Update: environment

The judgment of the Court of Appeal in R (Boggis) v Natural England [2009] EWCA Civ 1061 (solicitorsjournal.com, 23 October 2009) has narrowed the scope for challenges to sites of special scientific interest (SSSIs) and other such designations and has given guidance on the meaning of 'nature conservation'.

The first instance decision in Boggis [2008] EWHC 2954 Admin (see 'Update: environment', Solicitors Journal 153/21, 2 June 2009) surprised many commentators by holding that, in certain circumstances, the notification of an SSSI could be a 'plan or project' and therefore subject to the requirements of 'appropriate assessment' under the Habitats Directive. The Court of Appeal, in a robust lead judgment delivered by Sullivan LJ, has now reversed that conclusion, holding that notification is no more a 'plan' than is designation of a conservation area, for example. The inclusion of a list of 'operations likely to damage the SSSI', for which consent from Natural England would be required, and of a 'statement of view' from Natural England on the management of the land within the SSSI did not make notification a 'plan'.

This judgment reduces the scope for challenges on technical grounds to SSSIs by those opposed to them for whatever reason. At least one challenge to an SSSI that was ongoing (to the Ely Pits and Meadows SSSI, the first to be designated by Natural England as opposed to its predecessor English Nature) has fallen away as a result of the Court of Appeal's judgment. It also means that other regulators can breathe more easily. If an SSSI could be a 'plan', then why not listing a building or designating a conservation area or an Area of Outstanding Natural Beauty (a point explored by the Court of Appeal at 23)? Such a line of argument has sensibly been ruled out, although it is understood that Mr Boggis is seeking permission to appeal from the Supreme Court and so the story may not be over yet.

The court also provided guidance on the meaning of 'conservation' in the Wildlife and Countryside Act 1981. Mr Boggis lived at the top of a crumbling cliff and his homemade sea defences also prevented the erosion and successive exposure of the fossils and sediments which provided the special interest in the SSSI. One of his grounds of challenge to the SSSI was that it was not 'conserving' these features because it was actually leading to their loss by erosion. The court held that this argument rested on a misconception: 'conservation' did not mean 'preservation', and could be effected by 'allowing natural processes to take their course' (paragraph 18). Whether or not that was the appropriate means of conservation in a given case was a question not for lawyers but for the professional judgment of those with the statutory duty to 'conserve'.

Accordingly, it seems that the courts will be reluctant to interfere with professional judgment on what is 'conservation', except on the basis of conventional principles of Wednesbury unreasonableness.

Implementation of civil sanctions regime

The Regulatory Enforcement and Sanctions Act 2008 paved the way for various regulators, from the Financial Services Authority to the Hearing Aid Council, to enforce against malpractice by issuing 'civil sanctions' instead of prosecutions in the criminal courts (see 'Update: environment', 2 June 2009). This would involve the regulator being satisfied beyond reasonable doubt that a relevant offence had been committed, then serving a notice imposing financial or other requirements which must be complied with unless appealed by the recipient. However, the powers have yet to become effective. They must be granted to each regulator by order and apparently not all the regulators are enthusiastic about the new regime.

In the environmental field, it is now somewhat clearer how the powers will be implemented. DEFRA issued a consultation paper in July 2009 ('Fairer and Better Environmental Enforcement') proposing that civil sanctions should be used by the Environment Agency, Natural England and the Countryside Council for Wales. Statutory instruments have been drafted, with the intention that they will come into force on 6 April 2010. Civil sanctions would be made available in relation to a range of offences, including key wildlife and water offences. Interestingly, for fly tipping offences, only stop notices will be made available. As the agency only deals with what the consultation paper refers to as 'big, bad and nasty' fly tipping cases, it would not be appropriate for these to be dealt with primarily by way of civil sanctions '“ criminal prosecutions will continue to be used.

Protected species: Habitats Directive and planning applications

The decision in R (Woolley) v Cheshire East BC [2009] EWHC 1227 (Admin) means that planning authorities must engage with the requirements of the Habitats Directive and, if they will not be met, permission must be refused.

It is stated clearly in the implementing regulations that public bodies (including planning authorities) must 'have regard to the requirements of the Habitats Directive' insofar as these are relevant to the function being exercised (Habitats Regulations 3(4)). The question was how the planning authority should have regard to those requirements. The authority argued that they were only required to note the existence of the legislation and of the protected species in question. However, the court held that this was not sufficient. The authority would have to engage with the provisions of the directive, including consideration of whether there is a satisfactory alternative and whether the derogation requirements can be met (e.g. whether the 'imperative reasons of overriding public interest' exception applied). If it is clear or 'perhaps very likely' that the requirements of the directive would not be met, then permission should be refused.

This is significant because it widens the scope of matters to be considered at the application stage to include alternatives and the justification for the development. These can no longer (unless Woolley is overturned) simply be left to the consent application to Natural England, but must be addressed by the planning authority.

Environmental information

The Court of Appeal's decision in the Ofcom case (Office of Communications v Information Commissioner [2009] EWCA Civ 90) means that it will be more difficult to obtain disclosure of information under the Environmental Information Regulations 2004 where more than one exception is relied upon.

In a controversial decision, the court overturned the traditional approach to the regulations, which had been adopted by the Information Tribunal and by Laws LJ in the High Court at first instance. Essentially, the regulations require disclosure of certain information on request unless one of the specified exceptions applies and the public interest in maintaining the exception outweighs the public interest in disclosure.

In this case, more than one exception had been relied on and the Information Tribunal had conducted a balancing exercise in relation to each exception separately. It had not weighed the public interest in disclosure against the amalgamated public interest of maintaining all the exceptions relied on. The Court of Appeal ruled that the latter was the correct approach. The exceptions could be considered separately in any given case, so long as the public interest considerations they raised were ultimately considered together 'in the round' as well.

Evidently, this will make for a more restrictive test on disclosure when several exceptions apply. As the structure and wording of the Freedom of Information Act 2000 is very similar to that of the regulations, it seems that the same approach should logically apply to determinations under that legislation also, although the court did not of course rule on this point.

The implications of the Court of Appeal's decision will therefore potentially be far-reaching if it is not overturned. The case has now been considered by the Supreme Court and a decision is pending. Practitioners will no doubt await the outcome with interest.

Costs in environmental cases

The decision of the Court of Appeal in Morgan v Hinton Organics [2009] EWCA Civ 107 (Solicitors Journal 153/9, 10 March 2009) has brought an end for the moment to arguments about the applicability of the Aarhus Convention in domestic environmental proceedings, and has confirmed the applicability of the normal rules on protective costs orders (PCOs). However, the Jackson review of costs in civil litigation may yet bring a more fundamental change to the costs regime.

The Aarhus Convention, which has been ratified by the UK and the EU, provides that members of the public should have access to environmental justice which is not 'prohibitively expensive'. The court in Morgan accepted that this involved looking at the whole costs of the action, including legal costs, and was not limited to court fees.

However, the court rejected any consequent attempt to carve out a separate approach for PCOs in environmental cases. As the Aarhus Convention was not incorporated into domestic law, it was not binding on domestic courts but 'at most a matter to which the court may have regard in exercising its discretion'. Further action was a matter for 'legislation or the Rules Committee'.

The possible exception is in the field of European law. The EIA and IPCC directives have been amended so that they incorporate the Aarhus requirements, giving rise to possible arguments of direct effect. There is also a more radical argument based on article 300 of the EC Treaty, which provides that international agreements ratified by the Community 'shall be binding on the institutions of the Community and member states'. The ECJ has previously found international conventions to be directly effective on the strength of this provision, but strangely the argument was not considered in the Morgan case. However, the judgments in Morgan were technically obiter, so the issue may be revisited.

Another possible source of change for the costs rules in environmental cases is the Jackson review. His interim report found the need for 'radical reforms' in order to make the UK Aarhus compliant, with the suggestion that PCOs should become the norm in public law environmental litigation. Interestingly, the report suggests that consistency should be maintained by applying these Aarhus standards to all public law litigation '“ the opposite approach to that taken by the Court of Appeal in Morgan. The final report is due in December and should make for interesting reading on this as on other topics.