 3) para 7. The guiding principle for the exercise of these powers is set out in para 4.5 of the Practice Direction Protocols, namely that the court will exercise its powers with the object of placing the innocent party in no worse a position than he would have been in if the Protocol had been complied with. 72   Aegis Group Plc v Inland Revenue Commissioners [2005] EWHC 1468 Ch. Normally, the defendant would recover its costs pursuant to the rules set out in CPR r 38.6(1). 73   R (on the Application of Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583, [2006] 1 WLR 1260, para 54. See also R (William Kemp (a Patient by His Litigation Friend, Derek Kemp) v Denbighshire Local Health Board [2006] EWHC 181 (Admin), [2007] 1 WLR 639, in which Langstaff J made no order as to costs when a claim for judicial review had been settled save as to costs. In order to have made an order for costs in the claimant’s favour, the court had to be satisfied that the judicial review proceedings would have proceeded beyond the permission stage. Since the Pre-action Protocol had not been complied with and an alternative remedy was available, it was likely that permission would have been refused.

Applications for Permission  79 the Pre-action Protocol, it is reasonable to expect that the defendant will be put to greater expense in preparing summary grounds for contesting the claim, and the court should reflect this in any costs order made against the claimant if permission is refused.

V.  Applications for Permission

A.  The Nature and Purpose of the Permission Requirement CPR rule 54.4 provides: ‘The court’s permission to proceed is required in a claim for judicial review’. This is an exception to the general principle that the court’s formal sanction is not required before a litigant may commence proceedings. The Law Commission has supported the permission requirement for three reasons. First, it deters spurious claims and ensures that public resources are not wasted on defending unmeritorious claims.74 Second, the permission requirement also benefits the courts, allowing for ‘efficient management of the caseload’ by excluding hopeless cases which would otherwise consume scarce judicial resources.75 Finally, the Law Commission agreed with Le Sueur and Sunkin’s findings that the permission stage assists claimants by providing a relatively expeditious and inexpensive means of obtaining the opinion of the Administrative Court.76 Prior to the CPR, the permission stage was a without-notice procedure, not involving the defendant. Part 54 of the CPR transformed the permission stage into a with-notice process so that the claimant must now face the defendant’s case on paper at the permission stage. This makes the permission test more onerous, thereby re-enforcing the Pre-action Protocol’s encouragement of ADR. The application for permission will ordinarily be considered first by a judge on the papers. The judge may (i) grant permission;77 (ii) refuse permission; or (iii) order the parties to attend an oral hearing at which the issues can be aired. If permission is refused on the papers, the claimant may seek to renew the application at an oral hearing. The defendant is not required to attend an oral permission hearing unless the court directs otherwise.78 An unsuccessful claimant can appeal against the refusal of permission for judicial review.79 The full Court of Appeal rather than a single Lord Justice will hear this appeal.80 74  Law Commission, Administrative Law: Judicial Review and Statutory Appeals (Law Com No 226, 1994) paras 3.5–3.6. 75   Ibid, para 5.6. 76   A Le Sueur and M Sunkin, ‘Applications for Judicial Review: The Requirement of Leave’ (1992) Public Law 102, 107. 77   If permission is granted, neither the defendant nor anyone else served with the claim form may apply for permission to be set aside: CPR r 54.13. However, exceptionally where permission was granted without reference to a conclusive legal authority or statutory provision, it may be appropriate to apply to the judge, inviting him/her to recall the permission decision and order: R v Chief Constable of West Yorkshire, ex p Wilkinson [2002] EWHC 2353 (Admin) para 43. 78   CPR Practice Direction (PD) 54A 8.5. 79   The procedure is set out in CPR r 52.15; an application for permission to appeal against the High Court’s refusal of permission must be made within seven days of that refusal; the appellant’s notice must be accompanied by the documents specified in CPR PD52 15.4, and copies must be served on all respondents. 80   CPR r 52.15(3). the Court of Appeal may, rather than granting permission to appeal, move directly and grant permission to proceed with the claim for judicial review. If the Court of Appeal refuses permission to appeal against the High Court’s refusal to give permission to apply for judicial review, there is no right of appeal to the UK Supreme Court: s 54(4) Access to Justice Act 1999; Lane v Esdaile [1891] AC 210; and R v Secretary of State for Trade and

80  The Claim for Judicial Review

B.  The Procedure for Applying for Permission An application for permission for judicial review is made by filing a claim form in the Administrative Court Office, which will then issue the claim form.81 The claim form must be accompanied by the written evidence relied on by the claimant,82 together with a copy of the decision that the claimant seeks to have quashed and, if the decision is that of the court or tribunal, an approved copy of the reasons for reaching that decision. The claimant must also supply copies of the documents upon which it wishes to rely, copies of any relevant statutory material and a list of essential documents for advance reading.83 The claim form, written evidence and documents must be contained in a paginated indexed bundle, and two copies of the bundle must be filed with the Administrative Court Office.84 The claim form for bringing a claim for judicial review is form N461. This form should identify the enactment, decision, action or omission in respect of which the claim is made. It should also contain or have attached to it the following: (a) a statement that the claimant is requesting permission to apply for judicial review; (b) the name and address of any person considered to be an interested party; (c) the remedies, including interim remedies that are claimed; (d) a detailed statement of the grounds for seeking judicial review; (e) a statement of the facts relied upon; (f) any application to extend the time for filing the claim; and (g) any direction sought in the time estimate for the hearing permission is granted.85 When a claim raises issues under the Human Rights Act 1998, the claimant must specify that fact in the claim form, as well as give precise details of the Convention right relied upon and details of the alleged infringement and specific remedies sought.86 Usually following service of the claim form, a defendant has 21 days to file an acknow­ ledgment of service setting out summary of the grounds of resistance. Often in environmental claims there is an urgent need to consider the claim for permission and applications for interim relief; therefore, the normal timetable is inappropriate. The Administrative Court has a procedure for urgent cases according to which a claimant should complete a form requesting urgent consideration of the claim, setting out why there is a need for urgency, the time within which consideration of the application for permission should take place and the date by which a substantive hearing should occur.87 Reconsideration of the claim in urgent cases can occur extremely quickly. For example, in R (Friends of the Earth & Greenpeace) v Secretary of State for Environment, Food and Rural Affairs,88 the claimants Industry, ex p Eastway [2000] 1 WLR 2222. It has been suggested that the UK Supreme Court does, however, have jurisdiction to entertain an appeal against the Court of Appeal’s refusal to grant permission to apply for judicial review: R (on the Application of Burkett) v Hammersmith and Fulham London Borough Council (No 1) [2002] UKHL 23, [2002] 1 WLR 1593, 1598 (Lord Steyn rejecting the view of Lord Diplock in Re Poh [1983] 1 WLR 2). 81   CPR r 54.6; and PD 54A 2.1. 82   This is usually in the form of witness statements. 83   PD 54A 5.7. 84   PD 54A 5.9. 85   CPR 8.2 and CPR 54.6 and PD 54A 5.6. 86   PD 54A 5.3. 87   See Practice Statement (Administrative Court: Listing and Urgent Cases) [2002] 1 WLR 810. The appropriate form is N463. 88   R (on the Application of Friends of the Earth Ltd and Greenpeace) v Secretary of State for Environment, Food and Rural Affairs [2001] EWCA Civ 1847, [2002] Env LR 24.

Applications for Permission  81 sought judicial review of the Secretaries of State’s decisions that the proposed manufacture of Mixed Oxide Fuel at Sellafield was justified in accordance with Council Directive 96/29/ Euratom89 on basic safety standards for protection against the dangers arising out of ionising radiation. The decision was announced on 3 October 2001; the claim was commenced on 5 October; a permission and substantive hearing was heard in the Administrative Court on 8 and 9 November, with judgment given on 15 November. The Court of Appeal heard the appeal on 28 and 29 November and gave judgment on 7 December, enabling British Nuclear Fuels plc to take ‘irreversible implementation steps’ on 20 December.

C.  The Test for Granting Permission In Sharma v Brown-Antoine, Lord Bingham explained that the courts will normally refuse permission ‘unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy’.90 Thus a claimant must show that: he has an arguable case; the claim is brought promptly and within three months;91 he has exhausted alternative remedies;92 he has a sufficient interest to confirm standing;93 and there are no reasons why the court should refuse a remedy in its discretion.94 The test of arguability for granting permission is a relatively low one, designed to weed out hopeless claims. A claimant is required to show only an ‘arguable’ case – described by the Court of Appeal as one in which ‘there is a point fit for further investigation on a full inter partes basis with all such evidence as is necessary on the facts and all such argument as is necessary on the law’.95 In refusing permission to seek judicial review of the government’s decision not to hold an inquiry into the circumstances that led to the invasion of Iraq, Collins J held that the threshold for deciding whether a claim for judicial review is arguable is a low one, but ‘arguable’ does not simply mean that a claim can be the subject of a well-reasoned argument.96 Only if there is a real prospect of success will the claim be arguable. The test is therefore the same as that applied by the Court of Appeal when deciding whether to grant permission to appeal. The recent decision in R (English) v East Staffordshire Borough Council 97 clarifies the test to be applied when considering whether to grant permission for judicial review at an oral hearing. Counsel for the defendant relied on the judgment of Glidewell LJ in Mass Energy Limited v Birmingham City Council  98 in order to argue that at oral permission hearings the test was more stringent – instead of asking whether the papers disclosed an arguable case, the judge should be satisfied that the claimant’s case is not merely arguable but strong and likely to succeed. Flaux J rejected this as a uniform test to be applied to all oral permission hearings. He held that it was not necessary to apply the test on the facts because the claim failed to cross   [1996] OJ L159/1.   Sharma v Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780, para 14(4). 91   See below section V-D. 92   See above section II. 93   See below ch 5. 94   See below ch 8. 95   R v Secretary of State for the Home Department, ex p Rukshanda Begum [1990] COD 107, 108. 96   R (on the Application of Gentle) v Prime Minister [2005] EWHC 3119 (Admin). 97   R (on the Application of English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin). 98   Mass Energy Limited v Birmingham City Council [1994] Env LR 298, 307–8. 89 90

82  The Claim for Judicial Review even the lower hurdle of arguability. Moreover, in contrast to the Mass Energy case, it was not appropriate to apply the more stringent test because the court had not heard all the evidence or argument that might be adduced at a full judicial review hearing if permission were granted.99

D.  Time Limits and Delay The time limits for judicial review claims are very short indeed. Under CPR rule 54.5(3) claims for judicial review must be filed promptly and in any event not later than three months after the grounds to make the claim first arose. In addition, section 31(6) of the Senior Courts Act 1981 provides: Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant (a) leave for the making of the application or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

The CPR and the Senior Courts Act do not provide any guidance as to how these different provisions relate to one another. The leading case in considering the relationship between the provisions is R v Dairy Produce Quota Tribunal for England and Wales, ex p Caswell.100 Lord Goff held that section 31(6) was a useful reserve provision that should be applied after considering whether a claim had been brought promptly within three months. Accordingly, if an application for permission is not made promptly and in any event within three months, a court may refuse permission on the ground of delay, unless it considers that there is good reason for extending time. But even if the court considers there is good reason to extend the time limit, it may still refuse permission if it considers that, under section 31(6), there has been undue delay and that granting the relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. Lord Goff ’s interpretation of the two time-limit provisions therefore means that three questions must be asked by the court. The first question is whether there has been undue delay in the sense that permission has not been sought promptly and in any event within three months. What is prompt will depend upon the facts and circumstances of the particular case. Second, if there has been undue delay, the court may exercise its discretion under CPR rule 3.1(2) to extend time in favour of the claimant if there is a good reason for doing so. Finally, even if there is a good reason for extending time, section 31(6) gives the court the discretion to refuse permission or relief if it considers that the granting of relief sought would be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration. In other words, at the third stage, third-party interests and the interests of the public body are capable of overriding a good reason for extending time.

  English (above n 97) paras 21–23.   R v Dairy Produce Quota Tribunal for England and Wales, ex p Caswell [1990] 2 AC 738.

99 100

Applications for Permission  83 1.  When Does Time Start to Run? It is well established that this time limit runs from the date when grounds of challenge arose and not from the date when the claimant first learned of the decision under challenge.101 This is an objective test that takes no account of when the claimant became aware of those grounds. Often it will be obvious when grounds to make the claim arose. Usually time will run from the date of the challenged decision. However, the position is more complicated where the claimant objects to the outcome of a decision-making process with more than one stage. In R (Burkett) v Hammersmith and Fulham LBC,102 the question for the House of Lords was whether the limitation period began when a local planning authority resolved to grant outline planning permission or instead when it actually granted the planning permission. Their Lordships held that it would place claimants in an intolerable position of they had to challenge the authority’s resolution to act. First, it is necessary to have a ‘clear and straightforward interpretation [of the limitation period] which will yield a readily ascertainable starting date’.103 Second, since preparing a claim for judicial review is expensive, it would be unfair to oblige claimants to seek judicial review of a mere resolution that does not affect anyone’s legal position and may not ever take effect. 2.  The Judicial Review Time Limit and the Aarhus Convention So far as UK domestic courts are concerned, the requirement for ‘promptness’ means that a claim brought within three months of the contested decision may nonetheless be out of time. Due to the need for speed and certainty and the relevance of third-party interests, it is not uncommon for environmental judicial review claims to fail because of a lack of promptness.104 However, in Burkett, Lord Steyn doubted whether the promptness requirement was sufficiently certain to satisfy the ECHR. He made the following observations: This case has not turned on the obligation of a judicial review applicant to act ‘promptly’ under the rules. In these circumstances I confine my observations on this aspect to two brief matters. First, from observations of Laws J in R v Ceredigion County Council, ex p McKeown [1998] 2 PLR 1 the inference has sometimes been drawn that the three months’ limit has by judicial decision been replaced by a ‘six weeks rule’. This is a misconception. The legislative three months’ limit cannot be contracted by a judicial policy decision. Secondly, there is at the very least doubt whether the obligation to apply ‘promptly’ is sufficiently certain to comply with European Community law and the Convention for the Protection of Human Rights and Fundamental Freedoms. It is a matter for consideration whether the requirement of promptitude, read with the three months’ limit, is not productive of unnecessary uncertainty and practical difficulty. Moreover, Craig, Administrative Law, has pointed out, at p 794: ‘The short time limits may, in a paradoxical sense, increase the amount of litigation against the administration. An individual who believes that the public body has acted ultra vires now has the strongest incentive to seek a judicial resolution of the matter immediately, as opposed to attempting a negotiated solution, quite simply because if the individual forbears from suing he or she may be deemed not to have applied promptly or within the three-month time limit.’105   See, eg, R v Secretary of State for Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121.   Burkett (above n 80). 103   Ibid, para 45 (Lord Steyn). 104   See, eg, R (on the Application of Finn-Kelcey) v Milton Keynes Borough Council [2008] EWHC 1650 (Admin), [2009] Env LR 4. 105   Burkett (above n 80) para 53. 101 102

84  The Claim for Judicial Review Similarly Lord Hope stated: I share my noble and learned friend’s doubt as to whether the provision in CPR r 54.5(1) that the claim form must be filed ‘promptly’ is sufficiently certain to comply with the right to a fair hearing within a reasonable time in article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, in that respect, also with European Community law. But, as his point may have some implications for the law and practice of judicial review in Scotland and as the current state of the law and practice in Scotland might be of some interest if rule 54.5(1) were to be reformulated, I should like to add these comments. The principle of legality, which covers not only statute but also unwritten law, requires that any law or rule which restricts Convention rights must be formulated with sufficient clarity to enable the citizen to regulate his conduct. He must be able, if need be with appropriate advice, to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. The problem is that the word ‘promptly’ is imprecise, and the rule makes no reference to any criteria by reference to which the question whether that test is satisfied is to be judged.106

These warnings are proving to be well-founded. Two recent cases – one European Court of Justice (ECJ) decision and one decision of the Aarhus Convention Compliance Committee – call into question whether it is permissible for a claim to be dismissed during the currency of the three-month time limit for a lack of promptness. First, the ECJ has ruled that the requirement to bring public procurement proceedings ‘promptly and in any event within three months’ offends against the procurement legislation. The decision in Uniplex (UK) Ltd v NHS Business Services Authority107 concerned regulation 47(7)(b) of the Public Contracts Regulations 2006, which applies the usual judicial review timescale to the bringing of proceedings by disappointed tenderers. Directive 89/665/EEC108 requires effective review of procurement decisions. The decision clearly has important implications for applications for judicial review generally, at least in areas concerning EU law, such as environmental impact assessment. The ECJ held: Article 1(1) of Directive 89/665 precludes a national provision, such as that at issue in the main proceedings, which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.109

This was because: (a) the effectiveness of the public procurement regime can be realised only if the periods for bringing proceedings start to run from the date when the claimant knew, or ought to have known, of the alleged infringement; and (b) the ability of the Court to dismiss a claim brought within three months on the basis that it was not brought ‘promptly’ was contrary to the principle of certainty, which is enshrined in EU law. The ECJ’s reliance on generally applicable principles of EU law (effectiveness and legal certainty) in reaching these conclusions suggests that it might well take the same approach to CPR rule 54.5 in the context of environmental judicial review claims involving directly effective EU law such as the EIA Directive.

  Ibid, paras 59–60 (references omitted).   Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority [2010] 2 CMLR 47. 108   [1989] OJ L395/33. 109   Uniplex (above n 107) para 43. 106 107

Applications for Permission  85 In September 2010, a similar position was taken by the Aarhus Convention Compliance Committee in respect of the Port of Tyne communication: The Committee finds that the three months requirement specified in Civil Procedure Rule 54.5(1) is not as such problematic under the Convention, also in comparison with the time limits applicable in other Parties to the Convention. However, the Committee considers that the courts in E&W have considerable discretion in reducing the time limits by interpreting the requirement under the same provision that an application for a judicial review be filed ‘promptly’. This may result in a claim for judicial review not being lodged promptly even if brought within the three months period. The Committee also considers that the courts in E&W, in exercising their judicial discretion, apply various moments at which a time may start to run, depending on the circumstances of the case. The justification for discretion regarding time limits for judicial review, the Party concerned submits, is constituted by the public interest considerations which generally are at stake in such cases. While the Committee accepts that a balance needs to be assured between the interests at stake, it also considers that this approach entails significant uncertainty for the claimant. The Committee finds that in the interest of fairness and legal certainty (i) it is necessary to set a clear minimum time limit within which a claim should be brought, and (ii) time limits should start to run from the date on which a claimant knew, or ought to have known of the act, or omission, at stake. As was pointed out with regard to the costs of procedures, the Party concerned cannot rely on judicial discretion of the courts to ensure that the rules for timing of judicial review applications meet the requirements of article 9, paragraph 4. On the contrary, reliance on such discretion has resulted in inadequate implementation of article 9, paragraph 4. The Committee finds that by failing to establish a clear minimum time limit within which claims may be brought and to set a clear and consistent point at which time starts to run, ie, the date on which a claimant knew, or ought to have known of the act, or omission, at stake, the Party concerned has failed to comply with the requirement in article 9, paragraph 4, that procedures subject to article 9 be fair and equitable.110

The effect of Uniplex has already been considered in the context of judicial review. In R (Pampisford Estate Farms) v Secretary of State for Communities and Local Government,111 Coulson J considered that a claim for judicial review in respect of an allegedly deficient environmental statement had not been made promptly in accordance with CPR rule 54.5(1). The claimant relied on the opinion of Advocate General Kokott in Uniplex (the ECJ judgment not having been delivered at the time of the hearing), and Coulson J recognised that ‘on one view of the Advocate General’s opinion, there may be a clash between her remarks and CPR 54.5(1), the requirement for the claimant to act promptly’.112 However, he concluded that his view on promptness was ‘unaffected by the opinion in Uniplex, which cannot as a matter of EC law overturn on its own the statutory basis of CPR 54.5, and was not concerned with a situation in which a lack of promptness could have a significant adverse effect on numerous other parties’.113 Should the decision in Uniplex spill over into judicial review, it is important to note the restrictive way in which Uniplex has been applied in the public procurement context. The 110  Findings and Recommendations of the Aarhus Convention Compliance Committee with regard to Communication Accc/C/2008/33 concerning Compliance by the United Kingdom, http://www.unece. org/‌env/‌pp/‌compliance/‌C2008-33/‌Findings/‌C33_Findings.pdf, paras 138–39 (notes omitted). 111   R (on the Application of Pampisford Estate Farms Ltd) v Secretary of State for Communities and Local Government [2010] EWHC 131 (Admin). 112   Ibid, para 17. 113   Ibid, para 58. In R (Buglife: the Invertebrate Conservation Trust) v Medway Council [2011] EWHC 746 (Admin), HH Judge Anthony Thornton QC held that the decision in Uniplex ‘applied general and core principles of community law which are applicable to all directives. The requirement of certainty and the application of that requirement to limitation periods imposed on those seeking to enforce their rights arising under the directive in a national court has general application to such enforcement proceedings arising out of any directive’.

86  The Claim for Judicial Review leading case is Sita UK v Greater Manchester Waste Disposal Authority,114 which establishes four key points: (i) The court should exercise its discretion so as to ensure that time runs for three months starting with the date on which the claimant knew, or ought to have known, of the alleged infringement. (ii) Time starts running when the claimant has knowledge of the infringement; it is not necessary for him to have knowledge that loss or damage has been caused. (iii) The claimant need only know the details of the infringement in the ‘broad sense’ for time to start to run. (iv) The court retains a discretion under the Public Contracts Regulations 2006 to extend time beyond the three-month time limit. Thus even if the judicial review time limits require modification so that the time limit starts from the date of knowledge or presumed knowledge, claimants will still need to act swiftly because Sita suggests that relatively little knowledge of the infringement will be required to start the clock ticking. 3.  Promptness and Planning Decisions The issue of delay in bringing proceedings is especially important in the environmental context because frequently the claimant seeks to challenge a decision that has important implications for third parties, such as developers who have been granted planning permission or factories who have been granted a permit under the integrated pollution and prevention and control regime. Thus considerable prejudice may be caused to third parties if proceedings are not initiated expeditiously. As Keene LJ explained in R (Finn-Kelcey) v Milton Keynes BC, The need for a claimant seeking judicial review to act promptly arises in part from the fact that a public law decision by a public body normally affects the rights of parties other than just the claimant and the decision-maker. As I put it in Hardy v Pembrokeshire County Council [2006] EWCA Civ 240, [10]: ‘It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly.’ . . . The importance of acting promptly applies with particular force in cases where it is sought to challenge the grant of planning permission . . . Simon Brown J (as he then was) emphasised the need to proceed ‘with greatest possible celerity’ . . . Once a planning permission has been granted, a developer is entitled to proceed to carry out the development and, since there are time limits on the validity of a permission, will normally wish to proceed to implement it without delay.115

An example of extreme delay leading to prejudice is provided by R (Jeremy Guiney) v London Borough of Greenwich.116 The applicant applied to set aside a residential planning permission 15 months after it was granted. Most of the units had been built and sold by the time of the challenge. Although the original challenge has been to the whole permission, it 114   Sita UK Limited v Greater Manchester Waste Disposal Authority [2010] EWHC 680 (Ch), [2010] 2 CMLR 48. The Court of Appeal upheld this approach: [2011] EWCA Civ 156. 115   Finn-Kelcey (above n 104) paras 21–22. 116   R (on the Application of Jeremy Guiney) v London Borough of Greenwich [2008] EWHC 2012 (Admin).

Applications for Permission  87 was later confined to those parts of the residential development that had not yet been completed. HHJ Mackie QC held that although he would have quashed the permission on the ground of failures in the consultation process, in this case there was overwhelming prejudice to the developer and the difficulty that he could not quash part only of the permission. Since the developer was not responsible for the failings in the local authority’s consultation process, it would not be appropriate to grant relief given the applicant’s delay. Although there is no hard and fast rule that judicial review challenges to the grant of planning permission must be brought more expeditiously than other judicial review claims, hardship to third-party developers is a factor that the courts are entitled to have regard to when considering whether a claim has been brought promptly. In Finn-Kelcey, referring to a line of authority holding that permission for judicial review will not generally be granted to a claimant seeking to challenge planning permission if the application is lodged more than six weeks after the permission was granted, Keene LJ stated: I would respectfully agree that, where the CPR has expressly provided for a three-month time limit, the courts cannot adopt a policy that in judicial review challenges to the grant of a planning permission a time limit of six weeks will in practice apply. However, that does not seem to me to rob the point made by Simon Brown J and others of all of its force. It may often be of some relevance, when a court is applying the separate test of promptness, that Parliament has prescribed a sixweeks time limit in cases where the permission is granted by the Secretary of State rather than by a local planning authority, if only because it indicates a recognition by Parliament of the necessity of bringing challenges to planning permissions quickly. There are differences between the two situations: for example, where the Secretary of State grants a permission, an objector is entitled to be notified of the decision, which is not the case where a local planning authority grants the permission. Thus where in the latter case an objector is for some time unaware of the local authority decision, the analogy is less applicable . . . My point is simply that, while there is no ‘six weeks rule’ in judicial review challenges to planning permissions, the existence of that statutory limit is not to be seen as necessarily wholly irrelevant to the decision as to what is ‘prompt’ in an individual case. It emphasises the need for swiftness of action.117

What satisfies the requirement of promptness will therefore vary from case to case. Whether a claim was commenced promptly or not will depend on all the relevant circumstances.118 On the facts, the claim in Finn-Kelcey was dismissed for lack of promptness in circumstances where, for no good reason, the claim had been made just within the threemonth time limit for bringing judicial review proceedings.119 This decision can be contrasted with Michael Harrison J’s decision in R (Norton) v London Borough of Lambeth,120 in which a claim made on the last day of the three-month period was allowed to proceed because the claimant had fully explained the delay, and the claim was meritorious.

117   Finn-Kelcey (above n 104) para 24, citing R v Ceredigion County Council, ex p McKeown [1997] COD 463. Although in Burkett (above n 80) the House of Lords rejected the application of an absolute six-week rule in respect of challenging planning permissions. 118   Finn-Kelcey (above n 104) [2008] EWCA Civ 1067, para 25. 119   See also R (on the Application of Derwent Holdings Ltd) v Trafford BC [2009] EWHC 1337 (Admin), where permission was refused in respect of a claim brought on the last day of the three-month period because there was no explanation for the delay; and R (on the Application of Faisaltex Ltd) v Crown Court at Preston [2008] EWHC 2832 (Admin), [2009] 1 WLR 1687, where the claim was held not to be prompt when issued ‘a few days within the three-months period’ given the absence of a justification for the delay. 120   R (on the Application of Norton) v London Borough of Lambeth [2007] EWHC 3476 (Admin).

88  The Claim for Judicial Review 4.  The Impact of Wells on Delay On one view, the ECJ decision in Wells v Secretary Of State for Transport, Local Government and the Regions121 suggests that a challenge alleging a breach of the EIA Directive may be brought at any stage of the planning process and not merely within three months of the impugned decision. The case concerned an old mining permission deemed to have been granted under Part III of the Town and Country Planning Act 1947 and subject by statute in 1991 to the consideration of further conditions. In 1994 conditions were imposed, but following an appeal they were revised in 1997, leaving some conditions to be determined subsequently. The claimant wanted to challenge the lack of environmental assessment at the time of the 1997 decision but only commenced proceedings shortly before the new conditions were finally determined in 1999. The government argued that Mrs Wells should have brought her challenge earlier, but the ECJ dismissed this argument and held that she could bring her challenge to the 1997 decision at any time before the final stages of the planning process were complete (ie, 1999): As to that submission, the final stage of the planning consent procedure was not completed when the claimant in the main proceedings submitted her request to the Secretary of State. It cannot therefore be contended that revocation of the consent would have been contrary to the principle of legal certainty.122

In Cooper v Attorney General, the Court of Appeal suggested that there was a tension between this passage of the judgment in Wells and what the ECJ went on to say about remedying the failure to carry out an environmental assessment.123 That subsequent passage in the ECJ judgment specifically preserved the procedural autonomy of Member States in matters such as limitation periods, subject to the principle of equivalence and effectiveness.124 Similarly, Arden LJ in her obiter dicta preferred to confine Wells to its own facts in R (Condron) v Merthyr Tydfil CBC, again suggesting that there was an ‘inherent conflict within the decision’.125 In her view, it is an inevitable result of having limitation periods that some claimants will be barred. Secondly, regard also must be had to the purposes of EIA Directive. In that regard, the right given to members of the public to have access to a review procedure to enable them to challenge the legality of decisions made about environmental assessments is a subsidiary aspects of the Directive, and there was ‘nothing expressly to suggest that members of the public should be enabled to take steps designed to lead to the invalidation of decisions when they can no longer be challenged under domestic law’.126 Thirdly, any remedies must as a general principle be proportionate to the aim to be achieved, and it ‘may be disproportionate to allow a challenge at a late stage when considerable expenditure and management resources have been incurred in meeting the conditions’.127 Finally, on the facts of Wells there may well have been justification for an extension of the domestic time limit in any event. Accordingly, Arden LJ concluded that there was 121   Case C-201/02 R (on the Application of Delena Wells) v Secretary of State for Transport, Local Government and the Regions [2004] ECR 1-723. 122   Ibid, para 60. 123   Cooper v Attorney General [2010] EWCA Civ 464, [2010] 3 CMLR 28, para 94. 124   Wells (above n 121) paras 62–67. 125   R (on the Application of Condron) v Merthyr Tydfil CBC [2010] EWCA Civ 534, [2010] 3 CMLR 32, paras 47 and 53. 126   Ibid, para 53. 127  Ibid.

Applications for Permission  89 considerable doubt whether the claimant would be entitled by virtue of the decision in Wells to bring a claim for judicial review outside the domestic time limit.128 This attempt to confine the decision in Wells to its own facts is, however, based on a misunderstanding of the principle expounded by the ECJ. As Wilson LJ explained, ‘the pendency of reserved matters saved the application from defeat on grounds of delay.’129 Thus, the case concerned a challenge to an ongoing decision-making process rather than to a project that had been already implemented and later seen to have required an environmental assessment. The better view, therefore, is that the EIA Directive does indeed permit a claim to be brought at any stage of a multi-stage consent process. As the ECJ pointed out, although hardship may be caused to developers by claims brought at the later stage of the multi-stage consent process, this is not a breach of the requirement of legal certainty because the consent procedure is not complete, and there is no final decision being revoked. 5.  Extensions of Time The courts have permitted an extension of the limitation period in the following circumstances: (i) when material matters were justifiably unknown to the claimant;130 (ii) the delay was attributable to the claimant’s having pursued all alternative remedies;131 (iii) where delay was caused by sensible, reasonable actions of the claimant which have caused no prejudice;132 and (iv) where the claim raises important matters of public interest.133 Difficulties in obtain funding for a claim have sometimes justified delay in commencing proceedings.134 However, two recent cases suggest that the courts will look closely to see whether funding issues really do justify delay. The first case is the decision of Flaux J in English.135 The claimant in English was a relatively wealthy solicitor who also owned a significant amount of local land. He sought permission for judicial review of the decision to grant planning permission for 28 detached houses at the National Football Centre in Staffordshire. His counsel had drafted the statement of facts and grounds on 20 July 2010, but the claim had not in fact been issued until 26 August 2010 because the claimant had wished to obtain after-the-event insurance, and his insurers had demanded to see the relevant documents and counsel’s advice. Flaux J held that this did not excuse the claimant’s lack of promptness, given the claimant’s relative wealth: That point might have some force coming from a litigant who did not have much in the way of financial resources, but I am not convinced that someone in the position of this claimant, who sold his company for a substantial sum of money and is a significant owner of local land, needed the protection of ATE insurance before issuing proceedings. Of course he was entitled to obtain such insurance if he wished to, but in my judgment that should not have held up the issue of proceedings.   Ibid, para 55.   Ibid, para 61. 130   R v Department of Transport, ex p Presvac Engineering Ltd (1992) 4 Admin LR 121. 131   R v Rochdale Metropolitan Borough Council, ex p Cromer Ring Mill Ltd [1982] 3 All ER 761. 132   R v Commissioner for Local Administration, ex p Croydon LBC [1989] 1 All ER 1033. 133   R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482. 134   R v Stratford on Avon District Council, ex p Jackson [1985] 1 WLR 1319. 135   Above n 97. 128 129

90  The Claim for Judicial Review Accordingly, I consider that these proceedings were not issued promptly. There was certainly not the swiftness of action referred to at the end of the passage from the judgment of Keene LJ in the Finn-Kelcey case quoted above. It is irrelevant in that context whether or not that lack of promptness has caused specific prejudice to the defendant or an interested party, although despite the claimant’s arguments to the contrary, I do consider that any delay in commencing the construction may imperil the intended use of the NFC during the 2012 Olympics and that it follows that NFC Ltd can show prejudice caused by the lack of promptness of the claimant in bringing these proceedings. It follows that I would have concluded in any event that this application for permission should not be allowed, because the claim form had not been filed promptly. The point is in fact academic because, for the reasons I have given, I do not consider that any of the grounds put forward by the claimant is arguable.136

The second case on delay and funding is the decision in R (Patel) v Lord Chancellor,137 which concerned a challenge by the widow of one of the 7 July suicide bombers to the decision of the Lord Chancellor refusing to grant her exceptional funding for legal representation at the inquest into the victims of the bombings, which occurred in London on 7 July 2005. The Divisional Court ruled against the claimant on the merits but held that in any event her claim had not been made within the three-month time limit. It found that her application for public funding to bring the judicial review claim had not been pursued with sufficient vigour. It must have been abundantly clear to the claimant that the need to act promptly was imperative and that the effect of delay might seriously damage the timely conduct of the inquest. Accordingly, her attempts to obtain public funding did not excuse her delay. The courts have also held that delay will not be excused by tardiness on the part of the claimant’s non-legal advisor138 or time taken pursuing avenues of political redress such as organising a lobby of Parliament before applying for permission.139

VI.  Procedural Exclusivity: O’Reilly v Mackman

An important procedural question in any environmental claim is whether the claimant is required to proceed by way of a claim for judicial review or whether he or she can make an ordinary Part 7 or Part 8 claim, thereby escaping the short judicial review time limit. In 1983 the House of Lords held that public law issues should almost always be litigated in a claim for judicial review. As will be seen below, a sharp distinction between public and private law could not be drawn at a procedural level, and the modern position is much more flexible. In O’Reilly v Mackman, the House of Lords limited the circumstances in which a declaration or injunction could be sought in a public law case outside the newly created judicial review procedure in the Rules of the Supreme Court (RSC) Order 53.140 Lord Diplock held that prior to the 1977 reforms, the procedural limitations affecting the prerogative orders had justified the use of the declaration in public law disputes. However, the reformed Order   English (above n 97) paras 55–56.   R (on the Application of Patel) v Lord Chancellor [2010] EWHC 2220 (Admin). 138   R v Tavistock General Commissioners, ex p Worth [1985] STC 564. 139   R v Secretary of State for Health, ex p Alcohol Recovery Project [1993] COD 344; and R v Redbridge LBC, ex p G [1991] COD 398. 140   O’Reilly v Mackman [1983] 2 AC 237. 136 137

Procedural Exclusivity: O’Reilly v Mackman  91 53 removed these defects by making provision for disclosure, allowing damages to be claimed in the same action and permitting cross-examination. The reformed procedure also provided safeguards for public bodies, in particular the requirement of permission and the short three-month time limit. Lord Diplock said that it would be an abuse of process to try to circumvent these safeguards by seeking a declaration outside the judicial review procedure. He held that in public law matters, claimants must proceed by way of an application for judicial review; they cannot sue by writ action: Now that those disadvantages to applicants have been removed and all remedies for infringement of rights protected by public law can be obtained upon an application for judicial review, as can also remedies for infringements of rights under private law if such infringements should also be involved, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities.141

Lord Diplock stated that there were exceptions to procedural exclusivity, ‘particularly where the invalidity of the decision arises as a collateral issue in a claim for infringement of a right of the plaintiff arising under private law’.142 In the wake of O’Reilly, the courts struggled with this exception. First, because of the difficulty of deciding whether a particular interest should be characterised as a private right or not.143 Second, it was unclear whether the presence of a private right automatically exempted the claimant from using RSC Order 53 or whether the presence of a private right was merely one factor that could lead the court to make a discretionary exception to the exclusivity principle. The difficulties presented by claims involving mixed public and private law issues are exemplified by Roy v Kensington & Chelsea & Westminster Family Practitioners Committee.144 The defendant health authority reduced the applicant doctor’s salary by 20 per cent because it maintained that he had not devoted sufficient time to National Health Service (NHS) patients as opposed to private ones. The power to do so was contained in NHS regulations. The applicant sued by writ, arguing that this was a breach of contract, but the defendant contended that he should have proceeded by an application for judicial review. (His application would then have failed, as he was outside the time limit.) The House of Lords allowed his private action to proceed. Lord Lowry suggested two possible interpretations of the private rights exception in O’Reilly: The ‘broad approach’ was that the rule in O’Reilly v Mackman did not apply generally against bringing actions to vindicate private rights in all circumstances in which those actions involved a challenge to a public law act or decision, but that it merely required the aggrieved person to proceed by judicial review only when private law rights were not at stake. The ‘narrow approach’ assumed that the rule applied generally to all proceedings in which public law acts or decisions were challenged, subject to some exceptions when private law rights were involved. There was no need in O’Reilly v Mackman to choose between these approaches, but it seems clear that Lord Diplock considered himself to be stating a general rule with exceptions. For my part, I much prefer the broad approach, which is both traditionally orthodox and consistent with the Pyx Granite   Ibid, 285 (Lord Diplock).  Ibid. 143   See, eg, Cocks v Thanet District Council [1983] 2 AC 286; O’Rourke v Camden London Borough Council [1998] AC 188; and Trustees of Dennis Rye Pension Fund v Sheffield City Council [1998] 1 WLR 840. 144   Roy v Kensington & Chelsea & Westminster Family Practitioners Committee [1992] 1 AC 624. 141 142

92  The Claim for Judicial Review principle . . . It would also, if adopted, have the practical merit of getting rid of a procedural minefield. I shall, however, be content for the purpose of this appeal to adopt the narrow approach, which avoids the need to discuss the proper scope of the rule, a point which has not been argued before your Lordships and has hitherto been seriously discussed only by the academic writers.145

The ‘broad view’ has been preferred in subsequent cases, so the rule from O’Reilly v Mackman is inapplicable in cases involving private rights.146 The principle of procedural exclusivity is inconsistent with the modern procedural trend against setting threshold traps for unwary litigants. It is unjust that what is in essence a procedural formality should frustrate claimants’ legitimate substantive grievances. Leading commentators contended over twenty-five years ago that procedural exclusivity was a step backwards to the old system of forms of action whereby a claimant may fail solely as a result of adopting the wrong form of initiating process.147 Shortly before CPR Part 54 came into force, the Court of Appeal had an opportunity to revisit the rule in O’Reilly v Mackman and to examine how it ought to apply in the context of the CPR. In Clark v University of Lincolnshire and Humberside,148 the Court of Appeal suggested that the CPR 1998 gives the courts powers that are functionally equivalent to but avoid the rigid formalism of O’Reilly v Mackman. The claimant was a student who had been awarded a mark of zero for coursework that she had plagiarised. Her claim was framed in contract, and it was eventually stayed because the parties agreed to mediate; nevertheless, the court’s remarks concerning the effect of the CPR on procedural exclusivity are illuminating. The Court of Appeal held that a claim against a public body for breach of contract should not be struck out merely because an application for judicial review might have been a more appropriate procedural route. The Court highlighted the fact that the CPR enables judges to prevent unfair exploitation of the longer limitation periods in ordinary civil suits because claims can be struck out notwithstanding the currency of the limitation period: While in the past, it would not be appropriate to look at delay of a party commencing proceedings other than by judicial review within the limitation period in deciding whether the proceedings are abusive, this is no longer the position . . . If proceedings of a type which would normally be brought by judicial review are instead brought by bringing an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can take into account whether there has been unjustified delay in initiating proceedings.149

Delay is now also a relevant factor in applications for summary judgment. Under CPR Part 24, a court may grant summary judgment to the defendant in an ordinary civil suit if in all the circumstances, including the availability of judicial review, the proceedings amount to an abuse of process, or because of lapse of time or other circumstances no

  Ibid, 653.   See, eg, British Steel v Customs & Excise Commissioners (No 1) [1996] 1 All ER 1002. 147  HWR Wade, ‘Public Law, Private Law and Judicial Review’ (1983) 99 Law Quarterly Review 166; and JA Jolowicz, ‘The Forms of Action Disinterred’ [1983] Cambridge Law Journal 15. 148   Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988. 149   Ibid, 1997 (Lord Woolf MR). At 1993 Sedley LJ described the differing limitation periods as ‘the single important difference between judicial review and civil suit’. It was largely this difference that gave birth to the principle of exclusivity, because of Lord Diplock’s concern that actions begun by writ could be commenced at the very end of the limitation period, conferring a significant tactical advantage on the applicant and causing considerable disruption to the public administration and third parties: O’Reilly v Mackman (above n 140) 284. 145 146

Procedural Exclusivity: O’Reilly v Mackman  93 worthwhile relief could be expected.150 Lord Woolf MR remarked that the advent of Part 24 means ‘a markedly different position from that which existed when O’Reilly v Mackman . . . was decided’ because Part 24 relieves public bodies of the burden of defending the sort of hopeless claims that Lord Diplock was concerned about in O’Reilly.151 Lord Woolf MR also noted that CPR Part 1 applies to ordinary actions involving issues of public law. That provision obliges both parties to assist the court in furthering the overriding objectives of the CPR, including dealing with cases fairly and expediently.152 Clark was decided prior to the entry into force of CPR Part 54; nevertheless, the judgment provides valuable insight into the operation of the rule in O’Reilly v Mackman in the context of the CPR. Sedley LJ described the new approach thus: The CPR 1998 have given substance to [the suggestion] that the mode of commencement of proceedings should not matter, and that what should matter is whether the choice of procedure (which will now be represented by the identification of the issues) is critical to the outcome.153

In Clark the Court of Appeal couched abuse of process in terms of whether the ‘protection provided by Order 53 has been flouted in circumstances which are inconsistent with . . . Part 1 [of the CPR]. Those principles are now central to determining what is due process.’154 The difficulty with Clark is that the doctrine of abuse of process is employed here for the protection of public authorities. However, the touchstone of procedural abuse, viz Part 1 (‘the overriding objective’) of the CPR, makes no mention of the circumstances in which public authorities might need protection. As such, Clark has been criticised for giving ‘very uncertain guidance’ to claimants, encouraging those who lack a recognisable private law right to believe that they may nevertheless seek a declaration by way of ordinary procedure since the court’s powers to strike out and give summary judgment afford public authorities sufficient protection.155 There are many examples of the new, flexible approach that Clark created.156 However, exclusivity is not dead. In Carter Commercial Development Ltd v Bedford Borough Council,157 a developer’s planning appeal was rejected by the Planning Inspectorate as it was out of time. The developer disputed this but waited eight months before challenging the decision by means of a Part 8 claim for a declaration. In a robust judgment, Jackson J held that the claim ought to have been made using the Part 54 judicial review procedure. The developer had chosen to proceed under Part 8 in order to circumvent the three-month time limit for judicial review, and accordingly, its claim was an abuse of process.158

150   Clark (above n 148) 1997 (Lord Woolf MR). Prior to the CPR, the court would not intervene during the currency of the limitation period: see Birkett v James [1978] AC 297. 151   Clark (above n 148) 1996. 152   CPR rr 1.3 and 1.1(2)(d). In addition, Lord Woolf MR gave the example of a stay being ordered in accordance with CPR r 1.4(2)(e) if it would be desirable for the claimant to use an internal disciplinary procedure before coming to court: ibid. 153   Clark (above n 148) 1993. 154   Ibid, 1998 (Lord Woolf MR). 155   T Cornford, ‘The New Rules of Procedure for Judicial Review’ [2005] 5 Web Journal of Current Legal Issues. 156   See, eg, R(on the Application of Wilkinson) v Broadmoor Special Hospital Authority [2001] EWCA Civ 1545, [2002] 1 WLR 419, para 62; R (on the Application of P) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002 [120]; D v Home Office [2005] EWCA Civ 38, [2006] 1 WLR 1003, para 104; Rhondda Cynon Taff CBC v Watkins [2003] EWCA Civ 129, [2003] 1 WLR 1864; and Bunney v Burns Anderson Plc [2007] EWHC 1240, para 25. 157   Carter Commercial Developments v Bedford BC [2001] EWHC Admin 669. 158   Ibid, paras 29–34.

94  The Claim for Judicial Review A related question concerns the extent to which an individual may raise public law points collaterally as a defendant in ordinary civil or criminal proceedings. In Boddington v British Transport Police,159 the House of Lords held that as a matter of principle the rule of law required that an individual should generally be able to raise the invalidity of an administrative measure, such as the bylaw, or of an administrative act as a defence to a criminal charge.160 This general principle is, however, subject to exceptions. In R v Wicks,161 the defendant built his house too high, in breach of planning control, and the local planning authority issued an enforcement notice ordering him to remove the offending storey. The defendant’s statutory appeal to the Secretary of State was rejected, and so in the subsequent criminal enforcement proceedings he tried to raise the defence that the enforcement notice was ultra vires. The House of Lords held that he could not challenge the vires of the enforcement notice collaterally in this way. Their Lordships stated that although there is a presumption in favour of collateral challenge, in some cases the relevant statute may exclude collateral attack. As Lord Hoffmann explained, the question whether collateral attack is permitted . . . must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act [ie, the enforcement notice in this case] in question is not open to challenge on any ground available in public law . . . On the other hand, the statute may upon its true construction require an act which appears formally valid . . . In such a case, nothing but the formal validity of the act will be relevant . . .162

On true construction, the Town and Country Planning Act 1990 did exclude collateral attack given the fact that recipients of enforcement notice had an appeal right and because there was a need for expediency in planning law. *Issues relating to collateral challenge frequently arise in environmental law given the large number of criminal offences concerning environmental protection. For example, in R v Searby,163 the defendant appealed against the determination of a preliminary issue arising in his trial on charges under the Food and Environment Protection Act 1985 of selling and storing pesticides without ministerial approval, contrary to the Control of Pesticides Regulations 1986. He had sought to challenge the validity of control arrangements issued under the Regulations on the public law ground that the UK system of approval for parallel imports placed a disproportionate restriction on the free movement of goods, contrary to the EC Treaty. The Court of Appeal held that the defendant should have been permitted to raise the public arguments by way of defence to the criminal charge. The case was not a simple licence case, there was no specific mode for challenging the provisions and the complaint was against a general scheme rather than a provision affecting only the defendant. In those circumstances, Parliament could not be said to have legislated to preclude collateral challenges to the subordinate legislation in criminal proceedings.

  Boddington v British Transport Police [1999] 2 AC 143.   For a similar statement in relation to public law arguments raised as a defence to civil proceedings, see Wandsworth v Winder [1985] AC 461. 161   R v Wicks [1998] AC 92. 162   Ibid, 117. 163   R v Searby [2003] EWCA Crim 1910, [2003] 3 CMLR 15. 159 160

Interim Applications  95 VII.  Interim Applications

The Administrative Court has the power to make interim orders, such as orders for disclosure,164 further information, cross-examination and consent orders to dispose of the proceedings, both as part of its inherent jurisdiction and pursuant to the CPR. Normally, such interim orders are sought by means of application under CPR Part 23 on form NF244, accompanied by any necessary written evidence in support.

VIII.  Substantive Hearings

In England and Wales, claims for judicial review are heard by the specialist Administrative Court. It is formally part of the Queen’s Bench Division of the High Court, although it has its own court office – the Administrative Court Office. The substantive hearing of a judicial review claim will normally take place before a single judge sitting in open court, unless otherwise directed. The burden of proof lies on the claimant to establish that the grounds for judicial review exist.165 The standard of proof is the civil standard of the balance of probability.166 Sometimes the court will ‘roll up’ the permission and final hearing stages within a single hearing in order to save time and costs. This is common in urgent cases. The usual order is for the case to be listed for permission with the substantive hearing to follow, if permission is granted. In practice though, it is usual at a rolled-up hearing for permission and substance to be considered together, effectively eliminating the permission stage.

  See below ch 6.   R v Reigate Justices, ex p Curl [1991] COD 66.   R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74.

164 165 166

5 Standing I.  The Nature and Purpose of Standing Rules

Judicial review proceedings may be brought only if the claimant has standing. The term ‘standing’ connotes the entitlement of a group or individual to apply to the courts for relief. Standing should be distinguished from the doctrines of justiciability, ripeness, mootness and arguability. Standing is concerned with who may bring a claim, whereas ripeness and mootness are concerned with when a claim may be brought, and justiciability concerns what type of issues are suitable for judicial determination. The law of standing has important consequences: Decisions to accord or deny standing to certain individuals or groups may determine not only the extent of the judicial case load, but also the manner in which legal argument is formulated and hence the type of question which is remitted to the judicial branch of government.1

In addition, the obvious effect of standing rules is that whenever someone is thus excluded because of a lack of standing, the law regards it as preferable that an illegality should continue than that the person excluded should have access to the courts. The first section of this chapter examines the arguments for and against liberal standing rules; it considers the distinction between public interest, associational and surrogate challenges, and it highlights the influence that rival theories of public law have on the scope of standing rules. Section II analyses the manner in which the sufficient interest test for standing has been applied by the courts, particularly in environmental challenges. Section III examines the scope of the automatic right of standing for nongovernmental organisations (NGOs) promoting environmental protection conferred by the Aarhus Convention2 and the EU Directives that implement it. Section IV looks at the more restrictive rules of standing that apply in respect of claims under the Human Rights Act (HRA) 1998. Section V examines the standing test of ‘person aggrieved’, which applies to statutory planning appeals. Finally, section VI explores the related question of when third-party interventions will be permitted in environmental litigation.

1  I Hare, ‘The Law of Standing in Public Interest Adjudication’ in M Andenas (ed), Judicial Review in International Perspective, vol II (The Hague, Kluwer Law International, 2000) 301. 2   The UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. See above ch 2 for detailed discussion of the Convention.

The Nature and Purpose of Standing Rules  97

A.  Theories of Standing 1.  Policy Arguments Whether standing rules should be liberal or restrictive gives rise to an intense policy debate. Schiemann has distinguished between two models of standing – an ‘open’ system (with liberal rules of standing) and a ‘closed’ system (with more restrictive rules).3 The arguments in favour of a ‘closed’ system are said to be that it: a) protects public bodies from harassment by busybodies bringing bad and spurious claims; b) ensures that the case is properly presented; c) ensures that the courts do not deal with non-justiciable questions; and d) rations scarce judicial resources. These arguments reflect important concerns, but it is questionable whether the doctrine of standing is the proper vehicle for addressing points (a)–(c). Public bodies are already protected from claims with no real prospect of success by the test of arguability, which is applied at the permission stage of a judicial review claim.4 In addition, persistent busy­ bodies can be controlled via the rules on vexatious litigants.5 It is not therefore necessary to employ the doctrine of standing in order to protect public bodies from hopeless claims and vexatious claimants. The assertion that standing rules ensure proper presentation of a case is also doubtful. A personal interest in the outcome of a case does not transform someone into a superior advocate, nor does it ensure that they will seek the wisest counsel. A well-resourced environmental NGO with a wealth of expertise but no personal interest in the case may be far better placed to participate in complex environmental litigation than an inexpert, impecunious individual resident who does have a personal interest in the case. It is also wrong to argue for restrictive rules of standing on the basis that they will help to ensure that the courts do not deal with non-justiciable questions. The courts have at their disposal the separate doctrine of justiciability, which is perfectly able to ensure that the courts do not determine questions outside their proper remit. The distinction between the two doctrines is illustrated by the decision whether to grant standing to Lord Rees-Mogg, who wished to challenge the British government’s ratification of the Maastricht Treaty.6 The court granted standing to Lord Rees-Mogg because of his sincere concern for a matter of constitutional significance but declined to review the decision because the Crown’s prerogative to conclude treaties was non-justiciable. In other words, the defect in his claim concerned the subject matter of the claim rather than the identity of the claimant. There are strong countervailing arguments in favour of a more ‘open’ system. First, it is argued that liberal rules of standing may help to promote good administrative practice because under such an open system, illegality will not go unchecked for want of an appropriate claimant. If a public body acts or proposes to act ultra vires, then the public interest

  K Schiemann, ‘Locus Standi’ (1990) Public Law 342.   See above ch 4. 5  See R (on the Application of Ewing) v Office of the Deputy Prime Minister [2005] EWCA Civ 1583, [2006] 1 WLR 1260. 6   R v Secretary of State for Foreign and Commonwealth Affairs, ex p Lord Rees-Mogg [1994] QB 552. 3 4

98 Standing in lawful government ought to suffice to enable someone to initiate judicial review proceedings. As Laskin CJ observed in the Canadian Supreme Court: The substantive issue raised by the plaintiff ’s action is a justiciable one; and prima facie, it would be strange and, indeed, alarming, if there was no way in which a question of alleged excess of legislative power, a matter traditionally within the scope of the judicial process, could be made the subject of adjudication.7

Secondly, a particular problem in the environmental context is that there may not be any one individual particularly affected by ultra vires conduct. In many cases, environmental harm is diffuse and impacts on the local population generally. If standing rules were to require a private interest in the matter, then many unlawful administrative acts that adversely affect the environment would go unchallenged. 2.  Standing and the Purpose of Public Law There are also broader lessons that can be learned from the current approach to standing. Decisions about standing also reveal how the courts conceive their function in public law adjudication and how they view public law rights. As Miles has identified, there are two paradigms of public law adjudication – the dispositive justice model and the expository justice model.8 According to the dispositive justice, or dispute resolution, model, the courts’ function is to resolve individuals’ concrete grievances against the administration; and thus, general complaints by unaffected members of the public should be made in the political forum. By contrast, the expository justice model argues that rather than simply resolving concrete disputes, the courts have a duty to elucidate the law, and they engage in constitutional exegesis, setting standards based on the rule of law. A legal system with a more expository conception of public law adjudication is likely to favour more liberal rules on standing. The way in which public law norms are characterised also impacts on the question of standing. An individualist conception of public law norms sees them as rights entitling the individual to a particular relationship with the administration. Breach of the relevant norm is therefore a matter for enforcement by the person individually affected. An alternative view of public law norms is the communitarian conception, which sees public law norms as principles of good administration imposing standards with which the administration must comply. Subjecting governmental power to legal control is seen as a good to society in general because it upholds the collective public right to lawful government. Such a conception of public law norms readily supports liberal standing rules and favours public interest litigants. As will be seen, English law is increasingly reflecting an expository view of the courts’ role in public law adjudication and a communitarian conception of public law norms. Consequently, standing rules have been applied very liberally in recent years, with few claimants being refused permission for judicial review due to a lack of standing.

  Thorson v Canada (Attorney General) [1975] 1 SCR 138, 145 per Laskin J, Sct Canada.   See J Miles, ‘Standing under the Human Rights Act 1998: Theories of Rights Enforcement and the Nature of Public Law Adjudication’ (2000) Cambridge Law Journal 133. 7

8

The Sufficient Interest Test  99

B.  Public Interest Challenges: Distinguishing Public Interest, Associational and Surrogate Standing Before considering the law of standing in England it is important to distinguish associational, surrogate and public interest challenges.9 Associational standing refers to cases in which an organisation is suing on behalf of its members. This carries the particular benefit of preventing a multiplicity of proceedings. Surrogate standing concerns cases in which a pressure group represents the interests of others who may not be well-placed to bring an action themselves. A good example of a claim brought by a surrogate challenger is R v Secretary of State for Social Services, ex p Child Poverty Action Group,10 which concerned the provision of financial support to families on low incomes. In Child Poverty Action Group, unless the claimant charity had been given standing to bring a claim on behalf of those deprived of social welfare support, then the matter would not have been challenged, because the individual benefit claimants could hardly be expected to bring their own challenge, owing to their impecuniosity and illiteracy. Public interest standing refers to claims by those purporting to represent the wider public interest rather than merely that of a group with identifiable membership. Public interest challenges are particularly advantageous when brought by a body with particular expertise or experience in a given field. For example, in R v Her Majesty’s Inspectorate of Pollution, ex p Greenpeace Ltd,11 Greenpeace was described as being: . . . an entirely responsible and respected body with a genuine concern for the environment . . . who, with its particular experience in environmental matters, its access to experts in the relevant realms of science and technology (not to mention the law), is able to mount a carefully selected, focused, relevant and well-argued challenge.12

II.  The Sufficient Interest Test

A. Background The old, pre-1981 law on standing was very restrictive, as the decision in Gouriet illustrates.13 At that time, an injunction or declaration could be claimed by an individual whose private rights were affected or by an individual who had suffered special damage over and above that suffered by the public generally. The only other way to obtain a declaration or injunction was with the consent of the Attorney General in relator proceedings – proceedings brought by the Attorney General on behalf of a member of the public in order to obtain an injunction or declaration in the public interest. Relator proceedings can be brought in order to obtain an injunction to prevent a breach of the criminal law or to prevent a public body acting unlawfully. Therefore, prior to the ‘sufficient interest’ test, the   See P Cane, ‘Standing Up for the Public’ (1995) Public Law 276.   R v Secretary of State for Social Services, ex p Child Poverty Action Group [1990] 2 QB 540. 11   R v Her Majesty’s Inspectorate of Pollution, ex p Greenpeace Ltd (No 2) [1994] 4 All ER 329. 12   Ibid, 350c–j (Otton J). 13   Gouriet v Union of Post Office Workers [1978] AC 435. 9

10

100 Standing only way in which a public interest litigant could obtain an injunction or declaration was by securing the Attorney General’s consent to bring a relator action. In Gouriet, the Union of Post Office Workers was proposing to call on its members not to handle mail between the United Kingdom and South Africa for one week in January 1977 in order to protest against apartheid in South Africa. Such an interference with postal Communications constituted an offence under the Post Office Act 1953. The claimant applied to the Attorney General for his consent to act as claimant in relator proceedings for an injunction against the union, but the Attorney General refused. The House of Lords judgment raises two important points. First, their Lordships held that the Attorney General’s discretion whether to consent to relator proceedings cannot be reviewed because the power derives from the royal prerogative.14 Effectively, this gives the Attorney General an unfettered right to refuse to bring a relator action. Given that he is a member of the cabinet, the Attorney General is unlikely to give his consent in a case that would embarrass the government. The second important point concerns Lord Wilberforce’s vision of public law and the individual’s role in relation to public law. His Lordship considered that no private person has the right to represent the public in asserting public rights. Such issues can be litigated only by means of relator proceedings instituted with the consent of the Attorney General. This approach denies that individuals have any legitimate interest in ensuring that the government respects the principles of good administration. As we shall see, there has been a fundamental shift in this vision of public law and a considerable liberalisation of the standing doctrine since the decision in Gouriet.

B.  The ‘Sufficient Interest’ Test The modern test for standing in claims for judicial review is contained in section 31(3) of the Senior Courts Act 1981: No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

The expression ‘sufficient interest’ is not defined in the 1981 Act, and so its meaning has been developed by the courts. The leading case on the ‘sufficient interest’ test is the House of Lords decision in R v Inland Revenue Commissioners, ex p NFSSB.15 The proceedings concerned an association of taxpayers that sought judicial review of the Inland Revenue’s decision to waive arrears of income tax due from 6,000 newspaper printing employees who had for years collected pay under false names and defrauded the Inland Revenue. The association’s members were aggrieved that those employees were escaping payment of their full tax liability. However, the association had not suffered any direct pecuniary loss itself. Nevertheless, the associa14   Whether this decision survives the decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 is questionable, given that the mere fact that power derives from the royal prerogative no longer precludes judicial review. 15   R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses (NFSSB) Ltd [1982] AC 617.

The Sufficient Interest Test  101 tion sought a declaration that the Inland Revenue’s decision was unlawful and a mandatory order to compel the Revenue to collect the tax arrears. The House of Lords held unanimously that the Divisional Court had been correct to grant permission but added that standing is not simply a preliminary issue to be determined at the permission stage, without regard to the merits of the case; a second assessment of the claimant’s standing must take place at the substantive hearing. Lord Wilberforce stated: There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply.16

He considered that the power to reject a claim at this early stage was an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But Lord Wilberforce recognised that not all cases will fail this initial threshold test. In such cases, the question of sufficient interest cannot be considered in the abstract or as an isolated point: it must be taken together with the legal and factual context. In other words, it will be necessary to consider the powers or duties of the defendant, the position of the applicant in relation to those powers or duties, and the alleged breach. On the facts of the case, the House of Lords held, having considered standing together with the legal and factual merits, that the association did not have standing. Two factors were especially important: the Revenue’s decision was an example of its wide managerial powers, which permitted ‘special arrangements’ of this type. Additionally, individual tax assessments are confidential, and one individual cannot petition the court to examine another’s assessment. There are three important points to note about this decision. The first is that a majority of their Lordships considered that the sufficient interest test for standing had introduced a uniform test for standing for all of the remedies available in judicial review proceedings.17 The second point to note is that the standing test is not confined to the permission stage. The House of Lords held that even if standing is granted at the permission stage, the question of standing can also be raised at the substantive hearing. At the permission stage a claim will be refused only if the claimant has no interest whatsoever and is merely a busybody. At the substantive hearing, the strength of the claimant’s interest will be considered along with the nature of the statutory power or duty in question, the subject matter of the claim and the type of illegality asserted. The final point to note about the NFSSB case is that, although it is clear that standing must be considered together with the merits at the substantive stage, it is unclear precisely what this means. Very rarely will the governing statute say anything about who ought to be able to challenge decisions made under it. The courts are forced to fall back on more general policy considerations, and standing decisions therefore have little precedential value because the question of sufficient interest depends upon all the circumstances of a case.

  Ibid, 630.  Previously different tests applied in respect of each of the prerogative remedies: see Wade & Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 582ff. 16 17

102 Standing

C.  The Application of the ‘Sufficient Interest’ Test 1.  Claims Brought by Individuals There are many cases brought by individual claimants in which the courts have treated the NFSSB case as liberalising the rules on standing. For example, in R v Her Majesty’s Treasury, ex parte Smedley,18 the claimant taxpayer challenged a draft order in Council in relation to taxation. The Order in Council had declared that an EC budget undertaking was an ancillary treaty and thereby enabled the UK contribution to be paid without the need for primary legislation. The taxpayer was held to have standing because he raised a serious legal issue, notwithstanding the fact that he had no greater interest in the matter than all other taxpayers. Similarly, in R v Felixstowe Justices, ex parte Leigh,19 the claimant journalist sought a declaration that the justices in a criminal case could not refuse to reveal their identities. Despite not having any personal interest in the matter, he was held to have standing because he was representing the general public interest in open justice. The liberalisation of the standing rules in environmental claims owes much to Sedley J’s decision in R v Somerset County Council and ARC Southern Ltd, ex p Dixon.20 The claimant was a local resident, councillor and a member of various environmental protection bodies. He sought permission to challenge the grant of planning permission to extend a quarry in an environmentally sensitive area. Sedley J held that the claimant was not a busybody and that he should be granted standing because he was raising serious grounds of challenge, even though his private rights were not affected by the planning decision. In an important passage, Sedley J explained the modern law of standing in these terms: Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs – that is to say, misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the court’s only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the applicant’s standing will be weighed up, whether with regard to the grant or simply the form of relief.21

This judgment is a forceful endorsement of the communitarian model of public law rights and the expository model of dispute resolution discussed above.22 2.  Restrictive Applications of the Sufficient Interest Test Despite the fact that the standing rules are now applied in a generous manner, some cases indicate that an individual may still be refused standing if a more appropriate challenger exists. This is illustrated by the decision in R v Legal Aid Board, ex p Bateman.23 In that case, a legally-aided client was held not to have standing to challenge an order made regarding the assessment of her solicitors’ costs because she was not affected by that assessment. The   R v Her Majesty’s Treasury, ex p Smedley [1985] QB 657.   R v Felixstowe Justices, ex p Leigh [1987] QB 582. 20   R v Somerset County Council and ARC Southern Ltd, ex p Dixon [1998] Env LR 111. 21   Ibid, 121. 22   See above section I. 23   R v Legal Aid Board, ex p Bateman [1992] 1 WLR 711. 18 19

The Sufficient Interest Test  103 decision on the assessment of costs affected only the amount that the solicitors could recover from the Legal Aid Board, and it was held to be insufficient that the claimant was genuinely concerned to see that her solicitor was properly remunerated. If the order was arguably unlawful, it was for the solicitors themselves to challenge it. The same principle underpins the reasoning in R (Ralph Bulger) v SSHD.24 The father of a boy who was murdered by two children sought to challenge the tariff set by the Lord Chief Justice, which determined the minimum period of imprisonment that they must serve for the purposes of retribution and deterrence. Rose LJ denied that the claimant had standing, even though he recognised that the threshold for standing in judicial review has generally been set at a low level. Standing was denied because criminal proceedings were held to be a contest between the Crown and the defendant, both of whom were in a position to challenge the tariff. It was not necessary therefore to confer standing on a third party in order to uphold the rule of law. In both of these cases there was somebody better able to bring the claim and more directly affected than the claimant. In Bateman the claimant’s solicitor, whose own costs were in issue, ought to have brought the claim. And in Bulger the public interest in appropriate tariff-setting was adequately served by the possibility of a challenge by the Crown. It is questionable, however, whether this is an appropriate ground on which to deny standing generally. There are many reasons why somebody who is directly affected by an unlawful administrative decision might not challenge it. They might be ignorant of their right to do so or of the available grounds for review. They might be unable to afford expensive judicial review proceedings, or they might have an on-going relationship with the defendant which they wish not to prejudice by commencing litigation. But none of these private considerations justify allowing unlawful administrative conduct to go unchecked. Therefore, unless, as in Bulger, the statutory scheme supports a form of privity requirement, standing ought not to be refused on the ground that someone else is more closely affected and better able to bring the claim. It is often assumed in the light of Sedley J’s decision in Dixon25 that standing will be refused in a case of environmental judicial review only if the claimant is a busybody or the claim is vexatious. This is, however, a false assumption. A claimant may have a genuine desire to challenge an environmental decision, but such a subjective belief that the impugned decision affects the claimant is insufficient to confer standing. Nolan LJ’s description of the claimant in Bateman is apposite to describe this sort of challenge. He said of the claimant that ‘[i]t would be inaccurate as well as discourteous to describe her as a busybody, but her attempt to intervene is at best quixotic and cannot be upheld’.26 Wyn Williams J’s decision in Coedbach Action Group v Secretary of State for Energy and Climate Change27 provides a good example of an unfounded subjective fear proving insufficient to confer standing. The claimant (CAT) was a private limited company with 26 members set up in order to object to two biomass-generating stations that were proposed to be built in Carmarthenshire. At the inquiry for one of the biomass-generating stations, counsel for the developer had referred in his opening speech to a decision of the Secretary of State granting consent under section 36 of the Electricity Act 1989 for a 24   R (on the Application of Ralph Bulger) v Secretary of State for the Home Department [2001] EWHC Admin 119, [2001] 3 All ER 449. 25  Above n 20. 26   Bateman (above n 23) 718C. 27   Coedbach Action Team v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin).

104 Standing biomass-­generating station in Avonmouth. The Avonmouth decision was made on the basis that it was not necessary to consider the sustainability of biomass when granting consent. CAT sought to challenge the Avonmouth decision because of a fear that it would be a precedent and a material consideration in the appeals with which it was concerned. Wyn Williams J refused the application for permission and concluded that the claimant did not have a sufficient interest to seek a judicial review because: (i) it had not objected to nor participated in the Avonmouth consent procedure; (ii) its aims and objectives were to protect the environment in the Carmarthenshire area; (iii) its sole purpose in challenging the Avonmouth decision was to prevent it being a material consideration in the planning appeals with which CAT was concerned; and (iv) CAT could challenge the Carmarthenshire decisions pursuant to section 288 of the Town and Country Planning Act (TCPA) 1990 if they were flawed. In other words, the claimant had an unfounded fear that the Avonmouth decision would prejudice its ability to object to the two Welsh biomass-generating stations. The subjective fear did not suffice to confer standing. 3.  Public Interest Challenges A very restrictive approach to public interest standing was taken in R v Secretary of State for the Environment, ex p Rose Theatre Trust Co.28 The claimant company was formed for the purpose of preserving the remains of the historic Rose Theatre. It sought judicial review of the Secretary of State’s refusal to list the theatre remains under section 1 of the Ancient Monuments and Archaeological Areas Act 1979. Permission was granted, but at the substantive hearing Schiemann J held that the claimants lacked standing. He considered that the claimant company could have no greater claim to standing than its members, because it would be absurd if two people who lacked standing could incorporate themselves into a company and thereby obtain standing. This is an extremely restrictive decision, and it is attributable to the fact that Schiemann J assumed that individuals, and thus the company representing them, can establish a sufficient interest only by demonstrating some personal stake in the decision whether to list the theatre as an ancient monument. This overlooks the possibility that a sufficient interest might be established by demonstrating that the matter is an important one, and the litigation is in the public interest. Subsequent cases have distinguished the decision in Rose Theatre. The subsequent cases have applied the concept of sufficient interest more generously in public interest challenge cases. In Greenpeace (No 2),29 the claimant was an internationally renowned environmental campaign group that challenged a decision permitting the discharge of radioactive waste from Sellafield nuclear plant in Cumbria. Otton J held that Greenpeace had standing for a number of reasons. First, 2,500 of Greenpeace’s members came from the Cumbria region and were concerned about the danger to their health and safety. Second, the issues raised by the claim were serious and worthy of determination by the court. Third, he accepted that the issues had wider ramifications and that Greenpeace represented the wider public interest In R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement,30 the claimant was a nonpartisan pressure group that had existed for 20 years   R v Secretary of State for the Environment ex p Rose Theatre Trust Co (No 2) [1990] 1 QB 504.  Above n 11. 30   R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. 28 29

The Sufficient Interest Test  105 and had 13,000 or more supporters. A Member of Parliament from each of the three main parties sat on the governing Council of the claimant charity. The charity conducted research and analysis in relation to the grant of overseas aid, and it had official consultative status with the United Nations Educational Scientific and Cultural Organization. The claimant brought a challenge to the government’s decision to grant aid for the construction of a dam in Malaysia. Rose LJ held that the claimant had standing, having regard to a number of factors: first, the importance of vindicating the rule of law; second, the importance of the issue raised; third, the absence of any other responsible challenger; fourth, the nature of the breach of duty; and fifth, the prominent role of the claimant in giving advice, guidance and assistance with regard to overseas aid. This decision clearly recognises that standing may be granted because it is in the public interest that the claimant is able to raise the issue and the court adjudicate upon it. It repudiates the Rose Theatre approach and suggests that standing will rarely be refused if a claim is prima facie a strong one. 4.  Motive and Abuse of Process Although the rules on standing have been liberalised considerably since the decision in Rose Theatre, judicial review is not a complete free-for-all. As well as the importance of the issue at stake, the courts will also consider a claimant’s subjective motivation in bringing the claim. In R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs,31 the Court of Appeal carefully scrutinised the claimant’s motives for bringing judicial review proceedings. The claimant owned a farm on which all of the animals were diagnosed with footand-mouth disease. The animals were slaughtered, and the carcases were burned on his land. The question raised by the judicial review proceedings was whether ash from the pyres should be disposed of by incineration or by landfill, but the defendant maintained that the claimant’s real motive was to extract substantial compensation from Defra, rather than a genuine desire to seek review of the legality of Defra’s decision. On the evidence, the Court of Appeal concluded that Mr Feakins was not acting from an ill motive, although Dyson LJ held that the claim would have been an abuse of process if the underlying motive had been the extraction of compensation: [I]f a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill will or for some other improper purpose.32

A related issue is whether standing may be refused if the only motive for selecting a particular claimant is that he or she will be entitled to public funding. In R (Edwards) v Environment Agency,33 the claim concerned the grant of a permit for a cement factory in Rugby to burn old tyres as fuel. The claimant, Mr Edwards, was a homeless man living in the area. Keith J granted permission in circumstances in which it was ‘difficult to resist the inference that [the claimant] had been put up as a claimant in order to secure public 31   R (on the Application of Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546, [2004] 1 WLR 1761. 32   Ibid, para 23. 33   R (on the Application of Edwards) v Environment Agency (No 1) [2004] EWHC 736 (Admin), [2004] 3 All ER 21.

106 Standing funding’. He held that Mr Edwards would, as a resident of Rugby (albeit a homeless one), be affected by any polluting consequences of the decision, and therefore he had a sufficient interest. He added that the issue was not so much concerned with whether the court’s process had been abused but rather whether the Legal Services Commission’s process had been abused by the claimant securing funding without the Commission being fully aware of the facts. Edwards suggests that if the Commission is fully appraised of all relevant facts, it will be difficult for a defendant to argue that the choice of claimant constitutes an abuse of process. 5.  Incorporated and Unincorporated Associations and Groups There are particular problems in cases brought by incorporated and unincorporated associations. The difficulty in relation to unincorporated associations is that they lack legal personality. In R v Darlington BC and Darlington Transport Company, ex p the Association of Darlington Taxi Owners,34 Auld J pointed out that unincorporated associations cannot sue or be sued in their own name. He therefore held that they ought not to be permitted to bring judicial review proceedings in their own name – not because they lacked standing but rather because they lacked legal capacity to litigate at all. However, in R v Traffic Commissioner for the North Western Traffic Area, ex p ‘Brake’,35 Turner J reached the opposite conclusion. His reasoning is more attractive. He explained that in a private law claim a person asserts private rights, and it is logical that such rights can be enjoyed only by a legal person. In public law, by contrast, the primary concern is with the legality of the public body’s actions. A claimant who asserts a sufficient interest is invoking the supervisory jurisdiction of the court to control excess of power by public authority. There is no good reason why only legal persons should be able to invoke that supervisory jurisdiction. The problem in relation to incorporated bodies is that incorporation may be used as a device to avoid costs liability. Individuals may seek to form a company and bring proceedings in the name of that company in order to avoid their own personal liability for the public bodies costs should they lose their claim. In such situations, the courts have generally held that the company has a ‘sufficient interest’ to bring the claim, but it has been required to give security for costs.36 In Residents Against Waste Site Ltd v Lancashire CC,37 Irwin J considered that a company formed by local residents a mere two days before it issued judicial review proceedings had standing. The residents objected to the grant of planning permission for a large waste disposal plant near their homes, and their website had stated that ‘we can limit our own liability by becoming a company limited by guarantee’. Irwin J held that the claim was not frivolous, and therefore it ought to proceed, with security for costs being dealt with as a separate issue. He approved the decision of Richards J in ex p Blackfordby and Boothorpe Action Group Limited, stating: I accept that formulation of the proper approach to this problem. If the true objection to the grant of standing to a company, formed in circumstances such as this, is the costs protection afforded to 34   R v Darlington BC and Darlingotn Transport Company Ltd, ex p the Association of Darlington Taxi Owners [1994] COD 424. 35   R v Traffic Commissioner for the North Western Traffic Area, ex p ‘Brake’ [1996] COD 248. 36   R v Leicester County Council, ex p Blackfordby & Boothorpe Action Group Ltd [2000] EHLR 215. 37   Residents Against Waste Site Ltd v Lancashire CC [2007] EWHC 2558 (Admin), [2008] Env LR 27.

Standing and the Aarhus Convention  107 those who might otherwise have a starker choice as to whether to take legal action or not, then the proper approach must surely be to address the costs problem, rather than seek to undermine the standing of the company . . . The courts must retain capacity to prevent time-wasting or meddling applications for judicial review. Subject to that principle, on an application for leave (or as here, a rolled-up application) the court will look to the substance of the matter. Costs are a discrete question, and it is perfectly open to a defendant in this situation to make energetic attempts for adequate security before costs. In any event, on the facts of this case, there is no question that the claim is frivolous or meddling or spurious. Agreement was reached on security for costs and accordingly, it seems to me there is no basis on which this Claimant should be precluded from this claim by reference to standing.38

Arguably, this decision liberalises the standing requirement too much. The claimant company was not even formed at the time of the impugned decision and could not therefore have been an interested party during the course of the application for planning permission. Perhaps the best explanation for the decision is that incorporation as a company provided an effective means of facilitating access to justice, and in these circumstances the court was prepared to equate the interest of the local residents with that of the company formed in order to represent them, even though strictly the company did not have a sufficient interest of its own.

III.  Standing and the Aarhus Convention

A. Introduction Article 10a of the Environmental Impact Assessment (EIA) Directive (85/337/EEC)39 deems environmental NGOs to have sufficient interest to bring legal proceedings in environmental matters.40 It provides: Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: a) having a sufficient interest, or alternatively, b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive. Member States shall determine at what stage the decisions, acts or omissions may be challenged. What constitutes a sufficient interest and impairment of a right shall be determined by the Member   Ibid, paras 19 and 21–22.   [1985] OJ L175/40.   The same guarantees are provided by Article 15a of Directive 96/61/EC ([1996] OJ L257/26) concerning integrated pollution prevention and control, now codified into Directive 2008/1/EC, [2008] OJ L24/8. These directives do not fully implement the Aarhus convention because Art 9(3) of the Aarhus Convention also provides a general right for members of the public to have ‘access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of national law relating to the environment’. In C-240/09 Lesoochranárske Zoskupenie VLK v Slovakia (unreported , 8 March 2011), the ECJ held that Art 9(3) did not have direct effect. However, at [52] the ECJ held that reviewing courts must interpret domestic rules on standing ‘in accordance with the objectives of Article 9(3) . . . and the objective of effective judicial protection of the rights conferred by EU law . . .’ 38 39 40

108 Standing States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any non-governmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article. The provisions of this Article shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. Any such procedure shall be fair, equitable, timely and not prohibitively expensive. In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.41

Article 1(2) of the EIA Directive provides that: [F]or the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

These provisions give effect to the Aarhus Convention, Article 2(5) of which states, under the definition of ‘the public concerned’, that ‘non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest’; and Article 9(2) of which provides that ‘the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of [the right of access to a review procedure before a court]’. The effect of these provisions is to give any organisation qualifying as an ‘NGO promoting environmental protection’ an automatic right of standing to challenge any environmental decision falling within the scope of the Directive. It is therefore crucial to understand what in English law qualifies as an NGO promoting environmental protection.

B.  The Meaning of ‘NGO Promoting Environmental Protection’ The starting point is that there is no definition of the expression ‘NGO promoting environmental protection’, either in the EIA Directive or in the Aarhus Convention. However, the Aarhus Implementation Guide recognises that Member States may impose limits on what constitutes an environmental NGO, provided the limits are: (i) objective; (ii) consistent with the Convention’s principles, such as non-discrimination and avoidance of technical and financial barriers to registration; and (iii) not unnecessarily exclusionary. The Implementation Guide states: Article 2, paragraph 5, explicitly includes NGOs whose statutory goals include environmental protection within the category of the interested public, as long as they meet ‘any requirements under national law’. Whether or not an NGO promotes environmental protection can be ascertained in a variety of ways, such as through its charter, bylaws or activities. ‘Environmental protection’

41  Emphasis added. In Case C-115/09 Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-Westfalen eV v Bezirksregierung Amsberg (unreported, 12 May 2011), the ECJ held that Art 10a precluded legislation which denies standing to NGOs on the basis that the rule of law infringed protects only the interests of the general public and not the interests of individuals.

Standing and the Aarhus Convention  109 can include purposes consistent with the implied definition of environment found in article 2, paragraph 3. Parties may set requirements for NGOs under national law, but these requirements should be consistent with the Convention’s principles, such as non-discrimination and avoidance of technical and financial barriers to registration. Within these limits, parties may impose requirements based on objective criteria that are not unnecessarily exclusionary. For example, one UN/ECE country requires environmental NGOs to have been active in that country for three years and to have at least 2,000 members. The requirement of activity in the country would not be consistent with the Aarhus Convention, because it would violate the non-discrimination clause of article 3, paragraph 9. The membership requirement might also be considered overly strict under the Convention. Similar requirements would certainly be overly exclusive in countries that have permitted the formation of NGOs for only a relatively short period of time and where they are therefore relatively undeveloped. It is also worth noting that, once an NGO meets the requirements set, it is a member of the ‘public concerned’ for all purposes under the Convention and may even be deemed to have a sufficient interest under article 9, paragraph 2. But for NGOs that do not meet such requirements ab initio, and for individuals, the Convention is not entirely clear whether the mere participation in a public participation procedure under article 6, paragraph 7, would qualify a person as a member of the ‘public concerned’. Because article 9, paragraph 2, is the mechanism for enforcing rights under article 6, however, it is arguable that any person who participates as a member of the public in a hearing or other public participation procedure under article 6, paragraph 7, should have an opportunity to make use of the access-to-justice provisions in article 9, paragraph 2. In this case, he or she would fall under the definition of ‘public concerned’.42

Although it is for Member States to determine what amounts to an NGO promoting environmental protection, subject to the qualifications above, in English law there is no statutory definition of an NGO, nor an environmental NGO. But this should not mean that any organisation can claim the status of NGO promoting environmental protection and a right of automatic standing. As explained below, the English courts themselves should seek to regulate which bodies qualify for the automatic right of standing in Article 10a. The question of whether there should be a general right of action in respect of environmental matters (an actio popularis) or whether the concept of an environmental NGO should be subject to qualifications was considered in detail by the EU Commission when it produced a draft directive on access to justice. The EU Commission’s Proposal for a Directive of the European Parliament and of the Council on Access to Justice in Environmental Matters43 would provide a right to review of procedural or substantive breaches of any EU environmental law by public authorities. The standing of environmental interest groups is a crucial aspect of the proposal, and the Commission proposes to implement the Aarhus Convention right of access for NGOs by using the concept of ‘qualified entities’. Article 5 of the proposed directive deals with the standing of qualified entities, and it provides: Article 5 Legal standing of qualified entities 1. Member States shall ensure that qualified entities recognised in accordance with Article 9 have access to environmental proceedings, including interim relief, without having a sufficient interest or maintaining the impairment of a right, if the matter of review in respect of which an action is brought is covered specifically by the statutory activities of the qualified entity and the review falls within the specific geographical area of activities of that entity. 42  Economic Commission for Europe, The Aarhus Convention: An Implementation Guide (New York and Geneva, United Nations, 2000), http://www.unece.org/env/pp/acig.pdf, 41. 43   COM 2003/0624 final.

110 Standing 2. A qualified entity recognised in accordance with Article 9 in one Member State shall be entitled to submit a request for internal review in another Member State under the con­ ditions of paragraph 1. 3. Applications for interim relief measures shall not be subject to compliance with the pro­ cedure laid down in Article 6.44

Article 8 of the proposed directive sets out four criteria for the recognition of qualified entities which are considered to be compliant with the above Aarhus Convention guidance: Article 8 Criteria for recognition of qualified entities In order to be recognised as a qualified entity, an international, national, regional or local association, organisation or group shall comply with the following criteria: (a) it must be an independent and non-profit-making legal person, which has the objective to protect the environment; (b) it must have an organisational structure which enables it to ensure the adequate pursuit of its statutory objectives; (c) it must have been legally constituted and worked actively for environmental protection, in conformity with its statutes, for a period to be fixed by the Member State in which is constituted, but not exceeding three years; (d) it must have its annual statement of accounts certified by a registered auditor for a period to be fixed by each Member State, in accordance with provisions set out by virtue of paragraph 1(c).

The discussion in the Commission’s proposal document is also revealing. It is clear that the Commission rejected an unrestricted right of access for all bodies claiming to be envir­ onmental NGOs, even though this is what many consultees had argued for: Non-governmental organisations maintained a totally opposite position from the one stated by Member States during the consultation procedure. Thus, non-governmental organisations wanted a more forward-looking proposal since from their point of view it constrains the field of application of the Århus Convention, mainly as far as the legal standing issue is concerned. They expected a much broader provision and asked for a general legal standing without restrictions, known as ‘actio popularis’. The Commission does not share this point of view since the ‘actio popularis’ is not explicitly required by the Århus Convention and must be therefore left to Member States.45

Therefore, the view of the EU Commission, expressed after wide public consultation and in the form of draft legislation, is that a body cannot claim to be an NGO promoting environmental protection unless it is seeking review in respect of a matter ‘covered specifically by [its] statutory activities’ and ‘the review falls within the specific geographical area of activities of that entity’. It is strongly arguable that the English courts should apply the same restriction when interpreting provisions of EU law such as Article 10a. The effect of the deeming provision in Article 2(5) of the Aarhus Convention is that unless restrictions are imposed by Member States, once a body is regarded as an NGO promoting environmental protection it must be treated as having a sufficient interest for the purposes of reviewing any environmental decision taken anywhere about anything. The Commission reasonably proposes limiting the right of NGOs by reference to the body’s activities and its geographical area – for example, a marine conservation NGO concerned with North Sea fish stocks ought not to have an automatic right to challenge a decision affecting birds in the Pennines.   Ibid (emphasis added).  Ibid.

44 45

Standing Under the Human Rights Act 1998  111 Although there is no statutory definition of NGO promoting environmental protection in English law, it ought to be regarded as permissible for the courts to set restrictions on the meaning of that expression in their capacity as organs of the state with a responsibility for implementing EU law.46 Moreover, Parliament’s silence should not be taken as acceptance that there are no restrictions on the concept of NGO promoting environmental protection, because Parliament’s usual approach is to leave the precise limits of standing to the courts’ discretion. That was, for example, Parliament’s approach to standing under section 31(3) of the Senior Courts Act 1981, which leaves the courts discretion to define and apply the expression ‘sufficient interest’. In ex p NFSSB, Lord Diplock held: [T]he draftsman . . . avoided using the expression ‘a person aggrieved’, although it lay ready to his hand. He chose instead . . . ordinary English words which, on the face of them, leave the court an unfettered discretion to decide what in its own good judgment it considers to be ‘a sufficient interest’ on the part of [a claimant] in the particular circumstances of the case before it.47

His discussion of the old law also explains why Parliament should choose to leave the courts such a discretion: The rules as to ‘standing’ for the purpose of applying for prerogative orders, like most of English public law, are not to be found in any statute. They were made by judges, by judges they can be changed; and so they have been over the years to meet the need to preserve the integrity of the rule of law despite changes in the social structure, methods of government and the extent to which the activities of private citizens are controlled by governmental authorities, that have been taking place continuously, sometimes slowly, sometimes swiftly, since the rules were originally propounded.48

A judicial discretion incrementally to delimit, in accordance with social change, the expression ‘NGO promoting environmental protection’ also accords with the principles in the Aarhus Convention guidance. Access to justice is better facilitated by a flexible judicial discretion than by rigid legislative requirements, such as the example of an arbitrary requirement for 2000 members that the guidance deprecates.49

IV.  Standing under the Human Rights Act 1998

A.  The Victim Test The standing test under the HRA 1998 is narrower than the ‘sufficient interest’ test. A claim may be brought under the HRA 1998 only by someone claiming to be the ‘victim’ of a violation of the European Convention on Human Rights (ECHR). The victim test is contained in Article 34 ECHR, and it is incorporated into UK domestic law by section 7 of the HRA 1998: Section 7: Proceedings (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may –   See, eg, Case C-224/01 Köbler v Austria [2003] ECR I-10239.

46

  ex p NFSSB (above n 15) 642B–E.   Ibid, 639–40.   Aarhus Convention: Implementation Guide (above n 42).

47 48 49

112 Standing (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act . . . (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act . . . (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. Article 34: Individual Applications The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.

The rationale for including the victim requirement in the HRA appears to be twofold. First, it reflects the government’s aim that the Act should ‘bring rights home’ by closely mirroring the ECHR but not creating new rights. Second, it was also clearly intended to restrict the capacity of campaign groups to use the Convention in judicial review proceedings – particularly anti-abortion groups seeking to rely on the right to life in Article 2. Although the European Court of Human Rights (ECtHR) interpretation of the victim requirement has been somewhat elastic and uncertain, it is nevertheless possible to identify four distinct categories of victim: actual victims, indirect victims, potential victims and future victims. 1.  Actual Victims The term ‘actual victim’ denotes a person directly affected by the impugned act or omission. Importantly, a victim does not need to show that he or she has sustained damage in order to have standing. The issue of damage is relevant under Article 41 ECHR to the question of just satisfaction.50 2.  Indirect Victims The ECtHR has recognised that family members may be victims of rights violations committed against their relatives. Typically these are cases brought under Article 2 or Article 3 where relatives of the actual victim are also able to claim compensation under the Convention in relation to the killing or inhumane treatment of their family member.51 3.  Potential Victims The Strasbourg Court has also accepted that a person may be a victim when incompatible domestic legislation exists but has not yet been enforced against a person. For example, in Norris v Ireland,52 a law had been enacted criminalising homosexuality, and the claimant was held to be a victim even though the law had not yet been applied to him. The Court   Ilhan v Turkey (2002) 34 EHRR 36.   Timurtas v Turkey (2001) 33 EHRR 6; and Kurt v Turkey (1999) 27 EHRR 373.   Norris v Ireland (1988) 13 EHRR 186.

50 51 52

The ‘Person Aggrieved’ Test  113 held that the possibility of prosecution was sufficient for him to bring a claim that the law breached his Article 8 rights. 4.  Future Victims This class of victim refers to those for whom it is foreseeable that their Convention rights might be violated in the future. Thus in Soering v UK  53 the claimant, who was due to be deported to the United States to be held on death row pending execution, was held to be a future victim because it was foreseeable that his Article 3 right not to be treated in an inhumane and degrading fashion would be violated. 5.  No Representative Standing Despite applying the victim test more liberally in the ways described above, the ECtHR has consistently held that there is no ‘actio popularis’, or public interest claim’, under Article 34 ECHR.54 This is particularly significant in relation to environmental claims in which environmental harm is diffuse and unlikely to affect any particular individual more acutely than the general public. Not only does this prevent environmental action groups from bringing claims, it also limits the ability of local authorities to represent the interests of their inhabitants. In R (Medway Council) v Secretary of State for Transport, Local Government and the Regions,55 Maurice Kay J held that Essex County Council did not have standing under section 7 HRA 1998 to challenge a government consultation on future airport development – either in its own right or by relying on the rights of its inhabitants.56 6.  Is Standing Always Required under the HRA 1998? On one view, it is arguable that under the HRA 1998, non-victims may still seek declarations regarding the interpretation of legislation by relying on the duty under section 3 HRA 1998 to interpret domestic legislation compatibly with Convention rights as far as possible. This argument relies on the fact that section 7 HRA 1998 restricts standing only to claim that a public authority has acted in a way made unlawful by section 6 HRA 1998, and it governs access only to the associated remedies under section 8 HRA 1998. Where, however, sections 3 or 4 are invoked, the claimant is not arguing that a measure is unlawful within the meaning of section 6. Therefore, the claimant need not be a victim.57

V.  The ‘Person Aggrieved’ Test

Prior to the introduction of the sufficient interest test, the test for determining whether a person had standing to apply for a quashing order or a prohibiting order was to ask whether   (1989) 11 EHRR 439.   Klass v Germany (1978) 2 EHRR 214. 55   R (on the Application of Medway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin), [2003] JPL 583. 56   Ibid, para 20. 57   R (on the Application of Countryside Alliance) v Attorney General [2006] EWCA Civ 817, [2007] QB 305, paras 64–66 (Lord Phillips CJ). But compare R (on the Application of Rushbridger) v Attorney General [2003] UKHL 38, [2004] 1 AC 357. 53 54

114 Standing he or she was a person aggrieved. The person aggrieved test is still used as the test for standing in statutory planning applications. Section 288(1) TCPA 1990 provides: If any person – ... (b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action, on the grounds – (i) that the action is not within the powers of this Act, or (ii) that any of the relevant requirements have not been complied with in relation to the action, he may make an application to the High Court under this section.

The courts have not been willing to give such a generous interpretation to the expression ‘person aggrieved’ as they have to the term ‘sufficient interest’. In particular, in Eco-Energy (GB) Ltd v First Secretary of State,58 Buxton LJ laid down a very restrictive test. He concluded that there were three main categories of persons who qualified as persons aggrieved: 1. the appellant in the planning process; or 2. someone who took a sufficiently active role in the planning process – that is to say, probably a substantial objector, not just somebody who objected and did no more about it; or 3. someone who has a relevant interest in the land.

This the restrictive approach was followed recently in William Ashton v Secretary of State for Communities and Local Government and Coin Street Community Builders.59 The applicant in Ashton was a local resident who had taken no part in the objections to a 43-story building near Waterloo Bridge but whose dwelling was 260 metres away from the proposed tower. At first instance, HHJ Mole QC held that Mr Ashton was not a person aggrieved.60 He considered that Buxton LJ did not mean that the person challenging had to be an objector but rather that he or she had to have taken a ‘sufficiently active role in the planning process’, which could be as an active objector or possibly an active interested person. Mr Ashton was not a ‘person aggrieved’, as not only had he not objected, he had also not taken an active role. In addition, HHJ Mole noted that although Mr Ashton would be adversely affected by the development, his grounds for challenge had nothing to do with the impact on him personally. This last point is questionable. The liberal approach to standing in judicial review has developed because the courts have begun to see the purpose of judicial review as upholding the rule of law and the general public right to lawful administrative decisions, rather than as a means to protect individual rights and interests. Arguably, statutory review shares the same purpose. HHJ Mole QC disagreed, however. He rejected the argument that the same liberal approach that is taken to standing in judicial review should apply to statutory challenge. He stated: There is a temptation to equate the test of ‘standing’ in judicial review, as illustrated in Kides and the test of being a person aggrieved. In my judgment that would be wrong. Parliament has chosen to use the word ‘aggrieved’ as setting the threshold for being able to bring a statutory challenge to   Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566.   William Ashton v Secretary of State for Communities and Local Government and Coin Street Community Builders Ltd [2010] EWCA Civ 600. 60   Historic Buildings and Monuments Commission for England (English Heritage) v Secretary of State for Communities and Local Government [2009] EWHC 2287 (Admin). 58 59

The ‘Person Aggrieved’ Test  115 certain planning acts or orders. There are sound reasons for setting the threshold higher than on a judicial review. The right of statutory challenge comes at the end of a complex and formal series of opportunities for consultation, objection and hearing. It is understandable that Parliament should intend to limit the right of appeal to those who have played an active part in the process that is designed to ensure that the important issues are identified and properly examined as early in the process as possible, as Lord Rodger said in Lardner. I do not see that there is anything in Article 10(a) or in the Aarhus Convention that suggests that such an approach and the interpretation that the courts have given to the word ‘aggrieved’ needs to be modified.61

This reasoning is doubtful, given that under the old judicial review procedure the remedies of certiorari and prohibition were available to a person aggrieved. Therefore it is strongly arguable that Parliament did not intend to differentiate between standing in statutory challenges and judicial review and that a more liberal approach to standing should also apply to statutory challenges. The Court of Appeal upheld HHJ Mole QC’s judgment. Pill LJ, giving the judgment of the Court, summarised the key principles governing standing in section 288 appeals.62 First, Pill LJ emphasised that ‘wide access to the courts is required under section 288’. He explained that the English courts had for many years sought to facilitate access to justice; for example, in Attorney General of Gambia v N’Jie, the Privy Council held: The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests. 63

Moreover, access to justice is now recognised and mandated at the EU level. In cases such as Ashton in which an environmental impact assessment has been conducted, domestic requirements on standing must conform with Article 10a of the EIA Directive, which provides that ‘what constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice’. Second, Pill LJ held that ‘normally, participation in the planning process which led to the decision sought to be challenged is required. What is sufficient participation will depend on the opportunities available and the steps taken’.64 Third, he explained that ‘there may be situations in which failure to participate is not a bar’. Fourth, ‘a further factor to be considered is the nature and weight of the person’s substantive interest and the extent to which it is prejudiced’. Fifth, the sufficiency of the interest ‘is to be assessed objectively’, and ‘there is a difference between feeling aggrieved and being aggrieved’. Sixth, ‘what might otherwise be a sufficient interest may not be sufficient if acquired for the purpose of establishing a status under section 288’. Seventh, ‘the participation factor and the interest factor may be interrelated in that it may not be possible to assess the extent of the person’s interest if he has not participated in the planning procedures’.65 A good example is where an applicant’s interest is said to derive from a loss of amenity. In such a case it will be necessary for that interest to be established as a matter of fact at the planning inquiry because the court hearing   Ibid, para 110.   Ashton (above n 59) para 53. 63   Attorney General of Gambia v N’Jie [1961] AC 617, 634. 64   Ashton (above n 59) para 53. 65  Ibid. 61 62

116 Standing the section 288 application is in no position to assess the extent of the applicant’s alleged loss: Moreover, the absence of representations before or at the Inquiry about the loss of amenity at his property, either personally or by [the Waterloo Community Development Group], deprived [the developer] and the local planning authority of the opportunity to test the extent of the alleged loss and to call evidence in response. That being so, the Inspector, the fact-finding tribunal, was not in a position to assess the extent of the loss and whether it amounts to a sufficient interest. This Court cannot make good that deficiency.66

Finally, ‘while recognising the need for wide access to the courts, weight may be given, when assessing the prior participation required, and the interest relied on, to the public interest in the implementation of projects and the delay involved in judicial proceedings’.67 In this regard, Pill LJ cited and approved of the following comments of Advocate General Kokott in Commission v Ireland: However, in order to determine what constitutes sufficient interest to bring an action, a balance must necessarily be struck. Effective enforcement of the law militates in favour of wide access to the courts. On the other hand, it is possible that many court actions are unnecessary because the law has not been infringed. Unnecessary actions not only burden the courts, but also in some cases adversely affect projects, whose implementation can be delayed. Factors such as an increasing amount of legislation or a growing litigiousness of citizens, but also a change in environmental conditions, can affect the outcome of that balancing exercise. Accordingly, it cannot be automatically inferred from more generous access to the courts that was previously available that a more restrictive approach would be incompatible with the objective of wide access.68

On the facts of Ashton, the applicant was held not to be a person aggrieved because his participation in the planning process had been minimal. He was not an objector to the proposal and did not make representations at the inquiry. His mere attendance at parts of the hearing and his membership of a group that had objected to the proposals at inquiry were held to be insufficient to confer standing. The decision in Ashton appears to place much weight on the policy reasons for restricting access to court and pay only lip service to the importance of facilitating access to justice. It will certainly not be the last word on the subject.

VI.  Interested Parties and Interventions

The Civil Procedure Rules enable two categories of third party to participate in judicial review proceedings: interested parties and interveners. An interested party is ‘any person (other than the claimant and defendant) who is directly affected by the claim’.69 The claimant is obliged to serve the claim form on interested parties,70 and they should receive a letter before the claim is started.71   Ibid, para 55.   Ibid, para 53. 68   Case C-427/07 Commission v Ireland [2009] ECR I-6277, para 69. 69   CPR r 54.1(2)(f). 70   CPR rr 54.6 and 54.7(b). Practice Direction (PD) 54 [5.1] provides: ‘Where the claim for judicial review relates to proceedings in a court or tribunal, any other parties to those proceedings must be named in the claim form as interested parties’. 71   CPR r 54, Pre-action Protocol, para 11. 66 67

Interested Parties and Interventions  117 In order to be an interested party, it is necessary for the third person to be directly affected by the claim. For example, in a claim seeking the quashing of a planning permission, the applicant for the permission would be directly affected by the claim and would be entitled to participate in the proceedings. However, the requirement that the interested party be directly affected limits the role that the interested party can play in judicial review proceedings. In R (McVey) v Secretary of State for Health,72 the judicial review proceedings concerned a compensation scheme established by the Secretary of State under a trust for the benefit of victims of Creutzfeldt–Jakob disease (variant CJD, or mad cow disease) and their families. The claimants were relatives of the deceased victims of variant CJD, and they sought to challenge the Secretary of State’s treatment of proposals to amend the trust deed which had been made by the trustees. The interested parties argued that the Secretary of State was under a separate obligation, not resulting from the trustees’ proposals, to revise the compensation and to revise the compensation scheme in respect of gratuitous care for patients undergoing treatment. Silber J held that in judicial review proceedings, the court does not have jurisdiction to consider representations by interested parties who seek to raise a claim that differs from the claim advanced by the claimants. The role of an interested party is limited to making submissions in relation to the substantive claim – but only to the extent that the substantive claim directly affects the interested party. The CPR does not enable an interested party to make an independent discrete claim against a defendant, and Silber J held that the Administrative Court could not give an advisory opinion because it did not have jurisdiction to deal with the interested party’s claim. The second category of third parties able to participate in judicial review covers interveners. Prior to the CPR, it was possible for intervention only by a person seeking to oppose the application for judicial review, not to support it. Now the CPR provide that ‘any person may apply for permission (a) to file evidence; or (b) make representations at the hearing of the judicial review’.73 Such third-party interventions are often permitted when, through their expertise, the interveners are likely to be able to assist the court in understanding either the legal issues raised or the factual basis of the claim and the consequences that may flow from the court’s judgment. It is comparatively rare for there to be interventions of this sort in environmental judicial review claims, largely because the sort of public interest groups likely to intervene in other types of public law litigation will generally be treated as having standing to bring environmental claims in their own name.

  R (on the Application of McVey) v Secretary of State for Health [2010] EWHC 1225 (Admin), [2010] CP Rep 38.   CPR r 54.17(1). Such applications must be made promptly: CPR r 54.17(2). PD 54, para 13.3 provides that application for permission should be made by letter to the Administrative Court Office, identifying the claim, explaining who the applicant is and indicating why and in what form the applicant wants to participate in the hearing. 72

73

6 Disclosure Environmental judicial review claims frequently involve challenges to decision-making processes or to complex scientific and factual assessments. Consequently, it is more than usually important to obtain full disclosure of the background documentation in order to show that the decision-maker has made a judicially reviewable error. However, although disclosure is a valuable means of eliciting the truth, it can be a costly, time-consuming, oppressive and unnecessary process.1 The courts must therefore balance these competing considerations in a way that facilitates access to environmental justice without unduly burdening public bodies. This chapter explains the rules governing disclosure in judicial review claims, illustrates the situations in which disclosure is likely to be an important issue and analyses the general principles that emerge from the recent case law.

I. Pre-Tweed

When considering the circumstances in which information is likely to be required to be disclosed in environmental judicial review claims, it is helpful to consider the general approach taken by the Administrative Court. This is best understood by examining the restrictive approach that prevailed before the House of Lords decision in Tweed v Parades Commission,2 as well as the competing policy arguments. The Civil Procedure Rules (CPR) provide scant guidance as to when disclosure must be made in a claim for judicial review. Part 54 does not mention disclosure, and the Practice Direction (PD) merely states, ‘Disclosure is not required unless the court orders otherwise.’3 Traditionally, disclosure was rarely ordered in judicial review proceedings. Until recently, the law could be summarised as follows: (i) There was a general duty of candour by public authorities;4 (ii) disclosure was ordered if the claimant could show a prima facie case that the evidence relied upon by the defendant was incorrect or inadequate;5   Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, [2007] 1 AC 650, para 2 (Lord Bingham).  Ibid.   CPR PD, para 12.1. In judicial review proceedings, a court can make orders for standard disclosure under CPR r 31.6; specific disclosure or inspection under CPR r 31.12; or inspection of individual documents referred to in statements of case under CPR r 31.14. 4   R v Secretary of State for the Home Department, ex p Fayed [1998] 1 WLR 763, 775 (Lord Woolf MR); and Belize Alliance of Conservation NGOs v Department of the Environment [2004] UKPC 6, [2003] 1 WLR 2839, para 86 (Lord Walker). 5   R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses (NFSSB) Ltd [1982] AC 617; and R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386, 396. 1 2 3

Pre-Tweed  119 (iii) otherwise, disclosure would only be ordered in ‘exceptional circumstances’ in which the interests of justice required it.6 This restrictive approach towards disclosure was justified on three grounds.7 First, claims for judicial review characteristically raise issues of law only, the facts being common ground or relevant only to show how the issue arises.8 Second, the courts considered that the duty of candour was sufficient to protect claimants.9 Finally, it was thought that to order disclosure would be to encourage ‘fishing expeditions’ whereby claimants seek disclosure in the hope that something helpful to their case might be turned up during the process.10 Minimising disclosure saved a considerable amount of time and expense, and Jackson LJ evidently considers this to be a virtue of the judicial review procedure: The fact that ordinarily there is no disclosure [in judicial review] is the overriding feature in relation to costs. The parties simply put forward the documents upon which they rely, subject to any direction by the court that some specific document or group of documents should be disclosed. During the eight years that I sat as an Administrative Court judge, I was not aware of the absence of disclosure becoming a source of injustice. Nor (so far as I can recollect) did counsel ever suggest that this was the case.11

Nevertheless, the restrictive approach meant that it was extremely difficult to obtain the necessary proof that a decision-maker had breached certain public law norms. For example, it was often hard to obtain evidence that a decision-maker had relied on a mistaken summary of technical or scientific evidence or that he had taken into account an irrelevant consideration in reaching his decision. Such grounds of review are rarely apparent on the face of the decision itself, and so it is only when the background to the decision-making process is fully scrutinised that the errors are revealed. This difficulty was exacerbated by the fact that public authorities did not always comply with their duty of candour. A good example is the decision of Collins J in Dinedor Hill Action Association v Herefordshire District Council,12 which was a statutory challenge under 6   The ordering of specific disclosure in judicial review was rare. This would generally be ordered only where it was shown that the defendant’s evidence was inaccurate, inconsistent or incomplete. See, eg, O’Reilly v Mackman [1983] 2 AC 237, 282C (Lord Diplock): ‘[disclosure] is obtainable upon application whenever, and to the extent that, the justice of the case requires’. See also World Development Movement (ibid) 396. 7   Although it was criticised by the Law Commission: Law Commission, Administrative Law: Judicial Review and Statutory Appeals (Law Com No 226, HC 669, 1994) 7.12. 8   O’Reilly (above n 6) 282 (Lord Diplock): ‘[facts] can seldom be a matter of relevant dispute upon an application for judicial review’. 9   On the defendant’s duty of candour, see eg: Belize Alliance v Department of the Environment [2004] UKPC 6; and R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941, 945 (‘it is a process which falls to be conducted with all the cards face upwards on the table’). Although in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409, paras 49–55, Laws LJ criticised the Secretary of State for failing to comply with his duty of candour, a claimant also has a duty of full and frank disclosure in bringing the claim. See, eg, R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593; and R (Derwent) v Trafford BC [2009] EWHC 1337 (Admin) para 42. 10   NFSSB (above n 5) 664C-D (Lord Roskill): ‘[Counsel] urged that something advantageous to his client might emerge upon [disclosure]. He submitted that your Lordships ought not to dispose of this appeal on the basis of the affidavit evidence alone. My Lords, the [claimants] started these proceedings on the basis of an affidavit which was fully answered . . . I can see no reason to allow the [claimants] what I am afraid I must necessarily regard as a fishing expedition in the hope of obtaining on [disclosure] something which might counter that which appears so clearly from the affidavits filed on behalf of the appellants.’ 11  Right Honourable Lord Justice Jackson, Review of Civil Litigation Costs: Preliminary Report, Volume I (2009) 35.2.3. 12   Dinedor Hill Action Association v County of Herefordshire District Council [2008] EWHC 1741 (Admin), [2009] 1 P & CR 4.

120 Disclosure section 287 of the Town and Country Planning Act 1990 to which the same duty of candour applied. The claimant contended that the Council had failed to explain why it had rejected the Urban Development Plan Inspector’s rejection of a site as ‘totally unsuitable’ for housing development. Various cabinet and committee meetings, which had not originally been disclosed, revealed that the cabinet had voted in favour of accepting the Inspector’s recommendations, but the committee had then voted against because funding for an access road had been removed. The documents therefore supported the claimant’s argument that the Council’s decision was unlawfully driven by the provision of funding for an access road. Collins J criticised the Council and held that a public body could not fail to disclose relevant material on the basis that the claimant ought to be aware of the material and had not mentioned it in its grounds for review so must therefore be taken to have thought that the documentation would not assist: There can be no doubt that the minutes and officer advice ought to have been disclosed. Not only are they relevant but in some aspects (certainly so far as the claimant is concerned) may be thought to be detrimental to the defendant’s case. Ever since the decision of the Court of Appeal in R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 it has been made clear that a public body against whom judicial review proceedings are brought is obliged to adopt a ‘cards on the table’ approach. It must put before the court all relevant material making full and fair disclosure and not adopting a partial approach. The same principle applies to claims under ss 287 and 288 of the 1990 Act and their successors under the 2004 Act. It has been suggested on behalf of the defendant that it was entitled to assume that the existence of the documents in question must have been known to the claimant and in particular that it must have been aware of the existence of minutes of Council meetings. Thus their absence from the claimant’s documentation meant, so the defendant believed, that the claimant thought they did not assist. I do not accept that reasoning. It should have been apparent to the defendant that they did assist and were clearly relevant and, since for whatever reason the claimant had not produced them, the defendant should have done so.13

Non-disclosure of obviously relevant, indeed decisive, material such as this only served to strengthen the calls for reform of the restrictive approach towards disclosure in judicial review.

II.  The Implications of Tweed

A.  The Decision in Tweed The approach to disclosure in judicial review proceedings has now been redefined by the House of Lords decision in Tweed v Parades Commission for Northern Ireland.14 The facts were as follows: public processions or parades in Northern Ireland are regulated by the Public Processions (Northern Ireland) Act 2006. Anyone wishing to hold a parade must give notice to the police under section 6 of the 2006 Act, and under section 8, the Parades Commission may issue a determination imposing such conditions on the parade as it considers necessary. The Orange Order lodge in Dunloy, a small and predominately Catholic

  Ibid, para 13.   Tweed (above n 1).

13 14

The Implications of Tweed  121 town, proposed to hold a parade. The Commission imposed conditions confining the route to a very small stretch of road outside the Orange hall. The claimant Orangeman challenged the Commission’s determination on the ground inter alia that it constituted a disproportionate interference with his rights under Articles 9, 10 and 11 of the European Convention on Human Rights (ECHR). In defending the judicial review proceedings, the Chairman of the Commission swore an affidavit summarising the effect of various specific documents that had been material to the Commission’s determination. The claimant then made an interim application seeking specific disclosure of these documents, which succeeded at first instance but was reversed by the Court of Appeal in Northern Ireland.15 The House of Lords allowed Mr Tweed’s appeal and restored the order for disclosure and, in so doing, redefined the rules of disclosure in judicial review.16 Having set out the traditional approach outlined above, Lord Carswell declared: I do consider, however, that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances.17

The new approach can be distilled into six propositions: a) Orders for disclosure will still be exceptions to the norm, first because judicial review claims concern law rather than fact and secondly, in order to discourage ‘fishing expeditions’.18 b) The test will be whether, having regard to the overriding objective, the disclosure of documents is justified ‘in the interests of fair disposal of the case’.19 c) Cases involving proportionality as a ground of review are more likely to attract orders for disclosure because they require a ‘more sophisticated and intensive process of review’, which involves a ‘closer factual analysis’.20 d) Disclosure will not, however, be automatic in proportionality cases.21 e) Any order will be for specific rather than general disclosure.22 f) There may nevertheless be reasons, for example arising from confidentiality or the volume of the material in question, why documents should or need not be exhibited.23

  He applied pursuant to RSC (NI) Ord 24, which is materially the same as CPR r 31.   Although the application hinged on the need for disclosure in claims based on the ground of proportionality under the ECHR, the decision revises the general approach to disclosure in judicial review claims. 17   Tweed (above n 1) para 32. Lord Brown agreed at para 56 that ‘the time has come to do away with the rule that there must be a demonstrable contradiction or inconsistency or incompleteness in the respondent’s affidavits before disclosure will be ordered. In future, as Lord Carswell puts it, “a more flexible and less prescriptive principle” should apply, leaving judges to decide upon the need for disclosure depending upon the facts of each individual case.’ 18   Ibid, para 32 (Lord Carswell); and para 56 (Lord Brown). 19   Ibid, para 41 (Lord Carswell). Or as Lord Bingham put it at para 3, the question is ‘whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly’. 20   Ibid, paras 53–54 (Lord Brown). 21   As Lord Brown said at para 38, ‘The proportionality issue forms part of the context in which the court has to consider whether it is necessary for fairly disposing of the case to order disclosure of such documents. It does not give rise automatically to the need for disclosure of all the documents. Whether disclosure should be ordered will depend on a balancing of the several factors, of which proportionality is only one, albeit of one of some significance.’ 22   Ibid, para 32 (Lord Carswell). 23   Ibid, para 4 (Lord Bingham). 15 16

122 Disclosure Their Lordships also gave guidance for handling an interim application for disclosure:24 a) The judge hearing the application should receive the full text of the disputed documents. b) She/he must decide ‘if disclosure is justified in the interests of the fair disposal of the case’.25 c) If the judge decides that disclosure is justified, then the question of redaction is considered, and the parties may be invited to make submissions on it. d) Public interest immunity can then be considered, if necessary.

B. Post-Tweed: A Change in Practice? Despite the change of approach heralded by the decision in Tweed, there have been relatively few cases concerning disclosure in judicial review. Maurici has identified a number of reasons why there is so little case law and so little success in obtaining contested orders for disclosure:26 a) because in judicial review cases there will very often be nothing to disclose beyond what the claimant already has, such as any relevant guidance/policies and the decision itself. Moreover, as Lord Bingham noted in Tweed, judicial review applications ‘characteristically raise an issue of law, the facts being common ground or relevant only to show how the issue arises. So disclosure of documents has usually been regarded as unnecessary, and that remains the position’;27 b) because defendants may well have disclosed any other relevant documentation in response to the letter before claim;28 c) because in any event defendants ordinarily comply with their duty of full and frank disclosure either: (i) when filing and serving their Acknowledgment of Service; or (ii) when filing and serving their evidence post-permission; d) because defendants are, in the light of Tweed, voluntarily making disclosure when it is requested. There is certainly some support in the case law for the view that post-Tweed defendants would rather voluntarily make disclosure than risk becoming embroiled in costly interim disputes about disclosure. For example, in R (Queen Mary University of London) v Higher Education Funding Council for England (HEFCE),29 the claimant sought judicial review of a decision of HEFCE to recover from Queen Mary University of London (‘QM’) a total £852,000 of research support grant funds relating to the year 2006–07. Following service of HEFCE’s evidence, QM made extensive requests for further disclosure from HEFCE.   See para 5 (Lord Bingham); para 42 (Lord Carswell); and para 58 (Lord Brown).   On the facts of Tweed, Lord Carswell said at para 41 that the question for the judge was whether the full text of the requested documents ‘would give sufficient extra assistance to the appellant’s case on proportionality, over and above the summary already furnished, to justify its disclosure in the interests of the fair disposal of the case’. 26   J Maurici, ‘Disclosure in Judicial Review’ (2009) 14(4) Judicial Review 311. 27   Tweed (above n 1) para 2. 28   Indeed, the standard letter before claim contained in the judicial review pre-action protocol includes the following instruction: ‘The details of any documents that are considered relevant and necessary (Set out the details of any documentation or policy in respect of which the disclosure is sought and explain why these are relevant. If you rely on a statutory duty to disclose, this should be specified).’ 29   R (on the Application of Queen Mary University of London) v Higher Education Funding Council for England (HEFCE) [2008] EWHC 1472 (Admin). 24 25

The Implications of Tweed  123 HEFCE regarded these requests as a fishing expedition but determined that the best course was to meet the requests rather than engage in an interim dispute on such matters. HEFCE had already fully reviewed its paper files. However, in response to the request for further disclosure, HEFCE made further specific enquiries of various officers, and it undertook a more general trawl of electronic records bearing either on the development of the terms and conditions or on the position of QM. As a result, a large volume of additional material loosely connected to the development was sent to QM. In its skeleton and at the hearing, QM sought to place specific reliance on a small number of disclosed internal email messages and other internal documents discussing the meaning of ‘open competition’ (the primary issue in the case). However, in terms of the overall result of the case, the exercise did not assist the claimant.30 Where a public body voluntarily accedes to a request for specific disclosure, an important question is who should pay for that exercise. In Queen Mary, the disclosure was undertaken voluntarily but on the basis that the defendant reserved its position on costs in relation to the exercise. In the event, both parties agreed to bear their own costs of the proceedings, and so the issue of the costs of the exercise were untested. There is force in the argument that the defendant should bear the costs of voluntary disclosure. Certainly it would be undesirable if, in determining who should pay the costs, the defendant could argue the very disclosure point that it had sought to avoid by acceding to the requirement in the first place. Where the issue of disclosure has been contested, the courts, even after Tweed, do not yet appear to have adopted a markedly less restrictive approach. Certainly no change of substance can be detected in Bean J’s decision in relation to an interim application for disclosure in R (Actis SA, Actis Insulation) v Secretary of State for the Communities and Local Government.31 In Actis, the claimant manufacturers sought judicial review of an amendment to an Approved Document under the Building Regulations on the basis that the requirements were wholly unsuitable for their industry. They claimed that a meeting with civil servants on 8 February 2006 and a letter dated 17 February 2006 created a legitimate expectation that the requirements of the amendments would not apply to them. It was common ground that Tweed governed the claimants’ application for disclosure of documents relating to the period after 17 February 2006. Bean J rejected the application for disclosure in the following terms: Reverting to the application for disclosure, it does not seem to me that disclosure of documents relating to the period after 17 February 2006 is necessary in the sense in which Lord Bingham used it in Tweed for fairly disposing of the matter. If the claimants have a case on legitimate expectation, it derives from the meeting of 8 February and the letter of 17 February. The later circular of 30 March, the oblique document of 19 June and the subsequent admission – indeed almost an apology in paragraph 7 of Mr Nawaz’s second witness statement – are matters which can quite properly be made the basis for submissions at the substantive hearing, but I do not see that it would be right, let alone necessary, for the fair disposal of the case to make a sweeping order requiring the production of internal documents beyond what has already been produced in correspondence in this litigation or in answer to the Freedom of Information Act request. It is not enough, as was submitted 30   By contrast, in R (on the Application of Primary Health Investment Properties Ltd) v Secretary of State for Health [2009] EWHC 519 (Admin) voluntary disclosure following a specific disclosure request did reveal documents that were decisive. 31   R (on the Application of Actis SA, Actis Insulation Ltd) v Secretary of State for the Communities and Local Government [2007] EWHC 344 (Admin).

124 Disclosure almost in passing on behalf of the claimants, to say that if the defendants had nothing to hide, they should not object to widespread disclosure. The test in judicial review remains, as their Lordships made clear in Tweed, more restrictive than in an ordinary claim in the Queen’s Bench or Chancery Division general lists, where there is a presumption in favour of disclosure of all unprivileged documents relevant to the issues in the case. The claimants either have a case based on the early dealings between the parties or they have not. I make no order for disclosure beyond the limited one I have already indicated.32

With hindsight, this decision appears to have been unwise. At the substantive hearing before Charles J, the claimants succeeded in establishing that their legitimate expectation had been unlawfully frustrated and that the Approved Document was thereby inapplicable to them.33 Charles J appended to his judgment a schedule containing detailed and trenchant criticism of the defendant’s breach of its duty of candour and its failure to furnish adequate evidence to explain its actions.34 This case suggests that the judiciary are yet to appreciate fully the change of approach mandated by Tweed.

C.  Grounds for Refusing Disclosure There are five main grounds on which disclosure can be resisted in judicial review proceedings. First, disclosure may be resisted on the basis that the material is not relevant to the case advanced by the claimant. Second, disclosure will be ordered only if the material in question is necessary to enable the dispute to be disposed of fairly and justly.35 For example, in R (Friends of the Earth) v Secretary of State for Business Enterprise and Regulatory Reform36 McCombe J refused to order disclosure in a claim alleging that the government had failed to comply with its duties under the Warm Homes and Energy Conservation Act 2000 by not ending ‘fuel poverty’. The claimant sought disclosure of all records of meetings, agendas, minutes, etc relating to meetings between the Ministerial Group and the Fuel Poverty PSA Management Board. It also sought all material evidencing the decision-making process leading to the final decision that it was not reasonably practicable to take further measures to meet the relevant statutory targets. However, as McCombe J pointed out, this further material was not necessary to resolve what was in truth a discrete issue of statutory interpretation, namely whether the target duties imposed by the Act were legally enforceable or whether the sanction for failing to meet the targets was political only. Another good example of the necessity test is the decision in Bard Campaign v Secretary of State for Communities and Local Government.37 The case concerned a judicial review challenge to the government’s eco-towns policy. The claim alleged that there had been inadequate consultation in respect of the policy and the process of beginning to shortlist sites for an eco-town. The challenge was principally focused on a consultation document issued in April 2008 entitled ‘Eco-towns: Living a Greener Future’ (‘ELGF’). The ELGF shortlisted 15 potential eco-town sites and sought preliminary views on these. It asked that   Ibid, paras 12–13.   [2007] EWHC 2417 (Admin). 34   See Schedule D, ‘The evidence of and explanations provided by the Department’ in Charles J’s judgment (ibid). 35   Tweed (above n 1) para 3 (Lord Bingham). 36   R (on the Application of Friends of the Earth) v Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 2983 (Admin). 37   Bard Campaign v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin). 32 33

Disclosure in Environmental Claims  125 responses to ELGF be sent no later than 30 June 2008. The claimants made requests under the Environmental Information Regulations for large quantities of documentation relating to the shortlisting process, stating that they required this information in order to make their consultation responses. The defendant replied to say that because of the volume of material requested, additional time would be required to answer the information request. Some of the information requested was eventually provided 18 days before the ELGF consultation period ended, but much was withheld, relying on various exemptions. Walker J rejected as misconceived an application for specific disclosure of the withheld documentation on the basis that disclosure was not necessary. None of the information sought was required in order to allow consultation responses, and hence it also did not need to be disclosed for the fair disposal of the judicial review proceedings. Third, the sheer volume of material that it would be necessary to consider disclosing can be a basis for resisting disclosure.38 Fourth, disclosure may be resisted on the basis of confidentiality.39 But as McCombe J explained in Friends of the Earth,40 where there is no claim to public interest immunity, confidentiality does not automatically protect documents from being disclosed because it is for the court to balance the relevance of the documents with the need for disclosure in the face of the general principle of confidentiality. Finally, public interest immunity is also a basis on which disclosure may be refused.41

III.  Disclosure in Environmental Claims

A.  The Starting Point Many environmental judicial review claims relate to planning decisions, and that is an area in which the courts have been sceptical of the need for disclosure. In R (Newsmith Stainless) v Secretary of State for the Environment, Transport and the Regions,42 Sullivan J stated that in planning challenges, the starting point must be that little by way of formal evidence need be produced beyond: (a) the decision itself; and (b) the material before the decision-maker relevant to the ground of challenge being raised. Good reasons must be adduced to explain why the particular case in hand requires disclosure of anything additional, such as internal correspondence.

B.  Internal Correspondence In terms of the information that was before the decision-maker, this will often be readily available to the claimant, for example published government policies, guidance and advice.   Tweed (above n 1) para 4 (Lord Bingham); and para 37 (Lord Carswell).   Ibid, para 4 (Lord Bingham); paras 33 and 37 (Lord Carswell); and para 57 (Lord Brown). See also R (on the Application of Bedford) v London Borough of Islington [2002] EWHC 2044 (Admin), [2003] Env LR 22, in which Ouseley J held that a report commissioned by the defendant council on the cost estimates and deliverability of the proposed relocation of Arsenal football stadium need not be disclosed because it was ‘shot through with the confidential information of third parties’. 40   Above n 37, para 14. 41   Tweed (above n 1) para 33 (Lord Carswell). 42   R (on the Application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74. The case was a statutory challenge pursuant to section 288 of the Town and Country Planning Act 1990 to an Inspector’s decision. 38 39

126 Disclosure However, that will not always be the case, and there may sometimes be additional documents that the claimant says were or were not material in the impugned decision – or that shed some light on why the decision-maker acted as they did. For example, in R (Bedford) v Islington,43 the claimant relied (unsuccessfully) on internal email exchanged between officers to argue that the officers’ report to committee was defective and/or that the councillors had been misled into thinking that the case for the development of the new Arsenal football stadium was clear and all issues had been resolved. It is strongly arguable that decision-makers should be required to disclose any internal consultation or reports that were summarised in an officer’s report or that are known to have been relied upon by officers in reaching certain conclusions which were material to their decision. The summary may have been inaccurate or misleading, or the reliance misplaced, and these are errors that can come to light only if the background documentation is disclosed. However, an application for specific disclosure for such background documentation is unlikely to succeed unless there is some solid basis for suspecting that an error has been made. Otherwise, the application is likely to be regarded by the court as an imper­ missible ‘fishing expedition’, and disclosure will be refused.

C.  Submissions to Ministers The argument made in the previous paragraph is supported by the increased willingness of the courts to require disclosure of submissions made to ministers before they take their decisions. In the past, such documentation was considered to be subject to public interest immunity and not disclosable, but now disclosure will readily be ordered and in many cases will be made voluntarily. For example, in R (Redcar and Cleveland Borough Council) v Secretary of State for Business Enterprise and Regulatory Reform,44 a submission to the Minister advising him to grant consent for an offshore windfarm was disclosed and even quoted in the High Court’s judgment.45 The decisive argument in favour of disclosing advice to ministers is that the ‘best evidence rule’ requires the court to be presented with the best evidence of a particular fact, rather than secondary evidence. A witness statement summarising the advice given, even if honestly and diligently prepared, may distort the picture. As Lord Bingham recognised in Tweed, ‘the document itself is the best evidence of what it says’.46 The Court of Appeal accepted that the best evidence rule requires disclosure of submissions to the Minister in R (National Association of Health Stores) v Secretary of State for Health.47 The appellant challenged the prohibition of the sale for medicinal purposes of kava-kava, a herbal tranquilliser, and its use in foodstuffs. After obtaining information and advice, the Secretary of State had made orders prohibiting the sale of kava-kava for medicinal and food purposes. It was alleged that the Minister had authorised these orders in ignorance of relevant information. The defendant had filed a witness statement describing the Department’s internal decision-making process and summarising the advice given to the   R (on the Application of Bedford) v London Borough of Islington [2003] Env LR 22.   R (on the Application of Redcar and Cleveland Borough Council) v Secretary of State for Business Enterprise and Regulatory Reform [2008] EWHC 1847 (Admin). 45   Ibid, para 59. 46   Tweed (above n 1) para 4. 47   R (on the Application of National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154. 43 44

Disclosure in Environmental Claims  127 Minister. At first instance, an application for disclosure of the submission was refused, and it was not renewed in the Court of Appeal. Nevertheless, Sedley LJ held that the parties’ reliance on witness statements alone meant that the Court was ‘being required to ignore the best evidence rule by being made to rely on a second-hand account of a document of which the original was available’.48 He explained that absent issues of public interest immunity, disclosure of ministerial submissions was a matter of obligation, not of choice: [T]here was no question of public interest immunity. (If there had been, of course, secondary evidence would have been as inadmissible as primary evidence.) It was simply that it was contrary to policy to make voluntary disclosure of ministerial briefings. If that is so, then it seems to me entirely inconsistent to tender and rely on a secondary account instead. The courts would not allow a private litigant to do this, and in a legal system in which the state stands before the courts on an equal footing with its citizens there is no good reason to allow government to do it . . . . . . But for this tactical consensus we were in agreement that we would have required the briefing to be produced. The best evidence rule is not simply a handy tool in the litigator’s kit. It is a means by which the court tries to ensure that it is working on authentic materials. What a witness perfectly honestly makes of a document is frequently not what the court makes of it. In the absence of any public interest in non-disclosure, a policy of non-production becomes untenable if the state is allowed to waive it at will by tendering its own précis instead.49

Sedley LJ argued that the first instance judge had been unduly protective of the government in refusing to order disclosure. He pointed out that judicial review claimants require permission to bring their claims in order to protect public bodies against vexatious claims. If permission is given in the light of the public body’s initial response, then that is a signal that there is a real prospect that the public body acted ultra vires, and full disclosure should be made to enable the court to adjudicate.50

D.  Disclosure and the Environmental Information Regulations It is important to consider the interaction between the Environmental Information Regulations (EIR) and disclosure in judicial review proceedings. A request under the EIR, made before or at the same time as the letter before claim, can be a useful way of obtaining information to support a prospective judicial review claim. There are two ways in particular in which the EIR provide a more extensive right of access to information compared to the disclosure process. First, in a disclosure application the claimant must demonstrate that the request is necessary and relevant to the contemplated grounds of challenge. As explained above, the courts are, following Tweed, astute to resist ‘fishing expeditions’. By contrast, no test of relevance or necessity applies under the EIR, and prospective claimants may fish to their heart’s content. The second way in which the EIR right of access to information is more extensive relates to timing. Although the CPR makes provision for applications to be made pre-commencement of proceedings,51 the court may make an order under this rule only if the applicant and respondent are likely to be party to subsequent proceedings and where, if proceedings had started, the respondent’s duty by way of standard disclosure (set out in CPR r 31.6)   Ibid, para 46.   Ibid, paras 47 and 49. 50   Ibid, para 50. 51   See CPR r 31.16; and s 33 Senior Courts Act 1981. 48 49

128 Disclosure would extend to the documents or classes of documents of which the applicant seeks disclosure. The Court must also be satisfied that disclosure before proceedings have started is desirable in order to: (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs. No such restrictions apply under the EIR, which can be used equally freely before proceedings are issued as they can afterwards. But information requests under the EIR can ultimately prove to be futile in terms of assisting the claimant in judicial review proceedings because of the different timescales that apply to dealing with the information request and determining the judicial review claim. Where the requests are wide-ranging, the public authority is likely to rely on Regulation 7 of the EIR in order to extend the 20-day period for a response to a longer period. While this allows for an extension for only a ‘reasonable time’, given the strict and short time limits applicable in judicial review, it is likely that any claim for judicial review would have to be made before the information request was complied with. Moreover, where the request is refused, it is likely that the EIR will be of no further use. While a complaint can be made to the Information Commissioner, the time taken to consider this is likely to render it useless in terms of any judicial review proceedings. The Information Commissioner usually takes more than 12 months to issue a formal decision notice, and even then his decision is not final because it can be appealed to the Information Tribunal and then the High Court and beyond. Any judicial review proceedings would be over long before the final decision in relation to the EIR request was given. This problem of timing is compounded by the fact that the courts are reluctant to allow disclosure applications to be made in order to short-circuit the EIR and the time-consuming appeal system that they create. A good example of this refusal to order disclosure in judicial review proceedings where an alternative remedy by way of appeal to the Information Tribunal is available is the decision of Beatson J in R (Alison Hardy) v Milford Haven Port Authority.52 The claimant wished to challenge the grant of planning permission in respect of Milford Haven. A request for information under the EIR had been refused, and the claimant had complained to the Information Commissioner. The Information Commissioner upheld the complaint, but the defendant then appealed to the Information Tribunal. The claimant sought to short-circuit this appeal stage by the device of judicial review proceedings aimed at the refusal to disclose. Beatson J refused permission because of the availability of the alternative remedy by way of an appeal to the Information Tribunal. He explained that the EIR are crafted to contain exceptions and to balance the public interest against the desirability of disclosing information; accordingly, these provisions ought not to be readily circumvented: The defendant resists leave on a number of grounds. First, the claimant has an alternative remedy and has pursued that alternative remedy to the Information Commissioner and to the information Tribunal under the regulations. Mr Price-Lewis QC, supported by Mr Tromans on behalf of the first interested party, submitted that the regime dealing with public access to information of this sort in those regulations is the means to obtain such information. The regulations contain crafted exceptions and requirements to balance the different public interests which could be avoided in judicial review proceedings. In the light of the inapplicability of the Freedom of Information Act 2000 to the Port Authority, he argued that the Environmental Information Regulations are the means by which environmental information is made available . . . 52   R (on the Application of Alison Hardy) v Milford Haven Port Authority [2007] EWHC 1883 (Admin), [2007] EWCA Civ 1403.

Disclosure in Environmental Claims  129 Having taken account of the submissions, I have concluded that this is not a case in which this court should grant permission. In relation to environmental information, Mr Wolfe accepts that the claimant has an alternative remedy under the regulations. That remedy has been pursued and indeed has been pursued since 15 November 2005 – over a year before these proceedings were launched. To allow judicial review in relation to such material would be duplication and would risk circumventing the system in the regulations, both procedurally and substantively. It would risk doing so substantively because of the limitations to the right of access to information and the exceptions to the right to information set out in Regulation 12.53

Therefore, although the EIR are in many respects more generous in their grant of access to information, the time-consuming decision-making process, coupled with the extensive levels of appeal, means that practically they may not assist a claimant for judicial review if the defendant refuses to accede to the information request.

  Ibid, paras 20 and 23.

53

7 Costs and Litigation Funding I. Costs

The general costs rules of civil litigation apply equally to judicial review proceedings. Therefore the cost-shifting rule is usually applied to enable the successful party to recover its costs from the losing party. Occasionally, where the losing party is found by a court to have acted responsibly and appropriately in bringing the judicial review challenge, and the case involved a clear public interest, the court might in its discretion decide after the event not to award any costs to the successful party.1 However, at the outset, most litigants face a stark choice between commencing judicial review proceedings with the Damoclean sword of a large adverse costs order hanging over them or leaving public law wrongs unchallenged. Facilitating economic access to justice in the Administrative Court is a key challenge, and as we shall see, it is the courts rather than government who have been creating innovative solutions in order to assist impecunious claimants.

A.  Costs at the Permission Stage If permission is granted, whether on the papers or orally, a claimant’s costs will be reserved for the substantive hearing.2 In R (Mount Cook Land and Mount Eden Land) v Westminster City Council,3 the Court of Appeal established that generally a defendant or interested party who has complied with the Pre-action Protocol4 should be paid its costs of objecting successfully to permission only in relation to the costs of the acknowledgment of service, not for attendance at any oral hearing.5 This is because the defendant and interested party are not obliged to attend an oral permission hearing.6 In Mount Cook, Auld LJ held that only in exceptional circumstances should the court order an unsuccessful claimant to pay a defendant’s costs of attending the oral hearing.7 The Administrative Court’s discretion in this regard is broad, but the Court of Appeal indicated that exceptional circumstances might include:   New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466 PC.   Queen’s Bench Division (Collins J), ‘Judicial Review: Costs (Practice Statement)’ [2004] 1 WLR 1760. 3   R (on the Application of Mount Cook Land Ltd and Mount Eden Land Ltd) v Westminster City Council [2003] EWCA Civ 1346, [2004] CP Rep 12. 4  Ministry of Justice, ‘Pre-action Protocol for Judicial Review’, http://www.justice.gov.uk/‌ civil/‌ procrules_ fin/‌contents/protocols/prot_jrv.htm. 5  The Senior Courts Act 1981, s 51 gives the courts jurisdiction to award costs at an oral permission hearing attended by both parties: R v Camden LBC, ex p Martin [1997] 1 WLR 359, 365. 6   Practice Direction (PD) 54A, paras 8.5–8.6. 7   Mount Cook (above n 3) para 76. 1 2

Costs  131 i) the hopelessness of the claim; ii) persistence by the claimant after having been alerted to facts or law demonstrating the hopelessness of the claim; iii) the extent to which the court considers that the claimant has sought to abuse the process of the court for collateral purposes; iv) whether, as a result of full argument and the consideration of documentary evidence, the claimant has effectively had a substantive hearing; and v) whether the claimant has substantial resources, which he has used to pursue an unfounded claim. Auld LJ defended this approach in these terms: Such an approach seems to me to accord with public policy in providing ready access to the courts by individuals or bodies seeking relief from and/or to draw attention to actual or threatened transgressions of the law by public bodies, whilst, in exceptional cases protecting those bodies and the public that funds them from unnecessary, burdensome and costly substantive litigation. If properly and consistently applied by the courts, I can see nothing about it that would, as Mr. Steel suggested, undermine the fairness and probity of judicial review as a means of control of the administration or run contrary to Article 6.1 of the European Convention of Human Rights, Lord Woolf ’s Civil Justice Reforms or the adoption of them in this context in the Bowman Report.8

On the facts of the case, the combination of the hopelessness of the case; the manifest intention of the claimant to use its vast resources to bring judicial review proceedings as a means of exerting commercial pressure on its rival; and the claimant’s attempt effectively to secure a full hearing at the permission stage were held to amount to exceptional circumstances, thereby justifying an award of costs against Mount Cook. In judicial review proceedings, a claimant must seek the court’s permission before commencing a claim, and care must therefore be taken to ensure that the risk of an adverse costs award at the permission stage does not seriously impede the right of citizens to have access to justice. In R (Ewing) v Office of the Deputy Prime Minister,9 the Court of Appeal strongly recommended the introduction of a specific rule or Practice Direction to deal with costs at the permission stage. Carnwarth LJ proposed that the following approach should be followed pending the introduction of such a rule: where the proposed defendant or interested party wishes to seek costs at the permission stage, the acknowledgment of service should include an application for costs and should be accompanied by a schedule setting out the amount claimed; the judge refusing permission should include in the refusal a decision whether to award costs in principle, and if so, an indication of the amount he proposes to assess summarily; the claimant should be given 14 days to respond in writing to the judge’s decision and his indication and serve a copy of the response on the defendant; the defendant should then have seven days to reply in writing; and the judge should then decide and make an award on the papers.10

  Ibid, para 77.   R (on the Application of Ewing v Office of Deputy Prime Minister [2005] EWCA Civ 1583, [2006] 1 WLR 1260, para 46 (Carnwarth LJ). 10   Ibid, para 47. 8 9

132  Costs and Litigation Funding Brooke LJ added that where a claimant fails to comply with the Pre-action Protocol, it is reasonable to expect that the defendant will be put to greater expense in preparing summary grounds for contesting the claim, and this ought to be reflected in any costs order made against the claimant if permission is refused.11 However, where a Pre-action Protocol letter has been sent, the defendant’s summary grounds of opposition frequently will not need to do more than refer to the letter in reply. In Ewing the ‘summary grounds’ of the two defendants and interested parties had occupied 50 pages and in two cases attracted (unsuccessful) applications for costs for £6,400 and £10,700. Following an unsuccessful application for permission to apply for judicial review, if a defendant seeks ‘preparation costs’ in addition to ‘acknowledgment costs’ (in the sense of settling a short-form summary grounds of resistance), it is for the defendant to justify these.12 The decision of Flaux J in R (English) v East Staffordshire Borough Council,13 illustrates the grounds on which a defendant may persuade the court to award ‘preparation costs’ in addition to ‘acknowledgement costs’. The claimant in English sought permission for judicial review of a decision to grant planning permission. The defendant local authority and the third-party developer sought costs of £8,800 plus value-added tax (VAT), and £28,000 plus VAT respectively. Flaux J held that the case was not the sort of ‘straightforward case’ in which the parties ought to limit themselves to summary grounds of resistance.14 Instead, the impugned planning decision was of national importance: it concerned the National Football Centre, which would be used as a venue for the 2012 Olympics. Moreover, he noted that the grounds raised by the claimant (concerning the procedural fairness and rationality of the decisions in respect of the funding of the development) ‘were ones which required some detailed analysis and dissection by both the Council and the FA/NFC Ltd if they were to be challenged effectively’.15 In these circumstances the local planning authority and the developer were both held to be entitled to their reasonable preparation costs, in addition to their costs of acknowledging service. However, the developer was not permitted to recover the costs of preparing witness statements for the permission hearing because these were held to have been unnecessary.16

B.  Costs at the Substantive Hearing 1.  The Cost-Shifting Rule Section 51(1) of the Senior Courts Act 1981 confers a very wide discretion on the courts to determine by whom and to what extent costs are to be paid. In most cases, costs are awarded 11   Ibid, para 54. Ewing also gives guidance on judicial review claims brought by a vexatious litigant. From the point of view of costs, the important points to note are that a vexatious litigant should not allow his name to be included in a claim form (even as a ‘proposed’) claimant, unless and until he has obtained the necessary leave. If s 42 Senior Courts Act 1981 permission is granted, then the order will direct that the vexatious litigant be added as an additional claimant to the application for permission, and he will then be potentially liable for any costs subsequently ordered under the Mount Cook principles. If, however, s 42 permission is refused, the vexatious litigant will not bear responsibility for any Mount Cook costs. 12   R (on the Application of Roudham & Larling Parish Council) v Breckland Council [2008] EWCA Civ 714 Costs LR 282, paras 26–31 (Buxton LJ); and R (on the Application of Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166, [2008] 1 WLR 878, paras 21–22 (Sedley LJ). 13   R (on the Application of English) v East Staffordshire Borough Council [2010] EWHC 2744 (Admin). 14   Ibid, para 59. 15  Ibid. 16   Ibid, para 60.

Costs  133 on the basis of the ‘cost-shifting rule’: the loser pays the winner’s costs, but the court is free to make a different order. Thus, rule 44.3(2) of the Civil Procedure Rules (CPR) states the following ‘general’ rule: the unsuccessful party will be ordered to pay the costs of the successful party; but the court may make a different order. The court’s discretion in not confined to determining who should pay. CPR 44.3(1) states: The court has discretion as to (a) whether costs are payable by one party to another; (b) the amount of those costs; and (c) when they are to be paid.

This discretionary power was emphasised by Lord Woolf MR in AEI Rediffusion Music Ltd v Phonographic Performance Ltd: [T]he new Rules . . . make clear that the general rule remains, that the successful party will normally be entitled to costs, [but those rules] at the same time indicate the wide range of considerations which will result in the court making different orders as to costs. From 26 April 1999 the ‘follow the event principle’ will still play a significant role, but it will be a starting point from which a court can readily depart . . . The most significant change of emphasis of the new Rules is to require courts to be more ready to make separate orders which reflect the outcome of different issues. In doing this the new Rules are reflecting a change of practice which has already started . . . It is now clear that too robust an application of the ‘follow the event principle’ encourages litigants to increase the costs of litigation, since it discourages litigants from being selective as to the points they take. If you recover all your costs as long as you win, you are encouraged to leave no stone unturned in your effort to do so.17

2.  Exercise of the Discretion in Judicial Review Cases The starting point when considering costs awards in judicial review claims is that the approach to the awarding of costs is the same in judicial review claim as in other civil proceedings.18 Under the CPR the courts seek to apportion costs, taking into account the proportion of points upon which each party was successful. Prior to the CPR, the approach was much stricter, and costs would be awarded against the claimant if the claim succeeded but a remedy was refused in the court’s discretion.19 Since the introduction of the CPR, greater flexibility has been shown, and the court is likely to consider: (a) the reasonableness of taking unsuccessful points; (b) the manner in which such points were taken; (c) the extra costs and time taken up by the particular issue; (d) the extent to which the point was related to the points that succeeded; and (e) the extent to which it is just to deprive the successful party of any or all of its costs.20 Thus, a successful claimant who takes a hopeless point can expect a reduced award of costs in order to encourage litigants to be selective in the arguments that they present.21   AEI Rediffusion Music Ltd v Phonographic Performance Ltd [1999] 1 WLR 1507, 1522–23.   R (on the Application of Smeaton) v Secretary of State for Health [2002] EWHC 886, para 7. 19   R v Trafford Borough Council, ex p Colonel Foods Ltd [1990] COD 31, although there were departures from that practice, eg, in R v Swale Borough Council and Medway Ports Authority, ex p Royal Society for the Protection of Birds (1990) 2 Admin LR 760, where the claimant was successful but obtained no remedy and no order was made as to costs. 20   Antonelli v Allen (No 2) The Times, 8 Dec 2000 (Neuberger J). 21   R (on the Application of Bateman and Bateman) v Legal Services Commission [2001] EWHC Admin 797. 17 18

134  Costs and Litigation Funding However, if the hopeless point has not in fact lengthened the preparation, evidence or hearing in any way, then the court may decide not reduce the successful claimant’s costs.22 Recovery of costs is subject to the principle of proportionality. The court will assess whether the costs incurred were ‘proportionate’ both on a global basis and in relation to each item of expenditure. The successful party may not recover more than that which was necessary had the litigation been conducted in a proportionate manner.23 Indemnity costs may be awarded in judicial review proceedings, as in ordinary civil litigation.24 In judicial review claims, unreasonable conduct justifying the award of indemnity costs often takes the form of failure to comply with a public body’s duty of full and frank disclosure. For example, in R (Banks) v Secretary of State for the Environment, Food and Rural Affairs,25 Sullivan J awarded indemnity costs and commented that obtaining information from the Department of Environment, Food and Rural Affairs (Defra) was like ‘drawing teeth without an anaesthetic’.26

C.  Interested Parties’ Costs The usual rule in judicial review proceedings is that the court will not order an unsuccessful claimant to pay two sets of costs. Thus, an interested party may not receive costs unless there was a distinct issue that required the interested party to appear at the hearing. The leading case is Bolton MDC v Secretary of State for the Environment.27 In that case it was appropriate to award costs to a third-party developer given the scale and importance of the challenge, but such awards of costs to interested parties are rare.28 Usually, interested parties oppose the claim for judicial review, but it is clear that the court may award costs in favour of an interested party who supported the claim for judicial review. This would be most likely to occur if the interested party would have been entitled to bring its own proceedings.29

D.  Costs in Discontinued and Compromised Claims If a claimant discontinues its claim without the defendant agreeing to reconsider the impugned decision, the most likely order will be for the claimant to pay the costs incurred up to the date of discontinuance.30 Where, however, the claimant discontinues the claim  Eg, R v Kirklees Metropolitan Borough Council, ex p Beaumont [2001] ELR 204.   Lownds v Home Office [2002] EWCA Civ 365, [2002] 1 WLR 2450. 24  See CPR r 44.4(1). 25   R (on the Application of Banks) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 1031 (Admin). 26   Ibid, para 34. For a recent example of an award of indemnity costs in judicial review, see R (on the Application of O) v Secretary of State for the Home Department [2010] EWHC 709 (Admin). 27   Bolton MDC v Secretary of State for the Environment [1995] 1 WLR 1176. 28  In R v Secretary of State for National Heritage, ex p J Paul Getty Trust [1997] Eu LR 407, 419B Neill LJ awarded two sets of costs where substantial and distinct forms of relief were sought against two different respondents. See also Austin v Secretary of State for Communities and Local Government [2008] EWHC 3200 (Admin); Bennett v Secretary of State for Communities and Local Government [2007] EWHC 737 (Admin); R (on the Application of A, B, X and Y) v East Sussex County Council [2005] EWHC 585 (Admin); and R (on the Application of London & South East Railway Ltd v British Transport Police [2009] EWHC 1255 (Admin). 29   R v Secretary of State for Health, ex p Eastside Cheese Company (1999) 11 Admin LR 254. 30  See the Administrative Court Office, ‘Notes for Guidance’, para 17.2. 22 23

Litigation Funding  135 because the defendant has agreed to reconsider, costs will usually be awarded against the defendant. But costs will not be awarded if the defendant has sensibly decided to avoid expense without accepting that the claim would have been likely to succeed.31 Sometimes the underlying dispute in a claim becomes academic, and the court is required to determine how to apportion the costs. In R (Boxall) v The Mayor and Burgesses of Waltham Forest LBC, Scott Baker J gave the following guidance: i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs. ii) It will ordinarily be irrelevant that the claimant is legally aided. iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional costs. iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties. v) In the absence of a good reason to make any other order the fall back is to make no order as to costs. vi) The court should take care to ensure that it does not discourage parties from settling judicial review proceedings.32

II.  Litigation Funding

This section examines how environmental judicial review claims may be funded. This is a pressing problem, and English law has yet to settle upon a fair and effective means of facil­ itating access to environmental justice. This section begins by considering the availability of public funding which is available in only very limited circumstances. Next, detailed consideration is given to the development of protective costs orders. This is a topical and fast-moving area driven by the requirements of the Aarhus Convention.33

A.  Public Funding Public funding carries two significant advantages. First, the recipient will obtain free legal representation (or be required to make only a small contribution to the cost). Secondly, the claimant will not usually be liable for paying the other party’s costs in the event of defeat.34 The Legal Services Commission provides public funding for judicial review claims as part of the Community Legal Service. Often there will be several potential challengers with sufficient interest to bring a claim for judicial review, but only some of them will be eligible for public funding. In the context 31   R v Liverpool CC, ex p Newman (1993) 5 Admin LR 669, quoted with approval in R v Secretary of State for the Home Department, ex p Harrison [2001] ACD 2. 32   R (on the application of Boxall) v The Mayor and Burgesses of Waltham Forest LBC (2001) 4 CCLR 258, para 22. 33  The Convention was signed in 1998 and came into force in 2001. See also above ch 2. 34   Access to Justice Act 1999 s 11; and PD 44, paras 21–23.

136  Costs and Litigation Funding of education, it has been held that it may be an abuse of process justifying the refusal of permission for a claim to be brought in the name of the child, rather than the parent, for the sole purpose of obtaining public funding and protecting against an adverse costs order.35 However, a different approach has been applied in the environmental context. In R (Edwards) v Environment Agency, Keith J granted permission in circumstances in which it was ‘difficult to resist the inference that [the claimant] had been put up as a claimant in order to secure public funding’.36 He held that the education cases were generally applicable, but the instant case was concerned with not so much whether the court’s process had been abused but rather whether the Legal Services Commission’s process had been abused by the claimant securing funding without the Commission being fully aware of the facts.37 Edwards suggests that if the Commission is fully appraised of all relevant facts, it will be difficult for a defendant to argue that the choice of claimant constitutes an abuse of process.

B.  Protective Costs Orders Many individuals, public interest groups and small companies are deterred from commencing judicial review proceedings because of the danger of a large adverse costs order being made against them. In response to this problem, the courts are gradually developing the jurisdiction to make protective costs orders (PCOs), that is orders made at the beginning of proceedings that declare that the claimant will not have to pay any of the defendant’s costs at the end of the case irrespective of the outcome, or that the claimant’s maximum costs liability should be capped from the outset of the litigation.38 1. The Corner House Principles The Court of Appeal gave important guidance on how the courts should exercise their power to grant a PCO. In R (Corner House Research) v Secretary of State for Trade and Industry, Brooke LJ said: We would therefore restate the governing principles in these terms: 1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: a) The issues raised are of general public importance; 35   R v London Borough of Richmond, ex p JC [2001] ELR 21, paras 31 and 69. There would, however, have to be clear evidence of abuse: R (on the Application of WB) v Leeds School Organisation Committee [2002] EWHC 1927 (Admin), para 37 (Scott Baker J). 36   R (on the Application of Edwards) v Environment Agency [2004] 3 All ER 21, para 13. 37   Ibid, para 20. 38   For an example of the latter type of PCO, see R (on the Application of CND) v The Prime Minister [2002] EWHC 2712 (Admin), where the Divisional Court made a PCO capping the claimants costs liability at £25,000. In R (on the Application of the British Union for the Abolition of Vivisection) v Secretary of State for the Home Department [2006] EWHC 250 (Admin) a cap of £40,000 was imposed. (The respondent’s predicted costs were £150,000.) In Case C-427/07 Commission v Ireland [2009] ECR I-6277 the ECJ held that compliance with the ‘not prohibitively expensive’ requirement in the Public Participation directive (2003/35/EC) could not be achieved by an after-the-event discretion not to award costs. PCOs are therefore an important way of securing compliance with this obligation. See further Road Sense v Scottish Ministers [2011] CSOH10 on 6 April 2011 the EU Commission announced infraction proceedings against the UK in respect of costs in environmental cases.

Litigation Funding  137 b) The public interest requires that those issues should be resolved; c) The applicant has no private interest in the outcome of the case; d) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; e) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.39 2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO. 3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.40

The Corner House case concerned two points of public importance: (i) issues relating to the way in which major British companies, supported by credit guarantees backed by taxpayers in accordance with a statutory scheme, do business abroad; and (ii) the nonimplementation of a government department’s published consultation policy. The Court of Appeal made a full PCO in favour of the claimant – an incorporated not-for-profit organisation with a particular interest and expertise in examining the incidence of bribery and corruption in international trade – because it was satisfied that otherwise ‘issues of public importance . . . would have been stifled at the outset’.41 In anticipation of a flood of applications for PCOs following its judgment, the Court of Appeal also laid down guidance on the procedure for seeking, resisting and setting aside such orders, as well as the costs implications of such applications. Brooke LJ held: We consider that a PCO should in normal circumstances be sought on the face of the initiating claim form, with the application supported by the requisite evidence, which should include a schedule of the claimant’s future costs of and incidental to the full judicial review application. If the defendant wishes to resist the making of the PCO, or any of the sums set out in the claimant’s schedule, it should set out its reasons in the acknowledgement of service filed pursuant to CPR r 54.8. The claimant will of course be liable for the court fee(s) for pursuing the claim, and it will also be liable for the defendant’s costs incurred in a successful resistance to an application for a PCO . . . The costs incurred in resisting a PCO should have regard to the overriding objective in the peculiar circumstances if such an application, and recoverability will depend on the normal tests of proportionality and, where appropriate, necessity. We would not normally expect a defendant to be able to demonstrate that proportionate costs exceeded £1,000. These liabilities should provide an appropriate financial disincentive for those who believe that they can apply for a PCO as a matter of course or that contesting a PCO may be a profitable exercise. So long as the initial liability is reasonably foreseeable, we see no reason why the court should handle an application for a PCO at no financial risk to the claimant at all.42 39  In Wilkinson v Kitzinger [2006] EWHC 835, [2006] 2 FLR 397, para 58 a PCO was granted, capping the claimant’s potential costs liability at £25,000, even though it was possible that the litigation would continue. 40   R (on the Application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, para 74. These principles apply equally where a PCO is sought for the first time at the appeal stage: Goodson v HM Coroner for Bedfordshire and Luton [2005] EWCA Civ 1172, [2006] CP Rep 6. The fact that the PCO was sought at the appellate stage did, however, have a bearing because it went to the question of whether it was in the public interest for the matter to be resolved at the appellate level. Since the issue had already been dealt with in a long and carefully reasoned judgment by Richards J at first instance, which would continue to be available to provide guidance for coroner, the application of a PCO was rejected. 41   Corner House (ibid) para 145. 42   Ibid, para 78 (notes omitted). At para 80, the Court of Appeal also considered the position of interested parties: ‘If an interested party such as a developer in a planning dispute wishes to resist the making of a PCO, it is likely to be entitled to its costs attributable to that part of its acknowledgement of service that relates to this issue, subject to the same considerations as to the proportionate costs of any resistance we have set out in paras 78 and

138  Costs and Litigation Funding Despite these bold developments, the Court of Appeal held that it did not have jurisdiction to make the type of order made by the Supreme Court of Canada in British Columbia (Minister of Forests) v Okanagan Indian Band, whereby the defendants were obliged to finance the claimant’s costs at first instance as the litigation proceeded.43 PCOs are not confined to claimants. In R (Ministry of Defence) v Wiltshire and Swindon Coroner, a coroner applied for a PCO in respect of a judicial review by the MOD of a verdict of unlawful killing from nerve gas testing at Porton Down.44 Collins J held that there was no reason in principle why a PCO might not be made in favour of an individual with a public law role if there was no costs protection available from any other body. On the facts, however, the coroner would have been indemnified by the local authority in the event of an adverse costs order being made against him, and his concern that the authority would be reluctant to expose itself to substantial costs was held to be immaterial to the court’s discretion to make a PCO. 2.  Post-Corner House: Restrictive Application in Non-environmental Cases The case law decided immediately after the Corner House decision is characterised by a restrictive application of the Corner House criteria in non-environmental cases. In particular there was considerably disagreement as to the interpretation of and necessity for the ‘no private interest’ criterion. It is important to set out this restrictive approach in detail so that the significance of the Aarhus Convention in environmental cases can be fully appreciated. In Goodson v HM Coroner for Bedfordshire, the requirement that the applicant for a PCO have ‘no private interest in the outcome of the case’ was applied extremely restrictively.45 The Court of Appeal’s interpretation of this criterion deprived most litigants of the ability to obtain a PCO, and it was a retrograde step, threatening to negate the effect of the Corner House judgment. Mrs Goodson had sought a full coroner’s inquiry into the circumstances surrounding her father’s death but was refused a PCO because the Court of Appeal held that she had a private interest in the outcome. Taking a very wide view of what constitutes a private interest in the outcome of public law litigation, the court held that ‘a personal litigant who has sufficient standing to apply for judicial review will normally have a private interest in the outcome of the case’.46 The Court of Appeal appeared to consider that the only parties without an interest and who would therefore be eligible for a PCO were pressure groups such as Corner House or ‘a 79 above. The judge should not normally allow more than one set of additional costs because he will expect different interested parties to make common cause on this issue. Similar considerations will apply to any application to set the PCO aside, although this should be a very rare event.’ 43   British Colombia (Minister of Forests) v Okanagan Indian Band (2003) 114 CCR 2d 108. 44   R (on the Application of the Ministry of Defence) v Wiltshire and Swindon Coroner [2005] 4 All ER 40. 45   Goodson v HM Coroner for Bedfordshire [2005] EWCA Civ 1172. Cf the more liberal approach of the Outer House in the Scottish case of McArthur v Lord Advocate [2006] SLT 170. That case involved challenges to the failure of the Scottish Ministers to hold an inquiry into the deaths of three people who had been infected with Hepatitis C in the course of receiving blood transfusions. The Claimants were all close relatives of the deceased. The Outer House held that ‘although the petitioners are relatives of the deceased, they have no financial interest in pursuing the actions.’ Indeed, those particular claimants were chosen to bring the claim rather than a pressure group because only they would have standing under Scottish law. The form of PCO contemplated by the Outer House is also noteworthy. The court noted that if each of the three petitioners was ordered, at the PCO stage, to pay only her proportion of the respondent’s, then the maximum costs liability they could face would be limited to £10,000. It is, however, questionable whether the Court of Appeal in Corner House sanctioned such an order, which is not really a PCO but rather a prospective exception to the general rule of joint and several liability. 46   Goodson (ibid) para 28.

Litigation Funding  139 public-spirited individual . . . in relation to a matter in which he has no direct personal interest separate from that of the population as a whole’.47 There are three reasons why the approach in Goodson was unduly restrictive. First, the Court of Appeal considered: [T]he court in the Corner House case was well placed to decide where to draw the line in terms of public interest. The requirement that the applicant must have no private interest in the outcome of the case is expressed in unqualified terms, although the court could easily have formulated this part of the guidelines in more qualified terms . . . if it had thought it appropriate to do so.48

This is an overstatement. This part of the Corner House judgment was only obiter dicta at most, given that the issue was irrelevant on the facts of the case and was not addressed by the parties. Secondly, the Corner House ‘requirements’ to which the Court of Appeal in Goodson referred were expressed to be only ‘guidance’ in Corner House itself. The overriding concern in Corner House was that the courts’ discretion as to costs should be exercised flexibly in the interests of justice. Thirdly, the Human Rights Act (HRA) 1998 arguably mandates a more liberal approach in the context of investigations into deaths. The positive obligation to investigate deaths pursuant to Article 2 of the European Convention on Human Rights (ECHR), especially when read with the implied right of access to a court under Article 6 of the EHCR, arguably requires better provision for economic access to justice than is afforded by Goodson. Moreover, since section 7 of the HRA 1998 confers standing only on those who are ‘victims’, Goodson would counter-intuitively exclude the possibility of a PCO in all claims by an individual seeking to rely on Convention rights. There has now been a retreat from the Goodson approach. In R (England) v London Borough of Tower Hamlets,49 the Court of Appeal doubted the workability of the ‘no private interest’ criterion and observed that different considerations may apply in a case where the interest in question was not a private law interest but merely an interest that the claimant shared with other members of a group.50 The Court of Appeal also called upon the Civil Procedure Rules Committee to review this issue in the light of the findings and the recommendations of the Kay report.51 Similar calls for a flexible application of the Corner House principles were made by the Court of Appeal in R (Compton) v Wiltshire Primary Care Trust.52 The judicial review claim in that case related to decisions concerning services at a hospital, in particular the allegation that the decisions amounted in effect to closure. The claim was brought by an individual on behalf of a local campaign to save the hospital. The defendant argued that hospital closure cases were of local interest only and did not meet the public interest requirements set by Corner House.

 Ibid.   Ibid, para 27.   R (on the application of England) v Tower Hamlets LBC [2006] EWCA Civ 1742. 50  See also Wilkinson v Kitzinger [2006] EWHC 835 (Fam), [2006] 2 FLR 397, a Family Division case in which Potter P expressed doubts as to the appropriateness or workability of the ‘no private interest’ criterion. He regarded the nature and extent of the ‘private interest’ and its weight and importance to be a flexible element in the court’s consideration of what fairness and justice required. 51  Liberty, Litigating in the Public Interest: Report of the Working Group on Facilitating Public Interest Litigation (‘The Kay Report’), 2006, http://www.unece.org/env/pp/compliance/C2008-23/‌Amicus%20brief/‌AnnexILitigatin gthePublicInterest.pdf. 52   R (on the Application of Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749, [2009] 1 WLR 1436. 47 48 49

140  Costs and Litigation Funding Waller LJ considered that the issues of general public importance and public interest in the issues being resolved were difficult issues to separate: Where someone in the position of Mrs Compton is bringing an action to obtain resolution of issues as to the closure of parts of a hospital which affects a wide community, and where that community has a real interest in the issues that arise being resolved, my view is that it is certainly open to a judge to hold that there is a public interest in resolution of the issues and that the issues are ones of general public importance. The paragraphs in the Corner House case are not, in my view, to be read as statutory provisions, nor to be read in an over-restrictive way.53

Waller LJ also approved Sir Mark Potter P’s view in Wilkinson v Kitzinger54 that the ‘no private interest’ criterion might be dispensed with if the other Corner House conditions were met.55 There has also been disagreement as to the relevance of the state of the claimant’s finances. In R (British Union for the Abolition of Vivisection) v Secretary of State for the Home Department,56 Bean J held that it was not a necessary condition for obtaining a PCO that the claimant’s finances be dire. The British Union for the Abolition of Vivisection (BUAV) had significant financial reserves and could have afforded to pay the respondent’s projected costs without drastically scaling down its activities. Bean J held that it was sufficient to obtain a PCO that it was not ‘the responsible and reasonable decision . . . to put £150,000 or even £100,000 to £120,000 of its money at risk . . . in addition to the more limited but still significant costs which it will incur itself ’.57 This generous approach may be contrasted with the restrictive approach in the Scottish case McArthur v Lord Advocate,58 in which the Outer House held that one of the petitioners had a house worth a ‘significant amount of money’, and the fact that she did not want to sell it did not mean that she would not be able to raise money on the security of it. Thus, while the Court was satisfied that the petitioners would discontinue proceedings if there were no PCO, it was not satisfied that they would be acting reasonably in doing so: ‘cannot pay’ and ‘will not pay’ are not synonymous with each other. 3.  PCOs in Environmental Cases: The Early Days The courts’ early consideration of PCOs in environmental cases was characterised by a denial that environmental cases require treatment different from any other claim. As such, the courts refused to modify the Corner House principles to enable PCOs to be obtained more readily in environmental judicial review claims. In R (Buglife) v Thurrock Thames Gateway Development Corporation,59 the claimant conservation trust (‘B’) applied for judicial review of the decision of the local authority to grant planning permission for the development of a site that contained endangered invertebrate species. The judge, who refused B’s application for judicial review, ordered that there be an upper limit of £10,000 on the total amount of costs recoverable by and from B   Ibid, para 23; and see also para 77 (Smith LJ).   Wilkinson v Kitzinger [2006] EWHC 835, [2006] 2 FLR 397. 55  Ibid. 56   R (on the Application of the British Union for the Abolition of Vivisection v Secretary of State for the Home Department [2006] EWHC 250 (Admin). 57   Ibid, para 18. 58   Above n 45. 59   R (on the Application of Buglife: The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209. 53 54

Litigation Funding  141 in the proceedings up to the date of the hearing before him. On appeal B argued inter alia that the £10,000 limit on its ability to recover costs if it won should be relaxed or removed. The Court of Appeal refused to relax the limit on the costs recoverable should the claimant win. It held that following Corner House and Compton, the beneficiary of a PCO should generally have the recoverability of its costs limited to a reasonably modest amount and should also expect the costs to be capped. However, the defendant’s liability should not necessarily be capped in the same amount as the claimant’s; it will depend upon the circumstances. A similar unwillingness to see PCOs in environmental cases governed by different, more liberal principles can be seen in the Court of Appeal decision in Morgan v Hinton Organics.60 The underlying dispute was an environmental challenge brought by way of private law nuisance proceedings. The particular issue for the Court of Appeal concerned the law­ fulness of an interim order for costs made against the claimants in the order of £25,000 following the discharge of an interim injunction. Carnwath LJ undertook a detailed analysis of the Aarhus Convention and also the case law on PCOs (although technically the discussion of PCOs in Morgan was obiter because the case concerned private law, not public law, proceedings). On the issue of the private interest test, Carnwath LJ concluded: On a strict view, it could be said, Goodson remains binding authority in this court as to the application of the private interest requirement. It has not been expressly overruled in this court. However, it is impossible in our view to ignore the criticisms of this narrow approach referred to above, and their implicit endorsement by this court in the last two cases. Although they were directly concerned with other aspects of the Corner House guidelines, the ‘flexible’ approach which they approved seems to us intended to be of general application. Their specific adoption of Lloyd Jones J’s treatment of the private interest element makes it impossible in our view to regard that element of the guidelines as an exception to their general approach. The hope that the Rules Committee might be able to address these issues in the near future has not been realised. In the meantime, in our view, the ‘flexible’ basis proposed by Waller LJ and approved in Buglife should be applied to all aspects of the Corner House guidelines.61

The call for flexibility did not, however, extend to applying different criteria to the award of PCOs in environmental cases, and Carnwarth LJ noted: This court has not encouraged the development of separate principles for ‘environmental’ cases (whether defined by reference to the [Aarhus] Convention or otherwise). In particular the principles governing the grant of Protective Costs Orders apply alike to environmental and other public interest cases. The Corner House statement of those principles must now be regarded as settled as far as this court is concerned, but to be applied ‘flexibly’. Further development or refinement is a matter for legislation or the Rules Committee.62

4.  PCOs in Environmental Cases: The Extra-Judicial Reports The restrictive approach of the courts to the granting of PCOs has been subject to extrajudicial criticism in two major reports into litigation funding. The first, published in July 2006, was the Liberty report chaired by Maurice Kay LJ.63 The Kay Report recommended that lack of private interest should not be a condition for the grant of a PCO. Instead, the   Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107.   Ibid, paras 39–40. 62   Ibid, para 47. 63   Kay Report (above n 51). 60 61

142  Costs and Litigation Funding Report proposed that the nature and extent of an applicant’s interest should be relevant to the court’s consideration of what fairness and justice required. In addition, the Kay Report made four further recommendations: (i) inability to proceed without a PCO should not be determinative; (ii) it is reasonable to impose a cap on the costs a claimant in receipt of a PCO could recover as a quid pro quo; (iii) whether or not the claimant’s lawyers are acting pro bono should not be given too much weight; and (iv) there should be no costs liability for making an unsuccessful PCO application. The second major report examining PCOs was published in May 2008: the report of the Working Group on Access to Environmental Justice, which was chaired by Sullivan J (as he then was).64 Sullivan J, as the Report’s lead author, summed up the UK position in his foreword: For the ordinary citizen, neither wealthy nor impecunious, can there be any real doubt that the Court’s procedures are prohibitively expensive? Unless more is done . . . it will only be a matter of time before the UK is taken to task for failing to live up to its obligations under Aarhus.65

The Aarhus Convention featured prominently in the Report. The Executive Summary stated: 1. The third pillar of the Aarhus Convention is concerned with access to environmental justice. It gives rights to members of the public, including environmental organisations, to challenge the legality of decisions by public authorities to grant consent for a wide range of activities as well as any other acts or omissions that are contrary to the provisions of national laws relating to the environment. Article 9(4) of the Convention requires that procedures for rights to access must ‘provide adequate and effective remedies, including injunctive relief as appropriate and be fair, equitable, timely, and not prohibitively expensive’. 2. The UK government has ratified the Aarhus Convention and is largely relying on existing judicial review procedures to fulfil these access to environmental justice requirements. The liberal approach generally taken by the courts in England and Wales to questions of standing for judicial review in environmental cases reflects the Aarhus obligations in this respect. 3. We consider that the requirement under Aarhus that procedures must not be prohibitively expensive is not limited to the court fees involved in making a judicial review application, but is related to the total costs of making an application including the exposure to the risk of costs should the application fail. These cost requirements equally apply to the obtaining of interim injunctive relief, which can be of critical environmental importance where irreparable or significant damage may be caused before the full case is heard.66

The Sullivan Report concluded that ‘[t]he availability of a Protective Costs Order (PCO) at an early stage in proceedings can provide an important mechanism in meeting the requirements on access to justice’.67 The Report suggested that not only should the ‘no private interest’ test be inapplicable (as being particularly ill-suited to environmental cases) but also in cases falling within the scope of Aarhus, the requirement to show that the issues 64   Working Group on Access to Environmental Justice, Ensuring Access to Environmental Justice in England and Wales (2008). The Working Group consisted of: Mr Justice Sullivan (chair); Carol Hatton, Solicitor, WWF-UK; James Kennedy, Solicitor, Freshfields Bruckhaus Deringer; Richard Macrory QC, Barrister and Professor of Environmental Law, University College, London; Ric Navarro, Director of Legal Services, Environment Agency England and Wales; Richard Stein, Solicitor, Leigh Day & Co; Colin Stutt, Barrister, Head of Funding Policy, Legal Services Commission; and David Wolfe, Barrister, Matrix Chambers. 65   Ibid, 2. 66   Ibid, 3. 67   Ibid, 4.

Litigation Funding  143 raised are of ‘general public importance’ should be dis-applied. Rather, it is to be assumed that upholding environmental law is always of ‘general public importance’. The Sullivan Report suggested the only criteria for a PCO in an environmental judicial review are: (a) the case is one that falls within Aarhus; (b) permission is granted; and (c) the costs and risk of exposure to costs would be prohibitively expensive to the claimant. In other words, if an individual Aarhus claimant, acting reasonably in the circumstances, would be prohibited by the level of costs or cost risks from bringing the case, then the court must make some form of PCO. Importantly, the Sullivan Report did recognise that it was desirable to retain some level of costs risk in judicial review proceedings: ‘[p]rovided that the overall level of costs including the risk and uncertainties of exposure does not make litigation prohibitively expensive, some exposure to costs can provide an important incentive to ensure commitment by the claimant and avoid frivolous claims’.68 5.  PCOs in Environmental Cases: The Modern Law The modern approach to the award of PCOs in environmental cases derives from the Court of Appeal decision in R (Garner) v Elmbridge Borough Council,69 which concerned a judicial review challenge to the local planning authority’s grant of permission for a development opposite Hampton Court Palace. The claimant was not a local resident, but he had a longstanding connection with the Palace, having worked for Historic Royal Palaces and objected to earlier versions of the approved development. He was refused a PCO by Nichol J at first instance because (i) the issues were not of general public importance; and (ii) Mr Garner had not provided any evidence of his financial resources and it was therefore impossible to conclude whether it would be fair and just to make a PCO. The Court of Appeal allowed Mr Garner’s appeal and modified the Corner House requirements in cases involving the Environmental Impact Assessments (EIA) Directive.70 This was necessary because of Article 10a of the EIA Directive, which gives effect to the Aarhus Convention: Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned: (a)  having a sufficient interest, or alternatively, (b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition, have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive. Member States shall determine at what stage the decisions, acts or omissions may be challenged. What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice. To this end, the interest of any nongovernmental organisation meeting the requirements referred to in Article 1(2), shall be deemed sufficient for the purpose of subparagraph (a) of this Article. Such organisations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) of this Article.  Ibid.   R (on the Application of Garner) v Elmbridge BC [2010] EWCA Civ 1006.   Directive 85/337EEC [1985] OJ L175/40.

68 69 70

144  Costs and Litigation Funding The provisions of this Article shall not exclude the possibility of a preliminary review pro­cedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law. Any such procedure shall be fair, equitable, timely and not prohibitively expensive. In order to further the effectiveness of the provisions of this article, Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.

Sullivan LJ held in Garner: a) The Corner House principles were settled, but the Court of Appeal had not had to consider whether those principles complied with the requirements of Article 10a;71 b) The EIA Directive was directly effective and could require modification of the costs rules in English law;72 c) the impugned planning permission was for EIA development; therefore, Article 10a was applicable. Accordingly, it was necessary to modify the Corner House principles but only insofar as necessary to secure compliance with the Directive;73 d) the requirement to show that the case was one of general public importance, or that the public interest required resolution of the issue, was not compatible with the Aarhus Convention or the Directive because these were based on the premise that it was in the public interest that there should be effective public participation in cases involving environmental impact assessment;74 e) the case raised an important point of principle, namely whether an objective or subjective test should be applied when determining whether or not the procedure was prohibitively expensive (ie, whether the court should decide by reference to the costs that an ‘ordinary’ member of the public would be able to pay, or by reference to the means of the particular claimant – or a combination of the two). Sullivan LJ did not decide what the precise test should be, but he held that Nichol J had been wrong to apply a purely subjective test because this would frustrate the intention of the Directive.75 Moreover, a purely subjective test requiring the claimant to disclose publicly his personal financial circumstances might have a chilling effect on the willingness of ordinary members of the public to challenge environmental decisions;76 f) the costs in the present case of £60,000 plus VAT would be prohibitively expensive because they would deter most ordinary members of the public, given that they were twice the gross national average wage of £25,500 pa;77 g) a claimant wishing to obtain a PCO cannot have it both ways: he cannot expect not to pay costs if he loses and yet have unlimited recovery should he win.78 A reciprocal costs would not necessarily be inconsistent with Article 10a, but whether to impose one should be decided on a case-by-case basis.79   Garner (above n 69) para 32.  Ibid. 73   Ibid, para 33. 74   Ibid, para 39. 75   Ibid, para 46. 76   Ibid, paras 51–52. 77   Ibid, para 50. 78   Ibid, para 53. 79   Ibid, para 54. 71 72

Litigation Funding  145 Therefore, in summary, the effect of the Court of Appeal’s decision in Garner is to modify the Corner House conditions when considering whether to make a PCO in environmental cases where Article 10a of Directive 85/337/EEC is engaged by: a) dis-applying the requirement to show that the issues raised are of general public import­ ance and/or that the public interest requires that those issues should be resolved; and b) modifying the requirement to have regard to the financial resources of the applicant and respondent(s) and to the amount of costs that are likely to be involved when considering whether it is fair and just to make the order by applying a test which is not purely subjective. However, these modifications to the Corner House principles were made ‘only insofar as it is necessary to secure such compliance [with the Directive]’.80 If Article 10a is not engaged, the Corner House conditions should be applied in their unmodified form. The scope of the decision in Garner has been clarified by Wyn William’s judgment in Coedbach Action Team v Secretary of State for Climate Change and Energy,81 The claimant (CAT) was a private limited company with 26 members set up in order to object to two biomass generating stations that were proposed to be built in Carmarthenshire. At the inquiry for one of the biomass generating stations, counsel for the developer referred in his opening speech to a decision of the Secretary of State granting consent under section 36 of the Electricity Act 1989 for a biomass generating station in Avonmouth. The Avonmouth decision was made on the basis that it was not necessary to consider the sustainability of biomass when granting consent. CAT sought to challenge the Avonmouth decision because of a fear that it would be a precedent and a material consideration in the appeals with which it was concerned. It also made an application for a PCO. Wyn Williams J refused the application and concluded that the claimant did not have a sufficient interest to seek a judicial review because (i) it had not objected to nor participated in the Avonmouth consent procedure; (ii) its aims and objectives were to protect the environment in the Carmarthenshire area; (iii) its sole purpose in challenging the Avonmouth decision was to prevent it being a material consideration in the planning appeals with which CAT was concerned; and (iv) CAT could challenge the Carmarthenshire decisions pursuant to section 288 of the Town and Country Planning Act (TCPA) 1990 if they were flawed. In relation to the PCO, he held: a) The EIA Directive does not confer any rights of wide access to justice on every member of the public but only those who have a sufficient interest or maintain an impairment of a right.82 b) Since the claimant did not have a sufficient interest the EIA Directive was not relevant to the PCO application.83 c) The proceedings were not prohibitively expensive. The total likely costs were approximately £70,000, which would not be prohibitively expensive, either for a limited company or for the members of the company if the costs liability were apportioned between them (£3,000 per head).84   Ibid, para 33.   Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312. 82   Ibid, para 12. 83   Ibid, 33. 84   Ibid, paras 36–37. 80 81

146  Costs and Litigation Funding d) In any event, a PCO was unnecessary because the claimant was a private limited company. As the Sullivan Report on Access to Justice pointed out, PCOs and incorporation as a company are alternative means of facilitating economic access to justice.85 The readjustment of the criteria for granting PCOs in cases concerning the EIA Directive has already caused the Supreme Court to take the unusual step of referring a question to the European Court of Justice (ECJ) in order to determine whether it should rescind or vary an earlier order of the House of Lords.86 In R (Edwards and Pallikaropoulos) v Environment Agency, the Supreme Court considered an appeal from a decision of its Costs Officers relating to the costs award in the main action.87 The claimant in the main action had been refused a PCO by the House of Lords, which had applied a subjective test to determine whether the proceedings would be prohibitively expensive.88 Lord Hope held that the test that the court must apply to ensure that the proceedings are not prohibitively expensive remained in a state of uncertainty, but the balance seemed to lie in favour of the objective approach advocated in Garner. Accordingly, it appeared that as a result of the House of Lords applying a purely subjective test, ‘an injustice may have been caused by the failure of the House to address itself to the correct test in order to comply with the requirements of the directives’.89 The Supreme Court therefore referred the issue to the ECJ to determine whether the House of Lords had properly given effect to the requirements of Article 10a of the EIA Directive when refusing the PCOs. 6.  The Findings of the Aarhus Convention Compliance Committee The English costs rules have come under close scrutiny recently from the Aarhus Convention Compliance Committee. In the Port of Tyne complaint,90 the complainants had sought judicial review of a government licence issued to the Port of Tyne that authorised the disposal and protective capping of highly contaminated port dredge materials at an existing marine disposal site four miles off the coast. The Committee found that the United Kingdom’s costs rules violated the requirement in Article 9(4) of the Convention that proceedings be ‘not prohibitively expensive’. In particular, the Committee noted that ‘the public interest nature of environmental litigation . . . does not seem to be given sufficient consideration in the apportioning of costs by the courts’.91

  Ibid, 39–40.  The power to rescind or vary an earlier order of the House of Lords to correct any injustice was recognised by Lord Browne-Wilkinson in R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119, 132. 87   R (on the Application of Edwards and Pallikaropoulos) v Environment Agency [2010] UKSC 57, Annex. 88   R (on the Application of Edwards) v Environment Agency (No 2) [2008] UKHL 22, [2008] 1 WLR 1587. 89   Edwards and Pallikaropoulos (above n 87) para 35. 90  ACCC/C/2008/33. 91   Ibid, para 134. In the Cultural Residents’ Association complaint (ACCC/C/2008/27) an adverse costs order of £39,454 was held to render proceedings prohibitively expensive in breach of Article 9(4). 85 86

8 Remedies This chapter considers the remedies available in a claim for judicial review, both at the final hearing and at the interlocutory stage. Section I examines the prerogative remedies: quashing orders, prohibiting orders and mandatory orders. Section II discusses the extremely flexible remedy of the declaration. As will be seen, the courts have been prepared to rule on the lawfulness of nonbinding policy and guidance, but they will not generally grant declarations in matters that are academic or hypothetical. Section III considers the circumstances in which an injunction will be granted in public law. Section IV explains the grounds on which the courts will refuse a remedy in their discretion and evaluates whether the principle of effectiveness in EU law requires the courts to grant a remedy in every successful claim concerning directly effective EU law. Section V examines interim remedies, and in particular it highlights the problems caused in the environmental context by the general practice of requiring a claimant to give a crossundertaking in damages as the ‘price’ of obtaining an interim injunction to prevent irreversible environmental harm. It is doubtful that this is in compliance with the requirement of the Aarhus Convention that proceedings should not be ‘prohibitively expensive’.1 Finally, Section VI considers ouster clauses and the extent to which it is possible for statute to exclude judicial review.

I.  The Prerogative Remedies

A.  Quashing Orders A quashing order (formerly known as certiorari) is an order that quashes, with retrospective effect, administrative action that is found to be unlawful. One might wonder, if ultra vires action is void ab initio and a nullity, why does a claimant need a quashing order? Often a claimant technically does not need a quashing order because a quashing order does not actually render a decision invalid, but rather an ultra vires decision is a nullity and the quashing order merely establishes that invalidity authoritatively. Thus a claimant may simply ignore unlawful administrative action and raise its invalidity collaterally in any civil or criminal enforcement proceedings brought against him, rather than launching a judicial review claim of his own.2 Sometimes, however, ignoring unlawful action is not an option for the claimant because it will not bring about the result he desires. For example, if the   For further discussion of the Aarhus Convention, see above ch 2.   See, eg, Boddington v British Transport Police [1999] 2 AC 143.

1 2

148 Remedies claimant is refused a licence unlawfully, even though decision is void and a nullity, this does not change the fact that the claimant still does not have a licence and cannot lawfully undertake his activity. No collateral plea of ultra vires can supply the requisite licence, and so the claimant will have to take the initiative, seek judicial review of the unlawful refusal and require the authority to re-determine his application. 1.  Quashing and Substitution Rule 54.19 of the Civil Procedure Rules (CPR) provides a court with the power to quash an ultra vires decision and then to substitute its own decision in its place: (1) This rule applies where the court makes a quashing order in respect of the decision to which the claim relates. (2) The court may – (a) (i) remit the matter to the decision-maker; and (ii) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court; or (b) insofar as any enactment permits, substitute its own decision for the decision to which the claim relates.

This is an unusual power, which at first glance appears to threaten the distinction between appeal and review by allowing the court to impose its own decision on the administration. However, the courts have be alert to this danger and have confined the use of CPR r 54.19 to the comparatively rare situation in which there is only one lawful substantive decision open to the decision-maker, and it would serve no useful purpose to remit the case back to the decision-maker. As May LJ explained in R (Dhadly) v London Borough of Greenwich: [T]he circumstances in which r 54.19(3) [now r 54.19(2)(ii)] applies are essentially those where there is only one substantive decision that is capable of being made and where it is a waste of time to send the thing back to the decision-making body.3

B.  Prohibiting Orders A prohibiting order prohibits a public authority from acting in a specified manner. Breach of the order is punishable as contempt. A good example of the use of a prohibiting order is the decision in R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association,4 in which a local authority resolved to increase the number of taxi licences that it granted, in breach of a promise not to grant more than 300 licences. It was held that the claimant association had a procedural legitimate expectation that the number of licences would not be increased without it being given a hearing. The court granted a prohibiting order preventing the defendant from increasing the number of taxi licences without first hearing representations from interested persons.

  R (on the Application of Dhadly) v London Borough of Greenwich [2001] EWCA Civ 1822, para 16.   R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299.

3

4

The Prerogative Remedies  149

C. Mandatory Orders Mandatory orders compel public authorities to do what is legally required of them. For example, in Board of Education v Rice,5 the Board of Education was required by the Education Act 1902 to determine certain questions in a dispute between schools and the local education authority. When the Board failed to address these questions, a mandatory order was issued requiring it to do so. 1.  Mandatory Orders to Carry Out Enforcement Action Environmental regulators often have extensive powers of enforcement. An important issue is therefore whether regulators can be compelled in judicial review proceedings to use those powers to prevent or punish environmentally harmful activity undertaken by third parties. The English courts are generally reluctant to interfere with regulators’ discretion to initiate enforcement action, and they will seldom issue a mandatory order requiring enforcement action to be taken. Indeed, in R (Baker) v Bath and North East Somerset Council,6 HHJ Birtles noted that, save for one case, the claimant had been unable to point to any English case in which the Administrative Court had granted a mandatory order against a local planning authority requiring it to take enforcement action. That exception to the general reluctance of the Administrative Court to compel the authorities to take enforcement action is the case of Ardagh Glass v Chester City Council and Ellesmere Port Authority.7 Quinn Glass had constructed the largest glass container factory in Europe without obtaining planning permission.8 Its commercial rival, the claimant Ardagh Glass Ltd, challenged the local authority’s handling of its enforcement action. The Town and Country Planning Act 1990 provides that no enforcement notice may be served after four years from when the development has been ‘substantially completed’. The authority considered that the four-year time limit had not commenced until all of the works proposed in the development had been completed. The claimant challenged this view, fearing that the time limit had in fact begun earlier and that the development was soon going to be immune from enforcement. HHJ Mole held that the authority’s approach was incorrect because the development was made up of distinct, though functionally connected elements. He considered it would be a ‘disgrace’ if immunity was secured because enforcement action had not been taken within the four-year time limit.9 Since there was a real danger of immunity arising in respect of significant parts of the development, he took the unusual step of ordering the authority to serve an enforcement notice within 14 days of his judgment. However, he did not consider it appropriate to order the authority to issue a stop notice. Absent the special and extreme circumstances of Ardagh Glass, it is unlikely that an environmental regulator’s discretion in relation to enforcement action would be usurped by the court granting a mandatory order.   Board of Education v Rice [1911] AC 179.   R (on the Application of Baker) v Bath and North East Somerset Council [2009] EWHC 3320 (Admin).   Ardagh Glass Ltd v Chester City Council and Ellesmere Port Authority [2009] EWHC 745. 8  Ibid, para 4. The original planning application had been successfully challenged by a rival company (Rockware), and Quinn had proceeded with the building works before the decision on the revised planning application had been made. 9   Ibid, para 46. 5 6

7

150 Remedies II. Declarations

Section 31 of the Senior Courts Act 1981 provides that in a claim for judicial review, the Administrative Court may grant an injunction or declaration if it considers it just and convenient. Thus, just as with the prerogative remedies, the ordinary remedies of declaration and injunction are discretionary and do not follow as of right. Section 31 provides: (1)  An application to the High Court for one or more of the following forms of relief, namely – (a) a mandatory, prohibiting or quashing order; (b) a declaration or injunction under subsection (2); or (c) an injunction under section 30 restraining a person not entitled to do so from acting in an office to which that section applies, shall be made in accordance with rules of court by a procedure to be known as an application for judicial review. (2) A declaration may be made or an injunction granted under this subsection in any case where an application for judicial review, seeking that relief, has been made and the High Court considers that, having regard to – (a) the nature of the matters in respect of which relief may be granted by mandatory, prohibiting or quashing orders; (b) the nature of the persons and bodies against whom relief may be granted by such orders; and (c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

A.  The Nature and Role of Declarations A declaration is an authoritative judicial statement of a legal position which states the law ‘so as to make it clear to all the world what was [the claimant’s] position in the eyes of the law’.10 It is a non-coercive form of relief because there is no sanction for breach (although acting contrary to a declaration may expose the defendant to liability for infringing the rights declared). The courts have recognised that declaratory relief has a number of advantages compared to the other remedies available in judicial review. First, declaratory relief is less draconian than an injunction or prohibiting order. Consequently, in M v Home Office,11 Lord Woolf thought it would usually be more appropriate to issue declarations against ministers than injunctions, and in R (Greenpeace) v Secretary of State for Trade and Industry,12 Sullivan J decided to grant a declaration that the government’s consultation process in relation to new nuclear power stations was unlawful, rather than grant the quashing order sought by the claimant. Secondly, a declaration is particularly suitable where the issue is not confined to the parties before the court. Injunctions are blunt tools – they can be addressed only to named persons – usually the lawmaker and law-enforcer. But often, many other third parties will   Vine v National Dock Labour Board [1957] AC 488, 504 (Lord Morton).   M v Home Office [1994] 1 AC 377.   R (on the Application Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin).

10 11 12

Declarations  151 act on the basis of the impugned statute, and it is impossible to injunct them all. This is illustrated by comparing the facts of R v Secretary of State for Transport, ex p Factortame (No 2)13 and R v Secretary of State for Employment, ex p Equal Opportunities Commission.14 In Factortame an interim injunction was granted dis-applying the Merchant Shipping Act 1988 because it contravened directly effective EU law. In Factortame it was sufficient to injunct the Crown in order to uphold EU law, but in ex p EOC the EU law prohibition on indirect gender discrimination could not be enforced against numerous third parties by injunction, and so the House of Lords issued a declaration that UK legislation was incompatible with the EU law. The final advantage of declaratory relief is that it can be issued in order to clarify a legal position before any wrong occurs – although, as discussed below, this is subject to the principle that the courts will not generally decide abstract or hypothetical questions.

B.  Interim Declarations Prior to the CPR 1998, interim declarations were not available. It was thought illogical to grant an interim declaration that the law was X and then after full trial to grant a declaration that the law was in fact Y. CPR r 25.1(1)(b) now permits interim declarations to be granted; but they are comparatively rare, and usually an expedited hearing will be preferable to the grant of an interim declaration.15 The principal use of interim declarations is in cases in which the domestic courts make preliminary references to the European Court of Justice (ECJ) pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU).16 It can take in excess of a year for the ECJ to determine the preliminary reference, and it is obviously important that the parties have certainty in the conduct of their affairs pending the result of the reference.

C.  Advice, Guidance and Hypothetical Questions Judicial review is concerned with the legality of decisions rather than their merits. It might therefore be assumed that administrative measures that do not have legal force cannot be subject to judicial review. However, the courts have held that, exceptionally, judicial review can be sought of advice or guidance that is not legally binding. The leading case is Gillick v West Norfolk and Wisbech AHA,17 a case in which the claimant challenged a circular that stated that in exceptional circumstances it was for a doctor’s clinical judgment to decide whether to prescribe contraception to persons under age 16 without parental consent. The claimant sought a declaration that guidance was unlawful. Proceeding on the basis that the guidance was non-binding, Lord Bridge held that there could exceptionally be judicial review of non-binding guidance.18   R v Secretary of State for Transport, ex p Factortame (No 2) [1991] 1 AC 603.   R v Secretary of State for Employment, ex p Equal Opportunities Commission [1995] 1 AC 1.   For discussion, see A Solomon, ‘Interim Declarations: A New Power’ [2001] Judicial Review 10. 16   See below ch 17. 17   Gillick v West Norfolk and Wisbech AHA [1986] AC 112. 18   Lords Fraser and Scarman thought that the guidance was binding; Lords Bridge and Templeman thought it was not; and Lord Brandon expressed no view. 13 14 15

152 Remedies Lord Bridge suggested that three factors are especially important when deciding whether to review non-binding guidance. First, although guidance may have no legal effect, it may have considerable practical effect on the parties or the public at large. A declaration of the law may therefore be of considerable public benefit, and this militates in favour of making a declaration. Secondly, if heeded, the non-binding guidance may result in the commission of a criminal offence. For example, in Gillick it was suggested that a doctor who prescribed contraceptives to a person under age 16 might commit the offence of aiding and abetting unlawful sexual intercourse. The courts therefore lean in favour of granting declaratory relief where this may clarify the scope of any potential criminal liability arising from compliance with non-binding guidance. Thirdly, Lord Bridge suggested that a declaration as to the legality of non-binding guidance would be appropriate where there was a ‘clearly defined issue of law, unclouded by political, social or moral overtones’.19 The operation of these factors is clear in a number of other cases concerning review of non-binding guidance. In Royal College of Nursing v Department of Health and Social Security,20 the Royal College of Nursing sought a declaration that advice in a circular about abortion procedures was unlawful. The circular advised that nurses could carry out certain parts of the abortion procedure; but the Royal College of Nursing thought that perform­ ance of these acts was not protected by the Abortion Act 1967, and so the nurses would commit criminal offences by following the guidance. The House of Lords issued a declaration (that the guidance was lawful) because several thousand such procedures were carried out each year and because of the possible criminal liability that the nurses would incur. In R v Secretary of State for the Environment, ex p Greenwich LBC,21 the claimant challenged the legality of a government information leaflet about the poll tax. The claimant argued that the guidance was inaccurate because it did not state that spouses were jointly and severally liable to pay the poll tax. Although the leaflet had no legal effect, the court granted a declaration because of its considerable practical importance. (It had been distribu­ted widely and would be relied on by many households.) The case of Airedale NHS Trust v Bland22 concerned a patient in a persistent vegetative state. The House of Lords granted a declaration that surgeons could withdraw medical treatment from a person incapable of consenting. The possibility of criminal liability strongly influenced their decision. It is not, however, essential for potential criminal liability to arise before the courts will review non-binding guidance. In R (UK Renderers Association) v Secretary of State for the Environment, Transport and the Regions,23 the court reviewed the legality of guidance concerning animal renderers’ obligations under the Environmental Protection Act 1990 to use ‘best available techniques not at excessive cost’ to prevent release of prescribed substances. The issue was a pure question of construction with considerable practical importance. Therefore the court granted a declaration even though no criminal liability would result from following guidance. Despite the willingness of the courts to review non-binding guidance in cases in which some or all of the three Gillick factors are present, it is important to bear in mind Lord Bridge’s observation that there must be a ‘clearly defined issue of law, unclouded by polit­   Gillick (above n 17) 193–94.   Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800. 21   R v Secretary of State for the Environment, ex p Greenwich London Borough Council [1989] COD 530. 22   Airedale NHS Trust v Bland [1993] AC 789. 23   R (on the Application of United Kingdom Renderers Association Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 675, [2002] Env LR 21. 19 20

Declarations  153 ical, social or moral overtones’.24 Where difficult social, political or moral issues are raised by non-binding guidance, the courts will not entertain a judicial review claim. For example, in R (Burke) v GMC,25 the General Medical Council produced guidance in relation to the withholding and withdrawing of life-prolonging treatments, but the Court of Appeal held that it should not grant a declaration because the case raised ethical issues that could not be decided in the abstract, divorced from concrete facts of particular patients. In contrast to the courts’ willingness to review non-binding guidance in appropriate cases, there is great reluctance on the part of judges to answering hypothetical or academic questions. Writing extra-judicially, Laws LJ distinguished between hypothetical and academic questions as follows: We should understand an academic question to be one which does not need to be answered for any visible practical purpose at all: thus, if I were a legal antiquarian, and interested in the construction of a statute long since repealed and not replaced, I could not bring proceedings to ask the court to construe it for me, so as to satisfy my intellectual curiosity: the court will not deploy its resources so as to provide authoritative backing for one or other view being canvassed in the lecture hall or the tutorial. A hypothetical question is quite different: it is a question which may need to be answered for real practical purposes; it connotes only a situation in which the events have not yet happened which will clothe the answer to the question with immediate practical effects.26

There are three main objections to the courts answering these sorts of question. First, it is thought that concrete facts are required before an answer can be given. Secondly, the parties whose rights might be affected by a court’s decision may not be before the court if the issue is as yet only hypothetical. Finally, it is an inefficient use of judicial resources to answer questions that do not have any immediate practical importance. The judicial reluctance to answer academic and hypothetical questions has been expressed forcefully on several occasions. In R (Smeaton) v Secretary of State for Health, Munby J argued: [T]he courts – including the Administrative Court – exist to resolve real problems and not disputes of merely academic significance. Judges do not sit as umpires on controversies in the Academy, however intellectually interesting or jurisprudentially important the problem and however fierce the debate which may be raging in the ivory towers or amongst the dreaming spires.27

In similar vein, in Oxfordshire County Council v Oxfordshire City Council, Baroness Hale stated: Unlike academic textbook writers and examiners, the courts do not decide legal questions in a vacuum. They know that, while hard cases may indeed make bad law, the particular facts of the case before them do cast a particularly bright light upon the legal issues and may throw up import­ ant questions which no rehearsal of the legal arguments in the abstract can ever do. Why, after all, do the best legal examination papers require candidates to answer problems based upon a precise, though imaginary set of facts? Because that is the way in which our case law has developed over the centuries.28

  Gillick (above n 17) 193–94.   R (on the Application of Burke) v General Medical Council [2005] EWCA Civ 1003, [2006] QB 273. 26   Sir John Laws, ‘Judicial Remedies and the Constitution’ (1994) 57 Modern Law Review 213. 27   R (on the Application of Smeaton) v Secretary of State for Health (Costs) [2002] EWHC 886 (Admin), [2002] 2 FLR 146, para 21. 28   Oxfordshire County Council v Oxfordshire City Council [2006] UKHL 25, [2006] 2 AC 674, para 136. 24 25

154 Remedies Despite these objections, there are sometimes good reasons for answering hypothetical questions. The case might be an appropriate test case, notwithstanding the fact that the issue is as yet hypothetical; there might be an urgent need for certainty so that individuals can plan their affairs; or the question may be one of statutory construction and not require concrete facts to help resolve it. However, the general position remains that hypothetical questions will be answered only exceptionally. This is illustrated by the following cases in which the courts refused to answer academic or hypothetical questions. In R v Secretary of State for the Home Department, ex p Wynne29 a prisoner wanted to challenge the Secretary of State’s policy of charging prisoners the cost of travel and escort for producing them at court for judicial review hearings. The case was hypothetical because upon being told of the charge, the claimant tore up his claim form and never applied to court. Lord Goff refused to grant a declaration because the case was not a suitable test case: it was not known whether the claimant lacked the means to pay; it was not known whether his attendance at the judicial review hearing was necessary; it was not known whether legal aid would be available; and it was not known whether the Secretary of State would have waived the costs in his discretion. Another good example of the reluctance to answer hypothetical questions is the Court of Appeal decision in R v Portsmouth Hospital NHS Trust, ex p Glass.30 The claimant was the mother of severely disabled child. She was in dispute with the hospital about her child’s treatment, and she wanted a declaration concerning how future disputes about treatment should be resolved. The Court of Appeal refused to make a declaration because there were too many contingencies. In order to decide a dispute concerning the child’s treatment the court would have to weigh several principles: (i) the sanctity of life; (ii) the desirability of leaving clinical decisions to doctors; (iii) the fact that treatment without a patient’s consent may constitute trespass to the person; and (iv) the principle that the court should act in the best interests of the child. The Court of Appeal held that it was impossible to balance these principles and determine future care in the abstract. Occasionally, requests for declarations border on the frivolous, as illustrated by the House of Lords decision in R (Rusbridger) v Attorney General.31 The claimant newspaper editor argued that the Treason Act 1848 was incompatible with the right to freedom of expression in Article 10 of the European Convention on Human Rights (ECHR) because it arguably prevented a campaign to replace the monarchy with a republic. The House of Lords refused to grant the declaration because there was absolutely no prospect of anyone being prosecuted under the Act, and so the issue was entirely academic. One rare example of a hypothetical declaration being granted is the environmental judicial review case of R (Greenpeace) v Secretary of State for the Environment.32 In that case, the Court of Appeal heard a judicial review claim concerning the legality of the import of endangered mahogany from Brazil, even though no issue arose in relation to the particular shipment under consideration. It held that the matter was one of general public import­ ance, and further shipments were expected; therefore, the issue was a live one.

  R v Secretary of State for the Home Department, ex p Wynne [1993] 1 WLR 115.   R v Portsmouth Hospitals NHS Trust, ex p Glass [1999] 2 FLR 905. 31   R (on the Application of Rusbridger) v Attorney General [2003] UKHL 38, [2004] 1 AC 357. 32   R (on the Application of Greenpeace Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2002] EWCA Civ 1036, [2002] 1 WLR 3304. 29 30

Injunctions  155 III. Injunctions

In private law, prohibitory injunctions prevent the commission of unlawful acts, while mandatory injunctions compel the performance of legal duties. In public law, prohibitory injunctions are used to prevent public bodies from acting ultra vires, while mandatory injunctions are used to require public bodies to make the decisions or perform the acts that are legally required of them. The key practical distinction between the prerogative remedies and injunctions is that injunctions are available at the interim stage. Interim remedies can be extremely important in environmental judicial review claims to prevent irreversible environmental damage occurring pending resolution of the claim. Interim injunctions are considered in section V below.

A.  Injunctions against the Crown Historically, the Crown could not be sued in its own courts, and coercive remedies such as injunctions could not be awarded against the Crown. However, it is now firmly established that an injunction is available against a minister of the Crown acting in his or her official capacity. This is vitally important to the separation of powers and the rule of law: the executive is not above the law, and in a constitutional democracy coercive orders should be available against ministers. As Lord Templeman explained in M v Home Office, . . . the argument that there is no power to enforce the law by injunction or contempt proceedings against a Minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War.33

The key provision concerning coercive remedies is section 21 of the Crown Proceedings Act 1947, which provides: (1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require: Provided that: – (a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and . . . (2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.

Section 21(1)(a) clearly prevents an injunction being granted against the Crown, but section 21(2) does allow an injunction to be granted against officers of the Crown in certain circumstances. The effect of section 21(2) is that no injunction can be granted against an   M v Home Office [1994] 1 AC 377, 395.

33

156 Remedies officer of the Crown if its effect would be to give relief against the Crown that could not have been obtained in proceedings against the Crown before the 1947 Act. The exact meaning of section 21(2) was considered by the House of Lords in M v Home Office.34 The claimant was an asylum seeker from Zaire who was to be deported. He sought permission to apply for judicial review but was refused at first instance and by the Court of Appeal. He changed solicitors and applied for permission on fresh grounds. Garland J wanted the deportation to be postponed pending determination of the fresh application for permission, but the claimant was deported. Garland J issued an interim mandatory injunction against the Home Secretary requiring the claimant’s return, but the Home Secretary refused, as he had been advised that the judge lacked the power to issue an injunction against him. Three questions arose for the House of Lords: 1) Could an injunction be issued against a minister in civil proceedings? 2) Could an injunction be issued in a claim for judicial review? 3) And if so, could the Home Secretary be guilty of contempt of court for disobeying the injunction? In order to answer the first question the House of Lords had to interpret section 21(2) of the 1947 Act. Lord Woolf explained that prior to 1947 a claimant could sue an officer of the Crown personally and obtain an injunction against an officer of the Crown. Section 21(2) did not take away the ability to sue a Crown officer personally; therefore it preserved the pre-1947 position that an injunction can be issued against an officer of the Crown or a Minister where legislation places duties on a named officer or minister. But an injunction may not be granted where the legislation places a duty on the Crown generally, and the official or minister is the defendant in only a purely representative capacity. It was therefore important to look at the governing legislation to discover on whom the duty has been placed. In Merricks v Heathcoat-Amory,35 Upjohn J had said that when a minister acts he does so either in a purely personal capacity (in which case enforcement of statutory duties imposed upon him in his official capacity is beside the point) or as a representative of the Crown (in which case an injunction is prohibited by section 21 of the 1947 Act). Lord Woolf rejected this reasoning because it treated a duty placed on the minister as being a duty placed upon government generally and cloaked all ministers with the immunity of the Crown. This would emasculate the courts’ jurisdiction to grant injunctions against ministers. He therefore held that a duty could be placed on a minister in his or her official capacity as distinct from on the Crown generally. In answer to the second question, the House of Lords held that the Crown Proceedings Act 1947 governs ‘civil proceedings’ against the Crown and does not contain rules about the grant of injunctions against the Crown in judicial review. Lord Woolf held that injunctions could be granted against Crown officials and ministers of the Crown in claims for judicial review, but not against the Crown itself. As he explained, quashing orders and mandatory orders were available against officers of the Crown and ministers in their official capacities, and there was nothing in section 31 of the Senior Courts Act 1981 to suggest that injunctions would not be awarded on the same basis in judicial review – ie, not against the Crown generally but against Crown officials and ministers in their official capacity. Lord Woolf did, however, say that the power to issue injunctions against officers of the Crown should  Ibid.   Merricks v Heathcoat-Amory [1955] Ch 567.

34 35

Discretionary Refusal of Relief  157 be exercised only in limited circumstances. In most situations a declaration will be a more appropriate form of relief, as the Crown can be relied on to co-operate fully. In relation to the third question – whether there can be a finding of contempt against a government department or a minister in his or her personal or official capacity – the House of Lords held that there could, but that a finding of contempt would suffice and there would be no need to punish the Minister for contempt. Thus, contempt proceedings are ultimately unenforceable against ministers, which undercuts the basic premise that the executive is beneath the law and can be coerced. The fact that injunctive relief is unavailable against the Crown itself has been strongly criticised by Sedley LJ writing extra-judicially.36 In his persuasive view, the immunity is based on the notion that the Crown can do no wrong, but the Crown has only two sovereignties: (i) Parliament enacts the law; (ii) the courts interpret the law. Neither can do wrong. The Crown in its executive limb can do wrong as a matter of constitutional theory. The separation of powers requires that the courts grant relief against the Crown in its executive form – ie, the Crown in its executive form is subordinate to judicial function carried out in the name of the Crown. Accordingly, it is not incongruous for the Crown to call itself to account: it is a fundamental feature of the separation of powers.

IV. Discretionary Refusal of Relief

Public law remedies are discretionary. As discussed above in chapter four, the Administrative Court may refuse permission for judicial review, or it may refuse a remedy on the grounds of delay by the claimant or if the claimant has failed to exhaust alternative remedies. In addition to these discretionary grounds for refusing relief, the Court may also refuse a remedy where: (i) the claimant is guilty of abuse of process or other reprehensible conduct; (ii) the outcome would have been the same had the breach of public law not occurred; (iii) events have overtaken the subject matter of the claim, and no practical purpose is served by granting a remedy; or (iv) undue prejudice would be caused to the defendant or third parties.

A.  Abuse of Process or Other Bad Conduct Bad conduct on the part of a claimant may cause the Court to refuse a remedy in its discretion. This may include a failure to comply with the obligation to give full and frank disclosure,37 turpitude or lack of merit in the claim38 or an abusive motive for bringing the claim.39 In addition, although earlier judicial review proceedings do not give rise to an issue estoppel, it may nevertheless be an abuse of process for a party to seek to reopen debate on an issue determined in the earlier proceedings.40 A remedy may also be refused where the claimant has waived the breach of public law or has acquiesced.41 36   Sir Stephen Sedley, ‘The Crown in its Courts’ in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Cord (Oxford, Oxford University Press, 1998). 37   See above ch 6. 38  Eg, R v Brent LBC, ex p Dorot Properties [1990] RA 137. 39  Eg, R v Customs and Excise Commissioners, ex p Cooke and Stevenson [1970] 1 All ER 1068. 40   R (on the Application of Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [2004] QB 395, para 79. 41   R v Port Talbot Borough Council, ex p Jones [1988] 2 All ER 207.

158 Remedies

B. Outcome would be the Same Had the Breach Not Occurred The Administrative Court may also refuse a remedy where the outcome of a case would have been the same had the unlawful action or omission not occurred.42 For example, in R (Jones) v Swansea City and County Council,43 the claimant challenged the grant of planning permission for his neighbour’s extension. Wyn Williams J held that the grant of planning permission had been in breach of the local authority’s policy guidelines on the minimum distance between windows, but he refused a remedy on the ground that were a quashing order granted, ‘it is virtually inconceivable that the [respondent] would [on a reapplication] do other than grant planning permission’.44

C.  Events have Overtaken the Subject Matter of the Claim Sometimes events will have overtaken the subject matter of the claim by the time the Court comes to consider remedies. A good example is provided by the case of R (Edwards) v Environment Agency.45 In that case the Environment Agency had granted a permit to a cement plant in Rugby, allowing it to burn tyres as a form of substitute fuel. The claimants contended that the Environment Agency should have carried out a consultation to determine whether the burning of tyres would create significant pollution contrary to the Pollution Prevention and Control (England and Wales) Regulations 1999. In particular, they alleged that the public had a right to make representations on two reports by the Air Quality Monitoring Assessment (AQMA) Unit, which had been commissioned by the Agency but had not been made available to the public. Those reports indicated that environmental quality standards in Rugby might be breached if the permission was granted but that this was unlikely to occur. The Court of Appeal held that the failure to publish the report was procedurally unfair.46 However, at the time of the hearing two reports had been produced by the AQMA Unit on the actual emissions from the cement plant, which concluded that the environmental quality standards had not been exceeded. The Court of Appeal therefore refused to grant a remedy on the basis that ‘it would be pointless to quash the permit simply to enable the parties to be consulted on out-of-date data.’47 The House of Lords upheld this decision, noting that ‘the relevance of the [initially unpublished] AQMAU reports has been completely overtaken by events’.48

D.  Undue Prejudice to the Defendant or Third Parties Occasionally the court may also deny a remedy in order to prevent there being an unacceptable adverse impact on the defendant or third parties.49   R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763.   R (on the Application of Jones) v Swansea City and County Council [2007] EWHC 213 (Admin). 44   Ibid, para 31. 45   R (on the Application of Edwards) v Environment Agency (No 2) [2008] UKHL 22. 46   Edwards (ibid) [2006] EWCA Civ 877. 47   Ibid, para 126 (Auld LJ). 48   Edwards (above n 45) para 65 (Lord Hoffmann). 49   See, eg, R v Brentwood Superintendent Registrar of Marriages, ex p Arias [1968] 2 QB 956; R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 All ER 164; and R v Monopolies and Mergers Commission, ex p Argyll Group plc [1986] 2 All ER 257. 42 43

Discretionary Refusal of Relief  159

E.  Impact of EU Law Planning permission granted in breach of the Environmental Impact Assessment (EIA) Directive50 is liable to be quashed. Section 288 of the Town and Country Planning Act 1990 mirrors the position in judicial review, and it provides the courts with a discretion whether to quash a planning permission following a successful statutory challenge. But in Berkeley v Environment Secretary,51 Lord Hoffmann doubted whether the English courts could exercise that discretion not to quash in the face of a breach of binding EU law. He explained: [T]he Directive requires not merely that the planning authority should have the necessary informa­ tion, but that it should have been obtained by means of a particular procedure, namely that of an EIA. And an essential element in this procedure is that what [sic] the regulations call the ‘environmental statement’ by the developer should have been ‘made available to the public’ and that the public should have been ‘given the opportunity to express an opinion’ in accordance with article 6(2) of the Directive . . . I doubt whether, consistently with its obligations under European law, the court may exercise the discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under Article 10 (ex-Article 5) of the EC Treaty to ensure fulfilment of the United Kingdom’s obligations under the Treaty.52

This passage makes clear that the English courts recognise the dual importance of EIA: not only is it a technical means of assisting expert decision-making; it is also an important guarantee of the democratic right of the public to be informed about the potential environmental consequences of proposed development, how they may be avoided or mitigated and to participate in the planning process by expressing their views. As such it should not be possible for the obligation to carry out an EIA to be avoided. Following Berkeley, it has become increasingly common for claimants in statutory challenges and judicial review to argue that in planning or environmental cases involving directly applicable EU law, a court has no remedial discretion and is obliged to quash any decision that is ultra vires. However, the Court of Appeal decision in R (Boggis) v Natural England53 suggests that Lord Hoffmann’s comments should be confined to the particular context of environmental assessment. The case of Boggis concerned a challenged to the designation of a Site of Special Scientific Interest (SSSI) on the ground inter alia that the decision was in breach of the Habitats Directive.54 The Court of Appeal held that the claim should fail, but Sullivan LJ went on in his obiter dicta to consider the discretion to refuse relief: Since the question of discretion does not arise, I would merely say that I doubt that it was appropriate for Blair J to apply Lord Hoffmann’s reasoning on that issue in Berkeley to this case. Berkeley was concerned with the EIA Directive and the opportunity for public debate about the possible environmental impact of projects subject to that directive prior to their authorisation is a vital part of the EIA process. By contrast, Art 6 of the Habitats Directive does not require the involvement of the public in the ‘appropriate assessment’. It was for English Nature to decide whether an appropriate assessment was required. If it had decided that such an assessment was required, the opinion of  85/337/EEC.   Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 603. 52   Ibid, 615–16. 53   R (on the Application of Boggis) v Natural England [2009] EWCA Civ 1061, [2010] 1 All ER 159. 54   Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. 50 51

160 Remedies the general public would have been obtained as part of the assessment process only if English Nature had considered that it was ‘appropriate’ to do so: see Art 6(3). As Lord Hoffmann said in the later case of R (Edwards) v The Environment Agency, the speeches in Berkeley need to be read in context, and both the nature of the flaw in the decision and the ground for exercise of the discretion have to be considered.55

A similar obiter conclusion was reached in R (Hulme) v Secretary of State for Communities and Local Government,56 which concerned a challenge to the grant of planning permission for the installation of nine wind turbines and associated equipment. The claimant was a member of a local residents group that objected to the installation of the turbines on the basis of the potential noise and effect on local ecology, especially bats. Planning permission had been granted by the Inspector on appeal, and the claimant contended inter alia that the Inspector had failed to give proper consideration to the impact on bats and to consider the Conservation (Natural Habitats, etc) Regulations 1994.57 Frances Patterson QC held that the inspector had clearly considered the possible effect on individual bats and the bat population. He had approached the evidence correctly, taking into account national and local policy, and there was no flaw in his reasoning. Whilst he did not expressly identify either the Habitats Directive or the 1994 Regulations, he clearly had in mind the importance of the presence of a European protected species on the development site in reaching his decision. Importantly, her obiter dicta discussed the issue of the court’s discretion to refuse relief. She said that even if the decision had been unlawful, she would have exercised her discretion not to quash the planning permission. She distinguished the EIA and habitat regimes on the basis that the habitats regime does not require public involvement in the same way as the EIA regime does: The inspector had then substantially complied with the requirements of the regulations, albeit he did not attribute his conclusions to the letter of the regulations for the reasons I have set out earlier. The circumstances here are very different from an EIA case where the provision of an environmental statement is the cornerstone of that regime. There, the ES, including mitigation measures, is the basis of public consultation prior to a decision being made. Here there is a different statutory regime. The decision maker is not under a comparable consultation requirement based upon a single accessible compilation of the relevant information provided by the applicant at the start of the application process. He has to satisfy himself on the considerations set down in the regulations. Reading the decision letter as a whole, the inspector here did so. In those circumstances, I do not have to go on to consider the issue of discretion but, for the sake of completeness, I deal with that matter and make it clear that, if I had had to consider it, I would have exercised it in favour of the defendants and upheld the planning permission. In Berkely [sic] v Secretary of State for the Environment, Lord Bingham emphasised that the discretion of the court to quash a decision, even in the domestic context, was very narrow. In Bown v Secretary of State for Transport, Carnwath LJ emphasised that the speeches in Berkeley needed to be read in context. In Edwards v Environment Agency, Lord Hoffman [sic] agreed with that observation and considered that both the nature of the flaw in the decision and the ground for the exercise of discretion had to be considered. In the circumstances of Edwards when he carried out that exercise, Lord Hoffman [sic] agreed with the Court of Appeal and the judge below that it would be pointless to quash the pollution permit granted under the Pollution Prevention and Control Regulations 2000. Applying those principles here, the flaw in the decision would be one of form   Boggis (above n 53) para 39 (references omitted).   R (on the Application of Hulme) v Secretary of State for Communities and Local Government [2010] EWHC 2386 (Admin). 57   SI 1994/2716. Now replaced by the Conservation of Habitats and Species Regulations 2010 (SI 2010/490). 55 56

Interim Remedies  161 but not of substance. It would thus be another occasion where it would be pointless to quash the planning permission granted.58

Accordingly, whether or not the court has a discretion to refuse relief in cases involving breach of EU law depends upon the nature of the unlawfulness, the nature of the provision infringed and the reasons (if any) in favour of exercising the discretion to refuse relief.

V.  Interim Remedies

A.  Stays as an Interim Remedy As explained above, for many years it was thought that injunctive relief was not available against Ministers of the Crown. This led to the stay being used as an interim remedy. A stay is usually an order halting proceedings before a court or tribunal, but in the 1980s and 1990s the courts began to order stays to halt the implementation of administrative decisions. Thus in R v Secretary of State for Education and Science, ex p Avon County Council,59 the Court of Appeal held that when ordering a stay of proceedings, ‘proceedings’ had to be construed broadly to include any process or procedure by which a public law decision is reached. Now that injunctions are available against ministers, the better view is that stays are concerned only with halting legal proceedings. This is important in order to ensure proper protection for defendants, given that an interim injunction will usually require the claimant to give a cross-undertaking in damages, whereas a cross-undertaking will frequently not be required in the case of a stay.

B.  Interim Injunctions Before 1974, it used to be the practice that an interim injunction would be granted only if the applicant could show a prima facie case on the merits. The House of Lords judgment in American Cyanamid Co v Ethicon60 changed this practice by introducing the following test: 1) Has the claimant proved that there is a serious question to be tried? 2) If the interim injunction were withheld, would the claimant be adequately protected by the eventual award of damages? 3) If damages would not adequately protect the claimant’s interests, would the defendant be adequately protected by the indemnification available under the claimant’s crossundertaking if the defendant won at trial? 4) In all circumstances, would the balance of convenience favour the award or refusal of the interim injunction? The application of this test in public law is illustrated by R v Secretary of State for Transport, ex p Factortame (No 2).61 The claimants contended that the Merchant Shipping Act 1988   Hulme (above n 56) paras 88–90.   R v Secretary of State for Education and Science ex p Avon CC (No 2) [1991] 1 QB 558, 561–62. 60   American Cyanamid Co v Ethicon Ltd [1975] AC 396. 61   R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603. 58 59

162 Remedies was contrary to directly effective EU law. The Act stated that only British-owned vessels managed and controlled from within the United Kingdom could be registered as British fishing vessels. One of the effects of the Act was that 95 vessels which had been treated as British-owned (because they were owned by British citizens) no longer qualified because they were managed and controlled from Spain. The claimants sought an interim injunction to dis-apply the 1988 Act pending a preliminary reference to the ECJ. Lord Goff held damages were not adequate remedy for the claimants, and therefore it was necessary to consider the balance of convenience. He thought that enforcing what was prima facie the law was a consideration of great weight, but ultimately the claimants were granted an injunction because of: (i) the strength of the claim; and (ii) the clear and immediate harm they would otherwise suffer. Lord Goff explained the application of the balance of convenience test in public law as follows: [A] prime purpose of the guidelines established in the Cyanamid case was to remove a fetter which appeared to have been imposed in certain previous cases, viz, that a party seeking an interlocutory injunction had to establish a prima facie case for substantive relief. It is now clear that it is enough if he can show that there is a serious case to be tried. If he can establish that, then he has, so to speak, crossed the threshold; and the court can then address itself to the question whether it is just or convenient to grant an injunction. . . . Lord Diplock approached the matter in two stages. First, he considered the relevance of the availability of an adequate remedy in damages, either to the plaintiff seeking the injunction or to the defendant in the event that an injunction is granted against him. As far as the plaintiff is concerned, the availability to him of such a remedy will normally preclude the grant to him of an interim injunction. If that is not so, then the court should consider whether, if an injunction is granted against the defendant, there will be an adequate remedy in damages available to him under the plaintiff ’s undertaking in damages; if so, there will be no reason on this ground to refuse to grant the plaintiff an interim injunction. At this stage of the court’s consideration of the case (which I will for convenience call the first stage) many applications for interim injunctions can well be decided. But if there is doubt as to the adequacy of either or both of the respective remedies in damages, then the court proceeds to what is usually called the balance of convenience, and for that purpose will consider all the circumstances of the case. I will call this the second stage.62

As well as dis-applying primary legislation alleged to be in breach of directly effective EU law, interim injunctions may also be granted to require compliance with secondary legislation pending a final ruling on its validity. In F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry,63 the appellants manufactured the drug Valium. The Department of Health thought that the price of the drug was too high and referred to matter to the Monopolies and Mergers Commission. The Commission recommended that the price of the drug be reduced, and a Regulation was introduced compelling price reductions.64 The appellants claimed that the Regulation was ultra vires and applied to have it quashed. The Ministry of Health sought an interim injunction to prevent the higher prices from being charged pending final determination of the validity of the Regulation. The House of Lords granted the Ministry of Health an interim injunction to require compliance with the price cap in the impugned Regulation pending final decision. Lord Diplock   Ibid, 671–72.   F Hoffmann-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295.   Regulation of Prices (Tranquillising Drugs) (No 3) Order 1973 (SI 1973/1093).

62 63 64

Interim Remedies  163 noted that a party seeking an interim injunction to dis-apply secondary legislation had ‘to show a strong prima facie case that the statutory instrument is ultra vires’.65

C.  Cross-Undertakings in Damages An injunction interferes with the defendant’s freedom, and by preventing the defendant from acting in a particular way it may cause significant financial losses. For example, the defendant may be prevented from implementing a valuable planning permission, or the blight of an alleged environmental liability may prevent the defendant from disposing of its property at the peak of the market. Therefore the claimant must usually agree, in what is known as the cross-undertaking in damages, to compensate the defendant for any loss it suffers in the event that the defendant wins at full trial. The cross-undertaking is an important protection for defendants, and it is a form of insurance which guarantees that if they are temporarily and wrongly prevented from acting by an injunction, any loss they suffer will be made good after trial. In environmental judicial review, the cross-undertaking in damages can, however, be an obstacle to economic access to justice. A claimant unable to afford to give a cross-undertaking in damages may be refused an interim injunction, and irreversible environmental harm may occur before the substantive judicial review hearing. On the other hand, however, the economic costs of an interim injunction being granted without the claimant giving a cross-undertaking may be too great for the developer/‘polluter’ to bear. The general practice of the Administrative Court is to require a cross-undertaking if the claimant is seeking to halt development pending final determination. This can work to the disadvantage of impecunious litigants, as the following case illustrates. In R v Secretary of State for the Environment, ex p RSPB,66 the claimant charity sought an interim injunction against the Sheerness Port Authority to prevent it from proceeding with development but was unwilling to give a cross-undertaking in damages. Lord Jauncey was highly critical of this stance: ‘Instead, [the RSPB] are seeking to achieve the same result without the risk of incurring very substantial expenditure and thereby asking this House to adopt a most unusual course.’67 The stay was refused, development proceeded and when, two years later, the ECJ ruled that the RSPB were correct in their substantive argument, it was too late for the birds – the car park had been built, and the birds’ habitat had already been destroyed. The courts have occasionally departed from the general rule in order to prevent irreversible environmental harm being inflicted pending final hearing.68 An important additional consideration in environmental judicial review cases is the Aarhus Convention, which   Hoffmann-La Roche (above n 63) 367.   R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds [1997] ENv LR 431. 67   Ibid, 440. 68   See, eg, R v Durham County Council, ex p Huddlestone [2000] Env LR D21, in which Kay J granted an injunction to stop mining work commencing without a cross-undertaking being given because of the potential harm that would be caused to the claimant and because of the risk of wider irreversible environmental harm. See also Save Britain’s Heritage v Secretary of State for Communities [011] EWCA Civ 334 [2011] Env LR 6. The Ministry of Justice is currently consulting on proposals in respect of cross-undertakings in damages in environmental judicial reviews. It is proposed that a cross undertaking in damages ought to be dispensed with where (a) the EIA directive (85/337) is engaged; (b) if an injunction were not granted a trial judgment would be impossible to enforce because the factual basis for the claim will have been eroded and bringing the case on quickly for trial would not resolve the problem; (c) significant environmental damage would be caused; and (d) the claimant would probably and reasonably discontinue proceedings or the application for an interim injunction if cross-undertaking in damages was required. 65 66

164 Remedies guarantees inter alia the right of access to justice in environmental matters and requires that such access shall be ‘fair, equitable, timely and not prohibitively expensive’. Access to justice is defined to mean access to court and to effective remedies to protect an individual’s environmental rights. It is questionable whether the general practice of insisting upon an invariably large cross-undertaking as the price for interim relief in environmental judicial reviews is compatible with the Aarhus Convention.

VI.  Exclusion of Judicial Review

Privitive or ouster clauses are often included in legislation in an attempt to prevent judicial review of administrative decisions. Such statutory provisions raise a key constitutional tension between the rule of law and the principle of parliamentary sovereignty. As we shall see, the courts have not expressly repudiated parliamentary sovereignty, but they have been extremely reluctant to give effect to ouster clauses that would deny individuals recourse to judicial remedy.

A.  Finality Clauses Parliament has attempted to exclude judicial review using a wide variety of statutory language. One of the earliest devices was a clause stating that an administrator’s decision was final and conclusive. In R v Medical Appeal Tribunal, ex p Gilmore,69 a medical appeal tribunal assessed the claimant’s disability benefit, and the statute said the tribunal’s award was final and conclusive. Denning LJ held, however, that this did not preclude judicial review of the tribunal’s award. He held that when Parliament uses the word ‘final’, it does so on the implied assumption that the tribunal has applied the law correctly. Only decisions correct in law are final. Therefore the court can intervene by way of judicial review in order to correct errors of law. But a finality clause does prevent an appeal on the merits.

B.  No-Certiorari Clauses Another device used by legislators is a clause in a statutory scheme declaring that there shall be no certiorari of an administrator’s decision. The courts have given such clauses a similarly narrow reading so as to preserve their judicial review jurisdiction. In ex p Gilmore Denning LJ reviewed the case law and explained that no-certiorari clauses had not been taken to exclude judicial review unless the error was an error of law on the face of the record.70 As is explained below in chapter nine, the modern approach to error of law is that all errors of law go to jurisdiction, and there is no longer such a thing as an error on the face of the record. This poses problems for the courts’ restrictive reading of no-certiorari clauses. At the time of ex p Gilmore it was possible to read such clauses narrowly so as to preclude only review on the ground of error on the face of the record, but not review of juris­dictional errors. Since all errors are now reviewable, on the ex p Gilmore reasoning, a no-certiorari   R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574.  Ibid.

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Exclusion of Judicial Review  165 clause would be totally ineffective and would not preclude any form of judicial review. However, Parliament must have meant something by including the no-certiorari clause in the legislation. The danger is that the courts’ construction of the no-certiorari clause more closely resembles disobedience of that clause. The implication is that judicial review is a constitutional fundamental that cannot be excluded by Parliament. The same artificiality can be seen in the House of Lords decision in Anisminic v Foreign Compensation Commission.71 The ouster in Anisminic stated that ‘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’. The House of Lords famously held that ‘determination’ meant a legally correct decision and that if the decision-maker got the law wrong, its decision was a nullity and thus only a purported determination. Judicial review of jurisdictional errors was not therefore precluded by the ouster clause because it addressed the prior question of whether there was a determination at all. The demise of review of errors of law on the face of the record also leaves this type of ouster clause entirely inoperative, causing Wade and Forsyth to observe that the courts’ practice is tantamount to saying that judicial review is a constitutional fundamental that even the sovereign Parliament cannot abolish.72 Indeed, Lord Woolf has spoken extra-­ judicially about the prospect of outright judicial defiance of an ouster clause in the context of the debate surrounding the Asylum and Immigration Bill, which included a clause precluding ‘proceedings for questioning . . . any determination’, including ‘a decision about jurisdiction’ of the tribunal on any ground, including ‘lack of jurisdiction’ and ‘error of law’. It was widely considered that this clause could not be construed in a way that would preserve the courts’ judicial review jurisdiction, and so Lord Woolf argued that it would be the catalyst for a written constitution and that the courts would perhaps openly disobey the ouster clause.73 In the event, the clause was not enacted, leaving unresolved the fundamentally important question whether Parliament is competent to exclude judicial review entirely.

C.  Time-Limited Ouster Clauses In contrast to the courts’ antipathy towards general ouster clauses, the courts have shown a greater willingness to give effect to so-called time-limited ouster clauses, that is clauses which preclude judicial review only after a specified period of time has elapsed (normally six weeks). In Smith v East Elloe Rural District Council,74 the defendant authority had carried out a compulsory purchase of the claimant’s land, and the claimant challenged its decision, contending that the clerk of the Council had obtained the compulsory purchase order in bad faith. The relevant legislation provided for a six-week time limit, after which the decision could not be questioned. The court accepted that this provision was effective to exclude the court’s supervisory jurisdiction after six weeks. The approach in East Elloe appears to be difficult to reconcile with that taken in Anisminic,75 and the relationship between the two cases was considered by Denning LJ in R   Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.  HWR Wade and CF Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 616. 73   Lord Woolf, ‘The Rule of Law and a Change in the Constitution’ (2004) Cambridge Law Journal 317. 74   Smith v East Elloe Rural District Council [1956] AC 736. 75   Above n 71. 71 72

166 Remedies v Secretary of State for the Environment, ex p Ostler.76 The claimant in Ostler challenged orders relating to highway construction on the ground of procedural unfairness and bad faith outside the applicable six-week statutory time limit. Denning LJ explained that Anisminic concerned a complete ouster, whereas in East Elloe there was a window in which a judicial review challenge could be made. In other words, the ouster clause in East Elloe did not represent such a fundamental threat to the rule of law because the timeframe for bringing a challenge was sufficiently generous. However, a claimant may not discover the facts disclosing grounds for challenge until after the six weeks have elapsed. In the light of the discussion above in chapter four concerning time limits in environmental judicial review claims, it is doubtful whether an absolute six-week time limit running from the date of the decision rather than the date on which a claimant had or ought to have had knowledge would be compatible with the Aarhus Convention and the EU Directives that give effect to it.77

  R v Secretary of State for the Environment, ex p Ostler [1977] QB 122.   See Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental Information; and Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment. 76 77

9 Error of Law and Fact One of the most important characteristics of judicial review is that the supervisory jurisdiction of the courts is one of review, not appeal. In other words, judges are concerned only with the legality of administrative decisions as opposed to their merits or correctness. Thus, a court does not ask itself the question, ‘Is this decision right or wrong?’ and the judge must not ponder whether he would himself have arrived at the decision in question. In judicial review, ‘the only question for the judge is whether the decision taken by the body under review was one which it was legally permitted to take in the way that it did’.1 This limitation on the powers of the courts has its roots firmly in constitutional principle. First, Parliament selects administrative decision-makers and confers power upon them based upon their expertise and accountability. Accordingly, it is not for the courts to usurp the appointed decision-makers and substitute a judicial view as to the merits. Secondly, since all rights of appeal against the merits of a decision are statutory, where Parliament has not provided an appeal right it must be inferred that Parliament did not intend that one should exist. It would therefore be improper for the courts to invent an appeal machinery themselves. The distinctions between appeal and review, between merits and legality, are central to understanding the law relating to jurisdiction. All administrative power is limited – both by the express and implied terms of the statute that confers it and by the general common law principles of judicial review. An administrative decision-maker will exceed his jurisdiction and act unlawfully if he transgresses any of those limits. If, however, the decision-maker remains within the limits of his jurisdiction, the judicial review court is not entitled to interfere with his decision on the merits. Jurisdictional questions are therefore those that must be answered correctly in the view of the reviewing court, whereas merits questions are for the decision-maker. This distinction means that the exercise of any statutory discretionary power raises two discrete questions: (i) may the power be exercised (a jurisdictional question on which the courts have the final word); and if so, (ii) should the power be exercised (a question of discretionary judgment or ‘merits’ for the decision maker).2 Smith LJ’s judgment in R (Badger Trust) v Welsh Ministers3 illustrates the point. The issue was whether a cull of badgers in Wales was necessary to ‘substantially reduce’ the incidence of bovine tuberculosis (TB) in cattle, pursuant to section 21(2)(b) of the Animal Health Act 1981. Smith LJ explained that section 21(2) set out the threshold requirements that must be satisfied before the Minister was invested with any discretion to make an order for the destruction of animals. Under the   R v Somerset County Council, ex p Fewings [1995] 1 All ER 513, 515 (Laws J).   However, the decision-maker’s discretion is not unlimited. Even after the decision-maker has cleared the initial jurisdictional issues and has begun to address the ‘merits question’, his power remains limited by common law principles of judicial review – reasonableness, fairness, proper purpose, etc. 3   R (on the Application of Badger Trust) v Welsh Ministers [2010] EWCA Civ 807. 1 2

170  Error of Law and Fact 1981 Act, the Minister must first focus upon an area, and he must be satisfied that in respect of that area there exists a disease among the wild members of one or more species that is being transmitted to animals in that area. On the facts of Badger Trust, the Minister would have to establish that tuberculosis existed in the population of wild badgers in that area and that it was being transmitted to cattle in that area. Secondly, the Minister must also be satisfied that the destruction of badgers in that area was necessary in order to eliminate or substantially reduce the incidence of tuberculosis in the cattle in that area. Consequently, ‘only when those threshold conditions are satisfied does the Minister have discretion to make an order for the destruction of the identified wild species in the area’.4 The difficulty in this area of law lies in determining which questions are jurisdictional and which are not. There are two competing issues of legal policy in this context. First, there is the imperative that inferior decision-makers should be properly held to account. If too few questions are held to be jurisdictional, administrative decision-makers may determine matters widely different from those that the legislature intended, and they would become the master of their own limits. Secondly, pulling in the opposite direction, there is the appeal/review dichotomy. If too many questions are held to be jurisdictional, administrative decisions will stand only if the reviewing court agrees with them, thereby collapsing the distinction between review and appeal and robbing administrative decision-makers of any autonomy. As will be seen below, English law favours extensive review by the courts over agency autonomy, but this approach is mitigated by a number of exceptions.

I.  Error of Law

A.  Historical Background 1.  The Collateral Fact Doctrine In the past, certain errors of law were regarded as being jurisdictional, while others were not. If a decision-maker made a ‘non-jurisdictional error of law’, he would not act unlawfully, and his decision would be valid notwithstanding the error of law. As Denning LJ explained in R v Northumberland Compensation Appeal Tribunal, ex p Shaw: No one has ever doubted that the Court of King’s Bench can intervene to prevent a statutory tribunal from exceeding the jurisdiction which Parliament has conferred on it; but it is quite another thing to say that the King’s Bench can intervene when a tribunal makes a mistake of law. A tribunal may often decide a point of law wrongly whilst keeping well within its jurisdiction.5

The courts attempted to determine which matters were jurisdictional and which were not by using the collateral fact doctrine. According to this theory, there are certain preliminary or collateral questions of fact, law or discretion, which the tribunal had to answer correctly in the opinion of the reviewing court. A mistake in relation to any of these would cause the tribunal to exceed its jurisdiction. Such jurisdictional questions could be contrasted with the central merits question, which it was for the tribunal to determine conclusively.   Ibid, para 76 (emphasis in original).   R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338, 346.

4 5

Error of Law  171 The key to the collateral fact doctrine was therefore distinguishing between the preliminary or collateral questions (which were jurisdictional) and the merits of the case (which were non-jurisdictional). But it proved impossible to identify preliminary or collateral issues in a principled and predictable manner. The courts attempted to draw the distinction by holding that misconstruing the enabling statute describing the kind of case which the tribunal was meant to examine would go to jurisdiction, whereas misconstruing a statutory description of the situation that the tribunal had to determine would not. This approach was flawed because the distinction could not be drawn in a principled fashion, and the decided cases cannot be reconciled with one another. It appears that the courts used the doctrine instrumentally according to whether or not they wished to intervene and quash decisions. This unpredictable approach therefore created considerable problems of legal certainty. 2.  Errors on the Face of the Record In addition to the problematic distinction between jurisdictional and non-jurisdictional errors of law, the law was further complicated by the existence of a special category of nonjurisdictional errors that were reviewable – namely errors on the face of the record. Denning LJ revived the doctrine of error on the face of the record in ex p Shaw : [T]he Court of King’s bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law.6

As a result of this decision, the courts could quash a decision if an error of law was disclosed on the face of the record of the proceedings, regardless of whether the error was jurisdictional or not. 3.  The Breakthrough in Anisminic The House of Lords decision in Anisminic v Foreign Compensation Commission 7 was an important staging post en route to the modern law governing jurisdictional errors. The claimant was an English company that had owned property in Egypt before it was sequestrated by the Egyptian authorities in 1956. In 1957 the claimant had sold the property to an Egyptian organisation. Then a treaty was agreed between the United Arab Republic and the United Kingdom providing funds to be paid as compensation for property confiscated in 1956. The claimant sought to participate in the fund and applied to the Foreign Compensation Commission. The Commission provisionally determined that the claimant had failed to establish the claim under the Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1962 on the ground that its successor in title was a non-British national, contrary to Article 4(1)(b)(ii) of the Order. The claimant contended that this preliminary determination was a nullity because the Commission had made an error of law and misconstrued the Order. In finding for the claimant, the House of Lords significantly broadened the scope of review for error of law. Lord Reid held that the term ‘jurisdiction’ could be used in two   Ibid, 346–47.   Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

6 7

172  Error of Law and Fact senses: in the narrow sense, it meant only that the tribunal was entitled to enter upon the enquiry; but in the broader sense, there were a number of ways in which, having correctly begun the inquiry, the tribunal could do something that rendered its decision a nullity. According to Lord Reid, examples of the latter form of jurisdictional error included misconstruction of the enabling statute so that the tribunal failed to deal with the question remitted to it; failure to take account of relevant considerations; and asking the wrong question.8 Herein lies the significance of the House of Lords decision: a court wishing to quash a decision can always characterise an alleged error as having resulted from the decision-maker having asked itself the wrong question or having taken account of irrelevant considerations. With such a broad definition of a jurisdictional error, it is hard to conceive of any other sort of error, and thus non-jurisdictional errors were in practice defined out of existence.

B.  The Current Position: ex p Page 1.  The Decision in ex p Page Uncertainty as to the precise effect of Anisminic9 was laid to rest by the House of Lords in R v Hull University Visitor, ex p Page.10 Lord Browne-Wilkinson held that Anisminic removed the distinction between errors of law on the face of the record and other errors of law by extending the ultra vires doctrine so that: Thenceforward it was to be taken that Parliament had only conferred the decision-making power on the basis that it was to be exercised on the correct legal basis: a misdirection in law in making the decision therefore rendered the decision ultra vires.11

Accordingly, the courts have the power to quash any relevant error of law, and the constitutional basis of their power to quash is the ultra vires doctrine. Following ex p Page, the courts will review every error of law and no longer employ the distinction between jurisdictional and non-jurisdictional error. Where an error of law has been made, the reviewing court will usually substitute its view for that of the decisionmaker. As we shall see, however, the simple proposition that all errors of law are reviewable does require qualification in four respects. 2.  Qualification 1: The Error Must be Relevant The courts will only intervene if the error of law is relevant in the sense that the error is one that affected the actual making of the decision and affected the decision itself. This is illustrated by the Court of Appeal decision in R (Morge) v Hampshire County Council,12 in which the claimant challenged a negative screening opinion adopted by the local planning authority in respect of a 4.7 km bus route. One of the issues in the case was the effect of the   Ibid, 171.   See, eg, Pearlman v Keepers and Governors of Harrow School [1979] QB 56; Re Racal Communications Ltd [1981] AC 374; South East Asia Fire Bricks Sdn v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363; and O’Reilly v Mackman [1983] 2 AC 237. 10   R v Hull University Visitor, ex p Page [1993] AC 682. 11   Ibid, 701F–G. 12   R (on the Application of Morge) v Hampshire County Council [2010] EWCA Civ 608, [2010] PTSR 1882. Upheld on appeal [2011] UKSC 2 [2011] IWLR 268. 8 9

Error of Law  173 proposed development on the local population of protected bats, in particular the meaning of ‘disturbance’ in Article 12(1)(b) of the Habitats Directive.13 The bat survey upon which the decision-maker had placed great reliance had concluded that no significant impact upon the bats was anticipated. However, the Court of Appeal held that disturbance does not have to be ‘significant’; therefore the decision-maker had misdirected itself in law. Nevertheless, Ward LJ held that the decision should not be quashed because the evidence clearly showed that no activity would be undertaken as part of the development which would as a matter of law constitute a disturbance.14 In other words, the error of law did not have a material effect on the outcome of the local planning authority’s decision, because even if it had correctly construed the legal test, that test would not have been satisfied on the facts. 3.  Qualification 2: Special Jurisdictions The error of law in Page itself was held not to be reviewable because the defendant university visitor was applying the ‘domestic’ law of the university of which he was the sole arbiter, rather than the general law of the land. The majority of the House of Lords held that the university visitor was amenable to judicial review only if he acted outside his jurisdiction in the narrow sense or abused his powers or acted in breach of natural justice. This conclusion was heavily influenced by practical considerations, such as the speed and cost of pro­ ceedings before the visitor. As such, it is possible that the general principle that all errors of law are jurisdictional may yield to practical considerations in other contexts besides the visitorial jurisdiction. Lord Slynn’s dissent on this point is persuasive. He could not see any reason in principle for limiting the availability of a quashing order to a patent excess of power, such as where the visitor has decided something that was not within his remit. In his view, if a quashing order was generally available to correct any error of law, even errors not involving abuse of power, then it ought also to be available in respect of the visitor’s decisions. 4.  Qualification 3: Inferior Courts of Law In Re Racal,15 Lord Diplock held that the High Court could not commit jurisdictional errors of law because it had unlimited jurisdiction. He also considered the position of inferior decision-makers and drew a distinction between inferior courts of law and administrative bodies. He said that in the case of inferior courts, such as a county court, there should be no presumption that Parliament had not given them jurisdiction to decide points of law conclusively; in each case it is a matter of construction of the statute establishing the inferior court whether Parliament has or has not done so. By contrast, there is a presumption that administrative bodies have no authority to determine questions of law conclusively, and in the absence of clear contrary provision, any error of law that they make will constitute an excess of jurisdiction. Lord Diplock’s distinction between inferior courts of law and administrative bodies does not sit comfortably with the Divisional Court ruling in R v Greater Manchester Coroner, ex p Tal,16 which established that any mistake of law would destroy the jurisdiction of a   Council Directive 92/43/EEC [1992] OJ L206/7.   Ibid, paras 73–74. 15   Re Racal [1981] AC 374. 16   R v HM Coroner for Greater Manchester, ex p Tal [1985] QB 67. 13 14

174  Error of Law and Fact coroner’s inquest, because a coroner’s inquest is actually an inferior court of law. However, in ex p Page, the House of Lords appeared to support the distinction between inferior courts of law and administrative bodies.17 Thus, it appears that an error of law committed by an inferior court is not necessarily jurisdictional. 5.  Qualification 4: ex p South Yorkshire In R v Monopolies and Mergers Commission, ex p South Yorkshire Transport,18 the House of Lords recognised another situation in which hard-edged review for error of law would be softened in order to give administrative decision-makers greater discretion. Section 64(1) (a) of the Fair Trading Act 1973 gave the Secretary of State power to refer a merger to the Monopolies and Mergers Commission when it appeared to him that two or more enterprises ceased to be distinct and that as a result of the supply of over 25 per cent of the services of any description in ‘a substantial part of the United Kingdom’ would be carried on by one person. The Commission investigated a merger between two bus operators within an area that was 1.65 per cent of the total area of the United Kingdom and which contained only 3.2 per cent of the total population of the United Kingdom. The claimant companies contended that the Commission’s investigation should be set aside because it had made an error of law in that the jurisdictional condition relating to ‘a substantial part of the United Kingdom’ had not been fulfilled. Lord Mustill held that the term ‘substantial’ was open to a range of possible meanings, ranging from ‘not trifling’ to ‘nearly complete’.19 In between those two extremes, there were many other possible meanings that drew colour from the statutory context in which they were found. He held that it was for the court to decide where along the ‘spectrum of possible meanings’ the term was to be placed.20 However, the meaning chosen by the court might itself be so imprecise that different decision-makers could rationally reach different conclusions when applying that definition to the facts of a given case. Lord Mustill concluded: [I]n such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational . . . The present is such a case. Even after eliminating inappropriate senses of ‘substantial’ one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement.

C. Conclusions The case law discussed above shows that the courts have attempted to draw the distinction between reviewable and non-reviewable errors of law by using a variety of analytical devices. The collateral fact doctrine sought to distinguish between preliminary questions and the merits, but that could not be done in a principled fashion. The modern position following ex p Page holds that all errors of law are jurisdictional, but this also requires an analytical distinction to be drawn between errors of law (all of which may be reviewed) and errors of fact (which, as discussed below, do not all go to jurisdiction). However, there is no   ex p Page (above n 10) 703.   R v Monopolies and Mergers Commission, ex p South Yorkshire Transport [1993] 1 WLR 23. 19   Ibid, 29. 20   Ibid, 30. 17 18

Error of Law  175 clear analytical test for deciding whether a question is one of law or of fact, or a mixed question of law and fact.21 Ultimately, as Craig has argued, ‘[t]he the scope of jurisdictional review is not self-defining. It is not capable of being answered by linguistic or textual analysis of the statute alone, however assiduously that is performed’.22 The crucial question when determining the jurisdictional limits of a decision-maker is whose relative opinion on the matters in issue – the court’s or the decision-maker’s – should be authoritative? The answer to that question depends not on conceptual or analytical reasoning but rather on considerations of constitutional and political theory such as one’s conception of the separation of powers and relative institutional competence.23 As such, one should not expect neat juristic answers to jurisdictional questions. In the section that follows there is therefore no attempt exhaustively to examine how all questions of jurisdictional error are dealt with in the multitude of different environmental contexts. Instead, the aim is to show how the answer to jurisdictional questions in environmental judicial review is influenced by policy considerations.

D.  Environmental Cases 1.  Autonomous Meaning The first important feature of jurisdictional review in environmental cases is that jurisdictional questions of law often arise from the EU legislation or from domestic implementing legislation. Environmental judicial review cases therefore often involve detailed scrutiny of the language of EU directives and domestic implementing regulations, in search of the autonomous meaning to be given to concepts used in EU environmental law. The autonomous meaning principle means that the concepts of EU environmental law are given a single meaning by the European Court of Justice (ECJ), which applies uniformly across all Member States. It is ultimately not for a domestic court to decide the meaning of EU legislation; instead, the final say rests with the ECJ. Therefore in Morge,24 when considering the meaning of the word ‘deliberate’ in Article 12 of the Habitat’s Directive, Ward LJ explained that ‘whatever the ordinary meaning of “deliberate” as an English word, the meaning given by the ECJ is perfectly easy to understand and it must be applied’.25 The uniform autonomous meaning is ascertained by examining the language of the EU legislation and, most importantly, by applying the ECJ’s principles of legislative interpretation such as the principle of effectiveness and the purposive interpretation of EU environmental legislation.26 As Lord Hoffmann explained in R v North Yorkshire Council, ex p Brown (a case concerning the meaning of the concept of ‘development consent’ in the Environmental Impact Assessment (EIA) Directive27), 21   See J Beatson, ‘The Scope of Judicial Review for Error of Law’ (1984) 4 Oxford Journal of Legal Studies 22; and R Williams, ‘When is an Error not an Error? Reform of Jurisdictional Review of Error of Law and Fact’ (2007) Public Law 793. 22   P Craig, Administrative Law, 6th edn (London, Sweet & Maxwell, 2008) 451. 23   See I Hare, ‘The Separation of Powers and Judicial Review for Error of Law’ in C Forsyth and I Hare (eds), The Golden Metwand and the Crooked Chord: Essays on Public Law in Honour of Sir William Wade QC, (Oxford, Clarendon Press, 1998). 24   Above n 12. 25   Morge (above n 12) para 29. 26   See above ch 2. 27   Directive 85/337/EEC as amended.

176  Error of Law and Fact The appeal therefore turns upon the meaning of the concept of ‘development consent’ in the Directive. This is a concept of European law, which has to be applied to the planning systems of all the member states. To ascertain its meaning, it is necessary to examine the language and in particular the purpose of the Directive.28

Examination of the purpose of an EU directive is especially critical in the environmental context. The ECJ frequently takes a purposive approach to the interpretation of juris­ dictional concepts in environmental legislation. For example, in Kraaijeveld,29 the ECJ held that the EIA Directive had a ‘wide scope and broad purpose’,30 which should not be undermined by granting unlimited discretion to Member States to determine whether all projects of a certain type would or would not have ‘significant effects’ on the environment.31 2.  Hard-Edged Review A good example of an issue that has been held to be a jurisdictional question of law is whether development falls within one or other of the classes of projects that are subject to the requirements of the EIA Directive.32 In R (Goodman) v London Borough of Lewisham,33 Buxton LJ explained: In the present case, the only serious contender for a category of sch 2 development under which the application might fall is para 10(b) of the schedule: infrastructure projects that are urban development projects. These are very wide and to some extent obscure expressions, and a good deal of legitimate disagreement will be involved in applying them to the facts of any given case. That emboldened Lewisham to argue, and the judge to agree, that such a determination on the part of the local authority could only be challenged if it were Wednesbury unreasonable. I do not agree. However fact-sensitive such a determination may be, it is not simply a finding of fact, nor of discretionary judgment. Rather, it involves the application of the authority’s understanding of the meaning in law of the expression used in the Regulation. If the authority reaches an understanding of those expressions that is wrong as a matter of law, then the court must correct that error: and in determining the meaning of the statutory expressions the concept of reasonable judgment as embodied in Wednesbury simply has no part to play.34

The decision to categorise the question of whether development is EIA development or not as a jurisdictional question of law is largely based on policy consideration, in particular the principle of effectiveness. The courts consider that decision-makers should not be able to avoid the impact of the EIA Directive by having discretion to decide whether the Directive is applicable or not. Some discretion is, however, afforded to decision-makers as a result of the imprecise expressions used in the Directive. As Buxton LJ explained in Goodman, even where it is for the court to define the scope of the EIA Directive, ‘[t]he meaning in law may itself be sufficiently imprecise that in applying it to the facts, as opposed to determining what the meaning was in the first place, a range of different conclusions may be legitimately

  R v North Yorkshire County Council, ex p Brown [2000] 1 AC 397, 401.   Case C-72/95 Kraaijeveld [1996] ECR I-5403. 30   Ibid, para 31. 31   See also, eg, Case C-142/07 Ecologistas en Acción-CODA v Ayuntamiento de Madrid [2008] ECR-I 6097. 32   Another good example is the question of whether a material is ‘waste’ or not. See further above ch 1. 33   R (on the Application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140, [2003] Env LR 28. 34   Ibid, para 8. 28 29

Error of Law  177 available’.35 In other words, the approach in ex p South Yorkshire was applicable because the statutory terminology was imprecise, even after the court had ascribed the correct legal meaning to it. Therefore it is for the courts to define the scope of the EIA Directive, but decision-makers have discretion in applying the law to the facts. 3.  Questions of Judgment for the Decision-Maker In environmental cases, issues often arise that the courts feel are best determined by the expert decision-maker; and so, despite ex p Page, jurisdictional review is not always ‘hardedged’, and the court will not always substitute its own view. The issue of whether development is likely to have significant effects on the environment exemplifies this approach. In Goodman, although Buxton LJ held that the question of whether development fell within the scope of Schedule 2 of the EIA Directive was for the court, he was prepared to accept that the question of whether development was EIA development – ie, whether it would be likely to have significant environmental effects – was a question of planning judgement or opinion for the local planning authority, which could be challenged only on the ground of reasonableness.36 The decision to categorise this question as one of discretionary planning judgement for the decision-maker was not based upon the wording of the EIA Directive but rather on the view that local planning authorities are institutionally better placed to determine the question than the courts.37 Sometime, however, the policy considerations are not clear-cut, and judges disagree about whether they should allow the decision-maker some autonomy or whether they should substitute their own view of the meaning or application of a statutory term. Such disagreement can be seen in the Court of Appeal decision in Badger Trust,38 which concerned the question whether a cull of badgers was necessary to ‘substantially reduce’ the incidence of bovine tuberculosis in cattle in the area, pursuant to section 21(2)(b) of the Animal Health Act 1981. The majority of the Court of Appeal (Smith and Stanley Burnton LJJ) held that the word ‘substantial’ was to be construed in context, and a net reduction in the incidence of bovine tuberculosis of 9 per cent was not sufficiently substantial for that purpose. That conclusion was influenced by considerations of effectiveness and a high standard of environmental protection. Stanley Burnton LJ recognised that the word ‘substantial’ was open to a wide variety of interpretations: It is common ground that ‘substantial’ is a protean, or chameleon word, the meaning of which depends on the context. It may mean ‘almost complete’, as in the phrase, ‘I am in substantial agreement’. The so-called doctrine of substantial performance requires performance that approaches completion. At the other extreme, it may denote something more than insignificant, or, as Baroness Hale said in Majorstake Ltd v Curtis, ‘not little’.39

He chose to resolve that ambiguity by presuming that Parliament had intended the word ‘substantial’ in the 1981 Act to be towards the higher end of the spectrum because section 21 authorised the culling of protected species militating in favour of a restrictive inter­ pretation of the threshold condition ‘substantial’:  Ibid.   See also Morge (above n 12) para 79 (Ward LJ).   This also explains the Court of Appeal’s view in Morge (above n 12) para 35, that whether development would lead to ‘disturbance’ of a protected species under the Habitats Directive is one of fact and degree for the decision-maker. 38   Above n 3. 39   Badger Trust (above n 3) para 99. 35 36 37

178  Error of Law and Fact It is relevant to the interpretation of section 21 that it extends to protected species, such as badgers. Given the drafting of section 21(2)(b), I do not think that Parliament authorised the removal by delegated legislation of the protection it had conferred by the Protection of Badgers Act 1992, and any similar legislation applying to other species, in order to effect a reduction in disease that was only just more than insignificant or trivial.40

By contrast, Pill LJ considered that protecting livestock was the primary policy consideration: [I]t is not necessary to demonstrate a large percentage reduction to satisfy the test in section 21(2)(b). The priority is the protection of livestock whether or not the consequential destruction is of animals of an otherwise protected species.41

In his view, the decision-maker should have autonomy to determine whether the evidence demonstrated the prospect of a substantial reduction of the incidence of TB in livestock.42 Although, as Badger Trust illustrates, judges may often disagree about the extent to which they should substitute their own view for that of a decision-maker, one point is clear: the courts are reluctant to substitute their view where the issue involves scientific debate. Environmental legislation frequently uses concepts that are not clear-cut and are the subject of scientific or expert debate. One such example is the question of what exactly ‘conservation’ requires. Since there is considerable room for dispute as to what precisely conservation entails on the facts of each specific case, environmental regulators may face arguments from landowners that the measures they have imposed are too onerous and exceed what the legislature intended when it conferred a power to ‘conserve’. The Court of Appeal decision in R (Boggis and Easton Bavents Conservation) v Natural England 43 exemplifies this type of challenge, and it shows that the courts are willing to afford a wide margin of discretion to expert decision-makers in the application of imprecise or scientifically contested statutory terminology. The case concerned cliffs in Suffolk that had been the subject of coastal erosion. The claimant lived near the shore, and, along with other residents, he had built a 1,000-metre sea defence to protect his property. Natural England was concerned about the possible effect of the sea defence on the geological features of the cliff face, and so it proposed extending an existing Site of Special Scientific Interest (SSSI) to include the cliffs and a strip of land on the landward side. This new designation included the claimant’s property, and it would have the effect that Natural England’s consent would be required for the erection or maintenance of sea defences likely to damage the nature of the site. Such consent was unlikely to be granted, and it was predicted that within 50 years the sea would naturally erode the cliff face back beyond the claimant’s property. The claimant contended that Natural England had misconstrued its powers and that rather than using its powers for conservation, it was instead permitting the destruction of the exposed face of the cliffs. Natural England maintained that extension of the SSSI was an act of conservation because it was not just the visible cliff face that was of interest; the continual geological exposure maintained by erosion was also a feature of interest.

  Ibid, para 102.   Ibid, para 43. 42   Ibid, para 45. 43   R (on the Application of Boggis and Easton Bavents Conservation) v Natural England [2009] EWCA Civ 1061, [2010] Env LR 13. 40 41

Review of Factual Errors  179 At first instance Blair J held that dictionary definitions and statutory definitions of conservation from other contexts did not help him to determine what amounted in law to ‘geological conservation’. He drew a twofold distinction in the context of geological con­ servation between ‘integrity sites’, where a protectionist approach was necessary, and ‘exposure sites’, where maintenance of exposure was required.44 Thus, the concept of geological conservation as used in the legislation was not a static concept: [It is] a dynamic concept that may involve keeping things as they are, but does not necessarily do so. It may also involve allowing natural processes to take their course, as in the case of erosion by a river, or by climatic forces, or by the sea, and similar considerations will apply when the area of land in question is of special interest by reason of its flora or fauna.45

The Court of Appeal upheld that approach and found that even if conservation meant preservation, allowing nature to take its course would ‘preserve’ the exposure.46 Sullivan LJ considered that ‘conservation’ did not necessarily mean the same as ‘preservation’, although in many cases preservation may be the best way to conserve. Importantly, he held that ‘[w] hether that is so in any particular case will be a matter, not for the lawyers, but for the professional judgement of the person whose statutory duty it is to conserve’.47 In other words, the requirements of conservation are matters best left to the discretion of expert decisionmakers rather than issues on which a court should substitute its own view.

II.  Review of Factual Errors

A.  Precedent/Jurisdictional Facts Traditionally, judicial review is concerned with law and not with matters of fact. Lord Brightman summarised this view in the context of a challenge to a local housing authority’s decision on homelessness: Parliament intended the local authority to be the judge of fact . . . Where the existence or nonexistence of a fact is left to the judgment and discretion of a public body . . . [i]t is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are [acting] perversely.48

Most findings of fact are not regarded as jurisdictional, but if the court decides that the legislation requires certain conditions to be satisfied before the decision-maker is able to act, it will be unlawful for the decision-maker to act unless those conditions are in fact satisfied. The leading case is R v Secretary of State for the Home Department, ex p Khawaja.49 In that case the Secretary of State had power to detain and remove ‘illegal entrants’, and he argued that this power permitted detention and removal when he had reasonable grounds for believing a person to be an illegal entrant. The House of Lords rejected this argument and   Boggis and Easton Bavents (ibid) [2008] EWHC 2954 (Admin), [2009] Env LR 20, para 66 ff.   Ibid, para 76. 46   Boggis and Easton Bavents (above n 43) para 18. 47  Ibid. 48   R v Hillingdon LBC, ex p Pulhofer [1986] AC 484, 518. 49   R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74. 44 45

180  Error of Law and Fact held that draconian powers to arrest without trial as a first stage in the removal of somebody from the United Kingdom could be given to immigration authorities only by clear statutory language. The Immigration Act 1971 gave the power to detain only those people who were ‘illegal entrants’; it did not give power to detain people who the immigration authorities reasonably believed to be ‘illegal entrants’. Therefore, before exercising the power, the authorities had to establish, on the balance of probabilities, that the person was an illegal entrant. Similarly, in White and Collins v Minister of Health,50 the local authority had power to take land compulsorily for housing, provided that it was not ‘part of any park, garden or pleasure ground’.51 An order of compulsory purchase was quashed because the land was in fact parkland – ie, the authority had got a jurisdictional fact wrong.

B.  Ignorance or Misunderstanding of an Established and Relevant Fact A new principle has emerged recently that judicial review will be available where ‘the decision-maker is shown to have misunderstood or been ignorant of an established and relevant fact’.52 The leading case is the Court of Appeal decision in E v Secretary of State for the Home Department,53 in which Carnwarth LJ held: In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of [R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330]. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been ‘established’, in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not been have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal’s reasoning. Accordingly, we would accept the submissions of each of [the present appellants], that, if the new evidence is admitted, the court will be entitled to consider whether it gives rise to an error of law in the sense outlined above.54

This ground for judicial review will be made out only if four conditions are satisfied: 1) There must be a mistake as to an existing fact (including the availability of evidence on a point);55   White and Collins v Minister of Health [1939] 2 KB 838.   Housing Act 1936, s 75.   Support for creation of such a ground of review was given by the House of Lords in a number of cases: R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330, 344; R (on the Application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 53 (Lord Slynn); and Begum v Tower Hamlets LBC [2003] 2 AC 430, para 7 (Lord Bingham). 53   E v Secretary of State for the Home Department [2004] QB 1044. See also R (on the application of Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982; [2005] Imm AR 535; MT (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808; R (on the Application of Lunt) v Liverpool City Council [2009] EWHC 2356 (Admin); and R (on the application of McDougal) v Liverpool City Council [2009] EWHC 1821 (Admin). 54   E (ibid) paras 66–67. 55   Thus the claim failed in Cox v Secretary of State for Communities and Local Government [2010] EWHC 104 (Admin) because the claimant could not show that the planning inspector’s conclusion that emissions from mobile telephone masts would be well within the international guidelines was mistaken. 50 51 52

Review of Factual Errors  181 2) the fact must be uncontentious and objectively verifiable; 3) neither the claimant nor his advisors must be responsible for the mistake; and 4) the mistake must have played a material part in the decision. Although E concerned a statutory appeal on a point of law, Carnwarth LJ recognised that the statutory appeal jurisdiction was essentially the same as the High Court’s powers of judicial review. Therefore mistake of fact is now an established ground for judicial review. Furthermore, following E, it has now been established that a mistake of fact by a planning inspector in a planning appeal will give rise to a ground of appeal in a statutory planning challenge under section 288 of the Town and Country Planning Act 1990.56 Because environmental judicial review claims are characterised by scientific and factual complexity, there is great potential for decision-makers to make errors of fact. This is particularly the case in the field of environmental impact assessment. The basic philosophy behind the EIA Directive57 is to ensure that pollution and environmental harm are addressed at source before development takes place. The EIA system imposes a rigorous procedure to be undertaken by the developer for providing information to enable the envir­onmental effects of a project to be properly considered by the decision-maker before the grant of permission. This is known as the ‘Environmental Statement’, and disputes often arise in relation to both the adequacy of an environmental statement in the sense of its completeness58 and whether it is based on factual errors. The courts have taken a robust approach to claims arguing that an environmental statement is based upon a factual error. They have stressed that the process of environmental impact assessment is an iterative one, and an error in an environmental statement need not be fatal if it is corrected by the decision-maker gathering further information at a later stage. In other words, the court will not focus on a single factual error without regard to the totality of the ‘dynamic process’ of assessment.59 A good example of this robust approach is the decision of the Privy Council in Belize Alliance of Conservation Non-Governmental Organisations (BACONGO) v The Department of the Environment.60 The case concerned the construction of the Chalillo Dam – a highly controversial project to provide a domestic source of electricity for Belize which would have severe environmental consequences in that some 10 km of riverine habitats comprising some of the most biologically rich and diverse regions remaining in Central America would be drowned, along with potentially important archaeological sites. Lord Hoffmann described the wildlife affected in vivid terms: The area has the highest density of the surviving big cats (jaguar, puma and ocelot) in Central America. Morelet’s crocodile (a rare species) lives in the rivers. Shy and secretive tapirs lumber through the woods. Gorgeous Scarlet Macaws, of which only about 1000 still exist anywhere in the world, nest in the trees by the river banks.61

The first legal issue concerned the adequacy of the environmental statement, in particular the fact that surveys and mitigation measures on matters such as population, archaeology,   Eley v Secretary of State for Communities and Local Government [2009] EWHC 660 (Admin), para 51.   Above n 27. 58   See below ch 12. 59   R (on the Application of Burkett) v London Borough of Hammersmith and Fulham [2003] EWHC 1031 (Admin), paras 33 and 37 (Newman J). 60   Belize Alliance of Conservation non-Governmental Organisations (BACONGO) v The Department of the Environment [2004] UKPC 6, [2004] Env LR 38. 61   Ibid, para 6. 56 57

182  Error of Law and Fact wildlife and rare plants had been left until a late stage. The majority held that this did not invalidate the environmental statement, which was not required to be a counsel of perfection. They cited and adopted the observations of Cripps J in the Land and Environment Court of New South Wales in Prineas v Forestry Commission of New South Wales: I do not think the [statute] . . . imposes on a determining authority when preparing an environmental impact statement a standard of absolute perfection or a standard of compliance measured by no consideration other than whether it is possible in fact to carry out the investigation. I do not think the legislature directed determining authorities to ignore such matters as money, time, manpower, etc. In my opinion, there must be imported into the statutory obligation a concept of reasonableness . . . [P]rovided an environmental impact statement is comprehensive in its treatment of the subject matter, objective in its approach and meets the requirement that it alerts the decision-maker and members of the public . . . to the effect of the activity on the environment and the consequences to the community inherent in the carrying out or not carrying out of the activity, it meets the standards imposed by the regulations. The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and the regulations.62

Accordingly, it was not necessary for the environmental statement to pursue investigations to resolve every issue. Instead, environmental control in Belize was held to be an iterative process that does not stop with the approval of the environmental statement, and it was wrong to approach an environmental statement as if it represented the last opportunity to exercise any control over a project that might damage the environment.63 The second legal issue concerned the adequacy of the 1500-page environmental statement, which was alleged to be based on an error as to the geology of the site for the dam. The environmental statement said that whereas the sides of the valley were sandstone, the floor was granite. A further independent report was commissioned, which concluded that the rock was in fact sandstone, but subject to taking this into account in the detailed design, the site was geologically suitable for dam construction. The independent report was not referred to by the decision-maker or the developer in the proceedings below and was disclosed only very shortly before the Privy Council hearing. The majority of the Privy Council held that the question was whether the defendant had acted lawfully in approving the project when there was substantial doubt as to whether the environmental statement was correct in saying the floor was granite. They concluded that the classification of the floor as sandstone granite would not have made a significant difference to the safety of the dam because all engineers involved had agreed that what mattered was the permeability and load-bearing capacity of the rock, not its geological classification. However, the minority took a much stricter approach. Lord Walker and Lord Steyn held that the method of rolled concrete construction referred to in the environmental statement might or might not be appropriate for a dam built on sandstone. There was no evidence on the matter, and it was not a question for the Privy Council to resolve. Since it had not been proven that the geological classification of the floor as granite or sandstone could not affect the form of the construction of the dam, the mistake of fact was highly relevant to the adequacy of the environmental statement. The approach of the minority appears to be correct. The mistake ought only to be held to be immaterial if the issue could not affect the form of construction of the dam. But the   Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402, 417.   Belize Alliance (above n 60) paras 70–71 (Lord Hoffmann).

62 63

Review of Factual Errors  183 evidence on this point was not conclusive, and so it had to be assumed that changes to the design and construction might be required in the light of the mistake as to the geological composition of the floor. If unspecified changes might be required as a result of the mistake, it could not therefore be said that the project had been properly assessed.

C.  No Supporting Evidence The final issue to consider is the extent to which the courts will inquire whether the evid­ ence before a decision-maker was sufficient to support his conclusions. The traditional position was the so-called ‘no evidence’ rule in R v Nat Bell Liquors Ltd,64 according to which a decision would not be outside the decision-maker’s jurisdiction even if it was reached on no evidence. The modern position is that no evidence is now generally regarded as a ground for review. Thus in Eshugbayi Eleko v Government of Nigeria,65 evidence was required to show whether the claimant was a native chief or not. Similarly, in Ashbridge Investments v Minister of Housing and Local Government,66 Lord Denning MR held that the court could intervene if a Minister acted on no evidence or reached a decision that on the evidence he could not reasonably arrive at. As Lord Wilberforce stated in Secretary of State for Education and Science v Tameside MBC: If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made upon a proper self-direction as to those facts, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge.67

The requirement that a decision-maker must have sufficient evidence has been affirmed in the environmental context. In R (Jones) v Mansfield DC,68 the Court of Appeal held that in order to adopt a negative screening opinion that an environmental impact assessment was not required, even though development fell within Schedule 2 of the Town and Country Planning (EIA) (England and Wales) Regulations 1999, a local planning authority had to have sufficient information about the project to be able to make an informed judgment as to whether it was likely to have a significant impact on the environment. It is not therefore possible to decide to adopt a negative screening opinion on the basis that information as to envir­ onmental effects will be provided in the future.69 Thus in R (Co-op) v Northumberland CC,70 a negative screening opinion was quashed because the authority had not been entitled to base its decision on a communication from the developer that failed to describe the possible envir­ onmental effects of the proposed development other than in the most general and superficial terms and gave assurances that the necessary information would be provided in the future.   R v Nat Bell Liquors Ltd [1922] 2 AC 128.   Eshugbayi Eleko v Government of Nigeria [1931] AC 662, 670–72. 66   Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, 1326. 67   Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, 1047. 68   R (on the Application of Jones) v Mansfield District Council [2003] EWCA Civ 1408, [2004] Env LR 21. 69   R (on the Application of Lebus) v South Cambridgeshire DC [2002] EWHC 2009 (Admin), [2003] Env LR 17; and Younger Homes (Northern) Ltd v First Secretary of State [2003] EWHC 3058 (Admin), [2004] JPL 950. 70   R (on the application of Cooperative Group Ltd) v Northumberland County Council [2010] EWHC 373 (Admin), [2010] Env LR 40. 64 65

184  Error of Law and Fact In the environmental context, the court may also examine the quality of the evidence upon which a decision-maker has based its conclusion. In particular, it may be concluded that a statutory power requires there to be scientific evidence to support a decision-maker’s actions. Thus, in Badger Trust,71 when considering whether a cull of badgers in Wales was necessary to ‘substantially reduce’ the incidence of bovine tuberculosis in cattle pursuant to section 21(2)(b) of the Animal Health Act 1981, Smith LJ held that the Minister’s decision must be based on science rather than a hunch: I do not think that it is disputed that the section 21 consideration of whether the destruction of members of a wild species is necessary to eliminate or reduce the incidence of a disease in animals must be based on scientific evidence. Hunch and anecdote would obviously not be sufficient; nor would impermissible extrapolation.72

  Above n 3.   Badger Trust (above n 3) para 77.

71 72

10 Retention of Discretion A fundamental principle of administrative law is expressed by the maxim delegatus non potest delegare – the body to whom power has been delegated may not itself delegate that power. Thus, if discretionary power is given to a decision-maker, it is for that decisionmaker alone to exercise the power. Four distinct rules flow from the principle that Parliament’s chosen decision-maker must actually make the relevant decision: 1) The decision-maker cannot delegate without authority (non-delegation); 2) the decision-maker cannot prevent himself from exercising the power by deferring to another (non-abdication); 3) the decision-maker must not treat his policy as if it is binding (no over-rigid policies); and 4) the decision-maker must not enter agreements that purport to prevent him exercising his discretion (no fettering by contract). In the environmental context, these principles are important, given the large number of administrative decisions delegated to officials. They are also important because of the prominent role played by policy in environmental protection.

I.  The Non-delegation Principle

A.  The Basic Rule The basic rule of the non-delegation principle is that discretionary powers must be exercised by the person or body on whom they were conferred, and they cannot be delegated without express or implied permission. There is in effect a presumption against delegation unless it is expressly or impliedly authorised.1 Whether delegation is permitted will depend on the wording of the specific legislative provisions. The courts are influenced by three factors in particular: first, the nature of the function being performed by the decision-maker; second, the nature and the scope of the power being delegated; and third, whether rights, reputations or significant interests of individuals are affected by the power.

1   Wade and Forsyth have noted that ‘Sometimes the judicial aversion to delegation is carried to lengths which make administration difficult’: W Wade and C Forsyth, Administrative Law, 9th edn (Oxford, Oxford University Press, 2004) 315.

186  Retention of Discretion

B.  Justifications for the Rule There are several justifications for the prohibition of unauthorised delegation, all of which relate to and respect Parliament’s sovereignty. First, if Parliament has selected a particular decision-maker based upon its expertise, it is not for the nominated decision-maker to pass responsibility onto another. Second, Parliament may have chosen a particular decisionmaker because of the manner in which such decision-makers are appointed or held accountable, and it would subvert that control if the power or duty could be delegated to another. Third, unauthorised delegation may offend the obligations to act fairly and the requirements of procedural propriety. For example, if the chosen decision-maker is under obligations to consult, it should not be able to evade the necessity for consultation by delegating performance of the function to another body that is not under an obligation to consult.

C. Illustrations 1.  Judicial and Quasi-judicial Functions Although the courts no longer draw a rigid distinction between administrative, judicial and quasi-judicial functions, there is still considerable antipathy toward delegation by judicial bodies or those exercising disciplinary functions over individuals. As Lord Parker CJ stated in 1963, ‘[i]t is well settled that certainly no person made responsible for a judicial decision can delegate his responsibility’.2 A leading example of the reluctance to allow delegation of disciplinary powers is Barnard v National Dock Labour Board.3 There it was held that the National Dock Labour Board had unlawfully delegated its disciplinary powers to the London Port Manager. Despite these restrictions, a disciplinary body may allow its individual members to investigate specific matters or interview certain witnesses, as long as the final decision-making responsibility remains with the body as a whole, and the body has sufficient information to make a proper decision. For example, in R v Commission for Racial Equality, ex p Cottrell and Rothon,4 the Commission for Racial Equality was allowed to use its officers to collect information for its investigation because the Commission retained the decision-making function itself. 2.  Recommendations Are Acceptable The rule against delegation similarly does not prevent officials making recommendations, but the final say must rest with the decision-making body. Thus in Allingham v Minister of Agriculture and Fisheries,5 it was held that the officer could recommend which fields should be used to grow specified crops, but the War Agricultural Committee had unlawfully delegated because it had not retained the final say on whether to accept those recommendations. In High v Billings,6 the local board was held to have unlawfully delegated power to   R v Brixton Prison Governor, ex p Enahoro [1963] 2 QB 455, 465–66.   Barnard v National Dock Labour Board [1953] 2 QB 18. 4   R v Commission for Racial Equality, ex p Cottrell and Rothon [1980] 1 WLR 1580. 5   Allingham v Minister of Agriculture and Fisheries [1948] 1 All ER 780. 6   High v Billing (1903) 89 LT 550.

2

3

The Non-delegation Principle  187 grant permission for the laying of drains to their surveyor because it had not retained the ultimate power to decide the applications itself. And in R v Monopolies and Mergers Commission, ex p Argyll Group,7 it was held that the Commission could not leave it to its chairman to decide that a takeover proposal had been abandoned. 3.  Environmental Law Issues Issues of delegation may frequently arise in the environmental context given the large number of situations in which applications for permissions, permits or licences need to be determined, as well as the large number of enforcement decisions that have to be made. Disappointed applicants and objectors often seek to challenge substantive decisions on the basis that the correct decision-making process was not followed because the decision-­ making power was unlawfully delegated. In this area, the courts have sought to balance the need for proper decision-making processes to be followed, particularly given the important public and private interests affected by environmental decisions, against the practical reality of administrative decision-making. The potential for a delegation challenge to halt development that would allegedly harm the environment is illustrated by Hooper J’s decision in R v St Edmundsbury Borough Council, ex p Walton.8 A brewery applied for planning permission to construct a new access road, and the Council was required to consider whether the application was an application falling within Schedule 2 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.9 The claimant, a local resident, contended that the Council had failed to do so because the screening opinion had been made by a planning officer who had not been given delegated authority to decide the matter. Hooper J allowed the claim and held that although such decisions could be delegated to a planning officer under section 101 of the Local Government Act 1992, no formal delegation had actually occurred. The officer’s decision had therefore been made without the necessary authority and was unlawful. Many environmental decisions are made by local authorities that already have in place schemes of delegation, which delegate authority to take certain decisions from the councils to named officers. The issue here is whether further sub-delegation is permissible. Important guidance on delegation within local authorities was given by the House of Lords in Provident Mutual Life Assurance Association v Derbyshire City Council,10 which concerned sub-delegation by the Council’s treasurer. Lord Roskill recognised that the particular financial officer on whom the task of forming the relevant opinion had been imposed could not possibly perform all the tasks delegated him, and he stated: Equally clearly, the performance of such duties as in consequence fall upon the respondents’ treasurer could not possibly all be performed by him personally, and Parliament cannot possibly have intended that this should be so. The respondent’s treasurer required staff to carry out the financial affairs which he is enjoined to administer.11

Since it would have been impracticable for the treasurer to have attended to every matter personally, Lord Roskill concluded that Parliament had contemplated and intended for there to be onward delegation to the treasurer’s staff:   R v Monopolies and Mergers Commission, ex p Argyll Group plc [1986] 1 WLR 763.   R v St Edmundsbury Borough Council, ex p Walton [1999] Env LR 879. 9   SI 1988/1199. 10   Provident Mutual Life Assurance Association v Derbyshire City Council [1981] 1 WLR 173. 11   Ibid, 179. 7

8

188  Retention of Discretion Parliament has conferred very wide powers on local authorities and Parliament plainly contemplated that the actual machinery of enforcement and collection would not be operated personally by some senior local government official but would be so operated by the relevant senior official’s staff.12

Thus, in practice, a similar result was reached in the field of local government to that pertaining to central government where the Carltona doctrine authorises performance of a minister’s functions by his civil servants. The same policy considerations – namely of practicality and necessity – clearly underpin both relaxations of the rule against delegation. However, whereas Carltona is an easily understood and generally applicable doctrine, the position in the local government context turns on the construction of the particular statutory function in issue. The absence of a general rule permitting sub-delegation does therefore cause uncertainty, given the wide variety of local authority functions created by numerous different statutory provisions. Despite this uncertainty, there is a clearly discernable trend for the courts to be very accepting of sub-delegation. For example, in Cheshire County Council v Secretary of State for the Environment,13 the case concerned the question whether an assistant solicitor had authority to issue an enforcement notice in circumstances in which the standing orders that dealt with delegated powers referred in this context, but not in others, to the County Solicitor and Secretary alone. The Secretary of State had allowed an appeal against the enforcement notice issued by the assistant solicitor on the ground that where a delegation had taken place to a named officer, a subordinate to whom no delegation had been made had no power to exercise the relevant discretion. On appeal Schiemann J held that this approach was incorrect. He held that the Provident Mutual Life principle applied to all local authority functions, not merely the rating function that was in issue in that case. Applying the Provident Mutual Life principle, he held that the multitude of tasks entrusted by the standing orders to the County Secretary and Solicitor were such that it was inconceivable that the Council intended that all those functions should be attended to by one man or that he should make the relevant value judgments himself in respect of each of them. Accordingly, sub-delegation to the Assistant Solicitor was lawful. Similar accommodation of the practical need for sub-delegation can be seen in Younger Homes (Northern) v First Secretary of State14 and R (Blow-Up Media UK) v Lambeth LBC.15 In Younger Homes, the claimant contended that the screening opinion made by the Principal Planning Officer was only his personal opinion, and as it had not been made under delegated authority or in the name of the Director of Environmental Services, it could not be regarded as the opinion of the Council. There had been a resolution pursuant to section 101 of the Local Government Act 1972 whereby a number of functions had properly been delegated to a specific officer, namely the Director of Environmental Services. One of the functions delegated was that of deciding whether an environmental impact assessment (EIA) was necessary. At first instance, Ouseley J held that the Principal Planning Officer had actual authority to give the screening decision. He was prepared to accept the Principal Planning Officer’s   Ibid, 181.   Cheshire County Council v Secretary of State for the Environment [1988] JPL 30. 14   Younger Homes (Northern) Ltd v First Secretary of State [2003] EWHC 3058 (Admin), [2004] JPL 950, upheld on appeal: [2004] EWCA Civ 1060, [2005] Env LR 12. 15   R (on the Application of Blow-Up Media UK Ltd) v Lambeth London Borough Council [2008] EWHC 1912 (Admin), [2009] 1 P & CR 10. 12 13

The Non-delegation Principle  189 evidence that he had been given actual authority because it was common practice generally to sub-delegate in this manner: The real issue is whether or not in fact [the Principal Planning Officer] had the necessary authority in the light of the decisions in Cheshire and Provident Mutual. It seems to me on the evidence that there was authority given to [the Principal Planning Officer] and other senior officers, because that is what [the Principal Planning Officer] says. What he says also accords with common practice, as he says, and as Cheshire illustrates. It would be a common practice precisely because the Director of Environmental Services in person alone could not handle the range of matters, large and small, which are delegated to him, and a further chain of delegating resolutions would be unnecessary in the light of those authorities. A certain amount of realism is called for in judging the probability of such authority having been given. The giving of such authority would also reflect what actually happened here. The power can thus be exercised by [the Principal Planning Officer] in the name of the Director of Environmental Services. I see no need for there to be an express statement on any particular document to the effect that that was what was being done, though clearly to do so would be wise.16

This is a sensible approach that avoids undue formalism, but it does raise an interesting question. Should the courts in a legitimate expectation claim also adopt a similar ‘realistic’ approach and look at common practice when determining whether an officer had authority to make a representation?17 If sub-delegation of a given matter to planning officers is common practice, and such an officer purports to determine that matter, arguably this should carry significant weight when determining whether or not the officer’s representation was authorised. In Blow-Up Media, the local authority had served notices under section 11 of the London Local Authorities Act 1995 and section 225 of the Town and Country Planning Act 1990, requiring the removal of advertising hoardings. Under the Council’s scheme of delegation, the function of issuing such notices had been delegated to the Assistant Director of Planning. However, the notices in this case had in fact been issued by one of the Council’s planning enforcement officers. Sir Michael Harrison held that although the power in section 11 of the 1995 Act was ‘draconian’, sub-delegation was permissible because it was wholly impracticable for the Assistant Director of Planning to deal himself with all of the functions delegated to him under the scheme of delegation. As such, it was reasonable and lawful for there to be sub-delegation to other officers. These cases show that actual delegation can be shown by a regular course of practice. But the courts will examine the practice of an authority carefully in order to ensure that it really does reveal a regular practice of delegation. A good example is the decision of Walker J in R (Selter Associates) v Leicestershire County Council.18 The claimant challenged a traffic restriction order that prevented lorries from using a particular route. Under the Council’s scheme of delegation, the order had to be made by the Director of Highways, Transportation and Waste Management with the concurrence of the Chief Executive. The Council argued that the Chief Executive had delegated his concurrent powers to the County Solicitor, who in turn had delegated her powers to the officer employed in the County Solicitor’s Department, who made the impugned order and was one of six officers whose terms of employment were to prepare and process Road Traffic and Footpath Diversion Orders. Walker J held that there was nothing to suggest that the officers in the County Solicitor’s   Younger Homes (above n 14) [2003] EWHC 3058 (Admin) para 30.   For discussion of unauthorised representations, see R Moules, Actions against Public Officials: Legitimate Expectations, Misrepresentations and Misconduct (London, Sweet & Maxwell, 2008) pp 95–109. 18   R (on the Application of Selter Associates Ltd) v Leicestershire City Council [2005] EWHC 2615 (Admin). 16 17

190  Retention of Discretion Department had a job description that required them to do anything other than act as lawyers. The task of preparing and processing road traffic and footpath diversion orders was a completely different task from the important role of considering whether the Chief Executive’s approval should be given to a proposed order. Consequently, even assuming that concurrence could be delegated, the relevant practice in the present case did not show that delegated authority had been given. Despite the courts’ general tolerance of delegation, many environmental decisions affect important public interests, and so it is important that delegated decisions are made with sufficient formality. Hooper J stressed this point in Walton19 when he held that the decision as to whether there should be an environmental statement was an important one, and if an authority wished to delegate the decision to an officer, it had to do so formally and could not rely on some general practice alone.20 Likewise in R (Goodman and Hedges) v Lewisham LBC,21 the Court of Appeal was critical of the informality of the respondent’s decisionmaking process because no note had been kept of the decision to sub-delegate authority to make a screening opinion, nor of the decision that the development was not Schedule 2 development under the EIA Regulations,22 nor of the reasoning behind that conclusion. Buxton LJ emphasised the need for formal and transparent consideration of environmental issues under the EIA Directive:23 No note was kept of [the officer’s] decision, nor of the reasoning on which it was based; and while as I have said I wholly accept his reconstruction of what was done, decisions of such importance should be properly recorded. That is not least so that the elected councillors, who make the decision as to grant of planning permission, should have a readily accessible record of the advice on which those decisions are made. And a system that transparently showed that it was indeed Mr Gibney who took the decision would have prevented the time of the court being taken up with this part of the appeal. It is to be hoped that this case will at least serve to bring home to local authorities generally the importance of the processes of formal and transparent consideration of environmental issues that are required by the [EIA Directive].24

Thus, although sub-delegation may well be lawful, it is imperative that it should be transparent and properly recorded.

II. The Carltona Principle

A.  The Basic Rule According to the Carltona principle, civil servants may exercise discretionary powers conferred on their Ministers because Parliament is taken to assume that it will be necessary for   Above n 8.   Walton (above n 8) 884; although in Younger Homes (above n 14) [2003] EWHC 3058 (Admin) para 26, Ouseley J doubted whether such formality was required in a case of sub-delegation where there had already been formal delegation from the Council to a named officer under a scheme of delegation. See also R (on the Application of Birch) v Barnsley MBC [2010] EWHC 416 (Admin), [2010] Env LR 38, para 51 (Lord Carlile QC). 21   R (on the Application of Goodman and Hedges) v Lewisham LBC [2003] EWCA Civ 140, [2003] Env LR 28. 22   Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293). 23   Directive 85/337/EEC as amended. 24   Goodman and Hedges (above n 21) para 18. 19 20

The Carltona Principle  191 them to do so. Lord Greene MR provided the classic statement of the doctrine in Carltona Ltd v Commissioners of Works: In the administration of government in this country the functions which are given to ministers . . . are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case, no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. It is he who must answer before Parliament for anything that his officials have done under his authority.25

In that case, the Commissioners of Works (a ministry) was given power to requisition land ‘if it appears to that authority necessary or expedient to do so’. A requisition order made by an official on behalf of the Commissioners was challenged. The Court of Appeal upheld the requisition order on the ground that a civil servant may perform some functions of his minister without the minister having to address his mind to them personally. The Carltona doctrine is really an example of devolution of power rather than delegation. This is because the power is conferred on a minister as office holder and not in his individual capacity: To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament’s intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred on a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his discretion the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head.26

As Wade and Forsyth have also recognised, ‘Legally and constitutionally the act of the official is the act of the minister, without any need for specific authorisation in advance or ratification afterwards.’27

B.  The Scope of the Carltona Principle: Delegation to Whom? With the expansion of the administrative state, Carltona was a necessary decision that ‘gave legal authority to the practical reality of modern government in relation to the devolution of departmental functions’.28 However, important questions arise concerning its scope of application and any limitations that the doctrine is subject to.   Carltona Ltd v Commissioners of Works [1943] 2 All ER 560, 563.   Bushell v Secretary of State for the Environment [1981] AC 75, 95 (Lord Diplock). 27   Wade and Forsyth (above n 1) 321. Sir John Donaldson stated in R v Home Secretary, ex p Oladehinde [1991] 1 AC 254, 284 that ‘The civil servant concerned acts not as the delegate, but as the alter ego of the Secretary of State’. Cf M Freedland, who has argued that the alter ego justification is a fiction, and he prefers a rule of construction that a power granted to a minister is granted to his department: ‘The Rule against Delegation and the Carltona Doctrine in an Agency Context’ (1996) Public Law 19, 22. 28   R (on the Application of National Association of Health Stores) v Department of Health [2005] EWCA Civ 154, para 27 (Sedley LJ). 25

26

192  Retention of Discretion 1.  Sufficiently Senior and Qualified Officials The first limitation is that the Carltona principle permits the exercise of discretion only by officials who are sufficiently senior, adequately qualified and suited to the task conferred on them.29 As Lord Griffiths said, I can . . . see no reason why [the Minister] should not authorise members of the [immigration service] to take decisions under the Carltona principle providing they do not conflict with or embarrass them in the discharge of their specific statutory duties under the Act and that the decisions are suitable to their grading and experience.30

2.  Next Steps Agencies Freedland has argued that the Carltona doctrine does not apply to authorise those within Next-Steps agencies to take decisions in the name of ministers.31 However, the Court of Appeal rejected this view in R v Secretary of State for Social Security, ex p Sherwin and held that the creation of the Benefits Agency did not affect the Carltona doctrine, which continued to apply.32 However, in the Divisional Court Latham J did acknowledge that some agencies may not fall within the Carltona principle when ‘an agency is established in such a way that a minister could no longer, in any sensible analysis, be accountable to Parliament for its decisions’. 3.  Wider than Departments of Central Government? The orthodox view is that the Carltona doctrine does not apply outside the departments of central government.33 It does not therefore apply to the police.34 However, in R (Chief Constable of West Midlands Police) v Birmingham Justices, Sedley LJ challenged this view: Although the Carltona case is frequently cited as a source of the ‘alter ego’ doctrine, it can be seen that Lord Greene’s reasoning is not predicated on this. It is predicated on the proposition that the departmental head is responsible for things done under his authority. The relevance of the alter ego doctrine is that Crown servants were at that time taken in law to hold their positions by grace and not by contract, so that the minister was first among equals, not an employer with servants or a principal with agents. His implied power to delegate functions depended, therefore, on two things: the conferment of a power in terms which implicitly permitted their delegation and the existence of persons to whom he could delegate them without parting with ultimate responsibility.35

Sedley LJ posited a distinction between ‘those offices which are the apex of an organisation itself composed of office-holders or otherwise hierarchically structured, and those officers designated by Parliament because of the personal qualifications of the individual holder’.36 In the former case the subordinate officers may act on behalf of their superior, who takes   ex p Oladehinde (above n 27) 284–85 (Lord Donaldson MR).  Ibid, 303 (emphasis added). 31  Freedland (above n 27); and M Freedland, ‘The Crown and the Changing Nature of Government’ in M Sunkin and S Payne (eds), The Nature of the Crown (Oxford, Oxford University Press, 1999). 32   R v Secretary of State for Social Security, ex p Sherwin (1996) 32 BMLR 1 QBD 22 July 1996, unreported, CA. 33   Wade and Forsyth (above n 1) 319. 34   Nelms v Roe [1970] 1 WLR 4. 35   R (on the Application of Chief Constable of West Midlands Police) v Birmingham Jusices [2002] EWHC 1087 (Admin), The Times, 5 June 2002, para 9. 36   Ibid, para 14. 29 30

The Carltona Principle  193 legal responsibility for their action, but in the latter situation only the officer actually empowered may act. This view is open to criticism on the basis that it confuses the constitutional assumption upon which the Carltona doctrine is based. In Carltona it was recognised that a minister was constitutionally responsible for the acts of his officials because he was accountable to Parliament. A chief constable is not bound by the same constitutional convention of individual ministerial responsibility – his responsibility for his subordinates is legal responsibility to the courts rather than political responsibility to Parliament. As Wade and Forsyth have argued, ‘[a]dministrative convenience should not justify a substitution of legal responsibility for accountability to Parliament’.37 More recent authority suggests that the courts should be willing to imply a power to delegate in such situations, rather than stretching the Carltona doctrine beyond its proper bounds.38 4.  Ousted by Statute The Carltona doctrine will not normally apply where statute expressly requires the Minister to make the decision, for example section 13(5) of the Immigration Act 1971.39 It also seems that the doctrine may be excluded by necessary implication.40 Some commentators have also suggested that some matters are so important that the Minister should deal with them personally even if Parliament has not expressly prohibited devolution to officials.41 There are dicta supporting this view,42 but more recent authority suggests that no such class of exceptions exists, and De Smith, Woolf and Jowell state that ‘there appears to be no English case in which the exercise of discretion had been held invalid on this ground, and many of the dicta that appear to support such an obligation are at best equivocal’.43 Certainly the House of Lords decisions in ex p Oladehinde44 and R v Secretary of State for the Home Department, ex p Doody,45 both of which concerned very important matters, do not support such an exception. In the former, the Home Secretary could authorise immigration officials to take the decision to deport immigrants in breach of their conditions of entry, and in the latter, the Home Secretary’s power to fix the penal element of a life sentence tariff could be entrusted to a junior Home Office minister.

  Wade and Forsyth (above n 1) 322.   DPP v Haw [2008] 1 WLR 379, paras 23–34. 39   This section provides that a person shall not be entitled to appeal against a refusal of leave to enter or against a refusal of an entry clearance if the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority). 40  Lord Donaldson MR in ex p Oladehinde (above n 27) 265 said: ‘I have no doubt that there can be an implied limitation which can affect the Carltona principle’. He gave as an example the delegation by the Secretary of State of his duty to consider a petition by a prisoner under the prison rules or the prison department’s standing orders or his disciplinary powers in respect of prison officers. 41   D Lanham, ‘Delegation and the Alter Ego Principle’ (1984) 100 Law Quarterly Review 587. 42   R v Chiswick Police Station Superintendent, ex p Sacksteder [1918] 1 KB 578 (a decision to deport an alien had to be taken by the Minister personally); and Liversidge v Anderson [1942] AC 206 (a decision under wartime detention powers had to be taken by the Minister personally). 43   De Smith, Woolf and Jowell, De Smith’s Judicial Review (London, Sweet & Maxwell, 2008) para 5-164. 44   Above n 27. 45   R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531. 37 38

194  Retention of Discretion III.  Abdication of Discretion

A.  The Basic Rule Even if no formal delegation occurs, a public body given discretion will act unlawfully if it regards itself bound by the views of others. This is an example of what Lord Greene MR meant in Wednesbury when he said that there must be a ‘real exercise of discretion’;46 the body endowed with discretionary power must apply its mind to the issue and exercise the choice inherent in discretion.

B. Examples In Ellis v Dubowski,47 a county council responsible for granting cinema licences acted unlawfully by granting licences subject to a condition that no film could be shown that had not been certified by the British Board of Film Censors. The Council had in effect abdicated its responsibility to the Board. In Lavender & Son Ltd v Minister of Housing and Local Government,48 the claimant applied for planning permission to extract minerals from agricultural land. Permission was refused, and the claimant appealed to the Minister. The Minister rejected the appeal in the following terms: It is the Minister’s present policy that land in the reservations should not be released for mineral working unless the Minister of Agriculture, Fisheries and Food is not opposed to the working. In the present case the agricultural objection has not been waived, and the Minister has therefore decided not to grant planning permission.49

The court allowed the claimant’s challenge: the Minister could have a policy for dealing with such appeals, and it was appropriate to consult the Minister of Agriculture; but on the facts he had effectively given a veto to the Minister of Agriculture, whereas Parliament had entrusted the decision to him: It seems to me that by adopting and applying his stated policy he has in effect inhibited himself from exercising a proper discretion . . . [I]n any case where the Minister of Agriculture [objects] to mineral working . . . I think that the Minister has fettered himself in such a way that in this case it was not he who made the decision for which Parliament made him responsible.50

  Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.   Ellis v Dubowski [1921] 3 KB 621. 48   Lavender & Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231. 49   Ibid, 1236. 50   Ibid, 1240–41 (Willis J). 46 47

Fettering of Discretion by Over-Rigid Policies  195 IV.  Fettering of Discretion by Over-Rigid Policies

A.  The Basic Rule Policies are conducive to ‘the coherent and consistent performance of administrative functions’;51 they help ensure fairness; and, if publicised, they improve transparency. However, while a policy may be used as a guide, it must not prevent a decision-maker from lawfully exercising a discretion conferred upon him – in other words, the policy must not fetter his discretion.52 In this area of judicial review, the courts must reconcile the tension between the values of consistent decision-making and flexible decision-making. There are two main concerns underlying the case law. On the one hand, the courts are seeking to ensure that when discretionary power is conferred upon a public body, the body does not prevent itself from using that discretion to respond to change or to unforeseen or exceptional circumstances: When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future.53

On the other hand, the courts are concerned to ensure that the decision-maker applies his mind to the merits of each case to ensure ‘individualised justice’: The general rule is that anyone who has to exercise a statutory discretion must not ‘shut his ears’ . . . [A] large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to this, provided the authority is always willing to listen to anyone with something new to say.54

B. Examples A good example of this ground for review is the decision in British Oxygen Co v Minister of Technology.55 The Board of Trade, which had discretion to make grants for capital expenditure, adopted a policy of not making grants where individual items of expenditure were less than £25. The British Oxygen Company (BOC) spent £4 million on gas cylinders but was refused a grant because each cylinder cost less than £25. The House of Lords rejected the BOC complaint because the Minister could operate a policy so long as he was prepared ‘to listen to a substantial argument reasonably presented urging a change of policy’ or ‘be willing to listen to someone with something new to say’.56 On the facts, there was no evidence that the Minister had ‘shut his ears’. 51   R (on the Application of Holding & Barnes plc) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 143 (Lord Clyde). 52   NB the other controls on policymaking viz compatibility with the European Convention on Human Rights (ECHR) rights, proper purposes and relevancy. 53   R v Secretary of State of the Home Department, ex p Venables [1998] AC 407, 496 (Lord Browne-Wilkinson). 54   British Oxygen Co Ltd v Minister of Technology [1971] AC 610, 625 (Lord Reid). 55  Ibid. 56   Ibid, 625 (Lord Reid).

196  Retention of Discretion In R v London CC, ex p Corrie,57 a policy of not permitting the sale of any literature whatsoever in parks was struck down because it prevented the authority from deciding whether to permit the sale of leaflets for the benefit of the blind. In Bromley LBC v GLC, it was held to be unlawful for a local authority to treat itself as bound to fulfil an election manifesto promise.58 In R v Secretary of State of the Home Department, ex p Venables,59 one of the reasons for striking down the Home Secretary’s policy in respect of children sentenced to detention at Her Majesty’s pleasure was that the policy stated that even in exceptional circumstances, the progress and development of the child were to be treated as irrelevant. And in Gunn-Russo v Nugent Care Society,60 the defendant refused to disclose adoption records to the claimant (a woman in her fifties who was adopted as a child). Scott-Baker J held that the defendant had acted unlawfully in applying a blanket policy of not disclosing information given in confidence. The defendant should have had regard to the claimant’s individual circumstances, in particular the fact that the claimant was the only person involved who was still alive. Instead, they adopted a policy ‘which they are convinced is right and they are not going to change it. The maintenance of confidentiality trumps everything, regardless of the circumstances.’61 By contrast, in Stringer v Minister of Housing and Local Government,62 the application of a policy discouraging development that interfered with the Jodrell Bank telescope was not unlawful because the Minister satisfied the court that he was willing to judge each application on its merits. Importantly, the courts will not simply accept a public authority’s assertion that it is willing to keep its mind ajar – evidence of the actual practice of the public authority is required. For example, in R (H) v Ashworth Hospital Authority,63 the High Court upheld the defendant’s no-condoms policy but only after carefully considering the evidence that the defendant was willing to consider arguments that the policy should be changed. By contrast, in R v Warwickshire CC, ex p Collymore,64 Judge J held that the defendant had applied its policy in relation to student grants too strictly, and he was influenced by the fact that in three years the defendant had not made any new discretionary awards and not a single appeal out of 300 had succeeded. Even if a policy is stated to have exceptions, the court will look to see whether the authority is really willing to permit exceptions in practice. In R v North West Lancashire Health Authority, ex p A,65 the defendant operated a policy of not funding gender reassignment surgery, save in cases of ‘overriding clinical need’. Auld LJ considered evidence of the application of the policy, as well as the wording of the policy, and he concluded that the defendant was not genuinely willing to recognise exceptional cases and in fact applied a blanket policy of non-funding.

  R v London CC, ex p Corrie [1918] 1 KB 68.   Bromley London Borough Council v GLC [1983] 1 AC 768. 59   Above n 53. 60   Gunn-Russo v Nugent Care Society [2001] EWHC 566 (Admin), [2002] 1 FLR 1. 61   Ibid, para 43. 62   Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281. 63   R (on the Application of H) v Ashworth Hospital Authority [2001] EWHC Admin 872, [2002] 1 FCR 206. 64   R v Warwickshire CC, ex p Collymore [1995] Ed LR 217. 65   R v North West Lancashire Health Authority, ex p A [2000] 1 WLR 977. 57 58

Fettering of Discretion by Over-Rigid Policies  197

C.  Fettering and the Construction of Policy The non-fettering principle is also important when it comes to the construction of policy: wherever possible, environmental policies must be construed so as to preserve the decisionmaker’s discretion. If the policy cannot be so construed, it is liable to be quashed. The decision in Sherwood v Secretary of State for the Environment and Islington LBC66 illustrates the importance of the non-fettering principle in the context of environmental protection policies. The Council had refused consent for the felling of a tree in a conservation area in the claimant’s garden that was damaging a wall. The claimant contended that the planning inspector had interpreted the relevant policy of the Unitary Development Plan as prohibiting all tree-felling and that this rendered the policy over-rigid and a fetter on discretion. Robin Purchas QC, sitting as a Deputy High Court Judge, held that on the facts, the inspector had not fallen into this error – he had interpreted the policy correctly to mean that trees should not be felled unless necessary, and in those cases they should be replaced.

D.  Blanket Polices and Human Rights A policy may violate human rights by failing to draw a proportionate balance between the general interest aims served by the policy and the merits of the individual’s case. For example, in R (Daly) v Secretary of State for the Home Department,67 the House of Lords held that the Home Secretary’s policy of always examining a prisoner’s legal correspondence in the absence of the prisoner was a violation of the common law right to confidentiality. In R (P and Q) v Secretary of State for the Home Department,68 two female prisoners challenged decisions to separate them from their babies after 18 months in accordance with the applicable policy. Lord Phillips MR noted that ‘before the introduction of a rights-based culture into English public law these applications for judicial review would have been quite unarguable’.69 Now, however, in human rights cases the traditional approach has been supplanted by a proportionality-based approach. The central question in P and Q was therefore whether the state could justify violating the right of respect for family life (Article 8 of the European Convention on Human Rights (ECHR)) ‘that would be inherent not only in the separation of these two mothers from their 18-month-old children, but also in the separation of these children from their mothers’.70 Lord Phillips stated: On the new Daly approach we have to determine in these appeals whether the interference proposed by the Prison Service in the application of its policy in each of these cases is really proportionate to the legitimate aim, sanctioned by article 8(2) of the Convention, which it seeks to pursue. In making this judgment we must be careful to show appropriate deference to the fact that the Prison Service is the expert body appointed to carry out this sensitive public function.71   Sherwood v Secretary of State for the Environment and Islington London Borough Council [1996] JPL 925.   R (on the Application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532.   R (on the Application of P and Q) v Secretary of State for the Home Department [2001] EWCA Civ 1151, [2001] 1 WLR 2002. 69   Ibid, para 56. This is arguably too strong: C Hilson, ‘Judicial Review, Policies and the Fettering of Discretion’ (2002) Public Law 111, 127 comments that ‘with respect, the Court of Appeal misstated the position under preHuman Rights Act administrative law . . . After all, the policy in the case allowed for no exceptions on its face and, although discretionary exceptions were occasionally made, these were not part of the formal scheme. On the basis of the [earlier case law] such an approach is clearly unlawful.’ See also R v Home Secretary, ex p Simms [2000] 2 AC 115. 70   P and Q (above n 68) para 61. 71   Ibid, para 64. 66 67

68

198  Retention of Discretion In other words, it is no longer sufficient in human rights cases for a public authority simply to show that it genuinely kept its mind ajar. Public bodies are now required to show that they have actively considered the impact of their policies on the rights of those affected and that any infringement (of a qualified right) is justified as being necessary and proportionate.

V.  Fettering Discretion by Contract

A.  The Basic Rule A public body must not fetter its discretion by contract or other obligation: [I]f a person or public body is entrusted by the legislature with certain powers and duties expressly or impliedly for public purposes, those persons or bodies cannot divest themselves of these powers and duties. They cannot enter into any contract or take any action incompatible with the due exercise of their powers or the discharge of their duties.72

Contracts will be ultra vires, invalid and thus unenforceable if they prevent a public body from exercising its statutory powers.

B.  When will a Contract be an Unlawful Fetter? In R v Inhabitants of Leake,73 Parke J proposed that a contract should stand unless it was incompatible with another statutory power or duty. Craig has placed the subsequent cases into two groups.74 The first group concerns decisions in which the language of the courts suggests a stricter test, to the effect that whenever a statutory power and a contract touch on the same subject matter, the contract will be void. For example, in Ayr Harbour Trustees v Oswald,75 the harbour trustees had statutory power to acquire land compulsorily for the construction of works associated with the harbour. They acquired land using this power, and to reduce the compensation payable to the owner, they agreed to grant the owner a perpetual covenant safeguarding his access to the harbour from adjoining land. The House of Lords did not refer to the compatibility test, and their language suggests a stricter test. The Lords held that the covenant was invalid because the trustees had unlawfully fettered their discretion; the covenant would have prevented the trustees from ever using the affected land, even if the public interest required them to: I think that where the legislature confers powers on any body to take land compulsorily for a particular purpose, it is on the ground that the using of that land for that purpose will be for the public good . . . [A] contract, purporting to bind them and their successors not to use those powers is void.76

The second group of cases applies the compatibility test less strictly. For example, in Birkdale District Electricity Supply Co Ltd v Southport Corporation,77 the House of Lords   Birkdale District Supply Co Ltd v Southport Corp [1926] AC 355, 364 (Lord Birkenhead).   R v Inhabitants of Leake 110 ER 863; (1833) 5 B & Ad 469. 74   PP Craig, Administrative Law, 5th edn (London, Sweet & Maxwell, 2003) 542. 75   Ayr Harbour trustees v Oswald (1882-83) 8 App Cas 623. 76   Ibid, 634 (Lord Blackburn). 77   Birkdale District Electricity Supply Co v Southport Corporation [1926] AC 355. 72 73

Fettering Discretion by Contract  199 held that a contract which provided that the former would not increase the price it charged the latter for electricity was not incompatible with a statutory power to charge any amount desired up to the statutory maximum. This approach was endorsed by the House of Lords in British Transport Commission v Westmoreland CC, in which Viscount Simonds said of the Ayr Harbour case, ‘it was in fact an example of incompatibility, not a decision to the effect that incompatibility does not supply a test’.78 The question therefore is whether it is reasonably foreseeable that there will be a conflict between the contract and the statute.

C.  Fettering and Policymaking Distinguished It is important to distinguish between a fettering by contract and making a policy decision, the result of which is the award of a contract. The former may be reviewed on the basis that it unlawfully limits the decision-maker’s discretion. By contrast, the latter is a matter of judgment for the decision-maker, subject only to review if one of the other grounds for judicial review is made out, for example, if it is irrational or made for an improper motive. The distinction is illustrated by Sedley J’s refusal of permission in R v Secretary of State for the Environment, ex p Berkshire, Buckinghamshire and Oxfordshire Naturalists Trust.79 In ex p Berkshire, dense populations of terrestrial pulmonate snails were found on land allocated for the construction of the Newbury bypass. The Secretary of State for the Environment accepted recommendations that the habitat be included for consideration as a designated Special Area of Conservation but elected to go out to public consultation before deciding whether to place it on the candidate list for approval by the European Commission. Such approval, if given, would mean that the site benefited from the protections of the Habitats Directive 92/43/EEC, but in the meantime the site was unprotected. The Secretary of State for Transport then allocated the clearance contract for the land. The claimant sought permission to bring judicial review proceedings, arguing that the decision to let the clearance contract placed a fetter on the exercise of the government’s discretion in deciding whether to place the site on the candidate list. Sedley J rejected that argument and held that the government was required to balance two bare and incompatible policy choices, namely proceeding with the road development or protecting the snail population.80 This was not a case of a discretion being fettered by the award of a contract; rather, the award of the contract was the outcome of the stark policy choice to be made. He therefore concluded: [O]nce the case comes down, as it has to, to an assault upon the bare policy choice between the road and the snail, it is only if improper motive or irrationality can be shown to have tainted the choice that it can be impugned, and neither is arguably shown here.81

  British Transport Commission v Westmoreland CC [1958] AC 126, 143.   R v Secretary of State for the Environment, ex p Berkshire, Buckinghamshire and Oxfordshire Naturalists Trust [1997] Env LR 80. 80  Ibid. 81   Ibid, 89. 78 79

11 Abuse of Discretion: Illegality This chapter is concerned with control of the substance of discretionary decisions. Traditionally, judicial review has been concerned more with the manner in which administrative decisions are taken than with their content. Judicial examination of the substance of administrative decisions is much more restrained due to the key constitutional assumption underlying judicial review that it is not for the courts to substitute their choice as to how the discretion ought to have been exercised for that of an administrative decision-maker. While it is accepted that it is not for the courts to substitute judgment, English administrative law also recognises that there should be some control over the substance of administrative decisions. Four principles that seek to control the substance of administrative decisions are examined in this chapter: 1) The proper purposes principle 2) The relevancy principle 3) Wednesbury unreasonableness (irrationality) 4) Proportionality The theme that permeates these grounds for review is the desire to impose legal control on discretionary decision-making while at the same time preserving the separation of powers and preventing too great an intrusion into the merits. In terms of the separation of powers, judicial review of the substance of environmental decisions presents particular difficulties because the issues at stake frequently raise complex scientific questions or involve policymaking by expert regulators. As will be seen, the courts have generally adopted a very deferential approach and have required that a high degree of unreasonableness be demonstrated before they will intervene and quash a decision. The courts’ ability to apply proportionality as a ground for judicial review in areas engaging EU law or the European Convention on Human Rights (ECHR) has not made an appreciable difference to that approach because in areas of discretionary economic and social judgment, the proportionality test allows a considerable margin of appreciation to decisionmakers.

I.  The Proper Purposes Principle

A.  The Basic Rule Public bodies may use their powers only for the purposes for which they have been expressly or impliedly conferred. When a public body uses its powers for an improper purpose, the

The Proper Purposes Principle  201 resulting decision is unlawful and may be quashed by the courts. It is for the courts to decide whether the public body’s purpose was proper or not. As Rose LJ explained in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement: I am unable to accept [the] submission that it is the Secretary of State’s thinking which is determina­ tive of whether the purpose was within the statute . . . Whatever the Secretary of State’s intention or purpose may have been, it is . . . a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose.1

It is the central feature of the rule of law that administrative decision-makers must be able to justify their actions by reference to some legal authority, whether it be statutory, common law or prerogative power. Sir Thomas Bingham MR explained the principle eloquently in R v Somerset Council, ex p Fewings when denying that a local authority had an unfettered discretion to determine how its land could be used: To the famous question asked by the owner of the vineyard (‘Is it not lawful for me to do what I will with mine own?’ [St. Matthew, chapter 20, verse 15]) the modern answer would be clear: ‘Yes, subject to such regulatory and other constraints as the law imposes.’ But if the same question were posed by a local authority the answer would be different. It would be: ‘No, it is not lawful for you to do anything save what the law expressly or impliedly authorises. You enjoy no unfettered discretions. There are legal limits to every power you have.’2

The proper purposes principle is well illustrated by the House of Lords decision in Porter v Magill.3 In that case, it was held to be unlawful for the Westminster City Council to use its public powers under the housing legislation to promote the electoral interests of the Conservative Party. Lord Bingham stated the ‘overriding principle’ as follows: Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the life blood of democracy and a potent spur to responsible decision-taking and administration. Councillors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise. But a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party . . .4

B.  Relationship with the Relevancy Principle The proper purposes principle is closely related to the relevancy principle, which is considered in the next section, and the two are often ‘inextricably linked’.5 The two doctrines are, however, distinct. In some cases there may be no dispute as to the legality of the ends to be achieved but justifiable arguments that a decision-maker has, in his deliberations, breached 1   R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 401. 2   R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037, 1042. 3   Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. 4   Ibid, para 21. 5   H Woolf, J Jowell and A Le Sueur, De Smith’s Judicial Review, 6th edn (London, Sweet & Maxwell 2007) para 5-077.

202  Abuse of Discretion: Illegality the relevancy principle. The proper purposes principle therefore has the decision-maker’s ends as its focus, and it asks whether they are legally compatible with the purposes for which the decision-making power was conferred. The relevancy principle, by contrast, is concerned with whether an appropriate reasoning process was adopted and whether the decision-maker’s conclusions are supported by proper considerations.

C.  Express Purpose Identified Occasionally powers are conferred for purposes that are expressly identified. For example, in Sydney Municipal Council v Campbell,6 section 16 of the Sydney Corporation Amendment Act 1905 permitted the Council to purchase compulsorily any land for the purposes of ‘carrying out improvements in or remodelling any portion of the city’. The Council was held to have acted for an improper purpose when it instead used the power to acquire land to benefit from an increase in land value, which would result from a proposed highway extension by the Council.

D.  Purpose Not Expressly Identified: The Policy and Objects Approach Usually, legislation will confer discretionary powers without making specific reference to the purposes for which those powers may be used. The courts must therefore interpret the specific provisions to discover the power’s purpose. The leading case is Padfield v Minister of Agriculture Fisheries and Food.7 Legislation set up a Milk Marketing Scheme and provided a system for dealing with complaints about the operation of the scheme. If a complaint was made, a complaints committee could be established to investigate, but only ‘if the Minister [of Agriculture] . . . so directs’. Milk producers from the Southeast made a complaint and asked the Minister to set up a complaints committee, but he refused. The legislation appeared to give the Minister an unfettered discretion as to whether to establish a committee or not, but the House of Lords rejected this argument: It is implicit in the argument for the Minister that there are only two possible interpretations of [the Act] – either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act, the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court . . . In a matter of this kind . . . if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.8

Thus, Padfield illustrates that however wide discretionary powers appear on their face, they must always be exercised in accordance with the law so as to promote the policy and objectives of the legislation. There are many other examples of this doctrine. For example, in Roberts v Hopwood,9 Poplar Council had decided to pay its low-grade workers a minimum wage of £4 per week.   Municipal Council of Sydney v Campbell [1925] AC 338.   Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997. 8   Ibid, 1030 (Lord Reid). 9   Roberts v Hopwood [1925] AC 578.

6 7

The Proper Purposes Principle  203 Section 62 of the Metropolis Management Act 1855 empowered the Council to pay such wages as it thought fit. The House of Lords read this power subject to an implied condition that wages should be reasonable judged by industry standards – any additional monies paid would be a gratuity for the advancement of social purposes and unlawful. Similarly, in Congreve v Home Office,10 the Court of Appeal held that the Minister could not use his powers to revoke television licences so as to prevent licence-holders renewing their licences before they expired and before the licence fee was increased. And in Wheeler v Leicester City Council,11 a local authority was held to be unable to use its statutory duty under section 71 of the Race Relations Act 1976 (to promote race relations in its area) in order to punish a local rugby club because three of its members had played in South Africa during the apartheid era. A more controversial application of the proper purposes doctrine can be seen in ex p World Development Movement.12 In this case, the question was whether section 1(1) of the Overseas Development and Co-operation Act 1980 conferred power to grant aid for the purpose of supporting projects that were not economically sound. The section did not specifically require that the projects had to be economically sound, but Rose LJ held that unsound projects could not be supported. Commenting on this decision extra-judicially, Lord Irvine LC has written: By reading an additional requirement into the statute in this way, the court took away from the executive a considerable degree of autonomy. It is this type of judicial activism which begins to blur the boundary between appeal and review, thereby undermining the constitutional foundations on which the courts’ supervisory jurisdiction rests.13

In the environmental context, questions of propriety of purpose may often arise given the extensive powers conferred on environmental regulators. Even where a decision-maker pursues a benign or a socially useful purpose, the courts will quash its decision if it has not pursued the express or implied purpose of the relevant Act. For example, in Webb v Minister of Housing and Local Government,14 the authority’s decision to compulsorily purchase land to enable the construction of a promenade was quashed on the ground that the relevant statutory power permitted compulsory purchase of coastal land only for the purpose of coastal protection. By contrast, in R (Fisher) v English Nature,15 English Nature’s designation of the claimant’s land as a Site of Special Scientific Interest (SSSI) by reason of the presence of protected migratory birds (stone curlews) was held not to have been for the ulterior purpose of underpinning a proposal to designate the land under the Birds Directive.16

E.  Mixed Purposes Public bodies may act for a number of different purposes, only some of which are lawful. The courts have adopted many different approaches to such mixed motive situations, and   Congreve v Home Office [1976] QB 629.   Wheeler v Leicester City Council [1985] AC 1054. 12   Above n 1. 13  Lord Irvine of Lairg, ‘Principle and Pragmatism: The Development of English Public Law under the Separation of Powers’ (Public Lecture, High Court, Hong Kong, September 1998). 14   Webb v Minister of Housing and Local Government [1965] 1 WLR 755. 15   R (on the Application of Fisher) v English Nature [2004] EWCA Civ 663, [2005] 1 WLR 147. 16   Directive 2009/147/EC. 10 11

204  Abuse of Discretion: Illegality De Smith, Woolf and Jowell have likened this area to ‘a legal porcupine which bristles with difficulties as soon as it is touched’.17 The basic principle is that if a public body’s ‘primary’, ‘dominant’ or ‘true’ purpose is within the scope of the power conferred, the presence of other unauthorised purposes will not render the action unlawful. For example, in Westminster Corporation v London & NW Rly,18 the Corporation had power to build a public convenience but not a subway. The question was whether it was lawful to build a lavatory beneath the street with access from both sides, thus creating a de facto subway. The House of Lords held that the primary object was to build a public convenience with adequate access, and so the scheme was a lawful one. Lord Macnaughten stated: It is not enough to shew that the corporation contemplated that the public might use the subway as a means of crossing the street. That was an obvious possibility . . . In order to make out a case of [illegality] . . . it must be shewn that the corporation constructed this subway as a means of crossing the street under colour and pretence of providing public conveniences which were not really wanted at that particular place.19

If no dominant purpose can be identified, the courts have adopted the material influence test. In R v Inner London Education Authority (ILEA), ex p Westminster Council,20 the ILEA opposed the Conservative government’s policy of restricting local government expenditure. It used its power to publish information ‘on matters relating to local government’ in order to mount a poster and media campaign highlighting the implications of the government’s policy. Informing the public was held to be a lawful purpose, but persuading people that government policy was wrong was not lawful. Glidewell LJ asked whether the desire to pursue an unlawful purpose had materially influenced the making of the decision – if it had, the ILEA had been influenced by an irrelevant consideration, and its decision was unlawful.

II.  The Relevancy Principle

A.  The Basic Rule Public bodies must take account of all the factors that the empowering provisions expressly or impliedly require them to consider, and they must not consider any factors that legislation requires them to disregard. This principle was expressed by Cooke J in the New Zealand case of CREEDNZ v Governor General as follows: What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the Court itself, would have taken into account if they had to make the decision . . . I think that there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them . . . would not be in accordance with the intention of the Act.21   Woolf, Jowell and Le Sueur (above n 5) para 5-099.   Westminster Corporation v London & NW Rly [1905] AC 426. 19   Ibid, 432. 20   R v Inner London Education Authority, ex p Westminster City Council [1986] 1 WLR 28. 21   CREEDNZ v Governor General [1981] 1 NZLR 172, 183; approved by Lord Scarman in Re Findlay [1985] AC 318, 333–34. 17 18

The Relevancy Principle  205 Thus, an obligation to consider factors may be imposed by the specific legal provision under which the decision is taken or by general judicial review principles. Importantly, decisions will not be impugned solely because the court would have considered a factor; it must be obligatory, not simply desirable, for the decision-maker to consider that factor. In addition to taking into account all relevant considerations, it has been held that an environmental decision-maker must also always have regard to the objectives of EU envir­ onmental legislation. In R (Murray) v Derbyshire County Council,22 the Court of Appeal held that the objectives in Article 4 of the Waste Framework Directive 75/442/EEC23 must always be kept in mind when making a decision, even while the decision-maker had regard to other relevant considerations. Pill LJ drew a distinction between the concept of an objective under an EU directive and a relevant consideration. The former is an end at which to aim, not merely a relevant consideration to which no weight need be attached: An objective . . . is something different from a material consideration . . . It is an end at which to aim, a goal . . . A material consideration is a factor to be taken into account when making a decision, and the objective to be attained will be such a consideration, but it is more than that. An objective which is obligatory must always be kept in mind when making a decision even while the decision-maker has regard to other material considerations.24

The courts have, however, sought to avoid a formalistic approach requiring explicit and detailed mention of the relevant EU environmental objectives in a decision-maker’s reasoning. As Irwin J’s decision in Residents Against Waste Site v Lancashire County Council 25 illustrates, the key is whether in substance the decision-maker has had regard to the objectives of the directive. In Residents Against Waste, the claimant sought judicial review of the grant of planning permission for a waste technology plant. It contended that the defendant council had failed to have proper regard to Article 4 of the Waste Framework Directive,26 because the Development Control Committee made no mention of Article 4, nor of the relevant provisions of the transposing regulations.27 The Council defended its decision by arguing that the overarching plans and policies under which this planning application was prepared and considered enshrined the relevant objectives; the officers were aware of them; and councillors had been educated about them. The fact that there was no further explicit mention of the relevant objectives in the detailed documentation was because that was unnecessary. Irwin J agreed with the Council’s submissions: The question can only properly be determined by reference to substance. It is clear that the underlying plans and policies developed by LCC fully took into account the relevant objectives. It is also clear that Mr Perigo and the other senior officers of LCC were fully aware of these statutory 22   R (on the Application of Murray) v Derbyshire County Council [2002] EWCA Civ 31, [2003] QB 503. See also R (on the Application of Blewett) v Derbyshire County Council [2004] EWCA Civ 1508, [2005] Env LR 15. 23   [1975] OJ L194/39. 24   Murray (above n 22) para 53. 25   Residents Against Waste Site Ltd v Lancashire County Council [2007] EWHC 2558 (Admin). 26   Above n 23. 27   The obligations arising from Article 4 of the Framework Directive on Waste (75/442/EC as amended) was given effect in England by Reg 19 and Sched 4 of the Waste Management Licensing Regulations 1994. Para 2(1) of Sched 4 to the 1994 Regulations required that ‘the competent authorities shall discharge their specified functions, insofar as they relate to the recovery or disposal of waste, with relevant objectives’; and para 4(1) of Sched 4 to the Regulations provided that ‘for the purposes of this Schedule the following objectives are relevant objectives in relation to the disposal or recovery of waste – (a) ensuring that waste is recovered or disposed of without endangering health and without using processes or methods which could harm the environment and in particular without – (i) risk to water, air, soil, plants or animals; or (ii) causing nuisance through noise or odours.’

206  Abuse of Discretion: Illegality provisions. Councillors had been taught about them, no doubt as one of a number of legal provisions, before they took up their duties of this Committee. In my judgment, the Claimant has failed to demonstrate that the LCC, its officers and members, paid no or no sufficient attention to the relevant objectives in reaching this decision. It might have been desirable for Mr Perigo to include a paragraph in his report to the Committee stating that specific consideration had been given by officers, and should be given by the Committee, to the relevant objectives. However, even that observation may in truth come perilously close to recommending lip-service to the relevant objectives. The key here is: were they borne properly in mind? The Claimant has failed to show they were not.28

This is a sensible approach which elevates substance above form and avoids the quashing of environmental decisions merely because they have failed expressly to refer to the environmental objectives of an EU directive.

B.  Establishing a Breach of the Relevancy Principle It is relatively easy to show a breach of the relevancy principle where a decision-maker gives reasons indicating that a breach has occurred (as in Padfield29). In other cases, the court will have to infer the factors that influenced the decision-maker. Breach of the relevancy principle does not necessarily mean that the decision will be unlawful; it may be justified on other grounds, or the irrelevant factor may be immaterial or insubstantial. In R v Broadcasting Complaints Commission (BCC), ex p Owen,30 the BCC gave five reasons why it would not entertain a complaint. One reason was flawed because it was irrelevant. The court was satisfied that the same decision would have been reached on the basis of the four valid reasons alone, and so the decision was allowed to stand. The same approach has been applied in the environmental context. In R (Horner) v Lancashire CC,31 the claimant was a local farmer who sought judicial review of the authority’s decision to grant planning permission without carrying out an environmental impact assessment (EIA). The permission was for the erection at a cement works of machinery to handle animal waste-derived fuel. The claimant argued that the authority had failed to consider the waste management objectives in the Waste Management Licensing Regulations 1994;32 the relevant waste policies in the Waste Local Plan and the National Waste Strategy; and the best practicable environmental option for the disposal of waste as required by those policies. Auld LJ held that the judge had been entitled to examine whether the omission or inadequate consideration of those issues would have made a difference to the authority’s decision.33 What is legally relevant or irrelevant is a matter for the courts. However, it is important to note the limitations of the judicial perspective. The courts may lack the practical skill and procedural facilities necessary to determine what is relevant in the broader context of public administration and policymaking. Schiemann LJ’s judgment in R (Bibi) v Newham LBC illustrates the courts’ sensitivity to these limitations:

  Residents Against Waste Site (above n 25) para 48.   Above n 7. 30   R v Broadcasting Complaints Commission, ex p Owen [1985] QB 1153. 31   R (on the Application of Horner) v Lancashire CC [2007] EWCA Civ 784, [2008] Env LR 10. 32  SI 1994/1056. 33   Horner (above n 31) para 79. 28 29

The Relevancy Principle  207 In an area such as the provision of housing at public expense where decisions are informed by social and political value judgments as to priorities of expenditure, the court will start with a recognition that such invidious choices are essentially political rather than judicial.34

So the courts will not necessarily disregard a decision-maker’s views on relevancy. However, the breadth of discretion allowed to a decision-maker in deciding what is or is not relevant will vary depending upon the nature of the power and the rights and interests affected. For example, the Chief Constable making a decision how to allocate scarce police resources in R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd35 was allowed a much broader margin of discretion on relevancy than the Home Secretary deciding an application for asylum in Bugdaycay v SSHD.36 The relevancy principle is especially important in environmental law because EU environmental legislation imposes many duties to consider the environmental impact of certain decisions. Decision-makers frequently fall foul of the duty to have regard to the environmental consequences of their decisions. In R (Woolley) v Cheshire East BC,37 a grant of planning permission was quashed because the local planning authority had failed to have regard to the requirements of the Habitats Directive.38 The officer’s report made no mention of the Directive or the implementing regulations, and the authority could not discharge the duty to consider the Directive simply by making the obtaining of a licence for migrating bats a condition of the planning permission. Similarly, in R (Birch) v Barnsley MDC,39 the Court of Appeal held that the local planning authority had failed sufficiently to consider whether material to be produced at a composting site and spread was ‘waste’. Accordingly, the authority had failed properly to consider whether the proposed work was ‘development’ within Schedule 2 of the Town and Country Planning (EIA) (England and Wales) Regulations 1999.40 The requirement to consider the environmental effects of a decision may be expressly stated in the relevant legislation, or it may be implied. The particular importance of consultation on environmental matters has led the courts to conclude that a right of consultation implicitly means that the adverse effect of a decision on the environment is a relevant consideration. In R (Badger Trust) v Welsh Ministers,41 the issue was whether a cull of badgers in Wales was necessary to ‘substantially reduce’ the incidence of bovine tuberculosis in cattle, pursuant to section 21(2)(b) of the Animal Health Act 1981. Pill LJ, in the minority, held that that there was no express requirement in the 1981 Act for the Minister to take into account the extent of the killing of badgers when exercising his discretion to authorise a cull, and so he was ‘not required in that situation to count the number of badgers likely to be killed’.42 By contrast, the majority (Smith and Buxton LJJ) held that Parliament could not have intended the requirement of consultation with the appropriate conservation body to be a

34   R (on the Application of Bibi) v Newham London Borough Council [2001] EWCA Civ 607, [2002] 1 WLR 237, para 64. 35   R v Chief Constable of Sussex, ex p International Trader’s Ferry Ltd [1999] 2 AC 418. 36   Bugdaycay v Secretary of State for the Home Department [1987] AC 514. 37   R (on the Application of Woolley) v Cheshire East BC [2009] EWHC 1227 (Admin), [2010] Env LR 5. 38   Council Directive 92/43/EEC; [1992] OJ L206/7. 39   R (on the Application of Birch) v Barnsley MBC [2010] EWCA Civ 1180. 40  SI 1999/293. 41   R (on the Application of Badger Trust) v Welsh Ministers [2010] EWCA Civ 807. 42   Ibid, paras 51 and 55.

208  Abuse of Discretion: Illegality mere formality, so that whatever its results and whatever contrary arguments were advanced, the Minister was entitled to make an order authorising a cull without considering them. In their view, the Minister was required to consider the responses to the consultation and weigh up the pros and cons, including the adverse effects of killing badgers. Buxton LJ explained: I accept the appellants’ submission that Parliament’s requirement of consultation with the appropriate conservation body carries with it the implied requirement that when considering whether and how to exercise her discretion, the Minister must consider the effect of the proposed order on the wild members of the species that is to be culled, as well as, no doubt, its effect on the ecology of the area generally. I say this because it would be expected that on such a consultation a conservation body would inform the Minister of its views on the conservation of wild species in the area; and a requirement of consultation carries with it the implied requirement that the views of the consultee on relevant matters should be considered. Consideration of such matters as the effect on wildlife does not mean merely being informed of the facts. It involves considering whether the consequences of the proposed order for the wildlife species in question and the ecology generally are justified by the anticipated benefits of the cull authorised by the proposed order. In other words, the Minister should weigh one against the other.43

Although the courts will look closely to ascertain whether a relevant consideration has been taken into account, it is clear that the weight given to a relevant consideration is a matter for the decision-maker, subject to review only on the ground of reasonableness. As Lord Hoffmann explained in Tesco Stores v Secretary of State for the Environment: The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law, and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.44

It is extremely difficult for a claimant to establish that a decision-maker has given unreasonable weight to a relevant consideration. That is the case even where a lay decision-maker has allegedly given insufficient weight to expert reports. For example, in R (Morge) v Hampshire CC,45 Ward LJ held that the local planning authority had not given unreasonable weight to the expert view that development was likely to have significant environmental effects. He said that if counsel for the claimant had been presenting the evidence to the planning committee, he may have procured a change of view, and ‘he may even have persuaded me’; but the fact remained that the committee had split seven votes to five, and   Ibid, para 110.   Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, 780.   R (on the Application of Morge) v Hampshire CC [2010] EWCA Civ 608, [2010] PTSR 1882.

43 44 45

The Relevancy Principle  209 there was ‘a generous ambit for reasonable disagreement’, so that it was ‘not a case where no reasonable member could have concluded that the effects were other than significant’.46

C.  Consideration of Irrelevant Factors Unless statutory provisions provide an exhaustive list of relevant considerations, a decision-maker is free to take account of other matters, provided that in considering these factors he remains within the policy and objects of the statutory scheme. It is often difficult to decide whether a particular consideration is within the policy and object of the statutory scheme. This can be illustrated by examining the cases dealing with the relevance of the public body’s resources and the relevance of public opinion. 1.  The Relevance of Resources In R v Gloucestershire CC, ex p Barry,47 the House of Lords held that an authority could take its resources into account when deciding whether to withdraw the provision of help under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. By contrast, in R v East Sussex CC, ex p Tandy the House of Lords held that the authority could not reduce the provision of home tuition for sick children for financial reasons.48 In Tandy, Lord BrowneWilkinson described the statutory provisions in Barry as ‘strange’49 and argued strongly that lack of resources cannot excuse the non-performance of statutory duties. Thus, in relation to statutory duties, it seems that the courts will allow authorities to take their resources into account only where this is clearly permitted by the relevant statutory provisions. In the environmental context, the relevance of resources has often arisen in relation to the Habitats Directive50 and the Birds Directive,51 which provide for the designation of special areas of conservation and special protection areas respectively. In Commission v Spain,52 the European Court of Justice (ECJ) held that the Spanish government was in breach of Article 4 of the Birds Directive for failing to designate an important wetland area (the Santoña Marshes) as a special protection area. It held that a Member State is under a duty to designate and protect a site if it fulfils the objective ornithological criteria laid down in the Directive. Therefore, in R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds,53 the ECJ held that the duty to designate sites was an obligation unaffected by economic considerations.54 Economic considerations have also been held to be

46   Ibid, para 82. At para 90 Ward LJ held that the matter was ‘quintessentially a matter for the Committee to exercise its planning judgment and form its independent opinion. In those circumstances it cannot be said that the decision was irrational.’ 47   R v Gloucestershire CC, ex p Barry [1997] AC 584. 48   R v East Sussex CC, ex p Tandy [1998] AC 714. 49   Ibid, 748. 50   Above n 38. 51   Council Directive 79/409/EEC [1979] OJ L103/1. 52   Case C-355/90 Commission v Spain [1993] ECR I-4221. 53   Case C-44/95 R v Secretary of State for the Environment, ex p Royal Society for the Protection of Birds [1996] ECR I-3805, [1997] QB 206. 54   Regrettably, the House of Lords had refused interim relief ([1997] Env LR 431) because the RSPB could not afford to give a cross-undertaking in damages, and the habitat had been destroyed by a 22-hectare car park by the time that the ECJ gave judgment. See further above ch 8.

210  Abuse of Discretion: Illegality irrelevant to the designation of special areas of conservation under the Habitats Directive.55 The irrelevance of resources to the issue of designating these sites is based on the fact that the legislative objective of setting up a network of European protected sites would be prejudiced if Member States could refuse to designate on the basis of economic, social or cultural grounds.56 Although in environmental law, economic considerations are rarely relevant considerations in the performance of statutory duties, there is one important exception, namely compliance with target duties. The case of Friends of the Earth and Help the Aged v Secretary of State for Business Enterprise and Regulatory Reform57 concerned the Warm Homes and Energy Conservation Act 2000, which requires the Secretary of State to publish a strategy setting out policies to ensure that ‘as far as reasonably practicable, persons do not live in fuel poverty’.58 Section 2(5) of the Act provides that the Secretary of State is under a duty to take such steps that are in his or her opinion necessary to implement the strategy. The Department for Environment, Food and Rural Affairs (DEFRA) considered that it was not reasonably practicable to take all measures required to eliminate fuel poverty, partly because of spending restraints on departmental resources. The claimant nongovernmental organisations (NGOs) contended that although cost effectiveness was a relevant factor, budgetary restraint was not – otherwise budgetary considerations would dictate the scope of the legal duty. McCombe J accepted the general proposition that resources should not dictate the scope of a legal duty and that the court should be willing to declare action unlawful regardless of the spending implications. Nevertheless, when considering the legislation in question, it had to be assumed that Parliament must have been aware that pressure on departmental budgets was intense. Parliament could not have intended to require the government to spend whatever funds were necessary to eliminate fuel poverty in preference to other spending commitments. Accordingly, the government could have regard to its overall budget and the many other demands on its resources when deciding what steps to take to implement the fuel poverty strategy.59 But that did not mean that limited resources were a justification for taking no action at all. The Act did require a minimum standard to be achieved, and it was not open to the government to take action that would amount to a gross derogation of duty, such as completely eliminating winter fuel payments, which are one of the main mechanisms to achieve the goals of the fuel poverty strategy. Aside from cases of such gross derogations of duty, McCombe J held that ‘the penalty (if any) for failure to achieve the desired results of the Strategy as published, because of errors in policymaking (if such they be) should, it seems to me, be political rather than legal’.60 This case is a cautionary note for legislators. As explained below, the Administrative Court is reluctant to become embroiled in questions of discretionary resource allocation, 55   Case C-371/98 R v Secretary of State for the Environment, Transport and the Regions, ex p First Corporate Shipping Limited [2000] ECR I-9235. 56   Case C-226/08 Stadt Papendburg v Germany (not yet reported) paras 31–32. 57   Friends of the Earth and Help the Aged v Secretary of State for Business, Enterprise and Regulatory Reform [2008] EWHC 2518 (Admin). 58   Warm Homes and Energy Conservation Act, s 2(1). 59   McCombe J did, however, hold that regard could be had only to the government’s overall budget and not to individual departmental budgets. It could not be assumed that Parliament in providing allegations to each department under the Approbation Acts could be said to have borne in mind the overall legislative duties under the Act. 60   Friends of the Earth and Help the Aged (above n 57) para 31.

The Relevancy Principle  211 yet the Warm Homes and Energy Conservation Act 2000 and other such target-setting legislation draw the court ever closer to assessing government policy on the use of available funds by imposing legal target duties to implement broad policy documents. McCombe J rightly considered that this was where the statutory scheme was ‘at its most unsound’.61 The irrelevance of resources to the performance of statutory duties can be contrasted with the courts’ reluctance to interfere with discretionary resource allocation decisions, where they allow a considerable margin of discretion to decision-makers. In R v Cambridgeshire Health Authority, ex p B (No 1),62 the question was whether the Health Authority could take its resources into account when deciding not to carry out treatment for a child with leukaemia. At first instance, Laws J said: [W]here the question is whether the life of a 10-year-old child might be saved by however slim a chance, the responsible authority . . . must do more than toll the bell of tight resources . . . [T]hey must explain the priorities that have led [them] to decline to fund the treatment.63

Laws J held that the authority had failed to do this, but the Court of Appeal overturned this decision and adopted a more pragmatic approach: I have no doubt that in a perfect world any treatment which a patient, or a patient’s family, sought would be provided if doctors were willing to give it, no matter how much it cost, particularly when a life was potentially at stake. It would, however, in my view, be shutting one’s eyes to the real world if the court were to proceed on the basis that we do live in such a world. It is common knowledge that health authorities of all kinds are constantly pressed to make ends meet. They cannot pay their nurses as much as they would like; they cannot provide all the treatments they would like; they cannot purchase all the extremely expensive medical equipment they would like; they cannot carry out all the research they would like; they cannot build all the hospitals and specialist units they would like. Difficult and agonising judgments have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgment which the court can make . . . I furthermore think, differing I regret from the judge, that it would be totally unrealistic to require the authority to come to the court with its accounts and seek to demonstrate that if this treatment were provided for B, then there would be a patient, C, who would have to go without treatment. No major authority could run its financial affairs in a way which would permit such a demonstration.64

A similar approach can be seen in the House of Lords judgment in International Trader’s Ferry.65 The case concerned the policing of live animal exports from the port of Shoreham. The export activities of the claimant had attracted large-scale protests, and the police had initially provided protection for five sailings per week. The Chief Constable eventually decided that the financial and manpower demands of this task were interfering with the efficient policing of the county as a whole. Accordingly, he resolved that on certain days there would be no policing. The House of Lords upheld the Chief Constable’s decision. Lord Slynn explained: [While the courts will] readily review the way in which decisions are reached, they will respect the margin of appreciation or discretion which a chief constable has. He knows through his officers the local situation, the availability of officers and his financial resources, the other demands on the   Ibid, para 58.   R v Cambridge Health Authority [1995] 1 WLR 898. 63   Ibid, quoted by Sir Thomas Bingham MR in the Court of Appeal, 906. 64  Ibid (Sir Thomas Bingham MR). 65   Above n 35. 61 62

212  Abuse of Discretion: Illegality police in the area at different times . . . Where the use of limited resources has to be decided, the undesirability of the court stepping in too quickly was made very clear by Sir Thomas Bingham MR [in ex p B] . . . The facts here are different and the statutory obligations are different, but mutatis mutandis the principle is relevant to the present case.66

While these decisions show that the courts are reluctant to be drawn into discretionary resource allocation decisions, it should not be thought that they confer immunity from judicial scrutiny, because the courts will still require cogent evidence to establish that a shortage of resources justifies decisions that interfere with the rights and other important interests of those affected. 2.  The Relevance of Alternative Sites Where proposed development would be harmful to the environment, an important question is whether the relevant planning authorities must consider the availability of alternative sites. The general position as to the relevance of alternative sites in planning law is as follows. In Derbyshire Dales District Council v Secretary of State for Communities and Local Government,67 the developer had applied for planning permission for wind turbine generators on a site that would likely affect a national park and conservation areas. Planning permission was refused, but a planning inspector allowed the developer’s appeal and held that consideration of alternative sites was not necessary, either as a matter of law or on the merits of the proposal. Carnwarth LJ, sitting in the Administrative Court, upheld the inspector’s decision. He held that there was a difference between saying on the one hand that consideration of a possible alternative site was a potentially relevant issue so that a decision-maker did not err in law if he had regarded it, and saying on the other hand that it was necessarily relevant so that he erred in law if he failed to have regard to it.68 For a matter to be a mandatory relevant consideration, it was not enough that in a judge’s view, consideration of the particular matter might realistically have made a difference. Short of irrationality, the question was one of statutory construction. Carnwarth LJ held that there was nothing in the Town and Country Planning Act 1990, nor in the relevant policies, that expressly or impliedly required the inspector to consider alternative sites. Section 78 of the 1990 Act focused consideration on the particular application in question, and the relevant statutory provisions and policies relating to the National Park required special regard to be paid to their protection but fell short of imposing a positive obligation to consider alternatives. Thus, as a matter of statutory construction, consideration of alternative sites was not a mandatory relevant consideration. Sometimes a statutory scheme will provide for alternative sites to be a mandatory relevant consideration. A good illustration is the decision in Hertfordshire CC v Secretary of State for Communities and Local Government,69 in which Mitting J quashed policies contained within the East of England Plan regional spatial strategy because of a failure to comply with strategic environmental assessment legislation. A revision to the Plan had been adopted and implemented through the introduction of various planning policies allocating   International Trader’s Ferry (above n 35) 431.   Derbyshire Dales District Council v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin). 68   Ibid, para 17. See also Trust House Forte Ltd v Secretary of State for the Environment (1987) 53 P & CR 293. 69   Hertfordshire CC v Secretary of State for Communities and Local Government [2009] EWHC 1280 (Admin). 66 67

Wednesbury Unreasonableness  213 housing development to four towns identified as being key centres for development and change. The claimants contended that there had been no proper environmental assessment of that revision, especially in respect of encroachment into the green belt, contrary to Directive 2001/42/EC70 and the Environmental Assessment of Plans and Programmes Regulations 2004.71 Mitting J held that on proper construction, Article 5 of the Directive and Regulation 12 of the Regulations did require that reasonable alternatives to development should be described and evaluated before a choice was made as to how a plan should be modified. Accordingly, the revisions were quashed in respect of three of the four key centres because there had been a failure to consider reasonable alternatives through means of environmental assessments. Development around the fourth of the key centres had on the facts been properly considered through an iterative process. 3.  The Relevance of Public Opinion The relevance of public opinion has been considered by the courts in the context of the powers of the Home Secretary in sentencing.72 In R v Secretary of State for the Home Department, ex p Venables and Thompson,73 one of the issues for the House of Lords was whether the Home Secretary could lawfully consider public petitions, public correspondence and coupons from readers of The Sun newspaper when fixing the tariff for two children convicted of murdering another boy. The majority held that he could not, and Lord Goff stated: [There is] a distinction . . . between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment. It is legitimate for a sentencing authority to take the former concern into account, but not the latter. In my opinion, by crossing the boundary from one type of public concern to the other, the Secretary of State erred in the present case.74

III.  Wednesbury Unreasonableness

A.  The Basic Rule The traditional test for the rationality of administrative decisions has been the Wednesbury test. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation,75 Lord Greene MR used the term ‘unreasonable’ in two senses. The first meaning of the term allowed the court to intervene where a decision was of a type that could not be made at all – it was outside the four corners of the power given by Parliament.   [2001] OJ L197/30.  SI 2004/1633. 72   Although see now R (on the Application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837, in which the House of Lords held that the Secretary of State should play no part in fixing the tariff of a convicted murderer because he is not independent and impartial. 73   R v Secretary of State for the Home Department, ex p Venables [1998] AC 407. 74   Ibid, 491. 75   Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 70 71

214  Abuse of Discretion: Illegality The second meaning is what is commonly referred to as Wednesbury unreasonableness: Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense . . . a conclusion so unreasonable that no reasonable authority could ever have come to it.76

The crucial feature of this test is that the court is not concerned with what it regards as the appropriate or correct decision on the merits but rather with the very different question of whether a sensible decision-maker, properly directed in law and properly applying its mind to the matter, could have reached the conclusion reached by the defendant. In other words, there is a range of reasonable responses to any administrative problem, and provided the decision-maker remains within that reasonable range, it does not matter that the court disagrees with the outcome.

B.  The Standard of Unreasonableness The rather extreme wording of the Wednesbury test might lead one to think that few decisions would be condemned, especially since in Council of Civil Service Unions v Minister for the Civil Service,77 Lord Diplock referred to the standard as a decision ‘so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.78 However, the application of the test has not been so extreme because the courts have developed the test in a number of ways. Wade and Forsyth have commented: Taken by itself, the standard of reasonableness is nominally pitched very high . . . It might seem from [the language of the tests] . . . that the deliberate decisions of ministers and other responsible public authorities could almost never be found wanting. But . . . there are abundant instances of legally unreasonable decisions and actions at all levels. This is not because ministers and public authorities take leave of their senses but because the courts in deciding cases tend to lower the threshold of unreasonableness to fit their more exacting ideas of administrative good behaviour.79

Similarly, Jowell and Lester have stated: [Wednesbury] seeks to prevent review except in cases where the official has behaved absurdly . . . In practice, however, the courts are willing to impugn decisions that are far from absurd and are indeed often coldly rational. Were the courts only to interfere with decisions verging on the insane, a zone of immunity would be drawn around many oppressive or improper decisions that are in reality vulnerable to judicial review.80

As is illustrated by the cases discussed below, Wednesbury is not a monolithic standard of review. Instead, the courts apply it with varying degrees of intensity depending upon the subject matter of the claim. As Sir Thomas Bingham MR explained in R v Ministry of Defence, ex parte Smith, ‘The greater the policy content of a decision, and the more remote

  Ibid, 229 and 234.   Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. 78   Ibid, 410. 79   W Wade and C Forsyth, Administrative Law, 10th edn (Oxford, Oxford University Press, 2009) 304. 80   J Jowell and A Lester, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ (1987) Public Law 368, 372. 76 77

Wednesbury Unreasonableness  215 the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational.’81 1.  ‘Super Wednesbury’ In cases with a high political, policy or macroeconomic content, the courts may apply a ‘super-Wednesbury’ standard of review and only quash decisions for unreasonableness in the most extreme of cases. In R v Secretary of State for the Environment, ex p Hammersmith and Fulham LBC, Lord Bridge held: [S]ince the statute has conferred a power on the Secretary of State which involves the formulation and the implementation of national economic policy . . . it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and the implementation of national economic policy are matters depending essentially on political judgment. The decisions which shape them are for politicians to take . . . If the decisions have been taken in good faith within the four corners of the Act, the merits of the policy underlying the decisions are not susceptible to review by the courts, and the courts would be exceeding their proper function if they presumed to condemn the policy as unreasonable.82

A similarly deferential approach was taken by the House of Lords in R v Secretary of State for the Environment, ex p Nottinghamshire CC83 in relation to the Secretary of State’s decision setting the guidance figure that was used to determine any reduction to a local authority’s rate support grant. The complex nature of the economic issues involved meant that the courts were ill-suited to scrutinising the substance of the decision closely. As Lord Phillips MR explained in R (Asif Javed) v Secretary of State for the Home Department,84 the Nottinghamshire case raised political and economic considerations ‘whose rationality could not be measured by any yardstick available to the court’. Accordingly: [T]he statement that there was no scope for an attack on the exercise of the Secretary of State’s powers on grounds of rationality in the absence of bad faith or manifest absurdity was no more than a statement of practical reality.85

2.  ‘Sub Wednesbury’ or ‘Heightened Scrutiny’ The courts have applied Wednesbury more intensely in cases involving rights. In R v Secretary of State for the Home Department, ex p Brind,86 Lord Bridge held that in cases concerned with rights, the court must inquire whether a reasonable Secretary of State could reasonably have made the impugned decision. The court ought, he said, to begin its inquiry from the premise that only a compelling public interest would justify interference with the right.87 In R v Ministry of Defence, ex p Smith, Sir Thomas Bingham MR quoted with approval the submissions of David Pannick QC:   R v Ministry of Defence, ex p Smith [1996] QB 517, 556.   R v Secretary of State for the Environment, ex p Hammersmith and Fulham LBC [1991] 1 AC 521, 597. 83   R v Secretary of State for the Environment, ex p Nottinghamshire CC [1986] AC 240. 84   R (on the Application of Asif Javed v Secretary of State for the Home Department [2001] EWCA Civ 789, [2002] QB 129, para 49. 85   Ibid, 152. 86   R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696. 87   Ibid, 748–49. 81 82

216  Abuse of Discretion: Illegality The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.88

As discussed below, proportionality has now replaced Wednesbury as the appropriate standard of substantive review in fundamental rights cases. Nevertheless, these cases were important in demonstrating that Wednesbury could be applied flexibly by reference to the context, without imperilling the separation of powers. 3.  A Less Extreme Formulation The various formulations of Wednesbury detailed above reflect the context-specific, variable nature of substantive review for unreasonableness. As Laws LJ has commented: On the surface at least the test of unreasonableness or irrationality . . . is monolithic; it leaves no scope for a variable standard of review according to the subject-matter of the case . . . But in fact the courts, while broadly adhering to the monolithic language of Wednesbury, have to a considerable extent in recent years adopted variable standards of review [to suit the subject matter of the case before them].89

Even in cases not concerned with rights, the courts have struck down decisions that were clearly not absurd. For example, in R v Lord Saville of Newdigate, ex parte B (No 2),90 Lord Woolf MR held that to label a decision as irrational would often not do justice to the decision-maker, who could be the most rational of people. The real reason why a decision is held to be unreasonable is usually because, although extreme perversity is not present, the decision-maker has nevertheless misdirected himself in law. Thus, in R v Parliamentary Commissioner for Administration, ex parte Balchin (No 1),91 Sedley J held that a decision would be Wednesbury unreasonable if it disclosed an error that robbed the decision of its internal logic; it was not necessary to show that the decision-maker was ‘temporarily unhinged’. And in R v North Devon Health Authority, ex p Coughlan,92 the Court of Appeal held that Wednesbury unreasonableness covered decisions made by ‘flawed logic’ as well as those that defy comprehension. Explicit approval for this broader notion of Wednesbury unreasonableness was given by Lord Cooke in International Trader’s Ferry.93 Lord Cooke felt that Lord Greene’s formulation was tautologous and exaggerated; he held that it was unnecessary to have such an extreme test in order to respect the separation of powers and keep the courts from overstepping their constitutional boundaries. He preferred the simpler test: was the decision one that a reasonable authority could have reached?94 In R (Daly) v Secretary of State for the Home Department Lord Cooke repeated his criticism of Wednesbury:   R v Ministry of Defence, ex p Smith [1996] QB 517, 554.  Sir John Laws, ‘Wednesbury’ in CF Forsyth and IC Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade (Oxford, Clarendon Press, 1998) 186–87. 90   R v Lord Saville of Newdigate, ex p B (No 2) [2000] 1 WLR 1855, para 33 91   R v Parliamentary Commissioner for Administration, ex p Balchin (No 1) [1998] 1 PLR 1. 92   R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213, para 65. 93   Above n 35. 94   International Trader’s Ferry (above n 35) 452. 88 89

Wednesbury Unreasonableness  217 [I] think that the day will come when it will be more widely recognised that . . . Wednesbury . . . was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.95

Despite the apparent relaxation of the Wednesbury test, it is still extremely difficult for a claimant to succeed on this ground in an environmental judicial review claim. This is because environmental decision-making often involves balancing difficult social, economic and scientific considerations that the courts are not institutionally or constitutionally equipped to evaluate. A good example is provided by the Court of Appeal decision in Downs v Secretary of State for the Environment, Food and Rural Affairs,96 which concerned the models that the government’s Advisory Committee on Pesticides used to ensure safety from pesticide exposure, in particular, whether the models were adequate to deal with the exposure of local residents. The background to the case was a report in 2005 by the Royal Commission on Environmental Pollution that had criticised the current methodologies and had recommended a more precautionary approach on the basis that it was reasonable to assume that spraying crops with pesticides could cause chronic ill-health to local residents and other bystanders. The government’s Advisory Committee on Pesticides defended its approach, and the Minister rejected the Royal Commission’s recommendations. The claimant, a prominent pesticide campaigner, argued that the Minister had irrationally rejected the Royal Commission’s recommendations – in particular because the Minister himself had requested the Commission to consider the issue of resident bystander exposure to pesticides. Sullivan LJ held that the Minister had given a very full and detailed explanation as to why the Royal Commission’s recommendations were not accepted, and ‘the Respondent’s submission that the reasons given by the appellant are not “clear and compelling” is, in reality, no more than an expression of her disagreement with those reasons.’97 That was ‘a very far cry from establishing Wednesbury unreasonableness’,98 especially considering that ‘in a case such as this, involving complex questions of highly technical scientific judgment, the “manifest error” hurdle is a high one’.99 The danger of the courts overstepping their constitutional function in cases involving scientific evidence is ever present; in fact, in Downs, Sullivan LJ held that at first instance Collins J had impermissibly strayed into the realm of merits review.100 He disapproved of such interference with the Minister’s discretion in these terms: In my judgment, Collins J in these passages was substituting his own evaluation of the available evidence for that of the Appellant. Whether the evidence does reasonably raise doubts as to the safety of those pesticides that have been authorised by Defra under the current approvals process, or whether it amounts to no more than ‘hypotheses that have not been scientifically confirmed’ is, 95   R (on the Application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, para 32. 96   Downs v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664, [2009] 3 CMLR 46. See further above ch 2. 97   Ibid, para 102. 98   Ibid, para 103. 99   Ibid, para 43. 100   Downs [2008] EWHC 2666 (Admin), [2009] Env LR 19.

218  Abuse of Discretion: Illegality in the first instance, for Defra to decide, having taken advice from the ACP. While the Appellant’s decisions in this respect are not immune from judicial review, the hurdle of ‘manifest error’ in such a highly technical field is a formidable one. The Respondent is not able to surmount that hurdle.101

A similar reluctance to disturb an environmental regulator’s assessment of technical data can be seen in Beatson J’s decision in R (Newport City Council) v Welsh Ministers.102 The claimant sought judicial review of the final landfill allowances allocated to waste disposal authorities in Wales by the defendant under the Waste and Emissions Trading Act 2003. The final allowances prescribed the amount of biodegradable municipal waste that could be sent to landfills each year by waste disposal authorities in Wales. The final allowances were set at levels that differed substantially from indicative allowances previously notified, using statistics for waste production in 2007/08 for the second round of allocations, rather than the 2001/02 figures used for the first round. The claimant contended that the defendant had acted unreasonably in changing the ‘baseline’ that formed the basis of decisions as to the allocation because the change had the effect of penalising authorities who had taken active waste reduction measures since 2001/02 and rewarding those who had done little or nothing over that period. Beatson J recognised that ‘[t]he decision under review concerned a relatively complex comparative process on a technical subject’,103 and without looking closely at the statistical data, he held that the defendant had not acted unlawfully in basing its final allocations upon the most recent data, because that could reasonably be considered to be the most reliable and consistent data. Even where scientific or technical matters are not at stake, the courts will generally apply a deferential standard of Wednesbury review to environmental decisions because of the extent to which expert judgment is involved in the decision-making process. This is particularly evident in the context of planning decisions, in which the role of the court vis-àvis the decision-maker was explained by Sullivan J in the context of statutory planning challenges in R (Newsmith Stainless) v Secretary of State for the Environment, Transport and the Regions: An application under section 288 is not an opportunity for a review of the planning merits of an Inspector’s decision. An allegation that an Inspector’s conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits. In any case, where an expert tribunal is the fact-finding body, the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.104   Downs (above n 96) para 76 (citations omitted).   R (on the Application of Newport City Council) v Welsh Ministers [2009] EWHC 3149 (Admin), [2010] Env LR 27. 103   Ibid, para 80. 104   R (on the Application of Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, paras 6–7 (citations omitted). 101 102

Wednesbury Unreasonableness  219 A good example of this deference to planning judgment is provided by the case law on environmental impact assessment (EIA), in particular the issue of whether development falls within either Schedule 1 or Schedule 2 of the Town and Country Planning (EIA) (England and Wales) Regulations 1999. In R (Wye Valley Action Association) v Herefordshire Council,105 the local planning authority had held that polytunnel development did not require environmental impact assessment because it was not development listed in Schedule 2 of the EIA Regulations. The issue was whether the development fell within Schedule 2 paragraph 1(a), namely ‘projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes’. Ian Dove QC, sitting as a Deputy High Court Judge, examined the process involved in determining whether development was EIA development and the court’s role in relation to that process. The leading case is R (Goodman) v Lewisham LBC,106 in which Buxton LJ explained that the local planning authority is obliged to consider whether development is Schedule 2 development unless no reasonable authority could think that it was.107 Whether development falls within one of the categories in Schedule 2 is a jurisdictional question of law, and Wednesbury ‘simply has no part to play’.108 If the development is Schedule 2 development, the authority must then determine whether it is EIA development – ie, whether it is likely to have significant effects on the environment by nature of factors such as its nature, size or location. Buxton LJ held that ‘that is an enquiry of a nature to which the Wednesbury principle does apply’.109 Ian Dove QC therefore concluded that in cases potentially requiring environmental impact assessment, [T]here are two stages. Stage A: is the development within Schedule1 or Schedule 2 of the Regulations? The meaning in law of the description of the types of projects in Schedule 2 is a matter for the court to determine and, unless the language is so open-textured or imprecise, and the factual circumstances so open to interpretation that a range of decision-makers, all acting rationally, could come to different conclusions, for the court to determine. Then, Stage B: if it is within Schedule 2, would the project have significant environmental effects? That is pre-eminently a matter of planning judgment, which could only be interfered with on Wednesbury principles: see R (on the Application of Jones) v Mansfield DC.110

On the facts, Wye Valley was a ‘stage A’ case, and he concluded that the authority had made an error of law in failing to treat the polytunnel development as Schedule 2 development. In line with this approach, the Court of Appeal held in R (Noble Organisation) v Thanet DC111 that it was a matter for the planning judgement whether a leisure park development would be likely to have such significant effects on the environment as to require an EIA.112 In the Noble case there was no basis for a Wednesbury challenge to the authority’s decision not to require an EIA at the outline permission stage because the particularity of the 105   R (on the Application of Wye Valley Action Association Ltd) v Herefordshire Council [2009] EWHC 3428 (Admin), [2010] 2 All ER 863. 106   R (on the Application of Goodman) v Lewisham LBC [2003] EWCA Civ 140. 107   Ibid, para 7. 108   Ibid, para 8. See further above ch 9. 109   Ibid, para 9. See also R (on the Application of Malster) v Ipswich Borough Council [2001] EWHC Admin 711, [2002] PLCR 14. 110   Goodman (above n 106) para 25. 111   R (on the Application of Noble Organisation Ltd) v Thanet District Council [2005] EWCA Civ 782, [2006] Env LR 8. 112  See also R (on the Application of Jones) v Mansfield DC [2003] EWCA Civ 1408, [2004] Env LR 21.

220  Abuse of Discretion: Illegality proposal at the outline stage was such as to have enabled the authority to conclude that it did not require an EIA. Despite the high threshold for establishing that environmental decisions are unreasonable, a decision based on flawed logic will be quashed by the courts. For example, in R (Enfield LBC) v Mayor of London,113 the claimant waste disposal authority challenged a direction made by the Mayor of London pursuant to section 356 of the Greater London Authority Act 1999 requiring it to make appropriate compensatory provision for the closure of a reuse and recycling site that it had operated. The claimant had operated two such sites and had sold one to a housing developer. Within days of the Mayor’s direction, a planning inspector had held an inquiry into an application by the housing developers, and one of the issues extensively canvassed during the course of the inquiry had been waste management. The inspector found that the claimant’s remaining site alone would comfortably accept all of the waste produced, and the insistence of the provision of a replacement site ignored the progress that the claimant had made in waste management. He concluded that the aims of the waste strategy would not be prejudiced and that planning permission might be granted for the proposed residential development. Mitting J held that the judgment of what was necessary to implement the municipal waste management strategy was for the Mayor, subject to the Wednesbury principle. However, in the light of the Inspector’s findings that appropriate compensatory provision was already afforded by the claimant’s existing site, the basis for the Mayor’s direction had thereby been undermined, and to sustain it was now irrational. Accordingly, the Mayor was ordered to withdraw his direction. Similarly, in Badger Trust,114 Smith LJ considered that the Minister’s conclusions were based on flawed logic and were therefore unreasonable. The scientific evidence before the Minister in relation to the necessity of ordering a cull of badgers was derived very largely from the randomised badger culling trial (RBCT) that had been reported in a 2008 study. That 2008 trial appeared to have been well conducted and to have provided reliable information, but it was carried out in a number of relatively small areas in which the incidence of bovine tuberculosis was high and where there was a significant badger population. Smith LJ held: It seems to me that the Minister would be entitled to rely on that study and to apply its results to an area or areas where similar conditions applied. In short, it would be entirely reasonable for her to infer that, if a cull were to be ordered in an IAPA in Pembrokeshire where there is a substantial badger population and a real problem with bovine TB, the results of that cull would be similar to the results of the RBCT. But in my view it would not be reasonable for her to infer, as she apparently did, that the results of a cull covering the whole of Wales would be of the same order as the results of the RBCT. Bovine TB is a problem in some parts of Wales but not others and the problem is by no means uniform. The Minister’s acceptance that her order must be quashed is recognition of the shortcoming that I have just described.115

Thus, although the courts will not seek to resolve scientific uncertainty, they will test to see whether the decision-maker’s conclusions are logically consistent with the scientific view adopted by the decision-maker. 113   R (on the Application of Enfield London Borough Council) v Mayor of London [2007] EWHC 1795 (Admin), [2008] Env LR 9. 114   Above n 41. 115   Badger Trust (above n 41) para 77.

Proportionality  221 IV. Proportionality

The principle of proportionality in essence requires that administrative measures must not be more drastic than is necessary for attaining the desired result. Proportionality is not yet an independent ground for judicial review in English law, where there are no fundamental human rights or rights under EU law at stake. However, there have been calls for its recognition. In R (Holding & Barnes plc) v Secretary of State for the Environment, Transport and the Regions, Lord Slynn argued: I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act 1998, however, makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of pro­ portionality has been satisfied.116

Despite this high-level support for the principle of proportionality, the Court of Appeal has held that ‘it is not for this court to perform the burial rites’ of Wednesbury.117 That task must be left to the Supreme Court, given the binding House of Lords authority that proportionality is not an independent ground of review at common law.118

A.  Proportionality in EU Law The ECJ applies a proportionality test in two situations: (i) when a Member State seeks to take advantage of an exception to one of the four fundamental freedoms (concerning workers, goods, establishment and services), and it has to show a genuine and serious threat to certain public policy considerations and that its actions are the least restrictive possible;119 and (ii) when an individual claims that Community measures have infringed his or her fundamental rights.120 Proportionality can be applied less intensively in areas in which the decision-maker possesses a broad discretion. The ECJ applies proportionality in just such a manner. For example, in R v Minister of Agriculture, Fisheries and Food, ex p Fedesa,121 the applicants challenged a Directive banning certain hormones in livestock farming. The ECJ stated that the Directive must not be disproportionate but continued: However, with regard to judicial review of compliance with those conditions it must be stated that in matters concerning the common agricultural policy the Community legislature has a discretionary 116   R (on the Application of Holding & Barnes Plc) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, [2003] 2 AC 295, para 51. 117   R (on the Application of Association of British Civilian Internees: Far East Region) v Secretary of State for Defence [2003] EWCA Civ 473, [2003] QB 1397. 118   Brind (above n 86). 119  See, eg, Case 36/75 Rutili v Minister of the Interior [1975] ECR 1219; Case 30/77 R v Bouchereau [1977] ECR 1999; Case 33-74 Van Binsbergen v Bestuur van de Bedrifjsvereniging voor de Metaalnijverheid [1974] ECR 1299; and Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649. 120   Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727. 121   Case C-331/88 R v Minister of Agriculture, Fisheries and Food, ex p Fedesa [1990] ECR I-4023.

222  Abuse of Discretion: Illegality power which corresponds to the political responsibilities given to it by Articles 40 and 43 [now Articles 34–37] of the Treaty. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue.122

In the environmental context, which is characterised by broad discretionary powers, the ECJ generally applies the proportionality test in this deferential manner, refusing to quash a decision unless it is ‘manifestly inappropriate’ – an intensity of review that is little different to Wednesbury unreasonableness.123

B.  Proportionality under the ECHR The early cases under the Human Rights Act (HRA) 1998 did not seem to make any significant alteration to the heightened scrutiny test. For example, in R (Mahmood) v Secretary of State for the Home Department,124 Lord Phillips MR held that when anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. However, the House of Lords subsequently held that this approach was insufficiently intense to satisfy the requirement of the ECHR. Lord Steyn’s judgment in Daly125 adopted the three-stage proportionality test applied by Lord Clyde in the Privy Council in De Freitas v Permanent Secretary of Ministry of Agriculture Fisheries Lands and Housing: whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.126 However, in Huang v Home Secretary,127 Lord Bingham added a fourth stage to the test, namely the issue of whether a fair balance had been struck between the rights of the individual and the interests of the community, which is inherent in the whole of the ECHR. In applying the proportionality test, what matters is whether the outcome is proportionate, not whether the decision-maker has consciously weighed the interference with the Convention right against the public interest.128 In Daly, Lord Steyn then pointed to the differences between this proportionality test and the heightened scrutiny test: The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach . . . I would mention three concrete differences without suggesting that my statement is exhaustive.   Ibid, para 14.  See, eg, the cases discussed above in ch 3 in relation to the precautionary principle. 124   R (on the Application of Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840, para 40. 125   Above n 95. 126   De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] AC 1 69, 80. 127   Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581. 128   R (on the Application of SB) v Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, [2006] 2 WLR 719; and Belfast City Council v Miss Behavin’ Ltd (Northern Ireland) [2007] UKHL 19, [2007] 1 WLR 1420. 122 123

Proportionality  223 First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith is not necessarily appropriate to the protection of human rights . . . In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving Convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so.129

Despite the proportionality test being applicable to review under the HRA, in environmental cases, the outcome is seldom different to the application of the Wednesbury test. This is because, as discussed below in chapter 15, human rights claims in relation to the environment usually engage Article 8 of the ECHR or Article 1 of Protocol 1, under which the ECtHR affords contracting states a broad margin of appreciation when dealing with complex social or economic problems. As Lord Nicholls explained in Marcic v Thames Water Utilities Ltd: The court [in Hatton v UK] emphasised ‘the fundamentally subsidiary nature’ of the Convention. National authorities have ‘direct democratic legitimation’ and are in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society may reasonably differ widely, ‘the role of the domestic policymaker should be given special weight’ . . . A fair balance must be struck between the interests of the individual and of the community as a whole.130

What this shows is that the test of necessity is sensitive to context, and where in Article 8 and Article 1 of Protocol 1 a balance has to be struck between the individual’s rights and the interests of the community generally, the balance struck need not be the least intrusive, provided that it is fair.131

  Daly (above n 95) paras 27–28 (citations omitted).   Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42. 131   R (on the Application of Clays Lane Housing Co-operative Ltd) v Housing Corporation [2004] EWCA Civ 1658, [2005] 1 WLR 2229; and Lough v First Secretary of State [2004] EWCA Civ 905, [2004] 1 WLR 2557. 129 130

12 Legitimate Expectations I. Introduction

A. The Nature of the Doctrine The doctrine of legitimate expectations is a means by which public bodies may be held to the prior representations.1 The doctrine is very different from the analogous private law concept of estoppels because not all prior representations are irrevocably binding in public law. This is because although there is a strong public interest in holding public officials to their promises, it is also important to preserve administrative freedom to decide matters according to what the current public interest demands. A balance between these competing considerations is struck by holding that a public law legitimate expectation can be defeated, but only if countervailing considerations of public interest so require.

B.  Stages of a Legitimate Expectation Claim Three practical questions arise in any claim based on legitimate expectations: The first question is to what has the public authority, whether by practice or by promise, committed itself; the second is whether the authority has acted or proposes to act unlawfully in relation to its commitment; the third is what the court should do.2

The key stages are therefore: first, the legitimacy of the claimant’s expectation; second, the standard of review that the court uses to determine whether it is unlawful for a public body to resile from its representation; and third, the protection that the court will give to a legitimate expectation that has been unlawfully frustrated.

C.  Procedural versus Substantive Expectations Legitimate expectations can be either procedural or substantive in nature. The term ‘procedural legitimate expectation’ denotes an entitlement to a procedural right – a hearing or an opportunity to be consulted, for instance – which the claimant possesses as a result of a 1   For detailed discussion of the doctrine of legitimate expectations and the related doctrine of substantive fairness, see R Moules, Actions against Public Officials: Legitimate Expectations, Misrepresentations and Misconduct (London, Sweet & Maxwell, 2008) 43–134. 2   R (on the Application of Bibi) v Newham LBC [2001] EWCA Civ 607, [2002] 1 WLR 237, para 19 (Schiemann LJ).

What has the Public Body Committed Itself to?  225 representation made by a public body. By contrast, the term ‘substantive legitimate expectation’ refers to an entitlement to a benefit or commodity, such as a licence or payment of a welfare benefit, which the claimant possesses as a result of a representation made by a public body. Neither form of legitimate expectation is absolute, and the individual’s entitlement may be denied in furtherance of an overriding public interest. Both procedural and substantive legitimate expectations are enforceable, but while the former can be enforced only by ordering the promised procedure to be followed, the latter can be protected either substantively by requiring the expected benefit to be conferred or procedurally by obliging the decision-maker to follow a fair procedure.

II.  What has the Public Body Committed Itself to?

A.  Sources of a Legitimate Expectation According to Lord Fraser in CCSU v Minister for the Civil Service, a legitimate expectation may be created in one of two ways: ‘either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue’.3 The case law shows that legitimate expectations can arise from a wide variety of sources, such as express representations,4 implied representations,5 administrative policies6 and politicians’ statements.7 As explained above in chapter two, there are a large number of international agreements governing environmental matters. However, it is a well-established proposition that unincorporated treaties cannot confer rights; they can be used only to help resolve some ambiguity or uncertainty in English law.8 It is therefore surprising that the courts have suggested that a treaty which has been ratified but not incorporated into domestic law may give rise to a legitimate expectation that the government will act consistently with the treaty.9 The justification for unincorporated treaties giving rise to legitimate expectations was explained by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh: [R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legit­ imate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention.10

  Council of Civil Service Unions (CCSU) v Minister for the Civil Service [1985] AC 374, 401.  Eg, Attorney General for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; and R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213. 5   CCSU (above n 3). 6   R v Secretary of State for the Home Department, ex p Khan [1984] 1 WLR 1337; and R (on the Application of Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755. 7   Although pre-election promises are not enforceable: R v Department of Education and Employment, ex p Begbie [2000] 1 WLR 1115. 8   JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 500 (Lord Oliver). 9   R v Secretary of State for the Home Department, ex p Ahmed [1999] Imm AR 22; R v Uxbridge Magistrates’ Court, ex p Adimi [2001] QB 667, 686 (Simon Brown LJ); Thomas v Baptiste [1999] UKPC 13, [2000] 2 AC 1, paras 34–37 (Lords Browne-Wilkinson, Steyn and Millett) and para 58 (Lords Goff and Hobhouse). 10   Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, para 34 (Mason CJ and Deane J). 3

4

226  Legitimate Expectations In Teoh, a majority of the High Court of Australia held that the International Convention on the Rights of the Child gave rise to a legitimate expectation on the part of a Malaysian man who had entered Australia and married an Australian woman, with whom he had young children, that his residence application would be reviewed in the light of the Convention. It did not matter whether or not the man was au fait with the terms of the unincorporated treaty: [I]t is not necessary that a person seeking to set up such a legitimate expectation should . . . personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.11

The High Court of Australia has since cast doubt on the authority of Teoh,12 and in Canada the Supreme Court has held that ratification of the United Nations Convention on the Rights of the Child did not give rise to any legitimate expectations.13 Two English decisions have tentatively followed Teoh.14 Although on the facts of R v Secretary of State for the Home Department, ex p Ahmed,15 no legitimate expectation arose from the European Convention on Human Rights (ECHR) because policy statements had been lawfully adopted that made clear how immigration officials should take the Convention into account. It has also been held that the Teoh principle will not apply if Parliament chooses to introduce legislation in different terms from the Treaty.16 Despite this limited support for Teoh, it is strongly arguable that an unincorporated treaty cannot give rise to a legitimate expectation. Sales and Clement have offered three compelling reasons for rejecting Teoh: first, ratification of a treaty on the international plane is not intended to operate on the domestic plane – when and how the treaty obligations will be given effect in the United Kingdom is a matter for Parliament.17 Second, if an unincorporated treaty were to give rise to a legitimate expectation, the treaty would be given indirect effect.18 This would give the executive the power to amend the law by ratifying treaties and would be a ‘constitutional solecism’,19 contrary to House of Lords authority.20 Third, state  Ibid, para 34 (Mason CJ and Deane J).   R v Minister for Immigration, ex p Lam (2003) 195 ALR 502. 13   Baker v Minister of Citizenship and Immigration [1999] 2 SCR 817. 14   Ahmed (above n 9); and Adimi (above n 9) (Article 31 of the Refugee Convention 1951). By comparison, the Indian Supreme Court has adopted a much more robust approach, in part because of Article 51(c) of the Indian Constitution, which requires the state ‘to foster respect of international law and treaty obligations in the dealings of organised peoples with one another’. See, eg, People’s Union for Civil Liberties v Union of India [1999] 2 LRC 19, para 13. 15   Above n 9. See also R (on the Application of Zeqiri v Secretary of State for the Home Department [2001] EWCA Civ 342; [2002] Imm. AR 42, [49], per Lord Phillips MR; and R (on the application of Lika) v Secretary of State for the Home Department [2002] EWCA Civ 1855, [26], per Latham LJ. 16   R (on the Application of Pepushi) v Crown Prosecution Service [2004] EWHC 798 (Admin). S 31 of the Immigration and Asylum Act 1999 was narrower than Art 31 of the Refugee Convention 1951. 17   P Sales and J Clement, ‘International Law in Domestic Courts: The Developing Framework’ (2008) 124 Law Quarterly Review 388, 407–13. In R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, 338, Lord Bingham CJ rejected an argument that ratification of the ECHR gave rise to a legitimate expectation because it had been assumed at the time of ratification that there would be no practical effect on English law. The rejection of the legitimate expectation argument was endorsed by the House of Lords (368). 18   Sales and Clement (ibid). 19   R (on the Application of European Roma Rights Centre) v Immigration Officer at Prague Airport [2003] EWCA Civ 666, para 99 (Laws LJ). At para 51 Simon Brown LJ said that the views he had expressed in Adimi were to be regarded as ‘at best superficial’, and his conclusion on legitimate expectations ‘suspect’, partly because they overlooked Chundawadra v IAT [1988] Imm AR 161 (no legitimate expectation that a minister will take the ECHR into account) and Behuli v Secretary of State for the Home Department [1998] Imm AR 407 (Beldam LJ dismissed Teoh as incompatible with R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696). 20   Brind (ibid). 11 12

What has the Public Body Committed Itself to?  227 ments or promises made by one public body cannot create a binding legitimate expectation in relation to another public body, unless the former has actual or ostensible authority.21 The Crown has no actual or ostensible authority to bind other decision-makers when it ratifies treaties; therefore the Teoh approach is incompatible with the English doctrine of legitimate expectations. Accordingly, the Teoh approach should be expunged from English law. As Laws LJ said in R (European Roma Rights Centre) v Immigration Officer at Prague Airport, ‘we must not be seduced by humanitarian claims to a spurious acceptance of a false source of law’.22

B. Clear, Unambiguous and Devoid of Qualification In order to give rise to a legitimate expectation, a representation must be ‘clear unambiguous and devoid of relevant qualification’.23 The House of Lords decision in R (Bancoult) v Foreign Secretary (No 2)24 illustrates how restrictively the courts apply the criterion that the promise must be clear and precise. In 1965 the Chagos Islands in the Indian Ocean were constituted a separate colony, the British Indian Ocean Territory (BIOT), by the British Indian Ocean Territory Order 1965. In 1971 an Immigration Ordinance made by the Commissioner for BIOT, purportedly under the 1965 Order, required the compulsory removal of all inhabitants of the Chagos Islands so that Diego Garcia, the principal island in the archipelago, could become an American military base. In 2000, the Divisional Court quashed that Ordinance because the power in the 1965 Order to make laws for the peace, order and good government of the territory did not extend to the making of an Ordinance to expel the entire population.25 The Foreign Secretary responded by announcing that a study was being undertaken into the feasibility of resettlement and by making a new Immigration Ordinance in 2000, which permitted the return of the Chagossians. He said: I have decided to accept the court’s ruling, and the Government will not be appealing. The work we are doing on the feasibility of resettling the Ilois now takes on a new importance. We started the feasibility work a year ago and are now well underway with phase two of the study. Furthermore, we will put in place a new Immigration Ordinance which will allow the Ilois to return to the outer islands while observing our treaty obligations. The Government has not defended what was done or said 30 years ago.26

In 2002 the feasibility study reported that short-term resettlement was feasible on a subsistence basis, but long-term resettlement would be ‘precarious and costly’. There was no change of government policy until 2004, when two Orders in Council were made removing rights of abode in BIOT. The government had effectively exiled the Chagossians by prerogative Order in Council, having failed to do so by Ordinance. A majority of the House of Lords (Lords Hoffmann, Rodger and Carswell) held that the Secretary of State’s statement was not clear and unambiguous. In particular, it contained no promise as to what would happen in the long term. The minority (Lords Bingham and Mance) held that the promise   Sales and Clement (above n 17).   R (on the Application of European Roma Rights Centre v Immigration Officer at Prague Airport) [2003] EWCA Civ 666, para 100. 23   R v Inland Revenue Commissioners, ex p MFK Underwriters [1990] 1 WLR 1545, 1569 (Bingham LJ). 24   R (on the Application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [2009] 1 AC 453. 25   Bancoult (ibid) [2001] QB 1067, noted [2001] CLJ 234. 26   Ibid, para 17. 21 22

228  Legitimate Expectations was clear and that there was no justification for frustrating the expectation. The minority’s view is more convincing: as Lord Mance, said the press statement’s natural meaning is not that the promise was conditional upon the feasibility study – the statement amounted to ‘an unconditional recognition, coupled with an assurance that this would be given effect, of a legal right to enter and to be present, whether on a temporary or long-term basis’.27

C. Lawful It has been held that in order to be legitimate, an expectation must be consistent with the terms of the statute under which the public body is empowered to act. In the words of Sedley LJ, ‘the law recognises no legitimate expectation that a public authority will act unlawfully’.28 Thus in R v Department of Education and Employment, ex p Begbie,29 the claimant claimed to have a legitimate expectation, based on various letters and public statements, that the Secretary of State would permit her to continue with her assisted school place for the duration of her secondary schooling. However, section 2(2) of the Education Act 1997 provided that an assisted place should cease at the end of the year in which a child completed his or her primary education, unless the Secretary of State was satisfied that it was reasonable to allow the assisted place to continue. The Court of Appeal held that this section plainly envisaged that the discretion would be exercised in exceptional circumstances; yet to implement the promise upon which the claimant relied would be to continue the assisted places to all those children whose assisted places were not expressly saved by the Act; that would be contrary to section 2(2) of the Act, and therefore the claimant’s expectation could not be legitimate.30

D.  Induced by the Decision-Maker In the absence of actual or ostensible authority, it has been held to be ‘wrong in principle’ for a decision-maker to be bound by a legitimate expectation engendered by the representation of another person or body.31 For example, in R (Bloggs 61) v Secretary of State for the Home Department,32 the Court of Appeal held that no legitimate expectation was created by a promise made by the police to the effect that a prisoner would, following his co-operation as a police informer, serve his sentence in a protected witness unit run by the Prison Service.

  Ibid, para 176.   R v Commissioners of Custom and Excise, ex p F&I Services Ltd [2001] EWCA Civ 762, [2001] STC 939, para

27 28

71.   Begbie (above n 7).   Ibid, 1125 (Peter Gibson LJ), 1129 (Laws LJ) and 1132 (Sedley LJ).   R v Secretary of State for the Home Department, ex p Mapere [2001] Imm AR 89, para 36. (The claim of legitimate expectation of entry clearance on arrival in the UK, based on an alleged assurance given by an official at the British High Commission in Harare, failed inter alia because the officials in Zimbabwe could not bind the decision of the immigration officers in the UK.) See also Nahar v Social Security Commissioners [2001] EWHC Admin 1049 [2002] FCR 442 (Munby J), endorsed on appeal: [2002] EWCA Civ 859, [2002] ACD 105. For the position in relation to different government departments binding one another, see R (on the Application of Bapio Action Ltd) v Secretary of State for the Home Department [2008] UKHL 27, [2008] 1 AC 1003. 32   R (on the Application of Bloggs 61) v Secretary of State for the Home Department [2003] EWCA Civ 686, [2003] 1 WLR 2724. 29 30 31

What has the Public Body Committed Itself to?  229

E. Detrimental Reliance Detrimental reliance on the part of the representee is required for a representation to give rise to an estoppel by representation in private law33 and to establish a legitimate expectation under EU law,34 but it is not essential in a claim based on legitimate expectations in domestic law.35 It is submitted that this is correct: detrimental reliance occurs after the creation of an expectation, and it cannot therefore determine the legitimacy of an expectation at the outset. Nevertheless, this does not mean that detriment and reliance are not import­ant. It has been said that the significance of reliance and detriment is factual, not legal,36 because reliance and detriment may provide evidence of the existence or the extent of an expectation and are therefore relevant when considering whether an individual did in fact expect the authority to be bound by its representation. This will be particularly important in cases in which the claimant claims to have an expectation based on the public body’s conduct, rather than an explicit representation. Reliance and detriment also have legal significance because they may be relevant when deciding whether it is fair for the authority to resile from its promise, as Peter Gibson LJ recognised in Begbie when he said: [I]t would be wrong to understate the significance of reliance in domestic legitimate expectation cases, since it is very much the exception, rather than the rule, that detrimental reliance will not be present when the court finds unfairness in the defeating of a legitimate expectation.37

F. Knowledge Recent authority suggests that it possible for a legitimate expectation to be founded upon something that the claimant was ignorant of at the relevant time. In R (Rashid) v Secretary of State for the Home Department,38 the claimant asylum seeker was refused asylum, contrary to the Home Secretary’s settled policy on internal relocation in Iraq. The claimant was unaware of the policy, but the Court of Appeal held that the Home Secretary had breached the claimant’s legitimate expectation ‘that the Secretary of State will apply his policy on asylum to the claim’.39 The claimant’s lack of knowledge of the policy was held not to be ‘relevant’ or material to whether he possessed a legitimate expectation.40

33   See generally P Feltham, D Hochberg and T Leech (eds), Spencer-Bower and Turner: Estoppel by Representation, 4th edn (London, LexisNexis, 2003), ch 5. 34   Milk Marketing Board of England and Wales v Tom Parker Farms Ltd [1998] 2 CMLR 721. 35   Begbie (above n 7) 1124 (Peter Gibson LJ) and 1133 (Sedley LJ); Bibi (above n 2) para 28 (Schiemann LJ); R v Falmouth and Truro Port Helath Authority, ex p South West Water Ltd [2001] QB 445, 459–60; and R (on the Application of Wagstaff) v Secretary of State for Health [2001] 1 WLR 292. There was also no detrimental reliance in Ng Yuen Shiu (above n 4). 36   Bibi (above n 2) para 31 (Schiemann LJ). 37   Begbie (above n 7) 1124, citing with approval H Woolf, J Jowell and A Le Sueur, de Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th edn (London, Sweet & Maxwell, 1995) para 13-030. (See now the 6th edn, para 12-041.) 38   R (on the Application of Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744, [2005] Imm AR 608. See also R v Secretary of State for the Home Department, ex p Ahmed and Patel [1998] INLR 570, 571, where Lord Woolf MR described the reasoning in Teoh as ‘wholly convincing’. 39   Rashid (ibid) para 25 (Pill LJ). 40   Ibid, para 25 (Pill LJ); and see para 47 (Dyson LJ).

230  Legitimate Expectations It is questionable whether the doctrine of legitimate expectations should be used to secure compliance with promulgated policies in these circumstances.41 As Forsyth has argued, it is ‘self-evident and fundamental’ that if someone ‘did not in fact expect anything then, even if others did expect something, that person’s expectation, being non-existent, cannot be protected’.42 It might be said that the claimant in Rashid had a legitimate expectation because on a normative view, everyone is entitled to expect that administrators will apply their policies. But everyone is also entitled to reasonable and non-biased decisions, and it would rob the concept of legitimate expectations of any meaning if it were to be used in this umbrella sense.43 It is submitted that cases such as Rashid, in which the claimant has no knowledge of the general policy or practice that is departed from in his or her case, should be treated as instances of a wider principle of substantive fairness and not under the doctrine of legitimate expectations.44 In cases of individual representations, a legitimate expectation will arise only if the claimant knew of the representation. For example, in R v Secretary of State for the Home Department, ex p Hindley,45 the Secretary of State, without informing her, had reached the provisional conclusion that the appropriate tariff for Myra Hindley would be 30 years. He subsequently revised his view and decided that a whole-life tariff was appropriate. The House of Lords denied that Myra Hindley had a legitimate expectation in these circumstances. Lord Steyn said: Hindley did not know her tariff date until after 1994. She was never given any assurance about her tariff. She was told to make no assumption one way or the other about when she may be released. She had no reasonable basis for any expectation that she would be released at any particular time. There is no scope for applying the doctrine of legitimate expectations.46

III. Has the Public Body Acted Unlawfully?

There are two situations in which it will be lawful for a public authority to resile from a legitimate expectation:47 first, when there are countervailing considerations that justify not giving effect to the legitimate expectation in the public interest; and second, when it would be unlawful for the public authority to give effect to the legitimate expectation.

  See M Elliott, ‘Legitimate Expectations, Consistency and Abuse of Power’ (2005) Judicial Review 281.  CF Forsyth, ‘Wednesbury Protection of Substantive Legitimate Expectations’ (1987) Public Law 375, 375. See also the dissenting judgment of McHugh J in Teoh (1995) 128 ALR 353, para 31, where he said that ‘[i]f the doctrine of legitimate expectations were now extended to matters about which the person affected has no knowledge, the term “expectation” would be a fiction so far as such persons were concerned.’ 43   R v Devon County Council, ex p Baker [1995] 1 All ER 73, 89 (Simon Brown LJ). See also I Steele, ‘Substantive Legitimate Expectations: Striking the Right Balance?’ (2005) 121 Law Quarterly Review 300, 309 n 43. 44   See further Moules (above n 1) para 1.117. 45   R v Secretary of State for the Home Department, ex p Hindley [2001] 1 AC 410. 46   Ibid, 419. 47   Niazi (above n 6) para 30 (Laws LJ). 41 42

Has the Public Body Acted Unlawfully?  231

A. The Three Categories in Coughlan In R v North and East Devon Health Authority, ex p Coughlan,48 the Court of Appeal confirmed that substantive legitimate expectations are protected under English law.49 The claimant was a tetraplegic, doubly incontinent victim of a road accident who was partially paralysed in the respiratory tract and who suffered from recurrent headaches. In 1993, she and seven comparably disabled persons were moved from Newcourt, a hospital that the health authority wished to close, to Mardon House, an National Health Service (NHS) facility for the long-term disabled.50 The Newcourt patients were persuaded to move to Mardon House by representations on behalf of the Health Authority that it was more appropriate to their needs, and they relied in particular on an express assurance that they could live in Mardon House ‘for as long as they chose’. After public consultation, the Health Authority decided to close Mardon House and to transfer the long-term general nursing care of the residents to the local authority, although no alternative placement was identified for the claimant. The claimant challenged this decision as being in breach of her legitimate expectation. The Court of Appeal distinguished between three types of situation: in the first, a public body’s decision to resile from its policy or representation is reviewable only on Wednesbury grounds; in the second situation, the court itself will decide whether it is fair to frustrate a procedural legitimate expectation; and in the third type of situation, the court must decide whether to frustrate a substantive legitimate expectation would be so unfair as to amount to an abuse of power.51 The facts of ex p Coughlan were held to be an example of the third type of situation because of the importance of what was promised; because the promise was limited to a few individuals; and because the consequences to the Health Authority of having to honour its promise were only financial.52 The claimant therefore had a legitimate expectation that the Health Authority would not resile from its promise unless there was an overriding public interest in doing so. In the circumstances, including the fact that no alternative accommodation had been identified for the claimant, the Court of Appeal held that the departure from the promise was so unfair as to amount to an abuse of power.

B.  Variable Intensity Review The Court of Appeal’s classification in ex p Coughlan suggested uniformly high-intensity judicial review because once a case is placed in category three, it is for the court to decide 48   Above n 4. Compare Collins v United Kingdom (2003) 36 EHRR CD6, in which the European Court of Human Rights (ECtHR) held that the closure of a care home despite promises to the contrary was not incompatible with Art 8 ECHR. In particular, the ECtHR held that ‘a statement made in 1990 could not realistically have been expected to guarantee the continued suitability of [the care home] as a placement for the applicant, whether for practical, medical or other reasons.’ 49  The House of Lords has acknowledged the concept in subsequent cases: eg, R v Ministry of Defence, ex p Walker [2000] 1 WLR 806; and R v Secretary of State for the Home Department, ex p Zeqiri [2002] UKHL 3 [2002] Imm AR 296, para 44 (Lord Hoffmann). 50   Mardon House consisted of individual flatlets, which were tailored to the needs of the particular residents. The residents of Newcourt had been involved in discussions about the nature and design of the building and its services. They chose their flatlets and the décor. 51   Ex p Coughlan (above n 4) para 57 (Lord Woolf MR). 52   Ibid, para 60 (Lord Woolf MR).

232  Legitimate Expectations ‘whether the consequent frustration of the individual’s expectation is so unfair as to be a misuse of the authority’s power’.53 However, in Begbie,54 Laws LJ took a more nuanced approach and said that categories one and three in ex p Coughlan (Wednesbury review and review for abuse of power respectively) were not ‘hermetically sealed’.55 In his view, ‘[t]he facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review’: In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policymaker, which they cannot wear . . . In other cases the act or omission complained of may take place on a much smaller scale, with far fewer players. Here, with respect, lies the importance of the fact in the Coughlan case . . . that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.56

Accordingly, the ‘more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision’.57 Conversely, if interests protected under the ECHR are at stake, as in ex p Coughlan, the intensity of review will be much greater.58 Thus, the facts and circumstances of a substantive legitimate expectation claim, together with the statutory context, will dictate the intensity of judicial review and hence the degree of justification required to enable a public body to resile from its promise. In procedural legitimate expectation cases, it is also possible to justify a failure to fulfil the promise. In R (Niazi) v Home Secretary,59 Laws LJ said that public authorities could resile from pro­ cedural legitimate expectations where ‘the want of notice or consultation is justified by . . . [a] countervailing public interest such as the imperative of national security’.60 The classic example of a public authority being permitted to resile from a procedural legitimate expectation is the CCSU case,61 in which the House of Lords held that considerations of national security were sufficient to justify the government’s failure to consult before prohibiting employees at the Government Communication Headquarters from belonging to trade   Ibid, para 82.   Above n 7. 55   Begbie (above n 7) 1130. 56   Ibid, 1130–31. 57   Ibid, 1131. See also Bibi (above n 2) paras 40–43 (Schiemann LJ); R (on the Application of Roberts) v Secretary of State for Communities and Local Government [2008] EWHC 677 (Admin), para 86 (Sullivan J) (regional planning policy held to be at the ‘macro-political’ end of the spectrum); and R (on the application of the British Medical Association) v Secretary of State for Health [2008] EWHC 599 (Admin) (NHS pension scheme raised issues at the ‘macro level’ affecting large sums of money and the interests of taxpayers generally). 58   Although the ECtHR found that the decision to close a care home in breach of a legitimate expectation was proportionate in Collins v United Kingdom (2003) 36 EHRR CD6. 59   Niazi (above n 6). 60   Ibid, para 30. 61   Above n 3. 53 54

Protection of Legitimate Expectations  233 unions. Lesser public interests have also been held to justify departure from a legitimate expectation. For example, in R v The Lord Chancellor, ex p The Law Society,62 the Divisional Court held that urgency, meaning that there was insufficient time to consult, justified a failure to consult in breach of a procedural legitimate expectation.

IV.  Protection of Legitimate Expectations

A.  Procedural Expectations It is uncontroversial that a procedural legitimate expectation should normally be protected by ordering the expected procedure to be followed.63 The courts have been prepared to enforce a wide variety of procedural promises. For example, they have held public bodies to be obliged to consult groups or bodies not ordinarily entitled to be consulted;64 they have required the duration of a statutory consultation to be extended in accordance with legitimate expectations;65 and they have also insisted upon a ballot among tenants,66 a planning inquiry,67 the giving of written reasons,68 a personal interview69 and a meeting with the claimant.70

B.  Substantive Expectations Substantive protection of substantive legitimate expectations impinges on a public body’s discretion to a much greater extent: it constrains the decision that the body is entitled to make rather than merely the procedure that must be followed. As will be seen, this concern has led the courts to develop a number of ways of protecting substantive legitimate expectations that do not require their substantive enforcement. It is clear from ex p Coughlan,71 that a substantive legitimate expectation may be protected substantively – that is to say, by the court requiring the public body to give or permit the continued enjoyment of the benefit that the claimant legitimately expected. Few cases have resulted in substantive enforcement of substantive legitimate expectations. Sometimes, instead of enforcing a substantive promise, a court will protect a substantive expectation by characterising it as a mandatory relevant consideration. For example, in R (Bibi) v London Borough of Newham,72 the defendant council had promised accommodation with security   R v The Lord Chancellor, ex p The Law Society, The Times, 26 June 1993.   Ng Yuen Shiu (above n 4). 64   R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association [1972] 2 QB 299; R v Brent LBC, ex p Gunning (1985) 84 LGR 168; R v Birmingham City Council, ex p Dredger [1993] COD 340; and ex p The Law Society (above n 62). 65   Lambeth LBC v Secretary of State for the Environment [1990] JPL 196; and R v Falmouth and Truro Health Authority, ex p South West Water, The Times, 6 May 1999. 66   R v London Borough of Bexley, ex p Barnehurst Golf Club Ltd [1992] COD 382. 67   Pelham Homes v Secretary of State for the Environment (1995) 69 P & CR 64. 68   R v Home Secretary, ex p Duggan [1994] COD 258. 69   Ng Yuen Shiu (above n 4). 70   ex p Barnehurst Golf Club (above n 66). 71   Above n 4. 72   Above n 2. 62

63

234  Legitimate Expectations of tenure to the claimants, in the erroneous belief that it was under a statutory duty to provide such housing. This meant that the claimants had a legitimate expectation of accommodation with security of tenure, but so too did other people promised security of tenure and people at the top of the council’s housing list. The council simply did not possess enough housing for them all. The Court of Appeal emphasised the constitutional limits of its power to grant substantive relief in such circumstances: The court has two functions – assessing the legality of actions by administrators and, if it finds unlawfulness on the administrators’ part, deciding what relief it should give. It is in our judgment a mistake to isolate from the rest of administrative law cases those which turn on representations made by authorities. The same constitutional principles apply to the exercise by the court of each of these two functions. The court, even where it finds that the applicant has a legitimate expectation of some benefit, will not order the authority to honour its promise where to do so would be to assume the powers of the executive. Once the court has established such an abuse it may ask the decision taker to take the legitimate expectation properly into account in the decision making process. Only part of the relevant material upon consideration of which any decision must be made is before the court. Because of the need to bear in mind more than the interests of the individual before the court, relevant facts are always changing . . . While in some cases there can be only one lawful ultimate answer to the question whether the authority should honour its promise, at any rate in cases involving a legitimate expectation of a substantive benefit, this will not invariably be the case.73

The provision of housing at public expense was held to involve invidious social and political value judgments, which were for politicians rather than judges to make.74 Nevertheless, such decisions had to be made in the light of the legitimate expectations generated by the council, and the Court of Appeal held that it would be an abuse of power for a public authority to make a decision or adopt a course of action at variance with an earlier promise without considering the fact that would be frustrating a legitimate expectation.75 Since the council had failed to consider the promises it had made, its decision was unlawful and was quashed; and the Court declared that the council was under a duty to consider the claimants’ application for housing in the light of their legitimate expectation.76 This approach has been followed in a number of substantive legitimate expectation cases.77

V.  Environmental Cases

Very few substantive legitimate expectation claims lead to substantive protection of the expectations. This explains why in the environmental context it is largely the doctrine of   Bibi (above n 2) paras 40–43.   Ibid, para 64. 75   Ibid, paras 39 and 49–51. Although it used the expression ‘abuse of power’, the Court of Appeal’s analysis is based on the notion that it is an error of law for a public body to fail to have regard to a legitimate expectation that it has engendered. 76   Ibid, para 67. 77   See, eg, R (on the Application of Bodimeade) v Camden London Borough Council [2001] EWHC Admin 271, (2001) 4 CCLR 246, para 32; R (on the Application of Ibrahim) v Redbridge London Borough Council [2002] EWHC 2756 (Admin) (the requirement to consider and give weight to a legitimate expectation was held to have been satisfied in circumstances where, in considering various requests for housing, the council had assigned extra points to an individual in the light of his legitimate expectation); and R (on the Application of Theophilus) v Lewisham London Borough Council [2002] EWHC 1371 (Admin), [2002] 3 All ER 851. 73 74

Environmental Cases  235 procedural legitimate expectations that has been invoked by claimants. In particular, claimants have sought to invoke legitimate expectations that they will be consulted before decisions affecting the environment are taken. The leading example of this sort of claim is the decision of Sullivan J in R (Greenpeace) v Secretary of State for Trade and Industry.78 In 2003 the government issued a White Paper on the future of energy production in the United Kingdom. That White Paper indicated that the government was not minded to support new nuclear energy programs, and prior to any decision to proceed with the building of new nuclear power stations there would be the ‘fullest public consultation’ and a further White Paper on the proposals. In 2006 the government issued a consultation paper seeking views on the medium- and long-term energy policy in the United Kingdom, including the use of nuclear power. The 2006 consultation paper was subject to a 12-week period of consultation. Following the consultation, the government published an energy review report, which supported the building of new nuclear power stations as part of the United Kingdom’s future energy supply. The claimants contended that this decision breached their legitimate expectation that there would be the fullest public consultation before a final decision was reached on the future role of nuclear energy. In particular, they contended that the 2006 paper merely sought consultees’ views on the issues to be addressed and had not sought comments about the desirability of new nuclear power stations. Sullivan J accepted that the 2003 White Paper created a procedural legitimate expectation on the part of the whole adult population of the United Kingdom that there would be the fullest public consultation before a decision was taken whether to support new nuclear power stations.79 He held that this promise had been breached because the 2006 consultation paper gave every appearance of being an issues paper that was to be followed later by a consultation containing proposals on the future of nuclear power. As such, the 2006 consultation was manifestly inadequate as a consultation paper on an issue of the importance and complexity as the future of nuclear power. Some of the organisations that responded to the consultation in 2006 were cynical of the process and suspected that the government intended to announce support for new nuclear energy production. They therefore responded by making vigorous representations against new nuclear reactors. Sullivan J held that the fact that many organisations had made submissions on the main issue of principle did not cure breach of the legitimate expectation because the promise of full public consultation extended to the whole adult population of the United Kingdom. He concluded that it was not enough that those who were sceptical about the consultation process should have seen the outcome (namely a decision on the principle of new nuclear build); the outcome should have been, but was not, reasonably foreseeable by any interested organisation or member of the public who took the 2006 consultation document at face value.80

78   R (on the Application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin), [2007] Env LR 29. 79   Ibid, para 88. 80  Ibid.

13 Procedural Fairness I: Fair Hearings I. Introduction

This chapter is concerned with the grounds for judicial review that relate to the procedure applied by an environmental decision-maker. The common law requirements of natural justice or procedural fairness are often given the Latin tag audi alteram partem (hear both sides), but as will be seen, in the environmental context, procedural fairness extends beyond giving an affected person prior notice and an effective opportunity to make representations before a decision is made. In environmental decision-making, there is much greater emphasis on public consultation and participation, as well as the giving of reasons. This enhanced procedural protection is vitally important given the limited opportunities for substantive review of environmental decisions and the degree of deference shown to expert environmental decision-makers. The structure of this chapter is as follows: first, the nature of the common law rules on natural justice are explained, together with the situations in which the rules are applicable; second, particular consideration is given to the procedural requirement of full and fair consultation; third, the rules governing the conduct of a fair hearing are analysed; and finally, the chapter explores the circumstances in which reasons are required and the principles that apply to judging the adequacy of the reasons furnished by a decision-maker. In any case concerning the rules of natural justice or fairness the following issues arise: i) Do the rules of natural justice or fairness apply to the decision-making process in question? ii) If so, what is their content in the particular situation? iii) On the facts, have the relevant procedural requirements been fulfilled? iv) If not, should a remedy be granted?

A.  When Does a Right to a Fair Hearing Arise? Issues of procedural fairness and natural justice commonly arise in the context of ordinary civil and criminal proceedings. The common law requirements of procedural fairness are to a considerable degree influenced by the traditional model of adversarial litigation. This presents problems when one moves further away from that paradigm into the context of administrative decision-making by an expert or accountable body in furtherance of policy objectives. During the early part of the twentieth century, the approach of the courts was to deny that the requirements of natural justice extended beyond those exercising judicial or

Introduction  237 quasi-judicial functions. Administrative decision-makers were therefore not required to abide by the common law rules on fairness. This narrow approach to the application of the rules of procedural fairness was famously repudiated by the House of Lords decision in Ridge v Baldwin.1 Lord Hodson stated: The answer in a given case [as to whether audi alteram partem applies or not] is not provided by the statement that the giver of the decision is acting in an executive or administrative capacity as if that was the antithesis of a judicial capacity. The cases seem to me to show that persons acting in a capacity which is not on the face of it judicial but rather executive or administrative have been held by the courts to be subject to the principles of natural justice.2

This decision broadened the range of situations in which a requirement to act fairly would be imposed by the common law. It established that such a requirement would be imposed where there was a good reason, taking into account the effect of a decision on the interests of the person concerned and the wider context of the decision. The fact that the decision was administrative in nature was accordingly no longer an absolute bar to the applicability of the rules of natural justice. Blake J set out the modern position in R (Bristol-Myers Squibb Pharmaceuticals) v National Institute for Health and Clinical Excellence: Public law has long moved on from the proposition that only those with either proprietary or human rights that are being interfered with by a public authority are entitled to procedural fairness. Fairness is now a requirement in every area of public law functioning where serious consequences result to individuals irrespective of how those serious consequences can be categorised. The direction of travel and the present reach of the destination is illustrated in the case law concerning the duty to act fairly in the grant of naturalisation to an alien, once considered the most supreme form of exercise of the prerogative discretion whereby Parliament had long provided that no reasons were required to be given. Now the Court of Appeal has confirmed that even where national security grounds are relied upon, an appropriate degree of fairness is required.3

Given the wide variety of decision-making contexts, the Privy Council has held that ‘[o]utside the well-known classes of cases, no general rule can be laid down as to the application of the general [audi alteram partem] principle in addition to the language of the provision’.4 All the Board felt able to do was to identify the considerations that should be borne in mind when deciding whether a decision-maker ought to be subject to common law procedural standards. Those considerations were: the nature of the property or office held, status enjoyed or services to be performed by the complainant of injustice; the circumstances in which the decision-maker is entitled to intervene; and, when a right to intervene is established, what sanctions can be imposed.5 It is also clear that procedural protection is not limited to those whose legal rights are affected. In Breen v Amalgamated Engineering Union, Lord Denning explained: It all depends on what is fair in the circumstances. If a man seeks a privilege to which he has no particular claim – such as an appointment to some post or other – then he can be turned away without a word. He need not be heard. No explanation need be given . . . But if he is a man whose   Ridge v Baldwin [1964] AC 40.   Ibid, 130. 3   R (on the Application of Bristol-Myers Squibb Pharmaceuticals Ltd) v National Institute for Health and Clinical Excellence [2009] EWHC 2722 (Admin), [2010] CMLR 31, para 51 (citations omitted). 4   Durayappah v Fernando [1967] 2 AC 337, 349 (Lord Upjohn). 5  Ibid. 1 2

238  Procedural Fairness I: Fair Hearings property is at stake or who is being deprived of his livelihood, then reasons should be given why he is being turned down, and he should be given a chance to be heard. I go further. If he is a man who has some right or interest, or some legitimate expectation, of which it would not be fair to deprive him without a hearing, or reasons given, then these should be afforded him, according as the case may demand.6

Further useful guidance was provided by Megarry VC in McInnes v Onslow-Fane.7 In that case the issue was whether procedural standards should be imposed on the British Boxing Board of Control, a voluntary self-regulatory organisation, when granting or refusing a boxing manager’s licence. Megarry VC distinguished between three categories of case: first, there are forfeiture cases, in which the decision takes away some existing rights or position, as when a member of an organisation is expelled or a license is revoked; second, at the other end of the spectrum there are application cases, in which the decision merely refuses to grant the applicant the right sought; third, there are expectation cases, which differ from application cases in that the applicant has some legitimate expectation from what has already happened that the application will be granted, as when an existing licence-holder applies for renewal of his licence. His Lordship held that in forfeiture cases, the right to notice, a hearing and an unbiased tribunal were ‘plainly apt’.8 By contrast, in application cases the issue was normally one of the applicant’s general suitability rather than of charges to be answered by the applicant, and so the rules of natural justice did not apply. He held that expectation cases might ‘at least in some respects be regarded as more akin to the forfeiture cases than the application cases’.9 This tripartite categorisation of cases is another useful guide as to the applicability of the rules of natural justice, but it is not exhaustive; nor is it to be applied rigidly. Thus, in R (Khatun) v Newham LBC,10 Laws LJ regarded the distinction between forfeiture and application cases as in general possessing much force, while not being hard and fast. For example, he noted that ‘there may be cases where refusal of the application (for example, the refusal of a passport) will carry adverse implications for other rights or interests which the applicant may expect to enjoy’.11 Although the courts are now much more willing to accept that decision-makers are bound by the rules of natural justice, they have made clear that the duty to act fairly is a context-sensitive duty. In other words, as explained below, the content rather than the scope of the duty to act fairly is regarded as the principal controlling device. One consequence of the court developing a flexible principle of procedural fairness is that the old classification of decisions as being judicial, quasi-judicial or administrative is not wholly irrelevant. Instead of being seen as rigid classifications that govern the application of standards of procedural fairness, these terms are best seen as being points on a spectrum of procedural fairness. In other words, characterisation of a decision as judicial, quasi-judicial or administrative is a helpful but not determinative guide to the content of the procedural standards that ought to be imposed by the courts.

  Breen v Amalgamated Engineering Union [1971] 2 QB 175, 191.   McInnes v Onslow-Fane[1978] 1 WLR 1520. 8   Ibid, 1529. 9  Ibid. 10   R (on the Application of Khatun) v Newham London Borough Council [2004] EWCA Civ 55, [2005] QB 37. 11   Ibid, para 31. 6 7

Introduction  239

B. Natural Justice and the Duty to Act Fairly This area of law is confused by the profusion of terminology used to describe the common law requirements of fairness. The cases concerning courts and the disciplinary bodies traditionally spoke of the rules of natural justice, whereas in the administrative context the courts have tended to use the language of fairness. This confusion is worsened by case law suggesting that the requirements of natural justice and the duty to act fairly are different concepts and impose different requirements on decision-makers. This is exemplified by the Divisional Court decision in Re HK (An Infant).12 Lord Parker was unaware that Nakkuda Ali v Jayaratne13 had been disapproved in Ridge v Baldwin and treated the former case as authoritative. He held that immigration authorities had not been acting ‘quasi-judicially’ and therefore mistakenly found that there was no duty to comply with the rules of natural justice; but he added: [E]ven if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.14

This dictum therefore appears to suggest that the duty to act fairly is something that applies where a decision-maker is not subject to the rules of natural justice. The better view is, however, that of Megarry VC in McInnes v Onslow-Fane,15 according to which the distinction between natural justice and the duty to act fairly is semantic rather than substantive. In the judicial context, the language of justice is apt, whereas in the administrative context procedural requirements are better described as being concerned with fairness: I do not think that much help is to be obtained from discussing whether ‘natural justice’ or ‘fairness’ is the more appropriate term. If one accepts that ‘natural justice’ is a flexible term which imposes different requirements in different cases, it is capable of applying appropriately to the whole range of situations indicated by terms such as ‘judicial,’ ‘quasi-judicial’ and ‘administrative.’ Nevertheless, the further the situation is away from anything that resembles a judicial or quasijudicial situation, and the further the question is removed from what may reasonably be called a justiciable question, the more appropriate it is to reject an expression which includes the word ‘justice’ and to use instead terms such as ‘fairness’ or ‘the duty to act fairly’ . . . 16

C. Content The starting point when considering the scope of the rules of natural justice is that they can apply even where a decision-making process is already regulated by a legislative code that contains procedural standards. As Lord Bridge explained in Lloyd v MacMahon, if ‘the courts will not only require the procedure prescribed by the statute to be followed, but   Re HK (An Infant) [1967] 2 QB 617.   Nakkuda Ali v Jayaratne [1951] AC 66. 14   Re HK (above n 12) 630. 15   [1978] 1 WLR 1520. 16   Ibid, 1530. 12 13

240  Procedural Fairness I: Fair Hearings will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness’.17 The fundamental principle is that what exactly procedural fairness requires in any particular case will very much depend on the circumstances. The rules of natural justice are therefore flexible and apply in a context-specific manner. In Lloyd v McMahon, Lord Bridge held: My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates.18

It has even been said that application of these flexible ‘rules’ of natural justice requires an intuitive judgement to be made on the part of courts. In R v Secretary of State for the Home Department, ex p Doody, Lord Mustill said: What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.19

What this means is that it is necessary in each case to consider the rights or interests affected by the decision, the statutory context and the consequences of the decision for the claimant. Furthermore, as explained above in chapter one, the application of the rules of natural justice is also influenced by considerations of political theory – in particular whether one takes a dignitarian, non-instrumental rationale as the justification for procedural fairness or whether one regards procedural propriety as an instrumental good designed to achieve accurate outcomes. Given the context-sensitive nature of the rules of natural justice, it would serve little purpose to describe cases on procedural fairness from a wide variety of statutory contexts having nothing to do with the environment. Instead, the remainder of this chapter seeks to illustrate how the general principles of natural justice are applied in environmental judicial review cases. It will be shown that the broad concept of public participation in environmental   Lloyd v McMahon [1987] AC 625, 703.   Ibid, 702.   R v SSHD, ex p Doody [1994] 1 AC 531, 560.

17 18 19

Consultation  241 decision-making is responsible for the courts requiring a high degree of procedural fairness in environmental cases. In particular, the obligations to consult and to give reasons in the environmental context are well developed and are considerably more extensive than the obligations imposed in many other administrative law contexts.

II. Consultation

Environmental cases have been at the forefront of developing the law on the right to be consulted. This is because, as discussed above in chapter two, modern thinking about environmental problems recognises the instrumental and non-instrumental benefits of public participation in environmental decision-making and seeks to maximise the opportunities for public consultation. The high importance attached to public participation is captured by Lord Hoffmann’s comment in Berkeley v Secretary of State for the Environment that: The directly enforceable right of the citizen which is accorded by the [the EIA Directive]20 is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues.21

Consultation requirements are important not merely because of their procedural impact; they can also play an important role in shaping substantive environmental law. For example, the high importance attached to public participation and consultation as part of the environmental impact assessment (EIA) process is a significant constraint on the grant of retrospective planning permission. In Ardagh Glass v Chester City Council and Ellesmere Port Authority,22 Quinn Glass had constructed the largest glass container factory in Europe without obtaining planning permission.23 HHJ Mole described this as a gamble and as being against the spirit of the EIA regime,24 but he rightly noted that English planning law does not make development without planning consent an offence in and of itself. Rather, development in breach of planning control may be the subject of an enforcement notice requiring demolition of the unlawful development. It is breach of the enforcement notice that amounts to a criminal offence rather than the failure to obtain planning permission.25 Not only does the English planning regime not criminalise development without planning permission per se, it also allows for the grant of retrospective planning permission.26 The claimant in Ardagh Glass was a rival company, which argued that the EIA Directive required that any environmental impact assessment had to be conducted before a planning consent was given. It argued that the principles of prior public consultation and the 20  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment. 21   Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 615. 22   Ardagh Glass Ltd v Chester City Council [2009] EWHC 745 (Admin), upheld on appeal [2010] EWCA Civ 172, [2010] Env LR 32. 23  The original planning application had been successfully challenged by a rival company (Rockware) ([2005] EWHC 2250 (Admin)), and Quinn had proceeded with the building works before the decision on the revised planning application had been made. 24   Ardagh Glass (above n 22) para 98. 25   Ibid, para 80. 26   Ibid, para 101.

242  Procedural Fairness I: Fair Hearings assessment of the environmental impact of proposed development were incompatible with the grant of retrospective permission for development already completed. Some support for the submission was given by the European Court of Justice (ECJ) decision in Commission v Ireland,27 which on one reading appeared to suggest that a remedial environmental assessment carried out after a project had been developed was not equivalent to an assessment as required by the Directive. HHJ Mole rejected such an absolute interpretation of the EIA Directive and held that the ECJ in Commission v Ireland had not been ruling out post-remedial environmental impact assessment. Instead, the ECJ had been making the point that any such assessment must be as complete and rigorous as an assessment undertaken before development was carried out – a partial assessment dealing only with the development as completed would not suffice. The objective was to prevent developers from gaining any advantage by proceeding without planning permission and carrying out environmental impact assessments at a later date. Nevertheless, it was clear from the ECJ judgment that routine application of the power to grant retrospective planning permission would undermine the EIA Directive’s objectives. The public’s right to be consulted in advance of any decision on planning permission was recognised to be an extremely important right that should not be lightly bypassed. Therefore, to protect the public’s rights and in order that developers should gain no advantage by pre-emptive development, HHJ Mole emphasised that pre-emptive development should be permitted only ‘in exceptional circumstances’.28 He recognised the public consultation in those exceptional cases would be more difficult to achieve given that the development was already built, but he concluded that ‘although the task of ensuring that the public’s voice is properly and fairly heard may be harder, it is not impossible and it is not beyond the reach of a fair-minded decision-maker’.29

A.  Sources of a Duty to Consult Consultation can benefit both decision-makers and members of the public. Consultation can lead to the decision-maker acquiring new information and a better understanding of the impact of its proposals. It is also an important aspect of democracy, enabling those affected by decisions to have some influence on the outcome. Nevertheless, although many would regard consultation as good administrative practice, this does not mean that it is a legal requirement. As Dillon LJ explained in R v Devon CC, ex p Baker, ‘judicial review is not granted for a mere failure to follow best practice’.30 If a claimant wishes to complain about the lack of consultation, he or she must first point to a legal obligation to consult on the part of the decision-maker. In English law there is currently no general duty to consult.31 Specific duties to consult may, however, arise from three different sources: legislation, common law or legitimate expectation.32 In addition to these sources, much consultation undertaken by central  Case C-215/06 Commission v Ireland [2008] ECR I-4911.   Ardagh Glass (above n 22) para 98. 29  Ibid. 30   R v Devon CC, ex p Baker [1995] 1 All ER 73, 85. 31   R (on the Application of BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139 (no general duty to consult before making delegated legislation). 32   It has been held that in the absence of a legitimate expectation, the fact that the statute lists those whom a Minister must consult before making his decision militates strongly against the idea that there should coexist a 27 28

Consultation  243 government is voluntary, albeit carried out pursuant to a Code of Practice on Written Consultation, containing criteria that are generally treated as binding upon government departments and agencies.33 Whether or not consultation is a legal requirement, if it is embarked upon it must be carried out properly.34 The duty to consult is, like the other rules of procedural fairness, a flexible one. Therefore the content of the duty to consult will vary according to the statutory context and the circumstances of the case. Nevertheless, the same broad principles apply whether the duty to consult arises from statute or from the common law.35

B. The Nature of Consultation The basic common law principles on consultation are often known as the ‘Sedley requirements’, owing to the fact that the list has been taken from the submissions of Stephen Sedley QC in R v Brent London Borough Council, ex p Gunning.36 The principles are: 1) Consultation must be at a time when proposals are still at a formative stage.37 2) The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. 3) Adequate time must be given for consideration and response. 4) The product of the consultation must be conscientiously taken into account in finalising any proposals. Although these four requirements do not expressly mention the language of fairness, subsequent cases have confirmed that the overriding need is for the consultation process to be a fair one.38

C.  When Should Consultation Commence? Consultation must occur at a time when the decision-maker’s proposals are still at a formative stage. In R (Sardar) v Watford Borough Council,39 Wilkie J distinguished between two scenarios. The first was consultation at a stage where the decision-maker has identified a number of possible options or has identified a preferred opinion. Consultation at this stage would be lawful because no course of action has actually been decided upon. The second common law duty to consult more widely: R (on the Application of Hillingdon LBC) v Lord Chancellor [2008] EWHC 2683 (Admin), para 38 (Dyson LJ). On legitimate expectations, see above ch 12. 33   HM Government, Code of Practice on Consultation (July 2008), http://www.bis.gov.uk/‌files/‌file47158.pdf. 34   R v North East Devon Health Authority, ex p Coughlan [2001] QB 213, para 108. 35   R (on the Application of the Partingdale Land Residents’ Association) v Barnet London Borough Council [2003] EWHC 947 (Admin), para 45. 36   R v Brent LBC, ex p Gunning (1985) 84 LGR 168. 37   R v London Borough of Barnet, ex p B [1994] ELR 357, 370H–371A (Auld J); R (on the Application of Sardar) v Watford Borough Council [2006] EWHC 1590, paras 19 and 33; and Barwick and Rusz v Bridgend County Borough Council [2009] EWHC 1723 (Admin). 38   R (on the Application of Medway) v Secretary of State for Transport [2002] EWHC (Admin) 2516, para 28 (Maurice Kay J); R (on the Application of Edwards) v Environment Agency [2006] EWCA Civ 877, paras 90–94 and 102–6; R (on the Application of Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311, [2007] Env LR 29, para 61; and R (on the Application of London Borough of Hillingdon) v Secretary of State for Transport [2010] EWHC 626 (Admin); R (on the application of Baird) v Environment Agency [2011] EWHC 939. 39   R (on the Application of Sardar) v Watford Borough Council [2006] EWHC 1590 (Admin), para 29.

244  Procedural Fairness I: Fair Hearings scenario was consultation where the decision-maker has already made a decision in principle to adopt a particular decision and thereafter is concerned only with the timing and implementation and other matters of detail. He held that although consultation on the timing and manner of implementation of a decision may be proper and lawful in itself, it would not amount to a lawful consultation upon the question of principle because the question of principle would have been decided and no longer be at the formative stage. It would be impracticable and costly if decision-makers were required to consult on all possible options that had been raised or considered by them. Thus, Simon Brown LJ explained in R v Worcestershire Health Authority, ex p Kidderminster and District Community Health Council that the requirement to consult at a formative stage does not require a decision-maker ‘to consult on all possible options merely because at some point they were developed, crystallised, canvassed or considered’.40

D. The Scope of Consultation Subject to any statutory requirements, a decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out.41 Accordingly, it is for the decision-maker to decide the scope of a consultation exercise, subject to Wednesbury review. This makes it difficult for claimant to challenge the scope of a consultation exercise. One rare example of a successful challenge is R (Medway Council) v Secretary of State for Transport, Local Government and the Regions,42 in which the claimant successfully challenged the failure of the Secretary of State to include the possible expansion of Gatwick Airport in a consultation on the future of air transport in the United Kingdom. Maurice Kay J held that the decision was irrational because: (i) one of the reasons for the exclusion of Gatwick was that it could not be made a hub airport within the appropriate timeframe, yet the consultation document made it clear that there was no decision to promote a hub airport; (ii) it was premature to exclude the Gatwick option at the consultation stage, since the aim of the consultation period was to refine various assumptions; and (iii) the conservation and environmental importance of the proposed alternative site in Kent meant that there was an obligation imposed on the local planning authority by Regulations 48 and 49 of the Conservation (Natural Habitats, etc) Regulations 1994 to consider any reasonable alternatives, which would include Gatwick.

E.  What Information Should Be Provided to Enable Fair Consultation? Guidance as to the degree of information that must be provided by the consultor was given by Webster J in R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities.43 In his view, the consultees should be given 40   R v Worcestershire Health Authority, ex p Kidderminster and District Community Health Council, 28 May 1999, unreported. See also National Association of Health Stores v Secretary of State for Health [2003] EWHC 3133, para 83 (Crane J); and R (on the Application of Enfield Borough Council) v Secretary of State for Health [2009] EWHC 743 (Admin) para 17. 41   Greenpeace (above n 38) para 62. 42   R (on the Application of Medway Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin), [2003] JPL 583. 43   R v Secretary of State for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1.

Consultation  245 . . . sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the [consultor] might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer.44

In other words, as Sullivan J put it in R (Greenpeace) v Secretary of State for Trade and Industry,45 the information supplied must be sufficiently clear to enable an intelligent response. It is, however, important to bear in mind that the obligations of disclosure required in civil litigation do not apply to a consultation exercise. In R v North East Devon Health Authority, ex p Coughlan,46 the defendant health authority had sought and considered a report by a doctor on the opinions of local clinicians, which was received well after the consultation period had ended. The court rejected the claimant’s complaint that the authority had acted unfairly in considering the report, and Woolf J emphasised: It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter no in clear terms what the proposal is and exactly why is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite hopeless, goes no further than this.47

In the same case, the authority had failed to disclose a paper on ethical decision-making, but this did not vitiate the consultation process because the paper was not part of the authority’s proposal; nor was it necessary to explain the proposal.48 By the time a proposal goes to consultation, objections may well already have been stated by interested parties. However, in R (Beale) v London Borough of Camden, Munby J held that the requirements of a fair consultation did not oblige ‘sufficient information to be given about any objections to the proposals to enable those consulted to give intelligent consideration and an intelligent response to the objections’.49

F. The Duration of the Consultation Exercise It is rare for there to be any statutory time limit for a consultation, and the common law does not impose a minimum time limit. Fairness does, however, require an adequate time for consultees to respond. What is an adequate time will obviously depend upon the facts of the case. There are several educational cases in which ludicrously short consultation periods of less than a week were held to be inadequate.50 In the environmental context, inadequate time was held to have been given for consultation in R (Amvac Chemical) v Secretary of State for the Environment, Food and Rural Affairs.51 In Amvac, the decision to   Ibid, 4.   Greenpeace (above n 38) para 116.   Above n 34. 47   Coughlan (above n 34) para 112. 48   Ibid, para 115. 49   R (on the Application of Beale) v London Borough of Camden [2004] EWHC 6 (Admin) para 19 (emphasis in original). 50   Lee v Secretary of State for Education and Science (1967) 111 Sol Jo 756; and R v Secretary of State for Education and Employment, ex p National Union of Teachers [2000] Ed CR 603. 51   R (on the application of Amvac Chemical UK Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2001] EWHC Admin 1011. 44 45 46

246  Procedural Fairness I: Fair Hearings suspend regulatory approvals for dichlorvos, a chemical used in pesticides, had been taken after giving the claimant only seven days to comment. Crane J held that, notwithstanding the urgency required, this period was too short.

G. Consideration of Consultation Responses A decision-maker must give careful consideration to the representations made during a consultation process. This does not mean that the decision-maker is obliged to follow the representations made, but conscientious consideration must be given to them.52 This obligation does not preclude a decision-maker determining in advance the course of action he or she will take if unpersuaded by the representations received.53

H. Re-Consultation Because the principles of consultation are based on the overriding requirement of fairness, it may be that fairness demands that new material which has not been available during the consultation period should be made available to consultees so that they have an opportun­ ity to deal with it before a decision is taken.54 Whether fairness requires re-consultation in the light of new material will depend upon the particular circumstances of the case.55 Thus, in R (Edwards) v Environment Agency, Auld LJ held: In general, in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not, for the reasons given by Lord Diplock in Bushell, require a decision-maker to disclose its own thought processes for criticism before reaching its decision. However, if, as in United States Tobacco . . . and in Interbrew . . . a decision-maker, in the course of decision-making, becomes aware of some internal material or a factor of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it. See also the remarks of Schiemann J in R v Shropshire Health Authority, Ex p Duffus as to the changing scene that a consultation process may engender and the consideration by Silber J in R (on the Application of Smith) v East Kent Hospital NHS Trust of the possible need, depending on the circumstances, for further consultation on matters and issues that the initial consultation may have thrown up.56

Re-consultation may also be required if the decision-maker decides to amend its original proposals. A careful balance needs to be struck in this context: members of the public must be given a fair opportunity to comment on the option ultimately taken forward, but as Schiemann J pointed out in R v Shropshire Health Authority, ex p Duffus,57 if the courts are too liberal in their use of the power to require re-consultation, there is a danger that the process will inhibit change, either because the consultor will be disinclined to make amendments to its proposals or because the consultation process will drag on interminably. The

52   Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496; R (on the Application of Morris) v Newport City Council [2009] EWHC 3051 (Admin) paras 30–31 and 37–38 (Beatson J). 53   R v Hillingdon Health Authority, ex p Goodwin [1984] ICR 800. 54   Greenpeace (above n 38) para 61 (Sullivan J). 55  Ibid. 56   Edwards (above n 38) para 103 (citations omitted). 57   R v Shropshire Health Authority, ex p Duffus [1990] 1 Med LR 119, [1990] COD 131.

Consultation  247 courts have therefore held that re-consultation will be necessary only if the proposals have been amended so fundamentally as to make them fresh proposals.58

I.  Failures in the Consultation Process In Greenpeace, Sullivan J held that ‘a consultation exercise which is flawed in one, or even in a number of respects, is not necessarily so procedurally unfair as to be unlawful’.59 He recognised that with the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. This was, however, ‘most emphatically not the test’.60 As he explained, decision-makers usually have broad discretion as to how a consultation exercise should be carried out, especially where, as in Greenpeace, the consultation exercise is a wide one covering the whole of the adult population of the United Kingdom. This means that claimants face a high hurdle when seeking to demonstrate that a consultation exercise is being carried out unlawfully: In reality, a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the court, not merely that something went wrong, but that something went ‘clearly and radically’ wrong.61

J. Consequences of Failures to Consult A failure properly to consult in principle renders a decision ultra vires and a nullity, but in practice the courts retain discretion whether to grant relief. A good example of the exercise of that discretion is provided by the case of R (Edwards) v Environment Agency (No 2),62 in which the Court of Appeal took the pragmatic approach of refusing to quash a decision and order consultation because the data upon which the claimant wished to be consulted was out of date by the time of the judicial review hearing. In Edwards (No 2), the Environment Agency had granted a permit to a cement plant in Rugby, allowing it to burn tyres as a form of substitute fuel. The claimants contended that the Environment Agency should have carried out a consultation to determine whether the burning of tyres would create significant pollution contrary to the Pollution Prevention and Control (England and Wales) Regulations 1999. In particular, they alleged that the public had a right to make representations on two reports by the Air Quality Monitoring Assessment (AQMA) Unit, which had been commissioned by the Agency but had not been made available to the public. Those reports indicated that environmental quality standards in Rugby might be breached if the permission was granted but that this was unlikely to occur. The Court of Appeal held that the failure to publish the report was procedurally unfair.63 However, at the time of the hearing, two reports had been produced by the AQMA Unit on the actual emissions from the cement plant, which concluded that the environmental 58   Legg v ILEA [1972] 1 WLR 1245; Re Westminster City Council [1986] AC 668; R (on the Application of Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin), (2003) 6 CCL Rep 251; and R (on the Application of London Borough of Wandsworth) v Secretary of State for Transport [2005] EWHC 20 (Admin). 59   Greenpeace (above n 38) para 62. 60  Ibid. 61   Ibid, para 63. 62   R (on the application of Edwards) v Environment Agency (No 2) [2008] UKHL 22, [2008] 1 WLR 1587. 63   Edwards (No 2) [2006] EWCA Civ 877.

248  Procedural Fairness I: Fair Hearings quality standards had not been exceeded. The Court of Appeal therefore refused to grant a remedy on the basis that ‘it would be pointless to quash the permit simply to enable the public to be consulted on out-of-date data’.64 The House of Lords upheld this decision, noting that ‘the relevance of the [initially unpublished] AQMAU reports has been completely overtaken by events’.65

III. Conduct of Hearings

A.  Prior Notice Detailed statutory requirements on the giving of notice apply in many environmental contexts, but even in the absence of a statutory right to notice, the rules of natural justice require that individuals be given adequate notice of an adverse decision in order that they may defend themselves or otherwise protect their interests. Thus in R v Magistrates’ Court, ex p Polemis,66 the decision of the magistrates’ court convicting the defendant ship captain of certain pollution offences was quashed because he had been given notice only at 10:30 am of a hearing at 4 pm the same day.

B. Oral or Written Representations The rules of natural justice do not necessarily require an oral hearing. The leading case is Lloyd v McMahon,67 in which the auditor of a local authority’s accounts certified that a loss had been incurred through the wilful misconduct of members of the authority in delaying to set a rate. The auditor had offered the councillors an opportunity to make written representations, but they contended that a breach natural justice had occurred because they had not been granted an oral hearing. Lord Keith held that there could be cases in which ‘an oral hearing would clearly be essential in the interests of fairness’.68 For example, if an objector to the accounts stated that he had personal knowledge of the facts indicative of wilful misconduct by the councillor, ‘justice would demand that the councillor be given an opportunity to depone to his own version of the facts’.69 However, on the facts of the case, an oral hearing would not have added anything to the written responses that the councillors had been able to make. In particular, an oral expression of the sincerity of the councillors’ motives would not have constituted a defence. Accordingly, when deciding whether an oral hearing is required or whether written representations will suffice, it is important to consider the extent to which an oral hearing would enable the relevant arguments to be made more effectively.

  Ibid, para 126 (Auld LJ).   Edwards (No 2) (above n 62) para 65 (Lord Hoffmann). 66   R v Thames Magistrates Court, ex p Polemis [1974] 2 All ER 1219. 67   Lloyd v McMahon (above n 17). 68   Ibid, 696. 69  Ibid. 64 65

Conduct of Hearings  249

C.  Adequate Disclosure Procedural propriety requires a decision-maker to disclose any adverse material to persons affected by the decision so that they have the opportunity to comment on it.70 Lord Denning stated in Kanda v Government of the Federation of Malaysia: [I]f the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him.71

Sometimes, however, disclosure of material would be contrary to the public interest because it may be necessary to protect the source of the adverse information. In such cases, the courts have held that it may be sufficient for the gist of the information to be disclosed rather than chapter and verse.72 In the environmental context, questions of disclosure frequently arise due to the number of situations in which scientific reports and studies form the basis of decision-making. A good example of a breach of natural justice caused by a failure to disclose a scientific report is the decision in Edwards v Environment Agency,73 in which the appellant challenged a conditional permit granted by the Environment Agency to a cement kiln in Rugby pursuant to the Pollution Prevention and Control (England and Wales) Regulations 2000, for the continued operation the cement plant, including, as a new proposal, the burning of waste tyres as a partial substitute for conventional fuel in the kiln at the plant. The Environment Agency had commissioned two reports by the AQMA Unit, which indicated that environmental standards in Rugby might be breached if the permission were granted, but they had not been disclosed to the public. Auld LJ acknowledged that generally in a statutory decision-making process, once public consultation has taken place, the rules of natural justice do not require a decision-maker to reveal its own thought processes to criticism before reaching a decision.74 However, if a decision-maker in the course of decision-making becomes aware of some internal material or a factor of potential significance to the decision, fairness may demand that the parties concerned be given an opportunity to deal with it.75 He concluded that the AQMA Unit report was material to the defendant’s decision and to members of the public who were seeking to influence it, and therefore fairness required that it be disclosed.76

70   R v Secretary of State for the Home Department, ex p Hickey (No 2) [1995] 1 WLR 734; and R v Secretary of State for the Home Department, ex p Fayed (No 1) [1998] 1 WLR 763. 71   Kanda v Government of the Federation of Malaysia [1962] AC 322, 337. 72   R v Gaming Board of Great Britain, ex p Benaim and Khaida [1970] 2 QB 417. 73   Edwards (above n 38) [2006] EWCA Civ 877, [2007] Env LR 9. On appeal to the House of Lords, the Environment Agency did not dispute that there had been a breach of natural justice, but it argued that the Court should refuse a quashing order in its discretion: [2008] UKHL 22, [2008] 1 WLR 1587, [2008] Env LR 34. 74   Ibid, para 103. 75  Ibid. 76   Ibid, para 106.

250  Procedural Fairness I: Fair Hearings

D. Conduct of an Oral Hearing 1.  Legal Representation There is no right to legal representation at common law, but fairness may require that an individual be entitled to legal representation in the particular circumstances of a case.77 In R v Home Secretary, ex p Tarrant, Webster J held that the court should have regard to the following factors when deciding whether legal representation was required by the rules of natural justice: i) ii) iii) iv) v) vi)

the seriousness of the charge or penalty; whether any points of law are likely to arise; the capacity of the person to present his/her own case; procedural complexity; the need for an expeditious decision; and the need for fairness.78

2.  Rules of Evidence Although the strict rules of evidence applicable in civil litigation do not apply to admin­ istrative decisions, it is clear that procedural propriety requires an individual to have a fair opportunity to present evidence in support of his or her arguments. In FH Cummings v Weymouth & Portland Borough Council,79 an objector to a local plan review had been prevented from relying on an expert report at the inquiry. The local plan review changed the local plan inter alia to designate part of the claimant’s land as outside the defined development boundary and within an important open gap or area of local landscape importance and effectively prevented residential development of the site. At the time of lodging evidence for the inquiry, the claimant was mistakenly of the opinion that the only issue was one of landscape and that there was no issue in relation to drainage. When the claimant realised its mistake it instructed a drainage expert, who prepared a report that was given to the local planning authority (LPA) and the inspector on the day of the hearing. The inspector ruled that the report could not be relied on. HHJ Hickinbottom held that an inquiry should be conducted in accordance with the rules of natural justice to ensure that an objector was afforded an adequate opportunity of meeting the case. Since the LPA was the proposer and the judge, the obligation to deal thoroughly with any objection was enhanced. On the facts, the inspector had failed to give the claimant an adequate opportunity to make its case and to respond to the LPA’s case. The inspector failed to properly exercise his discretion as to whether to admit the claimant’s evidence and in doing so denied the claimant the opportunity to rely on important evidence in relation to a crucial issue. The procedure as a whole was not fair, and the claimant had consequently been substantially and unfairly prejudiced in the hearing. 77  The European Convention on Human Rights (ECHR) requires a more generous approach to the availability of legal representation. Art 6(3)(c) ECHR provides that ‘everyone charged with a criminal offence’ has the right to ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. See, eg, Ezeh v UK (2004) 39 EHRR 1; Twalib v Greece (2001) 33 EHRR 24; Maxwell v UK Series A, No 300-C, (1995) 19 EHRR 97. 78   R v Home Secretary, ex p Tarrant [1985] QB 251, 284–86. This approach was endorsed by the House of Lords in R v Board of Visitors of HM Prison, The Maze, ex p Hone [1988] AC 379. 79   FH Cummings v Weymouth and Portland BC [2007] EWHC 1601 (Admin).

Conduct of Hearings  251 3.  A Fair Opportunity to Deal with the Issues Individuals must be given a fair opportunity to deal with the issues raised by an administrative decision, and therefore the decision-maker may not decide the matter on the basis of points that the parties have not had a fair opportunity to comment on. In Secretary of State for Communities and Local Government and Peak District National Park Authority v Bleaklow Industries,80 the National Park authority had served an enforcement notice on a quarrying company, claiming that the amount of limestone it was extracting exceeded the amount permitted by the relevant mineral workings permission. On appeal, the inspector upheld the enforcement notice and suggested an upper ratio of 2:1 limestone to fluorspar as a workable criterion for the amount of limestone that could be worked and as being in accordance with the permission. One of the company’s grounds of appeal was that the ratio of 2:1 had been proposed by the inspector in his report but never expressly discussed during the inquiry. The Court of Appeal rejected this contention on the facts and held that there had been no procedural unfairness given that the general topic of ratios had been aired during the inquiry. 4.  Equality of Arms It is well established that Article 6(1) of the European Convention on Human Rights (ECHR) requires there to be ‘equality of arms’ between the parties to a dispute that determines one party’s civil rights and obligations. Much of the Strasbourg case law concerns the question whether states must provide public funding for impecunious litigants.81 By contrast, in environmental cases, the UK domestic courts have had to consider the application of the equality of arms principle in the context of public inquiries rather than traditional civil litigation. The starting point is that inquiry procedure is very different from the procedure applicable to ordinary civil litigation in the courts. In Bushell v Secretary of State for the Environment, Lord Diplock cautioned against unthinking adoption in the inquiry context of ‘concepts that are appropriate to the conduct of ordinary civil litigation between private parties’, preferring to state that an inquiry must be ‘fair to all those who have an interest in the decision that will follow it’, but what constitutes a fair procedure ‘will depend upon the nature of its subject matter.’82 This traditional view has, however, been challenged by claimants concerned that a considerable inequality of arms at a public inquiry may prevent them from raising objections on environmental grounds. Three cases have considered the application of the equality of arms principle in the context of public inquiries. All three challenges failed, and it is unlikely that any challenge based on Article 6(1) will succeed if the Inspector the presiding over the inquiry and the Secretary of State making a decision based on the Inspector’s recommendation have properly complied with their duties to facilitate participation by the public. 80   Secretary of State for Communities and Local Government and Peak District National Park Authority v Bleaklow Industries [2009] EWCA Civ 206. See also Ashley v Secretary of State for Communities and Local Government [2011] EWHC 1892 (Admin): a statutory planning challenge under s 288 of the Town and County Planning Act 1990, on the basis that the applicant had not had the opportunity to address new evidence submitted by the developer in written representations, filed where the applicant could have inspected the representations that were made on the local authority’s files. 81  The leading cases are Airey v Ireland Series A, No 32 (1979–80) 2 EHRR 305; and Steel & Morris v UK (2005) 41 EHRR 22. 82   Bushell v Secretary of State for the Environment [1981] AC 75, 95.

252  Procedural Fairness I: Fair Hearings In R v Secretary of State, ex p Challenger,83 the High Court rejected a challenge to the first Thameslink 2000 inquiry (before it was wholly underway) on the basis that legal assistance had not been provided. At the pre-inquiry meeting, third-party objectors argued that the issues to be determined were so complex and technical that they should be given funding for representation. The Inspector indicated that he would go to great lengths to assist those unfamiliar with the process or those who were not represented to the same degree as the principal parties. The Inspector also suggested that the objectors either apply to the Legal Services Commission (LSC) or write to the Chief Planning Inspector or the Secretary of State to request funding. An application was subsequently made to the LSC, but it was refused. However, no other sources of funding were explored. Harrison J dismissed the application for permission to apply for judicial review. He held that the claimants would have a reasonable opportunity to present their case given the duty of the Inspector to facilitate the participation of the public. Airey was distinguished as the ‘high-water mark of Strasbourg jurisprudence’, which in its ‘nature and facts’ was to be distinguished from Challenger.84 It is not uncommon for inquiries to be attended by unrepresented parties. As Sullivan J recognised in R (Hadfield) v Secretary of State,85 inspectors are very familiar with dealing with the concerns of such persons and ensuring that they are properly taken into account. Hadfield concerned a judicial review of the decision of the Secretary of State to call in a planning application for his own determination. The applicant for permission argued that because of her lack of means there was an inequality of arms and hence a breach of Article 6(1) ECHR. Sullivan J rejected her complaint in these terms: The sole ground on which it is alleged that there would be unfairness is the claimant’s alleged lack of means. It is said that there would not be an equality of arms between herself and her opponents and, thus, she would not be able to have a fair hearing. I accept for the purposes of argument in the present case that Article 6 may in certain circumstances require parties to be provided with the means of obtaining representation in order that they can have a fair hearing. For example, there may be cases involving complex legal issues. But that is very far from saying that in each and every case where there is a hearing a party must have the means to obtain representation (legal and otherwise) in order to have a fair hearing. Legal aid is not available across the whole range of tribunals: it is available in some, it is not available in others. It is not available in planning inquiries. There is of course a crucial difference between a planning inquiry and what might be described as normal civil litigation. Although the procedures are adversarial in form, the Inspector is an expert in his or her field and is expected to use his or her own planning expertise and judgment. Thus, the Inspector may raise concerns that are not raised by any of the parties, and may lawfully base his or her decision upon those matters provided always that the parties have had a proper opportunity to comment upon them. Strictly speaking, there is no lis inter partes, the question for the Inspector (and the Secretary of State) is whether a planning permission should be refused in the public interest. The Inspector is there to ensure that the public interest in securing the correct planning decision is protected. Moreover, planning inquiry procedures are deliberately less formal than those which are customarily found in the courtroom, so that individuals can present their own cases. Claimants and third parties often represent themselves. I reject the submissions that merely because the claimant asserts that she has insufficient funds to obtain representation, there will necessarily be such unfairness as to result in a breach of Article 6.1.86   R v Secretary of State for the Environment, Transport and the Regions, ex p Challenger [2001] Env LR 12.   Ibid, para 47. 85   R (on the Application of Hadfield) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1266 (Admin). 86   Ibid, paras 49–51. 83 84

Reasons  253 The issue of equality of arms was also raised as one of the grounds of challenge in the case of Pascoe v First Secretary of State.87 The claim was an application under section 23(1) of the Acquisition of Land Act 1981 seeking to challenge the confirmation of the Urban Regeneration Agency (Edge Lane West, Liverpool) Compulsory Purchase Order 2005 by the First Secretary of State. The essence of Ms Pascoe’s complaint was that the inquiry was so complex, lengthy and technical that she should have received funding for legal representation and the services of professional witnesses, particularly in view of the fact that English Partnerships (the promoters) were represented by a large law firm (Eversheds), as well as leading and junior Counsel. She argued that the need for funding was heightened by the importance of what was at stake for her, namely her home. Forbes J rejected her complaint. She had been given a reasonable opportunity to present her case, which was the essence of the requirement of equality of arms, particularly in the light of the assistance given by the Inspector. These cases show us that equality of arms and fairness mean very different things in an inquisitorial context. In a compulsory purchase order (CPO) inquiry, the Inspector and the Secretary of State apply their own judgments and expertise to the issues and are not dependent simply on the evidence presented to them. The exercise is inquisitorial rather than adversarial, and the Inspector and the Secretary of State both have a duty to consider the evidence and to determine whether a given project is required in the public interest. The Inspector is himself required to be satisfied on the issues so that he can reach a considered view and report to the Secretary of State, and the Inspector’s questioning of witnesses means that it is not necessary for objectors to be represented. Accordingly, provided the Inspector and Secretary of State properly fulfil their duties, no breach of Article 6(1) ECHR will occur.

IV. Reasons

Reasoned decisions serve a number of important purposes: first, they assist the courts’ supervisory role; second, they help ensure that decision-makers have properly thought through the consequences of their decisions; third, they prevent decision-makers from ‘going through the motions’ when hearing representations prior to decisions; fourth, they increase public confidence in the administrative process; and finally, they respect an affected individual’s dignity by explaining the decision to him, rather than treating him as someone to be dictated to. The provision of reasons for administrative decisions is not an unqualified good, however. It is sometimes argued that providing reasons can stifle discretion and overburden the administration. This is hotly contested. Certainly, experience from the European Union and Australia, where there is a general duty to give reasons, does not support this argument. However, the English courts often warn themselves against imposing too onerous a duty to give reasons. For example, in R v Higher Education Funding Council, ex p Institute of Dentistry, Sedley J said that a duty to give reasons . . . may place an undue burden upon decision-makers; demand an appearance of unanimity where there is diversity; call for the articulation of sometimes inexpressible value judgments; and offer an invitation to the captious to comb the reasons for previously unsuspected grounds of challenge.88   Pascoe v First Secretary of State [2006] EWHC 2356 (Admin), [2007] 1 WLR 885.   R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242, 257A (Sedley J), approved in R v MOD, ex p Murray [1998] COD 134, 136. 87 88

254  Procedural Fairness I: Fair Hearings In the environmental context, the provision of reasons is regarded as being extremely important, given the emphasis placed on public participation. In particular, the requirement in the Aarhus Convention89 that there be effective access to justice to challenge envir­ onmental decisions strongly supports an obligation to give adequate reasons. After all, without adequate reasons it is often impossible to detect a breach of public law principles, and so a formal right of access to judicial review would be worthless without the means of discovering public law wrongs in the first place. This section looks first at the general common law position on the giving of reasons before considering the environmental context in more detail.

A. The Common Law Position The starting point regarding the giving of reasons is that ‘the [common] law does not at present recognise a general duty to give reasons for an administrative decision’.90 A duty to give reasons therefore only arises at common law in particular circumstances. In R v Higher Education Funding Council, ex p Institute of Dental Surgery,91 Sedley J identified two categories of case in which a duty to give reasons would arise: •  cases where the subject matter is an interest so highly regarded by law (for example, personal liberty) that fairness requires that reasons, at least for particular decisions, be given as of right92 •  cases where there is a trigger factor, such as the particular decision appearing to be ‘aberrant’, such that it is prima facie inexplicable93 Although the courts have not developed a general duty to give reasons, they have expanded the circumstances in which reasons are required by holding more and more interests to be sufficiently important to justify the giving of reasons. For example, in R v City of London Corporation, ex p Matson,94 it was held that a decision calling into question the claimant’s reputation had a sufficiently important impact on his rights and interests as to attract a duty to give reasons. If reasons are required, they must be adequate and intelligible. The principles have been definitively set out by Lord Brown in his speech in the case of South Buckinghamshire CC v Porter (No 2): The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to 89  The UN Economic Commission for Europe (Aarhus) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. For further discussion of the Aarhus Convention, see above ch 2. 90   Doody (above n 19) 564 (Lord Mustill). 91   Institute of Dental Surgery (above n 88). 92   Ibid, 263. For example, in Doody (above n 19), the length of the prisoner’s tariff period was so important and its impact upon the prisoner’s rights and interests so fundamental that it was inconsistent with the basic precepts of fairness to permit the Minister to behave as if ‘a distant oracle’ (564–65). 93   Institute of Dental Surgery (above n 88) 263. For example, see R v Civil Service Appeal Board, ex p Cunningham [1991] 4 All ER 310. 94   R v City of London Corporation, ex p Matson [1997] 1 WLR 765.

Reasons  255 whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.95

The common law position is, however, unsatisfactory. As Elliott has argued, it is anomalous that the scope of the duty to give reasons is narrower than that of the other principles of good administration.96 The time has come to recognise a general duty to give reasons in administrative law. Any concerns that this would be unduly burdensome for the administration can be overcome, in the same way as similar concerns are overcome in relation to other facets of natural justice, by moderating the intensity of the duty.

B. The Environmental/Planning Context 1.  Reasons in Planning Decisions It used to be the case that reasons were required only for the refusal of planning permission and not for the grant of permission. However, since 2003, local planning authorities have been under a duty to give reasons when granting permission. Article 22(1) of the Town and Country Planning (General Development Procedure Order) 1995 requires that decision notices must include a summary of both the reasons for the grant and the policies and proposals in the development plan that are relevant to the decision. Office of the Deputy Prime Minister (ODPM) Circular 08/2003 advises that reasons are required to enhance the transparency of the planning system, and local planning authorities should consider whether the reasons they propose to give are adequate. The first case to consider this duty was R (Wall) v Brighton & Hove City Council,97 where it was conceded that there had been a failure to give adequate reasons. The decision notice stated that the decision to grant permission had been taken having regard to the policies and proposals in the relevant plans and all relevant material considerations. A brief indication was given of what the various policies covered, but the notice went no further. Sullivan J examined the background to Article 22(1): Over the years the public was first enabled and then encouraged to participate in the decisionmaking process. The fact that, having participated, the public was not entitled to be told what the local planning authority’s reasons were, if planning permission was granted, was increasingly perceived as a justifiable source of grievance, which undermined confidence in the planning system. Thus the requirement to give summary reasons for a grant of planning permission should be seen as a further recognition of the right of the public to be involved in the planning process. While the requirement to give ‘full reasons’ for a refusal of planning permission, or for the imposition of   South Buckinghamshire County Council v Porter (No 2) [2004] 1 WLR 1953, para 36.   M Elliott, ‘Has the Common Law Duty to give Reasons Come of Age Yet?’ (2011) Public Law 56.   R (on the Application of Wall) v Brighton & Hove City Council [2004] EWHC 2582 (Admin), [2005] 1 P & CR 3.

95 96 97

256  Procedural Fairness I: Fair Hearings conditions, will principally be for the benefit of the applicant for planning permission, who will be better able to assess the prospects of an appeal to the Secretary of State, the requirement to give summary reasons for the grant of planning permission will principally be for the benefit of interested members of the public. The successful applicant for planning permission will not usually be unduly concerned to know the reasons why the local planning authority decided to grant him planning permission. Parliament decided that this extension of the public’s rights under the Planning Code was necessary even though in many cases it could reasonably be inferred that the members would have granted planning permission because they agreed with the planning officer’s report . . . Parliament could have, but did not, limit the obligation to give summary reasons to those cases where the councillors did not accept their officers’ recommendation.98

Sullivan J did not consider that Article 22(1) imposed an undue burden on local planning authorities because officers’ reports usually include recommended reasons for refusal or for the imposition of conditions, and there is no reason why officers could not similarly include summary grounds for recommending a grant of permission. He added: The new requirement to give summary reasons for the grant of permission will be particularly valuable in cases where members have not accepted officers’ advice, where the officer has felt unable to make a recommendation, where the officer’s report fails to take account of a material consideration, but that omission is said to have been remedied by the members during the course of their discussions, or where an irrelevant factor has been relied upon by some members during the course of their discussions and it is important to ascertain whether it was one of the Committee’s reasons for granting planning permission. In such cases – and I emphasise that these are merely examples – there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority’s summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority’s reasons were in such cases would perpetuate the very problems that Parliament intended the substituted Article 22(1) to address. While there can be no objection in principle to a local planning authority amplifying its summary reasons, since by definition they will not be its full reasons for granting planning permission (see above), it would equally frustrate Parliament’s intention if local planning authorities were able to rely post facto on entirely different or wholly new reasons for granting planning permission. It is difficult to see why a local planning authority which has failed to include any summary reasons for granting planning permission in its notice of decision should be placed in any better position.99

In R (Ling (Bridlington) Ltd) v East Riding of Yorkshire Council,100 planning permission had been granted for a fun park and wheel (similar to the London Eye) on the seafront in Bridlington. The decision notice stated, ‘The proposal has been considered against the policies below, and it is considered that the scheme accords with these policies, and there are no material considerations which indicate a decision should be otherwise’. Sir Michael Harrison held that the reasons were adequate because the members had followed the officer’s recommendation in respect of both grants of permission, save for the imposition of the glazing condition, the reasons for which had been apparent from the reason given for its imposition. In those circumstances, the summary of reasons could be shortly stated. The summaries in question were really as short as they could be, anything less would be inappropriate, but they did reflect the conclusion in the officer’s report for each planning permission.   Ibid, paras 52–53.   Ibid, paras 58–59 (citation omitted). 100   R (on the Application of Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin). 98 99

Reasons  257 Sir Michael Harrison also set out four factors that he considered to be relevant in considering the adequacy of reasons for the grant of permission: The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants’ contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission. Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission. Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases. Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer’s report to committee will be a relevant consideration. If the officer’s report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer’s recommendation. In the latter case, a short summary may well be appropriate.101

Collins J also considered the duty to give reasons for granting planning permission in R (Jacqueline Tratt) v Horsham District Council.102 The claimant applied for judicial review of a decision by the local planning authority to grant planning permission to a telecommunications company for the erection of a 25-metre high mast 130 metres from her house. The authority had granted permission, stating that the proposal was consistent with the provisions of the development plan. The claimant contended that these reasons given for granting permission were insufficient for the purposes of Article 22(1). Collins J held that the authority had failed to give appropriate summary reasons. The reasons ought at least to have stated why the issues had been decided in favour of the applicant for planning permission. Applying Wall, he held that summary reasons should deal in summary form with the substantial issues that had formed part of the consideration of the planning application. The adequacy of reasons given for the grant of planning permission was challenged in R (Midcounties Co-operative Ltd) v Forest of Dean District Council.103 The supermarket retail chain Tesco had applied for planning permission to demolish a sports club and to replace it with a superstore, petrol station and a rugby ground. The local planning authority granted permission and a further permission under section 73 of the Town and Country Planning Act 1990 varying the condition stipulating the hours during which the rugby ground could be floodlit. The claimant, which had opposed the planning applications and which owned a supermarket adjacent to the sports club, sought judicial review, contending that the authority’s reasons were insufficient to comply with Article 22(1). The decision notices had listed the development plan policies to which regard had been had and stated, ‘The development is considered to comply with these policies and guidance notes, and it is not considered that it will cause material harm to the amenities in the area.’

  Ibid, paras 47–50.   R (on the Application of Jacqueline Tratt) v Horsham District Council [2007] EWHC 1485 (Admin). 103   R (on the Application of Midcounties Co-operative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin). 101 102

258  Procedural Fairness I: Fair Hearings Collins J upheld the claim and quashed the permissions because the reasons contained in the decision notices were inadequate. He observed that some local planning authorities had not appreciated the effect of Article 22(1), but since authorities were already accustomed to suggesting reasons when applications were refused or for the imposition of conditions, there was no reason why they should not routinely do the same in summary form for a grant of planning permission. Collins J considered the purpose of Article 22(1) to be as follows: an objector wishing to challenge a decision to grant planning permission might be interested in knowing whether the local authority had proper regard to all material considerations; and an applicant seeking planning permission might be concerned to check that there was no flaw in the grant of permission.104 The obligation to give summary reasons was based on the same considerations that applied to the obligation to give full reason. Therefore, the summary reasons should cover the main issues that formed part of the consideration of the application for planning permission. Accordingly, the purpose of giving reasons is the same whether they are full or summary. Where there are no objections to an application for planning permission, that could be stated in the notice of a decision, and it would suffice in such circumstances to say no more than that the application accords with the relevant policies. 2.  Reasons and Environmental Impact Assessment (EIA) The link between reasons and public participation was emphasised by the ECJ in the important decision in R (Mellor) v Secretary of State for Communities and Local Government.105 The case concerned a proposal to build a medium-secure hospital on the site of a former naval base within an area of outstanding natural beauty. It was accepted that the project was an ‘urban development project’ within the meaning of the Town and Country Planning (EIA) Regulations 1999, and so the developer sought a screening opinion from the local authority as to whether environmental impact assessment was required. The authority decided that environmental impact assessment was not required but changed its mind following the claimant’s representations on behalf of a local residents’ group. However, the developer effectively bypassed this change of position by seeking a screening direction from the Secretary of State.106 The Secretary of State held that no environmental impact assessment was required on the grounds that ‘the proposal would not have significant effects on the environment by virtue of factors such as its nature, size or location’. Those ‘reasons’ merely stated the criteria in the legislation but provided no specific details for not requiring an environmental impact assessment in the particular case. Following an amendment to the EIA Directive in 1997, authorities are now required to give reasons when they grant planning permission for a development subject to environmental impact assessment. However, the Directive does not explicitly require reasons to be given for a negative screening opinion, even though the actual opinion itself has to be made public. The ECJ held that although it was not necessary for a screening opinion or decision itself to contain the reasons which justify that decision, third parties must still ‘be able to satisfy themselves that the competent authority has actually determined, in   Ibid, para 26.  Case C-75/08 R (on the Application of Mellor) v Secretary of State for Communities and Local Government) [2009] ECR I-3799. 106  The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, Regulation 4(3). 104 105

Exceptions to the Rules on Natural Justice  259 accordance with the rules laid down by national law, that an EIA was or was not necessary’.107 The ECJ drew heavily on instrumental concerns when developing this duty to provide reasons for a screening opinion or decision. Article 10(a) of the EIA Directive translates provisions of the Aarhus Convention relating to public participation in decision-making into an EU law right by providing that the public must have access to an independent court or tribunal to review the substantive or procedural legalities of decisions under the Directive. The ECJ therefore held that interested parties must be able to ensure, if necessary through legal action, that there has been compliance with the EIA screening obligations. In order to aid that assessment of compliance, a court may require the authority to provide reasons: [W]here it is more particularly a question of securing the effective protection of a right conferred by Community law, interested parties must also be able to defend that right under the best possible conditions and have the possibility of deciding, with a full knowledge of the relevant facts, whether there is any point in applying to the courts.108

The result of Mellor is that authorities must provide reasons for a screening refusal either in the actual decision or in response to requests from a member of the public. Importantly, that duty does not arise from the express terms of the EIA Directive, but it is necessary in order to enable individuals to exercise their Article 10(a) right to challenge a decision’s legality. In other words, this is another example of the purposive interpretation of EU environmental legislation in order to promote effective enforcement. The decision in Mellor underlines the clear link between reasons and the ability of members of the public to challenge administrative decisions affecting the environment, and as such, it further strengthens the case for a general duty to give reasons.

V.  Exceptions to the Rules on Natural Justice

A.  Exclusion by Statute The common law requirements of procedural fairness may be excluded by statute, expressly or by necessary implication.109 However, it has been held that the obligation to comply with the rules of natural justice is a constitutional principle that is not easily displaced.110 This is because ‘unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.’111

  Mellor (above n 105) para 57.   Ibid, para 59. 109   Such a provision may, however, be declared incompatible with an individual’s right under Article 6 ECHR. 110   R v Secretary of State for the Home Department, ex p Pierson [1998] AC 539, 590 (Lord Steyn). 111   Ibid, 591. 107 108

260  Procedural Fairness I: Fair Hearings

B.  Prompt Action Needed Occasionally, administrative decision-makers are able to take action without giving prior notice where urgent action is required, for example where there is a threat to health and safety. Thus in R v Secretary of State for Transport, ex p Pegasus Holdings,112 the suspension of a Romanian airline’s flight permit without prior notice was held to be lawful because it followed the failure of Civil Aviation examinations by five pilots. This justified fears as to the risk posed by the pilots to air safety.113

C. Defect Cured on Appeal A decision tainted by a failure to heed the rules of natural justice is void and liable to be quashed. In principle, the fact that it is subject to appeal should make no difference. But in Calvin v Carr,114 Lord Wilberforce held that sometimes a defective decision may be cured by a subsequent appeal process. His Lordship adopted a tripartite distinction: i) In cases where the re-hearing is by the same body or a more complete form of it, defects at the original hearing can generally be cured; ii) in some cases consideration of the whole hearing structure in its context may lead to the conclusion that a fair hearing is to be required at the original hearing and on appeal;115 iii) in other cases it might conversely be concluded that the end result was fair, notwithstanding the initial defect.116

  R v Secretary of State for Transport, ex p Pegasus Holdings (London) Ltd [1988] 1 WLR 990.   See also R v Birmingham City Council, ex p Ferrero Ltd [1993] 1 All ER 530, where it was held that there was no duty to consult manufacturers before issuing a notice prohibiting the supply of chocolate eggs with small toys inside, following choking incidents. Express provision was made in the relevant procedural rules for appeals and compensation. 114   Calvin v Carr [1980] AC 574. 115  Eg, Leary v NUVB [1971] Ch 34; and R v Aston University Senate, ex p Roffey [1969] 2 QB 538. 116   Eg, the facts of Calvin itself, in which the Stewards’ Inquiry had to make a quick decision, and the breach of natural justice was cured on appeal in a full hearing held by the Australian Jockey Club. 112 113

14 Procedural Fairness II: The Rule against Bias This chapter is concerned with the rules against bias. It considers the situations in which a decision-maker is automatically prevented from taking a decision, as well as the circumstances in which a real possibility of bias will arise so as to disqualify the decision-maker. Finally, the exceptions to the rules against bias are analysed. It is a well-established principle (nemo judex in causa sua) that a person exercising a judicial function may be disqualified from acting if he or she has a direct pecuniary interest in the outcome of the decision or where, for some other reason, there is a real possibility of bias. But for present purposes, the key question is the extent to which the rules of bias extend to administrative decision-makers generally and environmental regulators in particular. In Franklin v Minister of Town and Country Planning,1 the House of Lords held that the decision of a Minister to confirm a draft new town order, following a public local inquiry, was administrative only and did not attract the application of the rules against bias. This decision pre-dates the expansion of the rules of natural justice in Ridge v Baldwin,2 and in R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign,3 Sedley J held that the rules against bias were not now confined to judicial and quasi-judicial decisions, because an individual’s interests may be more radically affected by administrative decisions than those of a court or tribunal. He held that modern public law since Ridge v Baldwin had ‘set its face against the partitioning of proceedings into judicial, administrative and something in between’ and that public law had ‘returned to the broad highway of due process across the full range of justiciable decision-making’.4 Although it is now clear that the rules against bias apply to administrative decisionmakers,5 as we shall see, their application depends heavily on the particular context; and so the level of detachment expected of administrative decision-makers is often considerably less than the standard required of judges.

  Franklin v Minister of Town and Country Planning [1948] AC 87.   Ridge v Baldwin [1964] AC 40. See above ch 13. 3   R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304. 4   Ibid, 324. 5   See, eg, R (on the Application of Cummins) v Camden LBC [2001] EWHC Admin 1116; and Bovis Homes Ltd v New Forest DC [2002] EWHC 483 (Admin), following Sedley J’s decision in Kirkstall Valley (above n 3). 1 2

262  Procedural Fairness II: The Rule Against Bias I.  Actual Bias

If a decision-maker has been improperly influenced as to the outcome of a decision or actively favours one party, this will amount to actual bias. Cases of actual bias are rare because they are difficult to prove. Nevertheless, the legal consequence of actual bias is clear: ‘if actual bias is proved, that is an end of the case; the person concerned must be disqualified’.6

II.  Presumed Bias I: Automatic Disqualification

Decision-makers with a direct interest in a decision are presumed to be biased and are automatically disqualified. Consequently, their decisions are void ab initio. It is not necessary for a claimant to show actual bias on the part of the decision-maker, because the basis of disqualification is the existence of an interest that the law holds sufficient to provide a motive for bias. The potential effect of the interest on the decision-maker is irrelevant. Disqualification follows automatically without the need for investigation as to whether in fact there was any possibility of bias. Historically, this form of presumed bias leading to automatic disqualification was confined to financial interests. However, recently the House of Lords has extended the principle to cover certain non-financial interests.

A. Direct Pecuniary Interests and Interests as a Party A direct pecuniary interest, regardless of its size, is sufficient to disqualify a decision-maker: [N]othing can be clearer than the principle of law that a person who has a judicial duty to perform disqualifies himself for performing it if he has a pecuniary interest in the decision which he is about to give, or a bias which renders him otherwise than an impartial judge . . . If he has a pecuniary interest . . . he must not be a judge. Where such a pecuniary interest exists, the law does not allow any further inquiry as to whether or not the mind was actually biased by the pecuniary interest. The fact is established from which the inference is drawn that he is interested in the decision, and he cannot act as a judge.7

This principle applies, however grand and powerful the decision-maker. Thus, in Dimes v Grand Junction Canal,8 it was held that the Lord Chancellor, Lord Cottenham, ought to have been automatically disqualified from hearing an appeal involving the Grand Junction Canal company, in which he had a substantial shareholding. In the House of Lords, their Lordships noted that there was no inference that the Lord Chancellor was actually biased, but the principle that no man should be a judge in his own cause was not confined to a case in which he was a party but also in which he had an interest. The Lord Chancellor’s pecuniary interest in the canal company meant that he should have been disqualified, and his decision was therefore set aside. Lord Campbell stated the principle forcefully in these terms: 6   R v Gough [1993] AC 646, 661 (Lord Goff). See also O’Reilly v Mackman [1983] 2 AC 237; and Laker Airways Inc v FLS Aerospace Ltd [2000] 1 WLR 113. 7   Leeson v General Council of Medical Education and Registration (1890) LR 43 Ch D 366, 384 (Bowen LJ). 8   Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301.

Presumed Bias I: Automatic Disqualification  263 No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.9

The principle is not, however, absolute. A pecuniary interest will only disqualify a decision-maker if it is not too remote. For example, in R v Rand,10 two justices who were trustees of institutions holding bonds in the Bradford Corporation, which was a party to the case, were not disqualified from sitting, because a decision in favour of the Corporation would not have resulted in any tangible benefit for the justices. The principle is also subject to a de minimis exception.11

B. Other Interests that Disqualify Automatically As a result of the House of Lords decision in R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2),12 it is now clear that any direct interest, whether financial, proprietary or otherwise, will lead to the automatic disqualification of a decisionmaker. In Pinochet (No 2), the former Chilean head of state had, while visiting the United Kingdom to receive medical treatment, been issued with an international arrest warrant to enable his extradition to Spain to face trial for crimes against humanity. He contended that he was immune from suit as a former head of state, and the question for the House of Lords was the extent of his immunity. By a majority of 3 to 2, the House of Lords held that Senator Pinochet was not entitled to immunity. However, it later transpired that one of the majority, Lord Hoffmann, was a director and chairperson of Amnesty International Charity Ltd, a subsidiary of Amnesty International – one of the parties seeking extradition. Senator Pinochet sought to have the decision set aside on the ground inter alia that Lord Hoffmann should have been automatically disqualified. Lord Browne-Wilkinson, with whom all the other Law Lords agreed, held that there was no good reason for limiting the automatic disqualification rule to cases of pecuniary interest only. He observed that the rationale for the rule that no man can be a judge in his own cause arose from civil litigation, where decisions normally have an economic impact, hence the automatic disqualification of a judge who stands to make a financial gain. The Pinochet case differed in that it was concerned with a cause rather than with financial gain. But Lord Browne-Wilkinson held that the origins of the rule should not prevent it from applying to disqualify a judge whose decision would lead to the promotion of a cause in which he had an interest:   Ibid, 793–94.   R v Rand (1865–66) LR 1 QB 230. 11   Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; and Weatherill v Lloyds TSB Bank [2000] CPLR 584. 12   R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119. 9

10

264  Procedural Fairness II: The Rule Against Bias If the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit. There is no room for fine distinctions if Lord Hewart CJ’s famous dictum is to be observed.13

Since Lord Hoffmann was automatically disqualified because he was regarded as being so closely connected with a party to the proceedings that he was deemed to be acting in his own cause, it was unnecessary for the House of Lords to consider whether there was a real possibility that he was biased. However, the significance of Pinochet (No 2) must now be considered in the light of what Lord Hope said in the Privy Council’s decision in Meerabux v Attorney General of Belize.14 Lord Hope explained that the decision in Pinochet (No 2) ‘appears, in retrospect, to have been a highly technical one’,15 and the circumstances were ‘striking and unusual’.16 In his view, if the House of Lords in Pinochet (No 2) had felt able to apply the test for apparent bias subsequently adopted in Porter v Magill,17 ‘it is unlikely that it would have found it necessary to find a solution to the problem that it was presented with by applying the automatic disqualification rule’.18 Even if the decision in Pinochet (No 2) is not confined to its own peculiar facts, the principle is unlikely to be widely applicable. The Court of Appeal has stated that any further extension of the rule of automatic disqualification would be undesirable unless it was ‘plainly required to give effect to the important underlying principles on which the rule is based’.19 Furthermore, it has been suggested that the principle in Pinochet (No 2) is confined to judicial bodies and does not extend to administrative decision-makers.20

III.  Presumed Bias II: The Appearance of Bias

A.  The Development of the Test for Appearance of Bias The majority of cases on bias do not concern actual bias or the automatic disqualification rule discussed above but rather the appearance of bias. As will be seen, the courts have employed several different formulations of the test that the claimant must satisfy in order to show that a decision is invalid because the decision-maker appeared to be biased. The different tests reflect diverging views as to the weight to be given to two competing policy considerations: first, the importance of public confidence and the fact that there should be no appearance that the decision-maker might have been biased; and second, the extent of the actual risk that the decision-maker was in fact biased. Previously, English law placed greater weight on the second of these policy considerations. In R v Gough,21 the House of Lords held that a claimant must show that there was ‘a   Ibid, 135.   Meerabux v Attorney General of Belize [2005] UKPC 12, [2005] 2 AC 513. In that case it was held that automatic disqualification does not follow from a judge’s membership of an association by which proceedings are brought, but only when there is active involvement in the institution of the particular proceedings. 15   Ibid, paras 21 and 24. 16   Ibid, para 22. 17   Porter v Magill [2001] UKHL 67, [2002] 2 AC 357. See section III below. 18   Meerabux (above n 14) para 22. 19   Locabail (above n 11) 475. 20   Bovis Homes Ltd v New Forest DC [2002] EWHC 483 (Admin) para 87 (Ouseley J). 21   Above n 6. 13 14

Presumed Bias II: The Appearance of Bias  265 real danger’ that the decision-maker was biased. Importantly, whether or not there was on the facts a real danger of bias should be determined from the viewpoint of the court rather than from the viewpoint of an observer in court at the relevant time. Lord Goff stated that the court ‘should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man’, and the court ‘should first ascertain the relevant circumstances from the available evidence’.22 In other words, the test was more concerned with the possibility of actual bias than with how members of the public might perceive the impartiality of the decision-maker. It appeared that the guiding maxim was no longer Lord Hewart CJ’s famous dictum that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.23 Thus, in R v Inner West London Coroner, ex p Dallaglio,24 Simon Brown LJ concluded that ‘by the time the legal challenge comes to be resolved, the court is no longer concerned strictly with the appearance of bias but rather with establishing the possibility that there was actual although unconscious bias’.25 In a similar vein, Lord Bingham MR suggested that ‘if despite the appearance of bias the court is able to examine all the relevant material and satisfy itself that there was no danger of the alleged bias having in fact caused injustice, the impugned decision will be allowed to stand’.26 The approach in Gough has now been rejected, and English law places a greater weight on the importance of public confidence and the appearance that decision-makers are impartial. The impetus for this change was twofold: first, Commonwealth authority firmly rejected Gough;27 and secondly, the implementation of the Human Rights Act 1998 required that the Gough test be modified to accord with the requirements of Article 6(1) of the European Convention on Human Rights (ECHR).28 The leading case is now the House of Lords decision in Porter v Magill,29 in which Lord Hope stated that ‘the question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision-maker] was biased’.30

B.  The Characteristics of the ‘Fair-Minded and Informed Observer’ The decision in Porter v Magill represents a welcome return to the famous ethos underlying Lord Hewart CJ’s dictum in R v Sussex Justices, ex p McCarthy31 that justice manifestly and undoubtedly ought to be seen to be done. However, it is important to recognise that members of the public, even reasonably informed ones, will have access to limited information regarding the circumstances of alleged bias. Furthermore, public and judicial perceptions of a decision-maker’s impartiality based on the relevant evidence may well diverge. In applying the ‘real possibility of bias test’ it is therefore necessary to decide: (a) which material should be taken into account by the ‘fair-minded and informed observer’ in assessing   Gough (above n 6) 670.   R v Sussex Justices, ex p McCarthy [1924] 1 KB 256, 259.   R v Inner West London Coroner, ex p Dallaglio [1994] 4 All ER 139. 25   Ibid, 1521. 26   Ibid, 1621. 27   Webb v R (1994) 181 CLR 41 (High Court of Australia); and Moch v Nedtravel (Pty) Ltd 1996 (3) SA 1 (Supreme Court of South Africa). 28   Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700. 29   Above n 17. 30   Porter v Magill (above n 17) para 103. 31   Above n 23. 22 23 24

266  Procedural Fairness II: The Rule Against Bias the possibility of bias; and (b) what characteristics the ‘fair-minded and informed observer’ possesses. 1.  Material Available to the Hypothetical Observer The policy of preserving public confidence in the decision-making process militates in favour of giving weight to the likely perceptions of the public and constructing those perceptions on the basis of the material available to the ordinary, informed member of the public. Accordingly, Lord Hope stated in Gillies v Secretary of State for Work and Pensions: The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny.32

However, in addition to the hypothetical observing being aware of ‘all the facts that are capable of being known by members of the public generally’, the cases following Porter v Magill show that the courts have been willing to impute specialist knowledge to the hypothetical observer. A striking example of the imputation of specialist knowledge is the decision in Taylor v Lawrence.33 The judge in a case concerning a boundary dispute told the parties that he had been a client of the claimant’s solicitors but had not used their services for a number of years. None of the parties objected to his hearing the case, but it later transpired that the judge and his wife had used the solicitors to amend their wills the night before he delivered judgment, and the firm had made no charge. Lord Woolf CJ delivering the judgment of the Court of Appeal held that these facts did not give rise to an appearance of bias because the hypothetical observer would not regard the relationship between the judge and the solicitors as unusual. He held that ‘[t]he fact that the observer has to be “fairminded and informed” is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction’.34 Accordingly: The informed observer will therefore be aware that in the ordinary way contacts between the judiciary and the profession should not be regarded as giving rise to a possibility of bias. On the contrary, they promote an atmosphere which is totally inimical to the existence of bias. What is true of social relationships is equally true of normal professional relationships between a judge and the lawyers he may instruct in a private capacity.35

This imputation of specialist knowledge risks divorcing the test for apparent bias from the interests that it is meant to advance, namely the confidence of the non-specialised public.36 2.  Characteristics of the Hypothetical Observer In Gillies, Lord Hope explained that the fair-minded observer had the following qualities: It is to be assumed, as Kirby J put it in Johnson v Johnson, that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be   Gillies v Secretary of State for Work and Pensions [2006] UKHL 2, [2006] 1 WLR 781, para 17.   Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528. See also Hart v Relentless Records Ltd [2002] EWHC 1984 (Ch), [2003] FSR 36; and Taylor v Williamsons (A Firm) [2002] EWCA Civ 1380. 34   Taylor v Lawrence (ibid) para 61. 35   Ibid, para 63. 36   See further S Atrill, ‘Who is the “Fair-Minded and Informed Observer”? Bias after Magill’ (2003) Cambridge Law Journal 279. 32 33

Presumed Bias II: The Appearance of Bias  267 assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.37

3.  Application of the Test Inevitably, application of the ‘real possibility’ of bias test requires a detailed consideration of all of the circumstances that have a bearing on the allegation of bias.38 It is not therefore possible to state categorically the types of interest that will or will not give rise to an appearance of bias. However, in Locabail v Bayfield Properties, Lord Bingham CJ suggested some of the factors that will give rise to an appearance of bias in a judge: •  personal friendship or animosity; •  close acquaintance and other ‘real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him’.39

Lord Bingham CJ suggested that the following factors would not give rise to an appearance of bias: •  religion; •  ethnic or national origin; •  gender; •  class; •  means; •  sexual orientation of the judge. Finally, he also suggested that the following factors would not ‘at any rate ordinarily’ give rise to an appearance of bias: •  social or educational or service or employment background or history, nor that of any member of the judge’s family; •  previous political associations; •  membership of social or sporting or charitable bodies, or Masonic associations; •  previous judicial decisions; •  extracurricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); •  previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him; •  membership of the same Inn, circuit, local law society or chambers.

C.  Predisposition versus Predetermination The application of the rule against bias to administrative decision-making based on policy creates a tension. On the one hand, administrative decision-makers ought to approach matters with an open mind, but on the other hand there is no escaping the fact that many   Gillies (above n 32) para 17 (citation omitted).   R (on the Application of Ortona Ltd) v Secretary of State for Communities and Local Government [2009] EWCA Civ 863. 39   Locabail (above n 11) para 25. 37 38

268  Procedural Fairness II: The Rule Against Bias administrative decision-makers are elected and stood for office on the basis of stated policies, which they are expected by the public to implement once elected. As Collins J observed in R (Island Farm Development) v Bridgend County BC: Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally . . . It would be quite impossible for decisions to be made by the elected members whom the law requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance.40

English law seeks to reconcile these competing considerations by drawing a distinction between a legitimate predisposition towards a particular outcome and an illegitimate predetermination of the outcome. The former is consistent with a preparedness to consider and weigh relevant factors in reaching a final decision. The latter involves a mind that is closed to the consideration and weighing of relevant factors.41 This distinction between legitimate predisposition and illegitimate predetermination has been applied in a number of planning cases. In R (Elizabeth Condron) v National Assembly for Wales,42 the Court of Appeal had to consider whether the Welsh Assembly’s grant of planning permission for the carrying out of opencast mining and related reclamation operations at a 400-hectare site near Merthyr Tydfil was vitiated by an appearance of bias. The application had been called in, and following an inquiry the inspector had recommended granting permission, subject to conditions. The Assembly’s planning decision committee, consisting of four members of the Assembly, including a chairman (Carwen Jones AM), resolved to allow the application, subject to conditions. The respondent objector challenged the grant of permission, contending that the committee’s decision was vitiated by the appearance of bias arising out of a remark made by Carwen Jones in a casual meeting with an objector the day before the committee meeting. He had said that he was ‘going to go with the Inspector’s Report’. The Court of Appeal held that the alleged remarks did not demonstrate an illegitimate predetermination of the planning application. Allegations of predetermination had to be decided on the facts and circumstances of the individual case. The relevant circumstances were those apparent to the court upon investigation; they were not restricted to the circumstances available to the hypothetical observer at the original hearing.43 On the facts, the words attributed to Carwen Jones went no further than indicating a predisposition to follow the inspector’s report and not a closed mind. Significantly, Richards LJ held that it did not matter how the person to whom those words were addressed had interpreted them, since the question was whether the fears expressed by the claimant were objectively justified.44 In that regard, it was important to look not only at the words spoken but also at the context in which they were spoken: In addition to the words themselves, it is necessary to bear in mind the context in which they were spoken. As regards immediate context, these were a few words spoken towards the end of a short and rather tense conversation, following a chance encounter and without preparation or warning. The judge observed that a ‘throw-away’ remark can be more revealing than might have been a more 40   R (on the Application of Island Farm Development Ltd) v Bridgend County BC [2006] EWHC 2189 (Admin), [2007] BLGR 60, para 30. 41   R (on the Application of Condron) v National Assembly for Wales [2006] EWCA Civ 1573, [2007] 2 P&CR 4, para 43 (Richards LJ). 42  Ibid. 43   Ibid, para 50. 44   Ibid, para 42.

Presumed Bias II: The Appearance of Bias  269 prepared or studied one. For my part, I think that a remark made in circumstances such as these needs to be treated with a considerable degree of caution. It is a case where the wider picture is particularly important in assessing the significance of the words used.45

Having regard to the terms of the inspector’s report, the fact that the members of the committee had relevant training and were subject to a code of conduct, as well as the nature of their discussions, which were unusually prolonged, the Court of Appeal held that a fairminded and informed observer would not conclude that there was a real possibility that Carwen Jones was biased.46 In reaching this conclusion the Court of Appeal imbued the hypothetical observer with a high degree of knowledge of the decision-making process and the training received by the Assembly Members. Ward LJ explained: The observer who is neither complacent nor unduly sensitive or suspicious can, however, be taken to appreciate that, even though the members of the PDC are not judicial officers who have taken their judicial oath, nonetheless they had by the Standing Orders of the Assembly completed a course of relevant training, they had agreed to be bound by the current Code of Conduct and that required their ‘bringing an unbiased, properly directed and independent mind to their consideration of the matter.’ It would be a total abnegation of those duties to enter the Committee Room with a mind immovably made up. This was a highly sensitive decision to take and the fair-minded observer would assume that it would be taken fairly and justly.47

He therefore concluded that although Carwen Jones’ words were ‘unwise, even injudicious, and hearing them might well have caused eyebrows to rise’, . . . the informed observer would pause and stand back, then look at all the facts objectively. He would know that professional detachment and the trained ability to exercise independent judgment lie at the heart of the exercise of his function as a decision-maker especially in a case of such importance and sensitivity for the local community that it required the [Planning Decision Committee] to decide it. Bearing all matters in mind, the fair and informed observer would not, in my judgment, find that there was a real possibility that the Chairman of this Committee had predetermined the issue. The facts do not give rise to a real possibility of bias.48

A similarly pragmatic approach, which indicates a reluctance to find that elected decision-makers have predetermined an issue, can be seen in R (Lewis) v Redcar & Cleveland BC.49 In that case the local authority adopted a local plan, under which open land in its ownership was allocated for major leisure use with linked housing development, and it subsequently entered into written heads of terms with development partners, who applied for planning permission. Having taken advice from officers, the planning committee chairman, a member of the majority group on the authority, decided that the planning application could be determined during the period between the giving of notice of local elections and polling day. The committee had before it a detailed report from an officer recommending that it grant permission subject to conditions. Following a substantial discussion, the committee agreed the recommendation. All seven majority group members on the committee voted in favour, as did two of the six minority members. A development agreement between the authority and the development partners was signed two days before polling   Ibid, para 45.   Ibid, para 53. 47   Ibid, para 128. 48   Ibid, para 130. 49   R (on the Application of Lewis) v Redcar & Cleveland BC [2008] EWCA Civ 746, [2009] 1 WLR 83. 45 46

270  Procedural Fairness II: The Rule Against Bias day. Following the poll, political control of the authority changed, but the new majority group decided to proceed with the development, and planning permission was granted. The claimant, who opposed all development of the open land, sought judicial review of the grant of permission on the ground that there had been an appearance of bias or predetermination on the part of the members of the committee who belonged to the former majority group, in that they appeared to have considered the application with closed minds. The Court of Appeal rejected the complaint of predetermination. Pill LJ considered that the importance of appearances in the context of administrative decision-making by elected councillors was ‘generally more limited’ than in the judicial context.50 Similarly, Rix LJ considered that a single test for bias and predetermination applied to the whole spectrum of decision-making, ‘as long as it is borne fully in mind that such a test has to be applied in very different circumstances and that those circumstances must have an important and possibly decisive bearing on the outcome’.51 In his view, the test was whether there is an appearance of predetermination, in the sense of a mind closed to the planning merits of the decision in question.52 Evidence of political affiliation or of the adoption of policies towards a planning proposal would not by itself amount to an appearance of a real possibility of predetermination. What these cases show is that it will be extremely difficult to establish that an elected decision-maker is disqualified by reason of his or her pre-existing views on policy. The requirement that a claimant show predetermination as opposed to predisposition is an onerous one, especially since what matters is the objective view having regard to the context and all the circumstances rather than the way in which the claimant subjectively interpreted the decision-maker’s words or actions.

IV.  Exceptions to the Rule against Bias

A. Waiver The right to object to a decision-maker disqualified on the ground of bias may be waived. Waiver will occur only where the claimant has ‘acted freely and in full knowledge of the facts’.53 If, after the claimant or his advisers know of the decision-maker’s disqualification, they let the proceedings continue without protest, they are taken to have waived their objection, and the final decision cannot be challenged. The Court of Appeal explained in Locabail: It is not open to [the litigant] to wait and see how her claims . . . turned out before pursuing her complaint of bias . . . [She] wanted to have the best of both worlds. The law will not allow her to do so.54

  Ibid, para 71.   Ibid, para 93. 52   Ibid, para 96. 53   Pinochet (No 2) (above n 12) 137 (Lord Browne-Wilkinson). 54   Locabail (above n 11) [2000] 2 WLR 870, para 69. 50 51

Exceptions to the Rule Against Bias  271

B. Necessity At common law the rules of bias yield to necessity. An otherwise disqualified person may be allowed to adjudicate when no other qualified person is available.55 The doctrine of necessity will operate where: i) the person’s participation is authorised by statute; ii) no other adjudicator is available, and the action is an administrative formality; iii) no other adjudicator is available, and the conflict of interest is created by different statutes; or iv) all available adjudicators are disqualified as a result of acts that are beyond their control. It is doubtful, however, whether the principle of necessity is compatible with Article 6 ECHR. In Kingsley v UK,56 the chairwoman of the Gaming Board had indicated in a speech that she and the Board did not regard the applicant as a fit and proper person to have the conduct of a casino. The Gaming Board subsequently found that the applicant was not a fit and proper person to hold a gaming licence and refused his application. The Court of Appeal concluded that there was no real danger of bias and dismissed the claim for judicial review. The Court of Appeal also held that even if there had been such a danger, since only the Gaming Board could make the decision, the rule against bias gave way to necessity. The European Court of Human Rights (ECtHR) held that English law was in breach of Article 6 because there was no remedy for the lack of the necessary impartiality before the English courts. Had the English courts been able to quash the decision and remit it for determination by different tribunal, or had they been able to make a fresh determination themselves, the procedure would have been compliant with Article 6.

55   Dimes v Grand Junction Canal Co (1852) 10 ER 301; Phillips v Eyre (1870–71) LR 6 QB 1; R v Howard [1902] 2 KB 363; and H Tolputt & Co Ltd v Mole [1911] 1 KB 836. 56   Kingsley v UK (2002) 35 EHRR 177.

15 Human Rights and the Environment The European Convention on Human Rights (ECHR) does not expressly refer to the envir­ onment. Nevertheless, the European Court of Human Rights (ECtHR) has accepted that environmental rights may be implied in the Convention.1 To date, however, human rights claims brought as a means of securing environmental compliance have met with limited success. The principal reason for this is the wide margin of appreciation afforded to con­ tracting states, according to which the ECtHR has readily accepted that economic and other social interests may outweigh the claims of individuals to a safe and healthy environment. There is also a procedural barrier. Whereas any claimant in the United Kingdom with a sufficient interest may bring a claim for judicial review,2 a claim under the Human Rights Act (HRA) 1998 may be brought only by a person who is or would be the victim of a viola­ tion of the ECHR.3 Thus, the ECHR does not permit an actio popularis or public interest challenge, and environmental pressure groups will be denied standing unless they can show that their own Convention rights are affected.

I.  The Human Rights Act (HRA) 1998

A.  The Status of ECtHR Case Law Section 2 of the HRA 1998 requires courts and tribunals to take account of the case law of the ECtHR, but it does not render that case law binding. The English courts have indicated, however, that they will generally follow a clear and consistent line of Strasbourg case law.4 The ECtHR does not operate a doctrine of precedent, but it will generally follow its pre­ vious decisions unless persuaded otherwise. The Court sits in chambers of seven judges, and the Grand Chamber consists of 17 judges. Accordingly, judgments of the Grand Chamber carry greater weight than those of a single chamber.

B. Section 3 HRA 1998 Section 3 of the HRA 1998 requires that legislation must ‘so far as it is possible to do so’ be read and given effect so as to be compatible with Convention rights. Since the HRA 1998   Hatton v United Kingdom (2003) 37 EHRR 28.  See above ch 5 on standing. 3  S 7(3) Human Rights Act (HRA) 1998. 4   R (on the Application of MK (Iran)) v Secretary of State for the Home Department [2010] EWCA Civ 115, [2010] 1 WLR 2059, para 64 (Carnwath LJ). 1 2

The Human Rights Act (HRA) 1998  273 came into force in October 2000, the courts have been striving to determine the limits of this interpretative obligation. The leading case on the interpretation of statutes pursuant to section 3 HRA 1998 is Ghaidan v Mendoza.5 Mr Mendoza claimed that he was entitled to succeed to a secure tenancy under the Rent Act 1977 following the death of his same-sex partner, who was the original tenant. The Rent Act provided that ‘a person who was living with the original tenant as his or her wife or husband’ would be treated as the tenant’s ‘spouse’ and would therefore also be entitled to a secure tenancy. On ordinary principles of statutory interpretation, same-sex partners were excluded in breach of Articles 8 and 14 of the Convention. But applying section 3, the House of Lords held by a majority of 4 to 1 that it was possible to read this provision so that ‘spouse’ included same-sex partners. Whether it is ‘possible’ to interpret a statute compatibly will depend on the particular statutory context and the rights in issue, but Ghaidan nevertheless confirms the general approach that the courts should follow: i) Section 3 should not be used to produce a result that is contrary to a ‘fundamental feature’ of the legislation; nor should judges make decisions that ‘would require legisla­ tive deliberation’. ii) A court can ‘read down’ statutory language, interpreting it restrictively, and it can also ‘read in’ additional words. iii) Judges must ensure that any words read in ‘go with the grain’ of the statute. iv) ‘Reading-in’ does not depend upon the number of words used to achieve a Convention compatible result, and when reading-in, a court does not have to emulate the precision required by Parliamentary draftsmen; it suffices if it makes clear what a Conventioncompatible outcome will be. v) It is possible to depart from the intention expressed in the language of a statutory pro­ vision, provided that the resulting interpretation accords with the purpose underlying the provision. A good example of a case in which section 3 HRA 1998 could not be used because ‘legis­ lative deliberation’ was required is Bellinger v Bellinger.6 The House of Lords declined to interpret ‘female’ in the Matrimonial Causes Act 1973 to include a transsexual female, with the result that Mrs Bellinger remained male in the eyes of the law and could not marry a man. The case raised important issues of social policy and, as Lord Nicholls observed, the question of when precisely a transsexual acquires his or her new gender is one of immense medical and psychological complexity. Furthermore, the ramifications of altering the legal meaning of gender are far-reaching because gender is used in many other areas of the law, for example to determine entitlement to benefits and in taxation statutes. Accordingly, it was more appropriate to make a declaration of incompatibility and allow Parliament to address these issues after proper debate and consultation.

C. Section 4 HRA 1998 If a compatible interpretation is not possible, the higher courts have the right to make a ‘declaration of incompatibility’.7 Section 4 HRA 1998 states that such a declaration does not   Ghaidan v Mendoza [2004] UKHL 30, [2004] 2 AC 557.   Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467.  S 4(5) HRA 1998.

5 6 7

274  Human Rights and the Environment affect the continuing validity of the legislation. This means that the courts have no power to strike down primary legislation, thereby preserving the doctrine of parliamentary sover­ eignty. But the White Paper that preceded the HRA 1998, entitled ‘Bringing Rights Home’,8 made clear that if a statute is declared incompatible, it is expected that Parliament will move quickly to amend it, and to this end, the Act makes provision for a fast-track Parliamentary amendment process by which a minister can seek a speedy amendment through the use of a Remedial Order, if necessary. This unique device is a typically British constitutional compromise. Its strength is that it allows the formal retention of parliamentary sovereignty, but at the same time it opens the way for a new political reality to develop whereby the protection of rights becomes a joint enterprise between Parliament and the courts. Its weakness is that it has the potential to leave legislation (and litigants) in a vacuum, with legislation having been declared to be in breach of fundamental human rights by the courts and yet still valid and enforceable. The danger is that legitimacy and legality part company, with citizens obliged to obey and courts to uphold laws that have been declared fundamentally flawed.

D. Section 6 HRA 1998 Section 6 of the HRA 1998 makes it unlawful for a public authority to act in a way that is incompatible with a Convention right. There is no exhaustive definition of public authority in the HRA 1998. Instead, section 6 provides: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if – (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions. (3)  In this section ‘public authority’ includes – (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connec­ tion with proceedings in Parliament. ... (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) ‘An act’ includes a failure to act but does not include a failure to – (a) introduce in, or lay before, Parliament a proposal for legislation; or (b) make any primary legislation or remedial order.

Thus, three categories of public authority are created. First, so-called ‘core public authori­ ties’ such as central and local government, which are public authorities in respect of all of their functions. Second, there are so-called ‘hybrid public authorities’, which carry out one   Labour Party, ‘Bringing Rights Home: Labour’s Plan to Incorporate the ECHR into UK Law’ (London, 1996).

8

The Human Rights Act (HRA) 1998  275 or more functions of the public nature but are not public authorities when carrying out acts of a private nature. During passage of the Human Rights Bill, a much discussed example of a hybrid public authority was Railtrack, which would be a public authority in respect of its functions relating to the running of the railways but not in respect of its pri­ vate commercial functions. Finally, courts and tribunals are specifically stated to be public authorities, and they are thus bound by the HRA 1998. There is much case law on the scope of section 6,9 but disputes are unlikely to arise in the environmental context because environmental regulators and decision-makers are usually amenable to judicial review and are therefore likely also to be regarded as public authorities for the purposes of the HRA 1998. More difficult questions may arise in relation to bodies actually causing pollution. However, in Marcic v Thames Water Authority,10 both the High Court and the Court of Appeal proceeded on the basis that a privatised water company was a public authority within the meaning of section 6.

E. Section 7 HRA 1998 Section 7(1) HRA 1998 provides that a person may bring a claim under the HRA 1998 only if he or she ‘is (or would) be a victim of the unlawful act’. For these purposes, a person is a victim only if they would be under Article 34 of the ECHR.11 Only a victim has a sufficient interest to raise a violation of Convention rights in judicial review proceedings.12 Section 7(5) establishes the time limit for HRA 1998 claims. They must be brought within one year, beginning with the date on which the act complained of took place or ‘such longer period as the court or tribunal considers equitable having regard to all the circumstances’. That one-year time limit is a long stop and is without prejudice to any shorter time limit imposed in respect of the applicable type of proceedings, such as the three-month time limit for judicial review claims.

F. Section 8 HRA 1998 Section 8 HRA 1998 is concerned with the award of damages. It provides: (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including – (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and (b)  the consequences of any decision (of that or any other court) in respect of that act, 9  See, eg, YL v Birmingham City Council [2007] UKHL 27, [2008] 1 AC 95; Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546; and R (on the Application of Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, [2010] 1 WLR 363. 10   Marcic v Thames Water Authority [2001] 3 All ER 698, [2002] EWCA Civ 64, [2002] QB 929. 11  S 7(7) HRA 1998. 12  S 7(3) HRA 1998. See further above ch 5 on standing.

276  Human Rights and the Environment the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4)  In determining – (a)  whether to award damages, or (b)  the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention. (5)  A public authority against which damages are awarded is to be treated – (a) in Scotland, for the purposes of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 as if the award were made in an action of damages in which the authority has been found liable in respect of loss or damage to the person to whom the award is made; (b) for the purposes of the Civil Liability (Contribution) Act 1978 as liable in respect of dam­ age suffered by the person to whom the award is made. (6) In this section – ‘court’ includes a tribunal; ‘damages’ means damages for an unlawful act of a public authority; and ‘unlawful’ means unlawful under section 6(1).

Accordingly, whereas damages are recoverable as of right in the case of loss caused by a tort, the same is not true in the case of a claim brought under the HRA 1998 for breach of a Convention right.13 Instead, section 8 gives a general power for the court to award such relief or remedy or make such order within its powers as it considers just and appropriate. However, the court may not award damages unless it is satisfied that damages are necessary to afford just satisfaction to the victim. In determining whether to award damages and, if so, the amount of the award, the court must take into account the principles applied by the ECtHR. 1.  Domestic Cases It has been said that sections 7 and 8 are to be given ‘a generous interpretation, as befits their human rights purpose’.14 The English courts have, however, approached the award of damages pursuant to section 8 HRA 1998 with caution, and they have not generally found it necessary to elaborate the principles upon which damages may be awarded. The fullest discussion appears within two cases: Anufrijeva v Southwark London Borough Council15 and R (Greenfield) v Secretary of State for the Home Department.16 2.  Anufrijeva v Southwark LBC The Court of Appeal heard three appeals together in Anufrijeva. The first concerned a local authority’s alleged failure to arrange satisfactory accommodation for a family of asylum seekers, which included a grandmother in ill health. The second appeal concerned delay and maladministration in the handling of a claim for asylum, which, it was contended, had   Anufrijeva v Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124.   Re S; Re W [2002] UKHL 10, [2002] 2 AC 291, para 48 (Lord Nicholls). 15   Above n 13. 16   R (on the Application of Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673. 13 14

The Human Rights Act (HRA) 1998  277 caused psychiatric harm to the claimant. The third appeal involved delay in granting per­ mission for the claimant’s family to join him after he had been granted refugee status. Despite finding that there had no been a violation of the appellants’ Convention rights in any of the three appeals, the Court of Appeal did give guidance on the proper approach to awarding damages under section 8 HRA 1998. The following points emerge from the Court of Appeal’s judgment: i) The HRA 1998 established a code governing the award of damages, which has to be applied with due regard to the Strasbourg jurisprudence. However, ‘the assistance to be derived from that jurisprudence is limited’.17 ii) ‘Where an infringement of an individual’s human rights has occurred, the concern will usually be to bring the infringement to an end, and any question of compensa­ tion will be of secondary, if any, importance.’18 iii) Damages follow as of right at common law, and the claimant is invariably entitled to be restored to the position he would have been in had the wrong not occurred, so far as money can achieve this. Under the HRA 1998, however, damages must be ‘neces­ sary to afford just satisfaction’.19 iv) The methodology is an unfamiliar one to English tort lawyers: ‘[i]n considering whether to award compensation and, if so, how much, there is a balance to be drawn between the interests of the victim and those of the public as a whole’.20 v) The English courts should be no less liberal when awarding damages than the ECtHR; otherwise, claimants will be put to the unnecessary expense of going to Strasbourg to obtain just satisfaction.21 vi) Although it is difficult always to identify clear and consistent principles from the Strasbourg jurisprudence, the fundamental principle is to achieve restitutio in integrum. Accordingly, ‘where the breach of a Convention right has clearly caused signifi­ cant pecuniary loss, this will usually be assessed and awarded’.22 vii) Save in the case of delay under Article 5, the ECtHR is disinclined to pay compensa­ tion for procedural errors.23 viii) Especially at first instance, courts dealing with claims for damages for maladministra­ tion should adopt a broad-brush approach. Where no pecuniary loss is involved, the issue ‘should be decided without a close examination of the authorities or an exten­ sive and prolonged examination of the facts’.24 ix) ‘The critical message is that the remedy has to be “just and appropriate” and “neces­ sary” to afford “just satisfaction”. The approach is an equitable one.’25 x) Damages will be awarded for non-pecuniary loss only if it was of sufficient intensity.26   Anufrijeva (above n 13) para 52.   Ibid, para 53. 19   Ibid, para 55. 20   Ibid, para 56. For discussion of the impact of resource implications on judicial reasoning generally, see Lord Hoffmann, ‘The Combar Lecture 2001: Separation of Powers’ (2002) Judicial Review 137, paras 18–25. 21   Anufrijeva (above n 13) para 57. 22   Ibid, para 59. 23   Ibid, para 62. 24   Ibid, para 65. 25   Ibid, para 66. 26   Ibid, para 70. For example, in Silver v United Kingdom Series A, No 67 (1984) 6 EHRR CD62, the European Commission of Human Rights declined to award damages in a case concerning the unlawful interference with a prisoner’s correspondence by the prison authorities. At para 10, the European Commission of Human Rights held: ‘It is true that those applicants who were in custody may have experienced some annoyance and sense of 17 18

278  Human Rights and the Environment xi) Where a court decides to award damages, ‘the levels of damages awarded in respect of torts as reflected in the guidelines issued by the Judicial Studies Board, the levels of awards made by the Criminal Injuries Compensation Board and by the Parliamentary Ombudsman and the Local Government Ombudsman may all provide some rough guidance where the consequences of the infringement of human rights are similar to that being considered in the comparator selected’.27 3.  R (Greenfield) v Secretary of State for the Home Department In R (Greenfield) v Secretary of State for the Home Department,28 a prisoner sought judicial review of a prisoner adjudication that had been in breach of Article 6 ECHR and had led to the imposition of additional days of imprisonment. Lord Bingham gave the following guidance in respect of damages under the Human Rights Act: i) The domestic courts may not award damages unless satisfied that it is necessary to do so, but if satisfied that it is necessary to do so, it is hard to see how a court could consider it other than just and appropriate to do so.29 ii) There is a risk of error if Strasbourg decisions about one Convention Article read across to another. In the case of Article 6, it does not follow from a finding that the trial process was non-compliant, that its outcome was wrong or would have been different but for the breach – this may be contrasted with the position where there is a substantive violation of, for example, Articles 3, 4 or 8.30 iii) In the great majority of Article 6 cases, the ECtHR treats the finding of violation, the quashing of the decision and the ordering of a retrial as just satisfaction itself, and mostly declines to speculate as to what the outcome would have been if the violation had not occurred.31 iv) This reflects the fact that the focus of the Convention is on the protection of human rights, not the award of compensation.32 v) The ECtHR is ordinarily willing to depart from this practice only where it finds a causal connection between the violation and specific heads of pecuniary loss, which it has on the whole been slow to do, or where it is persuaded that general damages are appropriate.33 vi) Claims for anxiety and frustration will be allowed only where that is attributable to the Article 6 violation, not to the simple fact of involvement in legal proceedings. The ECtHR has been very sparing in making such awards.34 vii) Awards of damages in Strasbourg, whether for loss of procedural opportunity or for anxi­ ety and frustration, have been ‘noteworthy for their modesty’.35 viii)  Anufrijeva was incorrectly decided to the extent that it suggested that damages under the Human Rights Act 1998 should be based upon the application of domestic scales of dam­ ages. The 1998 Act is not a tort statute but has different and broader objects. The Act was frustration as a result of the restrictions that were imposed on particular letters. It does not appear, however, that this was of such intensity that it would in itself justify an award of compensation for non-pecuniary damage.’ 27   Anufrijeva (above n 13) para 74. 28   R (on the Application of Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673. 29   Ibid, para 6. 30   Ibid, para 7. 31   Ibid, para 8. 32   Ibid, para 9. 33   Ibid, paras 11–12. 34   Ibid, para 16. 35   Ibid, para 17.

The Human Rights Act (HRA) 1998  279 not intended to give better remedies at home than in Strasbourg, and the Act itself indi­ cates that domestic courts should look to Strasbourg and not to domestic precedents.36

4.  Subsequent Cases There are a large number of cases in which the UK domestic courts have held that damages were not required in order to achieve just satisfaction.37 The approach of the courts in some of these decisions might fairly be characterised as miserly. For example, in Austin v Metropolitan Police Commissioner,38 the claimants had been held at Oxford Circus for about seven hours following disturbances during public protests. Their Article 5 claim failed, but Tugendhat J held that he would not in any event have awarded damages. In his view, the root cause of what happened was the conduct of the other demonstrators, and the claim­ ants had chosen to go somewhere where there were risks. The gravity of the experience was comparable to delays at an airport or a motorway hold-up following an accident. He con­ sidered that the reaction of reasonable people to misfortune such as this is not a sense of humiliation and mistrust of the police but of resignation and relief that the situation has not turned out to be worse. Given that one of the claimants was only in the vicinity of the protest because he was going about his employer’s business, this decision seems unneces­ sarily restrictive. A similarly restrictive approach was taken at first instance in R (Baiai) v Secretary of State for the Home Department.39 The case concerned a statutory scheme aimed at preventing sham marriages, which meant that in some cases couples wishing to get married were required, in breach of their Convention rights, to travel abroad before again applying for entry clearance. Silber J rejected a claim for general damages on the basis that there were no ‘exceptional circumstances’ as required by Greenfield. He considered that damages for dis­ tress, humiliation and outrage ought not to be awarded without cogent medical evidence showing distress of exceptional gravity. It is questionable whether such a serious affront to an individual’s dignity should go uncompensated. A more generous approach to the award of damages was taken at first instance in Van Colle v Chief Constable of Hertfordshire Police.40 The claim was brought by the parents of a man who had been shot dead. The man was a witness in a theft prosecution, and he had been murdered by the accused, who had previously sent him threatening messages. The claimants argued that the police had not taken effective action to arrest the perpetrator, in breach of the positive obligation imposed by Article 2 ECHR. Cox J awarded £15,000 for 36   Ibid, paras 18–19. At para 19, Lord Bingham said: ‘The court routinely describes its awards as equitable, which I take to mean that they are not precisely calculated but are judged by the Court to be fair in the individual case. Judges in England and Wales must also make a similar judgment in the case before them. They are not inflex­ ibly bound by Strasbourg awards in what may be different cases. But they should not aim to be significantly more or less generous than the Court might be expected to be, in a case where it was willing to make an award at all.’ 37  See, eg, R (on the Application of P) v Secretary of State for the Home Department [2003] EWHC 2953 (Admin); R (on the Application of Richards) v Secretary of State for the Home Department [2004] EWHC 93 (Admin); R (on the Application of Napier) v Secretary of State for the Home Department [2004] EWHC 936 (Admin), [2004] 1 WLR 3056; R (on the Application of Hughes) v Liverpool City Council [2005] EWHC 428 (Admin); R (on the Application of Bernard) v Secretary of State for the Home Department [2005] EWHC 452 (Admin); R (on the Application of B) v Camden London Borough Council [2005] EWHC 1366 (Admin); Francis v Home Office [2006] EWHC 3021 (QB); R (on the Application of TH) v Crown Court at Wood Green [2006] EWHC 2683 (Admin), [2007] 1 WLR 1670; Boyle v Criminal Cases Review Commission [2007] EWHC 8 (Admin); Re C [2007] EWCA Civ 2; and Dobson v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC). 38   Austin v Commissioner of Police of the Metropolis [2005] EWHC 480 (QB). 39   R (on the Application of Baiai) v Secretary of State for the Home Department [2006] EWHC 1035 (Admin). 40   Van Colle v Chief Constable of Hertfordshire Police [2006] EWHC 360 (QB), [2006] 3 All ER 963.

280  Human Rights and the Environment the victim’s distress in the period leading up to his death and £35,000 to the parents for their own grief and suffering. On appeal, the Court of Appeal reduced these sums to £10,000 and £15,000 respectively.41 Nevertheless, these awards are still relatively high in comparison to the domestic courts’ usual approach. The decision leaves some important questions unanswered. In particular, it is not known whether different action by the police would have prevented the victim’s death, yet Cox J and the Court of Appeal did not con­ sider whether this ought to preclude damages, as had been suggested in Greenfield. In addi­ tion, although an award in respect of the parents’ grief and suffering is unexceptional, it is unclear what the justification was for awarding them a separate sum of damages in respect of a duty owed by the Chief Constable to their son.

II.  ECHR Rights

A.  Article 8 ECHR 1. Pollution Article 8 ECHR provides the right to respect for one’s home, private and family life. The ECtHR has found, by implication, that both atmospheric and noise pollution may engage Article 8. The leading authority in respect of atmospheric pollution is López Ostra v Spain,42 in which the applicant complained about noise, smell and fumes emanating from a nearby waste treatment plant. The court held that Article 8 was engaged by the degree of pollution. It explained that severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, even without it seriously endangering their health.43 Turning to the question of justification, the ECtHR held that pollution had affected the health of the applicant’s daughter, and there was proven depreciation to the value of the applicant’s home. In these circumstances, the Court did not accept that the Spanish gov­ ernment had struck a fair balance between the need for a waste treatment facility for the town and the applicant and her family’s rights under Article 8. The ruling in López Ostra has paved the way for a number of successful human rights claims in respect of severe environmental pollution. First, the decision in Guerra v Italy44 established that Article 8 may also impose a positive duty on the state to warn individuals of environmental danger. In Guerra, an explosion had occurred at a chemical factory, resulting in the release of several tonnes of toxic pollutants and hospitalising large numbers of local residents. The ECtHR held that the Italian authorities had been under a duty to warn the applicants of the danger posed by the pollutants so as to enable them to take appropriate action. 41   Van Colle (ibid) [2007] EWCA Civ 325, [2007] 1 WLR 1821. The House of Lords held that the chief constable was not liable and did not say anything about damages under the HRA 1998: Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225. 42   López Ostra v Spain Series A, No 303-C (1995) 20 EHRR 277. 43   Ibid, para 51. 44   Guerra v Italy (1998) 26 EHRR 357.

ECHR Rights  281 A second successful Article 8 claim is Taskin v Turkey,45 which illustrates that liability may be incurred when proper enforcement action is not taken to require the cessation of pollut­ ing activity. In that case, a local authority had granted a permit authorising the use of cya­ nide leaching as part of a gold extraction process. The Turkish Supreme Administrative Court had annulled the permit, but the relevant Minister had taken no measures to prevent the continued operation of the cyanidation process, notwithstanding evidence that the process presented dangers to human health and the local ecosystem. The ECtHR held that there had been a breach of both Article 2 and Article 8. Although it recognised that in claims concerning environmental damage, states enjoy a wide margin of appreciation,46 the ECtHR held that Turkey had exceeded that margin of appreciation, given that the Turkish court had weighed the competing interests against each other and concluded that appli­ cants’ effective enjoyment of the right to life and the right to a healthy environment meant that the permit did not serve the public interest.47 The ECtHR also held that Article 8 had a procedural dimension that required adequate investigations to be carried out in order to support decisions affecting the environment: Where a State must determine complex issues of environmental and economic policy, the deci­ sion-making process must first involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests at stake.48

A third successful Article 8 claim concerned hazardous industrial pollution in the former Soviet Union. In Fadeyeva v Russia,49 the applicant lived only 450 metres from a large steel­ works emitting polluting substances well above the safe levels identified in the relevant Russian legislation. She argued that her Article 8 rights had been violated, and she sought both damages and an order requiring the state to offer her new housing in an alternative location. The ECtHR held that the pollution was so severe that it did adversely affect the quality of her life and made her more vulnerable to disease. Accordingly, authorisation of the industrial plant in the middle of a densely populated town constituted a breach of the positive obligation in Article 8. In the subsequent case of Ledyayeva v Russia,50 the ECtHR found a continuing violation of Article 8 in relation to the same site. It found that the fail­ ure to protect the applicants against serious environmental nuisances could not be justified by the economic interest in the steelworks. A fourth successful Article 8 complaint concerned severe pollution from a processing plant built and designed for the storage and treatment of hazardous and non-hazardous waste in Italy. In Giacomelli v Italy,51 the claimant lived a mere 30 metres from the pro­ cessing plant, which had been found by three environmental impact assessments to pose a risk to ground water quality. Despite these environmental impact assessments, the relevant government department permitted the plant to continue operating because the company processed nearly a quarter of the nation’s waste. The plant even continued to operate

  Taskin v Turkey (2006) 42 EHRR 50.   Ibid, para 116.   Ibid, para 117. 48   Ibid, para 119. 49   Fadeyeva v Russia (2007) 45 EHRR 10. 50   Ledyayeva v Russia, Applications Nos 53157/99, 53247/99, 53695/00 and 56850/00, 26 October 2006. 51   Giacomelli v Italy, Application No 59909/00, 2 November 2006. 45 46 47

282  Human Rights and the Environment after findings by the regional health authority that there were abnormal concentrations of carbon and other organic substances in the atmosphere. The ECtHR concluded that there had been a breach of Article 8, and it observed that the protection of Article 8 applies equally whether the pollution is caused directly by a state or whether it arises indirectly from a state’s failure to regulate private sector activity properly.52 Either way, the state must strike a fair balance between the interests of the individual in a clean environment and the community as a whole. It is clear from the recent Court of Appeal decision in Downs v Secretary of State for Environment, Food and Rural Affairs53 that a relatively high degree of pollution is required to engage Article 8. The case concerned the spraying of pesticides, and the claimant con­ tended that spray from neighbouring fields had caused or contributed to her medical con­ ditions. Sullivan LJ held that a mere possibility that spraying had caused her illnesses was ‘not a sufficient foundation for an Art 8 claim’,54 and even if a probable causal link had been established, it was questionable whether ‘local effects, such as skin or eye irritation’ would fall within the description of severe environmental pollution.55 Turning to the state’s positive obligation under Article 8, Sullivan LJ explained: [Article 8] does not impose an obligation on the Government to guarantee that no individual’s enjoy­ ment of his private and family life, or his home will be disturbed by the activities of third parties. The Government’s obligation in respect of pesticides is to put in place an effective regulatory framework.56

The United Kingdom did have a regulatory framework in place, and the common law of nuisance was available to provide redress should harm occur. Accordingly, the United Kingdom was not in breach of its positive obligation under Article 8. Furthermore, the regulation of pesticides fell within a ‘difficult social and technical sphere’, in which a bal­ ance had to be struck between the interests of the individual and the community as a whole. Sullivan LJ concluded that the government had been entitled to decide that compliance with the minimum pesticide safety standards laid down by EU law was sufficient to give protection to human health.57 2.  Noise pollution Whereas severe pollution may result in a violation of Article 8 ECHR, the chances of suc­ cessfully establishing a breach of Article 8 in respect of noise pollution are much lower. In principle, noise pollution does engage Article 8. In the context of an admissibility decision, the now defunct Commission on Human Rights declared: Considerable noise and other types of nuisance can undoubtedly affect the physical well-being of a person and thus interfere with his private life. They may also deprive a person of the possibility of enjoying the amenities of his home.58

However, Article 8 claims in relation to noise pollution have generally been unsuccessful. For example, in Powell and Rayner v UK,59 the applicants contended that their Article 8   Ibid, para 78.   Downs v Secretary of State for Environment, Food and Rural Affairs [2009] EWCA Civ 664, [2009] 3 CMLR 46. 54   Ibid, para 109. 55  Ibid. 56   Ibid, para 112. 57   Ibid, para 114. 58   Application No 13728/88 S v France [1990] 65 DR 250. 59   Powell and Rayner v United Kingdom Series A, No 172 (1990) 12 EHRR 355. 52 53

ECHR Rights  283 rights had been breached because the domestic courts had been unable to abate the noise nuisance they suffered while living on the flight path from Heathrow Airport. The ECtHR held that although Article 8 was engaged, the government had struck a fair balance between the competing interests of the individual residents and the economic well-being of the community as a whole. The same conclusion was reached by the Grand Chamber in Hatton v UK,60 a case con­ cerning the United Kingdom’s policy of restricting flights to and from Heathrow Airport while permitting a specified number of night flights. The Court denied that environmental rights required any special form of protection: Environmental protection should be taken into consideration by governments in acting within their margin of appreciation and by the court in its review of that margin . . . [I]t would not be appropriate for the Court to adopt a special approach in this respect by reference to a special status of environmental human rights.61

The Grand Chamber held that the United Kingdom had struck a fair balance between the rights of the community and the rights of the applicants, having regard to the economic benefits of night flights. This reversed the conclusion of the chamber, which had declared that ‘in the particularly sensitive field of environmental protection, mere reference to the economic well-being of the country is not sufficient to outweigh the rights of others’.62 The majority also highlighted a key distinction between Hatton and other successful Article 8 claims in relation to pollution, namely that in the successful claims, the national authorities had failed to comply with a domestic regulatory scheme.63 This feature was ‘wholly absent’ from the Hatton case, and this made it difficult for the ECtHR to conclude that the United Kingdom had exceeded its wide margin of appreciation.64 In Article 8 claims concerning noise pollution it is especially important that the appli­ cants furnish evidence of the harm caused by the noise. Failure to do so may lead to the claims being declared manifestly unfounded. For example, in Ashworth v UK,65 the appli­ cants complained that noise from a privately owned aerodrome had caused the value of their houses to decrease by approximately one third. Since, however, they had not produced any evidence to show the effect of noise disturbance from the aerodrome on house prices in general or on their properties in particular, the Court declared the application manifestly ill-founded.66 3.  The Relationship with Common Law Nuisance Claims A difficult issue is the proper relationship between the common law of nuisance and claims based on the HRA 1998, given the degree of overlap in terms of the factual circumstances   Hatton (above n 1).   Ibid, para 122. 62   Application No 36022/97, October 2001, para 97. 63  In López Ostra (above n 42), the waste-treatment plant had operated without the necessary domestic licence; in Guerra (above n 44), the applicants had been unable to obtain information that the state had a statutory obliga­ tion to provide; and in Taskin (above n 45), the domestic authorities had failed to enforce a decision of the Supreme Administrative Court annulling the permit granted to the polluting goldmine. 64   Hatton (above n 1) para 120. 65   Ashworth v UK, Application No 39561/98, 20 January 2004. 66  See also Lars and Astrid Fagerskiold v Sweden, Application No 37664/04, 26 February 2008, in which a claim relating to noise from wind turbines was declared to be manifestly ill-founded because the applicants had not furnished the court with any medical certificates to substantiate the allegation that the applicants’ health had been affected by the noise. 60 61

284  Human Rights and the Environment that may give rise to each sort of claim. It is not uncommon for a defendant to be faced with both nuisance claims and claims under the HRA 1998. It is an established principle of the law of nuisance that only those with a legal interest in the property affected may bring a claim.67 By contrast, a much wider class of litigants may claim an interference with their human rights, the only limitation being that they must be ‘victims’ of a violation of the ECHR.68 The Court of Appeal decision in Dobson v Thames Water Utilities,69 illustrates the potential for such interlinked claims, and it clarifies how the two causes of action relate to one another. The claimants in Dobson were more than 1000 local residents seeking to prevent smells and nuisance from mosquitoes emanating from one of Europe’s largest sewage works. They brought claims alleging private nuisance caused by the negligence of Thames Water and a claim for breach of Article 8 ECHR. In a decision on a preliminary issue of law, the High Court had allowed human rights claims by individuals such as children to proceed, even where they did not have a legal interest in the affected property.70 This gave rise to difficult questions in relation to compensation. In private nuisance, a claimant is essentially concerned with interference with the enjoyment of his land, and traditionally damages have been awarded in respect of physical damage to the property and in respect of personal discomfort. Notably, the House of Lords decision in Hunter v Canary Wharf71 confirmed that private nuisance claims are proprietary in nature, and where there has been personal discomfort caused by a nuisance, such as noise or smells, damages are strictly based on the diminution of the property’s value rather than compensation for per­ sonal injury. Thames Water therefore argued that the claimants without a proprietary interest, such as children living in their parents’ home, should not be entitled to separate compensation under the HRA 1998 because any assessment of the diminution in the prop­ erty value would already have taken account of the effect of the nuisance on all persons living in the property. Thames Water contended that to allow human rights claims by nonproperty owners, in circumstances where a nuisance claim has led to compensation being awarded, would make the defendant liable for the same damage twice. The Court of Appeal held that the House of Lords in Hunter had clearly decided that . . . damages in nuisance are for injury to property and not to the sensibilities of the occupier(s). That is so as much for the case of the transitory nuisance interfering with comfort and enjoyment of the land as it is for the case of the nuisance which occasions permanent injury to the land and to its capital value, or other pecuniary loss.72

Nevertheless, the Court of Appeal accepted that when assessing damage to property, assess­ ment of loss of amenity value was necessarily imprecise. Although an estate agent could provide a valuation based on notional drops in rental value, in practice this would take into account the amenity of people occupying the property. However, this did not mean that the claimant in a nuisance action could be said to be recovering damages on behalf of the prop­ erty’s occupiers. Thus, success of the property owner in a nuisance action should not bar other occupiers from bringing claims for breach of their human rights.   Hunter v Canary Wharf Ltd [1997] AC 655.  See above ch 5. 69   Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28, [2009] 3 All ER 319. 70   Dobson v Thames Water Utilities Ltd [2007] EWHC 2021 (TCC), [2008] 2 All ER 362. 71   Hunter v Canary Wharf [1997] AC 655. 72   Dobson v Thames Water (above n 69) para 31. 67 68

ECHR Rights  285 The Court of Appeal did, however, note that the principal remedy for breach of human rights is a declaration that rights have been breached. Damages do not follow as of right; they are discretionary, and the sums awarded will generally be modest. Importantly, the Court of Appeal held that if a court does decide to award damages under the HRA 1998, section 8 requires it to consider other judicial remedies that have already been granted ‘in respect of the act concerned’. The expression ‘other’ remedies was held not only to include other claims under the HRA 1998 but also any other claims in respect of the same impugned activity. Therefore, if, for example, a child claims damages under the HRA 1998, the court may take into account any damages already awarded to the parents in a nuisance claim in respect of the same interference. Consequently, whether children can recover damages in addition to their parents will depend upon the particular facts of each case. Waller LJ explained: [T]he vital question will be whether it is necessary to award damages to another member of the household or whether the remedy of a declaration that Art 8 rights have been infringed suffices, alongside the award to the landowner, especially when no pecuniary loss has been suffered.73

The Court of Appeal did, however, give a strong indication that usually substantial dam­ ages should not be awarded under the HRA 1998 to children whose parents had already received damages in a nuisance claim: [If] the effects of the odour and the mosquitoes upon Thomas Bannister personally were in prac­ tice taken into account in determining the diminution in the amenity value of the property, and therefore in determining the amount of damages awarded to his parents in nuisance, we would regard that as a highly significant consideration when determining whether an award of damages was necessary.74

B.  Article 2 ECHR Article 2 ECHR guarantees the right to life, and only severe environmental harm will engage this provision. Successful Article 2 challenges in the environmental context are rare. ˝  neryildiz v Turkey,75 in which a large number of An example is provided by the case of O people were killed when a landslide destroyed part of a shantytown. The applicants were residents of a slum on the outskirts of Istanbul that adjoined a larger rubbish tip. The state authorities were responsible for the rubbish tip but had not complied with domestic regu­ lations concerning ventilation. As a result, there was a build-up of methane and other gases, which caused an explosion, precipitating a landslide. The ECtHR held that Article 2 had been breached and that it contained a positive obligation which required appropriate steps to be taken to safeguard lives.

C.  Article 1 of Protocol 1 ECHR Article 1 of Protocol 1 ECHR (A1P1) provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.   Ibid, para 45.  Ibid. ˝ neryildiz v Turkey (2005) 41 EHRR 20.  O

73 74 75

286  Human Rights and the Environment It has been held that A1P1 ‘does not, in principle, guarantee the right to the peaceful enjoy­ ment of possessions in a pleasant environment’.76 Nevertheless, in Rayner v UK,77 the Commission considered that noise pollution might engage A1P1: ‘aircraft noise nuisance of considerable importance both as to level and frequency may seriously affect the value of real property or even render it unsaleable and thus amount to a partial taking of property’.78 However, in the absence of any proof that the value of the applicants’ property had been significantly affected such that the applicants would be said to have borne a disproportion­ ate burden amounting to a partial taking of property, no violation was found.79 A1P1 may also be engaged by environmental measures such as the imposition of refor­ estation obligations; the designation of land as a protected natural site;80 a requirement that landowners allow their land to be used for hunting in the interests of encouraging rational management of game stocks;81 or the introduction of fishing restrictions.82

  Rayner v UK (1987) 9 EHRR CD375, para 6; and S v France (1990) 65 DR 250, 261.   Rayner (ibid).   Ibid, para 6. 79  In S v France (above n 76) (construction of a nuclear power station) compensation for noise pollution was paid in respect of a loss in value caused by noise pollution. In Dennis v Ministry of Defence [2003] EWHC 793, [2003] Env LR 34, noise from military aircraft was held to be a nuisance and an interference with the claimant’s A1P1 rights. The public interest was held to require the flying to continue, but this would not be proportionate without compensating the claimant. However, in Vearncombe v UK and Germany, Application No 12816/87, 59 DR 186, the construction of a shooting range was held not to give rise to sufficient levels of nuisance to constitute an interference with property rights. 80   Denev v Sweden, Application No 12570/86, 59 DR 127, 130; Oerlemans v Netherlands, Application No 12565/86, 62 DR 200, 205; and R (on the Application of Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 1580, [2005] 1 WLR 1267. 81   Chassagnou v France (2000) 29 EHRR 615, at para 74. 82   Posti and Rahko v Finland (2003) 37 EHRR 6. 76 77 78

16 The Effect of EU Law This Part of the book focuses on the rights of private persons to enforce EU environmental law and the obligations of Member States to implement EU environmental law. Chapter eighteen considers the rights of private persons to enforce EU environmental law against the EU institutions, and chapter nineteen examines the enforcement of EU environmental law by the Commission against the Member States. This chapter explores the principles established by the European Court of Justice (ECJ) that are of relevance to private persons seeking to enforce EU environmental law in the national courts. The ECJ has played an important role in developing the ability of private persons to enforce EU environmental law because private persons have not been vested with an express power to do so under the Treaties. The first doctrine to be examined is the fundamentally important doctrine of the supremacy of EU law. As a result of this doctrine, EU law takes precedence over domestic law, and any incompatible provisions of domestic law must be dis-applied. The second doctrine discussed is the doctrine of direct effect, which enables private persons to rely on provisions of EU law as sources of rights and obligations in proceedings before domestic courts. Finally, the ECJ’s most recent invention, state liability, is analysed. This doctrine provides a remedy in damages for private persons who have suffered loss due to a Member State’s breach of EU law, and it is of particular importance in the environmental sphere, given the fact that a Member State can be liable for its courts’ failure properly to apply EU environmental law.1 In chapter one above, the difficulties facing private persons in the enforcement of environmental law were highlighted. They are particularly acute in the area of private enforcement of EU environmental law because the ECJ case law is quite often ambiguous and gives rise to considerable uncertainty as to the extent of the EU law rights of private persons. First, there is the difficult question of whether private persons may be entitled to rely on a particular provision contained in EU environmental law before a national court. Secondly, there is the equally problematic question of who the appropriate defendant might be. The ECJ has ruled out enforcement of EU environmental law by one private party directly against another private party. However, this position has been apparently contradicted and undermined by more recent developments, which are explored in detail below. The primary sources of EU law are the Treaties entered into by the Member States. Secondary legislation is made by the EU institutions and comprises regulations, directives and decisions. Article 288 of the Treaty on the Functioning of the European Union (TFEU)2 defines the forms of secondary legislation as follows:   Case C-224/01 Gerhard Köbler v Austria [2003] ECR I-10239.   [2010] OJ C 83/47.

1 2

290  The Effect of EU Law To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form or methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

In the context of environmental law, directives are the principal form of secondary legislation. Regulations are used comparatively rarely, usually where the subject matter relates to issues affecting the circulation of goods or services within the European Union, for example, the Waste Shipment Regulation 259/93,3 Regulation 2037/004 on ozone depleting substances and Regulation 338/975 on trade in endangered species.

I.  The Supremacy of Community Law

A.  Dis-application of Incompatible National Law In Costa v ENEL,6 the ECJ established the supremacy of EU law. It stated: As opposed to other international treaties, the Treaty instituting the EEC has created its own order, which was integrated with the national order of the member states the moment the Treaty came into force; as such, it is binding upon them. In fact, by creating a Community of unlimited duration, having its own institutions, its own personality and its own capacity in law, apart from having international standing and more particularly, real powers resulting from a limitation of competence or a transfer of powers from the States to the Community, the member states, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves. The reception, within the laws of each member state, of provisions having a Community source, and more particularly of the terms and of the spirit of the Treaty, has as a corollary the impossibility, for the member state, to give preference to a unilateral and subsequent measure against a legal order accepted by them on a basis of reciprocity . . . The transfer, by member states, from their national order, in favour of the Community order of the rights and obligations arising from the Treaty, carries with it a clear limitation of their sovereign right upon which a subsequent unilateral law, incompatible with the aims of the Community, cannot prevail.7

The doctrine of supremacy means that EU environmental law takes immediate precedence over existing and subsequent conflicting domestic law, requiring the domestic courts to dis-apply domestic law that is incompatible with supreme EU law.8

  [1993] OJ L30/1.   [2000] OJ L244/1.   [1997] OJ L61/1. 6   Case C-6/64 Costa v ENEL [1964] 3 ECR 585. 7   Ibid, 593. 8   Case C 35/76 Simmenthal v Italian Minister of Finance [1976] ECR 1871; and Case C-213/89 R v Secretary of State for Transport, ex p Factortame [1990] ECR I-2433. 3 4 5

The Supremacy of Community Law  291

B.  The Source of Rights That binding European environmental legislation can be a source of valuable environment rights is well illustrated by the litigation on EU air quality standards. In Dieter Janecek v Friestaat Bayern,9 the ECJ held that individuals have a right to require authorities to draw up action plans where EU air quality standards are at risk of being breached. The case concerned Directive 96/6210 on ambient air quality assessment and management, which provides for limit values to be laid down for various pollutants, as well as alert thresholds. Article 7(1) provides that Member States must take the ‘necessary measures to ensure compliance with the limit values’, and Article 7(3) requires Member States to draw up action plans indicating short-term measures to be taken ‘where there is a risk of the limit values and/or alert thresholds being exceeded, in order to reduce that risk and to limit the duration of such an occurrence’. The claimant in Dieter Janecek lived near Munich’s main ring road and brought a claim arguing that the air quality limit values for particulate matter had been exceeded many times in the area near his house outside the city boundaries. He sought an order requiring the local authority to draw up an action plan. The ECJ held that the Directive clearly obliged Member States to draw up action plans where limit values or alert thresholds were at risk of being exceeded, and it concluded: [I]t follows from the foregoing that the natural or legal persons directly concerned by a risk that the limit values or alert thresholds may be exceeded must be in a position to require the competent authorities to draw up an action plan where such a risk exists if necessary by bringing action before the competent courts.11

Consequently, the binding EU Directive was a source of individual rights, which citizens could rely upon in order to compel administrative action on the part of their domestic public authorities. Given the discretionary nature of directives, domestic authorities are, however, likely to be given the freedom to decide precisely which measures to take. As such, individuals may have no right to claim that particular administrative action should be taken. For example, in Dieter Janecek, the ECJ held, in relation to the content of the action plan, that the Directive did not oblige Member States to take measures to ensure that limit values or thresholds were never exceeded. Instead, the action plan must include short-term measures to reduce the risk and duration of exceedances. In drawing up such short-term measures, Member States have a degree of discretion, and the obligation is merely . . . subject to judicial review by the national courts, only to take such measures – in the context of an action plan and in the short term – as are capable of reducing to a minimum the risk that the limit values or alert thresholds may be exceeded and of ensuring a gradual return to a level below those values or thresholds, taking into account the factual circumstances and all opposing interests.12

  Case C-237/07 Dieter Janecek v Friestaat Bayern [2008] ECR I-6221.   [1996] OJ L296/55. 11   Dieter Janecek (above n 9) para 39. 12   Ibid, para 47 9

10

292  The Effect of EU Law II.  Direct Effect of Treaty Provisions and Regulations

A.  Direct Effect of Treaty Provisions Although the Treaty of Rome did not make express provision for direct effect, the ECJ has held that since the Treaty confers rights on EU citizens, it is implicit that those rights must be capable of enforcement in the national courts. The doctrine was first articulated in Van Gend en Loos v Netherlands Inland Revenue Administration,13 which concerned import duties imposed on a chemical substance imported into the Netherlands from the former West Germany. The Dutch government applied an import duty of 8 per cent, whereas the claimant argued that it should have continued to impose the previous duty of 3 per cent. The claimant argued that by increasing the duty after the Treaty of Rome had come into force, the Dutch government had violated Article 12 of the Treaty (now Article 30 TFEU), which provides for the free movement of goods between Member States. The Dutch court referred the question whether Article 12 had direct application in national law in the sense that nationals of Member States may on the basis of that Article lay claim to rights that the national courts must protect. The ECJ answered that Treaty provisions could indeed be directly effective, giving rights to citizens that national courts must protect: The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well upon the Member States and upon the institutions of the Community.14

The ECJ held that if a Treaty provision is to confer individual enforceable rights, it must: (i) indicate that it applies not only to Member States but also to individuals within the States; (ii) be clear and precise; (iii) be unconditional and unqualified and not subject to any further measures on the part of Member States; and (iv) not leave any substantial latitude or discretion to Member States. On the facts, the ECJ held that Article 12 satisfied these tests because it was clear and unconditional; it required no legislative intervention by the Member States; and because the Member States had no power to subordinate Article 12 to their own laws.

B.  Direct Effect of Regulations A regulation is defined in Article 228 TFEU as having ‘general application’ and being ‘binding in its entirety and directly applicable in all Member States’. Regulations are capable of having direct effect, provided they are sufficiently precise, clear and unconditional.15 A 13   Case 26-62 NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 3. 14   Ibid, para 11. 15   Case C-34/73 Fratelli Variola SpA v Amministrazione italiana delle Finanze [1973] ECR 981; and Case C-43/71 Politi sas v Ministry for Finance of the Italian Republic [1971] ECR 1039.

Legal Effects of Directives  293 major difference between the direct effect of regulations and that of directives is that regulations may be enforced against individuals as well as Member State authorities because they are ‘generally binding’ in character.16 A regulation is intended to be a self-executing legal instrument; therefore Member States are not required to, indeed they may not, seek to transpose regulations into their legal system by way of domestic implementing measures, unless the particular regulation requires such action to be taken.17

III.  Legal Effects of Directives

The significance of Van Gend en Loos for environmental lawyers lies in the fact that the ECJ has now extended the doctrine of direct effect from Treaty provisions to other legal instruments, notably directives. This is important because EU environmental legislation mostly takes the form of directives. A directive imposes an obligation of result, not of means. As Article 228 TFEU makes clear, directives are binding on Member States as to the result to be achieved, but the actual form of the legislation and the methods to be adopted in order to achieve that result are left to each Member State to choose. This section looks first at the duty to implement directives and analyses the ECJ case law on the question of whether a Member State’s implementation is adequate. Secondly, the principles of interpretation applicable to legislation implementing directives are examined. Thirdly, the legal position of private parties in cases of inadequate implementation is addressed. A Member State may fail to take any measures to implement a directive within the required time frame; it may adopt incomplete measures; or it may mis-implement the provisions of a directive. In each of these cases it is important to determine whether an individual may rely, via the doctrine of direct effect, on the terms of a directive, notwithstanding the fact that the directive has not been properly implemented into national law.

A.  The Duty to Implement: Interpretation of Environmental Directives The duty of Member States to implement an environmental directive derives from three sources: first, Article 288 states that directives are ‘binding as to the results to be achieved’; secondly, Article 4(3) TFEU18 (ex-Article 10) contains the principle of loyal co-operation or fidelity: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

16   Case C-253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR I-7289. 17   Case C-39/72 Commission v Italy [1973] ECR 101. 18   [2010] OJ C 83/13.

294  The Effect of EU Law Thirdly, Article 192(4) TFEU (ex-Article 175(4)) imposes specific obligations in relation to Community environmental policy. It provides that ‘[w]ithout prejudice to certain measures adopted by the Union, the Member States shall finance and implement the envir­ onment policy.’ The ECJ has held that these obligations to implement EU directives on the environment require practical compliance, not merely a Member State doing its best to implement. This is well illustrated by the decision in the first UK drinking water case.19 The issue in that case was whether the UK government was in breach of the Drinking Water Directive20 by exceeding the maximum standards permitted in the Directive for concentration of nitrates in drinking water. The government contended that it had done everything within its power to comply with the Directive’s requirements. However, the ECJ held that this was not enough. The obligation to implement was an absolute not a relative requirement, and it required practical compliance. This strict approach is particularly necessary in the environmental sphere, given the fact that if Member States were to fail fully to implement environmental protection directives, this could entirely frustrate the purpose of directives.

B.  Vertical Direct Effect ‘Vertical’ direct effect denotes the capacity of a provision of a directive to be invoked by private individuals or companies against the authorities of a Member State. In Van Duyn v Home Office,21 the ECJ first held that directives may have vertical direct effect. The reasoning in support of vertical direct effect that has come to prevail is the estoppel justification first referred to in Criminal Proceedings against Tullio Ratti:22 a Member State that has not adopted the implementing measures required by a directive in the prescribed period cannot rely upon its own failure to perform its obligations in order to deny an individual the benefit of the directive. Direct effect applies only for the benefit of individuals and companies. The ECJ has held that a directive can be invoked against the authorities of a Member State, but the state may not rely on direct effect against private persons.23 The reason for prohibiting so-called inverse direct effect is linked to the nature and purpose of directives, as well as to the estoppel rationale for direct effect. Directives are as a matter of principle intended to be addressed to Member States, not to individuals. Article 288 TFEU refers to directives being binding on the Member States to whom it is addressed and clearly envisages the entire legislative process being finalised only when national legislation is adopted in order to implement the directive. Private individuals should not therefore be under obligations when a state has failed to honour its supranational legal commitment to implement. This restriction does, however, mean that in the environmental context national authorities may not seek to enforce the terms of a directive against private persons with a view to ensuring that the relevant environmental protection standards are upheld. The ECJ has dealt with this point on a number of occasions, commencing with its decision in Pretore di Salo v Persons Unknown.24 Many of the cases concern whether public authorities may use   Case C-337/89 Commission v United Kingdom [1992] ECR I-6103.   80/778/EEC, [1980] OJ L 229/11. 21   Case 41/74 Van Duyn v Home Office [1974] ECR 1337. 22   Case 148/78 Criminal Proceedings against Tullio Ratti [1979] ECR 1629. 23   Case C-80/86 Criminal Proceedigns against Kolpinghuis.Nijmegen BV [1987] ECR 3969. 24  C-14/86 Pretore di Salo v Persons Unknown [1987] ECR 2545. 19 20

Legal Effects of Directives  295 environmental directives in the context of criminal investigations and prosecutions in respect of unlawful pollution. In Pretore di Salo, the defendant had been charged with various acts of disrupting the course and quality of the Chiese River in Italy by erecting dams and discharging dangerous substances. The ECJ held that Directive 78/65925 on fresh water quality could not, of itself and independently of national law adopted for its implementation, have the effect of determining or aggravating criminal liability of persons who acted in contravention of the Directive.26 The same approach has been taken in a series of cases relating to the management of waste in which the ECJ has held that environmental protection authorities may not rely on EU waste directives in order to prosecute polluters.27 For a directive to have vertical direct effect, a number of conditions must be satisfied. In an often cited passage, the ECJ held in Becker v Finanzamt Münster-Innenstadt that in order for a directive to be directly effective, it must be unconditional and sufficiently precise: [W]herever the provisions of a Directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may . . . be relied upon as against any national provision which is incompatible with the Directive or insofar as the provisions define rights which individuals are able to assert against the state.28

Those criteria were restated and elaborated in Agricola Zootecnica S Antonio v Amministrazione delle finanze dello Stato: The Court has consistently held . . . that, whenever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon before the national courts by an individual against the State where that State has failed to implement the directive in national law by the end of the period prescribed or where it has failed to implement the directive correctly. A Community provision is unconditional where it sets forth an obligation which is not qualified by any condition, or subject, in its implementation or effects, to the taking of any measure either by the Community institutions or by the Member States . . . Moreover, a provision is sufficiently precise to be relied on by an individual and applied by a national court where it sets out an obligation in unequivocal terms.29

The test for direct effect would appear to pose a number of problems for claimants seeking to rely on an environmental directive. First, environmental provisions may not confer enforceable individual rights. It has been argued that direct effect presupposes that a directive confers rights on the claimant.30 Second, the recent trend is for the use of general framework directives, and it is questionable to what extent these are ‘sufficiently precise’ to be directly effective.31 Third, many environmental law directives are couched in discretionary language, such as the obligation to designate ‘suitable’ areas under the Birds Directive.32   [1978] OJ L222/1.   Pretore di Salo (above n 24) para 20. 27  Case C-372-4/85 Ministere public v Oscar Traen [1987] ECR 2141; Case C-168/95 Criminal Proceedings against Luciano Arcaro [1996] ECR I-4705; Case C-304/94 Criminal Proceedings against Euro Tombesi [1997] ECR I-3561;Case C-235/02 Criminal Proceedings against Marco Antonio Saetti [2004] ECR I-1005; and Case C-457/02 Criminal Proceedings against Antonio Niselli [2004] ECR I-10853. 28   Case C-8/81 Ursula Becker v Finanzamt Münster-Innenstadt [1982] ECR 53, para 1. 29   Case C-246/94 Cooperativa Agricola Zootecnica S Antonio v Amministrazione delle finanze dello Stato [1996] ECR I-4373, paras 17–19. 30   C Hilson, ‘Community Rights in Environmental Law: Rhetoric or Reality?’ in J Holder (ed), The Impact of EC Environmental Law in the United Kingdom (London, Wiley & Sons, 1997). 31   Eg, Directive 2000/60 EC, [2008] OJ L81/60 (Water Framework Directive) and Directive 2008/98/EC, [2008] OJ L312/3 (Revised Waste Framework Directive). 32   Directive 79/409/EEC, [1979] OJ L103/1. 25 26

296  The Effect of EU Law It is not immediately apparent that such obligations are ‘unconditional’, as is required for them to have direct effect. However, as will be seen, the ECJ has taken a broad, purposive approach and has generally permitted environmental directives to have direct effect in order promote the effective enforcement of EU environmental law.33 1.  Expiration of the Time Period for Implementation Due to its transitional nature, a directive will not be directly effective until the time limit for implementation has expired. This is well illustrated by the facts of Ratti,34 which concerned two Directives dealing with the packaging and labelling of solvents and varnishes respectively. The claimant ran a company in Italy that sold both solvents and varnishes. It packaged and labelled its products in compliance with the two Directives, even though neither had been implemented in Italy. This fell afoul of Italian legislation passed in 1963, and the claimant was prosecuted. At the relevant time, the deadline of implementing the first Directive had expired, but the implementation period for the second Directive had not. The ECJ held that a directive can become directly effective only once the deadline for implementation has expired. Therefore EU law provided the claimant with a defence to the Italian charges relating to the solvents but not to those concerning the varnishes. Member States are typically permitted three years to implement a directive from the date of its adoption. This ought to provide ample time for implementation, given that adoption will have occurred several years after the issue was first raised in discussions between Member States. It would be wrong, however, to assume that a directive has no relevance between the date of its adoption and the expiry of the implementation period. The ECJ has developed a doctrine according to which Member States must refrain from taking any measures that would be liable to seriously compromise the result prescribed by a directive during the transitional period. The leading case is Inter-Environmental Wallonie ABSL v Region Wallonie,35 which concerned the transitional period before amendments to the Waste Framework Directive 75/44236 had to be transposed into national law. The Belgian government had purported to exempt certain hazardous industrial operations from the need for a waste management permit. The ECJ held that after a directive has been notified, Articles 288 and 4(3) TFEU (ex-249 and ex-10 EC respectively) precluded Member States from taking measures ‘liable seriously to compromise the result prescribed’.37 National courts may therefore review measures taken during the transitional period, and they must set them aside if they are liable seriously to compromise the result prescribed by the directive.38 The ECJ held in ATRAL SA v Belgium39 that the obligation to set aside national provisions liable seriously to compromise the result of a directive applies not only to rules of domestic law intended to transposed a directive but also to other rules of domestic law.40 It had been thought that the threshold of ‘liable seriously to compromise’ was a relatively high one. However, the ECJ appeared to lower the standard in its controversial ruling in

  See P Wennerås, The Enforcement of EC Environmental Law (Oxford, Oxford University Press, 2007) ch 2.   Above n 22. 35   Case C-129/96 Inter-Environmental Wallonie ASBL v Région Wallonie [1997] ECR I-7411. 36   [1975] OJ L194/39. 37   Inter-Environmental (above n 35) para 45. 38   Ibid, para 46; and Case C-14/02 ATRAL SA v Belgian State [2003] ECR I-4431. 39   ATRAL (ibid). 40   Ibid, paras 58–59. 33 34

Legal Effects of Directives  297 Mangold v Rüdiger Helm.41 The case concerned Directive 2000/78/EC,42 which established a general framework for equal treatment in employment and occupation. Germany had introduced a rule prohibiting fixed-term employment contracts unless there was objective justification. The legislation, which came into force in 2003, provided that objective justification was not necessary if a worker was aged fifty or over. It also provided that until 31 December 2006, fixed-term contracts without objective justification would be permitted for workers aged fifty-two or over when the contract began. The aim of this legislation was to make it easier for older workers to obtain jobs. Mr Mangold had a fixed-term contract from 1 July 2003 until 28 February 2004, and he was fifty-six years of age at the time the contract commenced. The contract stated that there was no objective justification for the fixed-term other than Mr Mangold’s age. He sued his employer, arguing that the provision limiting the term of his contract was contrary to Directive 2000/78. The deadline for implementing the Directive was 2 December 2006. Therefore, the impugned national law would only be in force for a further twenty-nine days after the deadline for implementing the Directive had expired. It is extremely difficult to see how the incompatible national legislation could be said to ‘seriously compromise’ the attainment of the result to be achieved by the Directive. Nevertheless, the ECJ applied the Inter-Environmental decision43 and held that the German legislation must be dis-applied.44 Perhaps the best explanation for this decision lies in the fact that the deadline for implementation was originally three years earlier, and Germany had taken advantage of a permitted extension to that implementation period. Where such an extension is permissible, Member States have to report annually to the Commission on the progress that they have made. The ECJ held that this implied that Member States could not adopt legislation that moved away from the objectives of the directive during the extended implementation period. The decision may also have been influenced by considerations of effectiveness. By the time the deadline for implementation was due to expire, the claimant would have been fifty-eight years old and would have been caught by the general rule that fixed-term contracts were permitted without objective justification if the worker was aged fifty or above. Only by allowing Mangold to challenge the German legislation during the extended implementation period could the ECJ enable him to benefit from the rights conferred by the Directive. 2.  Conferral of Rights Needed? Although direct effect in Van Gend en Loos appeared to be predicated on the relevant provision of EU law conferring rights on claimants, later case law shows that rights are not a precondition to direct effect: they are the consequence of direct effect.45 The leading decision is Kraaijeveld v Gedeputeerde Staten van Zuid-Holland,46 which concerned Directive 85/337/EEC (the Environmental Impact Assessments (EIA) Directive).47 The case involved the failure of the Dutch authorities to comply with the EIA Directive when approving a   Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981.   [2000] OJ L303/16. 43   Above n 35. 44   Mangold (above n 41) para 70. 45   See further Wennerås (above n 33) ch 2. 46   Case C-72/95 Aannemersbedrifj PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland [1996] ECR I-5403. 47   [1985] OJ L175/40. 41 42

298  The Effect of EU Law zoning plan authorising the reinforcement of certain dyke works designed to protect inland areas from storm tides. The planned works would have closed access for the claimant company to navigable waterways upon which its business operations depended. No environmental impact assessment was carried out because the size of the works fell below the minimum threshold set by national legislation. The claimant contended that the failure to carry out an environmental impact assessment breached the Directive. The ECJ held: As regards the right of an individual to invoke a directive and of the national court to take it into consideration . . . it would be incompatible with the binding effect attributed to a directive by Article 189 [now 288 TFEU] to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. In particular, where the Community authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from the relying on it before the national courts.48

The subsequent case of WWF v Bozen49 affirms this approach. In that case, the Italian branch of the World Wildlife Fund sought judicial review of a planned construction project intended to extend the length of an existing airport runway. The length of the runway fell short of the minimum requirement in the EIA Directive for a mandatory environmental impact assessment. Instead, it fell within the ambit of Article 4(2) and Annex II of the Directive, which gave Member States a degree of discretion as to whether or not to require an assessment. Under the relevant Italian planning legislation, the region’s executive officials merely had to consider a simplified impact study – a procedure not envisaged by the Directive. That simplified study failed to carry out an investigation into the impact of the project in terms of noise and atmospheric changes and therefore omitted to examine matters that would have been considered in an environmental impact assessment complying with the Directive. In a preliminary reference, the ECJ held that where a project required an environmental impact assessment according to the EIA Directive, an alternative procedure not envisaged by the Directive would not be permitted because this would undermine the environmental protection objective underpinning the Directive.50 The ECJ also followed Kraaijeveld, and in relation to private enforcement of the Directive, it held: Articles 4(2) and 2(1) of the Directive are to be interpreted as meaning that, where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions. In such a case, it is for the authorities of the Member State to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment, and if so, to ensure that they are subject to an impact assessment.51

Some commentators have questioned whether the Kraaijeveld line of case law is really an example of direct effect at all.52 However, the better view is that the doctrine of direct effect   Ibid, para 56.   Case C-435/97 WWF v Autonome Provinz Bozen [1999] ECR I-5613. 50   Ibid, para 53. 51   Ibid, para 71. 52   M Hedemann-Robinson, Enforcement of EU Environmental Law (London, Routledge Cavendish, 2007). 48 49

Legal Effects of Directives  299 allows individuals to enforce both traditional private law rights and public law rights.53 The EIA Directive required the relevant local planning authorities to ensure that an assessment would be carried out, and it required national courts to set aside decisions taken in breach of duty. If Member States exceed the limits of the discretion given to them by a directive, their citizens will have a public law right to enforce the provisions of the directive if those provisions are sufficiently precise and unconditional. In order to confirm this view it is important to examine cases outside the context of EIA. It has been held that environmental provisions that seek to protect public health do confer rights on individuals,54 and of course the EIA Directive at issue in Kraaijeveld did confer rights because, as the preamble stated, it sought to protect public health. Nevertheless, in subsequent cases, the ECJ, relying on Kraaijeveld, has held environmental directives to be directly effective even though they do not seek to protect public health. For example, in Waddenzee v Saatssecretaris van Landbouw, Natuurbeheer en Visserij,55 one of the issues was whether Article 6(3) of the Habitats Directive56 was directly effective. Neither Article 6(3) nor the rest of the Habitats Directive seek to protect public health. Instead, Article 6(3) provides that any ‘plan or project’ not directly connected with or necessary to the management of a protection area but likely to have a significant effect thereon, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In addition, the competent national authorities may give consent for the plan or project only if it can be ascertained that it will not adversely affect the integrity of the site concerned. The ECJ cited Kraaijeveld and held that it not only applied to challenges to domestic implementing measures but also, in the absence of implementation, to domestic measures taken in breach of the Directive’s requirements. Article 6(3) of the Habitats Directive prevented the licensing of mechanical cockle fishing unless, following an appropriate assessment, the domestic authorities concluded that the activity would not adversely affect the integrity of the protected site. Therefore, the national court could quash domestic licensing decisions taken in breach of Article 6(3).57 In other words, Article 6(3) has direct effect. Similarly, the decision in WWF v Regione Veneto58 shows that the Birds Directive59 may be directly effective even though no human interests are at stake. The claim was brought by Italian nongovernmental organisations (NGOs) against the regional authority seeking to quash its decision to fix the hunting calendar for 1992–93 on a basis that, they argued, contravened the Birds Directive. Article 5 of the Directive imposed a general hunting ban, but Article 7(1) stipulated that Member States may authorise the hunting of bird species listed in Annex II. Additionally, Member States could exceptionally authorise the hunting of other birds under the strict conditions imposed by Article 9. The claimants contended that the calendar had authorised the hunting of species not listed in Annex II without complying with the conditions prescribed by Article 9. The ECJ held that the Article 9 conditions 53   J Scott, EC Environmental Law (London, Longman, 1998); and JH Jans, European Environmental Law, 3rd edn (Groningen, Europa Law, 2008). 54   See, eg, Case C-361/88 Commission v Germany [1990] ECR I-2567, para 16; C-59/89 Commission v Germany [1991] ECR I-2607, para 19; and C-58/89 Commission v Germany [1991] ECR I-4983, para 14. 55   Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Saatssecretaris van Landbouw, Natuurbeheer en Visserij [2004] ECR I-7405. 56   92/43/EEC, [1992] OJ L27/23. 57   Waddenzee (above n 55) para 70. 58   Case C-118/94 Associazione Italiana per il World Wildlife Fund v Regione Veneto [1996] ECR I-1223. 59   Above n 32.

300  The Effect of EU Law that enable Member States to derogate from the hunting ban were sufficiently precise and unconditional provisions, and they could therefore be relied upon by individuals against any national authority.60 There was no public health element to this Directive, and no private rights were conferred upon individuals. Nevertheless, direct effect was given to the provisions of Article 9, suggesting that rights are the consequence of direct effect rather than a precondition. 3. Unconditionality The requirement of unconditionality means that the relevant provision of a directive must be in a self-contained norm, the requirements of which may be derived from its terms alone without being dependent on further measures being taken at either EU or national level. As Wennerås has explained, the requirement that a directive be unconditional before it can have direct effect is actually comprised of a number of discrete sub-requirements.61 First, the relevant obligation must be binding on national authorities. If the directive merely confers a discretion or competence to act rather than an obligation, the directive will not be unconditional. In the environmental context, there are a number of obligations that are not legally binding. Environmental directives commonly require Members States to ‘encourage’ a particular activity or outcome. For example, Article 4(2) of Directive 2008/98/EC (the 2008 Waste Framework Directive)62 states that ‘When applying the waste hierarchy referred to in paragraph 1 [of Article 4], Member States shall take measures to encourage the options that deliver the best overall environmental outcome.’ Although such provisions oblige Member States to take certain measures, they do not impose an obligation of result, and therefore they are probably not directly effective because they are not binding and thus not unconditional. Another sense in which a directive may not be ‘unconditional’ is where it affords the Member States discretion to choose between different regulatory alternatives. In such circumstances, the courts should not use the doctrine of direct effect to deprive the legislature or the administration of a Member State of the opportunity to make that regulatory choice. This is illustrated by the ECJ decision in Difesa della Cava v Regione Lombardia,63 which concerned Article 4 of Directive 75/442/EC (the Waste Directive).64 That provision left national authorities free to choose between different methods of waste disposal, provided they ensured that the policy did not endanger human health or the environment. Consequently, this discretion meant that the claimant could not show that the Directive unconditionally required Member States to follow a particular waste disposal method. In other words, Article 4 was a provision defining the framework for Member State action on waste treatment, and it did not require the adoption of specific measures. The Court explained:

  Regione Veneto (above n 58) para 19.   Wennerås (above n 33) 32. 62   [2008] OJ L312/3. 63   Case C-236/92 Comitato di Coordinamento per la Difesa della Cava v Regione Lombardia [1994] ECR I-483. See also Case C-216/02 Zuchtverband für Ponys v Burgenlandische Ländesregierung [2004] ECR I-10683, in which the national authorities’ decision to grant recognition to a new pony association could not be challenged for noncompliance with EU law because the relevant provision afforded the authorities discretion in deciding whether to recognise an association or not. 64   [1975] OJ L 194/39. 60 61

Legal Effects of Directives  301 Considered in its context, Article 4 of the Directive, which essentially repeats the terms of the third recital in the preamble, indicates a programme to be followed and sets out the objectives which the Member States must observe in their performance of the more specific obligations imposed on them by Articles 5 to 11 of the Directive concerning planning, supervision and monitoring of waste-disposal operations. It must also be noted that the Court has already held, in relation to the Member States’ obligations under Article 10 of the Directive, that that provision does not lay down any particular requirement restricting the freedom of the Member States regarding the way in which they organize the supervision of the activities referred to therein but that that freedom must be exercised having due regard to the objectives mentioned in the third recital in the preamble to the Directive and Article 4 thereof. Thus, the provision at issue must be regarded as defining the framework for the action to be taken by the Member States regarding the treatment of waste and not as requiring, in itself, the adoption of specific measures or a particular method of waste disposal. It is therefore neither unconditional nor sufficiently precise and thus is not capable of conferring rights on which individuals may rely as against the State.65

Is important to note, however, that not all discretion will lead to a directive failing the ‘unconditional’ test. If a directive contains a legal concept that is capable of various interpretations, the discretion as to the correct meaning will not prevent a directive from being unconditional. It is the task of the courts to determine what the correct legal meaning is, and Member States do not enjoy genuine discretion as to the regulatory choice to be followed. Advocate General Elmer applied this distinction between discretion as to the meaning of a legal term and discretion as to the manner of achieving a particular policy outcome in Kraaijeveld. The Advocate General recognised that some discretion was given when interpreting the notion of ‘significant effect’ in the EIA Directive, but he concluded that it was discretion as to meaning rather than discretion permitting Member States to differ in their approach: The decision as to whether an effect is to be designated as significant is a discretionary one. It is not, however, an unfettered discretion or a discretion the exercise of which is conditional upon the Member States laying down further provisions. It is, rather, a legal discretion the exercise of which is entirely suitable for judicial review in the light of all the specific circumstances affecting the individual project.66

This distinction, although clear in principle, may be difficult to draw in practice. As Wennerås has observed, there was a great deal of uncertainty whether the obligation to designate ‘suitable areas’ under the Birds Directive referrs only to ornithological criteria or whether Member States enjoy discretion to consider other factors – in other words, whether it confers a legal discretion for the courts or a policy discretion for the Member States.67 The matter was finally resolved in Commission v Spain,68 in which the ECJ held that the Directive does not permit the Member States to have regard to social or economic considerations and that they must designate sites purely on the basis of ornithological criteria.69 The obligation to designate areas satisfying these criteria is therefore unconditional because the discretion conferred is only a legal discretion.   Ibid [12]–[14].   Kraaijeveld (above n 46) para 73.   Wennerås (above n 33) 33–34. 68   Case C-355/90 Commission v Spain [1993] I-4221. Previously in the Leybucht case (C-57/89 Commission v Germany [1991] ECR I-883, para 20), it had been indicated that the Member States did enjoy a choice as to which areas were suitable for conservation. 69   Ibid [26]. 65 66 67

302  The Effect of EU Law There was similar uncertainty as to the type of discretion conferred in relation to the obligation to designate waters under Directive 91/676/EEC (the Nitrates Directive).70 However, in the French Nitrates case,71 the ECJ held that the key criterion for designation is whether the waters are ‘eutrophic’. Thus, the discretion relates only to the legal meaning of the Directive, and Member States have an obligation to designate on the basis of the objective criterion laid down by the ‘correct’ interpretation of the Directive. A Member State that has exercised discretion conferred by a directive cannot escape liability by pointing to the fact that it need not have taken the particular action that it did. For example, in the Leybucht case,72 in which Germany had designated a special protection area under the Birds Directive and failed to take the necessary protective measures in respect of certain parts of that area, it could not plead in its defence that at the outset it could have designated a smaller area excluding those parts for the special protection area. The final way in which an obligation may fail to be ‘unconditional’ is if further implementation is required in addition to the basic requirement to transpose the directive. In Étang de Berre v Electricité de France,73 the claimants were local fishermen who objected to the fact that power stations were discharging material into a lagoon near Marseilles without authorisation. Article 6 of the Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources provided that the discharge of certain pollutants listed in Annex II must be subject to authorisation. Article 7 of the Protocol provided that contracting states must stipulate criteria governing the conditions under which authorisation may be given. The defendants contended that Article 6 was conditional upon the adoption of the further implementing measures specified in Article 7. The ECJ rejected this argument because on the facts the polluting power stations had not obtained any authorisation at all.74 Since Article 6 absolutely prohibited discharges of Annex II substances without prior authorisation, it could be invoked by the fishermen where no authorisation had been obtained. Implicitly, the matter would have been decided differently had the power stations obtained authorisation under national law but not in compliance with the Directive.75 In such a scenario, the claimants would be challenging the conditions attached to the authorisation granted under domestic law; but the validity of the domestic conditions would depend upon the criteria yet to be adopted pursuant to Article 7. Therefore, in respect of a challenge to the conditions of an authorisation, Article 6 can be seen to be conditional on further implementing measures. The same approach can be seen in Becker.76 In that case, Germany had failed to transpose into national law of the Sixth Value-Added Tax (VAT) Directive 77/388,77 according to which Member States were required to exempt transactions involving the grant and negotiation of credit from VAT ‘under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and of preventing any possible evasion, avoidance or abuse’.78 The German tax authorities had refused to   [1991] OJ L375/1.   Case C-258/00 Commission v France (French Nitrates) [2002] ECR I-5959. 72   Case C-57/89 Commission v Germany [1991] ECR I-883. 73   Case C-213/03 Syndicat professionnel coordination des pecheurs de l’étang de Berre et de la région v Electricité de France [2004] ECR I-7357. 74   Ibid, para 42. 75   Wennerås (above n 33) 36. 76   Above n 28. 77   [1977] OJ L145/1. 78   Sixth VAT Directive (ibid) Art 13B. 70 71

Legal Effects of Directives  303 waive VAT liability in respect of the claimant, a person trading in the grant and negotiation of credit. The ECJ held that the Directive was unconditional, notwithstanding the fact that conditions were attached to the provision requiring the measures to be taken by Member States to prevent tax fraud. It held that it was possible to discern a clear minimum legal guarantee granting a tax exemption that could be severed from the ‘general body of provisions and applied separately’.79 The Court’s reasoning in these cases is underpinned by the estoppel rationale. A Member State may not plead its own omission in taking further implementing measures in order to refuse to grant the clear minimum legal guarantee provided by a directive.80 Identifying the minimum legal guarantee provided by a particular provision of a directive is not always straightforward, as Francovich v Italy demonstrates.81 The Italian government had failed to transpose a Directive protecting workers in the event of insolvency.82 That Directive required Member States to ensure that employees of insolvent firms should be entitled to receive compensation for outstanding payments owed to them by the insolvent employer. Member States were given a choice of three dates from which payment should be made when implementing a range of formulae to calculate the maximum level of com­ pensation. Depending on the date chosen, Member States were entitled to restrict liability to periods of three months or eight weeks. Additionally, they were entitled to set a ceiling on the level of liability and to introduce antifraud measures. The ECJ held that notwithstanding the discretion inherent in these options, there was a minimum guaranteed level of payment that could be gleaned from the terms of the Directive. However, the Directive was not directly effective, because it required Member States to establish the particular entities responsible for providing the guaranteed payments to affected employees. In the absence of these particular entities being established, the terms of the Directive were not unconditional.83 This sense in which a directive may not be unconditional is especially important in the environmental context because many directives require protective measures to be taken in relation to special protection areas, which raises the question whether the obligation to protect is conditional upon prior designation. In relation to the Birds Directive, it appears that the obligation to protect is not conditional upon further implementing measures being taken, namely designation actually taking place. In Commission v Spain,84 the ECJ held that because it could be established on the basis of objective criteria stated in the Directive that the Santoña Marshes should have been designated as a special protection area, the obligation in Article 4(4) of the Directive applied, notwithstanding the fact that the area had erroneously not been designated.85 However, the position in relation to the Habitats Directive seems to differ. Under the Habitats Directive, it is the Commission itself that draws up the list of nominated sites to be designated. Therefore, the obligation to take protective measures in Article 6(2) and (3) is conditional upon the Commission making its decision, and it cannot be enforced before a decision is made.86 As soon as the Commission’s decision is made, however, Member States must protect the designated sites.87   Becker (above n 28) paras 29 and 32.   Ibid, para 33. 81   Case C-6, 9/90 Andrea Francovich v Italian Republic [1991] ECR I-5357. 82   Directive 80/987, [1980] OJ L283/23. 83   Francovich (above n 81) para 25. 84   Case C-355/90 Commission v Spain [1993] ECR I-4221. 85   Ibid, para 33ff. 86   See J Jans, European Environmental Law (Groningen, Europa Law Publishing, 2000) 181. 87  C-117/03 Società Italiana Dragaggi SpA v Ministero delle Infrastrutture e dei Trasporti [2005] ECR I-167, para 29. 79 80

304  The Effect of EU Law 4. Precision A vast number of areas are touched by environmental law, from water and air pollution to species protection and waste disposal. Because of the diversity of subject matter, environmental directives differ greatly in their form and substance. On the one hand there are specific directives prescribing very detailed results and containing numerically defined obligations.88 On the other hand, in many areas, the modern trend is for directives to be quite general in nature, dealing with matters of policy in a broad manner. There are so-called ‘framework’ or ‘mother’ directives, which outline general rules and requirements applicable in a particular area and enable the details to be spelled out later by one or more ‘daughter’ directives. Environmental directives may also contain open-ended qualifications, such as the obligation to use the ‘best available technology not entailing excessive cost’. Another modern trend is for environmental policy to be decentralised and to provide Member States with a good deal of discretion, for example the requirements to develop plans or programmes to enhance a general objective found in the Waste Framework Directive 2008/98/EC to prepare waste management and prevention programmes. This diversity of approach raises an important question for environmental lawyers: which of these forms of legislation are sufficiently precise for the obligations created to have direct effect? The ECJ insists that a provision must be sufficiently precise before it can have direct effect, in order to exclude provisions that are ambiguous or too vague to lend themselves to judicial application. In Difesa della Cava,89 the ECJ stated that the test was whether the legislative provision in question is ‘set out in unequivocal terms’. In the environmental context, the ECJ has generally been unwilling to find that the provisions of a directive are not precise enough for direct effect. The cases concerning the Birds Directive illustrate this trend. Article 1 of the Birds Directive provides that in respect of wild birds, ‘Member States shall take the requisite measures to preserve, maintain or re-establish a sufficient diversity and area of habitats.’ Article 4 then provides for the designation of ‘special protection areas’ for the purpose of conserving the specified species of bird. The obligation to classify special protection areas appears to be imprecise: ‘Member States shall classify in particular the most suitable territories in number and size . . .’ However, the ECJ has treated it as being sufficiently precise to find that Member States have designated manifestly fewer special protection areas than the number and total area of sites suitable for conservation would suggest.90 Moreover, as explained above, the ECJ has also found Article 4 sufficiently precise to conclude that based on objective ornithological criteria, specific areas should have been designated special protection areas.91 A similar approach has been applied by the ECJ in relation to the obligation to designate ‘vulnerable zones’ under the Nitrates Directive.92 In the French Nitrates case,93 the French government had not designated large sections of its territorial waters as nitrate vulnerable 88   See, eg, the emissions prescribed in relation to groundwater (Case C-131/88 Commission v Germany [1991] ECR I-825); the sulphur dioxide in ambient air limits (Case C-361/88 Commission v Germany [1991] ECR I-2567); and the prescribed levels in respect of lead in air (Case C-59/89 Commission v Germany [1991] ECR I-2607). 89   Above n 63, para 10. 90   Case C-3/96 Commission v Netherlands [1998] ECR I-3031; and Case C-166/97 Commission v France [1999] ECR I-1719. 91   Case C-355/90 Commission v Spain [1993] ECR I-4221; Case C-374/98 Commission v France [2000] ECR I-10779; and C-117/03 Società Italiana Dragaggi SpA v Ministero delle Infrastrutture e dei Trasporti [2005] ECR I-167. 92   Above n 70. 93   Above n 71.

Legal Effects of Directives  305 zones. The ECJ noted that some discretion was conferred in relation to the designation of vulnerable zones, but it concluded that France had exceeded that discretion by manifestly designating too few zones. The extent to which the ECJ strives to find a provision sufficiently precise for direct effect is perhaps best illustrated in relation to obligations to achieve a result ‘as soon as possible’ or to ‘take the necessary measures’.94 For example, Article 7(1) of Directive 75/442/EEC requires Member States to prepare waste management plans ‘as soon as possible’. In Commission v France,95 the ECJ held that, although Member States had a reasonable period in which to act, the Directive was sufficiently precise to conclude that a failure to prepare waste management plans within seven years was unlawful.96 The same line of reasoning can be seen in the San Rocco case,97 which concerned Article 4 of the Waste Directive and the failure of the Italian authorities to stop fly-tipping waste in the San Rocco Valley. Article 4 required Member States to take the necessary measures to prohibit the abandonment, dumping or uncontrolled disposal of waste. The ECJ held that Article 4 contained an enforceable legal obligation to ensure that waste was not disposed of in an uncontrolled manner. It held that it will be an indication that Article 4 is breached and the Member State’s discretion exceeded, where there has been ‘a significant deterioration in the environment over a protracted period without any action being taken by the competent authorities’.98 The introduction of the notion of a protracted period of unlawful behaviour before liability under Article 4 is triggered is both unprincipled and confusing. It is unclear in practice when ‘a protracted period’ of unlawful behaviour will have elapsed so as to render a provision directly effective. Private parties are unlikely to be willing to shoulder the cost of litigation to enforce the Waste Framework Directive if there is a risk that their claim might be premature and Article 4 might not be directly effective because the breach has not yet become sufficiently protracted. The ECJ’s reasoning is also doubtful given the underlying rationale of the prohibition on abandonment, dumping and uncontrolled disposal of waste. A single instance of uncontrolled dumping of hazardous waste may profoundly and irredeemably harm the environment. Therefore, from the perspective of environmental protection, the length of the period of unlawful pollution should have no bearing on whether a provision is directly effective. 5.  ‘Emanation of the State’ Directives may not be invoked horizontally (ie, directly against private individuals and companies). This rule was established in Marshall v Southampton and South-West Hampshire Area Health Authority.99 The ECJ held that since under Article 249 EC (now Article 288 TFEU), a directive is binding only upon ‘each Member State to which it was addressed’, it could not impose obligations upon an individual. The decision in Marshall has been widely criticised, and some Advocates General have supported the idea of allowing horizontal direct effect.100 However, in Paola Faccini Dori v Recreb Srl,101 the ECJ confirmed its judgment in Marshall:   See further Wennerås (above n 33) 40ff.   Case C-292/99 Commission v France [2002] ECR I-4097. 96   Ibid, para 44. 97   Case C-365/97 Commission v Italy [1999] ECR I-7773. 98   Ibid, para 56. 99   Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority [1986] ECR 723. 100   See, eg, AG Van Gerven in Marshall (ibid) and AG Jacobs in C-316/93 Vaneetveld v Le Foyer SA [1994] ECR I-763. 101  C-91/92 Paola Faccini Dori v Recreb Srl [1994] ECR I-3325. 94 95

306  The Effect of EU Law The effect of extending that case law to the sphere of relations between individuals would be to recognize a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations. It follows that, in the absence of measures transposing the directive within the prescribed time-limit, consumers cannot derive from the directive itself a right of cancellation as against traders with whom they have concluded a contract or enforce such a right in a national court.102

Despite the reluctance to overturn Marshall, the effect of this restriction has been mitigated in practice by four developments in ECJ jurisprudence: first, the broad definition it has adopted of an ‘emanation of state’; second, the notion of incidental direct effect; third, the doctrine of indirect effect; and finally, the doctrine of state liability for breach of EU law. Although a directive can only have direct effect vertically, that is against a state, the ECJ has adopted a wide interpretation of the notion of ‘state’. In Foster v British Gas,103 the ECJ held that an emanation of the state was . . . a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and which has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.104

The case of Foster concerned the British Gas Corporation, which was a publicly owned body before privatisation. The ECJ rejected the distinction proposed by British Gas between a nationalised undertaking and a state agency. It held that a directive relating to the equal treatment of men and women as regards retirement ages could be directly effective against any organisation or body that was subject to the authority or control of the state or had special powers beyond those that result from the normal relations between individuals. The British Gas Corporation satisfied that test, and therefore it was an emanation of the state, against which a directive could be invoked. However, state ownership of the majority, or even all, of a company’s share capital will not automatically render it an emanation of the state. In Doughty v Rolls Royce Plc,105 the Court of Appeal held that Rolls Royce was not an emanation of the state by virtue solely of all its shares being owned by the government. Although the company was under the control of the state, it had not been ‘made responsible pursuant to a measure adopted by the state for providing a public service’. It behaved at all times as a commercial entity, and it had no responsibilities or powers that could make a directive directly effective against it. The wide scope of the concept of ‘emanation of the state’ can be seen from the following examples: •  government departments106 •  independent authorities responsible for the maintenance of public order and safety107 •  an Area Health Authority108   Ibid, paras 24–25.   Case C-188/89 Foster v British Gas plc [1990] ECR I-3313.   Ibid, para 20. 105   Doughty v Rolls Royce Plc [1992] IRLR 126. 106   Van Duyn (above n 21). 107   Case C-222/84 Johnson v Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651. 108   Marshall (above n 99). 102 103 104

Legal Effects of Directives  307 •  the governing body of a voluntary aided school109 •  universities110 •  the Forestry Commissioners111 •  local or regional authorities112 Furthermore, the statement in Foster that ‘a body, whatever its legal form’ indicates that private subjects made under certain circumstances can also be regarded as an emanation of the state.113 In the environmental law context, perhaps the most important issue concerns utility providers. These are usually tightly regulated by the government and as a result may well fall within the Foster test. For example, in Griffin v South West Water Services,114 Blackburne J held that a privatised water and sewerage undertaker was a state authority. It is also significant that the ECJ has held that local and regional authorities constitute emanations of the state for the purposes of vertical direct effect. Much environmental policy decision-making is decentralised or devolved within Member States, and it is important that individuals can enforce EU environmental law at local level. For example, in England, local planning authorities have responsibility for applying the EIA Directive115 when determining planning applications; they must adhere to the Strategic Environmental Assessment (SEA) Directive116 when setting planning policy; and they also have responsibility for drawing up waste management plans in their capacity as waste management authority. Despite the considerable practical benefits of extending the notion of the state to encompass such a wide range of bodies, from a conceptual point of view, the ECJ case law is unsatisfactory. Vertical direct effect has since Ratti117 been based on the estoppel justification; but the further one moves away from central government and a state’s legislative organs, the less responsibility these other bodies carry for implementing EU directives. It cannot seriously be suggested that the Forestry Commission, for example, is at fault when the United Kingdom fails properly to implement a directive. A more convincing explanation for the wide concept of ‘emanation of the state’ is that it is necessary for the effet utile of EU law. 6.  ‘Triangular’ Situations: Indirect Inverse Effects Notwithstanding the prohibition on horizontal direct effect, individuals may be subject to adverse implications as a result of another private person’s reliance on a directive in what is often referred to as a triangular situation. This involves three parties: the claimant, who is a private individual; the defendant, who is an emanation of the state; and a third party, who is a private person. The dynamics of a triangular dispute are typically that the claimant is seeking to alter the conduct of a private third party and is able to do so by relying on an EU 109   National Union of Teachers v Governing Body of St Mary’s Church of England (Aided) Junior School [1997] 1 IRLR 242. 110   Case C-419/92 Ingetraut Scholz v Opera Universitaria di Cagliari and Cinzia Porcedda [1994] ECR I-505. 111   Petition of Kincardine and Deeside District Council v Forestry Commissioners [1993] Env LR 151. 112   Case C-103/88 Fratelli Costanzo SpA v Comune di Milano [1989] ECR 1839. 113  Case C-157/02 Rieser Internationale Transporte GmbH v Asfinag Autobahnen Und Schnellstrassen Finanzierungs-Aktiengesellschaft [2004] ECR I-1477, at [24]-[28] in which road hauliers were able to invoke directly effective provisions against a private company levying road tolls on behalf of the state. 114   Griffin v South West Water Services Ltd [1995] IRLR 15. 115   Above n 47. 116   Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (‘The SEA Directive’) [2001] OJ L 197/30. 117   Above n 22.

308  The Effect of EU Law directive against an emanation of the state. There are many opportunities for triangular situations to arise in the environmental context because of the large number of provisions in which state authorities are involved in the licensing of particular activities pursuant to EU directives, for example in relation to granting planning permission, approving certain industrial activities and in relation to waste management operations. This principle is illustrated by the case of R (Delena Wells) v Secretary of State,118 which concerned the grant of planning permission for mining operations. Under the UK legislation that applied at the relevant time, an environmental impact assessment was not required in respect of old mines the operations of which predated the EIA Directive. The mine in question, the Conygar Quarry, had originally been granted planning permission in 1947, but it had fallen into disuse 37 years before the mining company wished to revive operations by obtaining a renewed planning permission. The claimant sought judicial review of the national authority’s decision to grant planning permission without first requiring the application to be subject to environmental impact assessment in breach of the EIA Directive. The High Court referred the question whether a private claimant such as Ms Wells could rely directly on the EIA Directive in circumstances in which the claimant is seeking to deprive another private party of a licence or permission granted by the state. The ECJ followed Marshall119 and held that for reasons of legal certainty, a directive may not create obligations for individuals. However, the Court distinguished situations such as the present, in which invocation of direct effect against an emanation of the state had ‘mere adverse repercussions on the rights of third parties, even if the repercussions are certain’.120 The notion of ‘mere adverse repercussions’ requires a very fine line to be drawn. In Daihatsu-Handler v Daihatsu Deutschland,121 the ECJ held that the claimant company could not rely on a provision in the First Companies Directive 68/151122 in order to apply to ask the national court to impose penalties on another private party that had failed to ensure full disclosure of its annual accounts. In other words, in a triangular situation, a private party may not invoke the terms of an unimplemented directive against an emanation of the state if the effect would be to require performance of another obligation falling on a third party. The directive will have direct effect only where the indirect impact on the third party falls short of requiring performance of an obligation and thus constitutes a mere adverse repercussion. This is an unprincipled distinction to draw, given that the mere adverse repercussion could be the loss of an extremely valuable planning permission. There seems to be no good reason for protecting private third parties against the imposition of relatively trivial obligations and yet not also shielding them from adverse repercussions, which in financial and business terms may be catastrophic. The result of applying this distinction is also arbitrary when considered from the per­ spective of environmental protection. The decision in Delena Wells establishes that where a directive imposes an obligation on a Member State, a private claimant may rely on the directive in a horizontal situation, but where the obligation is imposed on a private third party, a private claimant may not sue an emanation of the state seeking enforcement of the obligation. This paves the way for individuals to be able to invoke the environmental impact 118   Case C-201/02 R (on the Application of Delena Wells v Secretary of State for Transport, Local Government and the Regions [2004] ECR I-723. 119   Above n 99. 120   Delena Wells (above n 118) para 57. 121   Case C-97/96 Verband deutscher Daihatsu-Handler eV v Daihatsu Deutschland GmbH [1997] ECR I-6843. 122   [1968] OJ L65/8.

Legal Effects of Directives  309 assessment requirements in the EIA Directive and also to invoke the Habitats Directive in order to quash development plans and thereby halt development proposed by private parties. However, it is unlikely that a private person could require national authorities to restrain the activities of a waste management operator that had failed to obtain a waste management permit in accordance with the new Waste Framework Directive 2008/98/EC123 because Article 23 of the Directive refers to the duty of private operators to obtain a permit and thus places an obligation on them. As Hedemann-Robinson has argued, the ECJ’s stance is counterintuitive, given that the consequences envisaged for private third parties are clearly spelled out in the case of directives such as the Waste Framework Directive and are thus more transparent than those whose ‘adverse repercussions’ are less predictable.124 7.  Incidental Horizontal Effect Enforcement of an unimplemented directive against a Member State may sometimes have certain ‘incidental effects’ for private parties that fall short of horizontal effect. These cases may be distinguished from the triangular situations discussed above on the basis that the claimant is not seeking to change the conduct of another private person by bringing an action against a state authority; rather, the claimant is seeking to dis-apply provisions of domestic law and thereby affect the legal result in a dispute with another private party. Many of the incidental effect cases concern the notification of technical standards to the Commission. Directive 83/189125 is designed to protect the free movement of goods by means of a system of preventive control. Article 8 of the Directive requires Member States to notify all draft technical regulations to the Commission. Article 9 provides that such regulations cannot enter into effect until after a prescribed period (intended to give the Commission time to review the draft technical regulations in order to prevent obstacles to free movement arising in the first place by persuading the Member State to amend its draft regulations or by adopting centralised harmonising measures itself). The ECJ held in CIA Security v Signalson126 that a failure to notify technical standards renders them inapplicable to individuals. That case was in substance a horizontal dispute between two private companies. A argued that B had marketed alarm systems that did not comply with domestic law. B relied on national rules of unfair trading practices to bring a claim that the domestic regulations had been adopted by Belgium in breach of Directive 83/189 because they had not been notified to the Commission. The ECJ held that B could rely on the Directive against the state to treat the national regulations as inapplicable, even though this would have incidental effects for the outcome of the dispute between A and B. Although it is difficult to see how this line of cases might apply in the environmental context, these developments are significant because they further undermine the ECJ’s insistence that directives cannot have horizontal direct effect.

  [2008] OJ L33/8.   M Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (London, Routledge Cavendish, 2007) 254. 125   [1983] OJ L109/8. 126   Case C-194/94 CIA Security International SA v Signalson SA [1996] ECR I-2201. 123 124

310  The Effect of EU Law

C.  Indirect Effect The doctrine of indirect effect requires national courts, where possible, to apply and interpret domestic law so as to give effect to EU law. The ECJ first identified this duty in von Colson v Land Nordrhein-Westfalen,127 where it held: [T]he Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article [4.3 TEU] to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article [288 TFEU].128

As a consequence: [I]t is for the national court to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of Community law, insofar as it is given discretion to do so under national law.129

The relevant national law in von Colson had been passed in order to implement the Directive, and so it was unobjectionable that the national law should be interpreted in accordance with the Directive. The subsequent case of Marleasing v La Comercial Internacional de Alimentacion130 established that this obligation of consistent interpretation applies to all domestic legislation that is relevant to the subject matter of a directive, regardless of the date it was enacted or the purpose for which it was introduced. And in Pfeiffer v Deutsches Rotes Kreuz,131 the ECJ explained that domestic courts should not focus narrowly on a particular piece of domestic legislation but should consider national law as a whole in order to assess to what extent it may be applied so as to produce a result consistent with EU law. The obligation is not, however, absolute: national courts are obliged to interpret domestic law in conformity with directives only insofar as it is possible to do so. This has led the English courts to refuse to distort the meaning of a domestic statute in order to bring it into conformity with EU law where this would conflict with the original meaning of the statute.132 The utility of the doctrine of indirect effect as a tool for enforcing EU environmental law is weakened by the ECJ’s refusal to allow it to be used to determine or aggravate the criminal liability of private persons. The leading case is Criminal Proceedings against Arcaro,133 in which the legal representative of a precious metals company was prosecuted in relation to industrial discharges of dangerous substances into a river. The applicable Italian criminal legislation had been enacted in order to implement Directive 76/464134 on pollution caused   Case C-14/83 Sabine von Colson v Land Nordrhein-Westfalen [1984] ECR 1891.   Ibid, para 26. 129   Ibid, para 28. 130   Case C-106/89 Marleasing SA v La Comercial Internacional de Alimentacion SA[1990] ECR 4135. 131   Cases C-397/01-403/01 Bernhard Pfeiffer v Deutsches Rotes Kreuz [2004] ECR I-8835. 132   Garland v British Rail Engineering Ltd [1983] 2 AC 751; Webb v EMO (Air Cargo) Ltd [1995] 4 All ER 577; and Macarthys v Smith [1979] 3 CMLR 44, [1980] 2 CMLR 217. 133   Arcaro (above n 27). 134   [1976] OJ L129/23. 127 128

Legal Effects of Directives  311 by certain dangerous substances discharged into the aquatic environment and Directive 83/513135 on pollution emission limit values and quality objectives for cadmium discharges. The defendant was prosecuted for failing to obtain a discharge authorisation in respect of his company’s activities. Directive 76/464 provided that all discharges of substances listed in its Annex ‘shall require prior authorization by the competent authority of the Member State concerned’. However, the Italian legislation distinguished between authorisations for new plants and those that existed before the legislation came into force. Older plants would not have to apply for authorisation for discharges until specific ministerial decrees on emission limits had been adopted. The defendant contended that his client was an older plant and that he had not been obliged to obtain discharge authorisation because the ministerial decrees had not yet been passed. The ECJ held that the Italian legislation could not be interpreted consistently with the Directive, which served to require authorisation for older plants and create criminal liability for the defendant: However, that obligation of the national court to refer to the content of the Directive when interpreting the relevant rules of its own national law reaches a limit where such an interpretation leads to the imposition on an individual of an obligation laid down by a directive which has not been transposed or, more especially, where it has the effect of determining or aggravating, on the basis of the directive and in the absence of a law enacted for its implementation, the liability in criminal law of persons who act in contravention of that directive’s provisions.136

This limitation significantly affects the extent to which the doctrine of indirect effect may be used to enforce environmental directives. Neither private persons nor states may use the doctrine in order to require domestic courts to interpret domestic environmental legislation in conformity with EU law so as to compel other private persons to comply with the provisions of an EU directive.

D.  State Liability The EC Treaty was silent on the question of whether Member States should bear liability in damages for violations of EU law, and initially it was thought that damages could be awarded only according to principles of domestic law.137 However, in Francovich,138 the ECJ established the principle of state liability in damages for breaches of EU law. This section examines the scope of that principle and the conditions for establishing liability. In particular, it considers the new form of member state liability for violations of EU law created by the ECJ in Köbler v Austria,139 according to which the courts of a Member State may be held liable in damages for a serious breach of EU law. In the environmental context, the possibilities for relying successfully on the principle of state liability are limited by the fact that a claimant must show that the norm of EU law that has been breached was intended to create rights for individuals. This is often a difficult hurdle for claimants to cross, given that much environmental legislation is not couched in the language of individual rights and seeks to protect non-human interests. The notoriously   [1983] OJ L291/1.   Arcaro (above n 27) para 42. 137   See, eg, AG Van Gerven describing Member State liability as ‘in principle a question that must be answered in accordance with the national law of the Member State’: Foster (above n 103) 3341. 138   Above n 81. 139   Above n 1. 135 136

312  The Effect of EU Law complex EIA Directive140 does, however, create individual rights, and its application has proved a rich source of litigation. Köbler therefore paved the way for claims arguing that the domestic courts have erred seriously in their application of the EIA Directive. As will be seen below, the first such claim has already been heard by the Court of Appeal.141 1. The Francovich Judgment Francovich concerned a Directive on the protection of employees in the event of their employers’ insolvency. The Directive had not been implemented in Italy within the prescribed time limit, and Italy’s default had been established in enforcement proceedings brought by the Commission. When the claimant’s employer became insolvent, he claimed payment of his unpaid salary from the Italian state, arguing that he had a directly effective right to the money. Although the Directive was held not to be directly effective, the ECJ held that as a matter of principle, Italy’s breach of EU law in failing properly to implement Directive 80/987/EEC142 could give rise to a damages claim against the state. On the issue of damages, the ECJ held that it was inherent in the Treaty that a Member State can be held liable for harm caused to individuals by breaches of Community law for which the Member State is responsible.143 The juridical basis for this new form of liability was held to be twofold: first, the Court held that the general principle of effectiveness would be impaired if injured parties could not obtain redress for violations of EU law by Member States;144 second, the Court held that the duty of cooperation in Article 4.3 of the Treaty on European Union (TEU) (ex-Article 10 EC) required Member States to nullify the unlawful consequences of such violations.145 The ECJ held that Member State liability in damages would arise if three conditions were satisfied: (i) rights were conferred on an individual under a directive; (ii) the content of such rights was identifiable by reference to the terms of the directive; and (iii) there was a causal link between the breach of EU law by the Member State and the damage suffered by the injured person. In the key passage, the Court stated: Although State liability is thus required by Community law, the conditions under which that liability gives rise to a right to reparation depend on the nature of the breach of Community law giving rise to the loss and damage. Where, as in this case, a Member State fails to fulfil its obligation under the third paragraph of Article [288 TFEU] to take all the measures necessary to achieve the result prescribed by a directive, the full effectiveness of that rule of Community law requires that there should be a right to reparation provided that three conditions are fulfilled. The first of those conditions is that the result prescribed by the directive should entail the grant of rights to individuals. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, the third condition is the existence of a causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties. Those conditions are sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on Community law.146

  Above n 47.   Cooper v HM Attorney General [2010] EWCA Civ 464, [2010] 3 CMLR 28.   [1980] OJ L283/23. 143   Francovich (above n 81) para 35. 144   Ibid, para 33. 145   Ibid, para 36. 146   Ibid, paras 38–41. 140 141 142

Legal Effects of Directives  313 On the facts, the claimant in Francovich succeeded because, although the Directive was not directly effective, it was intended to confer rights on individuals – specifically, the rights to a guarantee of payment by the state for unpaid salary. That right could be identified by reference to the terms of the Directive, and it had not been made available to the claimant because the state had failed to implement the Directive and nominate the institution liable to pay the unpaid salary. The necessary causal link was therefore established. 2.  Subsequent Clarification The decision in Francovich broke new ground, but it was unclear whether the ECJ was laying down the general principle of state liability for breach of EU law or whether its ruling only applied where a Member State had failed to implement a directive. Clarification of the nature and scope of the Francovich principle came in the joined cases of Brasserie du Pêcheur v Bundesrepublik Deutscheland and R v Secretary of State, ex p Factortame.147 In the former case, the claimant was a French company that had been prohibited from importing its beer to Germany because of a failure to comply with national beer purity requirements. The ECJ had held that the prohibition amounted to a breach of the claimant’s right to free movement of goods, and the issue was whether the claimant could recover damages against Germany for the losses sustained by reason of the prohibition. In Factortame, the claimants had successfully challenged the validity of Part II of the Merchant Shipping Act 1998 on the ground that it was incompatible with their Community law right to freedom of establishment. The ECJ modified the criteria for state liability and specified the following conditions necessary to establish a right to damages for breach of EU law: (i) the rule of law infringed must have been intended to confer rights on individuals; (ii) the breach of the rule must have been ‘sufficiently serious’; and (iii) there must have been a ‘direct causal link’ between the breach and the damage sustained.148 3.  Intention to Confer Rights on Individuals The first condition for establishing state liability damages is that the relevant community norm intended to confer rights of individuals, which can be identified from the terms of the relevant provision. Where the legislative provision is directly effective, this condition will be satisfied because, as explained above, directly effective provisions create rights for individuals. Thus, this first condition was held to be satisfied in both Brasserie du Pêcheur and Factortame because the Treaty provisions in issue were directly effective. The first condition may also be satisfied even where the provision in question is not directly effective – Francovich itself was such a case. Much depends on the reason why the provision is not directly effective. In Francovich, the ECJ held that the Directive was not sufficiently unconditional to be directly effective because the Directive gave Member States a discretion and did not specify which state institutions would provide the requisite guarantees to individuals in the event of an employer’s insolvency. Had the Directive specified an institution, the Directive would have been directly effective, because it was otherwise precise and unconditional. If, however, a legislative provision is not directly effective because its terms are imprecise, it is difficult to see how the first condition of state liability could be satisfied. 147   Cases C-46/93 and C-48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutscheland and R v Secretary of State for Transport, ex p Factortame Ltd [1996] ECR I-1029. 148   Ibid, paras 51–57.

314  The Effect of EU Law The ECJ has generally not approached this first criterion overly strictly. Indeed, in Francovich, Advocate General Mischo suggested: [I]n general . . . [it is] hard to imagine situations in which an individual might be able to show that he had suffered loss or damage as a result of the infringement of a rule of law if the purpose of that rule was not to protect his interests.149

Similarly, Caranta has argued: Community law is much more generous than English law insofar as the protective character of the infringed provision . . . is considered. Up to now, no decision by the Court of Justice on Member States’ liability has found this requirement wanting. Under Community law, no lengthy inquiry into the legislative intention is made. It is sufficient that the citizen can derive some benefit from the application of a given provision. Conferring rights does not need to be the only or even the main purpose . . . It would be mistaken to address the purpose of the Community provision question in the same way it is addressed by English courts with reference to breach of statutory duty.150

4.  ‘Sufficiently Serious’ Breach The ruling in Brasserie du Pêcheur established that the Francovich principle does not create strict liability. A claimant must show that the Member State was at fault by establishing that the breach of EU law was sufficiently serious. The ECJ gave guidance as to when a breach will be sufficiently serious. The factors that should be taken into account include: a) the clarity and precision of the rule breached; b) the measure of discretion left by that rule to the national or Community authorities; c) whether the infringement and the damage caused was intentional or involuntary; d) whether any error of law was excusable or inexcusable; e) the fact that the position taken by a Community institution may have contributed towards the omission; and f) the adoption or retention of national measures or practices contrary to Community law.151

The ECJ explained that these conditions broadly correspond to the conditions necessary to establish damages liability on the part of the Community institutions under Article 340 TFEU (ex-Article 288 EC), because that provision was ‘simply an expression of the general principle familiar to the legal systems of the Member States that an unlawful act or omission gives rise to an obligation to make good the damage caused’.152 Such a notion of corrective justice is not, however, part of English administrative law, despite recent support for its introduction from the Law Commission.153 Whether or not a breach of EU law is sufficiently serious is ultimately a question of fact and circumstance.154 As Lord Clyde explained in Factortame (No 5), ‘No single factor is necessarily decisive. But one factor by itself might, particularly where there was little or nothing to put into the scales on the other side, be sufficient to justify a conclusion of liability.’155   Francovich (above n 81) para 77.   R Caranta, ‘Public Law Illegality and Governmental Liability’ in D Fairgrieve, M Andenas and J Bell (eds), Tort Liability of Public Authorities in Comparative Perspective (London, British Institute of International and Comparative Law, 2002) 348. 151   Factortame (above n 147) para 56. 152   Ibid, para 29. 153  Law Commission, ‘Administrative Redress: Public Bodies and the Citizen’, Consultation Paper No187 (2008). 154   R v Secretary of State for Transport, ex p Factortame (No 5) [2000] 1 AC 524, 554 (Lord Clyde). 155  Ibid. 149 150

Legal Effects of Directives  315 He identified the following eight factors that have influenced the ECJ when determining whether a breach is sufficiently serious:156 a) the importance of the principle which has been breached;157 b) the clarity and precision of the rule breached;158 c) the degree of excusability of an error of law;159 d) the existence of any relevant judgment on the point;160 e) the state of mind of the infringer and, in particular, whether the infringer was acting intentionally or involuntary; f) the behaviour of the infringer after it has become evident that an infringement has occurred; g) the identity of the persons affected by the breach;161 h) the position (if any) taken by one of the Community institutions in the matter.

Where a Member State is exercising a discretion, the ECJ has held that a breach will be sufficiently serious only if the Member State has manifestly and gravely disregarded the constraints on its discretionary powers.162 This is a high hurdle to cross, and it is unlikely that simple errors of construction will give rise to damages liability. For example, in R v HM Treasury, ex p British Telecom,163 the United Kingdom was held not to be liable in damages for mis-implementing Directive 90/531/EEC164 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors. Article 8 of the Directive conferred discretion as to which entities to exclude for the Directive’s coverage, and although the United Kingdom had misconstrued the Directive, the Directive had been capable of the construction given to it by the United Kingdom. Accordingly, the United Kingdom’s error did not constitute a manifest and grave disregard for the limits of its discretion.165 By contrast, where a Member State is not exercising discretion or has very limited discretion, mere infringement of EU law may be enough to establish a ‘sufficiently serious’ breach.166 For example, in R v Ministry of Agriculture, Fisheries and Foods, ex p Hedley Lomas,167 the United Kingdom refused to grant an export licence to persons wishing to export live sheep for slaughter to Spain. That refusal was flatly contrary to the EC Treaty’s provisions on the free movement of goods and also Directive 74/577168 concerning uniform standards for slaughter. Consequently, in the absence of any discretion conferred upon the United Kingdom, the ECJ held that the breach of EU law was enough in and of itself to establish that a sufficiently serious breach had occurred:   Ibid, 554–56.   See, eg, R v Secretary of State for Transport, ex p Factortame [1997] EuLR 475, para 110. 158   See, eg, Joined Cases C-283/94, C-291/94 and 292/94 Denkavit International v Bundesamt für Finanzen [1996] ECR I-5063, paras 50–51. 159  In Factortame (No 5) (above n 154), the House of Lords held that taking legal advice does not necessarily render a breach of EU law excusable: 544 (Lord Slynn); 548 (Lord Hoffmann); and 551 (Lord Hope). 160   Brasserie du Pêcheur [1996] ECR I-1029, para 57. 161   Where a breach affects a finite number of people, it is more likely to be ‘sufficiently serious’ than a breach affecting the world at large. However, procedural breaches with little or no tangible impact are unlikely to be treated as ‘sufficiently serious’: R v Secretary of State for the Home Department, ex p Gallagher [1996] 2 CMLR 951. 162   Brasserie du Pêcheur (above n 160) para 55. 163   Case C-392/93 R v HM Treasury, ex p British Telecommunications plc [1996] ECR I-1631. See also Bourgoin v Ministry of Agriculture, Fisheries and Food [1986] QB 716, 769 (Oliver J). 164   [1991] OJ L84/26. 165   Brasserie du Pêcheur (above n 160) paras 42–45. 166   Case C-178/94 Dillenkofer v Bundesrepublik Deutschland [1996] ECR I-4845, para 25. 167   Case C-5/94 R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas [1996] ECR I-2553. 168   [1974] OJ L316/10. 156 157

316  The Effect of EU Law [W]here, at the time when it committed the infringement, the Member State in question was not called upon to make any legislative choices and had only considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach.169

5.  ‘Direct Causal Link’ The final criterion for state liability under the Francovich principle is the need for a direct causal link between the breach of EU law and damage sustained by the claimant. At first, the ECJ was reluctant to lay down general rules of causation, preferring to leave the matter to the national courts, subject only to the general principles of non-discrimination and effectiveness.170 Recently, however, the ECJ has begun to lay down principles in relation to causation. In Brinkmann v Skatteministeriet,171 the ECJ held that the claimant was not entitled to damages in respect of the failure of the Danish government to implement Directive 79/32/EEC172 on taxes other than turnover taxes which are levied on the consumption of manufactured tobacco. As a result of the non-implementation, the claimant had paid higher taxes than he otherwise would have been required to do so, but the Danish authorities had purported to give effect to the unimplemented Directive, albeit they had misconstrued it. There was therefore no direct causal link between the total failure to implement and the claimant’s loss, because the authorities had given immediate effect to the relevant provisions of the Directive.173 It was the misconstruction and misapplication of the unimplemented provisions that caused the claimant’s loss, but this infringement was held to be excusable and thus not sufficiently serious. Further guidance on causation was given in Rechberger and Greindl v Austria.174 The ECJ held that where the Member State’s breach consisted of non-implementation of a directive, the fact that the loss suffered was unforeseeable did not prevent their being a direct causal link between the breach and the claimant’s loss. The court also added that once a causal link has been established between a breach of EU law and the loss, a Member State cannot be exempted from liability due to ‘imprudent conduct [by third parties]’.175 6.  All Organs of the State May Potentially Be Liable It does not matter which state institution caused the breach, because organs of the state are required to comply with EU law.176 In Köbler,177 the ECJ held that a claim of state liability may be brought against the judicial organs of a Member State. In domestic proceedings in the Austrian Supreme Administrative Court, the claimant had been denied a special increment for length of service as a professor. The relevant Austrian legislation provided that professors who had completed 15 years of service were entitled to the increment, but the service had to be in Austrian universities. The claimant had completed 15 years of service within EU universities, but not 15 years in the Austrian higher education system. The   Hedley Lomas (above n 167) para 28.   See, eg, Brasserie du Pêcheur (above n 160) para 65. 171   Case C-319/96 Brinkmann Tabakfabriken GmbH v Skatteministeriet [1998] ECR I-5255. 172   [1979] OJ L10/8. 173   Brinkmann (above n 171) para 29. 174   Case C-140/97 Rechberger and Greindl v Austria [1999] ECR I-3499. 175   Ibid, para 75. 176   Factortame (above n 147) para 34. 177   Above n 1. 169 170

Legal Effects of Directives  317 Supreme Administrative Court made a reference to the ECJ to determine whether the national law was compatible with EU law, but the registrar of the ECJ asked whether it wished to maintain its request for a ruling in view of an earlier ECJ decision that appeared to cover the point.178 The Supreme Administrative Court withdrew its request for a reference and then decided that the earlier ECJ judgement was not applicable, and it denied the increment to the claimant. The claimant sued the Austrian government for damages, and in a preliminary reference, the ECJ held that the Francovich principle applied to all organs of the state, including the judiciary. The rationale for this extension of liability was to further the effectiveness of EU law: In the light of the essential role played by the judiciary in the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certain conditions, to obtain reparation when their rights were affected by an infringement of Community law attributable to a decision of a court of a Member State adjudicating at last instance.179

Liability would, however, only arise ‘in the exceptional case where the court has manifestly infringed the applicable law’.180 An example of such a manifest infringement would be a deliberate refusal to follow EU law.181 However, ‘manifest’ is not synonymous with ‘intentional’ or ‘misconduct’. Therefore, a provision of national law limiting Köbler liability to cases in which there had been an intentional breach of EU law or serious misconduct on the part of the court of last instance was held to be invalid.182 It is unthinkable that the English courts would deliberately seek to violate EU law, and so the impact of Köbler might at first appear to be negligible. However, as demonstrated by the first case considering Köbler liability in the United Kingdom, Cooper v HM Attorney General,183 there is certainly scope for claims to be made against the UK Supreme Court in cases where permission to appeal from the Court of Appeal has been unjustifiably refused or where the Supreme Court has rejected a claim based on EU law without requesting a preliminary reference. In Cooper, the claimant had challenged decisions made by the London Borough of Hammersmith and Fulham about a large development in London (‘the White City’ development). In particular, it was argued that the Council’s decision that an environmental impact assessment was not required was unlawful because it had not been taken by a properly authorised officer. In the first impugned decision184 and the second impugned decision,185 the Court of Appeal had dismissed the challenges to the White City development. Its reasoning had been based on: (i) a finding that environmental impact   Case C-15/96 Schöning-Kougebetopoulou v Freie und Hansestadt Hamburg [1998] ECR I-47.   Köbler (above n 1) para 33. 180   Ibid, para 53. 181   Ibid, para 55. On the facts, although the Supreme Administrative Court’s decision was contrary to EU law, the breach was not sufficiently serious. 182   Case C-173/03 Traghetti del Mediterraneo SpA v Italy [2006] ECR I-5177. 183   Above n 141. 184   R v London Borough of Hammersmith and Fulham, ex p Trustees of the Council for the Protection of Rural England (London Branch) (2001) 81 P & CR 73. This decision was made on a renewed application for judicial review, and there was no appeal from a decision refusing an application. See R (on the Application of Eastway) v Secretary of State for Trade and Industry [2000] 1 WLR 2222. 185   R v London Borough of Hammersmith and Fulham, ex p Trustees of the Council for the Protection of Rural England (London Branch), unreported, 12 June 2000. This decision was made on an application for permission to appeal from the High Court to the Court of Appeal, from which there is no appeal. 178 179

318  The Effect of EU Law assessment could not be required at the reserved matters stage; and (ii) that the EIA Directive did not require the Council to revoke the permission if it was granted in breach of the EIA Directive. However, both of these findings have effectively been overruled by subsequent ECJ case law.186 The claimant contended that the impugned decisions constituted sufficiently serious errors of EU law on the part of the Court of Appeal, which had caused him loss in the form of adverse orders for costs. Arden LJ, giving the composite judgment of the Court of Appeal, dismissed the claimant’s Köbler claim. In doing so, a number of very important observations were made about the nature and scope of such liability. To begin with, she highlighted the criticisms that have been made of Köbler liability. The first criticism is that such liability may lead to the reopening of issues and compromise finality and legal certainty. Since many decisions depend on a judge’s assessment of the true meaning of legislative provision, there is a danger that ‘[i]f liability is too liberally imposed, it could threaten the integrity of the legal system and the judicial process’.187 As Arden LJ argued, the ECJ had guarded against this danger by setting a high threshold for liability, in the form of the requirement that there must be a manifest error on the part of the domestic court.188 The second, more serious criticism of Köbler liability is that it leads to the anomalous position that an inferior court hearing such a claim may be required to pass judgement on the correctness of a previous decision of a superior court. The answer suggested by Advocate General Léger was for the court hearing the Köbler liability claim to make a reference to the ECJ. But, as Arden LJ observed, this is no solution, because if it is unclear whether or not the superior court made an error (and thus a reference is appropriate), that may itself be an indication that the superior court’s breach was not manifest and that the claim should fail. Perhaps the answer is simply that this anomaly is trumped by the principle of the effectiveness of EU law. The Court of Appeal also gave guidance as to when a breach will be considered to have been ‘manifest’. It held that for a breach to be manifest, it must be ‘evident that there is a breach’.189 It may be evident because the ECJ has already decided that point, or it may follow from the case law of the ECJ that a particular set of circumstances constitutes a breach.190 Ultimately, when determining whether a breach is manifest or not, regard must be had to all of the circumstances of the case, including the degree of clarity and precision of the rule infringed; whether the infringement was intentional; whether the error of law was excusable or inexcusable; the position taken by a Community institution; and non-compliance with the obligation to make a preliminary reference to the ECJ.191 In assessing whether a breach was manifest, a court may consider the case law of the ECJ only as it stood at the time of the impugned decision of the national court, not subsequent decisions.192 By way of example, the Court of Appeal held that a breach would not be manifest if the answer to the question before the court was not evident.193 It would also not be manifest 186   Delena Wells (above n 118); Case C-508/03 Commission v UK [2006] ECR I-3969; and R (on the Application of Barker) v Bromley LBC [2006] UKHL 52, [2007] 1 AC 470. 187   Cooper (above n 141) para 59. 188   Ibid. The ECJ had held in Köbler that ‘regard must be had to the specific nature of the judicial function and to the legitimate requirements of legal certainty . . . State liability for an infringement of Community law by a decision of a national court adjudicating at last instance only be incurred can in the exceptional case that the court has manifestly infringed the applicable law’ (para 53). 189   Cooper (above n 141) para 69. 190  Ibid. 191  Ibid. 192   Ibid, para 72. 193   Ibid, para 70.

Legal Effects of Directives  319 if it represents the answer to which the court has come through undertaking a normal function: Interpretation of Community legislation is part of the normal judicial function and liability would no longer be exceptional if it could arise whenever the interpretation was shown to be wrong – if only because of the Court of Justice often adopts an innovative interpretation or one motivated by policy insights that would not necessarily be available to the national court.194

Accordingly: A failure to make a reference where a question is not acte clair does not automatically lead to Köbler liability, nor does the interpretation of prior case law result in the incurring of such liability, unless there is an obvious answer and there are no other mitigating circumstances. It must follow that failure to make a reference because the court did not appreciate that the issue before it raised a question of Community law does not automatically result in Köbler liability unless it is obvious from Community law that there is a Community issue and an absence of mitigating circumstances.195

It is also important to note that Köbler liability will arise only in respect of errors that were material for the purposes of the claimant cause of action: ‘[t]he fact that other errors of Community law were made along the way is not relevant and gives rise to no claim’.196 Difficult questions may arise by virtue of the fact that in some cases the national court should itself take points of EU law that are not raised by the litigants. In Kraaijeveld,197 the ECJ held that where a domestic court had the power to take a point of national law, it should also be under a duty to do so in relation to ‘binding rules’ of EU law.198 Such a duty may arise in the course of public law litigation in England and Wales, because the court may take a point of law that has not previously been put forward by the litigants if it considers that the point has an important bearing on the case. Arden LJ held that Köbler liability would only arise in those circumstances if ‘it can be said that the court should itself have taken the point that would have succeeded’.199 Finally, the Court of Appeal left open the question of whether Köbler liability attaches to a mere refusal of permission for judicial review or a mere refusal to refer a point of EU law to the ECJ. However, Arden LJ inclined to the view that the claimant must additionally show that he would have succeeded on the point of EU law had he been granted permission or had a reference been made: [Counsel for the claimant] submits that all he has to show is that this court should have ruled that a point of Community law was arguable and given permission to bring judicial review proceedings, and that he does not also have to show that he would have established at the full hearing that there was in fact a breach of Community law. We would leave open the question whether this is in fact so. The right to bring judicial review proceedings is a procedural right conferred by domestic law. It may be that Köbler liability does not extend to the non-enforcement of Community law in this situation, even if the consequence in this case was that [the claimant] incurred a liability in costs which it would not otherwise have incurred or a liability in costs which was larger than would otherwise have been the case. That was a sanction flowing purely from domestic law. In addition, it may be that it is not enough for the claimant in a Köbler claim to assert a breach of the obligation on a final court to make a reference without also showing that, had the reference being made, it  Ibid.   Ibid, para 71. 196   Ibid, para 76. 197   Above n 46. 198   Kraaijeveld (above n 46) paras 57–58. 199   Cooper (above n 141) para 77. 194 195

320  The Effect of EU Law would have resulted in an answer which would have determined that litigation (so far at least as Community law issues are concerned) in his favour.200

This would seem to be correct. If a claim would not have succeeded, it is difficult to see how a claimant can have suffered loss by being wrongly refused permission and ordered to pay costs at the permission stage, given the fact that had the correct decision being made and permission granted, defeat at the substantive hearing would ordinarily entail a much larger adverse costs order.

  Ibid, para 82.

200

17 Preliminary References to the European Court of Justice (ECJ) I. Introduction

A. The Nature of the Reference Procedure Article 267 of the Treaty on the Functioning of the European Union (TFEU) provides a mechanism whereby domestic courts may refer questions of EU law to the European Court of Justice (ECJ) for a preliminary ruling. A reference is not itself a remedy, but it is a step in the proceedings leading to the final determination of a case by a national court in the light of the ruling by the ECJ. A preliminary reference maintains the supremacy of EU law by helping to ensure that EU law is applied uniformly and correctly throughout all of the Member States. Additionally, as discussed below in chapter eighteen, it enables parties without standing for a direct action under Article 263 TFEU (ex-Article 230 EC) to challenge secondary EU legislation by bringing a claim in a national court and then obtaining a preliminary reference so as to enable the ECJ to declare the measure invalid. Generally, a preliminary reference in judicial review proceedings will be made after the grant of permission. This is because it is necessary for there to be sufficient evidence and sufficient findings of fact to enable the ECJ to determine the reference. It is not impossible for a reference to be made prior to the grant of permission, but such cases are rare and usually concern challenges to the validity of secondary EU legislation where a discreet question of law arises independently from the facts of the particular case.1 In environmental judicial review claims, Article 267 is relevant in two respects. First, a preliminary reference may be sought in order to ascertain the correct interpretation of EU legislation. Often this will occur in a claim based on a Member State’s failure to implement EU law properly, and to some extent, this form of private enforcement complements the Commission’s ability to bring infraction proceedings.2 Second, a preliminary reference may be used to determine the validity of action taken by EU institutions. To this extent, it complements the action for annulment under Article 263 TFEU.3 However, due to the cost of environmental litigation and the fact that claimants usually do not have any financial

1   Examples of cases in which a preliminary reference was made at the permission stage include R (on the Application of ABNA Ltd) v Secretary of State for Health and Food Standards Agency [2003] EWHC 2420 (Admin), [2004] Eu LR 88; and R v Secretary of State for Health, ex p Imperial Tobacco Ltd [1999] COD 138. 2   See below ch 19. 3   See below ch 18.

322  Preliminary References to the European Court of Justice (ECJ) interest in the outcome of the case, there are relatively few preliminary references concerning EU environmental law.4

B.  Article 267 TFEU The power to make preliminary rulings is contained in Article 267 TFEU (ex-Article 234/177 EC), which provides: The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Prior to the Treaty of Lisbon, preliminary references were always heard by the ECJ. Article 267 refers, however, to the Court of Justice of the European Union. This term covers both the ECJ and the General Court, previously known as the Court of First Instance. Therefore, in future, preliminary references in areas specified in the Statute of the Court of Justice of the European Union will be heard by the General Court.5

II.  What May Be Referred?

The ECJ may give a preliminary ruling concerning either: (a) the interpretation of the Treaties; or (b) the validity and interpretation of acts of the institutions,6 bodies, offices or agencies of the Union. The Treaty does not define those bodies listed in Article 267, but the essence of these entities is that they were created by EU law and form part of the executive

4   Kramer has noted that of the approximately 225 preliminary rulings issued annually, less than 5 per cent concern EU environmental law: L Kramer, ‘Data on Environmental Judgments by the EC Court of Justice’ (2004) 1 Journal for European Environmental & Planning Law 127, 134. 5  Throughout this chapter, references to the ECJ include the General Court, where appropriate. 6  This includes all binding legislative and administrative acts, eg, environmental directives and decisions. It also includes nonbinding acts, eg, resolutions, opinions and recommendations: Case C-322/88 Grimaldi v Fonds des maladies professionnelles [1989] ECR 4407. As such, the interpretation of the EU environmental action programmes may be the subject of a preliminary reference.

What May be Referred?  323 of the Union.7 Therefore, in Demouche v Fonds de garantie automobile,8 the ECJ held that there was no power to give a preliminary ruling in respect of an international agreement concluded by a purely national organisation (the Motor Insurance Bureau). In the preliminary reference procedure, the ECJ is limited to consideration of the specified issues, namely the interpretation of the Treaties, as well as the validity and interpretation of the acts of the Union institutions and entities. It may not rule on questions of fact or of national law; nor may it rule on the application of the law to the particular facts of the case in hand. The Court can, however, rule on the effect of a provision of EU law, since this is regarded as a matter of interpretation. Since the ECJ has sole jurisdiction to rule that an act of an EU institution is invalid, national courts cannot declare acts of institutions to be void.9 Therefore, if in domestic judicial review proceedings, a judge considers that arguments that an act of a Community institution is invalid are well-founded, the judge ought to refer the question of the validity of that measure to the ECJ.10 In R (INTERTANKO) v Secretary of State,11 Hodge J held, ‘The phrase “well founded” means something more than merely arguable and will in my judgment bear an equivalence to the well understood phrase in English jurisprudence of a claim having “a reasonable prospect of success.” ’12 Where the validity of secondary EU legislation is in doubt, a domestic court may grant interim relief suspending the operation of an administrative action of the national authorities that is based on the impugned secondary legislation.13 Two conditions must be satisfied before interim relief can be granted in these circumstances: first, the domestic court must have serious doubts about the validity of the impugned secondary legislation; second, it must be necessary to grant interim relief to prevent serious and irreparable harm to the party seeking relief.14

A. National Law and the Facts The ECJ’s jurisdiction under Article 267 TFEU is confined to providing interpretations of EU law. It follows that the ECJ has no jurisdiction to give interpretations of national law or to rule on the compatibility of national law with EU law.15 Similarly, a domestic court making a preliminary reference is responsible for finding the relevant facts so that the ECJ may interpret the relevant EU law in the light of those facts.16

7   So, for example, it includes the European Aviation Safety Agency, the European Public Prosecutor’s Office, the European Ombudsman, the European Investment Bank and the Economic and Social Committee and the Committee of the Regions. 8   Case C-152/83 Demouche v Fonds de garantie automobile and Bureau central français [1987] ECR 3833. 9   Case C-314/85 Foto Frost v Hauptzollamt Lübeck-Ost [1987] ECR 4199. 10   Case C-344/04 R (on the Application of IATA and ELFA) v Secretary of State for Transport [2006] ECR I-403. 11   R (on the Application of INTERTANKO) v Secretary of State for Transport [2006] EWHC 1577 (Admin), [2007] Env LR 8. 12   Ibid, para 46. 13   Case C-465/93 Atlanta Fruchthandelgesgesellschaft mbH v Bundesamt für Ernährung und Forstwirtshaft [1995] ECR I-3761. 14   ABNA (above n 1). 15   Joined Cases C-37/96 and 38/96 Sodiprem SARL v Direction Générale des Douanes [1998] ECR I-2039, para 22. If a reference asks the ECJ to rule in such a way, the ECJ will usually reformulate the question so that it does raise the question of EU law: eg, Case C-98/86 Minister Public v Mathot [1987] ECR 809. 16   Case 13/68 Salgoil SpA v Italian Ministry for Foreign Trade [1968] ECR 661.

324  Preliminary References to the European Court of Justice (ECJ)

B.  Hypothetical Questions The ECJ has held that it has jurisdiction to give a preliminary reference only if there is a genuine dispute between the parties.17 It will not therefore provide advisory opinions on hypothetical questions that do not assist the domestic court in dealing with the dispute before it.18 The ECJ explained in Kofisa v Ministero delle Finanze: A reference by a national court can be rejected only if it appears that the procedure laid down by Article [267] of the Treaty has been misused and a ruling from the Court elicited by means of a contrived dispute, or it is obvious that Community law cannot apply, either directly or indirectly, to the circumstances of the case referred to the Court.19

III.  Which Courts May/Must Refer?

A.  Courts and Tribunals that May Refer The second paragraph of Article 267 states that ‘any court or tribunal of a Member State’ may request a preliminary ruling ‘if it considers that a decision on the question is necessary to enable it to give judgment’. The definition of a court or tribunal has an autonomous meaning in EU law and is for the ECJ to determine. The case law indicates that a court or tribunal for the purposes of Article 267 possesses two characteristics. First, there must be an element of public or state involvement in the composition or workings of the body so that it can be regarded as exercising official authority. Second, the body must exhibit judicial characteristics. As regards a domestic court or tribunal having judicial characteristics, the ECJ has highlighted the following factors: i) The body must be bound to apply rules of law and operate on an adversarial basis; ii) its decisions must be binding; iii) if a tribunal, it must be a permanent body charged with the settlement of disputes and not merely an ad hoc tribunal set up to resolve the instant case; and iv) it must be independent. This means that a government official responsible for taking an original decision – for example, the Secretary of State in a planning appeal – does not qualify as a court or tribunal and cannot therefore refer questions to the ECJ.20

  Case C-104/79 Foglia v Novello [1980] ECR 745; and Case C-244/80 Foglia v Novello (No 2) [1981] ECR 3045.   Case C-116/02 Erich Gasser Gmbh v MISAT Srl [2005] 1 QB 1, [2003] ECR I-14693, para 24; and Case C-458/93 Criminal Proceedings against Saddik [1995] ECR I-511, para 17. 19   Case C-1/99 Kofisa Italia Srl v Ministero delle Finanze [2000] ECR I-207, [22]. 20  Case C-24/92 Corbiau v Administration des Contributions du Grand-Duche de Luxembourg [1993] ECR I-1277. 17 18

When Should a Reference be Made?  325

B.  Courts and Tribunals that Must Refer The third paragraph of Article 267 provides that a court or tribunal of a Member State ‘against whose decisions there is no judicial remedy under national law’ must make a reference. Commentators are divided concerning what precisely constitutes a court against whose decision there is no judicial remedy. On one view, the ‘abstract theory’, the only courts falling within this definition are those whose decisions are as a general rule not subject to appeal. By contrast, the ‘concrete theory’ argues that one should consider whether the court’s decision in the instant case is subject to appeal. As Hartley has argued, there is support for the concrete view in ECJ case law.21 In Costa v ENEL,22 a preliminary reference was made by a giudice conciliatore (magistrate) in Italy, and although decisions of the giudice conciliatore are appealable in some cases, there was no right of appeal in the instant case because of the small sum of money in dispute. The ECJ said, with reference to Article 267 TFEU (then Article 177 EEC), that ‘national courts against whose decisions, as in the present case, there is no judicial remedy, must refer the matter to the Court of Justice’.23 The implication of this passage is that the third paragraph of Article 267 refers to the highest court in the case, rather than the highest court in the country. The position is complicated where access to the highest court in the hierarchy is available only with permission. Where a reference is appropriate, must the Court of Appeal grant permission to appeal to the Supreme Court? Or may the Court of Appeal refuse permission and leave the Supreme Court no choice but to grant permission to appeal? Guidance on this point was given by the ECJ in the Swedish case of Criminal Proceedings against Lyckeskog.24 In Sweden, an appeal may be brought in the Högstra Domstolen (Supreme Court) only if leave is granted. The ECJ held that the Swedish court of appeal is never obliged to make a reference, but the Högstra Domstolen must make a reference, either when considering whether to grant leave or (if it grants leave) when determining the appeal. Accordingly, the position in England would appear to be that the Court of Appeal is not obliged to make a reference where an appeal lies (with permission) to the Supreme Court.

IV.  When Should a Reference Be Made?

A. The Test The test for making a reference pursuant to Article 267 has two stages. First, the domestic proceedings must raise a question concerning either the interpretation of the Treaties or the validity and interpretation of acts of the institutions. It is not necessary for one of the parties to raise a point of EU law in order to trigger a preliminary reference. The expression ‘raised before any court’ in Article 267 also enables the domestic court to raise issues of EU law of its own motion and to make a reference.25  TC Hartley, The Foundations of European Union Law, 7th edn (Oxford, Oxford University Press, 2010) 301.   Case C-6/64 Costa v ENEL [1964] ECR 585. 23   Ibid (emphasis added) 592. 24   Case C-99/00, Criminal Proceedings against Lyckeskog [2002] ECR I-4839, [2003] 1 WLR 9. 25   Case C-126/80 Salonia v Poidomani and Baglieri [1981] ECR 1563, para 7. See also Civil Procedure Rules (CPR) r 68.2(1)(a). 21 22

326  Preliminary References to the European Court of Justice (ECJ) Secondly, a decision on such a question must be ‘necessary’ to enable the domestic court to give judgment. It is a decision on the question that must be necessary, not the reference. Whether a reference is necessary or not is a question for the referring court, and the ECJ will not substitute its own view unless EU law is clearly inapplicable to the case26 or the question referred is clearly irrelevant to the issues before the domestic court.27

B.  Exceptions to the Obligation to Refer There are three exceptions to the obligation to refer a question to the ECJ: first, a court that takes a decision in interlocutory proceedings is not obliged to refer, provided that the decision on the point of EU law does not bind the court subsequently in the main action; second, a domestic court is not obliged to refer where the question raised is materially identical to a previous question already the subject of a preliminary ruling of the ECJ;28 and third, the ECJ has held that where the correct application of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question of EU law is to be resolved (acte claire), a national court is not obliged to make a reference. 1.  Acte Clair In CILFIT, the ECJ held that a domestic court is not obliged to make a preliminary reference where the answer to the question of EU law is ‘so obvious as to leave no scope for any reasonable doubt’.29 To be considered acte clair the answer must be equally obvious to a court in another Member State and to the ECJ. In deciding whether the answer is obvious, a national court must compare the different versions of the text in the various EU languages. It must also consider the fact that legal concepts and terminology do not necessarily have the same meaning in EU law as in national law. Finally, as the ECJ emphasised, ‘every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied’.30 The doctrine of acte clair is, however, controversial because it is unclear the extent to which the interpretation of a provision of EU law is so obvious as to leave no scope for any reasonable doubt as to the manner in which the question of EU law should be resolved. In R v Pharmaceutical Society of Great Britain, ex p Association of Pharmaceutical Importers,31 Kerr LJ warned that the ‘courts should exercise great caution in relying on the doctrine of “acte clair” as a ground for declining a reference’.32 Importantly, the need for caution when deciding whether or not a question is acte clair has increased in the wake of the ECJ ruling in Köbler v Austria,33 which held that an infringement of the duty to refer preliminary questions may result in damages for state liability under the Francovich doctrine.34

  Case C-132/81 Rijksdienst voor Werknemeerspensioenen v Vlaeminck [1982] ECR 2953.   Case C-83/91 Meilicke [1992] ECR I-4871; and Case C-343/90 Dias [1992] ECR I-4673. 28   Cases C-28-30/62 Da Costa [1963] ECR 61. 29   Case C-283/81 CILFIT [1982] ECR 3415, para 16. 30   Ibid, para 20. 31   R v Pharmaceutical Society of Great Britain, ex p Association of Pharmaceutical Importers [1987] 3 CMLR 951. 32   Ibid, 971. 33   Case C-224/01 Köbler v Austria [2003] ECR I-10239. 34   See above ch 16. 26 27

When Should a Reference be Made?  327

C.  Approach of the English Courts The decision whether or not to make a preliminary reference under Article 267 is ultimately a matter of discretion for the domestic court in the particular case. The ECJ has emphasised that the domestic court alone has knowledge of the facts of the case and is best placed to decide at what stage a reference should be made.35 Nevertheless, the ECJ has stated that it is essential that the national court defines the legal context in which the reference is made, and therefore a referring court ought to establish the material facts and settle any questions of national law before a reference is made.36 In R v International Stock Exchange, ex p Else, the general approach to the exercise of discretion whether to refer the matter to the ECJ was described as follows: I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court’s final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which faith a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments.37

When deciding whether to refer the question, particular consideration should be given to the advantages enjoyed by the ECJ. They were clearly summarised by Bingham J in Customs and Excise Commissioners v ApS Samex: [The ECJ] has a panoramic view of the Community and its institutions, a detailed knowledge of the treaties and of much subordinate legislation made under them, and an intimate familiarity with the functioning of the Community market which no national judge . . . could hope to achieve. Where questions of administrative intention and practice arise, the Court . . . can receive submissions from the Community institutions . . . Where the interests of member states are affected they can intervene to make their views known . . . Where comparison falls to be made between Community texts in different languages, all texts being equally authentic, the multinational Court . . . is equipped to carry out the task in a way which no national judge . . . could rival. The interpretation of Community instruments involves very often not the process familiar to common lawyers of laboriously extracting the meaning from words used but the more creative process of supplying flesh to a spare and loosely constructed skeleton. The choice between alternative submissions may turn not on purely legal considerations, but on a broader view of what the orderly development of the Community requires. These are matters which the Court . . . is very much better placed to assess and determine than a national court.38

In judicial review claims, Article 267 is relevant to the decision whether to grant permission. In R v HM Customs and Excise, ex p Davies Products, Woolf J held that permission should not be refused in cases in which a preliminary reference could be required:

  Case C-72/83 Campus Oil v Minister for Industry and Energy [1984] ECR 2727.   Cases 36/80 and 71/80 Irish Creamery Milk Suppliers Association v Irish Government [1981] ECR 735; and Case C-105/94 Celestini v Saar-Sektkellerei Faber GmbH & Co KG [1997] ECR I-2971. 37   R v International Stock Exchange, ex p Else Ltd [1993] QB 534, 545. 38   Customs and Excise Commissioners v ApS Samex [1983] 1 All ER 1042, 1055–56. 35 36

328  Preliminary References to the European Court of Justice (ECJ) [W]here there is a case which has a European element, which conceivably could require the parties to consider a reference to Europe, it would be wrong for the High Court to refuse the applicants the opportunity of obtaining a reference, if that is something to which they are entitled, by failing to give them leave to apply for judicial review.39

V. Procedure

The making of a preliminary reference in the High Court or Court of Appeal follows the procedure prescribed by the Civil Procedure Rules (CPR), Part 68. An order for a preliminary reference may be made by the Court on application by either party, or of the Court’s own motion.40 The power to order a reference can be exercised at any stage of the proceedings.41 Where the Court does decide to make a reference, its order will contain a schedule setting out the request for a ruling and the questions to be asked of the ECJ. It is for the domestic court to formulate the question to be referred: the parties cannot amend the wording of the question; nor may they add further questions during the preliminary reference proceedings before the ECJ.42 The ECJ may reject an application for a preliminary reference or require clarification from the national court where it is manifest that the question referred does not relate to EU law.43 Equally, the ECJ may reject a question that is phrased in such a general manner that the Court is unable to provide an answer.44 Pending determination of the reference by the ECJ, judicial review proceedings will be stayed.45 Since a preliminary reference may take many months to determine, the question of interim relief is also important. If a case concerns the compatibility of a domestic statute with EU law, the domestic court may suspend the operation of the impugned statute while the reference is pending.46 If the preliminary reference concerns the validity of an EU measure, the domestic court may also suspend the operation of any domestic measure that is dependent upon it.47

VI.  Effects of a Preliminary Ruling

Once the ECJ has given a preliminary ruling, the case is remitted back to the referring national court. The domestic court will then pick up proceedings where it left off and determine the case. The domestic court is not under an obligation to apply EU law to the case, and it may determine the case on other grounds. However, if the domestic court does

  R v HM Customs and Excise, ex p Davies Products (Liverpool) Limited, Unreported, 25 June 1991.   CPR 68.2(1).  Ibid. 42  Case C-297/94 Bruyère v Belgian State [1996] ECR I-1551, para 19; and Case C-500/04 Proxxon v Oberfinanzdirektion Köln [2006] ECR I-1545, paras 16–18. 43   Case C-105/79 Hayange [1979] ECR 2257; and Case C-95/96 URSSAF [1996] ECR I-12, paras 1–7. 44   Case C-14/86 Pretore de Salo [1987] ECR 2545, para 16. 45   CPR 68.4. 46   Case C-213/89 R v Secretary of State for Transport, ex p Factortame (No 2) [1990] ECR I-2433, [1991] 1 AC 603. On interim remedies, see further above ch 8. 47   Cases C-143/88 and C-92/89 Zuckerfabrik [1991] ECR I-415. 39 40 41

Effects of a Preliminary Ruling  329 consider EU law to be relevant to the issues before it, it is bound by the ECJ’s preliminary ruling.48 Although the division of labour between the domestic court and the ECJ is clear in principle, in practice when the ECJ interprets the relevant provisions of EU law, the modern trend is for it increasingly to shape its rulings in such a manner as to indirectly determine the case. This means that preliminary references become more like decisions in an action for annulment under Article 263. This trend has been rightly criticised on the basis that the preliminary reference procedure provides Member States with fewer procedural rights than the action for annulment procedure under Article 263.49

  Case C-29/68 Milch-, Fett- und Eierkontor [1969] ECR 165, para 3.  HG Schermers and DF Waelbroek, Judicial Protection in the European Union (The Hague, Kluwer Law International, 2001) 649. 48 49

18 The Action for Annulment and the Action for Failure to Act This is a short chapter. Its brevity is not, however, a reflection of the author’s interest in the subject, but rather it highlights one of the principal defects of EU environmental law: the restrictive standing rules applied by the European Court of Justice (ECJ) make it virtually impossible for any environmental judicial review claim to be brought against the EU institutions. Unlike the sufficient interest test in domestic judicial review proceedings, the fact that a measure has adverse effects on an applicant is not a sufficient reason for standing to be conferred in EU law. The Treaty on the Function of the European Union (TFEU) requires an applicant to be ‘directly and individually concerned’, and the ECJ has interpreted this extremely restrictively so as to exclude the possibility of public interest litigation. This is a significant lacuna in the law, which the ECJ has stated can be removed only by treaty revision1 – something unlikely to occur in the near future, given that the opportunity to liberalise the standing rules was not taken when drafting the TFEU. The TFEU provides a route for challenging both acts of the EU institutions and their failure to act. Article 263 enables an action to be brought to annul acts of the EU institutions: The Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-à-vis third parties.

An action for annulment can therefore be brought in respect of three types of act: 1) legislative acts; 2) acts of the Council, Commission and European Central Bank, ‘other than recommendations and opinions’;2 and 3) acts of the European Parliament, the European Council and of bodies, offices and agencies of the Union ‘intended to produce legal effect vis-à-vis third parties’. The consequence of a successful action for annulment is set out in Article 264: ‘If the action is well founded, the Court of Justice of the European Union shall declare the act concerned to be void’.

  Case C-50/00 P UPA v Council [2002] ECR I-5137, para 44.  On the meaning of ‘acts other than recommendations and opinions’, see T Hartley, The Foundations of European Union Law, 7th edn (Oxford, Oxford University Press, 2010). 1 2

Standing  331 In respect of failures to act, Article 265 provides: Should the European Parliament, the European Council, the Council, the Commission or the European Central Bank, in infringement of the Treaties, fail to act, the Member States and the other institutions of the Union may bring an action before the Court of Justice of the European Union to have the infringement established. This Article shall apply, under the same conditions, to bodies, offices and agencies of the Union which fail to act.

This chapter considers the standing test that applies to both the action for annulment and the action for failure to act.

I. Standing

The standing rules in EU law are extremely controversial. Generally speaking, Member States and other EU institutions such as the European Parliament have an unrestricted right of access to court. Individuals or companies may challenge decisions addressed specifically to them. In other cases, a decision must be of ‘direct and individual concern’ before a third party may have standing to challenge it. In practice, it is therefore impossible for an environmental nongovernmental organisation (NGO) to bring a claim. Counter-intuitively, the more extensive the environmental impact of a decision, the less likely it will be that the ECJ will find that the claimant is directly and individually concerned.

II.  Privileged Applicants

The second paragraph of Article 263 TFEU provides that the ECJ has jurisdiction in actions for judicial review brought by a Member State, the European Parliament, the Council or the Commission. Parties falling within this paragraph are known as ‘privileged applicants’ because they always have standing to challenge any reviewable acts, even if a decision is addressed to someone else.3 The concept of a ‘Member State’ is, however, narrowly interpreted, and only the central government of a state is regarded as a privileged applicant. Therefore, regional or local authorities within a Member State do not automatically have standing.4

III.  Semi-privileged Applicants

According to the third paragraph of Article 263 TFEU, the Court of Auditors, the European Central Bank and the Committee of the Regions are ‘semi-privileged’ applicants: they may bring an action for annulment only to protect their prerogatives. 3   Case 45/86 Commission v Council [1987] ECR 1493, para 3; and Case 131/86 United Kingdom v Council [1988] ECR 905, para 6. 4   Case C-95/97 Région Wallone v Commission [1997] ECR I-1787, para 6. See also Case C-180/97 Regione Toscana v Commission [1997] ECR I-5245.

332  The Action for Annulment and the Action for Failure to Act IV. Non-privileged Applicants

For present purposes, the most important category of standing is that created by the fourth paragraph of Article 263 TFEU, which states: Any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

Accordingly, there are three situations in which a natural or legal person will have standing to bring an action for annulment: 1) if the act is addressed to the claimant; 2) if the act is of direct and individual concern to the claimant; and 3) if the challenge is to a regulatory act that is of direct concern to the claimant and does not entail implementing measures.

A.  An Act Addressed to the Applicant This ground for standing is particularly important in the field of competition law, where the EU Commission regularly addresses decisions directly to private undertakings. However, in the context of environmental law, acts are usually addressed to Member States rather than to private parties, and therefore this standing test is seldom applicable in envir­ onmental judicial review claims.

B.  Individual Concern The leading case on the meaning of ‘individual concern’ is Plaumann v Commission, in which the ECJ held: [P]ersons other than those to whom a Decision is addressed may only claim to be individually concerned if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. In the present case the applicant is affected by the disputed decision as an importer of clementines, that is to say, by reason of a commercial activity which may at any time be practised by any person and is not therefore such as to distinguish the applicant in relation to the contested decision as in the case of the addressee.5

In Plaumann, the impugned act was a decision of the Commission addressed to the German government refusing permission to lower the duty on imported clementines. The claimant, who was an importer of the fruit, was affected only as a member of the general class of fruit importers. Since all other such importers would be affected in the same way, the claimant was held not to be individually concerned and therefore lacked standing.

  Case 25/62 Plaumann v Commission [1963] ECR 95, 107.

5

Non-Privileged Applicants  333 The ECJ has modified the test established in Plaumann by introducing the so-called ‘closed category’ test. According to this test, an applicant can establish individual concern if he can show that he was affected by the measure as a member of a closed category – that is to say, a category of persons whose membership was fixed when the measure came into force, and it is therefore possible to identify everyone within that category individually. Therefore, if a decision applies only to persons who hold a licence during the period prior to a decision coming into force, those licence-holders will be members of a closed category. If, by contrast, a decision applies to anyone who wishes to undertake a licensed activity in the future, the class will be open, because when the measure comes into force it will not be possible to tell who will want to undertake the licensed activity. The leading environmental case on standing in an action for annulment is Greenpeace v Commission.6 The case concerned the provision of funding for the construction of two power stations on the Canary Islands. The project had received financial assistance from the EU Commission via the European Regional Development Fund. An action for annulment was brought by individuals living on the Canary Islands, including local residents, fishermen and farmers. They contended that the Commission’s decision ought to have been subject to an environmental impact assessment (EIA) under the EIA Directive,7 and therefore the decision was unlawful. The Court of First Instance (CFI) held that these individuals did not have standing because, although they were adversely affected by the construction of the power stations, none of them was individually concerned, since they were all affected ‘in the same manner as any other local resident, fisherman, farmer or tourist who was, or might be in the future, in the same situation’.8 Greenpeace was also one of the applicants in the action for annulment – it was bringing a public interest challenge. The CFI denied that Greenpeace had standing and held that ‘an association formed for the protection of the collective interests of a category of persons cannot be considered to be directly and individually concerned . . . by a measure affecting the general interests of that category’.9 Given that all of the persons represented by Greenpeace were not individually concerned, it followed that Greenpeace could not be individually concerned either.10 On appeal, the ECJ upheld the CFI ruling on all points, thereby confirming the restrictive application of the test of individual concern in environmental claims.11 Before the ECJ, Greenpeace raised the argument that this restrictive approach to standing in environmental claims created . . . [a] legal vacuum in ensuring compliance with Community environmental legislation, since in this area the interests are, by their very nature, common and shared, and the rights relating to those interests are liable to be held by a potentially large number of individuals so that there could never be a closed class of applicants satisfying the criteria adopted by the Court of First Instance.12

Greenpeace also made the valid point that there was no alternative mechanism for challenging the legality of the Commission’s decision in this case because the matter could not 6   Case T-585/93 Greenpeace v Commission [1995] ECR II-2205 (CFI); Case C-321/95 Greenpeace v Commission [1998] ECR I-1651. 7  Directive 85/337/EEC. 8   Greenpeace (above n 6) Case T-585/93, paras 54–55. 9   Ibid, paras 59–60. 10   Ibid, para 60. 11   Greenpeace (above n 6) Case C-321/95, paras 27–31. 12   Ibid, paras 18–19.

334  The Action for Annulment and the Action for Failure to Act be raised in a preliminary reference procedure.13 Unsatisfactorily, these arguments were dismissed by the ECJ in a cursory manner. The ECJ’s argument that the preliminary reference procedure was an adequate mechanism for redress in light of the fact the applicants had launched proceedings in the national courts against the Spanish government’s failure to conduct an environmental impact assessment was specious: the national proceedings concerned only the legality of the Spanish administrative authorities’ approval of the project in breach of the EIA Directive; they could not question the legality of the decision by the Commission to fund the project in the absence of an environmental impact assessment. The ECJ’s extremely restrictive approach to standing is further exemplified by the decision in Markku Sahlstedt v European Commission.14 The case concerned the Habitats Directive,15 which requires the designation of sites considered to be of Community import­ ance. Member States must propose sites within their territories that host the habitat types and species specified by the Directive. The Commission then agrees a draft list of sites of Community importance with each Member State, before formally designating the sites. Following designation by the Commission, Member States are obliged to designate such sites as special areas of conservation as soon as possible and to take steps to avoid their deterioration and disturbance. Any plan that might have a significant impact on a site must be subject to strict assessment in accordance with the precautionary principle.16 In Markku Sahlstedt, the applicants were landowners who wished to challenge the legality of the Commission’s decision to designate sites of Community importance in Finland. Although potentially affected by the designations, the landowners were denied standing because the designation decisions were not of individual concern to them. The ECJ held that even if somebody was directly concerned by a decision, they also had to be individually concerned in order to be given standing. The Court repeated its settled case law and held that individual concern meant that the decision affected the applicants by reason of circumstances peculiar to them or in circumstances differentiating them from all other persons affected. In Markku Sahlstedt, the decision to designate sites had been taken on the basis of the nature conservation criteria specified in the Directive, rather than by reference to the owners of the sites. Consequently, the decision was not adopted in the light of the landowners’ specific situation. Furthermore, the decision to designate carried implications for all economic operators who were likely to carry out activities within the designated sites, not merely the landowners. The ECJ therefore concluded that the Commission’s decision to designate ‘cannot be regarded as a group of individual decisions addressed to each landowner’.17 This was an unduly restrictive stance for the ECJ to take. A decision by the Commission to designate a given site as a special area of conservation does impact on the landowners in a distinct adverse manner, because the economic value of the land will usually be impaired significantly. The English courts have readily accepted that for these reasons, designation of land as a Site of Special Scientific Interest (SSSI) is sufficient to render a landowner the victim for the purposes of a claim under the Human Rights Act 1998.18 Designation of a site   See above ch 17.   C-362/06 P Markku Sahlstedt v European Commission [2009] ECR I-2903. 15   Council Directive 92/43/EEC, [1992] OJ L206/7. 16   Case C-386/96 P Dreyfus v Commission [1998] ECR I-2309, para 43; and Case T-177/01 Jégo Quéré [2002] ECR II-2365, para 26. On the precautionary principle, see above ch 3. 17   Markku Sahlstedt (above n 14) para 33. 18   R (on the Application of Trailer & Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2004] EWCA Civ 1580, [2005] 1 WLR 1267. 13 14

Non-Privileged Applicants  335 of special area of conservation is distinguishable in that the actual restrictions on landowners do not occur until a Member State takes steps to implement the obligations flowing from the Commission’s determination. Nevertheless, Member States have no discretion once the Commission’s designation has been made, and they are under a strict duty to comply with the requirements of the Directive.19 The Commission’s determination can therefore be viewed as the legally determinative act in the process. The ECJ’s response to the hardship caused by such a restrictive standing rule is that disappointed applicants may always challenge the actions of the national authority and in those proceedings raise the legality of the EU action or decision. Although the national courts may not judge the legality of EU acts or decisions,20 a preliminary reference may be made to the ECJ to rule on the point.21 This approach may provide an avenue of redress for some applicants, but for many it is likely to be inadequate, given first that there is no right to a reference to the ECJ and secondly that the cost of such convoluted proceedings, together with the time delay, make the option impractical for most prospective claimants. There is certainly no assurance of legal protection by this alternative route, and the enforcement of environmental law is likely to remain patchy. Given the clear and settled case law on the definition of direct and individual concern, it seems that there is little prospect of more liberal standing laws being applied without there being a change to the relevant treaty provisions. The Lisbon Treaty failed to address this issue22 and continues to refer to direct and individual concern. The unduly restrictive standing rules are a serious lacuna in EU law, and urgent reform is necessary.

C. Direct Concern The ECJ has held that direct concern implies that the act must . . . directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from Community rules without the application of other intermediate rules.23

In other words, an individual is directly affected by an act only if the addressee of the act does not have any discretion in terms of implementing the act or altering its content. In the environmental context, this is a significant limitation, given that most EU environmental legislation requires implementing measures and confers considerable discretion on Member States.24 The combined effect of the test of individual concern and the test of direct concern is therefore to render most environmental acts and omissions immune from direct challenge at EU level. This underlines the importance of domestic judicial review proceedings, and it also places greater responsibility for ensuring the effective enforcement of EU law on the Commission. The next chapter considers whether the Commission has the powers and the resources to meet those added responsibilities.   Case C-244/05 Bund Naturschutz in Bayern eV and Others v Freistaat Bayern [2006] ECR I-8445, para 39ff.   Case 314/85 Foto Frost v Hauptzollampt Lübeck-Ost [1987] ECR 4199.   See above ch 17. 22   Although it did make minor changes to the standing of non-privileged applicants under Article 263 by allowing them to challenge ‘a regulatory act’ if it is of direct concern. 23   See, for example, Dreyfus (above n 16) para 43. 24   See above ch 2. 19 20 21

19 Enforcement by the Commission I. Introduction

A. Outline of the Enforcement Powers The European Commission’s law enforcement powers are contained in Articles 258 and 260 of the Treaty on the Functioning of the European Union (TFEU) (ex-Articles 226 and 228 EC). These two provisions operate in tandem as follows. Where the Commission detects a breach of EU environmental law, it may take enforcement proceedings, pursuant to Article 258 TFEU (known as ‘first-round’ proceedings). These first-round proceedings may culminate in a finding of breach by the European Court of Justice (ECJ). If, after the first-round proceedings, a defendant Member State persists in its breach of EU law, the Commission may subsequently bring proceedings pursuant to Article 260 (known as ‘second-round’ proceedings) and obtain a decision from the ECJ imposing financial penalties on the defaulting Member State. The Commission plays an extremely important role in enforcing EU environmental law. It has been estimated that approximately a quarter of all investigations for noncompliance with EU law concern the environment and that more than one third of infraction proceedings relate to environmental matters.1 Nevertheless, there are doubts as to the effectiveness of enforcement by the Commission. As will be seen, the Commission lacks the time, resources and investigative power necessary to police EU environmental law on its own. It therefore relies heavily on complaints by individuals and corporations against the defaulting Member States. Moreover, the repetitive nature of the infraction proceedings brought by the Commission does indicate that the deterrent effect is insufficient.

B.  Enforcement against What? Before considering the enforcement procedure in detail it is necessary first to consider against exactly what the Commission may bring enforcement proceedings. As AG Geelhoed explained in Commission v Ireland,2 the implementation of EU environmental law essentially comprises two stages: the transposition phase and the operational phase. The transposition phase consists first of transposing the EU measure into national law in a sufficiently precise manner and secondly of setting up the ‘legal and administrative framework for the proper application and enforcement’ of transposing legislation (for example, designating   P Wennerås, The Enforcement of EC Environmental Law (Oxford, Oxford University Press, 2007).   Case C-494/01 Commission v Ireland [2005] ECR I-3331, para 23.

1

2

First-Round Proceedings  337 the proper authorities, facilitating monitoring and enforcement mechanisms, ensuring legal remedies and prescribing effective sanctions).3 The Commission is able to bring infraction proceedings against failures on the part of Member States that have occurred at any of the stages of the implementation process. In practice, however, the Commission focuses its resources on the initial part of the transposition phase because Member States must usually provide full information about the manner in which they have transposed environmental directives. By contrast, the Commission has far less information concerning the organisational phase of the transposition process and the subsequent operation of EU environmental law within Member States.

C. The Duty to Cooperate Although the Commission lacks strong investigative power, it is able to rely on the fact that Member States are bound by the principle of local operation in Article 4(3) of the Treaty on European Union (TEU) (ex-Article 10 EC), which requires them to provide all necessary data to the Commission.4 If a Member State fails to provide the necessary data, the Commission can bring infraction proceedings, either separately or in parallel with the substantive issues, for infringement of Article 4(3).5

II.  First-Round Proceedings

Article 258 TFEU provides: If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

As this provision makes clear, enforcement proceedings under Article 258 consist of two stages: an administrative stage and a judicial stage.

A. The Administrative Stage During the pre-litigation administrative stage of enforcement proceedings, the Commission seeks to achieve two objectives. First, it attempts to verify the factual position concerning the alleged breach of EU environmental law. Secondly, if the Commission considers that there is a breach of EU law, it will enter into dialogue with the defaulting Member State and attempt to achieve a friendly settlement in order to remedy the breach and thereby avoid the need to litigate before the ECJ.

  Ibid, para 26.   Case C-33/90 Commission v Italy [1991] ECR I-5987, para 18; Case 192/84 Commission v Greece [1985] ECR 3967, para 19; and Case C-82/03 Commission v Italy [2004] ECR I-6035, para 15. 5  Eg, Commission v Ireland (above n 2) paras 195–98. 3 4

338  Enforcement by the Commission In Commission v Netherlands,6 a case concerning the Netherlands’ failure properly to implement the Wild Birds Directive 79/409,7 the ECJ explained the pre-litigation procedure in the following manner: The aim of the pre-litigation procedure is . . . to give the Member State an opportunity to justify its position or, as the case may be, to comply of its own accord with the requirements of the [EC] Treaty. If that attempt to reach a settlement proves unsuccessful, the Member State is requested to comply with its obligations as set out in the reasoned opinion which concludes the pre-litigation procedure provided for in Article [258] within the period prescribed in that opinion.8

Similarly, in Commission v Ireland,9 the ECJ explained: By formally stating the infringement of the Treaty with which the Member State concerned is charged, the reasoned opinion concludes the pre-litigation procedure provided for in Article [258]. The purpose of that procedure is to give the Member State an opportunity, on the one hand, of remedying the position before the matter is brought before the Court and, on the other hand of putting forward its defence to the Commission’s complaints.10

1.  The Letter of Formal Notice and the Reasoned Opinion There are two formal steps to this pre-litigation stage. The first is the issuing of a letter of formal notice (LFN) by the Commission to the defendant Member State. The LFN is essentially the first official warning addressed to the defaulting Member State. It sets out the essence of the Commission’s case for considering there to be a breach of EC environmental law. This is then followed by the Commission issuing a reasoned opinion (RO), which amounts to a second and final official warning to the defendant Member State to take the necessary measures to rectify the breach within a deadline set by the Commission. The RO is therefore the final opportunity for a defendant to take steps to avoid proceedings before the ECJ.

B. The Judicial Stage When a Member State fails to comply with the RO within the time limit set by the Commission, the Commission may refer the dispute to the ECJ for judgment.11 This is the litigious phase of Article 258 proceedings. It culminates with the ECJ providing a binding declaratory judgment on the issue of breach. Article 258 then obliges the defendant Member State to take the necessary measures to comply with that judgment. The ECJ is not, however, able to impose any sanction as part of Article 258 proceedings. This is a clear disadvantage, and in a number of cases, Member States have simply failed to comply with the ECJ’s declarations. In order to overcome this deficiency, in 1992 the TEU made provision in Article 228(2) EC (now Article 260(2) TFEU) for ‘second-round’ proceedings.

 C-3/96 Commission v Netherlands [1998] ECR I-3031.   [1979] OJ L103/1.   Commission v Netherlands (above n 6) para 16. 9   Case 74/82 Commission v Ireland [1984] ECR 317. 10   Ibid, para 13. 11  The case may be inadmissible if the time limits provided in the RO are unreasonably short: Case 293/85 Commission v Belgium [1988] ECR 305. 6 7 8

First-Round Proceedings  339 1.  Time Limits and Standing There is no time limit within which the Commission must bring proceedings once the time limit for implementing an RO has expired.12 Indeed, as Wennerås has noted, in Commission v Germany,13 the Commission brought proceedings more than six years after the national legislation had been published and after EU policy had moved in the same direction as the impugned national legislation.14 Nevertheless, the ECJ held that it was for the Commission ‘to decide, in its discretion, on what date it may be appropriate to bring an action and it is not for the court to review the exercise of that discretion’.15 It may not always be appropriate for the Commission to begin proceedings after such a long interval. In particular, the ECJ has suggested that if a Member State has taken new measures in the interim, the Commission should issue a fresh RO rather than bring proceedings based on expiry of the first RO.16 The Commission does not need to demonstrate a specific interest in bringing proceedings under Article 258. As guardian of the Treaty, it automatically has an interest: The Commission . . . does not have to show the existence of a legal interest, since, in the general interest of the Community, its function is to ensure that the provisions of the Treaty are applied by the Member States and to note the existence of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end.17

2.  The Ambit of the Dispute A fundamental feature of first-round judicial proceedings is that an RO must delimit the subject matter of the case, and the Commission cannot expand its complaints to introduce new issues of either law or fact.18 Accordingly, what matters is whether there was a breach of EU environmental law on the facts that existed at the time of the expiry of the deadline for compliance with the RO. This means that a Member State may escape liability, even if it is being breach of EU environmental law for many years, if it complies with the RO within the relevant deadline. However, a Member State will be liable if it fails to comply within the time limit prescribed by the RO, even if it complies with the RO before the ECJ gives judgment. 3.  Burden of Proof The burden of proof lies on the Commission in proceedings under Article 258. However, recent case law suggests that the onus of proof may shift to the Member State once the Commission has demonstrated a prima facie case. For example, in Commission v Italy (San Rocco),19 the ECJ held that once the Commission had adduced ‘sufficient evidence’ that waste had been discharged into the water course of the San Rocco Valley, ‘it is for the Italian Republic to challenge in substance and in detail the data produced by the Commission and to show that the conditions laid down [in the Directive] were met in the present case.’20 12   Case C-96/89 Commission v Netherlands [1991] ECR I-2461, para 15; Case C-317/92 Commission v Germany [1994] ECR I-2093, para 4; and Case C-207/97 Commission v Belgium [1999] ECR I-275, para 27. 13   Case C-422/92 Commission v Germany [1995] ECR I-1097, para 18. 14   Wennerås (above n 1) 257. 15   Commission v Germany (above n 13) para 18. 16   Case C-177/03 Commission v France [2004] ECR I-11671, para 21. 17   Case 167/73 Commission v France [1974] ECR 359, para 15. 18  Case C-287/00 Commission v Germany [2002] ECR I-5811, para 18; and Case C-350/02 Commission v Netherlands [2004] ECR I-6213, paras 20–21. 19   Case C-365/97 Commission v Italy (San Rocco) [1999] ECR I-7773. 20   Ibid, para 86.

340  Enforcement by the Commission 4. Remedies In Article 258 proceedings, the ECJ is able only to declare that a Member State has failed to fulfil an obligation under EU environmental law. The ECJ cannot set aside unlawful national measures; nor can it make any form of mandatory order. The ECJ is able to grant interim relief to the Commission pursuant to Articles 278 and 279 TFEU, but such interim relief is not available at the pre-judicial, administrative stage of Article 258 proceedings. Given that the administrative stage of proceedings can take in excess of two years, Article 258 proceedings are plainly inappropriate in cases of urgency, where irreparable environmental harm is threatened. The problem is compounded by the fact that the ECJ has held that since interim measures are not available during the administrative stage, it may be presumed that there is no urgency once the case has reached the judicial stage. In Leybucht,21 the ECJ refused interim relief, noting: [The Commission] submitted its application after the regional government’s project was well under way, through conclusion of the necessary contracts and the start of construction work. It did not apply for interim measures until a large part of the work had already been completed. In effect, the Commission is requesting the Court to stop work which has already been partially completed.22

The inability of the Commission to obtain interim relief means that urgent cases are better dealt with by individuals or NGOs seeking judicial review at the national level, where interim relief is available much more expeditiously. 5.  General and Persistent (GAP) Infringements In the past, the Commission brought Article 258 proceedings in relation to isolated breaches of EU environmental law – for example, in respect of failures to apply Directive 75/44223 in the case of individual waste sites.24 The problem with this approach was that it was extremely time-consuming and costly to bring proceedings in relation to the specific site at which a breach of EU environmental law was occurring. Moreover, every time a new breach became apparent at a further site, fresh proceedings had to be initiated. These disadvantages led the Commission to develop a new method of enforcement, according to which it invites the ECJ to extrapolate a general and persistent breach on the basis of a number of individual infringements of EU law. The leading case is Commission v Ireland,25 which concerned illegal waste disposals in Ireland. Between 1997 and 2000, the Commission received several individual complaints concerning illegal waste disposal, mainly relating to waste operators working without permits and the existence of illegal waste sites. The complaints covered 18 separate incidents in various parts of the Irish territory. The Commission brought a single Article 258 claim in respect of 12 of the infringements; and in addition to seeking to establish infringements in all 12 of the individual cases, the Commission requested that the ECJ declare that Ireland had, in a ‘general and persistent manner’, infringed the Waste Framework Directive.26 AG Geelhoed considered that in determining whether a Member State has breached EU   Case C-57/89 R Commission v Germany (Leybucht Dykes) [1991] ECR I-883.   Ibid, para 17.   [1975] OJ L194/39. 24   Eg, Case C-45/91 Commission v Greece [1991] ECR I-2509; Commission v Italy (above n 19); and Case C-420/02 Commission v Greece [2004] ECR I-11175. 25   Above n 2. 26   Council Directive 75/442/EEC (as amended). 21 22 23

Second-Round Proceedings  341 environmental law in a ‘general and persistent’ manner, regard must be had to the following features of the infringements: (i) their scale; (ii) their duration; and (iii) their seriousness.27 The ECJ did not explicitly state the criteria for establishing a general and persistent breach, but it did emphasise these criteria. The case law provides some guidance in respect of the duration of infringement necessary in order to establish a general and persistent breach. For example, in San Rocco,28 the ECJ found that an eight-year period of illegal waste dumping amounted to a protracted breach of the Waste Framework Directive;29 and in Commission v Greece (Pera Galini),30 a failure to recover or dispose of unlawful waste for a four-year period amounted to a breach of the Waste Framework Directive over a ‘protracted period’. The general and persistent failure cases are significant in two respects. First, there are procedural advantages in such cases. There is a shift in the burden of proof in that if the Commission succeeds in establishing individual breaches that indicate a general and persistent breach, it is for the Member State to establish that these cases are isolated incidents and that no general systemic breach lies behind them.31 Furthermore, it is possible at the judicial stage to adduce new evidence about infringements not mentioned in the RO.32 The ECJ has explained that the new evidence is admissible because in general and persistent breach cases, new evidence relating to individual infringements does not alter the subject matter of the dispute; it merely provides detailed information about breaches of EU envir­ onmental law that have already been alleged in a general manner.33 Secondly, there are also benefits at the remedial stage. Ordinarily, following Article 258 proceedings, an ECJ declaration means that the Member State has to take the necessary measures to address the specific breaches identified. If a subsequent complaint is made, the Commission has to initiate fresh Article 258 proceedings. By contrast, in general and persistent breach cases, an ECJ declaration requires Member States not only to rectify the specific infringements but also to correct the general and persistent breaches throughout its territory. In other words, the Member State must deal with the existing breaches and any subsequent breaches, regardless of whether these incidents have been the subject of the infringement proceedings.

III.  Second-Round Proceedings

Article 260(1) TFEU requires Member States to take all the necessary measures to comply with an Article 258 judgment. Originally, there was no sanction for breach of this obligation, and consequently infringement proceedings by the Commission carried little deterrent effect. This situation has now changed radically as a result of the introduction (in the Maastricht Treaty) of a power to impose penalty payment or lump sums on defaulting Member States. The power, originally contained in Article 228(2) EC, is now found in Article 260(2) TFEU, which provides:   Commission v Ireland (above n 2) para 43.   Above n 19.   San Rocco (above n 19) paras 88–91. 30   Case C-420/02 Commission v Greece [2004] I-11175, paras 24–33. 31   Commission v Ireland (above n 2) para 53 (AG). 32   Ibid, para 38. 33  Ibid. 27 28 29

342  Enforcement by the Commission 1) If the Court of Justice of the European Union finds that a Member State has failed to fulfil an obligation under the Treaties, the State shall be required to take the necessary measures to comply with the judgment of the Court. 2) If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. It shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances.    If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.   This procedure shall be without prejudice to Article 259. 3) When the Commission brings a case before the Court pursuant to Article 258 on the grounds that the Member State concerned has failed to fulfil its obligation to notify measures transposing a directive adopted under a legislative procedure, it may, when it deems appropriate, specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that there is an infringement it may impose a lump sum or penalty payment on the Member State concerned not exceeding the amount specified by the Commission. The payment obligation shall take effect on the date set by the Court in its judgment.

A.  Key Features of Article 260 1. Procedure The procedure in Article 260 proceedings follows essentially the same structure as Article 258 proceedings. First, a formal notice must be issued, and if the Member State does not carry out the necessary steps to comply, an RO will follow. A key question is how long the Commission must wait after the ECJ has given judgment in Article 258 proceedings before it can initiate proceedings under Article 260 to obtain penalty payment or a lump sum. In Commission v Spain,34 the Spanish government had failed to fulfil its obligations under Directive 76/160/EEC35 in respect of the quality of bathing water. The Commission’s RO imposed a deadline of two and a half years after delivery of the ECJ judgement against Spain. Although the Advocate General considered that this time for compliance was insufficient due to the complex and long-term operations required to rectify the breach, the ECJ held that the time specified in the RO was adequate because it encompassed three bathing seasons.36 2.  Burden of Proof The Commission bears the burden of proof under Article 258 EC. Therefore, it must demonstrate that there has been an infringement of EC environmental law and that the Member State concerned is responsible.37 The ECJ has held that the Commission must discharge this burden by adducing evidence of sufficient probative value – there is no presumption of   Case C-278/01 Commission v Spain [2003] ECR I-14141.   [1976] OJ L31/1. 36   Commission v Spain (above n 34) para 30. 37   Case 96/81 Commission v Netherlands [1982] ECR 1391, para 6. 34 35

Second-Round Proceedings  343 culpability on the part of national authorities.38 For example, in Commission v Germany,39 the German legislation implementing Directive 90/313/EEC40 on access to environmental information did not include the national courts, but the ECJ held that the Commission could not presume that the German national courts held environmental information other than in their judicial capacity. Instead, the Commission had to produce positive evidence of that fact if it was to prove a breach of the Directive. Although in proceedings under Article 258 it is incumbent upon the Commission to prove its allegations of breach, where the Commission has produced sufficient evidence to show that the defendant Member State has not fulfilled its obligations, the onus shifts to the defendant. It is not sufficient merely to deny the allegations. Rather, it is incumbent on a defendant Member State to contest substantively and in detail the information produced by the Commission. If it does not do so, the allegations will be regarded by the ECJ as substantiated.41 The position differs, however, in the case of non-transposition of an EC directive. In such cases, the breach of EC law will be apparent from the wording of the national legislation (or lack thereof), and the ECJ has held that the Commission does not additionally have to prove that there is noncompliance with a directive in practice. It is sufficient for the Commission to demonstrate that the domestic law fails on paper properly to implement the directive. 3.  The Duty to Co-operate with the Commission’s Investigation Although the Commission is under the evidentiary burden to prove its case, its task is facilitated by the fact that Member States are under a general duty to cooperate both with the Commission’s investigations and with all other aspects of Article 258 proceedings. This obligation derives from Article 4(3) TEU, which provides: Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

This duty of cooperation is indispensable, given that the Commission has limited resources at its disposal to investigate allegations of breaches of EC environmental law. A good example of the duty to co-operate being invoked is the case of Commission v Netherlands,42 which concerned the alleged failure of the Netherlands to implement the Bathing Water Directive 76/160/EEC.43 The Commission argued that the Netherlands had failed to provide it with information concerning the steps taken to transpose the Directive, in violation of Article 12 of the Directive, which required Member States to notify the Commission within two years of its entry into force of those national laws, regulations and  Ibid.   Case C-217/97 Commission v Germany [1999] ECR I-5087. 40   [1990] OJ L158/56. 41   Case C-272/86 Commission v Greece [1998] ECR 4875, para 21. 42   Case C-96/81 Commission v Netherlands [1982] ECR 1791. 43   Above n 35. 38 39

344  Enforcement by the Commission provisions designed to transpose the Directive’s norms into national law. In rejecting the Netherlands’ defence that implementation of the Directive had in fact been fulfilled because the local authorities responsible for Dutch water management were directly bound by the Directive, the ECJ emphasised the central importance of the duty to cooperate: The information which the Member States are thus obliged to supply to the Commission must be clear and precise. It must indicate unequivocally the laws, regulations and administrative provisions by means of which the Member State considers that it has satisfied the various requirements imposed on it by the Directive. In the absence of such information, the Commission is not in a position to ascertain whether the member state has effectively and completely implemented the directive. The failure of a Member State to fulfil that obligation, whether by providing no information at all or by providing insufficiently clear and precise information, many of itself justify recourse to the procedure under Article [258] of the EEC Treaty in order to establish the failure to fulfil the obligation.44

  Commission v Netherlands (above n 42) para 8.

44

20 Access to Environmental Information This chapter examines the legal rights that individuals have to obtain information concerning the environment. These rights are important for a number of instrumental and noninstrumental reasons. Access to environmental information is essential if environmental decision-makers are to be held properly to account, because potential grounds for judicial review will often be apparent only when relevant background documentation is scrutinised. Access to environmental information is also an indispensible requirement for effective public participation in environmental decision-making, enabling the public to make an informed contribution to environmental debate. But unrestricted access to environmental information is not possible, because the law must protect national security, commercial secrecy, the integrity of the civil and criminal justice systems and many other important public interests. This area of law is therefore characterised by a balancing of the individual right to receive information against the public interest in maintaining secrecy. As will be seen, the courts place considerable weight on the right of access to environmental information and are astute to curtail that right only when strictly necessary. This chapter begins by explaining the right to receive environmental information that is conferred by the Aarhus Convention,1 before examining in detail the Environmental Information Regulations (EIR) 2004,2 which give effect to the provisions of the Aarhus Convention in UK domestic law.

I.  The Aarhus Convention

A.  The Right to Receive Environmental Information The law currently governing access to environmental information has it origins in the Aarhus Convention. The first pillar of the Aarhus Convention provides for the public to have the right to receive environmental information that is held by ‘public authorities’.3 Article 4(1) requires each contracting state to ensure that public authorities make available, in response to a request and within the framework of national legislation, a copy of the   For further discussion of the Aarhus Convention, see above ch 2.  SI 3391/2004. 3   Art 2(2) defines ‘public authority’ as meaning ‘(a) government at national, regional and other level; (b) natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment; (c) any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a person falling within subparagraphs (a) or (b) above; (d) the institutions of any regional economic integration organization referred to in article 17 which is a party to this Convention.’ 1 2

348  Access to Environmental Information actual documentation containing or comprising the requested environmental information. The person making an information request does not have to state an interest in the information sought.4 The Convention requires that the environmental information shall be made available as soon as possible and at the latest within one month after a request has been submitted, unless the volume and complexity of the information justify an extension of this period for up to two months after the request.5 An applicant must be informed of any extension and of the reasons justifying it.6 A charge may be made for supplying information according to a published schedule of charges.7 Such charges must be reasonable.8

B.  Grounds for Refusal The Aarhus Convention permits a request for environmental information to be refused either on the procedural grounds set out in Article 4(3) or on the substantive grounds set out in Article 4(4). The procedural grounds for refusal are that: 1) a public authority to which the request is addressed does not hold the environmental information requested; 2) the request is manifestly unreasonable or formulated in too general a manner; or 3) the request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure. There are seven substantive grounds for refusal. A request for environmental information may be refused if the disclosure would adversely affect: 1) the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law; 2) international relations, defence or public security; 3) the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature; 4) the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest (Within this framework, information on emissions which is relevant for the protection of the envir­ onment shall be disclosed); 5) intellectual property rights; 6) the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law; 7) the interests of a third party that has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or 8) the environment to which the information relates, such as the breeding sites of rare species.   Art 4(1)(a).   Art 4(2). 6  Ibid. 7   Art 4(8). 8  Ibid. 4 5

The Environmental Information Regulations (EIR) 2004  349 Although these exemptions appear to be extensive, the Convention provides that they ‘shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment’.9 Provision is also made for the redaction of exempt material.10 Where a public authority does not hold the environmental information requested, it must, as promptly as possible, inform the applicant of the public authority to which it believes it is possible to apply for the information requested or transfer the request to that authority and inform the applicant.11 A refusal to disclose environmental information must be made in writing, must set out the reasons for refusal and must advise the applicant of the right of review.12 The Convention requires that review must be conducted by a court or an independent body established by law.13

II.  The Environmental Information Regulations (EIR) 2004

The first pillar of the Aarhus Convention is implemented in UK domestic law through Directive 2003/4/EC14 and the EIR 2004.15 As the recitals of the Directive make clear, dis­ closure of environmental information pursues both instrumental and non-instrumental goals. It can have an educative effect ‘contribut[ing] to a greater awareness of environmental matters’; it can enable ‘a free exchange of views’; it can enable ‘more effective participation by the public in environmental decision-making’; and it can lead ‘eventually, to a better environment’. The EIR are the primary means in the United Kingdom of obtaining information in environmental matters. As the Information Tribunal explained in Kirkaldie v Information Commissioner,16 if information comes within the scope of the EIR, it is ‘exempt information’ under the Freedom of Information Act 2000,17 and the public authority is obliged to deal with the request under the EIR. This chapter therefore focuses on the EIR regime.

A.  Environmental Information 1.  The Definition of ‘Environmental Information’ The central concept under Directive 2003/4/EC and the EIR 2004 is that of ‘environmental information’. It is an extremely broad concept, as the Department for Environment, Food and Rural Affairs (DEFRA) guidance makes clear: Experience from the implementation of the environmental information regime has established that ‘environmental information’ is interpreted very broadly. The government has treated information   Art 4(4).   Art 4(6). 11   Art 4(5). 12   Art 4(7). 13   Art 9(1). 14   [2003] OJ L41/26. 15   These repeal Directive 90/313/EEC, [1990] OJ L158/56, which had been implemented in the United Kingdom through the Environmental Information Regulations 1992. 16   Kirkaldie v Information Commissioner and Thanet DC (EA/2006/001) IT, 4 July 2006. 17  S 39. 9

10

350  Access to Environmental Information relating to GM crop trials, to pesticide testing, to diseased cattle and land-use planning (including the reasons for decisions to approve as well as to refuse planning permission) as environmental information. The definition could also include reports on the implementation of environmental legislation and analysis from an appraisal of policy, including any Regulatory Impact Assessment.18

Regulation 2(1) of the EIR 2004 defines ‘environmental information’ as: any information in written, visual, aural, electronic or any other material form on – a) the state19 of the elements of the environment, such as air20 and atmosphere, water,21 soil,22 land,23 landscape and natural sites24 including wetlands, coastal and marine areas, biological diversity25 and its components, including genetically modified organisms, and the interaction among these elements; b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions,26 discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in (a); c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in (a) and (b) as well as measures or activities designed to protect those elements; d) reports on the implementation of environmental legislation; e) cost-benefit and other economic analyses and assumptions are used within the framework of the measures and activities referred to in (c); and f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of the environment referred to in (a) or, through those elements, by any of the matters referred to in (b) and (c).

This definition is not altogether clear, which gives rise to a number of problematic issues. First, in relation to limb (b), it is unclear whether the definition requires the information to make the link between the ‘factors’ and the likelihood of them affecting the elements of the environment or whether it suffices that the information is on a ‘factor’ that can be 18  DEFRA, EIR 2004 Detailed Guidance, http://archive.defra.gov.uk/‌corporate/‌policy/‌opengov/‌eir/‌guidance/ ‌full-guidance/index.htm (December 2006) ch 3, para 3.1. 19  In R v British Coal Corporation, ex p Ibstock Building Products Ltd [1995] Env LR 277, Harrison J held that the name of the informant who had advised a local authority that munitions had been dumped in a mineshaft was information relating to the state of land under the Environmental Information Regulations 1992. 20  DEFRA, Guidance (above n 18) ch 3, para 3.5 suggests that ‘air’ should be taken to include the air within buildings and other natural and man-made structures above or below ground (ie, not only ambient air but indoor and workplace air also). 21   Ibid, para 3.5 suggests that ‘water’ should be taken to include underground and surface waters (both natural and man-made structures), sewage and foul water, inland waters (ie, rivers, canals and lakes), estuaries, seas, water tables and aquifers. 22   Ibid, para 3.5 suggests that ‘soil’ should be taken to include the in situ upper layer of the mantle rock in which plants grow. 23   ‘Land’ and ‘landscape’ should be taken to include all land surfaces, caves and underground strata; land covered by water is also included: ibid. 24   ‘Natural sites’ should be taken to include areas identified by reason of their flora, fauna, geological or physio­ graphical features (eg, Sites of Special Scientific Interest or general environmental quality, eg, Areas of Outstanding Natural Beauty): ibid. 25   ‘Biological diversity’ should be taken to include species of flora and fauna: ibid. 26  In OFCOM v Information Commissioner and T-Mobile Ltd (EA 2006/0078) IT, 4 September 2007, para 25, the Information Tribunal held that radiation emanating from mobile phone base stations was an ‘emission’. It also held that the names of the mobile network operators amounted to ‘information on’ that radiation and they were also therefore ‘environmental information’.

The Environmental Information Regulations (EIR) 2004  351 shown by other means to affect the elements of the environment. The UN Implementation Guide on the Aarhus Convention suggests that the latter, broader interpretation is the correct one.27 The second source of ambiguity is limb (c) and the degree of formality required in order for something to be regarded as a ‘measure’. Although ‘measures’ is expressly stated to include certain administrative measures, the Information Tribunal has held that building regulation documents and planning agreements made under section 106 of the Town and Country Planning Act 1990 are not ‘measures’ for the purposes of the EIR 2004.28 Third, limb (f) raises the issue of the necessary link between human health and safety and the state of the elements of the environment. Must the information itself show a link between human health and safety and the elements of the environment, or is it sufficient that the information is on the state of human health and safety and that it can be shown independently that the elements of the environment are or may be affecting them? This issue arose in OFCOM v Information Commissioner and T-Mobile,29 in which the Office of Communications (OFCOM), the communications industry regulator, appealed against the Information Commissioner’s ruling requiring it to disclose information about the location, ownership and technical attributes of mobile phone cellular base stations in the United Kingdom. The Tribunal held that limb (f) was intended to apply to information on the state of human health, not merely information on factors that are suspected of possibly creating a risk to it. However, the information must be on the results of those factors affecting human health and not on the factors themselves.30 2.  Examples of ‘Environmental Information’ The breadth of the concept of ‘environmental information’ is illustrated by the following examples of matters falling within its ambit. In Archer v IC and Salisbury DC,31 a joint report to committee from a council’s head of development services and the head of legal and democratic services that identified breaches of planning control (destruction of a Grade II listed building) and recommended enforcement action was held to amount to environmental information.32 Applications for planning permission have been regarded as ‘environmental information’.33 And in Kirkaldie v Information Commissioner,34 legal advice concerning the enforceability of an agreement pursuant to section 106 of the Town and Country Planning Act 1990 relating to the night-flying policy at Kent International Airport was held to be ‘environmental information’. It is important to note that the right under the EIR 2004 is to ‘information in written, visual, aural, electronic or any other material form’.35 This means that information in almost any format will be potentially disclosable. DEFRA guidance states: 27  S Stec, S Casey-Lefkowitz and J Jendroska, The Aarhus Convention: An Implementation Guide (New York, United Nations, 2000) 37. See also P Coppel, Information Rights Law and Practice, 3rd edn (Oxford, Hart Publishing, 2010) 177. 28   Spurgeon v Information Commissioner and Horsham DC (EA/2006/0089) IT, 29 June 2007, para 21. 29   Above n 26. 30   OFCOM v Information Commissioner and T-Mobile (above n 26) para 29. 31   Archer v IC and Salisbury DC (EA/2006/0037) IT, 9 May 2007. 32   Ibid, para 32. 33   Markinson v Information Commission (EA/2005/0014; FER0061168) IT, 28 March 2006 (homeowner seeking original planning application for his house); and Robinson v Information Commissioner and East Riding of Yorkshire Council (EA/2007/0012) IT, 9 October 2007 (member of the public requesting information concerning a planning application by Tesco). 34   Kirkaldie (above n 16) para 14. 35   Reg 2(1).

352  Access to Environmental Information Maps will often contain environmental information. No types of information are excluded from the potential ambit of environmental information. It includes, for example, information contained in all types of documents such as decision letters, applications, inspection reports, concession agreements, contracts, tables, databases, spreadsheets, e-mails, photographs, sketches and handwritten notes or drawings and covers opinions and advice as well as facts. Information in raw and unprocessed form is capable of being environmental information as well as documents.36

B.  The Right to Environmental Information A request for environmental information may be made by any ‘person’.37 This expression encompasses not only natural persons but also companies and other legal persons, whether corporate or unincorporate.38 A person making a request for environmental information does not have to state an interest in the information. Moreover, motive for making the request is irrelevant to the decision to disclose, save that it may be relevant to the issue of public interest when considering the exemptions to the duty to disclose.39

C.  The Meaning of ‘Public Authority’ The right of access to environmental information may be asserted against a ‘public authority’.40 The definition of ‘public authority’ under the EIR 2004 closely mirrors that contained in the Freedom of Information Act 2000. Regulation 2(2) defines ‘public authority’ to mean: (a) government departments; (b) any other public authority as defined in section 3(1) [of the Freedom of Information Act 2000], disregarding for this purpose the exceptions in paragraph 6 of Schedule 1 to the Act, but excluding – (i) any body or office-holder listed in Schedule 1 to the Act only in relation to information of a specified description; or (ii) any person designated by Order under section 5 of the [Freedom of Information Act 2000]; (c) any other body or other person, that carries out functions of public administration; or (d) any other body or other person, that is under the control of a person falling within sub-paragraphs (a), (b), or (c) and – (i) has public responsibilities relating to the environment; (ii) exercises functions of a public nature relating to the environment; or (iii) provides public services relating to the environment.

The definition of ‘public authority’ is thus broader than that under the Freedom of Information Act 2000 by virtue the additional qualifying criteria in paragraphs (c) and (d) of Regulation 2(2).41 The Aarhus Implementation Guide explains that a broad definition  DEFRA, Guidance (above n 18) ch 3, para 3.6.   Reg 2(1) EIR 2004. 38   Art 2(6) of Directive 2003/4/EC; and s 5 and Sch 1 of Interpretation Act 1978. 39   Art 3(1) of Directive 2003/4/EC. 40   Reg 5(1) EIR 2004. 41   DEFRA Guidance suggests that the coverage of para (c) will be relatively narrow given that most public authorities will already be subject to the Freedom of Information Act 2000. However, it points out that ‘The EIR definition ensures that a body would remain covered despite any change in FOIA. An authority excluded from 36 37

The Environmental Information Regulations (EIR) 2004  353 was adopted in order to prevent privatisation of public functions diminishing the public’s right of access to environmental information: Recent developments in ‘privatized’ solutions to the provision of public services have added a layer of complexity to the definition. The Convention tries to make it clear that such innovations cannot take public services or activities out of the realm of public involvement, information and participation.42

The test for whether a body carries out ‘functions of public administration’ has some similarities to the common law test for amenability to judicial review and the definition of ‘public authority’ under the Human Rights Act (HRA) 1998. But the emphasis under the Regulations is different: the Information Tribunal has held that an important part of the definition is the performance of ‘administrative’ functions, not merely public functions.43 In determining whether a body carries out ‘functions of public administration’, no single factor is determinative. In Port of London Authority v Information Commissioner and Hibbert,44 the Tribunal concluded that the Port of London Authority was a public authority within the meaning of Regulation 2(2)(c). It held that the Authority’s statutory origin was not conclusive,45 and both government control and regulation46 and accountability to Parliament and the Government were indicia of publicness.47 The Tribunal examined in detail the Authority’s duties and powers pursuant to the Port of London Authority Act 1968, concluding that if the Authority did not exist, the Government would task another body with carrying out the Authority’s important administrative functions.48 Examining the same issues in Network Rail v Information Commissioner,49 the Tribunal held that Network Rail was not a body carrying out functions of public administration. The government exercised no influence or control over the board of Network Rail; it was not created by statute; and in many respects it operated as a public company. The fact that Network Rail received a considerable amount of public funding pointed ‘to some degree in the direction of a public body’, but it was not determinative.50 There is a twofold test to see if bodies are covered under paragraph (d). First, they must be under the control of a ‘public authority,’ and secondly, the body must demonstrate at least one of the public responsibilities relating to the environment, functions of a public nature relating to the environment, or provision of public services relating to the environment. DEFRA guidance takes a broad view of the notion of ‘control’: [C]ontrol could mean a relationship constituted by statute, regulations, rights, license, contracts or other means which either separately or jointly confer the possibility of directly or indirectly exercising a decisive influence on a body. Control may relate, not only to the body, but also to control of the services provided by the body.51 Regulation 2(2)(b) is not necessarily excluded from EIR as it may be covered under 2(2)(c) or (d)’: DEFRA, Guidance (above n 18) (July 2010) ch 2, para 2.11. 42  Stec, Casey-Lefkowitz and Jendroska (above n 27) 32. 43   Network Rail Ltd v Information Commissioner and Network Rail Infrastructure Ltd (EA/2006/0061 and EA/2006/0062) IT, 17 July 2007, para 24. 44   Port of London Authority v Information Commissioner and Hibbert (EA/2006/0083) IT, 31 May 2007. 45   Ibid, para 29. 46   Ibid, para 32. 47   Ibid, para 33ff. 48   Ibid, para 30. 49   Network Rail Ltd v Information Commissioner and Network Rail Infrastructure Ltd IT, 17 July 2007. 50   Ibid, para 44. 51  DEFRA, Guidance (above n 18) (July 2010) ch 2, para 2.19.

354  Access to Environmental Information It states that that government regulation may suffice to show ‘control’, and even utility companies may be within the ambit of paragraph (d): Examples of bodies that may be covered by EIR limb (d) are private companies or Public Private Partnerships with obvious environmental functions such as waste disposal, water, energy, transport regulators. Public utilities, for example, are involved in the supply of essential public services such as water, sewerage, electricity and gas and may fall within the scope of the EIRs.52

Despite the expansive definition of ‘public authority’, judicial and legislative functions are excluded.53 In a case decided under the 1992 Regulations, Jowitt J held that the exclusion in respect of legislative functions did not extend to any function carried out in pursuance of the power conferred by primary or secondary legislation.54 He held that it referred only to those things done in the preparation and enactment of legislation.55

D.  The Holding Requirement There is no temporal limit to the right to receive environmental information. The EIR 2004 are retrospective in effect; thus, information can be requested whether or not it was created before the Regulations entered into force.56 However, as Coppel has observed, there are indications that the Regulations were intended to take a snapshot approach, so that public bodies need only disclose any information that they hold at the time a request is made.57 It is important to note that information ‘held’ by a public authority is defined to extend to information held by third parties on the behalf of a public authority.58 A public authority therefore holds information that is in the possession of its consultants and its agents or that it has given to a third party for the purposes of archiving. The expression ‘held’ is suggestive of a conscious choice on the part of the public authority. Therefore, it has been suggested that the private papers of a member of a public authority’s staff that the staff member brings into work will not be information ‘held’ by the public authority.59

E.  Advice and Assistance Regulation 9 EIR 2004 requires a public authority to provide applicants and prospective applicants with so much advice and assistance as would be reasonable. This obligation has been held by the Information Tribunal to require two things of a public authority: first, when a request is made, a judgment needs to be made on whether is it reasonable to provide advice and assistance in light of the wording of that request; secondly, if advice and assist­ ance is required, then the public authority must provide it to a reasonable extent.60 The

  Ibid, para 2.22.   Reg 3(3) EIR 2004. 54   R v Secretary of State for the Environment, Transport and the Regions, ex p Marson, 23 March 1998. 55  On appeal, this point was not discussed: [1998] 3 PLR 90. 56  See Coppel (above n 27) 181. 57  Ibid. 58   Reg 3(2) EIR 2004. 59   Coppel (above n 27) 184. 60   Boddy v Information Commissioner and North Norfolk DC, IT, 23 June 2008, para 25. 52 53

The Environmental Information Regulations (EIR) 2004  355 Secretary of State issued a Code of Practice in February 2005 outlining to public authorities the ‘practice that it would be desirable for them to follow in connection with the discharge of their duties’ under the EIR 2004.61 Regulation 9(3) provides that compliance with the guidance contained in that Code of Practice in relation to advice and assistance is deemed to constitute compliance with the duty to advise and assist. The Code states that appropriate assistance might include ‘providing access to detailed catalogues and indexes, where these are available, to help the applicant ascertain the nature and extent of the information held by the authority’.62 In Keston Ramblers Association v Information Commissioner and London Borough of Bromley,63 the Information Tribunal suggested that where an authority proposes to charge an applicant for the provision of information, the duty to advise and assist may also require that the public authority offer an applicant the opportunity to inspect information free of charge in order to decide what parts the applicant would like copied.64 The duty to advise and assist also has important implications for the grounds for refusing a request for information. Although Regulation 12(4)(b) allows a public authority to refuse a request that is manifestly unreasonable, the Information Tribunal has held that if a public authority has failed to provide advice and assistance, it cannot subsequently refuse a request on the basis that the request is manifestly unreasonable.65

F.  Requests for Environmental Information The right to receive environmental information is dependent upon a request being made to a public body for the environmental information.66 There are no particular formalities for requests. Where a request does not describe the information required with sufficient particularity, the public body must ask for further particulars within 20 working days of receipt of the initial request.67 The public body must also give assistance to the applicant in formulating the request with greater particularity.68 A public authority may charge an applicant ‘for making information available’.69 The charge must not exceed what is reasonable, and there is no obligation for a public authority to make a charge.70 An applicant may appeal to the Information Commissioner against the level of fee charged.71

61  DEFRA, Code of Practice on the Discharge of the Obligations of Public Authorities under the Environmental Information Regulations (EIR) 2004 (February 2005), http://archive.defra.gov.uk/‌corporate/‌policy/‌opengov/‌eir/‌ pdf/cop-eir.pdf. 62   Ibid, para 10. 63   Keston Ramblers Association v Information Commissioner and London Borough of Bromley (EA/2005/0024) IT, 26 October 2007. 64   Ibid, paras 56–59. 65   Mersey Tunnel Users Association v Information Commissioner and Halton BC (EA/2009/0001) IT 24 June 2009, para 95. 66   Reg 5(1) EIR 2004. 67   Reg 9(2). 68   Reg 9(2)(b). 69   Reg 8(1). 70   Reg 8(3). 71   Reg 18(1)–(7).

356  Access to Environmental Information

G.  Responses to Requests A public body must make the requested information available ‘as soon as possible and no later than 20 working days after the date of the receipt of the request’.72 This time period may be extended as follows: (a) If further particulars of the request have been sought or if the public authority has notified the applicant that it requires advance payment of a charge, the clock is stopped until these are received.73 (b) Where a public authority reasonably believes that the complexity or volume of information requested makes it impracticable to deal with a request, it may award itself a further 20 working days within which to deal with the request.74

Where the recipient of a request for environmental information believes that another public authority holds the information requested the EIR provide that the recipient may transfer the request to that other body.75 The recipient of a request for environmental information should normally reply in the form or format requested by the applicant.76 If an authority refuses to provide the request, it must serve a ‘refusal notice’ in accordance with Regulation 14. The refusal notice should clearly state the reasons why the public authority has decided to apply each particular exception to the information requested. In addition, to comply with a request or in issuing a refusal notice, the EIR enable a public authority to respond by ‘neither confirming or denying’ that the information requested exists.77 Such a response may be made: (i) where confirming or denying that the authority holds the information would involve the disclosure of information that would adversely affect international relations, defence, national security or public safety; or (ii) if in all the circumstances of the case, the public interest in not disclosing that information outweighs the public interest in disclosing the information.78

H. Exemptions Regulation 12 entitles a public authority to refuse a request for information only if: (a) one of the exceptions set out in Regulation 12(4) or (5) is applicable; and (b) in all the circumstances of the case, the public interest in maintaining the exception outweighs the public interest in disclosing the information. The exemptions in Regulation 12 are construed strictly, and the starting point is always the presumption in favour of disclosure. As the Information Tribunal explained in Archer,79 ‘the result, in short, is that the threshold to justify non-disclosure is a high one’.80 An important question that arose in R (Office of Communications) v Information Commissioner81 was whether, in the course of the public interest balancing exercise, the   Reg 5(2).   Regs 9(4) and 8(5)–(6) respectively.   Reg 7(1). 75   Reg 10(1). 76   Reg 6(1). 77   Reg 11(1)–(2). 78   Reg 12(6)–(7). 79   Above n 31. 80   Archer (above n 31) para 51. 81   R (on the Application of the Office of Communications) v Information Commissioner [2010] UKSC 3, [2010] Env LR 20. 72 73 74

The Environmental Information Regulations (EIR) 2004  357 public interest in all applicable exceptions had to be aggregated and weighed against the public interest in disclosure. The Information Commissioner had ordered the disclosure of information held by the respondent regarding the precise location of mobile phone masts. The approximate location of base stations was available through the Sitefinder website, but a request for grid reference-level information had been refused. On appeal against the Commissioner’s decision, the Information Tribunal found that public interests in public security and in the protection of intellectual property rights were both engaged, but under each separate exception, the public interest in disclosure outweighed the interest alleged by the respondent. The respondent had therefore argued it was necessary to conduct a further balancing test weighing all the interests in favour of disclosure together against all the public interests in refusing disclosure together. The Court of Appeal accepted this argument and held that that it would be surprising if either the Directive or the EIR that implemented it required disclosure in a case in which the overall public interest favoured non-disclosure.82 The Supreme Court, however, held that the question was not acte clair, and it referred the following question to the ECJ: [W]here a public authority held environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception under art 4(2) of the Directive, but would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, [does] the Directive requires a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure[?]83

The majority of the Supreme Court inclined to the same view as the Court of Appeal and pointed to the references in Article 4(2) of the Directive to the ‘particular case’ and to weighing ‘the public interest served by disclosure’ against ‘the interest served by the refusal’ as supporting the view that all the facets of the public interest in disclosure went into one side of the scales, and all the aspects of the interests served by refusal went into the other.84 The minority, on the other hand, felt that each exception appeared as a separate head, serving separate interests and requiring separate consideration.85 The majority view is the more attractive: it would be odd for disclosure to be required in circumstances in which, considered as a whole, providing the information would be contrary to the public interest. 1.  Regulation 12(4) EIR 2004 Regulation 12(4) provides five exemptions that, subject to the public interest balancing test, entitle a public authority to refuse to disclose information. a.  Regulation 14(4)(a): The Public Authority Does Not Hold the Information Requested Obviously, an authority is not required to disclose information that it does not hold. Nevertheless, such an authority has an obligation under regulation 10(1) to pass on the request to a public authority that it believes to hold the information or to supply the applicant with that authority’s name and address.   Ibid, [2009] EWCA Civ 90.   OFCOM v Information Commissioner (above n 81) para 15. On preliminary references to the ECJ, see further above ch 17. 84   Ibid, para 12. 85   Ibid, para 13. 82 83

358  Access to Environmental Information In determining whether or not a public authority holds information that it has not disclosed, the Information Tribunal will consider the quality of the public authority’s initial analysis of the request, the scope of the search that it decided to make on the basis of that analysis and the rigour and efficiency with which the search was then conducted. It may also take into account the discovery of materials elsewhere, the existence or content of which point to the existence of further information that has not been brought to light.86 b.  Regulation 12(4)(b): The Request Is Manifestly Unreasonable A request may be deemed manifestly unreasonable because of the cost and work needed to comply with it. However, before rejecting a request as manifestly unreasonable, a public authority must fulfil its obligations under Regulation 9 to assist the applicant to amend the request in order to reduce it to manageable proportions. The public authority may also, under Regulation 7, extend the time for responding to the request if it is complex or voluminous. c.  Regulation 12(4)(c): The Request Is Too General A request may be rejected if it is too general. However, before rejecting a request as too general, a public authority must fulfil its obligations under Regulation 9 to assist the applicant to amend the request. d.  Regulation 12(4)(d): The Information Is Unfinished or Incomplete If an authority relies on this exemption, it is required by Regulation 14(4) to specify, if known, the name of any other public authority preparing the information and the estimated time in which the information will be finished or completed. e.  Regulation 12(4)(e): Internal Communications Internal communications within a public authority fall within this exemption. Furthermore, Regulation 12(8) provides that this includes communications between government departments as well as within a single government Department.87 It has been held that this exemption ‘recognises that frank and honest debate is necessary for high-quality policy formulation and that there is a public interest, in certain circumstances, maintaining private space for such discussions away from public scrutiny’.88 Nevertheless, the presumption is in favour of disclosure, and a public authority must specify clearly and precisely the harm or harms that would be caused by disclosure.89 2.  Regulation 12(5) Regulation 12(5) prescribes seven exceptions to the duty to disclose environmental information. The public authority must first consider whether disclosure of the information would adversely affect one of the prescribed interests. If it would, then the test of public interest must be applied in order to determine whether the public interest in maintaining the exception outweighs the public interest in disclosing the information. The standard of   Bromley v Information Commissioner (EA/2006/0072) IT 31 August 2007, para 13.  In Friends of the Earth v Information Commissioner and Export Credit Guarantee Department (EA/2006/0073), 30 August 2007, paras 44–48, the Information Tribunal held that this provision was not contrary to the Directive. 88   Decision FER0082566, 11 October 2007. 89   Friends of the Earth (above n 87) para 57. 86 87

The Environmental Information Regulations (EIR) 2004  359 proof to be applied to the question of whether disclosure ‘would adversely affect’ one of the interests is the civil standard of the balance of probabilities.90 a.  Regulation 12(5)(a): National Security Subject to the public interest test, a public authority may refuse to disclose information to the extent that its disclosure would affect international relations, defence, national security or public safety. A ministerial certificate that disclosure would adversely affect public safety and not be in the public interest will be conclusive of the matter.91 The Information Tribunal has held that this exception was engaged by disclosure of information about an oil pipeline in Turkey that would harm international relations.92 It has also held that the exception applies to information setting out the details of mobile phone base stations, including the grid references, because this information could provide assistance to criminals.93 b.  Regulation 12(5)(b): The Course of Justice A public body may refuse to disclose information to the extent that its disclosure would adversely affect the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an inquiry of a criminal or disciplinary nature. This exception applies only where the public authority is not acting in a judicial capacity, because the EIA are not applicable to public authorities acting in judicial or legislative capacity.94 DEFRA guidance suggests that the expression ‘the course of justice’ includes ‘law enforcement’, and therefore the exemption covers information that if disclosed could prejudice the ‘prevention, investigation or detection of crime, or the apprehension prosecution of offenders’ and the ‘proceedings of a coroner’s court’.95 In Kirkaldie,96 the exemption was held to cover legal advice subject to legal professional privilege, especially ‘where a public authority is, or is likely to be, involved in litigation’. Furthermore, it has been held that the exemption will continue beyond the life of the legal proceedings in relation to which the legal advice was sought. In Burgess v Information Commissioner and Stafford Borough Council,97 the Information Tribunal held that the exemption applied to legal advice even after the proceedings in respect of which the advice had been given had concluded. This was because disclosure could still give rise to an adverse effect in that it revealing councils advice might restrict the authority freedom of argument in relation to similar future circumstances. c.  Regulation 12(5)(c): Intellectual Property Rights A public body may refuse to disclose information to the extent that its disclosure would adversely affect intellectual property rights. The Information Tribunal has held that this exemption applied to the complete data set of mobile phone base stations that the public   OFCOM v Information Commissioner and T-Mobile (above n 26) para 35.   Reg 15(1), (3) EIR 2004. 92   ECGD v Information Commissioner and Corner House (EA/2008/0071) IT, 11 August 2009. 93   OFCOM v Information Commissioner and T-Mobile (above n 26) paras 36–40. 94   Reg 3(3). 95  DEFRA, Guidance (above n 18) (July 2007) ch 7, 7.5.3.2. 96   Above n 16, para 21. 97   Burgess v Information Commissioner and Stafford Borough Council EA/2006/0091, 7 June 2007. 90 91

360  Access to Environmental Information authority had compiled from data supplied to it by mobile phone operators.98 The Tribunal did, however, state that the duty to interpret the exemption restrictively means that it would only apply if the infringement is ‘more than just a purely technical infringement’.99 An adverse effect would not be constituted by anything less than actual harm to the right holder. d.  Regulation 12(5)(d): Confidentiality of Proceedings A public body may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of the proceedings of that or any other public authority where such confidentiality is provided by law. Normally, the confidentiality of proceedings is specifically provided for in the legislation governing the particular proceedings. This exception is important because Regulation 5(6) overrides any such restrictions on disclosure by providing that ‘any enactment or rule of law that would prevent the disclosure of information in accordance with these Regulations shall not apply.’ Thus, Regulation 5(6) lifts any restrictions on disclosure, and Regulation 12(5)(b) substitutes a limited exemption in their place. Regulation 12(5)(b) has been held to apply to information held by a local authority from disclosure to the complainant in a maladministration investigation by the Local Government Ombudsman.100 Disclosure of such information is normally barred under section 32(2) of the Local Government Act 1974, but this exemption was dis-applied by Regulation 5(6). e.  Regulation 12(5)(e): Commercial or Industrial Confidentiality A public body may refuse to disclose information to the extent that its disclosure would adversely affect the confidentiality of commercial or industrial information, where such confidentiality is provided by law to protect a legitimate economic interest. This exemption requires that the information be protected under the law of confidentiality – that is, that the information has the necessary quality of confidence, that it was communicated to or from a third party in circumstances that give rise to a reasonable expectation that confidentiality would be maintained and that unauthorised disclosure is either threatened or has occurred.101 In OFCOM v Information Commissioner and T-Mobile,102 the Information Tribunal held that the first of these requirements was not fulfilled in relation to the data sought concerning mobile phone base stations, because the information was already being released by the mobile phone operators to local authorities without any obligation of confidentiality having been imposed. In a case concerning a request for disclosure of a private finance initiative (PFI) waste contract entered into by two local authorities, the Information Commissioner held that the mere presence of a confidentiality clause does not necessarily render information caught by it confidential: the information must have been imparted in circumstances that created an obligation of confidence.103   OFCOM v Information Commissioner and T-Mobile (above n 26) paras 43–58.   Ibid, para 47. 100   Decision FS 50094124, 22 May 2007. 101   OFCOM v Information Commissioner and T-Mobile (above n 26) para 64. 102   Ibid. 103   Conjoined Decisions FER0073984 and FER0099394, 14 November 2007. 98 99

The Environmental Information Regulations (EIR) 2004  361 f.  Regulation 12(5)(f): Interests of the Provider of the Information A public body may refuse to disclose information to the extent that its disclosure would adversely affect the interests of person who provided the information where that person: 1) was not under, and could not have been put under, any legal obligation to supply it to that or any other public authority; 2) did not supply it in circumstances such that that or any other public authority is entitled apart from the EIR to disclose it; and 3) has not consented to its disclosure. The Information Tribunal has interpreted this exemption restrictively and examined whether information may be released in a way that does not adversely affect the interests of the provider of the information. For example, in Dainton v Information Commissioner and Lincolnshire CC,104 a local authority had argued that it was entitled to withhold information because the anonymous providers of the information would be identifiable by their handwriting. The Tribunal held that the exception did not apply because the authority could release the information by means of a typed transcript. Occasionally, the adverse effect on the provider of the information has been held to outweigh the public interest in disclosure. For example, the Information Commissioner held that the release of the minutes of liaison meetings between a local authority and the National Trust would be adverse to the National Trust’s interests because it would discourage the Trust from being open with the local authority about the strengths and weaknesses of its arguments, and the pressure of immediate public scrutiny would make the consultation process more adversarial instead of constructive and cooperative.105 g.  Regulation 12(5)(g): Protection of the Environment A public body may refuse to disclose information to the extent that its disclosure would adversely affect the protection of the environment to which the information relates. DEFRA guidance gives the example of information about the location of sensitive areas being withheld in order to avoid the risk of damage or disturbance.106

  Dainton v Information Commissioner and Lincolnshire CC (EA 2007/0020) IT, 10 September 2007.   Decision FER0125285, 8 October 2007.  DEFRA, Guidance (above n 18) (July 2007) 7.5.8.1.

104 105 106

index Aarhus Convention    access to information     decision-making process, 27     environmental information, 347, 348     public access, 27     public authorities, 27     relevant information, 27     UK implementation, 26, 27    access to justice     adequate/effective remedies, 28, 29      breaches of environmental law, 28      challenges to substantive/procedural legality, 28     cross-undertakings in damages, 164     public participation, 259     reasoned decisions, 254     review procedures/information requests, 28     review procedures/public participation, 28     sufficient interest requirement, 143     terms of access, 28    Compliance Committee, 30, 85, 146    conferral of rights, 26    entry into force, 26    governmental accountability, 26    impairment of right, 143   implementation, 349     see also Environmental Information Regulations (EIR)    incorporation/EU law, 29    individual rights, 26    information requirements, 144    non-governmental organisations (NGOs), 26, 108–11, 143   objectives, 26    preliminary review procedure, 144    presentation of information, 21    public participation, 19, 27, 28, 259     see also Public participation   ratification, 26    refusal of access/environmental information     confidentiality, 348     incomplete/unfinished information, 348     international relations, 348     procedural grounds, 348      redaction of exempt material, 349     restrictive interpretation, 349      sites of rare species, 348     substantive grounds, 348     third party interests, 348     unreasonable requests, 348     written refusal, 349    status of English law, 29, 30 Abatement notice    statutory nuisance, 7

Access to information    Aarhus Convention, 26, 27, 347–9     see also Aarhus Convention    duty to create information, 21   environmental information     commercial secrecy, 34     grounds for review, 347     legal rights, 347     national security, 347     public interest, 347, 349     public participation, 347     unrestricted access, 347   Environmental Information Regulations (EIR)     see Environmental Information Regulations (EIR)    environmental law enforcement, 20    public authorities, 21    public scrutiny, 20   transparency, 21 Access to justice    Aarhus Convention, 28–30, 108–11, 254, 259     see also Aarhus Convention    economic access to justice     costs, 130, 131     cross-undertakings in damages, 163     importance, 3      Protective Costs Orders (PCOs), 139    litigation funding, 135   standing, 109–10     see also Standing Action for annulment   acts/activity     addressed to applicant, 332     direct concern, 332, 335     EU institutions, 330     individual concern, 332–4     legislative acts, 330   consequences, 330    designated sites, 334, 335    environmental issues, 333, 334    human rights, 334    standing, 331, 332    Treaty on the Functioning of the European Union, 330, 331 Administrative Court    interim applications, 95    procedural guidance, 67    substantive hearings, 95 Administrative law   delegatus non potest delegare, 185    general principles, 4 Alternative dispute resolution (ADR)    appropriate use, 75

364 Index Alternative dispute resolution (ADR) (cont.):    compulsory mediation, 75    judicial support, 74–6    limits of mediation, 77    Ministry of Justice policy, 75    Pre-action Protocol, 75, 79     see also Pre-action Protocol    proportionate dispute resolution, 75    public law litigation, 75–8    range of services, 75    suitability, 76, 77    take-up of mediation, 77    voluntariness, 75 Annulment   see Action for annulment Appeal by case stated    legal challenges, 7, 72, 73 Applications for permission    acknowledgement of service, 80   appeals, 79    Civil Procedure Rules (CPR)(1998), 79, 82, 84, 85     see also Civil Procedure Rules (CPR) (1998)    claim form (N461), 80    grant of permission, 79, 81, 82    human rights cases, 80, 83    judicial consideration, 79    Law Commission, 79    oral permission hearings, 79, 81    refusal of permission, 79, 81, 82    service of claim, 80    time limits, 77, 78, 82–90     see also Time limits    urgent cases, 80, 81    with-notice process, 79 Bias see Rule against bias Carltona principle    alter ego doctrine, 192    basic rule, 188, 190    devolution of power, 191    discretionary powers, 190   limitations, 192   Next-Steps agencies, 192    ousted by statute, 193    outside departments/central government, 192, 193    powers conferred on Ministers, 190, 191   scope, 191–4    sufficiently qualified officials, 192    sufficiently senior officials, 192 Central government    environmental regulation, 68, 69 Civil Procedure Rules (CPR)(1998)    active case management, 74    applications for permission, 79, 82, 84, 85   costs, 133     see also Costs    declarations, 7, 151     see also Declarations    disclosure, 118, 127     see also Disclosure

   environmental claims, 6    interim applications, 95    judicial review, 6    overriding objective, 74, 93    preliminary reference procedure, 328     see also Preliminary reference procedure    procedural exclusivity, 92, 93    summary judgment, 92, 93 third parties, 116, 117 Commission Action Programme    environmental policy, 33–5, 38, 51     see also EU environmental policy    polluter pays principle, 51     see also Polluter pays principle Common law nuisance    amenity value, 284    compensation awards, 284    damage to property, 284    diminution in value, 284    human rights, 283–5    overlapping claims, 283, 284    private nuisance, 284    proprietary interest, 284 Conduct of hearings    disclosure requirements, 249    oral hearings, 248, 250–3     see also Oral hearings    prior notice, 248    right to notice, 248    written responses, 248 Consultation   see Public consultation Contaminated land    civil liability, 6 Corner House principles    absence of private interest, 137–42    availability of financial resources, 137, 140    discontinuance of proceedings, 137    economic access to justice, 139    flexible application, 139    interests of justice, 139    judicial discretion, 136    matters of general public importance, 136, 139, 140, 143    non-environmental cases, 138    procedural guidance, 137    public interest requirements, 137, 139, 140    restrictive application, 138 Costs    acknowledgement costs, 132    Civil Procedure Rules (CPR)(1998), 133     see also Civil Procedure Rules (CPR)(1998)    compromised claims, 134, 135    cost-shifting rule, 130, 132, 133    discontinued claims, 134, 135    economic access to justice, 130, 131    exercise of discretion, 133–4    indemnity costs, 134    interested parties’ costs, 134    oral hearings, 130    permission stage, 130, 131    Pre-action Protocol, 130, 132

Index  365    preparation costs, 132   proportionality, 134    public interest cases, 130    substantive hearing, 130, 132–4 Court of First Instance   see General Court Court of Justice   see European Court of Justice (ECJ) Cross-undertakings in damages    Aarhus Convention, 164     see also Aarhus Convention    economic access to justice, 163    interim injunctions, 147, 163 Damages awards    claims for anxiety/frustration, 278    domestic cases, 276–9   ECtHR case law, 276, 277    fair trial, 278    judicial power, 275    just satisfaction, 276, 277, 279    level of damages, 278, 280    loss of procedural opportunity, 278   maladministration, 277    non-pecuniary loss, 277    parental grief and suffering, 280    psychiatric harm, 277    public authorities, 276   restitutio in integrum, 277    right to liberty/security of the person, 279    right to life, 279 Declarations    advantages, 150, 151   advice, 151    Civil Procedure Rules (CPR)(1998), 7, 151     see also Civil Procedure Rules (CPR)(1998)    discretionary remedy, 150   flexibility, 147    frivolous requests, 154   Gillick factors, 152    hypothetical/academic questions, 153, 154    interim declarations, 151   nature, 150    non-binding guidance, 151–3    role, 150, 151    social/political/moral issues, 153 Democratic deficit   EU law, 17    public participation, 17 Department for Business, Enterprise and Regulatory Reform environmental regulation, 68 Department for Communities and Local Government environmental regulation, 68 Department for Environment, Food and Rural Affairs environmental regulation, 68 Direct effect   see also EU law    conferral of rights, 297–300   Directives, 293, 299, 300     see also Directives    environmental impact assessment, 297, 298

  EU environmental law, 293    horizontal direct effect, 305, 307, 309    incidental direct effect, 306    private enforcement, 294, 298, 299    public health measures, 299    Regulations, 292, 293    sources or rights/obligations, 289    Treaty provisions, 292, 293    vertical direct effect     see Vertical direct effect Directives   see also EU law    addressed to Member States, 294, 305    binding nature, 293, 294, 305    conferral of rights, 297–300, 313    direct effect, 293, 295, 296     see also Direct effect    emanation of state, 305–7     see also Emanation of state   environmental Directives     direct effect, 295, 296     discretionary language, 295     ECJ approach, 296     enforcement, 295, 296     framework Directives, 295      precision requirement, 295, 304, 305     unconditionality requirement, 295, 296, 300–3    environmental impact assessment, 27, 298    environmental protection, 298    horizontal direct effect, 305, 307, 309   implementation     adequate/inadequate legislation, 293, 295      dis-application of domestic law, 297     environmental policy, 294      extension of implementation period, 297      failure to take action, 293, 294     incompatible national legislation, 297     incomplete measures, 293     legislative interpretation, 293      measures liable to seriously compromise result, 296, 297     mis-implementation, 293, 295     practical compliance, 294      principle of loyal cooperation, 293     private parties, 293     time period, 296, 297     transitional period, 296    incidental direct effect, 306    incidental horizontal effect      free movement of goods, 309      notification of technical standards, 309     triangular situations, distinguished, 309   indirect effect     conformity with Directives, 310     consistent interpretation, 310, 311      criminal liability/private persons, 310, 311     ECJ jurisprudence, 306     EU environmental law, 310, 311      interpretation of domestic law, 310      prevention of pollution, 310, 311    obligation of result, 293

366 Index Directives (cont.):   precision requirement      diversity of subject matter, 304     ECJ jurisprudence, 304, 305     environmental Directives, 304, 305     framework Directives, 304      obligations to achieve result, 305     open-ended qualifications, 304      period of unlawful behaviour, 305     unequivocal terms, 304      vertical direct effect, 295, 304, 305    private enforcement, 294, 295, 298, 299    state liability, 306, 312–7     see also State liability   triangular situations     claimants, 307     dynamics, 307      emanation of state, 307, 308     environmental context, 308      environmental impact assessment, 308, 309     environmental protection, 308      incidental horizontal effect, distinguished, 309     mere adverse repercussions, 308     planning permission, 308      reliance on Directive, 307, 308     third parties, 307, 308      waste management operations, 308, 309   unconditionality requirement      binding on national authorities, 300     discretion already exercised, 302      discretion as to meaning, 301, 302      discretion as to policy outcome, 301     discretionary language, 295, 296     environmental provisions, 295     framework Directives, 295      further implementation required, 302, 303     legal discretion, 301     minimum legal guarantee, 303     obligations of result, 300     regulatory choice, 300, 301     self-contained norm, 300      vertical direct effect, 295, 296    vertical direct effect     see Vertical direct effect Disclosure    absence of case law, 122    background documentation, 118    change in practice, 120, 122–4    Civil Procedure Rules (CPR)(1998), 118, 127     see also Civil Procedure Rules (CPR)(1998)    conduct of hearings, 249     see also Conduct of hearings   confidentiality, 125    contested orders, 122, 123    costs, 123, 128    disclosure before claim letter, 122    disclosure unnecessary, 122    duty of candour, 118–20   environmental claims     background documentation, 126      best evidence rule, 126, 127      ‘fishing expeditions’, 126, 127

    internet correspondence, 125–6     planning decisions, 125     public interest immunity, 127     submissions to ministers, 126–7   Environmental Information Regulations (EIR), 127–9     see also Environmental Information Regulations (EIR)   errors, 118    fair disposal of case, 121, 124, 125, 128    grounds for refusal, 121, 124, 125    incorrect evidence, 118    interests of justice, 119    interim application, 123    judicial balancing, 118    judicially review, 118    legitimate expectation, 123, 124    material not relevant, 124    minimising disclosure, 119    natural justice, 249     see also Natural justice    necessity test, 124, 125    pre-commencement applications, 127    public consultation, 245     see also Public consultation    public interest immunity, 125, 127    restrictive approach, 118–20    specific disclosure, 121, 123    standard disclosure, 127, 128   Tweed v Parades Commission for Northern Ireland     background, 120, 121     confidentiality, 121     disclosure orders, 121      fair disposal of case, 121, 124     interim applications/disclosure, 122     proportionality, 121     specific disclosure, 121      volume of material to be disclosed, 121    voluntary disclosure, 122, 123 Discretion    abdication of discretion     basic rule, 194     examples, 194    abuse of discretion     proper purposes principle, 200–4     proportionality, 200     relevancy principle, 200, 204–13   discretionary decisions     judicial deference, 200     judicial substitution, 200     legal control, 200     proportionality, 200     separation of powers, 200     substance, 200    fettering by contract     basic rule, 198     compatibility test, 198, 199     fettering/policy-making distinction, 199     public interest considerations, 198     statutory incompatibility, 198     unlawful fettering, 198    fettering by over-rigid policies, 195–8

Index  367     see also No over-rigid policies   retention     see Retention of Discretion   Wednesbury unreasonableness, 200     see also Wednesbury unreasonableness Domestic environmental legislation    administrative discretion, 39    commencement delayed, 38    common characteristics, 38, 39   Environmental Target Duties, 42    exceptions/derogations, 41, 42    guidance, 39, 40, 43    open-textured definitions, 39    primary legislation, 38, 43    statutory instruments, 38, 39, 43    statutory interpretation, 40–2     see also Statutory interpretation    technical list-making, 39 Dynamics of the dispute   see also Environmental disputes    commercial interests, 8    ideological interests, 8    local amenity, 8    parties’ identity, 8 Economic access to justice    costs, 130, 131    cross-undertakings in damages, 163   importance, 3    Protective Costs Orders (PCOs), 139 Emanation of state    Area Health Authority, 306   concept, 306   ECJ jurisprudence, 306, 307    Forestry Commissioners, 307    governing bodies, 307    government departments, 306    independent authorities, 306   interpretation, 306    local/regional authorities, 307    scope, 306, 307   universities, 307    utility providers, 307    voluntary aided schools, 307 Environment   definition, 3 Environment Agency   responsibility, 69    role, 9, 69   status, 69 Environmental disputes    access to justice, 16, 17     see also Access to justice   commercial challenges     development projects, 13, 14      environmental impact assessment, 13, 14     individual/relevant circumstances, 15      integrated pollution prevention, 14, 15     licences/permissions, 13     self-interest, 13     spoiling tactics, 13   delay, 22

   disappointed applicant versus decision-maker      decisions made on appeal, 11     errors of fact, 11     material errors, 12     unfair process, 12     unlawful decisions, 12   EU dimension, 16    factual/scientific complexity, 15, 16    individual challenges, 12, 13    interested parties, 21, 22    policy concerns, 15    procedural/substantive law, 15    public interest challenges     environmentalism, 12, 13     pressure groups, 13    public participation, 17, 18     see also Public participation regulator versus regulated     alternative remedies, 10, 11     Environment Agency, 9     EU law, 9      Marine Maritime Organisation (MMO), 10     waste disposal, 9, 10    specialism, 22, 23   standing, 21     see also Standing Environmental impact assessment    commercial challenges, 13, 14   Directives, 297, 298, 308, 309    dynamic process, 12    environmental statements, 181–3    error of law, 176, 177    errors of fact, 181   EU law, 159, 160   importance, 13    pollution control, 281     see also Pollution control    public consultation, 241, 242     see also Public consultation    public participation, 6     see also Public participation    reasoned decisions, 258, 259 see also Reasoned decisions    time limits, 84, 88, 89    triangular situations, 308, 309 Environmental Information Regulations (EIR)    access to information, 127–9    advice/assistance, 354, 355    complaints procedure, 128, 129   environmental information     definition, 349–51     examples, 351, 352     exempted information, 356–61     fees/charges, 355     requests, 355     responses to requests, 356      right to information, 352, 355   exempted information     general requests, 358     incomplete/unfinished information, 358      information not held, 357, 358     internal communications, 358

368 Index Environmental Information Regulations (EIR) (cont.):    exempted information (cont.):     presumption favouring disclosure, 356     public interest/balancing test, 356–8     refusal of access, 356     unreasonable requests, 358    holding requirement, 354   importance, 349    information requests, 127, 128   prescribed interests      adverse effect on information provider, 361     commercial/industrial confidentiality, 360     confidentiality of proceedings, 360     course of justice, 359     environmental protection, 361      intellectual property rights, 359, 360     national security, 359   public authority     access asserted, 352     definition, 352–4      exclusion of judicial/legislative functions, 354      functions of public administration, 352, 353     public responsibilities, 352, 353    public interest considerations, 128   relevance/necessity, 127    timing of requests, 127, 128 Environmental judicial review    claims against EU institutions, 330   context, 3–5    distinct character, 3, 4    dynamics of the dispute     see Dynamics of the dispute Environmental law   see also EU environmental law   concepts/principles, 4    democratic deficit, 17    meaning, 3, 4   proceduralisation, 18    process rights, 18    statutory provisions, 4 Environmental legislation   see Domestic environmental legislation Environmental policy   see also EU environmental policy    air pollution, 35   domestic law/policy     broader considerations, 45     environmental guidance, 43     interpretation, 43–5     judicial review, 46–50     legalistic approach, 44      major government decisions, 43, 45      national policy statements, 47, 48     planning decisions, 43–5    global environmental policy, 32    global warming, 33, 35    sustainable development, 33 Environmental protection    authorisation requirements, 6    civil liability, 6   Directives, 298

    see also Directives   pollution control     see Pollution control    prescribed processes, 6    protected land, 6    protected species, 6, 140, 141, 160   standard-setting, 6    waste management, 9, 10, 34, 35, 61, 62, 206, 218, 220, 308, 309 Environmental standards    competing environmental interests, 18    environmental quality, 18   standard-setting, 18 Environmental Target Duties, 42 Equality of arms    civil litigation, 251    environmental cases, 251    human rights protection, 251, 252    inquisitorial context, 253    legal assistance/funding, 251–3    oral hearings, 251, 252    public enquiries, 251, 252 Error of law   Anisminic decision, 171, 172    asking the wrong questions, 172    collateral fact doctrine, 170, 171, 174   environmental cases      autonomous meaning principle, 175, 176      environmental impact assessment, 176, 177     hard-edged review, 176, 177     judgment of decision-maker, 177–9      standard of environmental protection, 177    error on face of record, 171, 172   ex parte Page, 172–4, 177   ex parte South Yorkshire, 174    failure to deal with question remitted, 172    failure to deal with relevant considerations, 172    misconstruction of enabling statute, 172    non-jurisdictional errors, 172    policy matters, 46, 175    qualifications to review      error must be relevant, 172, 173      inferior courts of law, 173     jurisdictional conditions, 174     jurisdictional limits, 175     softer judicial approach, 174     special jurisdictions, 173    ultra vires doctrine, 172 Errors of fact    claimant not responsible, 181    environmental impact assessment, 181    environmental statements, 181–3   ignorance/misunderstanding established fact, 180     relevant fact, 180    legislative conditions, 179, 180    material mistake, 181    mistake as to existing fact, 180    no supporting evidence, 183, 184    uncontentious/verifiable fact, 181 EU environmental law   see also EU law

Index  369   breaches, 336    direct effect, 293     see also Direct effect    implementation, 289, 336, 337    indirect effect, 310, 311    Member State obligations, 289    private enforcement, 289 EU environmental policy   see also EU law    Commission Action Programme, 33–5, 38, 51   conservation, 33    costs of action/non-action, 31    developing countries’ interests, 33    economic/social development, 31    environmental conditions, 31    environmental principles, 31, 32    environmental protection, 33, 35    exploitation of natural resources, 33    harmonisation, 33, 37    influence, 30, 32    international cooperation, 33   objectives, 31    polluter pays principle, 33     see also Polluter pays principle    pollution control, 33     see also Pollution control    potential benefits, 31    precautionary principle, 31, 36, 37     see also Precautionary principle    preventive action, 31    producer responsibility, 35    protection policies, 33    risk regulation, 35, 36    science versus democracy, 35–7    scientific/technical data, 31, 35–8    sustainable development, 34    technological risk, 35    waste disposal, 34, 35 EU law   see also EU environmental policy    breaches, 289, 311, 312, 313–9, 336    Commission Action Programme, 33–5, 38, 51    democratic deficit, 17    direct effect, 147, 159, 162, 289   see also Direct effect   Directives   see Directives    discretionary powers, 55, 221, 222   ECJ case law, 54–8    environmental impact assessment, 159, 160   environmental law     implementation, 289     Member State obligations, 289     private enforcement, 289    environmental protection, 31, 32, 222   EU institutions, 55    exercise of discretion, 159    fundamental freedoms, 221    habitat regimes, 160    individual challenges, 8    infraction proceedings, 7, 8    judicial review, 54, 55

  legislative basis     qualified majority voting, 31     Single European Act, 30, 31     Treaty of Rome, 30      Treaty on the Functioning of the European Union, 31    limited review, 55–7    precautionary principle, 53, 57, 58, 60, 61     see also Precautionary principle    preliminary reference procedure, 8     see also Preliminary reference procedure   proportionality     see Proportionality    protection of species, 160    public health issues, 55    scientific evidence/uncertainty, 55–7    sites of special scientific interest, 159, 160, 334, 335   sources     decisions, 289, 90     Directives, 289, 290     opinions, 290     recommendations, 290     Regulations, 289, 290     Treaties, 289    state liability, 289, 311–13, 316     see also State liability   supremacy doctrine      dis-application of national law, 289, 290, 297      incompatible domestic law, 289, 290, 297      precedence over domestic law, 289, 290     preliminary reference procedure, 321      source of rights, 291    Treaty on the Functioning of the European Union, 31, 51, 54, 55, 60   unlawfulness, 161    vertical direct effect     see Vertical direct effect    wind turbines, 160 European Commission   complaints     corporations, 336     individuals, 336    duty to cooperate, 337, 343, 344   enforcement powers     deterrent effect, 336     effectiveness, 336     lack of resources/time, 336 Treaty on the Functioning of the European Union, 336    enforcement proceedings, 336–41   EU environmental law     breaches, 336     implementation, 336, 337   first-round proceedings     administrative stage, 337, 338     ambit of dispute, 339     burden of proof, 339      general and persistent infringements, 340, 341     judicial stage, 338–41      letter of formal notice, 338     pre-litigation stage, 33, 338     reasoned opinion, 338     remedies, 340

370 Index European Commission (cont.):    first-round proceedings (cont.):     standing, 339     time limits, 339      Treaty on the Functioning of the European Union, 337, 338   second-round proceedings      burden of proof, 342, 343      duty to cooperate, 343, 344     procedure, 342      Treaty on the Functioning of the European Union, 341, 342 European Convention on Human Rights (ECHR)    compatibility, 113, 221, 271–3   ECtHR case law, 272    environmental measures, 286    environmental rights, 272, 285    equality of arms, 251, 252    fair balance, 222, 223    fair trial, 265, 271, 278    freedom of association, 121    freedom of expression, 121    freedom of thought, conscience, religion, 121    heightened scrutiny test, 222    impairment of right/freedom, 222    individual applications, 112    just satisfaction, 112    justified interference, 222    legislative objective, 222    legitimate aims, 222    legitimate expectations, 226, 232    margin of appreciation, 200, 223, 272    means necessary to accomplish objective, 222    necessity principle, 271     see also Necessity principle    noise pollution, 282, 283, 286   pollution control     see Pollution control    principles of international law, 285    proportionality, 200, 222    public interest, 285    respect for private and family life, 197, 223, 280–3    right to liberty/security of the person, 139, 279    right to life, 139, 279, 285    right to peaceful enjoyment of possessions, 223, 285, 286   standing, 272     see also Standing    state obligations, 285    violations, 111–13, 272, 284 European Court of Justice (ECJ)    direct actions, 6    environmental principles, 6    individual claims, 8    interpretative role, 8    polluter pays principle, 52    preliminary reference procedure, 8, 321–9     see also Preliminary reference procedure    standing rules, 330–5

    see also Standing    statutory planning applications, 6 European Union (EU)   see also EU environmental policy; EU law    international cooperation, 33    international influence, 32    trade relations, 32 Exhaustion of alternative remedies   exceptions      alternative remedy not adequate, 71      appeals by way of case stated, 72, 73     flexibility, 72–4     judicial discretion, 73, 74      need for adequate guidance, 72     recovery costs, 72     urgent cases, 72    judicial guidelines, 71    judicial remedy refused, 70    judicial requirement, 70    judicial review, 6, 10, 70, 71    merits of alternative remedy, 71   rationale, 70 Expository justice model    communitarian ideals, 5 Factual errors   see Errors of fact Fair hearing   see also Procedural fairness   audi alteram partem, 236, 237    environmental context, 3, 236    full/fair consultation, 236     see also Public consultation    natural justice, 5     see also Natural justice Fair trial    appearance of bias, 265    damages awards, 278    necessity principle, 271     see also Necessity principle General Court    individual claims, 8    preliminary reference procedure, 322     see also Preliminary reference procedure Global warming    environmental policy, 33, 35 Habitats regime   EU law, 160    protection of species, 160 Hearings   conduct of hearings, 248–53     see also Conduct of hearings    equality of arms, 251–3     see also Equality of arms    oral hearings, 250–2     see also Oral hearings Human rights   see also European Convention on Human Rights; Human Rights Act (1998)    fair trial, 265, 271, 278

Index  371    noise pollution, 282, 283    public authorities, 111, 113, 353    respect for private and family life, 197, 280–5 Human Rights Act (1998)    applications for judicial review, 112    associated remedies, 113    Bringing Rights Home, 112, 274    damages awards, 275–80     see also Damages awards    environmental regulators, 275   European Convention on Human Rights     compatibility, 113, 272, 273      declarations of incompatibility, 273, 274     ECtHR case law, 272    legislative deliberation, 73    legislative interpretation, 113, 272, 273    parliamentary sovereignty, 274    public authorities, 111, 113, 274, 275, 276, 353   reading-in, 273    Remedial Orders, 274    standing, 111–3, 275     see also Standing    time limits for claims, 275    victim test, 111, 112, 275     see also Victim test Injunctions    discretionary remedy, 150    injunctions against the Crown     availability, 155–7     civil proceedings, 156      claims for judicial review, 156, 157      contempt of court, 156, 157     immunity, 157     legislative provisions, 155, 156      ministers acting in official capacity, 155, 156      ministers acting in personal capacity, 156     non-compliance, 156   interim injunctions     American Cyanamid test, 161, 162      balance of convenience test, 161, 162     compliance/secondary legislation, 162, 163      cross-undertakings in damages, 147, 163     dis-applying primary legislation, 162      irreversible environmental harm, 147, 163    irreversible environmental damage, 147, 155, 163    mandatory injunctions, 155    prerogative remedies, distinguished, 155    prohibitory injunctions, 155 Interim applications    Administrative Court, 95    Civil Procedure Rules (CPR)(1998), 95     see also Civil Procedure Rules (CPR)(1998)    interim orders, 95    written supporting evidence, 95 Interim injunctions   American Cyanamid test, 161, 162    balance of convenience test, 161, 162    compliance/secondary legislation, 162, 163    cross-undertakings in damages, 147, 163    dis-applying primary legislation, 162    irreversible environmental harm, 147, 163

Interim remedies    injunctions, 147, 161–3    stay of proceedings, 161 International law    incompatible EU legislation, 25, 26   International Conventions     importance, 24     incorporation/domestic law, 25     instigation, 24     legal effect, 24, 25     ratification, 25    UK government powers     Ponsonby Convention, 24, 25     royal prerogative, 24     treaty ratification, 25   unincorporated treaties     contractual compliance, 25     judicial discretion, 25     legitimated expectations, 25     relevance, 25     resolving legal ambiguities, 25 Judicial review   context, 3–5    dispute resolution model, 5    environmental policy matters    grounds for review, 48–50   limitations, 46–9      ministerial policy, 45, 46, 49, 50    national policy statements, 47, 48     non-justiciable issues, 45, 46    policy as error of law, 46      premature challenges, 47, 48, 50    procedural impropriety, 49, 50    exhaustion of judicial remedies, 6, 10     see also Exhaustion of judicial remedies    expository justice model, 5    judicial discretion, 6    natural justice, 5     see also Natural justice    political theory, 4, 5   proportionality, 200    time limits, 77, 78, 82 Jurisdiction    appeal/review distinction, 169, 170    error of law     see Error of law    exercise of statutory power, 169    legal policy, 170    legality of administrative decisions, 169    limitation of judicial powers, 169    merits/legality distinction, 169    supervisory jurisdiction, 67, 106, 169 Köbler liability   see also State liability   criticisms, 318    extension of liability, 317    finality/legal certainty, 318    judicial organs, 311, 316–8    manifest infringement/applicable law, 317–9    material errors, 319

372 Index Köbler liability (cont.):   nature/scope, 318    legal points not raised by litigants, 319    refusal of judicial review, 319, 320    refusal to refer to ECJ point, 319    reopening of issues, 318 Legitimate expectations    administrative policies, 225   environmental cases     nuclear energy, 225     procedural legitimate expectations, 235     public consultation, 235   European Convention on Human Rights, 226     see also European Convention on Human Rights    express promise, 225    induced by decision-maker, 228   lawfulness, 228    legitimate expectation claims     judicial protection, 224      legitimacy of claimant’s expectations, 224     standard of review, 224    procedural legitimate expectations, 224, 225, 232, 233, 235    protection, 233, 234    public bodies, 224    public interest demands, 224    regular practice, 225   representations      claimant’s lack of knowledge, 229, 230     clear/unambiguous, 227, 228     detrimental reliance, 229      devoid of relevant qualification, 227     express representations, 225     implied representations, 225     prior representations, 224    resiling from legitimate expectations      abuse of power, 231, 232     fairness, 231, 232     human rights protection, 232     judicial consideration, 231, 232     justifiable countervailing considerations, 230, 232, 233     national security, 232     overriding public interest, 231      procedural legitimate expectations, 232, 233      public authority otherwise acting unlawfully, 230      substantive legitimate expectations, 231, 232      variable intensity review, 231, 232     Wednesbury reasonableness, 231    statements of politicians, 225    substantive legitimate expectations, 225, 231–4    unincorporated treaties, 225–7 Litigation funding    access to justice, 135    Protective Costs Orders (PCOs), 136–42     see also Protective Costs Orders (PCOs)    public funding, 135, 136     see also Public funding Local government    environmental protection, 69

Mandatory orders    discretionary remedy, 150   effect, 149    enforcement action, 149 Marine Management Organisation (MMO)    enforcement powers, 11    environmental disputes, 10    licensing functions, 10 National policy statements    judicial review, 47, 48    preparation, 47, 48 Natural England    designated areas, 70   responsibilities, 70 Natural justice   see also Procedural fairness   applicability, 238   audi alteram partem, 236, 237   breach, 236    common law rules, 236    consequences of the decision, 240    content specific approach, 239, 240   disclosure, 249     see also Disclosure    duty to act fairly, 239    environmental judicial review, 240    evidential rules, 250   exceptions      defect cured on appeal, 260     statutory exclusion, 259     urgent action required, 260    fair hearing, 5, 236, 237   flexibility, 240    judicial judgment, 240    judicial/quasi-judicial decisions, 236–9    judicial review, 5    notice requirements, 248    oral hearings, 248, 250     see also Oral hearings    political theory, 240    procedural requirement, 236    rights/interests affected, 240    statutory context, 240    written hearings, 5 Necessity principle    adjudicators disqualified, 271    administrative formality, 271   bias, 271     see also Rule against bias    conflicts of interest, 271    human rights protection, 271    statutory authorisation, 271 Nitrates   Nitrate Vulnerable Zones, 51, 52    polluter pays principle, 51, 52 No over-rigid policies    basic rule, 195    consistent decision-making, 195    construction of policy, 197    development decisions, 196    discretionary grants, 195

Index  373    examples, 195, 196    exceptional cases, 196    flexible decision-making, 195    human rights violations, 197, 198    individualised justice, 195, 196    proportionality, 197, 198    public authority practice, 196 Noise pollution    human rights concerns, 282, 283, 286     see also Pollution control Non-delegation principle    basic rule, 185   Carltona principle, 188, 190–3     see also Carltona principle    development projects, 187    enforcement notices, 188, 189    environmental law issues, 187–90    judicial functions, 186   justifications, 186    presumption against delegation, 185    public interest considerations, 190    quasi-judicial functions, 186    recommendations acceptable, 186, 187   sub-delegation, 187–90 Non-governmental organisations (NGOs)   environmental non-governmental organisations      access to justice, 21, 109, 110, 331      geographical areas of activities, 110     judicial discretion, 111      lack of statutory definition, 108, 109, 111     limits imposed, 108     qualified entities, 109, 110     statutory activities, 110    Aarhus Convention, 26, 108–11, 143     see also Aarhus Convention    standing, 21, 96, 107, 108, 111     see also Standing    sufficient interest test, 110     see also Sufficient interest test Nuisance   see Common law nuisance Oral hearings    conduct of hearings, 248, 250–3     see also Conduct of hearings    equality of arms, 251, 252     see also Equality of arms    evidential rules, 250    legal representation, 250    natural justice, 248, 250     see also Natural justice    opportunity to deal with issues, 251 Organisation for Economic Cooperation and Development (OECD), 24 Ouster claims   effect, 147 Ouster clauses    finality clauses, 164    judicial reluctance, 164    legislative provisions, 164    no-certiorari clauses, 164, 165

   parliamentary sovereignty, 164    time-limited clauses, 165, 166 Permission requirement   see Applications for permission Person aggrieved test    access to justice, 115, 116    judicial interpretation, 114    loss of amenity, 115, 116    objective assessment, 115    prohibiting orders, 113, 115    quashing orders, 113    restrictive approach, 114    statutory planning appeals, 96, 114–16    substantive interest, 115    sufficient interest, 115    sufficient participation, 115, 116 Political theory    role, 4, 5 Polluter pays principle   causation, 52    Commission Action Programme, 51    costs of environmental damage, 51    costs of prevention, 52, 53   ECJ jurisprudence, 52    environmental liability, 51, 52    environmental policy, 33    judicial consideration, 51–3    multiple polluters, 52   Nitrate Vulnerable Zones, 51, 52    proximity of site, 52    purposive approach, 52, 53    remediation costs, 52, 53    Treaty on the Functioning of the European Union, 51 Pollution control   see also Polluter pays principle    adequate investigations, 281    air pollution, 35    atmospheric pollution, 80    balance of interests, 280, 282, 283   causation, 282    common law nuisance, 283–5     see also Common law nuisance    competing interests, 281, 283    cyanidation process, 281    degree of pollution, 280    economic interests, 281    enforcement action, 281    environmental impact assessment, 281    environmental policy, 33    ground water quality, 281    hazardous waste, 281    human health, 281    margin of appreciation, 281    noise pollution, 282, 283    prevention of pollution, 310, 311    procedural dimension, 81    public interest, 281    warnings of environmental danger, 280 Pre-action Protocol    alternative dispute resolution, 75, 79     see also Alternative dispute resolution

374 Index Pre-action Protocol (cont.):    code of good practice, 78    compliance, 78, 79    defendant’s reply, 78   documentation, 78    letter before claim, 78    procedural steps, 78    time limit for claim, 78 Precautionary principle    common sense, 59   consistency, 53    cost-benefit considerations, 53    definitional issues, 53, 54    environmental risk, 53   EU level      application of EU law, 60, 61      derogation from EU rules, 53     environmental assessment, 57, 58     legislative drafting, 53    expert evidence, 59    judicial reluctance, 61    margin of appreciation, 60   non-discrimination, 53   pesticides, 60    precautionary regulation, 53   proportionality, 53    public health issues, 58–60    risk assessment, 58–60    scientific risk/uncertainty, 59, 60 Preliminary reference procedure    Civil Procedure Rules (CPR)(1998), 328     see also Civil Procedure Rules (CPR)(1998)   courts/tribunals      courts subject to appeal, 325     definition, 324     judicial characteristics, 324     permission to appeal, 325     public/state involvement, 324      questions necessary to give judgment, 324, 325      referrals may be made, 324      referrals must be made, 325   ECJ jurisdiction, 323    effects, 328, 329   English courts, 327, 328    environmental judicial review, 321, 322   EU law     failure to implement, 321     secondary legislation, 323     supremacy, 321    treaty interpretation, 322, 323, 325 exceptions   acte claire, 326    identical questions, 326    interlocutory proceedings, 326 General Court referrals, 322    hypothetical questions, 324    interim relief, 323, 328    judicial review proceedings, 321    nature of procedure, 321, 322    specified issues, 323    suspension of domestic measures, 328    test for referral, 325, 326

   Treaty on the Functioning of the European Union, 321, 322, 324, 325    validity of institutional acts, 321–3, 325 Prerogative remedies    mandatory orders, 147, 149    prohibiting orders, 113, 115, 147, 148    quashing orders, 113, 147, 148 Procedural exclusivity    abuse of process, 92, 93    Civil Procedure Rules (CPR)(1998), 92, 93     see also Civil Procedure Rules (CPR)(1998)    collateral challenges, 94    exceptions, 91, 92    prerogative orders, 90    private law matters, 91, 92    procedural limitations, 90    public law matters, 90, 91, 92    Rules of the Supreme Court (Order 53), 90, 91, 93    unwary litigants, 92 Procedural fairness   see also Natural justice    administrative decision-making, 236–9    adversarial litigation, 236   bias     see Rule against bias    categorisation of cases     application cases, 238     expectation cases, 238     forfeiture cases, 238    common law requirements, 236, 237, 239, 259    context sensitive duty, 238    enhanced procedural protection, 236    environmental decision-making, 236   hearings, 248–53     see also Conduct of hearings    judicial/quasi-judicial decisions, 238    public consultation, 236, 241     see also Public consultation    public participation, 236, 241     see also Public participation    reasoned decisions, 236, 241, 253–9     see also Reasoned decisions    scope of protection, 237, 238 Procedural rules   see also Alternative dispute resolution (ADR)    Administrative Court Office Guidance, 67    Civil Procedure Rules (CPR)(1998), 67, 74, 92, 93     see also Civil Procedure Rules (CPR)(1998)    exhaustion of alternative remedies, 70–4     see also Exhaustion of alternative remedies    key steps, 67   permission requirement     see Applications for permission    Practice Direction, 67    Pre-action Protocol, 67, 78, 79     see also Pre-action Protocol    statutory provisions, 67 Producer responsibility    electrical/electronic waste, 62    environmental impact, 61   EU environmental policy, 35   EU legislation, 61, 62

Index  375   extent, 62   legislation/policy, 61    litigation, 61, 62    packaging waste, 61, 62    product life cycles, 61    waste disposal, 35 Prohibiting orders   breach, 148   contempt, 148    discretionary remedy, 150    legitimate expectation, 148    person aggrieved test, 113, 115     see also Person aggrieved test    public authority activities, 148 Proper purposes principle    basic rule, 200, 201    common law authority, 201    dominant purpose, 204    environmental context. 203    express purpose identified, 202    improper use of powers, 200, 201    judicial exposition, 201    judicial interpretation, 202, 203    material influence test, 204    mixed purposes, 203, 204    policy and objects approach, 202, 203    prerogative power, 201    propriety of purpose, 203    public bodies, 203, 204    purpose not expressly identified, 202    relevancy principle (relationship), 201, 202     see also Relevancy principle    rule of law, 201    statutory powers, 201 Proportionality    discretionary decisions, 200, 221, 222    environmental cases, 222, 223   EU law, 221, 222    human rights protection, 221–3    judicial review, 200    judicial support, 221    margin of appreciation, 200 Protective Costs Orders (PCOs)    claimant excused defendant’s costs, 136   Corner House principles, 136–42     see also Corner House principles   environmental cases      access to justice, 142, 145, 146      Aarhus Compliance Committee, 146      Aarhus Convention, 142, 143     costs risk, 143–5     endangered species, 140, 141      extent of applicant’s interest, 142     extra-judicial criticism, 141     fairness/justice requirement, 142, 145     insufficient interest, 145     Kay Report, 141, 142      matters of general public importance, 143–5     modern approach, 143, 146     nuisance proceedings, 141     planning decisions, 143–5      private interest test, 141, 142

     private limited company, 145, 146      recovery of costs, 141, 143–6     referral to ECJ, 146     restrictive approach, 140, 141     separate principles, 141     Sullivan Report, 142, 143      treatment similar to other cases, 140      Working Group on Access to Environmental Justice, 146 individuals with public law role, 138    jurisdiction, 136, 138    maximum costs liability, 136 Public authorities    environmental public bodies     Central Government, 68, 69     Environment Agency, 69     Local Government, 69     Natural England, 70    human rights, 111, 113, 274, 275, 276, 353    limit on judicial review, 68    public functions, 67    public law, 67, 68    supervisory jurisdiction, 67 Public consultation    adequate time, 243, 245, 246    commencement, 243, 244    common law principles, 242, 243   democracy, 242   disclosure, 245     see also Disclosure    duration, 245, 246    duty to consult, 242, 243    environmental impact assessment, 241, 242   failures      consequences of failure, 247, 248     procedural unfairness, 248     unlawful consultation process, 247      fair process, 243, 246, 247, 24   flexibility, 243    good administrative practice, 24   importance, 241    information requirements, 244, 245    legislative provisions, 242, 243    legitimate expectations, 242     see also Legitimate expectations    objections already lodged, 245    planning decisions, 242    pre-emptive development, 242    product of consultation, 243    proposals at formative stage, 243, 244    reasoned proposals, 243    re-consultation, 246, 247   requirements, 241–3   responses, 246    right to consultation, 241    scope of consultation, 244    Sedley requirements, 243    statutory context, 243    voluntary consultation, 243 Public funding    abuse of process, 136    Community Legal Service, 135

376 Index Public funding (cont.):    education cases, 136    environmental context, 136    free legal representation, 135    Legal Services Commission, 135, 136    liability for other party’s costs, 135 Public interest challenges    environmentalism, 12, 13    pressure groups, 13 Public law   adjudication     dispositive justice model, 98      expository justice model, 98, 102    environmental context, 3    environmental protection, 6     see also Environmental protection   legal challenges      appeal by case stated, 7     declarations, 7     individual claims, 8     infraction proceedings, 7, 8     preliminary reference procedure, 8     statutory challenges, 6, 7    legality, 4, 5    political theory, 4, 5    procedural fairness, 4, 5   rationality, 4    social/political context, 4 Public participation    Aarhus Convention, 19, 27, 28, 259     see also Aarhus Convention    access to information, 20, 21, 347     see also Access to information   alternative perspective, 18   concept, 17    consultation, 17, 19, 27, 347    decision-making process, 17–9, 21, 27    definitions of “public”, 19    democratic deficit, 17    early stage, 28    effectiveness concerns, 19    efficiency concerns, 19    environmental decision-making, 241, 347    environmental impact assessment, 6    environmental interest groups, 19    guarantees, 27, 28    habitats regime, 6   importance, 18   justification, 18    law/policy issues, 19, 20    lay members of the public, 19    local knowledge, 18    local participation, 19, 20    notice requirement, 27, 28    procedural rights, 17    public consultation, 241     see also Public consultation    public decision-making, 3    reasoned decisions, 258, 259     see also Reasoned decisions    substantive outcomes, 18    sustainable development, 18

Quashing orders (certiorari)    discretionary remedy, 150   licences, 148    person aggrieved test, 113     see also Person aggrieved test    retrospective effect, 147   substitution, 148    ultra vires decisions, 147, 148    unlawful administrative action, 147 Reasoned decisions    Aarhus Convention, 254     see also Aarhus Convention    adequate/intelligible reasons, 254–8    administrative decisions, 253    common law, 254, 255    controversial issues, 254    degree of particularity, 254    duty to give reasons, 253–5    environmental context, 254, 255–9    environmental impact assessment, 258, 259     see also Environmental impact assessment    failure to provide reasons, 255    importance, 253, 254    planning decisions, 255–8    public participation, 258, 259     see also Public participation    standard of reasons, 257    summary of reasons, 256–8 Refusal of relief    abuse of process, 157   delay, 157    events overtaken subject matter of claim, 157, 158    non-exhaustion of alternative remedies, 157    public law remedies, 157    reprehensible conduct, 157    similar outcome./breach not occurred, 157, 158    undue prejudice, 157, 158 Relevancy principle    basic rule, 204–6   breach     decision justified, 206     decision-maker’s views, 207     decision unlawful, 206     environmental context, 206, 207     environmental effects, 207, 208     grounds of reasonableness, 208     inferred factors, 206     judicial limitations, 206     reasons given, 206     right of consultation, 207     waste management objectives, 206      weight given to relevant consideration, 208    empowering provisions, 204, 205, 209   EU environmental objectives, 205, 206    public bodies, 204    relevance of alternative sites     environmental assessment, 213     mandatory relevant consideration, 212     planning law, 212     statutory schemes, 212    relevance of public opinion, 213

Index  377    relevance of resources      compliance with target duties, 210, 211     conservation areas, 209, 210     derogation of duty, 210     discretionary resource allocation, 210–2     environmental context, 209     lack of resources, 209     margin of discretion, 211      non-performance of statutory duties, 209     special protection areas, 209    relevant considerations, 205 Retention of discretion   decision-makers, 185    discretionary power, 185    no fettering by contract, 185, 198, 199    no over-rigid policies, 185, 195–8   non-abdication, 185    non-delegation principle, 185–93     see also Non-delegation principle Rule against bias    actual bias, 262, 265    administrative decision-makers, 261, 267, 270    apparent bias, 264    appearance of bias     appearance of impartiality, 265     available evidence, 265      extent of actual risk, 264, 265     judicial perception, 265      justice seen to be done, 265     policy considerations, 264      possibility of actual bias, 265     public confidence, 264, 265     public perception, 265     relevant considerations, 265    environmental regulators, 261   exceptions     necessity, 271     waiver, 270    fair-minded/informed observer test, 265–7, 269    fair trial, 265   hypothetical observer     characteristics, 266, 267     illegitimate predetermination, 267–70      legitimate predisposition, 267, 268, 270     material available, 266   nemo judex in causa sua, 261–3    pecuniary interests, 261, 262    possibility of bias, 261, 262, 264–9   presumed bias     absolute impartiality, 264     automatic disqualification, 262–4     de minimis exception, 263      decisions void ab initio, 262     direct interests, 263      direct pecuniary interests, 262, 263      promotion of particular cause, 263, 264     remoteness, 263    real possibility of bias test, 265–9 Standing    Aarhus Convention, 21, 108–11     see also Aarhus Convention

   access to justice, 21, 109, 110    action for annulment, 331     see also Action for annulment   challenges     associational, 96, 99     public interest, 96, 99     surrogate, 96, 99    Civil Procedure Rules (CPR)(1998), 116, 117     see also Civil Procedure Rules (CPR)(1998)   consequences, 96   distinctions     arguability, 96     justiciability, 96     mootness, 96     ripeness, 96    entitlement to relief, 96    environmental interests groups, 109    environmental non-governmental organisations      access to justice, 21, 109, 110, 331     automatic right, 96, 108      geographical areas of activities, 110     judicial discretion, 111      lack of statutory definition, 108, 109, 111     limits imposed, 108     qualified entities, 109, 110     statutory activities, 110      sufficient interest, 107, 108, 110    failure to act, 331    human rights protection, 96, 111–3    liberal approach, 114    non-privileged applicants, 332    person aggrieved test, 96, 113–6     see also Person aggrieved test    privileged applicants, 331    public interest litigation, 330    public law norms, 98    public law rights, 98, 102    qualified entities, 109, 110    relator proceedings, 99, 100    restrictive approach, 114    semi-privileged applicants, 331   standing rules      liberal approach (open system), 96–100, 102     proper case presentation, 97     public law adjudication, 98      restrictive approach (closed system), 97, 99, 102–4     threshold for standing, 103    sufficient interest test, 96, 99–108     see also Sufficient interest test    theories of standing, 97–8    third party interventions, 96, 117    Treaty on the Functioning of the European Union, 330    victim test, 111–3     see also Victim test State aid   definition, 32 State liability   Brasserie du Pechêur, 313, 314   causal link      breach of EU law, 312, 313, 316

378 Index State liability (cont.):    causal link (cont.):      damage suffered by injured person, 312, 313, 316      direct causal link, 313, 316     establishment, 313    constraints on discretionary powers, 315    damages liability, 311–13    duty of cooperation, 312    effectiveness principle, 312    environmental context, 311    environmental impact assessment, 312, 317, 318    errors of construction, 315   Factortame decision, 313, 314    failure to implement Directive, 312, 313   Francovich principle, 311–4, 317    free movement of goods, 313, 315    freedom of establishment, 313    harm caused to individuals, 312    individual rights, 311, 312   Köbler liability     criticisms, 318     extension of liability, 317     finality/legal certainty, 318     judicial organs, 311, 316–8      manifest infringement/applicable law, 317–9     material errors, 319     nature/scope, 318      legal points not raised by litigants, 319      refusal of judicial review, 319, 320      refusal to refer to ECJ point, 319     reopening of issues, 318    relevant community norm      intention to confer rights, 313, 314     manifest breach, 317–9      protection of individual interests, 314      sufficiently serious breach, 313–5    reparation, 312, 313    state organs, 311, 316, 317    violations of EU law, 311–3, 316 Statutory interpretation    derogations, 41, 42    human rights considerations, 113, 272, 273    purposive interpretation, 40, 41 Statutory nuisance    abatement notices, 7 Substantive hearings    Administrative Court, 95    burden of proof, 95    rolled-up hearings, 95    standard of proof, 95    urgent cases, 95 Sufficient interest test    application, 96, 101–7    assessment of costs, 102, 103    background, 99, 100   claimants     individual claimants, 102     publicly funded, 105, 106     subjective motivation, 105    environmental non-government organisations, 110     see also Non-government organisations incorporated/unincorporated associations

    access to justice, 107      avoiding costs liability, 106, 107     legal personality, 106     supervisory jurisdiction, 106    liberal approach, 102, 105, 107    more appropriate challengers, 102, 103    permission stage, 101    public interest challenges, 104, 105    relator proceedings, 99, 100    restrictive applications, 102–4    statutory provisions, 100    substantive hearing, 101    sufficient interest, 100    tax liability, 100, 101    third party standing, 103    threshold test, 101    unfounded subjective fear, 103, 104    uniform test, 101    vexatious claims, 103 Sustainable development   conservation, 63    environmental policy, 33, 34   meaning, 63    public participation, 18     see also Public participation    special protection areas, 63 Third parties    environmental litigation, 96   standing, 103     see also Standing    third party interventions, 96, 117 Time limits    Aarhus Compliance Committee, 85    date of challenge, 83    date of knowledge, 86   ECJ rulings, 84, 88, 89    environmental impact assessment, 84, 88, 89   EU Member State autonomy, 88    extension of time, 82, 88–90    extreme delay, 86    fair hearing requirement, 83, 84    good administration, 82    human rights protection, 83, 84    judicial review, 77, 78, 82    justified delay, 89    planning decisions, 86–9    Pre-action Protocol, 77, 78     see also Pre-action Protocol    promptness requirement, 77, 78, 82–5, 87, 89, 90    public procurement proceedings, 84, 85    refusal of permission, 82    substantial hardship, 82    substantial prejudice, 82, 86    third parties affected, 86    undue delay, 82 Transparency    public decision-making, 3 Treaties   incorporation, 25   International Conventions     importance, 24

Index  379     incorporation/domestic law, 25     instigation, 24     legal effect, 24, 25     ratification, 25    interpretation, 322, 323, 325   ratification, 25   unincorporated treaties     contractual compliance, 25     judicial discretion, 25     legitimated expectations, 25     relevance, 25     resolving legal ambiguities, 25 Treaty on the Functioning of the European Union    action for annulment, 330, 331     see also Action for annulment   European Commission     enforcement powers, 336      enforcement proceedings, 337, 338, 341, 342    legislative provisions, 31, 51, 54, 55, 60    polluter pays principle, 51     see also Polluter pays principle    preliminary reference procedure, 321, 322, 324, 325     see also Preliminary reference procedure    standing rules, 330     see also Standing Tweed v Parades Commission for Northern Ireland    background, 120, 121   confidentiality, 121    disclosure orders, 121    fair disposal of case, 121, 124    interim applications/disclosure, 122   proportionality, 121    specific disclosure, 121    volume of material to be disclosed, 121 UN Environment Programme (UNEP), 24 Vertical direct effect   see also Direct effect; Directives; EU law    enforcement against private persons, 294    environmental context, 294   environmental Directives     direct effect, 295, 296     discretionary language, 295     ECJ approach, 296     enforcement, 295, 296     framework Directives, 295      precision requirement, 295, 304, 305     unconditionality, 295, 296, 300–3    environmental protection standards, 294    estoppel justification, 294, 307    inverse direct effect, 294   provisions invoked

     against Member State authorities, 294     companies, 294     private individuals, 294    unlawful pollution, 295 Victim test    actual victims, 112   ECHR violations, 111–3, 272, 284    future victims, 113    incorporation into English law, 111    indirect victims, 112    no representative standing, 113    potential victims, 112–3 Waste management   ECJ jurisprudence, 9    electrical goods, 34, 35, 62    environmental policy, 34, 35   incineration, 9    meaning of waste, 9, 10    packaging waste, 61, 62    producer responsibility, 35    triangular situations, 308, 309 Wednesbury unreasonableness    abuse of discretion, 200    basic rule, 213, 214    environmental context, 3    human rights context, 216    legitimate expectations, 231     see also Legitimate expectations    less extreme formulation     badger culling, 220      decision-maker misdirected in law, 216     environmental decision-making, 217, 218, 220      environmental impact assessment, 219, 220     judicial approval, 216, 217     judicial deference, 218, 19     landfill allowances, 218     merits review, 217     planning decisions, 218, 219     scientific evidence, 217, 220     technical data, 218      variable nature of substantive review, 216     waste management, 218, 220    range of reasonable responses, 214    rationality of administrative decisions, 213    standard of unreasonableness     heightened scrutiny, 215     judicial approach, 214      subject matter of claim, 214–6     sub-Wednesbury, 215     Super Wednesbury, 215      varying degrees of intensity, 214, 216