The leading environmental cases of 2009
2009 witnessed a raft of important environmental cases touching upon a range of issues including environmental impact assessments (EIA), strategic environmental assessments (SEA), biodiversity and waste. Annabel Graham Paul and Sarah Sackman present their top 10.
1. R (Baker) v Bath and North East Somerset DC [2009] EWHC 595 (Admin)
In Baker the local authority granted a series of planning permissions for the modification of a waste disposal facility. In accordance with Sch 2, para 13, col 2 of the EIA Regulations 1999, the LPA treated the modification in isolation from the rest of the existing development. Collins J held that the EIA Regulations 1999 did not properly implement the EIA Directive since they did not require consideration of the cumulative effect of the project and the modification.
The effect of Baker is that where there is an existing development which is itself over the threshold for EIA, any application to change or extend that development will also exceed the threshold and require EIA screening.
2. R (Mellor) v Secretary of State for Communities and Local Government [2009] 18 E.G. 84 (C.S.)
In Mellor, the ECJ held that there is no need for a negative screening opinion to contain reasons. There is a duty to provide further information regarding the reasons for a negative screening decision if an interested party requests the same. The further information request does need to be met by a formal statement and the reasons given can be brief.
3. R (Bard Campaign) v Secretary of State for Communities and Local Government [2009] EWHC 624(Admin)
Bard was a challenge to the Government’s eco-town policy. It touched, amongst other things, on the issue of public consultation. Bard confirmed the test for proper consultation in ex parte Coughlan [2001] QB 213 (para 108) - consultation must be timely, include sufficient information to allow those consulted to give intelligent consideration and any responses should be taken into account. The court acknowledged the Greenpeace case ([2007] Env L.R. 29) had added a further gloss. If a question arose as to whether a document was a consultation or merely an issues paper, the court should resolve this by asking whether those consultees who took the document at face value could reasonably foresee that, following the consideration of their responses, the principle in issue would be determined.
4. R (Boggis) v Natural England [2009] EWCA Civ 1061
Natural England decided to enlarge an SSSI without appropriate assessment of the enlargement’s effect upon a neighbouring SPA. As a consequence of the designation Mr Boggis would have to remove the sea defences preventing the erosion of the cliff on which his home was built. The Court of Appeal reversed the first instance decision holding that matters such as notification of an SSSI, listing of historic buildings, scheduling ancient monuments, and designating conservation areas do not constitute “plans” under art.6(3) of the Habitats Directive for the purpose of potential appropriate assessment.
5. R. (on the application of Woolley) v Cheshire East BC [2009] EWHC 1227 (Admin)
In Woolley planning permission was granted to demolish a property containing a bat roost. A condition was imposed to secure a mitigation strategy for the bats.
In the light of regulation 3(4) of the Habitats Regulations, the judge quashed the permission. He held that the local authority should engage with the provisions of the Habitats Directive. Engagement involves a consideration of those provisions and whether the derogation requirements might be met. This exercise is not a substitute for the licence application which follows if permission is given. If it is clear that the Directive’s requirements cannot be met because there is a satisfactory alternative or because there are no conceivable “other imperative reasons of overriding public interest” the authority should act upon that, and refuse permission.
6. Morgan v. Hinton Organics [2009] EWCA Civ 107
In Morgan the Court of Appeal grappled with the extent to which individuals may rely on the principles enshrined in the Aarhus Convention in domestic litigation. Aarhus has been ratified by both the UK and the European Community.
The Court considered that the consequence of UK ratification was that, for the purposes of domestic law, Aarhus has the status of an international treaty, not directly incorporated. Thus its provisions cannot be applied directly by domestic courts; it is at most a matter potentially relevant to the exercise of the judge’s discretion, assuming it has been raised before him or her. The consequence of EC ratification in domestic courts is limited to the direct effectiveness of EC Directives that reproduce Aarhus.
7. Morge v. Hampshire CC [2009] EWHC 2940 (Admin)
In Morge the claimant challenged the local authority’s decision to grant itself planning permission to build a guided busway. The busway is to be constructed through a green space where bats forage and commute. One of the main grounds of challenge was the authority’s failure to have regard to Regulation 3(4) of the Habitats Regulations 1994, which requires local planning authorities to have regard to the requirements of the European Habitats Directive. The claimant argued that there had been “deliberate disturbance” of bats, which are a European protected species. Disturbance is prohibited by Article 12 of the Directive and therefore the authority was obliged to consider the Article 16 derogations from that prohibition and obtain a licence to carry out the works. The meaning of “deliberate disturbance” in this context has not been elucidated either by the domestic or European courts.
The High Court accepted the local authority’s argument that, on the facts, no “deliberate disturbance” had occurred and there was no need to obtain a licence. The Court of Appeal has granted the claimant leave to appeal in the new year.
8. Environment Agency v. Thorn International [2009] JPL 597
The case concerned the repair and resale of electrical goods and whether or not used electrical goods, before they had been repaired, were waste within the meaning of the Environmental Protection Act 1990 and the Waste Framework Directive (2006/12/EC).
The High Court held that the electrical goods were not waste. They considered that because the goods were capable of reuse with some repair and refurbishment. Even if the goods had been waste, they were no longer waste when they came into the hands of Thorn, the refurbishment and resale company. Moses LJ observed: “The mere fact that that which in one form is undoubtedly waste remains waste until its character is changed by a process of recycling does not establish a rule of law that any item which requires repair or refurbishment is waste until that process is concluded … it depends on all the circumstances.” The key circumstances here were that the goods retained their form and purpose and contained no hazardous materials.
9. Environment Agency v. Inglenorth [2009] EWHC 670 (Admin)
The High Court considered whether hardcore from the demolition of a greenhouse was waste in circumstances where it was transferred and depositing on another site in order that it might be used to repair a car park.
The High Court, Sir Anthony May giving the leading judgment, held that the hardcore was not waste because the owner was intending to use it to make good the car park, not discard it. This should be contrasted with the ECJ’s wide definition of waste that includes by-products which are stored for possible future use: Palin Granit Oy [2002] 1 WLR 2644.
10. Office of Communications v. Information Commissioner [2009] EWCA Civ 90
On 17 November 2009, the Supreme Court heard the Information Commissioner’s appeal against the Court of Appeal’s judgment in the ‘Ofcom’ case. Judgment is yet to be handed down. In ‘Ofcom’, the Court of Appeal held that in applying the public interest test in regulation 12(1)(b) of the Environmental Information Regulations 2004 to cases where multiple exceptions are at play, authorities should group public interest considerations together in a single balancing exercise, rather than undertaking individual balancing exercises for each exception engaged (which is the traditional approach).
The result, if upheld by the Supreme Court, is that disclosure will be withheld on the grounds of public interest in a larger number of cases than previously.
Annabel Graham Paul and Sarah Sackman are barristers at Francis Taylor Building.
