Abstract
EDITORIAL
With a rather grey and dreary start to the New Year, it is perhaps surprising to those of us stuck indoors during the rainy weather that the world has continued marching towards worrying thresholds in the fight against climate change. In February, we found out a significant threshold had been crossed with a year-long warming rise of 1.5C. Unsurprisingly, there is increasing concern over the risk of extreme weather events brought on by such global temperature escalations. Floods, heatwaves, droughts and wildfires are just some of the extreme events we have seen in recent years.
In light of all that, it is no small wonder that the Committee of Public Accounts was concerned that there was a lack of robust leadership, oversight and urgency in the Government's resiliency planning for extreme weather. Similarly, the Environmental Audit Committee noted the need for future planning to address increasing temperatures and to create sustainable methods of cooling, both in the home and in urban areas generally. Several other Committees focused on the need for long-term planning in respect of the practical side of implementing changes to battle global warming such as an EV Strategy for rapid charging, long-duration energy storage, and insect decline affecting food security.
Again keeping in form with the general concern over the long-term effects of extreme weather events and rising global temperatures, we saw a landmark case from the European Court of Human Rights, which found that Switzerland had breached its citizens’ human rights by failing to effectively protect them from the catastrophic effects of climate change.
Meanwhile, there was a busy Parliamentary session with a flurry of second and first readings for a variety of Bills dealing with issues ranging from Green Belt protection and illegal and unsustainable fishing to restrictions on Members of Parliament profiting from oil and gas companies and clean air protections.
Read on for more updates.
Update
Anna McClean
TRINITY CHAMBERS
Verity LJ Adams and Sarah Ismail
EU LEGISLATION AND TEXTS
Regulation (EU) 2024/573 of the European Parliament and of the Council of 7 February 2024 on fluorinated greenhouse gases, amending Directive (EU) 2019/1937 and repealing Regulation (EU) No 517/2014
This Regulation lays down rules on containment, use, recovery, recycling, reclamation and destruction of fluorinated greenhouse gases and on related ancillary measures, such as certification and training, which includes the safe handling of fluorinated greenhouse gases and of alternative substances that are not fluorinated. It further imposes conditions on the production, import, export, placing on the market, subsequent supply and use of fluorinated greenhouse gases, as well as specific uses of fluorinated greenhouse gases, and of specific products and equipment containing fluorinated greenhouse gases or whose functioning relies upon those gases. It establishes quantitative limits for the placing on the market of hydrofluorocarbons and establishes rules on reporting.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32024R0573&qid = 1713700039400
Regulation (EU) 2024/590 of the European Parliament and of the Council of 7 February 2024 on substances that deplete the ozone layer, and repealing Regulation (EC) No 1005/2009
This Regulation lays down rules on the production, import, export, placing on the market, storage and subsequent supply of ozone-depleting substances, as well as on their use, recovery, recycling, reclamation and destruction, and on the reporting of information related to those substances and on the import, export, placing on the market, subsequent supply and use of products and equipment containing ozone-depleting substances or whose functioning relies upon those substances.
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32024R0590&qid = 1713700039400
Commission Delegated Regulation (EU) 2024/1127 of 8 February 2024 supplementing regulation (EU) 2019/1242 of the European Parliament and of the Council by setting out the guiding principles and criteria for defining the procedures for the verification of the CO2 emissions and fuel consumption values of heavy-duty vehicles in-service (in-service verification)
This Regulation sets out the guiding principles and criteria for defining the procedures for verifying that the CO2 emissions and fuel consumption values recorded in the customer information files correspond to the CO2 emissions from, and the fuel consumption of, heavy-duty vehicles in-service. It also sets out the procedures for verifying the presence of any strategies on board or relating to the vehicles that artificially improve the vehicle's performance in the tests performed or in the calculations made for the purpose of determining the CO2 emissions and fuel consumption (‘in-service verification’).
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri = CELEX%3A32024R1127&qid = 1713700039400
DOMESTIC CASE LAW
Environmental information
Davies v Information Commissioner [2024] UKFTT 183 (GRC)
The appellant had requested planning consultation reports relating to specific plot addresses and minutes from a board meeting from Carmarthenshire County Council. The Council had given links to some of the information requested but had withheld the requested consultation reports under reg. 12(5)(e) Environmental Information Regulations 2004 (disclosure of the information would adversely affect the confidentiality of commercial or industrial information). The tribunal dismissed the appeal and held that the Council was entitled to rely on the exception in reg. 12(5)(e). It found that there were a number of bidders in negotiation for the sale of the plots who would have a commercial interest in keeping their modus operandi of negotiations and bidding out of the public view. It also held that the public interest was in favour of withholding the information.
Secretary of State for Energy Security and Net Zero v Information Commissioner [2024] UKFTT 184 (GRC)
This appeal is related to the proposal by Horizon Nuclear Power Ltd to build a nuclear power station in Anglesey. Activity in relation to the project was abandoned in September 2020 and the application for consent was withdrawn in January 2021. In March 2021, a member of the public requested information relating to options, professional advice and assessment from the Department for Business, Energy and Industrial Strategy (the body then responsible for this policy area). BEIS withheld the information in reliance on reg. 12(4)(e) (internal communications) and reg. 12(4)(d) (material in the course of completion) of the Environmental Information Regulations 2004. The Information Commissioner decided that although the project remained incomplete, the information requested comprised documents which were complete. They also decided that although there is a public interest in protecting BEIS's ability to communicate internally in a ‘safe space’, the need for such a ‘safe space’ is strongest when the issue is still live and consequently, although a ‘close call’, the public interest in maintaining the exception in reg. 12(4)(e) did not outweigh or balance the strong public interest in disclosing the information. The tribunal was satisfied that the exception in reg. 12(4)(d) was not engaged and stated that whilst communications between civil servants and their minister are within the reg.12(4) exception, once these communications had been sent to the Secretary of State for consideration they ceased to be internal. The tribunal held that the appellant's desire to avoid disclosure of the advice of civil servants to the Secretary of State on what would have been one of the most consequential decisions he would take on the basis that in the future they may be inhibited and less candid ‘pays little regard to the sophistication and integrity of civil servants’. As the decision was never taken, any future applications would be different and its considerations would not be prejudiced by revealing how the intricacies of this application were unpicked.
Jobling v Information Commissioner [2024] UKFTT 163 (GRC)
The appellant had requested information from the London Borough of Richmond upon Thames Council relating to pre-application advice for any proposals for work that required planning permission at Udey Park. The Council had refused to disclose the information in reliance on reg. 12(5)(d) (confidentiality of proceedings) and reg. 12(5)(e) (commercial or industrial information) Environmental Information Regulations 2004. The tribunal held that the Council was not entitled to rely on this exception. Pre-application is a voluntary service and expressly stated as not providing a guarantee that the proposed development will receive planning permission. It did not involve the exercise of any decision-making powers. The tribunal also held that it was not satisfied that disclosure would adversely affect any confidentiality of a legitimate economic interest and reg. 12(5)(e) did not apply. The tribunal ordered the Council to disclose the requested information within 35 days.
Herman v Information Commissioner [2024] UKFTT 132 (GRC)
This case concerned a request for information from the Council in relation to the mishandling of a planning application. The court confirmed that there was a high threshold for the test for ‘manifestly unreasonable’ in the Environmental Information Regulations 2004. It held that the Council and Information Commissioner had paid ‘scant regard’ to the factors listed in the Information Commissioner's guidance relating to burden, purpose, motive of request and harassment of staff. Instead, the Council appeared to have rushed to a conclusion that the request was manifestly unreasonable based on its own manifestly unreasonable interpretation of the request and the fact that the appellant responded quickly. The tribunal found that the Council had contributed to the burden, that there was undoubted serious value to the request, that the appellant was not motivated by any desire to misuse the statutory regime, and there was no evidence of harassment. It held that the request was clearly focused on putting into the public domain the accounts of individuals closely involved with a significant and expensive error in the handling of a planning application relating to a significant development and there was a value to the public in the request. The tribunal ordered that the information be disclosed.
Masterman v Information Commissioner [2024] UKFTT 289 (GRC)
The appellant appealed against the Information Commissioner's decision that Brighton and Hove City Council was entitled to rely on s. 40(2) Freedom of Information Act 2000 (third party information) to refuse to disclose information requested relating to licence conditions for a House in Multiple Occupation. The tribunal found that the information requested was environmental information and therefore the request for information ought to have been dealt with under the Environmental Information Regulations 2004. The tribunal held that the information sought did constitute personal data but that as there is a statutory requirement for local housing authorities to publish a summary of HMO licensing conditions, the data subject (the landlord) must have anticipated that the licence conditions would be published by the Council. It rejected the Council's argument that because a breach of licence conditions is a criminal offence this rendered the conditions ‘private’ or ‘personal’ information. It concluded that the disclosure of the information was necessary for the purposes of legitimate interests of the appellant as occupier of a neighbouring property and the owners and occupiers of other nearby properties, occupiers of the HMO itself, and members of the public, and these legitimate interests were not overridden by the interests, fundamental rights and freedoms of the landlord. The tribunal therefore allowed the appeal and directed the Council to disclose the requested information.
Hogg v Information Commissioner [2024] UKFTT 110 (GRC)
The appellant appealed against the Information Commissioner's decision that Defra was entitled to rely on s. 35(1)(a) Freedom of Information Act 2000 (formulation or development of Government policy) to refuse to disclose information relating to All-Party Dog Advisory Welfare Group's contact with the head of animal welfare at Defra. The tribunal concluded that it was satisfied that the requested information was necessary to ensure the purpose of the proceedings relating to a review of Lucy's Law was not defeated. Although relevant legislation had already been enacted, there was ongoing policy development and an ongoing review of the legislation. The tribunal held that in these circumstances the arguments regarding the need for a ‘safe space’ to communicate internally were strong and that the public interest in maintaining the exception outweighed the public interest in disclosing the information. It confirmed the notice and dismissed the appeal.
Sharp v Information Commissioner [2024] UKFTT 290 (GRC)
The complainant requested information consisting of communications and meeting records from Herefordshire Council relating to a planning application for a dwelling on amenity grassland. The tribunal held that the Council was entitled to withhold information under reg. 12(4)(e) Environmental Information Regulations 2004 (internal communications) but was not entitled to withhold an email from the ward councillor. It held that although there was a clear public interest in transparency regarding matters such as this, where there were potentially issues of bias, prejudice and predetermination in the Council's treatment of the planning application, whilst the matter remained live the public interest in maintaining the exception outweighed the public interest in disclosure other than in relation to one email from the ward councillor asking for an update.
Water
Godding v Secretary of State for the Environment, Food and Rural Affairs [2024] UKFTT 172 (GRC)
The appellant appealed the Secretary of State's notice proposing to include Lower Battlescombe Farm as a relevant holding that fell within a nitrate-vulnerable zone. The tribunal allowed the appeal. It held that although no expert evidence had been provided that directly opined on where the appellant's land drains, the scale and expense of obtaining such evidence rendered it unlikely and impractical. It held that on the evidence it was sufficiently likely that the land drained into surface water rather than the vulnerable groundwater and that expert evidence was not needed to discharge the appellant's burden of proof.
Lavis v Secretary of State for Environment, Food and Rural Affairs [2024] UKFTT 196 (GRC)
The appellant appealed the Secretary of State's notice proposing to include his land as a relevant holding within a nitrate-vulnerable zone on the grounds that no water drained from his land. The appellant failed to provide any evidence to support his case and the tribunal was satisfied with the reasoning and evidence of the respondent that the water from the appellant's land did drain into the nitrate-vulnerable zone concerned.
Towse v Secretary of State for Environment, Food and Rural Affairs [2024] UKFTT 174 (GRC)
The appellant appealed against the Secretary of State's notice proposing to include his land as a relevant holding withing a nitrate-vulnerable zone on the grounds that the nitrate-vulnerable zone concerned should never have been classified as such. The appellant also argued that the designation was against his human rights. The tribunal recognised that there were shortcomings in the way in which the Environment Agency approaches nitrate pollution, but the appellant had failed to show how the Environment Agency ought to have approached its task differently. It found that the Secretary of State was entitled to rely on its assessment and identify the relevant water as polluted and dismissed the appeal. The tribunal held that the appellant had put forward to argument capable of raising an arguable human rights case but that any engagement of art. 1 of protocol 1 to the European Convention on Human Rights was justified by the need to prevent and control nitrate pollution.
Ball v Information Commissioner [2024] UKFTT 129 (GRC)
The appellant had requested information from Hinckley and Bosworth Borough Council relating to noise emanating from a racing circuit, specifically an acoustic report and the policy that it was to guide. A noise abatement notice (NAN) had previously been served on the owner of the racing circuit pursuant to pt. III Environmental Protection Act 1990. The Council refused the request for information in reliance on reg. 12(5)(b) Environmental Information Regulations 2004. The tribunal held that reg. 12(5)(b) had not been engaged, in relation to which the test is that the disclosure ‘would adversely affect’ the course of justice and the Information Commissioner had fallen into the error of applying the test ‘would be likely to adversely affect’. The Council had failed to identify what enforcement abilities would be undermined by disclosure. The tribunal also held that, in any event, disclosure of the information would provide transparency and accountability in relation to the Council's approach to investigating compliance with and enforcement of NAN and that there was a strong public interest in this.
Callister v Information Commissioner & Westmoreland and Furness Council [2024] UKFTT 00094 (GRC)
The appellant appealed against the Information Commissioner's decision that Cumbria County Council was entitled to refuse to disclose information requested about discussions relating to a drainage and wetlands scheme on the basis that it did not hold the information. The tribunal found that on the balance of probabilities, the Council did not hold the information requested. It found that although the Council had taken a narrow view of the request and could also have sought clarification from the appellant, it was a permissible interpretation of the request. It also found that the Council had conducted adequate searches for the requested information and therefore reg. 12(4)(a) Environmental Information Regulations 2004 applied and the Council was entitled to refuse to disclose the information. The appeal was dismissed.
Affinity Water Limited v High Speed Two Limited [2024] EWHC 687 (TCC)
The claimant water company is one of the utility companies whose apparatus comes into contact with HS2 and it applied for summary judgement in relation to its claim against the defendant. The claimant contended that the contractual arrangements in place between the parties required the defendant to pay for the diversion of a large water main vested in the claimant due to the risk of damage to it from the defendant's tunnel boring machines. The court held that on a reading of the contractual information, there was a realistically arguable case that there was no contractual obligation to divert the main and that there was a dispute on at least some of the evidence. The court therefore held that this was not a matter that was suitable for summary disposal.
Alistair Trotman v Environment Agency [2024] EWHC 825
The claimant had been prosecuted by the Environment Agency and found guilty of two charges under Byelaw 49(a) Thames Navigation Licensing and General Byelaws 1993 and two charges under s. 84 Thames Conservancy Act 1932 relating to remaining in a lock for longer than necessary for the convenient passage thereof. The court in this case held that: (i) the Environment Agency was entitled to prosecute the claimant without first issuing a fixed penalty; (ii) one composite penalty was liable to be paid irrespective of the length of the breach and this was not an offence where a daily rate of penalty was payable; (iii) the charges were not invalid for failing to specify whether the vessel was in a lock, channel or cut; (iv) the question of what is necessary for convenient for passage was an objective question and not for the vessel-owner to decide; (v) s. 83 did permit the harbour-master to compel someone to move their boat notwithstanding their unwillingness to do so; (vi) the Environment Agency was able to claim prosecution costs pursuant to s. 18 Prosecution of Offences Act 1985; (vii) the magistrates’ court had erred in its approach to proportionality in relation to the prosecution costs awarded as it had not considered the relationship between the fine and the prosecution costs. The court reduced the sum awarded from £20,591 to £12,000.
Nuisance
Chaudry v Hyndburn Borough Council [2024] UKFTT 156 (GRC)
The appellant (who had limited English) appealed against a fixed penalty notice served under part II Environmental Protection Act 1990. The notice alleged that the appellant had failed to comply with her requirement under s. 46 to place her household waste at the designated collection point and that this caused a nuisance and was detrimental to the amenities in the locality. The tribunal concluded that there was insufficient evidence that the relevant policies on the placement of household waste had been brought to the attention of the appellant. Although it was satisfied that a waste guide had been delivered to the appellant's property, the guide had been presented in pamphlet form and the appellant had limited English. It found that she threw it away without reading it or having it translated (as was usual for her with leaflets and pamphlets). It held, therefore, that there had been no effective service of the s. 46 requirement. In relation to the formal written warning that preceded the penalty notice, this had been received by the appellant, but only 2 weeks before she was served with the penalty notice. In the absence of any previous s.46 notice and the appellant's need to have the documents translated, it was understandable that there was a delay before she realised what was required of her. Furthermore, the residents in her street had a different waste collection scheme to most other residents and the appellant thought that she was doing no wrong by continuing to do what she had always done. The tribunal therefore found that the appellant had a reasonable excuse not to comply with the Council's requirement.
Pincus v Singh [2024] EWHC 502 (Ch)
The claimant applied for an injunction ordering a landowner to restore a demolished concrete platform over which he had a right of way. The right of way entitled him to use the platform to access an entrance to his commercial premises and the demolition of the platform disrupted this access. The court held that although the claimant had let his premises to a commercial tenant and was therefore not in possession of the land, he retained the right to a claim in nuisance as a reversioner. It held that the damage to the right of way was ongoing and would persist until addressed, potentially damaging the reversion, and was therefore actionable. The court also held that the demolition of the platform and its defective reconstruction was a sufficient infringement of the claimant's right of way to amount to a nuisance: his preference for having the whole width of the ramp to take goods to the building entrance was neither unreasonable nor perverse and the remedial works had left a trip hazard that was an obstacle to moving heavy goods over the ramp. However, the court found that the claimant had abandoned the application for an injunction in a letter submitted with an earlier application for default judgement of a damages claim which stated that he was content not to pursue non-monetary aspects of the claim. The claim was therefore dismissed.
Valero Energy Ltd v Persons Unknown [2024] EWHC 134 (KB)
The claimant was a large petroleum group that owned or had a right to possession of eight sites. The defendants were people connected with the organisations Just Stop Oil, Extinction Rebellion, Insulate Britain and Youth Climate Swarm which seek to disrupt the petrochemical industry. The court granted an injunction for five years, subject to annual review, against named defendants and unknown protestors to prevent them from trespassing on the sites and causing public and private nuisance by obstructing access to the sites. It found that the claimant had a good cause of action and fully justified fears that they faced a high risk that the defendants would commit trespass and nuisance. It held that any defence asserting that the final injunction amounted to a breach of the defendants’ rights under art. 10 and art. 11 European Convention on Human Rights would be bound to fail as trespass and criminal damage on the claimant's land is not justified by those articles. It held that the balance of convenience and justice weighed in favour of granting the final injunction and there were compelling reasons to protect staff and visitors at the sites from the potential harm caused by an explosion due to tortious activities of a protestor with a mobile phone or lighter. The court concluded that damages would not be an adequate remedy.
Environmental impact assessment
R (on the application of Boswell) v Secretary of State for Transport [2024] EWCA Civ 145
The appellant appealed against the dismissal of his application for judicial review of the Secretary of State's decision to grant development consent for three road improvement schemes designated as nationally significant infrastructure projects. The appellant argued that the Secretary of State had breached the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 by failing to conduct any lawful cumulative assessment of the combined carbon emissions from the three schemes. In his decision letter, the Secretary of State had concluded that there was no ‘appropriate manner’ in which cumulative greenhouse gas emissions from each scheme could usefully be modelled and taken into account separately from the elements of cumulation that were already inherent in the use of an affected network that included the other proposed schemes. The court found that the Secretary of State's approach to the assessment of cumulative carbon emissions was not unlawful and/or in breach of the Regulations. He had clearly addressed his mind to the question of cumulative effects. Carbon emissions had no geographical boundary and their impact could not be confined to the local area but was felt uniformly across the globe. It was this special character that led the Secretary of State to conclude that the only meaningful comparator for the cumulative effects of carbon emissions from the proposed schemes was the national carbon budget. Furthermore, the Regulations did not positively require the Secretary of State to perform a wider assessment of the cumulative emissions from each scheme. The requirement in sch. 4, para. 5(e) that the environmental statement includes a description of the likely significant effects of the development resulting from the cumulation of effects with other existing and/or approved projects was adequately discharged by National Highways using the affected road network data to measure the impact of emissions from each scheme in its local context when compared with national carbon budgets. The court also held that the Secretary of State's decision was not irrational and he had provided adequate reasons for not carrying out a separate cumulative assessment. The appeal was dismissed.
R (on the application of BW Farms Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 217 (Admin)
The claimant applied for judicial review of the Secretary of State's decision that an application to develop a site by making internal alterations to existing livestock buildings required an Environmental Impact Assessment. The Secretary of State had concluded that the uncertainty over the cumulative impacts on odour exposures and ammonia deposition meant that he could not reasonably conclude that there was no likelihood of significant effect. The tribunal dismissed the claimant's argument that the Secretary of State had erred in considering the application as for change of use rather than operational development and held that there was no error of law in his decision that the development was EIA development.
R (on the application of Pennine House Ltd) v Bradford MDC [2024] EWHC 608 (KB)
The claimant applied for judicial review of the Council's decision to carry out landscape works to the highway on which its property was located. The development was capable of being permitted development under sch. 2, pt. 9 Town and Country Planning (General Permitted Development) (England) Order 2015 provided that the Council had adopted a screening opinion that it was not EIA development within the meaning of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017. The court held that the screening opinion that the landscaping works were not EIA development was fundamentally flawed. It made repeated references to the impacts being capable of being controlled by planning conditions but it would not be possible to impose such conditions if the works were permitted development. The requirements of the Order had therefore not been satisfied and the works were therefore found to be unlawful. Furthermore, the screening opinion was issued when the works were actually commencing, indicating that the Council had failed to apply its mind to the need to go through the pre-conditions for establishing whether the works were permitted development.
Planning
Rye v Secretary of State for Levelling-up, Housing and Communities [2024] EWHC 358 (Admin)
The claimant sought statutory review under s. 288 Town and Country Planning Act 1990 of the decision to grant planning permission for the conversion and extension of an existing building and barn to form 5 aparthotel suites, a field study centre and tap room, and detached dwelling within the South Downs National Park. The claimant argued that the planning inspector was under the mistaken belief that some of the trees which were to be retained on the site had not been felled. The court held that the planning inspector had been under a misapprehension as to the trees proposed to be retained and that this mistake played a material part in her decision. The court therefore concluded that the decision was unlawful and must be quashed.
R (on the application of Save Stonehenge World Heritage Site Ltd) v Secretary of State for Transport [2024] EWHC 339 (Admin)
The court refused the claimant's application for permission to apply for judicial review of the Secretary of State's decision to re-grant a development consent order for the construction of a new dual carriageway and tunnel at Stonehenge. The original development consent order had previously been quashed and the court in this instance found that there had been no error of law in the Secretary of State's redetermination of the application for consent.
Lullington Solar Park Ltd v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 295 (Admin)
The claimant applied under s. 288 Town and Country Planning Act 1990 for statutory review of the planning inspector's decision to dismiss its appeal under s. 78 against the local authority's refusal of planning permission for solar farms. Approximately half of the site contained the best and most versatile (BMV) agricultural land. The claimant argued that the inspector's approach was contradictory as he had accepted that it was not practicable or reasonable to fully investigate every possible location for a solar farm within the area or incumbent on appellants to demonstrate that there are no alternatives to the application site. However, he had also concluded that the assessment was deficient because no soil investigation was completed other than on the appeal site. The claimant argued that this effectively imposed on him the need to show soil surveys outside the appeal site in the absence of power to enter the land of others. The claimant also submitted that the inspector had failed to properly consider the Lanpro map, which was a material consideration. The court held that the high threshold of irrationality had not been made out. The inspector had to make a judgement as to the competing benefits and harms of the development. In doing so, he came to a different conclusion to the local authority but it was a conclusion that he was entitled to come to.
R (on the application of Suffolk Energy Action Solutions SPV Ltd v Secretary of State for Energy Security and Net Zero [2024] EWCA Civ 227
The appellant appealed against the dismissal of its claim for judicial review of the defendant's decision to grant development consent orders (DCOs) for two offshore windfarms. The DCOs authorised the compulsory purchase of land needed for onshore works and the majority of the landowners signed heads of terms that included a clause that they would not oppose the DCO applications and would withdraw any objections already made. The court held that the use of non-objection clauses was permissible and that whether a non-objection clause had in fact meant that there was insufficient information to enable an informed and lawful decision to be made on the application for planning permission always had to be a fact-specific inquiry. In this case, the fact that 39 out of the 55 landowners did object, notwithstanding the non-objection clauses, supported the finding by the Secretary of State that it had before it all the necessary information to make a proper decision. The court dismissed the appeal.
Environmental damage
King Berebon v Shell Petroleum Development Co of Nigeria [2024] EWHC 276 (TCC)
The claimants in proceedings relating to two oil spills in Nigeria applied for restoration of claims that had been the subject of an extended stay since 2014. The claimants represented residents of a community onto whose land oil had spilt in 2008 and who were seeking compensation and a mandatory injection requiring the defendant to carry out clean-up and remediation (or damages in lieu). The court granted the application and directions were given for trial. The defendant's application for the restoration to be dismissed and/or that the claim be struck out because the clean-up process was substantially complete was refused as the claims did not amount to an abuse of process and were not bound to fail. The doctrine of the act of state did not apply to adjudicate on the lawfulness or validity of state actors.
Archaeological features
Natural England v Cooper [2024] EWHC 625(KB)
This case concerned an application by Natural England for an injunction under the Environmental Impact Assessment (Agriculture) (England) (No 2) Regulations 2006 for failure to comply with a stop notice to protect archaeological features on the defendant's farmland from harm from cultivating fields. The defendant argued that restraining him from cultivating the land was an infringement of his rights under his tenancy and contravened his human rights. The court held that neither the 2006 Regulations nor s. 12 Natural Environment and Rural Communities Act 2006 support a power in Natural England to bring civil proceedings. It did, however, state that as the defendant's right to peaceful enjoyment of property is expressly made subject to the public interest, any conditions provided by the law and any laws controlling the use of that property in the general interest and the grant of injunctive relief would not have breached any of the defendant's human rights.
Climate change
Aermec UK Limited v Environment Agency [2024] UKFTT 242 (GRC)
Aermec UK Ltd appealed against a civil penalty of £143,975 served on it by the Environment Agency under reg. 31A Flourinated Greenhouse Gases Regulations 2015 for breach of art. 14(1) of the Regulations which prohibits organisations from placing refrigeration, air conditioning and heat pump equipment pre-charged with hydrofluorocarbons on the market unless sufficient quota authorisations had been obtained. The court found that as the appellant had taken reasonable steps to try to comply, did not stand to benefit financially if no penalty were imposed, and did hold some unused quota, the circumstances permitted the EA to exercise the discretion afforded to it in its Enforcement and Sanctions Policy to not impose a penalty. The tribunal held that it was ‘entirely satisfied that it would be unreasonable to impose a penalty’. The tribunal did, however, make it clear that this decision should not be misunderstood as finding that inadvertent errors or ignorance of legal responsibilities will commonly amount to justification for imposing no penalty.
Tool-Temp Limited v Environment Agency [2024] UKFTT 293 (GRC)
Tool-Temp Limited appealed under sch. 5, paras. 4(2)(a)(iv) and 4(2)(b) Flourinated Greenhouse Gas Regulations 2015 against the penalty imposed by the Environment Agency for failure to obtain sufficient hydrofluorocarbon quota authorisations before placing HFCs on the market as required by art. 14(1) EU Regulation 517/2014 on fluorinated greenhouse gases. The tribunal concluded that the Environment Agency's decision to serve a penalty notice was unreasonable. It held that the Environment Agency had failed to consider E2.2 of its Enforcement and Sanctions Policy which states that it may not impose a civil penalty where punishment or future deterrent is not necessary. It found that Tool-Temp Limited's breach was minor and inadvertent, that the punishment would serve no useful purpose and was disproportionate, and that Tool-Temp Limited did not need punishment or future deterrent. The tribunal also held there were significant mitigating factors and the penalty, if it were to be applied, should have been at the bottom end of the range. It held that if a penalty were necessary, the appropriate sum would have been £500 and the amount specified in the penalty notice was therefore unreasonable.
Plastic Omnium Automotive Limited v Environment Agency [2024] UKFTT 148 (GRC)
The appellant appealed against the notice served by the Environment Agency requiring the appellant to pay a buyout fee to continue to receive the benefit of energy bill reductions under its climate change agreement scheme. The buyout fee was required under the Climate Change Agreements (Administration) Regulations 2021 on the basis of the appellant's failure to meet its targets under the scheme. The appellant argued that the decision to impose a buyout penalty was unreasonable because the appellant had only been prevented from meeting the required targets by international events beyond its control. The tribunal concluded that its powers did not include the discretion to reduce the amount of fee on the basis of this argument as the Environment Agency did not have any such discretion when settling the original buy out fee. The appeal was dismissed.
EU CASE LAW
Judgement of the Court (Sixth Chamber) of 14 March 2024.
In this case, the court declared that the Kingdom of Spain has failed to fulfil its obligations under Article 3(4) of Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources, as amended by Regulation (EC) No 1137/2008 of the European Parliament and of the Council of 22 October 2008, Article 5(4) of that directive, as amended, read in conjunction with Annexes II and III thereto, and Article 5(5) of that directive as amended. This was as a result of not designating as vulnerable zones in the Comunidad Autónoma de las Islas Baleares (Autonomous Community of the Balearic Islands, Spain), in the Comunidad de Madrid (Community of Madrid, Spain) and in the Comunidad Valenciana (Community of Valencia, Spain) the water catchment areas by run-off (surface water) or seepage (groundwater) corresponding polluted measuring points and by failing to include all the necessary mandatory measure in the action programmes of the Comunidad Autónoma de Aragón (Autonomous Community of Aragon, Spain), the Comunidad Autónoma de Castilla-La Mancha (Autonomous Community of Castilla-La Mancha, Spain), the Comunidad de Castilla y León (Autonomous Community of Castilla y León, Spain), the Comunidad Autónoma de Extremadura (Autonomous Community of Extremadura, Spain) and the Community of Madrid. Further, the Kingdom of Spain failed to take the additional measures or reinforced actions required with regard to nitrate pollution in the Autonomous Communities of Aragon, Castilla-La Mancha, Castilla y León and the Comunidad Autónoma de la Región Murcia (Autonomous Community of the Region of Murcia, Spain).
https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri = CELEX:62022CJ0576
CONSULTATIONS
NEWS AND MISCELLANEOUS
“Switzerland's climate failures breached human rights, top court rules”, Politico, 9 April 2024
Switzerland violated its citizens’ human rights by failing to protect them from climate change's catastrophic effects, Europe's top human rights court said in a ruling expected to reverberate across future lawsuits.
“Chris Stark: Rishi Sunak has set us back, head of climate change watchdog says” BBC News, 20 April 2024
Chris Stark, head of the Climate Change Committee (CCC), told the BBC the prime minister had ‘clearly not’ prioritised the issue as much as his predecessors.
“Water extraction and weight of buildings see half of China's cities sink”, BBC News, 18 April 2024
Nearly half of China's major cities are sinking because of water extraction and the increasing weight of their rapid expansion, researchers say.
“Climate change: Deadly African heatwave ‘impossible’ without warming”, BBC News, 18 April 2024
A deadly heatwave in West Africa and the Sahel was ‘impossible’ without human-induced climate change, scientists say. Temperatures soared above 48C in Mali last month with one hospital linking hundreds of deaths to the extreme heat.
“‘Children won’t be able to survive’: inter-American court to hear from climate victims”, The Guardian, 22 April 2024
Historic hearing will receive submissions from people whose human rights have been affected by climate change. The inquiry was instigated by Colombia and Chile, which together asked the court to set out what legal responsibilities states have to tackle climate change and to stop it breaching people's human rights.
“Europe must do more to adapt to climate change, says EU environment agency”, Euractiv, 11 March 2024
The European Environment Agency's European Climate Risk Assessment aims to identify climate-sensitive sectors and the political priorities for adapting to climate change. According to the assessment, adaptation policies and measures in Europe are not sufficiently reactive to the rapidly increasing environmental risk.
“World's first year-long breach of key 1.5C warming limit”, BBC News, 8 February 2024
For the first time, global warming has exceeded 1.5C across an entire year, according to the EU's climate service. World leaders promised in 2015 to try to limit the long-term temperature rise to 1.5C, which is seen as crucial to help avoid the most damaging impacts.
“‘Red alert’ after key global warming records were smashed in 2023”, New Scientist, 19 March 2024
Not only was 2023 the hottest year ever recorded, many other key indicators of global heating, such as sea level rise, ocean heat, Antarctic Sea ice loss and glacier retreat, also smashed records, according to the World Meteorological Organization's (WMO) latest State of the Global Climate report.
“Caribbean Sea sponges indicate faster than expected global warming, study says”, Financial Times, 5 February 2024
Changes in the chemistry of Caribbean Sea sponges suggest a breach of the 1.5C rise in the long-term global average temperature has occurred sooner than expected, according to new research that has sparked fierce debate. The potentially critical threshold could be reached by the late 2020s, according to the projections based on 300 years of ocean records and published in Nature Climate Change on Monday.
https://www.ft.com/content/3ddedc2d-bf77-4208-8a0b-3544399fe267