Stop the spin

David Hart QC | 11 years ago

The ticklish question of how to come up with a cheap but effective form of environmental judicial review still has not been answered.

One way talked about at a recent seminar on environmental tribunals (see John Jolliffe’s post of today) is to use the environmental part of the new tribunal system, and have judicial reviews heard by judges sitting there. As John noted, the advantage to claimants is that there is a general practice in the part of the tribunal dealing with land disputes that costs are not awarded against them if they lose – unless they have been thoroughly unreasonable.

This at a stroke would solve the Aarhus problem which has been sitting in the governmental in-tray for some years now, and has been showing no sign of going away – not least because the Aarhus Compliance Committee and the European Commission are concerned that the current system is “prohibitively expensive” and thus in breach of Article 9(4) of the Aarhus Convention. 

There are then the additional advantages of the tribunal system, including specialist planning/environmental judges and a more flexible procedure, including drawing in non-lawyer experts if the case requires it.

Planning – who can challenge?

Resort to the tribunal for planning or enviromental judicial review would be for all parties, whether individual local objectors or the rival superstore in a Tesco v Sainsbury clash of the titans – where there is less pressing need for the costs rules to be modified. Many of these judicial reviews are addressed at the grant of planning permission by the Local Planning Authority, because this is the only potential remedy against such a grant. Whereas the developer has a statutory right of appeal to a Planning Inspector against refusal, the objector has no appeal. This means that the developer can appeal on the merits, whereas the objector cannot and hence has to find some error of law in the determination by the LPA capable of being judicially reviewed.

Environmental permits – who can appeal?

The closely related question arises: how do you best determine challenges to the grant of an environmental permit (say, to run a chemical works or a landfill)? Again there is no statutory appeal by objectors, but there is frequent recourse to the Administrative Court by those who feel that their concerns have not been properly dealt with by the regulators.

Put the appeal avenue in the legislation, perhaps

So what about a variant of the current planning system? Instead of a system where only the developer can appeal, and the objector has to go to the trouble and expense of finding an error of law so it can be taken to judicial review, it should be possible to create an easier route via the relevant legislation. Create a statutory right of appeal at an early stage,  from the grant of planning permission, so that instead of running through the whole judicial review system, the objector has a fast-track to the tribunal, for hearing either by judges or planning inspectors, depending on what the appeal is about. Keep the 3 month rule for commencement of proceedings. And create exactly the same appeal against the grant of the main environmental permits.

Now this may appear to be entirely unacceptable to those developers who already complain about the delays of the planning/permitting system, but it need not be. Because this way there would be an opportunity to set out the permissible grounds of appeal, and limit those to something approaching the current scope of judicial review. Also, the advantage of experienced planning/environmental decision-makers is that they can spot the wheat from the chaff at an early stage, and developers might actually find that this system improves the speed in which the hopeless challenge gets ultimately determined in their favour. There is no need for the tribunal to be hidebound by the procedures of either the Administrative Court or indeed the Planning Inspectorate.

What would be the grounds of appeal?

I think it is overly ambitious to expect a full-blown merits appeal in all cases. These grounds of appeal would hardly open the floodgates:

  1. the Local Planning Authority accepted a manifestly inadequate Environment Statement as part of its Environmental Impact Assessment or
  2. the LPA granted permission contrary to the provisions of the development plan

Another ground of appeal might be salutary – the applicant had provided manifestly inadequate disclosure to the LPA or the public concerning the project. This leads me on to another hobbyhorse. Unlike in almost all litigation, there is no provision for disclosure in planning applications or, for that matter, on planning appeals.  This means that the developer can put his best foot forward in what he says,  and in particular, in the documentary evidence he produces or chooses not to produce, and neither the LPA nor the planning inspector can order him to do so.Obviously the LPA can put pressure on a developer to produce material in an attempt to obtain permission, but the objector has almost no chance of getting hold of material unless it comes into the hands of the LPA. Hence the point of my suggested ground of appeal; a cards-on-the-table stance by the developer at the pre-permission stage will assist in limiting any grounds of appeal.

The duty of an expert witness

In all other civil cases, an expert owes a duty to the court to help it, which overrides his duty to his client.  The duty owed by an expert witness in planning cases, on the contrary, is solely to his client.  This is another reason why developers should have to provide all the underlying data their investigations have revealed, not simply the convenient bits.

Critical factual issues

There is another ground of judicial review which needs including in the list. As the judge pointed out in Buglife (see my previous blog), the Administrative Court is now obliged to determine “antecedent factual conditions precedent”, that is, factual issues which necessarily underpin the decision in question. Indeed one example the judge gave was of the defective Environmental Statement I touched on above; see for another non-planning example Rosalind English’s post on a case concerning the assumed infection of a pedigree bull with TB). In the right case, and I certainly do not suggest that there will be a huge volume), there could be room for determinations of fact by the tribunal.

Environmental Permitting Appeals

Similar considerations should obtain in a statutory appeal against the grant of ane environmental permit. Make the basis of this appeal no narrower than judicial review, but define the grounds so that ordinary people can at least attempt an appeal without having to read public-law textbooks before they do so.

One might disagree at the edges, but the principle of creating a rather more ordered system of appeals might not actually do anyone any harm in the end.

David Hart QC practices in environmental law, professional negligence, construction and medical law. This post was first published at ERIC Ltd is very grateful for his permission to reproduce it here.

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