SWEET AND MAXWELL CONFERENCE 2008

11 December 2008

Environmental Case Law Review

JUSTINE THORNTON justine.thornton@39essex.com

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Substitute fuels, EIA, and procedural requirements in PPC permitting process R. (Edwards) v Environment Agency (No.2) ([2008] UKHL 22) concerns the granting of a Pollution Prevention and Control ("PPC") permit by the Environment Agency under the PPC Regulations 2000 (S.I. 20000/1973) to burn shredded and chipped tyres as a partial substitute fuel in cement kilns. The grant was challenged by judicial review by a local resident living in the vicinity of the cement works in Rugby. Although the requisite notice and advertisement requirements were complied with prior to the grant of the PPC permit, the claimant argued that the Agency had failed unlawfully to disclose sufficient information on the impact of particulates emitted from the proposed installation. The Agency had two internal reports which considered the details of a desktop study of the effects of atmospheric emissions, especially from particulates, from the cement works. Neither of these was disclosed to the public as part of the statutory consultation exercise. The claimant argued that: the Agency had failed to assess the impact from the emission of particulates from the site; the switch to the tyres as a substitute fuel was capable of being a “project” which in relation to which the need for an Environmental Impact Assessment should have been considered; the permit application was so deficient in detail about the environmental impact of atmospheric emissions that it had not passed the threshold of being a proper application for a PPC permit; the failure to disclose the reports as part of the public consultation exercise had been unfair and rendered the procedure unlawful; and the Agency had misunderstood the internal reports on the effects of particulates emissions and that no reasonable authority would have issued the permit if it had understood the report properly. The judge, and the Court of Appeal, accepted the lack of full consultation point, but refused relief as a matter of discretion. The other points were rejected. The case has now been the subject of an appeal by the claimant to the House of Lords. He argued that (i) that the proposal amounted to a project falling either in Annex I or Annex II to Directive 85/337; (ii) the Environment Agency had been required by the IPPC Directive and by the PPC Regulations 2000 to undertake public consultation, as well as having a common law duty to do so as a body exercising public functions. The appeal was dismissed. On the EIA point, the majority of House of Lords found that the change in fuel could not amount to an Annex I project, as it was not the creation of something new, as opposed to a change in the way in the way the existing works were used.This finding meant that the proposal did not fall into Annex II of the EIA Directive. That said, the House of Lords acknowledged that they would have been inclined to refer the matter to the European Court of Justice as the matter was not acte clair, had they not gone on to decide that the information in fact provided complied with the provisions of the EIA Directive. Lords Brown and Mance thought that the change probably did amount to a “project” within the Directive, though agreed that there had been compliance with its terms even if

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the Directive was applicable. They thought that the term was rather more widely applicable that the majority would have it, and that the introduction of waste burning fell within the definition of “project”. Turning to the consultation point, the majority held that there been no breach of the IPPC Directive. The provision of information to the public was only required when there was a substantial change to an existing installation which may have “significant negative effects on human beings or the environment” under Art. 2.10(b) of the IPPC Directive. There was an unchallenged finding of fact by Lindsay J at first instance that the only change in operation proposed, namely the use of tyres, would not have such significant negative effect. The second argument concerned the PPC Regulations, the publicity requirements of which went further than the IPPC Directive because they applied to existing installations and required publication of formal supplementary inquiries and the information obtained in response to such inquiries. The majority held that there was no reason to imply a further requirement into the Regulations which excluded informal communication between an applicant and the Agency. It would be extremely inhibiting if the Agency ran the risk that its decision could be vitiated because an applicant was held to have communicated information that ought to have been the subject of a formal inquiry. Lords Mance and Brown disagreed on this last point. The last aspect of consultation, the duty of fairness at common law, was the one upon which the judge and Court of Appeal found a breach. This was not challenged by the Agency on appeal, though Lord Hoffmann doubted whether this concession was right in the light of the specific and narrower statutory provisions. All members of the House agreed that the lower courts were right in exercising their discretion not to quash the decision on this basis. They regarded it pointless to consult on what was out-of-data by the time the matter got to the courts. They rejected submissions based upon the EIA case of Berkely [2001] 2 AC 603 that it was wrong to refuse to quash such deficiencies in information. Environmental assessment of airport modifications The second case returns to the question of what does “project” means in the Environmental Impact Assessment Directive (85/337/EEC), prior to its amendment by Directive 97/11/EC. Indeed it was referred to briefly by Lord Mance in Edwards. In Case C-2/07 ‘Abraham and Others’, where judgment was handed down in February 2008, the issues arose out of compensation claims by residents living near to Liège-Bierset Airport in Belgium against the regional authority and others in relation to noise pollution. The claimants claimed that the noise pollution, often at night, resulted from the restructuring of the former military airport and its use since 1996 by air freight companies. An agreement between the defendants in 1996 had provided for certain modifications to the infrastructure of that airport in order to enable it to be used 24 hours per day and 365 days per year. In particular, the runways were restructured and widened and a control tower, new runway exits and aprons were also constructed. The length of the runway of

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3,297 metres was not altered, however. In that context the national court referred the following questions to the Court of Justice for a preliminary ruling:

“(1) Does an agreement between public authorities and a private undertaking, signed with a view to having that undertaking become operational at an airport with a runway more than 2 100 metres in length, featuring an exact description of work on the infrastructure to be carried out in relation to the adaptation of the runway, without its being extended, and the construction of a control tower with a view to permitting large aircraft to fly 24 hours per day and 365 days per year, and which provides for both nighttime and daytime flights with effect from the date on which the undertaking becomes operational at that airport constitute a project within the meaning of … Directive 85/337 …, as applicable before its amendment by … Directive 97/11 …?

(2) Do works to modify the infrastructure of an existing airport with a view to

adapting it to a projected increase in the number of night-time and daytime flights, without extension of the runway, correspond to the notion of a “project”, for which an impact assessment is required within the terms of Articles 1, 2 and 4 of … Directive 85/337 …, as applicable before its amendment by … Directive 97/11 …?

(3) Since a projected increase in the activity of an airport is not directly referred

to in the annexes to Directive 85/337 …, must the Member State in question nevertheless take account of that increase when examining the potential environmental effect of modifications made to the infrastructure of that airport with a view to accommodating that increase in activity?”

The ECJ found that an agreement such as the one at issue was not a “project” within the meaning of Directive 85/337, it being apparent from the wording of Art.1(2) that the term referred to works or physical interventions. An agreement could not, therefore, be regarded as a “project”, irrespective of whether it contained a more or less exact description of the works to be carried out. Although the point had not been raised, it was for the national court to determine, on the basis of the applicable national legislation, whether such an agreement constituted a “development consent” within the meaning of Art.1(2). It was necessary, in that context, to consider whether that consent formed part of a procedure carried out in several stages involving a principal decision and implementing decisions and whether account was to be taken of the cumulative effect of several projects whose impact on the environment had to be assessed globally. In a phrase which will have resonances for domestic planning law, the Court stated that “the objective of the legislation cannot be circumvented by the splitting of projects..” The Court had frequently pointed out that the scope of Directive 85/337/EEC was wide and its purpose very broad. It would be contrary to the very objective of Directive 85/337 to exclude works to improve or extend the infrastructure of an existing airport from the scope of Annex II on the ground that Annex I covered the “construction of airports” and

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not “airports” as such. Such an interpretation would indeed allow all works to modify a pre-existing airport, regardless of their extent, to fall outside the obligations resulting from Directive 85/337/EEC and would, in that regard, thus deprive Annex II of all effect. That interpretation was in no way called into question by the fact that Directive 97/11/EC had replaced point 12 with a new point 13, which expressly designated “any change or extension of projects listed in Annex I or Annex II, already authorised, executed or in the process of being executed …” as a “project” subject to Art.4(2), whereas point 12 had merely referred to “modifications to development projects included in Annex I”. The new wording merely set out with greater clarity the meaning to be given here to the original wording of the Directive. Point 12 of Annex II, read in conjunction with point 7 of Annex I, to Directive 85/337/EEC, in their original version, also encompassed works to modify the infrastructure of an existing airport, without extension of the runway, where those works may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself. That was the case in particular for works aimed at significantly increasing the activity of the airport and air traffic. It was for the national court to establish that the competent authorities had correctly assessed whether the works at issue in the main proceedings were to be subject to an EIA. The competent authorities had an obligation to take account of the projected increase in the activity of an airport when examining the environmental effect of modifications made to its infrastructure with a view to accommodating that increase in activity and so determining whether a project covered by point 12 of Annex II to Directive 85/337/EEC had to be made subject to an assessment of its impact on the environment. Habitats and Habitats Assessment R (Hart District Council) v. Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin). The Thames Basin Heath was classified as protected under the Birds Directive (a Special Protection Area (SPA) on the basis of the presence of nightjar, woodlark, Dartford warbler. Devlopers sought to develop land for residential housing about 1.5 km away from the SPA (at the nearest point). Natural England’s policy was to require an appropriate assessment (ie an assessment of the implications of the development project on the SPA) for residential development up to 5km from the SPA. This was on the basis of the potential for increased visitor pressure on the heathlands within the SPA. Natural England decided to take a stronger line as regards the “in combination effects” of multiple residential schemes on the SPA and to require the Provision of SANG (suitable alternative natural greenspace). An Improved package of measures offered by the developer was regarded by NE as showing the development was not likely to be significant effect on SPA and that no appropriate assessment was necessary The Inspector was sceptical that SANG would provide real alternative to use of SPA, and thought an appropriate assessment should be carried out. The view of the technical Assessor of the South East Plan, having regard to four QC opinions, was that AA required in law to comply with Waddenzee test (ie the decision of the ECJ in Case 127/02

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which considered the meaning of the words ‘likely to have a significant effect’ on a protected site as requiring an appropriate assessment of a plan or project if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects”). The Secretary of State for Communities and Local Government disagreed with the Inspector’s view, giving weight to NE’s views that could proceed without AA. The Secretary of State granted planning permission whereupon Hart District Council challenged the decision. One of the grounds of challenge was whether measures to mitigate the impact of a development on an SPA could be considered when deciding whether the proposed development was likely to have a significant effect on the SPA. Sullivan J held that mitigation measures could be considered at this screening stage and he dealt with the point at some length since, as he said, it was a point of general importance. In his view, the first question to be determined is what is the project which is proposed to be undertaken for which consent is sought? The competent authority is not considered the likely effect of some hypothetical project in the abstract. The exercise is a practical one which requires the competent authority to consider the likely effect of the particular project for which permission is being sought.

“If certain features (to use a neutral term) have been incorporated into that project, there is no sensible reason why those features should be ignored at the initial screening stage merely because they have been incorporated into the project in order to avoid or mitigate any likely effect on the SPA….Article 6.3 and Regulation 48(1) require the competent authority to consider whether the project, not some part of the project (shorn of any mitigating features incorporated within is) it likely to have a significant effect on the SPA”

The Waddenzee case was not decisive because no mitigating measures were put forward as part of the relevant project (a cockle fishing project) did not contain mitigating measures. Sullivan J noted that “There can be no dispute that the mere possibility that mitigation measures might be devised which might reduce the effect of a project on an SPA would not be sufficient to enable a competent authority to conclude, without an appropriate assessment, that the project would not be likely to have a significant effect on the SPA” Sullivan J referred to the ECJ in Waddenzee noting that there are similarities between Art 6(3) of the Habitats Directive and Art 2(1) of EIA Directive (Member States must ensure that certain ‘projects likely to have significant effects on the environment” are subjected to a process of environmental assessment”. EIA caselaw has established that there is no obligation to be blind to mitigating measures at screening stage of EIA, at least if those measures are plainly effective and uncontroversial: Gillespie v Secretary of State for Transport Local Government and the Regions and R(Catt) v Brighton and Hove City Council

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Sullivan J noted that AA does not, unlike EIA, have to be in any particular form and obtaining the opinion of the general public is optional. “Thus considering proposed mitigation measures at the screening stage under Article 6(3) would not be frustrating the purpose of the legislation by pre-empting any particular form of inquiry, which was the particular concern expressed by Laws LJ in Gillespie” Obstacle courses

“The underlying principle to be derived from both the Waddenzee judgment and the domestic authorities referred to above is that, as with the EIA Directive, the provisions of the Habitats Directive are intended to be an aid to effective environmental decision making, not a legal obstacle course,

Applying this principle to the case before him Sullivan J held that

“If having considered the ‘objective information’ …the [Secretary of State] as the competent authority was satisfied that the package put forward by the [developers] including the SANGs, would avoid any net increase in recreational visits to the SPA (thereby avoiding any increased disturbance to the Annex 1 bird species), it would have been ‘ludicrous’ for her to disaggregate the different elements of the package and require an appropriate assessment on the basis that the residential component of the package, considered without the SANGS, would be likely, in combination with other residential proposals, to have a significant effect on the SPA, only for her to have to reassemble the package when carrying out the appropriate assessment”

The fact that Regulation 48(6) refers to the manner in which it is proposed that the plan or project is to be carried out, or to any conditions or restrictions subject to which is it proposed that consent etc shall be given, does not mean that those matters may not be considered at the first stage under Regulation 48(1), if they are incorporated into the application for planning permission when the competent authority is deciding whether the project for which planning permission is being sought is likely to have a significant effect on the SPA. The Regulations in this regard reflect the reality that in some cases where AA is required, changes to the project or to conditions to be attached may occur after the assessment has been taken place. Failure to apply the Waddenzee test The second complaint by Hart District Council was that the Secretary of State and Natural England had failed to apply the Waddenzee test as they had merely considered whether a significant effect was likely rather than whether there was a risk of a significant effect. The judge did not accept this argument. To an English lawyer, a need to establish likelihood imposes a more onerous burden than a need to establish a risk. The concept of a ‘standard of proof’ is of little if

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any assistance in environmental cases, but the nearest analogy would be the difference between the balance of probability (more likely than not) and the real risk standards of proof. Since the ECJ’s decision in Waddenzee, it has been clear that, applying the precautionary principle, significant harm to an SPA is ‘likely’ for the purposes of Article 6 and Regulation 48 if the risk of it occurring cannot be excluded on the basis of objective information. Since the Waddenzee test is set out in Circular 06/2005, which was [incorporated into the Secretary of State’s decision letter] it is impossible to conclude that both the [Secretary of State] and [Natural England] did not appreciate the issue of likelihood had to be approached on the basis set out in Waddenzee” The Judge concluded that the Secretary of State was entitled to prefer the view of Natural England as to the absence of risk compared with the more cautious view of the inspector. Merely expressing doubt without providing reasonable objective evidence for doing so not sufficient to oblige the Secretary of State to accept that there were such doubts or that there was a risk of significant harm. It was important to appreciate that the Inspector was expressing her doubts on essentially the same objective information as had satisfied Natural England Nuisance and remedies In Watson & Others v Croft Promo-Sport Ltd [2008] EWHC 759 (QB), the Claimants sought an injunction and damages in relation to the use of land 300 metres from their homes as a motor circuit. Their claim was that the Defendant had wrongfully caused or permitted excessive noise of a loud, intrusive and repetitive nature for a period of years from the circuit, which operated for about 190-200 days each year. The injunctive relief sought was not to prohibit the use of the circuit entirely, but to restrict its use to what was said to be reasonable in terms of activities and days. The Defendant argued that the noise was what was to be expected in a locality whose nature and character had been established by planning permissions for the use as a motor circuit granted in 1963 and 1998, and by a section 106 agreement entered into in 1998 which constituted an enforceable planning obligation. Under the agreement, the defendant had agreed to an elaborate set of monitored restrictions for the benefit of those who would otherwise be affected by the circuit’s unrestricted use, which related to the types of activities and noise levels from those at the circuit. The parties agreed that the issues arising were (i) the nature and character of the neighbourhood relevant for the purposes of assessing the question of nuisance, in particular the effect of the planning permissions and unilateral agreement; (ii) whether the use of the land was unreasonable if the nature and character was not affected by the planning context; (iii) whether the claimants could be said to have “come to the nuisance”; (iv) whether the claimants had acquiesced in the infringement of their common law rights such that it would be unconscionable for them to be granted an injunction and/or damages; (iv) the nature of any relief which might be granted. Simon J found that a planning authority had no jurisdiction to authorise a nuisance, although it may have the power to permit a change in the character of a neighbourhood.

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The issue of whether a permissive planning permission had changed the character of the neighbourhood so as to defeat what would otherwise constitute a claim in nuisance, was a question of fact and of degree. It was more likely that a change in the character of a neighbourhood could be identified where there had been a “strategic” planning decision affected by considerations of public interest. In the present case it was clear that the circuit had been run for a number of years in a way that was consistent with the essentially rural nature of its neighbourhood. That essential character had not changed despite the gradual development of the circuit with an intensification of the level of noise. The planning permission was not determinative of the issue of private nuisance in such a case and what was essentially an administrative decision did not extinguish private rights without compensation. In the light of the evidence as to the intensity, frequency and duration of the noise it was clear that the defendant could not establish the defence of reasonable user. Whilst the defence of “coming to the nuisance” might work injustice, the law was clear and binding, short of the House of Lords, and it worked no injustice in the present case as the defendant could not show that the claimants had come to the nuisance with full knowledge of it, so that the defence failed. Acquiescence was an equitable doctrine under which equitable relief, whether by way of injunction or equitable damages would be barred on the ground that there had been delay coupled with matters which, in all the circumstances, made it unconscionable for a party to continue to seek to enforce rights that he had at the date of the complaint. If detriment was present it would usually lead the court to conclude that it would be unconscionable for a party to seek to enforce those rights. In the present case, there had been neither conduct nor inactivity by the claimants such that it would be unconscionable for them to continue to seek to enforce their rights and the defendant had not made out a defence of acquiescence so as to defeat the claimants’ equitable claims. However, the present case was not an appropriate one for the grant of an injunction. First, although falling short of giving rise to a defence of acquiescence, there had been considerable delay in bringing the proceedings. Secondly, the claimants had shown that they were prepared to be compensated for noise on up to 40 days. Whilst a willingness to compromise should not count against a party, a willingness to accept compensation instead of an injunction constituted a matter which counted against granting an injunction, as it demonstrated that the claimants could be compensated by the award of damages. Remedies available for nuisance An unsuccessful appeal has been made against a County Court decision rejecting a claim for account of profits for nuisance in the form of loss of a right to light. In ‘Forsyth-Grant v Allen & Another’ ([2008] EWCA Civ 505) the appellant was the owner of a hotel next to which the respondent had purchased land and had been granted planning permission to build two houses. The hotel owner opposed to the development and eventually issued proceedings in trespass and nuisance, including claims for an injunction and for an account of profits as a result of her loss of a right to light. The respondent had offered compensation for the loss of light and had been the party which had identified this as an

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issue. Damages were awarded in the County Court, but the claim for account of profits was dismissed on the grounds that the case was not an exceptional one which justified such an order. The judge held that in view of her unreasonable conduct an injunction would have been refused, so that damages should be assessed on the basis of actual loss in the form of capitalised reduced letting values of the hotel rooms, rather than the amount the developer might reasonably have negotiated. The hotel owner then appealed to the Court of Appeal on a number of grounds arguing that the County Court judge had been wrong in holding that an account of profits could only be awarded in exceptional circumstances. The Court of Appeal dismissed the appeal, finding that whilst in cases of trespass where the trespasser had made use of a claimant’s land the measure of damages was the value to the trespasser of the use of that land, in cases of nuisance the possibility of an award of damages on a restitutionary basis had been limited by ‘Stoke on Trent City Council v W & J Wass Ltd’ ([1988] 3 All E.R,. 394). The judge would have been entitled to reject the claim for an account of profits outright simply on the basis that it was not a remedy available in a nuisance action. Even if that was wrong then his acceptance that there was a need to show exceptional circumstances was not open to criticism. Given that the claimant had refused an invitation to bargain, as a matter of justice, she should not be entitled to any greater remedy than fair valuation for the loss which she actually suffered. There was no precedent for a claim for restitutionary damages on facts directly comparable to the present case. Nuisance and fear of damage rather than actual damage In Birmingham Development Co Ltd v Michael Jacob Tyler [2008] EWCA Civ 859, the Court of Appeal considered the principles of nuisance in the context of a property developer who claimed an injunction restraining an alleged nuisance and for damages from a neighbouring land owner. The property owner who was developing claimed that demolition work on an adjacent factory presented an imminent danger to workers on its site. The engineer who carried out the demolition works gave evidence to the Court below, which was accepted by the judge, that despite appearances the area in question was at all material times not dangerous. Before the Court of Appeal the point of law sought to be argued by the property owner was that the judge was wrong to hold that a claimant had to prove an actual danger before being able to establish nuisance consisting of unreasonable interference with B's enjoyment of its site and it was enough that B and its advisers, and T's advisers, reasonably perceived the area to present a risk of danger to the safe occupation and enjoyment of the site, which had interfered with work on the site. Having reviewed the authorities, the Court held that a person had no cause of action against his neighbour in nuisance on the basis that his neighbour's property or activities frightened him: he had to prove that the fear was well-founded by showing on the balance of probabilities that the property or activities were actually dangerous. R v Lister 169 ER 979 0 and Attorney General v Nottingham Corp (1904) 1 Ch 673 Ch D applied.

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Spilled materials and waste: from the deliberately made to the accidentally dropped The problematic issues and forensic conundrums on waste continue with Case C-188/07 Commune de Mesquer v. Total France SA (Judgment handed down on 24 June 2008). This case concerned the “Erika” oil spill off Brittany in 1999, and raised the question of whether the heavy fuel oil which ended up on the beaches was waste. Advocate General Kokott’s earlier opinion was that that heavy fuel oil as the product of a refining process, which meets the user’s specifications and is intended to be used as fuel, is not waste. Spillage of the oil, where it became mixed with water and sediment, did however constitute its discarding as waste. The ECJ followed this approach and held that

1) heavy fuel oil sold as a combustible fuel, does not constitute waste within the meaning of Directive 75/442, where it is exploited or marketed on economically advantageous terms and is capable of actually being used as a fuel without requiring prior processing.

2) hydrocarbons accidentally spilled at sea following a shipwreck, mixed with water

and sediment and drifting along the coast of a Member State until being washed up on that coast, constitute waste within the meaning of Article 1(a) of Directive 75/442, where they are no longer capable of being exploited or marketed without prior processing.

That then raised the issue of whether the producer of the heavy fuel oil may be ordered to bear the cost of disposing of the waste, pursuant to Article 15 of the Waste Framework Directive. The AG held that this was possible if they could be accused of contributing personally to the leak or spill. However, it would also be compatible with that provision to limit the liability of the producer and/or seller and carrier in accordance with the 1969 Convention on Civil Liability for Oil Pollution Damage and the 1971 Convention on the Establishment of a Fund for Compensation for Oil Pollution Damage, as amended. The ECJ held that

For the purposes of applying 15 of Directive 75/442 to the accidental spillage of hydrocarbons at sea causing pollution of the coastline of a Member State:

– the national court may regard the seller of those hydrocarbons and charterer of the ship carrying them as a producer of that waste within the meaning of Article 1(b) of Directive 75/442, and thereby as a ‘previous holder’ for the purposes of applying the first part of the second indent of Article 15 of that

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directive, if that court, in the light of the elements which it alone is in a position to assess, reaches the conclusion that that seller-charterer contributed to the risk that the pollution caused by the shipwreck would occur, in particular if he failed to take measures to prevent such an incident, such as measures concerning the choice of ship;

– if it happens that the cost of disposing of the waste produced by an accidental spillage of hydrocarbons at sea is not borne by the Fund, or cannot be borne because the ceiling for compensation for that accident has been reached, and that, in accordance with the limitations and/or exemptions of liability laid down, the national law of a Member State, including the law derived from international agreements, prevents that cost from being borne by the shipowner and/or the charterer, even though they are to be regarded as ‘holders’ within the meaning of Article 1(c) of Directive 75/442, such a national law will then, in order to ensure that Article 15 of that directive is correctly transposed, have to make provision for that cost to be borne by the producer of the product from which the waste thus spread came. In accordance with the ‘polluter pays’ principle, however, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur.

The conclusions that the oil is not waste, but may become so when spilled, are not particularly startling, but the discussion on Article 15 is extremely interesting. The problem facing the Court is that Article 15 provides in apparently mandatory terms that in accordance with the polluter pays principle, the cost of disposing of the waste must be borne by the holder and/or the previous holders or the producer, whereas the relevant Conventions to which France was a party, require liability to be channeled to the ship-owner. Thus a departure by Community law from that position would create a conflict between those obligations. Article 15 was therefore to be interpreted so far as possible to avoid such a conflict. Article 15 was read as simply designating a group of persons who may be liable, from whom the person liable should be selected on the basis of the polluter pays principle. However, that principle does not provide clear and definitive rules, a task described by the AG at para. 123 as “a priority task for the legislature” – doubtless a nod in the direction of the proposed new Waste Framework Directive currently progressing through the Community institutions. There is no obvious single rule – in some cases Community law places liability on the producer of the product which becomes waste, in some cases not. That was suggested by the AG to be a lawful and proportional approach, but required express legislative action. In other cases, as in Van de Walle, the risk should lie only with the producer in so far as they could “influence the extraordinary creation of waste”, i.e. did they have some responsibility for the escape, not just the creation of the product.

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Strategic Environmental Assessment Finally, we are starting to see challenges to decisions based on the SEA Directive 2001/42/EC. In An Application by Seaport Investments Limited [2007] NIQB 62, Wetherup J held that the procedures used in respect of draft plans had failed to comply with the Directive in various respects, including the lack in the Northern Irish system of an independent consultation body as required by Article 6.2. Another issue was the failure of the domestic legislation to set sufficiently precise timeframes for consultation, so as to infringe the principle of legal certainty. It was also held that there had been inadequacies in the environmental reports in various respects and that there had not been substantial compliance with the requirements of the Directive. Emphasis was also placed in the judgment on the need for the environmental report and draft plan to keep in step so that the report could properly influence the plan, which would not be the case if the plan became largely settled, even as a draft, before publication of the environmental report. NB APPEAL

R(on the application of Howsmoor Developments Ltd & Others) v South Gloucestershire Council ([2008] EWHC 262 (Admin)) is the first decision in England and Wales to consider strategic environmental assessment and follows on the decision of the Northern Ireland Court in In Re Seaport Investments Ltd and Others [2007] NIQB 103 which demonstrates that the requirements of SEA are onerous. More particularly, R(Howsmoor) considers SEA in the context of supplementary planning documents and the allocation of land in a supplementary planning document.

South Gloucestershire Council adopted a development brief in relation to a mixed use development at a site known as Emersons Green East. The brief was a supplemental planning document in which it made provision for a transport hub and a pedestrian bridge. The Council concluded that the policy set out in the development plan permitted it to set out in the Development Brief a framework plan and text which showed the transport hub and the pedestrian bridge. The Council undertook a strategic environmental assessment ("SEA") contained within a Sustainability Appraisal ("SA") of the Brief

The Claimants challenged the adoption of the brief as unlawful on the grounds that:

1) The Brief allocated a location for the transport hub and the pedestrian bridge and that, in so doing, made an allocation of land in a supplemental planning document contrary to Regulation 7 of the Local Development Regulations.

2) The strategic environmental assessment ("SEA") contained within the Sustainability Appraisal ("SA") in the Brief did not comply with Regulations 8 and 12 of the SEA Regulations. Further, that it failed to comply with government guidance on the SA and SEA

The Judge decided that the case fell for determination upon two relatively narrow points. The first was whether the Council's interpretation of the development plan policies fell within a range of reasonable interpretations of the development plan. Unless the Council's interpretation was perverse it could not be the subject of a successful challenge i(see R v

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Derbyshire County Council ex parte Woods [1997] JPL 998). Secondly, whether, having regard to the terms of Article 5 of the Directive and the stage of the planning process at which the Development Brief was drawn up and adopted, the steps taken in the Development Brief to comply with the SEA Directive were sufficient.

The Judge reviewed the local plan and the relevant policies; the record of consultation workshops and the Material Parts of the Development Brief. He concluded that in his judgment it was open to the Council to conclude that its Brief could provide for an transport hub and pedestrian bridge in the site and that its Local Plan had made an allocation by way of policy that the hub and the pedestrian bridge should be the site. The Local Plan must be read in its entirety.

As regards the sustainability appraisal and the environmental impact assessment. The appraisal expressly stated that it did not appraise the merits of the particular site, nor did it repeat the work that was undertaken as part of the Sustainability Appraisal of the Local Plan.

The Local Plan was not adopted at the time when the SEA directive was in force. However, according to then best practice, an SA was made of the Local Plan. By the date of the Brief, the 2004 Act made it mandatory for supplementary planning documents to be subject to an SA. Further, planning authorities also had to conduct an environmental assessment in accordance with the requirements of European Directive 2001/42/EC on the assessments of the effects of certain plans and programmes on the environment. Whilst the two requirements are distinct, it is possible to satisfy both through a single appraisal process and it was expressly stated that the Sustainability Report fulfilled the requirements of an environmental report under the SEA directive. The issue was whether what was done fulfilled the above requirements.

The Judge referred to Article 5(1) of the SEA Directive which requires an environmental report to be prepared in which the likely significant effects on the environment of implementing the plan or programme are identified, described and evaluated, as well as the reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme. He also referred to Article 5(2) which states that

2. The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment."

He rejected the Claimants argument that since the Local Plan had not been subject to the SEA provisions, the Council was obliged to carry out an assessment by reference to each of the sub-paragraphs of Annex 1 of the Directive, in effect, submitting the policies in the Local Plan to the requirements of the Directive. It ignores the terms of the Directive (Articles 4, 5 and 13) and amounts to an attempt to give the Directive retrospective effect

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by submitting policies developed before the effective date of the Directive to the new regime.

He accepted the proposition on behalf of the Defendants that Article 5(2) defines and characterises the obligations laid down by the Directive. The information contained in the report will depend upon a number of factors including the "… stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment". In this instance having been satisfied that, there being a lawful Local Plan, the strategic development made by the Brief was appropriately directed to indicative proposals for the siting of the transport hub and the bridge. That being so, the development proposals from the developers, which would be necessary at the planning application stage, will include assessments by reference to Annex 1 of the Directive. Detailed proposals for parts of the site and detailed work on mitigation aspects will be assessed in an EIA on an application for development. Consequently: there was no requirement to assess the rationale for and alternatives to the development of Emersons Green East; there was no requirement to assess the environmental consequences of the allocation of the development proposals under consideration and the extent to which they could be mitigated;there was no requirement to justify the overall mix of development; or justify or assess the infrastructure requirements set out in the Local Plan; there was no particular scheme to assess.

The stage in the planning process represented by the Brief, was evolutionary. The SA was required to assess the environmental effects of the Brief from the taking forward of the relevant policy allocation in the Local Plan . The Brief did not "introduce" (as the Claimants submitted) the transport hub and the bridge. They had already been established by the framework in the Local Plan. Further, since the Brief did not allocate sites for the hub and the bridge, the approval did not need to assess the merits of a particular allocation or site. It assessed the locational criteria. It follows that there was no breach of paragraph 4.1.6 of the government guidance.

EIA, Schedule 2 projects and changes/extensions In R(Roudham and Larling Parish Council) v Breckland Council [2007] EWHC 2352, the Court of Appeal has given judgment on an appeal against a refusal of permission to bring judicial review proceedings. The case considers various categories of Schedule 2 projects including industrial estate projects; change/extension/ plants for pre-treatment of fibres/textiles

The case concerns planning permission granted by Breckland Council for a change of use of a farm from agricultural use to industrial use and in particular for the installation of a hemp processing plant. The Council granted planning permission, which was upheld on

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appeal. The application for judicial review was refused on paper and then again refused after a detailed hearing by Burton J.

There were several grounds of challenge in the judicial review including the inadequacy of reasons in the planning permission and inadequate consultation. The Claimant also sought to argue that the hemp processing plant fell under Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 and there ought to have been a screening opinion in relation to its environmental impact. The Council considered that the project fell under no part of the Schedule. The three different parts of the Schedule, which the Council argued the hemp plant fell under included:

Paragraph 8(b): “Plants for the pre-treatment (operations such as washing, bleaching, mercerisation) or dyeing of fibres or textiles.”

Paragraph 10(a): “Industrial estate development projects”.

Paragraph 13 read with paragraph 1(c): “Any change to or extension of development of a description listed [in the Schedule, in this case an intensive livestock installation under paragraph 1(c)] where that development is already authorised…and the change or extension may have significant adverse effects on the environment”.

Pre Treatment of fibres/textiles. The Court refused to accept that this was a relevant category. The judge found, on unchallenged evidence, that the operation at the hemp processing plant will be limited to mechanical separation of the harvested hemp straw into its constituent elements of fibres (the outside of the stem) and the stem itself. Those elements are then sorted, and removed from the plant for treatment elsewhere. There will be no other process, and no washing, bleaching, mercerisation or anything similar to any of those operations. On those facts the judge was wholly justified in finding, on the assumption that hemp is indeed a fibre, that the plant is not going to be used for the “pre-treatment” of that fibre, either in the normal meaning of that expression or in the sense in which the term is used in paragraph 8(b).

Industrial estate development projects”. Lord Justice Buxton described it as a ‘simple abuse of language’ to describe the hemp processing plant as an industrial estate project, and much more as an infrastructure project. This category is placed under the general heading of “infrastructure projects”. As the examples given in the rest of paragraph 10 demonstrate, what is envisaged is infrastructure in its ordinary meaning, that is, large general works of construction of, for instance, transport facilities, to support more particular industrial activities. The hemp plant falls into the latter, not the former, category.

Changes or extensions: The Court said that this failed on the facts but in any event paragraph 13 of the Schedule envisages a change to the existing use that, while maintaining that use, alters its effect on the environment. It does not extend to any change from the existing use to a different use. If that were so, any change of use from a

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Schedule 2 category use that might have significant adverse effects on the environment would be caught, even though the new use would not itself fall under Schedule 2.

The Court also referred to paragraph 1(a) of Schedule 2: “Projects of the use of uncultivated land or semi-natural areas for intensive agricultural purposes” but held that it did not apply.

The Court also noted, with regard to the exercise of the Court’s discretion, that the Planning Inspector recorded in his decision extremely tentative views that hemp processing plant might fall under one or other of the categories just discussed. He accordingly referred the two applications to the Secretary of State for screening. The Secretary of State concluded that both projects fell under paragraph 13 read with paragraph 1(a). That conclusion caused her to consider whether the project did indeed require an EIA. She decided on the basis of criteria set out in the Regulations that it did not. The Parish Council is challenging that decision in proceedings under section 288 Town and Country Planning Act alleging that it was inadequately reasoned. Lord Justice Buxton noted that the Secretary of State was wrong to consider the project might amount to a change or extension for reasons given in his judgment. In any event she had then decided on screening the project that an EIA was not necessary. Lord Justice Buxton said it would seem futile in these proceedings to require the local planning authority to consider an EIA when the council in all probability will take the same view as the Secretary of State, and in reliance on that view.

The case is the subject of a petition to the House of Lords

EIA and screening decision – reference to ECJ The Court of Appeal has referred questions regarding the requirement to give reasons for a screening decision on the need for an environmental Impact Assessment for a project falling within Annex 2 of Directive 85/337/EEC (as amended). In ‘R. (on the application of Mellor) v Secretary of State for Communities and Local Government’ ([2008] EWCA Civ 213), the appellant had objected to the respondent’s determination that environmental impact assessment was not required on a planning application for a medium secure hospital unit at Harrogate, North Yorkshire. The issues which arose were whether the respondent had been required to give reasons for deciding that environmental impact assessment was not required, and, if so, whether her decision provided adequate reasons. The Court of Appeal in R v Secretary of State for the Environment, Transport and the Regions ex p Marson’ ([1998] Env LR 761) had expressed the opinion that, under the directives then in play, the Secretary of State was not obliged to give reasons either as a matter of national law or as a matter of Community law and expressed the view that this opinion would not be altered in light of the revisions made by the directives currently in force. The Marson case was also the subject of proceedings brought by the Commission before the ECJ. The parties sought to have the question of whether the Secretary of State was obliged to give reasons for a screening opinion referred to the ECJ, despite a full appeal not being heard. Waller LJ held that whilst the Marson decision had been one refusing permission to appeal, and so was not binding on the Court of Appeal, it was highly persuasive authority. He was persuaded that persuaded that, in the unusual

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circumstances of the case, it would be appropriate to refer the identified questions to the ECJ, it being both convenient and necessary that it should be answered by reference to European law. Wind Farms and EIA breaches An application for judicial review of the decision of a local authority to grant planning permission for the construction of a wind farm, alleging breaches of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (S.I. 1999/293) has been refused. In ‘R. (on the application of Finn-Kelcey) v Milton Keynes Council’ ([2008] EWHC 1650 (Admin)) the applicant was a local landowner who tenanted properties which were bound to be affected by a proposed wind farm development comprising seven turbines. He was a member of a local group opposed to wind farms development in the area. Planning permission was granted by the defendant on January 14, 2008 and the claim lodged on April 10. The application had included an Environmental Statement and supplementary information was provided which included wind speed data, following a request. That information was provided to representatives of the local group in hard copy, but not the accompanying CDs which included the raw data (including wind speeds). The letter enclosing the supplementary information, which stated that the wind speed data was included on the CDs, was inadvertently not placed on the public files. The result was that the claimant was not aware that the supplementary information had included the relevant data. Three main grounds were relied upon in the claim: (1) that the wind speed data relied on to support the environmental statement produced by the interested party and considered by the external consultants engaged by the defendant had not been disclosed to the claimant or to the planning committee, in breach of reg. 19 of the 1999 Regulations, and of the rules of natural justice inasmuch as material had been available to and relied on by the defendant but not provided the claimant; (2) that inaccurate advice which misconstrued the guidance given in PPS22: Renewable Energy had been contained in the officers’ report to the planning committee; and (3) that the planning committee had wrongly declined to visit various viewpoints which they were specifically requested to visit in order to gauge the impact of the development, thus failing to take a relevant consideration into account. The claimant further submitted that the reasons given for granting permission in relation to the impact on the landscape had been inadequate and unintelligible. Collins J found that although the defendant conceded that there had been a breach of reg. 19(4) in failing to provide the CDs or to refer to the data specifically in a local newspaper, the regulation went further than the requirements of Directive 85/337/EEC. Accordingly there was no breach of the Directive provided the data was made available and the case could therefore be distinguished from ‘Berkeley v Secretary of State for the Environment’ ([2001] AC 603). The developer had done all that it should have in providing the information. The defendant had failed to comply with its statutory duty under the Regulations, but there had been no unfairness to the claimant and the data had been available. The provisions of the Environmental Information Regulations 2004 (S.I.

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2004/3391) did not extend beyond the need to make the information available and whether it was available would depend on the circumstances of a particular case. Even though there was a breach of the Regulations, the test as to whether relief should be given in the exercise of the court’s discretion was whether in all the circumstances the decision could have been different. Consideration of the data by the planning committee could have made no difference to the result. There had been proper consideration of PPS22, with the correct test applied. The planning committee members had been entitled to decide that it had not been necessary for them to visit the various viewpoints suggested on the basis that they had sufficient information without doing so. Whilst consideration was unnecessary, permission would have been refused in any event on the grounds of delay. The need for expedition was of particular importance in challenges to grants of planning permission and the claimant had not demonstrated that he had proceeded with due expedition. It had not been reasonable to wait until April 10 to issue proceedings. In the latest installment, the Court of Appeal in Andrew Finn-Kelcey v Milton Keynes Borough Council has refused an appeal against the decision of Collins J to refuse permission for judicial review of the grant of planning permission for a wind farm. ([2008] EWCA Civ 1067), The Court found that the judge was right that the application had not been made promptly and so did not comply with CPR 54.5 which provides that a claim for must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose. Planning permission had been granted on 14 January 2008. The appellant filed a claim for judicial review on 10 April 2008. Lord Justice Keene held that the importance of acting promptly applied with particular force in cases where it was sought to challenge the grant of planning permission. The fact that Parliament had prescribed a six week time limit in cases where the permission was granted by the secretary of state rather than by a local planning authority emphasised the need for swiftness of action. In the instant case Mr Finn Kelcey had been aware of the decision of the local authority's planning committee to grant permission as soon as that decision was made, and of the subsequent decision of the local authority not to rescind that decision. What satisfies the requirement of promptness will vary from case to case. However, there was no explanation for the delay in issuing proceedings until the end of the three month period. A pre-action protocol letter had been sent but that did not remove the obligation to bring the claim promptly. The notes to CPR 54.5 in the White Book states that the obligation to comply with the pre-action protocol does not remove the obligation to bring the claim promptly. The Court was also influenced by the fact that the development was a renewable energy development

“..in the present case there is in existence a particular consideration because of the nature of the proposed development. PPS 22 stresses the importance of renewable energy projects, referring to the UK target of generating 10% of electricity from renewable sources by 2010, so as to comply with its international obligations entered into by the Government. As Sullivan J said in R(Redcar and Cleveland Borough Council) v Sec of State for BERR…

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‘The need for promptness in challenging planning decisions within this policy framework is particularly acute. Delay in challenging decisions in respect of renewable energy projects is more than usually prejudicial to good administration”

The Court of Appeal also found that the substantive merits of the claim were not sufficient to grant permission to proceed and consequently the appellant had fallen far short of establishing the sort of clear cut case which would be necessary to persuade the court to override the breach of CPR 54.5(1) given that his was a claim not filed promptly. The application for planning permission was accompanied by an environmental statement under the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Part of the environmental statement was based on a long-term wind speed calculation for the application site. In response to a request from the respondent planning authority the developer supplied supplementary environmental information including CDs containing the raw wind data obtained from a mast which had been erected on the site. A paper copy of the supplementary information was put on the authority's planning files and sent to objectors but the developer’s covering letter and the CDs were not.). The appellant sought to argue that there had not been substantial compliance with Directive 85/337 art.6(3) which required environmental information, in particular the raw wind data, to be made available to the public concerned. Before the judge, the case had been dealt with on the erroneous basis that there had been a breach of the 1999 Regulations as amended by the Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2006 In fact those Regulations did not apply and the case was governed by the 1999 Regulations in their unamended form. The court could not apply the Regulations as if they had been amended as from the date for compliance with Directive 2003/35 That would amount to impermissible judicial amendment of the Regulations. There had been no breach of reg.19 of the 1999 Regulations in their original form because the provision by the developer of the wind data was in response to a non-statutory request not an exercise of the local authority's power to request additional information under reg.19. There was no requirement under the Directive for the information to be sent to persons such as F. The requirement was to make the information available. The way in which technical information was "made available" could consist of the use of some electronic format, so long as the relevant local authority planning file itself indicated its existence and availability. In the instant case the supplementary environmental information gave a sufficient indication to any interested reader that there was raw wind data available and that it could be obtained on request. In those circumstances the information was made available in the sense required by the 2004 Regulations and by the Directive. It followed that there was no breach. The reasons given by the local authority for granting planning permission were adequate.

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Biodiversity, application of policy guidance and EIA In R(on the application of Buglife – the Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation and Rosemound Developments Ltd ([2008] EWHC 475), Buglife challenged the grant of permission for development of a Royal Mail distribution depot on the site of the former power station in Thurrock. The local planning authority was Thurrock Thames Gateway Development Corporation, a statutory corporation.

The relevant legislative background was that since 1st October 2006 all local planning authorities, are required by section 40(1) of the Natural Environment and Rural Communities Act 2006: "... in exercising their functions, to have regard so far as is consistent with the proper exercise of those functions, to the purpose of conserving biodiversity." Section 74 of the Countryside and Rights of Way Act 2000 established a duty on Ministers of the Crown to have regard so far as is consistent with the proper exercise of their functions "to the purpose of conserving biological diversity in accordance with the Convention", a reference to the United Nations Environmental Programme Convention on Biological Diversity of 1992. One of the means by which that duty may be performed is set out in sub-section 3:

"... to promote the taking by others of such steps as appear to the authority to be reasonably practicable to further conservation of the living organisms and types of habitat included in any list published by the authority under this section."

The published list of invertebrates included wasps, bee and beetle which were present on the list. There are, in addition, a large number of other species of invertebrates, many of them endangered or the subject of particular concern.

The primary statutory duty under section 40 of the 2006 Act is supplemented by National Policy and in particular Planning Policy Statement 9 the final paragraph of which concludes that:

"Planning authorities should refuse permission where harm to the species or their habitats would result, unless the need for and benefits of the development clearly outweigh that harm."

Buglife challenged the lawfulness of the decision on two main grounds: (1) the decision-making body did not apply the policy guidance (2) the means by which it dealt with the environmental impact of the development which it permitted simply put over for another day assessment and the means of dealing with it.

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Buglife argued that the relevant planning documents (officers report and planning permission) showed that neither the officers nor the committee went through a step-by-step process as required by PPS9. The Judge accepted that they did not do so expressly. However the Claimants argued that having failed to follow a step-by-step process, the decision made was procedurally flawed and must be quashed and submitted for further consideration, by the Court. Mitting J noted in his judgment that a benevolent construction should be given to planning decisions and a fortiori to the reports of planning officers to decision-makers. Merely because something is not expressly set out in a document does not mean that it has been overlooked. Merely because a step-by-step approach, as on one reading might be thought to be required by the guidance, has not been followed, it does not automatically follow that the decision should be quashed.

What is necessary, he held, is to look behind the words and see what in substance has been decided. What in substance has been decided here is that by taking the appropriate mitigation and phasing measures approved by Natural England and specified in the planning permission and section 106 agreement, the harm which would otherwise be caused to this site will not be long-term and, when taken together with the impact of this development on adjoining land, will be no more than temporary. It is fair to describe such harm as not "significant harm". Accordingly, it was not necessary for the decision-maker to go through the steps suggested in the policy guidance and look first for alternative sites, then to go on to consider mitigation, then compensation, and then decide whether or not to refuse if significant harm remained. The simple reason was that, in the view of the decision-maker, the short-term harm alleviated by phasing measures was not significant. If the decision-maker had not reached that view, then it would have been necessary for the committee to consider its primary statutory obligation under section 136(2) of the 1980 Act.

As regards the environmental impact assessment, although it was true that the detail of the mitigation and phasing and compensatory measures that were required to be taken were not fully spelt out in the documents, nevertheless there could be no question but that in compliance with the EIA Regulations, a very careful and thorough environmental assessment was made and conclusions reached which addressed the impact of the development upon biodiversity and ecological factors. This was not a case in which those matters have simply been put off for determination on another day. It was true that, the precise impact on any part of this site or on any part of any other adjoining land of this development and the remedial measures could not be finally assessed until after the development had been undertaken. There was laid out in the section 106 agreement and in conditions 29 and 30 an enforceable and sufficiently detailed means of dealing with the impact upon the environment of this development.

The discussion at the end of the judgment makes clear that the Claimants had been awarded costs protection. Having lost the judicial review their liability to pay the corporation’s costs was capped at £10,000. The third party unsuccessfully applied for costs in respect of one aspect of the argument which it said merited it being separately represented. The Court was not prepared to depart from the general rule that only one set of costs is awarded against a losing claimant

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The costs issue then went to the Court of Appeal ([2008] EWCA Civ 1209_ (Sir Anthony Clarke MR, Maurice Kay LJ, Stanley Burnton LJ).

Buglife applied for a protected costs order capping its liability in costs. The local authority applied for an order capping its liability in costs to Buglife. 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 in the proceedings up to the date of the hearing before him. The judge gave reasons for limiting the amount payable by B but did not give reasons for limiting the amount payable to B if it won. B then renewed its application for permission to appeal which was granted on the basis of public interest. B sought two orders, the first of which would extend the costs protection granted to the proceedings in the instant court, so that the total amount of costs payable by B if the appeal failed would be £10,000. B also sought an order varying the PCO so as to remove the reciprocal costs cap of £10,000 on any costs recoverable by B if the appeal succeeded. B submitted that the PCO should be extended to include the costs in the instant court on the basis that all the considerations which led the judge below to make a PCO in favour of B applied equally in the instant court; alternatively that B's liability for costs should be capped in the instant court. The local authority submitted that the fact that an order was made in the court below was irrelevant and that no PCO should be made in the instant court; alternatively that, if B's liability was to be capped, fairness demanded that its costs should be capped too. The Court of Appeal held that

1) The court was bound to follow the guidance in R (on the application of Corner House Research) v Secretary of State for Trade and Industry (2005) EWCA Civ 192, (2005) 1 WLR 2600 The costs should in general be modest and the claimant should expect the costs to be capped. If a defendant wished to make a case for an order capping its liability, it should make it in the acknowledgement of service. Both parties should follow the guidelines in Cornerhouse as set out in R (on the application of Compton) v Wiltshire Primary Care Trust (2008) EWCA Civ 749, The courts should do their utmost to dissuade the parties from engaging in expensive satellite litigation on the question whether PCO's and costs capping orders should be made. Similar principles applied both at first instance and in the Court of Appeal.

2) The procedure set out in Cornerhouse had not been followed in the instant case. The local authority's case was not put before the court on paper before the applications for permission to appeal and for a PCO were considered by the judge. It was of great importance that issues relating to permission to appeal and to a PCO and a consequent cost capping order should all be considered at the same time and on paper. That should avoid further hearings of the instant kind. (2) The instant court saw no reason to disagree with the view formed by the judge at first instance. He expressed the view that the conditions for a PCO were fulfilled. He noted the huge discrepancy in resources available between the parties and that a

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rolled up hearing exposed B to a greater risk as to costs. On the other hand he said that, since permission had been refused, he did not think that the claimant should have full protection. He then limited the cap to £10,000 below. There was no reason to think that he misdirected himself in any way. Since then B had lost but had been granted permission to appeal. B should have some protection in the instant court but it would be unfair for B to have total protection, especially given the fact that there was a significant risk that B would lose. The just order would be to limit B's costs in the instant court to £10,000. Thus if B lost in the instant court and below its total liability would be £20,000.

3) The judge thought that the local authority should also be protected. It was clear from the reasons he gave that he had regard to the status of the local authority as a public body which depended on the taxpayer for support. Although the judge should have given short reasons but had not, neither party had asked him to give reasons. There was no error of principle in the order made capping the local authority's liability below. There was no compelling reason to revisit the exercise of his discretion. It was right to cap the local authority's liability to B in an appropriate sum. A cap of £10,000 was a fair sum.

Bias and Local Authority decision making R (on the application of KEVIN PAUL LEWIS) v PERSIMMON HOMES TEESSIDE LTD [2008] EWCA Civ 746 CA (Civ Div) (Pill LJ, Rix LJ, Longmore LJ) 1/7/2008A looks set to become the leading authority on bias in the context of local authority decision making. Persimmon Homes appealed against a decision quashing the grant by a local authority of planning permission for a mixed residential and leisure development on land owned by the local authority. The site was near a Special Protection Area, which was also a European site for the purposes of the Conservation (Natural Habitats) Regulations 1994 reg.48. The local authority had appointed Persmimmon as the development partner. By then the control of the local authority had passed from Labour to a coalition, which was comprised of representatives from other political parties. Heads of terms were signed by the local authority's cabinet and P in relation to the development. Subsequently, an application for planning permission was made. In view of an upcoming local election period, the local authority issued guidance about publicity and decision making relating to controversial local issues during that period. Local authority officers took the view that the progress of the application did not need to be suspended during the election period, and it was resolved at a planning committee meeting, at which a member of the cabinet (K) and all other coalition members voted in favour of the development, that the development be approved. Following the election there was a change of political control. A notice of planning permission was later issued. The respondent (L) claimed that there had been an appearance of bias or predetermination on the part of the coalition members. The judge held that there were unusual circumstances that required the permission to be quashed. L submitted that the evidence showed that the local Labour party was plainly

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opposed to the development and a politically controversial decision should not have been taken in the pre-election period. L argued that, in the absence of a good reason for holding the planning meeting during the pre-election period, the notional independent observer would find that there was a real possibility that minds were closed to planning merits. L also contended that the judge had been wrong to find that there was no breach of reg.48. The Court of Appeal held that (1) Analysis of the evidence did not support the party political dichotomy alleged. Evidence suggested that the Labour party supported the development. Little evidence had been produced that members of the committee were any more politically motivated than would normally be expected from elected policy makers. The failure by a committee to follow advice given by the local authority to its own staff would not, of itself, invalidate an otherwise valid planning permission. It was for the court to assess, putting itself in the shoes of the fair-minded observer, whether the committee members made the decision with closed minds or that the circumstances gave rise to a real risk of closed minds or predetermination. The committee consisted of elected members who were entitled, and indeed expected, to have, and to have expressed, views on planning issues. When taking a decision, the members had to have regard to material considerations. They were not, however, required to cast aside views on planning policy they would have formed when seeking election. What was objectionable was predetermination, namely the decision-maker making up his mind finally at too early a stage. It was important that the decision maker was open to new arguments at all times up to the moment of decision. The test was a very different one from that to be applied to those in a judicial or quasi-judicial position. A decision maker in the planning context was not acting in a judicial or quasi-judicial role but in a situation of democratic accountability. The requirement made of such decision makers was to address the planning issues before them fairly and on their merits, even though they might approach them with a predisposition in favour of one side of the argument or the other. The danger of the "notional observer" test was that the role of elected members of the committee might not fully be taken into account. The imminence of the local elections at the time of decision did not demonstrate that those who voted in favour of the planning application had minds closed to the planning merits. There was no apparent risk of predetermination. There was no possible basis on which the absence of dissent by coalition members could amount to "unusual circumstances" that could contribute to a decision to quash. The notion that a planning decision was suspect because all members of a single political group had voted for it was an unwarranted interference with the democratic process. The decision to quash the planning permission was not justified. (2) As regards the reg.48 issue, the planning committee had expert advice and could assume from the source of the advice that the appropriate test had been applied. Waste Offences and Sentencing

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In R v TAJINDER SINGH DHALIWAL [2008] EWCA Crim 1275 the Court of Appeal (Criminal Division) considered the sentence imposed for knowingly permitting the deposit and keeping of controlled waste. Mr Dhaliwal appealed against a total sentence comprising a £25,000 fine and an order to pay £25,000 prosecution costs imposed for knowingly permitting controlled waste to be deposited and keeping controlled waste contrary to s.33(1)(a), s.33(1)(b) and s.157(1) of the Environmental Protection Act 1990. He was the sole director and shareholder of a skip hire company. An environmental officer had informed him about the various laws relating to waste disposal. The officer later went to visit his company site and found a large amount of mixed waste and one of his lorries tipping waste. The officer estimated that there was more than 1,000 tonnes of waste. When the officer returned to the site at a later date he saw the company pick up truck and fresh waste that looked like it had come from skips. A couple of weeks later the officer returned again and found that further skips had been emptied. During the trial several documents emerged, the origin of which was suspicious. In the circumstances Mr Dhaliwal’s counsel felt obliged to withdraw from the case. Mr Dhaliwal was convicted after a second trial. He argued that (1) the judge erred in sentencing him on the basis that he and the co-accused company were the same entity; (2) the fines were manifestly excessive and insufficient account was given to the fact that he had removed the waste from the site at a cost; (3) the costs were manifestly excessive. The Court of Appeal held that (1) The judge was correct to sentence Mr Dhaliwal and not the co-accused company. (2) The judge was right to find him to have been entirely dishonest and to have taken the robust view that he had the means to pay. The penalty should be severe. He had only cleared the site because he had been caught. If he had not done so the fines would have been higher. The judge was in the best position to judge the seriousness of the offence. (3) If Mr Dhaliwal had pleaded guilty costs would not have been incurred to the same level. The public should not have to pay for his offending. The judge would not have made a costs order unless the costs had been reasonably incurred. In the absence of waiver of legal privilege in order to investigate the circumstances of the first trial, the judge was entitled to draw an inference that he should pay the costs for both trials. It was difficult to assess whether the costs reflected the fact that D had been acquitted of some of the counts on the indictment. It would have been more useful if the judge had made more specific findings. However the judge must have made some reduction in the total and he was within his rights to make a robust summary assessment of the matters. Court of Appeal decision on sentencing A decision by the Court of Appeal in sentencing can often be useful guidance for sentencing in magistrates courts. Although [2008] EWCA Crim 1963 is concerned with health and safety and a fatality, a couple of points emerge which are useful for sentencing for environmental offences.

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TDG (UK) Ltd, a large warehousing and distribution company, appealed against fines of £250,000 and £75,000 for its breach of the Health and Safety at Work etc. Act 1974 s.2 and the Management of Health and Safety at Work Regulations 1999 reg.3(1), which had resulted in an employee's death. An employee had been carrying out checks on his trailer when another trailer rolled backwards and trapped him. The employee was crushed and pronounced dead at the scene. A non-employee driver had failed to apply the handbrake to his tractor unit when he sought to couple it up with V's trailer unit. The company had failed to ensure that the trailer had its own independent parking brake applied when parked uncoupled. The company had acquired the site several years prior to the accident and since then operators had not ensured that trailer parking breaks were applied as a matter of routine. That was contrary to the company’s policy and represented a failure to enforce that policy. In addition, TDG had not prepared a risk assessment for uncoupling operations at the site and had not implemented its own training syllabus. The non-employer driver pleaded guilty to an offence under s.7 of the Act and was fined £1,000 and ordered to pay £2,000 in costs. The company was ordered to pay £25,000 costs. Since the incident T had taken significant steps to remedy the faults that had led to the breaches. The company appealed against the fines arguing they were manifestly excessive. The Court of Appeal agreed and substituted them with fines of £225,000 and £50,000 respectively. The Court acknowledged that it is generally recognised that in cases of this sort there can be no set tariff. Nonetheless as the Court of Appeal made clear in R v (UK) Limited AGC Automotive [2007] EWCA Crim 3396, fines should not be wholly arbitrary and it is possible, looking at decided cases, to get a broad feel of a level of the fine. The Court said as follows in that case:

“As to what the normal scale of penalties is, it is right that this Court has consistently declined to set any kind of tariff because of the very wide variety of circumstances attending prosecutions of this kind. Nevertheless, levels of fine should not be wholly arbitrary, and it is possible by looking at a range of recent cases in this Court (to which we were helpfully referred) to get a broad feel for the levels of fine imposed in cases of different levels of gravity. It is important in doing so to bear in mind that in some cases the court would be influenced by considerations of affordability or means, particularly where the defendant is a small business or is in the public sector. There are no such considerations here, since the company put no material before the judge about its profitability or its assets.”

In an endeavour to get a broad feel for the range of sentences in cases involving a fatality, the Court was referred to a large number of decisions and took the view that the nearest approach to a tariff for cases involving a fatality was in the case of R v Colthrop Board Mills Ltd (2002) EWCA Crim 520, (2002) 2 Cr App R (S) 80. There the Court referred to fines of up to around £500,000 being appropriate for cases involving the death of a single employee and perhaps of serious injury of an employee, although this could rise as awareness of the importance of safety increased.

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The Court of Appeal took the view that the judge had correctly identified the relevant aggravating and mitigating factors in the instant case. However the immediate cause of death was the co-worked and the company had made a prompt early admission of its breach of reg.3(1). Therefore, the fine was not proportionate and attached too little responsibility to the co worker. In the circumstances the fines were too large. The fine of £250,000 for the s.2 of the Act offence was substituted for £225,000 and the fine of £75,000 for the reg.3 of the Regulations offence was substituted with a fine of £50,000. The costs order remained.

Waste water escaped from a public sewerage system is “controlled waste” for the purpose of section 33 of the Environmental Protection Act 1990.

In R (on the application of Thames Water Utilities Ltd) v Bromley Magistrates’ Court & Environment Agency & Water Services Regulation Authority [2008] EWHC 1763 (QB) a two-judge strong divisional court was required to determine as a preliminary issue whether escapes of waste water from a public sewerage system were "directive waste" within the scope of Directive 75/442/EEC, as amended by Directive 91/156/EEC, and thus subject to the enforcement authority of the interested party, the Environment Agency (“EA”), under the Environmental Protection Act 1990 s.33.

The claimant utilities company (TWU) had been prosecuted by the agency in the defendant magistrates' court for alleged offences under s.33 of the Act arising out of deposits of untreated sewage on an area of land. The section made it an offence to "deposit controlled waste on any land" without a waste management licence. By the Controlled Waste Regulations 1992 reg.7A, waste that was not directive waste was excluded from the definition of "controlled waste". The judge decided that he did not have jurisdiction to determine whether, as a matter of law, sewage escaping from pipes maintained by a statutory undertaker was "controlled waste" as so defined. The instant court held that he did have jurisdiction, but rather than remit it, agreed to decide the matter itself, first making a reference to the European Court of Justice.

The ECJ held that escaping waste water was in principle "waste" within art.1 of the Directive, but it left open the issue as to whether it was covered by other domestic legislation so as to be excluded under art.2. For that to be so, the domestic legislation must contain "precise provisions organising the management of the waste in question", and must ensure a level of protection of the environment equivalent to that guaranteed by the Directive, in particular art.4, art.8 and art.15.

Its reasoning was that the Waste Framework Directive clearly included waste waters within the definition of “waste” in Annex I and so the question was that of whether these were ‘discarded’. The verb “discard” had to be read in the light not only of the aims of the Waste Framework Directive of protecting human health and the environment but also

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Article 174(2) EC which provided that ‘Community policy on the environment shall aim at a high level of protection and based on the precautionary and preventative principles. The fact that waste water escaped from a sewerage network did not affect its character as “waste” within the meaning of the Waste Framework Directive; the escape of waste water from a sewerage network constituted an event by which the sewerage undertaker, the holder of that waste water, ‘discards’ it. The fact that the waste water was spilled accidentally did not alter the outcome (Van de Walle & Others (Case C-1/03) was referred to). The Court had held that the Waste Framework Directive would be made redundant in part if hydrocarbons which caused contamination were not considered waste on the sole ground that they were spilled by accident, and the same reasoning had to be applied to waste water which leaked accidentally. The answer to Question 1 had therefore to be that waste water which escaped from a sewerage network maintained by a statutory sewerage undertaker pursuant to Directive 91/271/EEC and the legislation enacted to transpose that directive constituted “waste” within the meaning of the Waste Framework Directive

Under Article 2(1)(b)(iv) of the Waste Framework Directive waste waters, with the exception of waste in liquid form, were excluded from the scope of that directive, provided that those waste waters were already covered by ‘other legislation’, which the court had found could include other domestic legislation. To be regarded as ‘other legislation’ within the meaning of Article 2(1)(b), the rules in question had to not merely relate to a particular substance, but to contain precise provisions organising its management as waste within the meaning of Article 1(d) of the directive and ensuring a level of protection which was at least equivalent to that resulting from the Waste Framework Directive. Although it regulated the collection, treatment and discharge of waste water, Directive 91/271/EEC did not ensure such a level of protection. It did no more than lay down, as regarded leakage of waste water, a duty to prevent the risk of such leaks when designing, constructing and maintaining collecting systems and did not lay down any objective in relation to the disposal of waste or decontamination of contaminated soil. It could not therefore be regarded as relating to the management of waste water which escaped from sewerage networks and ensuring a level of protection which was at least equivalent to that resulting from the Waste Framework Directive. It had not been possible to determine whether the national legislation contained precise provisions organising the management of the waste and ensuring such a level of protection, and that was a matter for the national courts.

Directive 91/271/EEC did not contain any provision which concerned, as such, waste water escaping from a sewerage network. It could not therefore be regarded as containing specific rules for particular instances or supplementing those of the Waste Framework Directive on the management of waste water which escaped from a sewerage network.

Back in the domestic Court TWU submitted that there was such domestic legislation, and relied upon a combination of statutory provisions, namely Part III and Part IIA of the 1990 Act, the Water Industry Act 1991, and the Urban Waste Water Treatment (England and Wales) Regulations 1994.

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The Divisional Court held that it was not in dispute that the escape of untreated sewage onto land might bring into play one or other of the provisions identified by TWU. However, what was much more difficult was to understand how, individually or together, they could be described as "precise provisions organising the management of the waste". The requirement for precise provisions was not met by piecing together a patchwork of miscellaneous provisions that, taken together and depending on how they were operated in particular cases, might achieve similar practical effects to those of the Directive. The fact was that there were no precise provisions governing the management of waste that escaped unintentionally from the sewerage system. Accordingly, they were not "covered by other legislation" in the sense explained by the ECJ. In answer to the preliminary question, sewage escaping from pipes maintained by a statutory undertaker was "controlled waste" within the meaning of s.33 of the 1990 Act. The case was remitted to the magistrates' court to be determined on the merits.

A waste management company’s materials not taxable under s40(2) of the Finance Act 1996.

In Revenue & Customs Commissioners v Waste Recycling Group Ltd [2008] EWCA Civ 849 the appellant commissioners appealed against a decision that certain categories of material used at a landfill site by the respondent waste management company (WRG) for engineering purposes or daily cover were not taxable as waste within the Finance Act 1996 s.40(2)(a). WRG was the representative member of a group of companies which provided waste management services. WRG had sought a refund of landfill tax from the commissioners in respect of inert materials that it had used either to provide the daily cover for active waste required by the terms of its licence or in the construction of roads on its sites, on the basis that such use of inert material could not give rise to a taxable disposal for the purposes of landfill tax because the relevant materials had not been disposed of as "waste". The commissioners refused to grant the refund and the VAT and duties tribunal upheld their decision. WRG appealed to the High Court. The judge found that the tribunal had erred in law in concluding that the material had been disposed of as waste. The commissioners submitted that the judge was wrong to have considered that processes of recycling precluded the material earlier discarded by the producer from being disposed of as waste at the later stage when it was deposited on the surface of the landfill and that the judge was wrong to have considered that the intention of the original producer of the material to dispose of it as waste could be subsumed in or replaced by the site operator's use of the material on the landfill site. The Court of Appeal held that (1) Whether or not there was a liability to landfill tax in respect of the materials to which the instant appeal related depended on the proper interpretation and application of the provisions of Part III of the Act. The instant court was bound by the decision in Parkwood Landfill Ltd v Customs and Excise Commissioners (2002) EWCA Civ 1707, (2003) 1 WLR 697 in respect of the aspects of interpretation with which it dealt. But the instant court was not concerned with the

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applicability to the facts of the instant case of the judgments in Parkwood or in Customs and Excise Commissioners v Darfish Ltd (2001) Env LR 3 QBD, Parkwood and Darfish considered. The decisions of both the tribunal and of the judge were open to the criticism that too much time was taken up with the application of those judgments and not enough to the application of the legislation to the instant facts. The question was whether there was a taxable disposal of the materials used by WRG for daily cover and road construction. That depended on whether there was a disposal which satisfied all 4 conditions laid down in s.40(2). The decision in Parkwood established that all 4 conditions must be established at the same time. That moment must be the time at which the last of them was satisfied. That was likely to be the moment when the material was disposed of as landfill in accordance with the provisions of s.65. On the findings of the tribunal the materials were deposited on the landfill site by WRG at a time when the property in them had passed to W. It was clear that, assuming there to have been a disposal at all, the disposal relevant for the purposes of s.40(2)(a) was made by WRG on its own behalf. So the question posed by s.64(1) was whether WRG then intended to discard the materials. The word discard appeared to be used in its ordinary meaning and did not comprehend the retention and use of the material for the purposes of its owner. Section 64(2) did not apply in such circumstances because there was, at the relevant time, either no disposal or no disposal with the intention of discarding the material. (2) It followed that the relevant intention might well not be that of the original producer of the materials. There was no principle that material once labelled as waste was always waste just because the original producer of it threw it away. That was not the relevant time at which the satisfaction of the conditions imposed by s.40(2) was to be considered. The use of the relevant materials by WRG was clear and such use was conclusive of its intention at the relevant time by whatever means and on whatever terms W acquired them. The materials used by WRG for daily cover and building roads were not the subject matter of a taxable disposal as defined in s.40(2). Accordingly the appeal was dismissed Access to Environmental Information on support for oil & gas exploration The Administrative Court has upheld Friends of the Earth’s rights to information regarding the Export Credit Guarantee Department’s support for an offshore oil and gas exploration scheme. In Export Credits Guarantee Department v Friends of the Earth ([2008] EWHC 638 (Admin)) the ECGD, which facilitates the export of goods from the United Kingdom and insures overseas investment made by UK entities had been asked to support an offshore oil and gas exploration scheme which would have had an adverse impact upon nature conservation interests, namely the habitat and breeding grounds of the (protected) Western Grey whale. It invited comment from various other government departments and the FoE sought disclosure of those requests for comments and of all information received from the relevant government departments in response, under the Environmental Information Regulations 2004. The ECGD refused to disclose the information on the ground that it was exempt under reg.12(4)(e) of the 2004 Regulations as it involved disclosure of internal government communications. The Information

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Commissioner upheld that refusal, but his decision was overturned by the Information Tribunal, which concluded that there was no sufficiently demonstrable public interest in withholding the responses so as to outweigh the public interest in disclosure. The ECGD then appealed to the Administrative Court, arguing that the Tribunal had erred in its approach to its task and had produced an unsustainable decision. Mitting J dismissed the application, finding that in deciding whether disclosure should be made, the decision-maker had first to identify whether or not the information fell within any of the potentially exempt classes set out in reg.12(4) and (5), and then to determine whether the public interest in maintaining the exemption outweighed the public interest in disclosure. He found that, whilst the tribunal may have expressed itself unfortunately or even made errors of law, it had nonetheless applied this correct test. Mitting J further found that although it was not necessary to identify specific prejudice or harm flowing from the disclosure of the information in question in order for the exemptions to be engaged, in considering whether the public interest in maintaining the exemption outweighed the public interest in disclosure, it was relevant to consider what specific harm would follow from the disclosure of the particular information in question. As the case in question concerned a “class exemption” it was accordingly not necessary for the tribunal to satisfy itself that any particular harm was caused before it went on to consider the balance between the competing public interests. Mitting J identified that there was a legitimate public interest in maintaining the confidentiality of advice between government departments on matters that were expected to result in a ministerial decision. The weight to be given to those considerations would vary from case to case, but the cases in which it would not be appropriate to give any weight to them would, if they existed at all, be few and far between. Access to Environmental Information and mobile phone stations In a not dissimilar case to that of Export Credits Guarantee Department v Friends of the Earth (above) the Administrative Court has dismissed an appeal against a decision of the Information Tribunal requiring Ofcom to disclose certain information held by it concerning the location, ownership and technical attributes of mobile phone cellular-based stations. In ‘R. (on the application of Office of Communications) v Information Commissioner’ ([2008] EWHC 1445 (Admin)), a request was made for details regarding mobile phone base stations which were not available on the ‘Sitefinder’ website. Whilst it provided information regarding operator site reference, antenna height, transmission height, frequency range, antenna transmitter power, station type, maximum licensed power, and name of the operator, the website did not give the address of the base station, postcode, national grid reference or latitude/longitude co-ordinate. Nor did it indicate whether the stations were on roof tops, mounted on buildings interior or exterior, or street furniture. Ofcom accepted that the information was “environmental information” within the meaning of the Environmental Information Regulations 2004 (S.I. 2004/3391), access was refused on the grounds that it fell within the exceptions provided in Regulation 12(5)(a)&(c). Following an application by the person requesting the information, the Information Commissioner issued a decision that the exceptions were not engaged and ordered Ofcom to make the disclosure sought, which was upheld on appeal to the

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Information Tribunal. Ofcom then appealed to the Administrative Court under Section 59 of the Freedom of Information Act 2000, on the grounds that the names of mobile network operators was not “environmental information”, that the disclosure sought would have an adverse effect on the mobile network operators’ intellectual property rights, and that the public interest had not been considered correctly, the information Tribunal directing itself that it should not consider all the elements of the public interest in maintaining the exception when carrying out the public interest balancing exercise, and instead confining itself to the public interest factors “arising naturally from the nature of the exception”. The Commissioner accepted that the disclosure order could adversely affect intellectual property rights in the respects, but submitted that it was inherent in the scheme of the 2004 Regulations that disclosure might be required even though that would involve an infringement of intellectual property rights. The scheme was that disclosure had to be made subject to a power to refuse disclosure if two conditions were met: first, if one of the stated exceptions applied and, secondly, that the public interest in maintaining the exception outweighed the public interest in disclosure. Laws LJ found that the fact that disclosure would involve infringements of intellectual property rights was at most a balancing factor against disclosure, not an absolute bar. The public interest might override the rights in question though disclosure would not mean that the rights became wholly valueless. That information, once disclosed, would be free in the public’s hands, subject to the private law rights which intellectual property rights owners might enforce. Public participation in environmental debate and debate on epidemiological research would be hampered if the names of those producing emissions were excluded from the information provided. The Tribunal’s view on the public interest had been a reasonable one in public law terms, but more than that it accorded with the statutory scheme. The wording of Regulation 12(1)(b) and Article 4(2) of Directive 2004/3/EC referred to the interests served by refusal or the exception and the general requirement of the Directive was that grounds for refusal should be interpreted restrictively. Regulation 12(2) prescribed a presumption in favour of disclosure. The scheme was that each exception had to carry its own justification. There was a general duty to disclose and no justification had to be shown for disclosure in the first instance. The exceptions were drawn tightly and the wording suggested at least that they had to be considered exception by exception, including the public interest that attached to each exception. Financial guarantees, repudiation and lawfulness of waste shipments The case of ‘Catalyst Recycling Ltd v Nickelhutte Aue GmbH’ ([2007] EWHC 866 (QB)), regarding the entitlement to terminate a contract for transfrontier shipments of waste. The case concerned a defendant German company (Nickelhutte) which specialised in the transport and processing of waste metals and had an agency agreement with the claimant English company (Catalyst) granting exclusive rights to source and ship to it waste metal from within the UK and Eire. Under Art.27 of the Transfrontier Shipments of Waste Regulation (259/93/EEC) an essential requirement for shipments was that an adequate financial guarantee or equivalent insurance was in place for waste exporters so that the

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return of waste could be secured if necessary. The German competent authority for waste shipments issued an administrative decision which declared that it did not consider that any valid, or sufficient, financial guarantee was in place for Catalyst, so that shipments by it would be unlawful. Despite this, shipments took place from the UK and Eire, which were quarantined upon arrival at Nickelhutte’s premises in Germany. Catalyst successfully appealed the German competent authority's decision, which accepted that a valid financial guarantee had been in place at all times. The competent authority nevertheless maintained that the three shipments had been in breach of German Administrative Law on the basis that such shipments had been unlawful until the authority had been satisfied as to the existence of the guarantee. Nickelhutte then sought to terminate the agency agreement on the grounds that unlawful shipments had been made, and Catalyst brought proceedings claiming wrongful repudiation of contract on the basis that the shipments had, in fact, been lawful. The claim was allowed at first instance, with HH Judge Grenfell finding that the relevant provisions of the German legislation placed the primary responsibility for determining the suitability of the financial guarantee on the exporting competent authority and the importing competent authority of destination was only obliged to investigate this in exceptional cases. The factual position in relation to the English and Irish shipments notifications had been different, but the in both cases the importing competent authority had not had sufficient reason to believe that the financial guarantee was invalid, so that there had been no breach of the national Waste law and it was unlikely that a prosecution based on an alleged infringement of German law would have succeeded. There was nothing in German law which suggested that a mere concern as to the validity of the financial guarantee had been sufficient to render unlawful that which was plainly lawful under Art.27. The general consent provided under Art.9 of the 1993 Regulation rendered the intervention of the importing competent authority unnecessary unless the national legislation gave it authority to do so, which had been found not to be the case. As the shipments had been lawful, Nickelhutte's termination of the agency agreement had constituted a repudiatory breach and Catalyst was entitled to damages. The case has now been the subject of an unsuccessful appeal to the Court of Appeal in ‘Catalyst Recycling Ltd v Nickelhutte Aue GmbH’ ([2008] EWCA Civ 541), the issues being whether German or Community law made it illegal to ship waste whilst the importing competent authority queried the financial guarantee, and whether Catalyst’s conduct amounted to repudiatory breach of contract if such shipments had been illegal. Waller LJ found that the question whether any shipment was illegal as a matter of German law turned on the proper interpretation of s. 7(1) and s. 7(2) of the German Waste Transport Law, and Section 7(1) seemed to be clear in saying that a notifier had to, before notification, have provided security. In the present case, Catalyst had provided security before notification and therefore, on a natural reading of the words, no breach of Section 7(1) could be established. Section 7(2) placed the responsibility for determination of the security on the competent authority at the place of shipment. Although it allowed, in certain circumstances, the authorities in the importing country to determine the adequacy of the required security, that was only if undertaken prior to shipment. Such a determination had to be by way of an administrative act (“Bescheid”) determining what

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security was required in its place. Even if the adequacy of the security could have been said to be arguable, such an act had not been undertaken. Accordingly, no breach of s. 7(2) could be established, which equated with the view of Catalyst's expert witness and the judge could not be criticised for adopting that view as correct, and finding that no illegality under German law had been established in relation to any of the shipments. Even if that was incorrect, on any view Catalyst could not be held to be in repudiation of the agency agreement. The case was neither one where Catalyst had not attempted to obtain all requisite permits under the European Regulation, nor one where it had in fact failed to obtain the financial guarantee required by Article 27. If it had acted unlawfully by reference to a provision of German law which went beyond what the European Regulation required, the breach was a highly technical one. Furthermore, it was not alleged that Catalyst had deliberately flouted a provision of German law. It had endeavoured to perform the contract, and deliver on time and a guarantee had in fact been in place. Even if general consent provided under Art.9 was not sufficient, ultimately all permissions had been granted and there had been no breach of any of the terms of those permissions. To establish a repudiation, Nickelhutte either had to establish that Catalyst had altogether refused to carry out the contract or had been in breach of a condition of the contract or at least some term of the contract with such consequences as to amount to a repudiation. Catalyst had clearly sought to perform the contract and so far as a condition or any term is concerned it was unclear what express or implied term was relied on. Simply demonstrating that in delivering goods into a foreign country a law of that country had been broken was not sufficient on its own. The question was whether a term of the contract in relation, for example, to obtaining a financial guarantee had been broken. Nickelhutte simply had not demonstrated a breach of a condition of the contract, or any term allowing for termination or conduct on Catalyst’s part which demonstrated an intention not to continue with the contract. Contaminated land and personal injuries damages in Public Nuisance The Court of Appeal has dismissed an appeal against a refusal to strike out a claim of public nuisance arising from contaminated land. The case is an interesting one as it very clearly rebuts the view that the House of Lords has precluded the recovery of damages for personal injury arising out of a public nuisance. In ‘Corby Group Litigation v Corby Borough Council ([2008] EWCA Civ 463) the claimants’ mothers had lived close to a large area of land acquired by the appellant from British Steel Corporation with a view to reclamation and redevelopment. The land was heavily contaminated and the claimants alleged that their mothers were exposed during the embryonic stage of their pregnancies to toxic materials in the course of the Council's reclamation and decontamination programme and that this exposure caused upper limb deformities which they had all been born with. Group Particulars of Claim were served, which pleaded the case on negligence alone. In response to an action to strike out parts of the claim, the claimants served additional points of claim which included the introduction of claims based upon breach of statutory duty and public nuisance. The appellant then sought to strike out the claim in public nuisance on the grounds that as a matter of law damages for personal injury could not be recovered for public nuisance. The master found that this was a “developing area

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of the law” and he was not satisfied that the claim in public nuisance had no real prospects of success. Accordingly, he dismissed the application to strike out the claim in public nuisance. The appellant then appealed, which in view of the importance of the point, was ordered to be heard by the Court of Appeal. The appellant submitted that whilst there were many cases both at first instance and in the Court of Appeal in which such damages had been awarded, the recoverability of such damages had been assumed and never been in issue and, therefore, had never been the subject of a reasoned decision. In the light of the decisions of the House of Lords in ‘Hunter v Canary Wharf Limited’ ([1997] AC 655) and ‘Transco plc v Stockport MBC’ ([2003] UKHL 61), which considered an article from 1949 by Professor Newark, the appellant submitted that it could now clearly be seen that this assumption had been wrong and that previous cases in which personal injury damages had been awarded for public nuisance have been wrongly decided. Dyson LJ dismissed the appeal, finding that the passages from the cases relied upon by the appellant did not bear the weight which the appellant sought to place on them. In so far as they related to the tort of public nuisance, the observations were obiter dicta because none of the claims in either case was in public nuisance and they did not include claims for damages for personal injury. The main passage relied upon came nowhere near to being a clear statement that damages for personal injury should no longer be recoverable in public nuisance. Lord Goff merely said that there was “now developing a school of thought” that personal injury claims should be altogether excluded from the domain of nuisance and that Professor Newark was the foremost proponent of this approach. There was nothing in the passage to indicate that Lord Goff in Hunter agreed either with the developing school of thought which, if adopted, would have involved an important change in law which had been established and regularly applied for a long time. He had not intended to say anything definitive about public nuisance and the passage from the speech of Lord Hoffmann in Hunter had dealt only with private nuisance. With the qualification that Rylands v Fletcher was a special form of private nuisance, the same comment could be made about the passage from the speech of Lord Hoffmann in Transco also relied upon. Therefore, the long-established principle that damages for personal injury could be recovered in public nuisance had not been impliedly reversed by either of these two decisions of the House of Lords. Indeed, the principle had not even been criticised in any of their lordships' speeches. This was not surprising in view of what was in issue in those cases and the differences between public and private nuisance. The most that could be said was that Hunter had raised the serious possibility that the House of Lords may in the future adopt the reasoning of Professor Newark and change the law. It was not self-evident that the law should be changed and that Professor Newark was necessarily right to regard the proposition that such damages are recoverable as a “heresy”. It was important to have in mind the true nature of public nuisance and it seemed at least arguable that Professor Newark had been wrong to describe a public nuisance as a “tort to the enjoyment of rights in land”. The definition of the crime of public nuisance said nothing about enjoyment of land and some public nuisances undoubtedly had nothing to do with the interference with enjoyment of land. The essence of the right that was protected by the tort of private nuisance was the right to enjoy one’s property. The essence of the right that was protected by the crime and tort of public

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nuisance was the right not to be adversely affected by an unlawful act or omission whose effect was to endanger the life, safety, health etc of the public. In those circumstances, it was difficult to see why a person whose life, safety or health had been endangered and adversely affected by an unlawful act or omission and who suffered personal injuries as a result should not be able to recover damages. It was not open to the Court of Appeal to decide that damages for personal injury were not recoverable in public nuisance. Contaminated land investigations and misrepresentation An interesting case regarding representations as to the extent of land contamination at a property has been decided by the Technology and Construction Court. In ‘Lambson Fine Chemicals Ltd v Merlion Capital Housing Ltd’ ([2008] EWHC 168 (TCC)), the claimant was the vendor of the property sold it to the defendant but leased it back to carry out some demolition works. Part of the purchase price was retained, with a residual sum claimed by the vendor. The defendant resisted the claim on the basis that it had entered into the sale agreement with the claimant in reliance upon a written representation made by the claimant’s director as to the extent of the contamination at the property. The defendant maintained that this representation had been made fraudulently and that, following its purchase of the property, it discovered that over 14,000 tonnes of soil had been contaminated by “Blue Billy”, a waste product from gasworks which contained high concentrations of cyanide. In addition to the allegations of fraud, the defendant made alternative claims for breach of contract and/or breach of warranty based on the same written representation. The defendant counterclaimed a sum representing the cost of excavating and removing the soil contaminated by the Blue Billy. An environmental survey had been carried out whilst Heads of Terms were being negotiated and the subsequent report included a cost estimate for the principal soil and groundwater liabilities identified on site. The defendant was involved in drafting letters from the reports author regarding possible remediation and management strategies. There was some dispute as to what statements were made at a pre-contract meeting, following which two letters were provided by the claimant. The first stated that it had “not deposited generated or utilised the Blue Billy” identified. The second stated that it was not aware of any further contamination other than that specifically identified in the environmental survey report and that the parties had agreed that borehole tests indicated a level of contamination for the property as a whole and should not therefore be construed as meaning that there was only contamination at the site of those boreholes. The sale included a retention of monies regarding possible clean up of further contamination caused by the demolition works. The defendant then discovered that much larger quantities of soils on the property had been contaminated by “Blue Billy” than had been suggested by the environmental survey and report. Following negotiations regarding the funding of clean up costs, there was an agreement to share the costs of certain remedial works. The claimant then formally requested the release of retained funds and subsequently commenced proceedings. HH Judge Peter Coulson QC found that the second letter had to be interpreted against the relevant factual background, which was that the property was extremely valuable, with huge development potential, as a result of which the property’s value had been generally

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unaffected by the particular amount and degree of contamination at the site, and that the defendant had been very keen to buy it. Both parties were sophisticated commercial organisations, keen to get the best deal for themselves from the sale of the property. The claimant had given full disclosure and had never sought to keep back information or to obstruct the defendant or environmental consultant from obtaining whatever information they had reasonably required prior to the sale. It had been known to everyone involved that there was heavy and widespread chemical contamination across the site, so that extensive remediation works were going to be required. The precise details of those works were the responsibility of the defendant, as the purchaser of the property, and the precise scope of the works was out of the hands of the parties, being dictated in large part by what the local authority was prepared to accept and what remedial works it insisted upon. The report and surveys on which it was based had been available to both parties. On its proper construction, the second letter did not contain an actionable misrepresentation, let alone one which evidenced fraud or deceit. The claimant had no knowledge of any further contamination beyond the facts and matters set out in the report. The claimant was entitled to the outstanding sum from the retention money, with interest. In carrying out the remediation work to remove the Blue Billy, the defendant had relied on the agreement that the claimant would contribute to the costs of that work and that agreement had been unaffected by the finding that there was no misrepresentation. It would be unconscionable now to allow the claimant to seek to avoid being bound by that agreement. Although it concerns a private law action based upon alleged misrepresentations, rather than regulatory action under Part 2A of the Environmental Protection Act 1990, the case provides an illuminating example of the complexities of investigating contaminated sites, structuring deals with appropriate documentation and the importance of parties’ knowledge. The critical issue of securing evidence of such knowledge in allocating and apportioning remediation liabilities is particularly evident, albeit that such knowledge was absent in the case itself. The pragmatism of judicial review In R(on the application of (1) Lewes District Friends of the Earth Ltd (2) Dove 2000 Ltd and (3) Newhaven Town Council v East Sussex County Council and Veolia ES South Downs Ltd [2008] EWHC 1981 (Admin) , the claimants sought judicial review of a decision by East Sussex County Council to grant planning permission to Veolia ES South Downs Limited for the construction and operation of an energy recovery facility ("ERF"), together with ancillary infrastructure including a waste transfer station The hearings proceeded as two joined rolled up hearings of the claimant’s applications for permission to apply for judicial review, with the substantive hearing to following if permission was granted. The judgment of Sullivan J highlights the pragmatic approach of, some judges at least, to challenges to decisions by public authorities and demonstrates the difficulties that detailed academic arguments can run into. The Claimants challenged the grant of planning permission on 5 grounds; three of which Mr Justice Sullivan concluded were not arguable. Two of the three grounds related in

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part to an interpretation of the local plan and the relevant planning officer’s report, which the Judge said was not supportable. The third ground related to the application, by the local planning authority, of the guidance in PPS 25 to development and flood risk. Sullivan J did not accept the Claimant’s argument that the planning authority had failed to apply the guidance properly but said that in any event: “The complaint made by the claimants is, in any event, wholly academic because PPS25 advises local planning authorities to work in partnership with the Environment Agency …The defendant consulted the Environment Agency…It did not raise any objection… In this respect the case is readily distinguishable from R(Environment Agency) v Tonbridge and Malling Borough Council [2005] EWHC 3261 Admin, where it was the Environment Agency itself which was challenging a grant of planning permission because it was contended that the sequential approach in PPS25 had not been adopted by the Local Planning Authority in that case….The complaint is wholly artificial and treats policy advice as though it was a legal obstacle test rather than an aid to practical environmental decision making”. The Judge then considered the two grounds he thought had more merit which were as follows:

- the County Council erred in law and had regard to an immaterial consideration in relying upon the Pollution Prevention and Control permit which had been unlawfully granted and was subsequently quashed by the High Court

- The County Council failed to have regard to a material consideration being the recycling targets for 2020 and 2025 in Regional Spatial Strategy Policy W6 and the requirement to provide facilities to meet those targets in Policy W7

PPC permit The Claimants sought to argue that, having been quashed, the PPC permit never had any legal effect whatsoever and therefore, in relying upon it in the report the defendant took into consideration a legally irrelevant matter. Mr Justice Sullivan again adopted a more pragmatic approach: “In my judgment it is unnecessary to examine the consequences in legal terms of the quashing of a permit or consent, not least because relief in judicial review is a matter for the discretion of the court. Thus, in practice in such cases, the court will examine the extent to which and the reasons why the PPC permit was relied upon by the defendant when granting planning permission and the reasons for quashing the PPC permit to see what effect, if any, those reasons had on the defendant local planning authority’s reliance on the PPC permit when granting planning permission…” Having stated the relevant principle, Sullivan J then considered the officer’s report and noted that it followed the approach laid down by the Court of Appeal in Gateshead MBC v Secretary of State for the Environment [1995] ELR 37 (‘the Gateshead approach’) that planning and pollution control regimes are separate but complementary. He attached a great deal of weight to the fact that the Agency had agreed that the permit should be quashed because of a lack of full reasoning on CO2 emissions and not because it had any concerns with the substance of the permit. The Agency subsequently reissued the permit for consultation and its substance had not altered although the reasons for imposing the various controls and conditions had been amplified.

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“In summary, the Environment Agency’s views, as reported to the [Defendant planning] committee in the [planning officer’s] report, have not significantly changed. It has been prepared to amplify those views by giving further reasons. If the Agency’s conclusions are legally flawed, and that is the conclusion in any future judicial review proceedings, then the position will be that even though there is a planning permission the [energy recovery facility] will not be able to operate unless and until a PPC permit. However it will not mean that the grant of planning permission is invalid once the separate or complementary nature of the two regimes is properly recognised. For these reasons I reject Ground 1” Waste targets The Judge rejected the argument that there was no reference in the planning officer’s report to the recycling targets for 2020 and 2025 in Regional Spatial Strategy Policy W6. “As a matter of common sense, the further ahead one looks (especially if one looks to 2025) the uncertainties are bound to increase. I appreciate that the extent to which they increase is a matter for the judgment of the local planning authority, but in respect of both the targets which are described in terms as being aspirational and in terms of the figures for future arisings, common sense suggests that the further ahead one looks the more uncertainties there are. There is a danger of a loss of proportion in judicial review proceedings because, inevitably, attention is focused upon a particular criticism, which, in the present case was only a small part of a wide ranging policy picture. Against this background it can be seen that the complaint is academic given that, in light of the defendant’s own attitude to those targets, very little weight would have been given to them by the committee had they been expressly referred to. The report should not be considered in isolation but in this surrounding context…. Sullivan J concluded by saying he would have granted permission to apply for judicial review in respect of these two last grounds but that he did so only to refuse the substantive application. As is often the case, the transcript of the discussion between Counsel and the Court dealing with costs and permission to apply highlights several interesting, practical points, including:

- The Defendant sought its so called ‘Mount Cook’ costs (i.e the costs of the acknowledgement of service) and the costs of the substantive hearing (approx £47,000) and provided separate schedules for each set of costs

- The Claimants sought to rely on the [Working Party report on access to environmental justice} to argue for no order as to costs or a costs cap which limited the exposure of each of the Claimants to costs of £10,000, as per an earlier (without prejudice save as to costs) proposal made to the Defendant County Council

- As the hearing was a rolled up hearing, the claimants had been deprived of any protection they might have expected under the principles of the Mount Cook case that would apply to a permission hearing

- The Judge decided to have submissions in writing on costs but indicated that his

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provisional view that detailed assessment would be appropriate given the costs were contensious. The matters of principle for consideration were whether there should be some form of capping order or no order for costs or some alternative order which reflected the fact the hearing was a rolled up hearing which deprived the Claimants of ‘Mount Cook’ protection

Landfill tax and exemptions In Augean Plc V Revenue & Customs Commissioners [2008] EWHC 2026 (Ch) Augean PLC appealed against a decision of the VAT and Duties Tribunal upholding the refusal of Customs & Excise to grant a certificate of exemption for landfill tax Augean PLC owned a former quarry site that had been used for the deposit of waste as landfill which resulted in the presence of pollutants in, on or under the site. The landfill activity had, however, ceased over 10 years ago and Augean PLC proposed, as part of a plan for reclamation and redevelopment of the site, to extract all the contaminating landfill waste, to construct a modern containment feature on the site and to deposit, as landfill, hazardous waste material. Once filled, the site was to be returned to agricultural use. C's application for a certificate of exemption from landfill tax under the Finance Act 1996 s.43B was refused by the commissioners. C appealed against that decision. The tribunal dismissed that appeal, having found that the relevant activity for the purposes of s.43B(8)(c) of the Act was not the former and concluded landfilling of waste at the site, but rather the continuing one of the disposal of waste by landfill. It fell to be determined whether all relevant activities had ceased at the site for the purposes of s.43B. C contended that the objective of s.43B(7)(b) of the Act was reducing or removing the potential of pollutants to cause harm, and that where the new activity on the site involved the deposit of hazardous materials which nullified their potential to cause harm they were not "pollutants" within the meaning of s.43B(8)(c) and s.43B(10)(a) A pollutant in s.43B had to be a substance that was or was capable of being released. C submitted that as the hazardous waste to be deposited at the site would be contained within impermeable voids dedicated to such waste, there would be no emission or release of pollutants and that the relevant activity at the site, that of depositing pollutants, therefore ceased. The commissioners contended that a pollutant was a substance capable of causing pollution and that the fact that the manner in which such substances were deposited at the site would, or was anticipated to, remove the risk that they would cause pollution did not mean that, as substances, they were not pollutants.

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The Court held that "Pollutant" was to carry its ordinary meaning in the 1996 Act. As a matter of ordinary English, pollution was the act of polluting or, depending on its context, the product of polluting activity, while a pollutant was a "polluting agent or medium" or substance capable of causing pollution. That that was the meaning of pollution in s.43B of the Act was clear from the reference in s.43B(7)(b) to "the potential of pollutants to cause harm". While the reclamation required by s.43B(7)(b) had to reduce or remove the potential of pollutants to cause harm, s.43B(8)(c) required that the activity should not result in the "presence of pollutants" in, on or under the land. As C's proposed landfill activity would result in the presence in the land of substances capable of causing pollution, the relevant activity had not ceased and s.43B(8)(c) was not satisfied. Abatement notices and costs awards against local authorities The case of R (Chiltern District Council) v Wren Davis Ltd [2008] EWHC 2164 (Admin) considers the award of costs to a local authority on an unsuccessful appeal against an abatement notice. Chiltern District Council appealed, by way of case stated, against a costs order made by magistrates in favour of the respondent company Wren Davis Ltd. The local authority had served the company with an abatement notice under the Environmental Protection Act 1990 s.80 requiring abatement of the noise from the use of its cooling tower within one month. The company’s appeal against the abatement notice failed, but the magistrates extended the time for compliance with the notice to six months. The magistrates ordered the local authority to pay £1,000 towards the company’s costs on the basis that it had not offered the company the option of reasonable discussions. The Administrative Court held that the magistrates should have concluded that since the local authority had successfully contested the appeal and the abatement notice had been upheld, it was prima facie entitled to its costs. “I am entirely satisfied that the appraisal of what had occurred should have led the magistrates to conclude that the council had successfully contested the appeal and the abatement notice had been upheld. That prima facie meant that the council were entitled to their costs, having succeeded in the appeal. That is not invariably the case, but if one looks in this case to reasons why they should not have recovered their costs, it appears that the magistrates took the view that the reason why they should not have recovered their costs at all but, worse, should pay £1000 towards the costs of the company, was because the company had maintained it had not been offered the option of reasonable discussions” (Sir George Newman) In the context of what had taken place, reasonable discussions could only have been addressed to the question of an extension of time for compliance. However, the company

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had not requested an extension of time or accepted that the abatement notice was valid. In those circumstances, reasonable discussion could not have taken place. The magistrates had therefore misapprehended the principle to be applied and had wrongly deprived the local authority of its costs. The local authority had reasonably pursued its statutory duty at public expense, and had succeeded in contesting the appeal. It was plainly wrong that it had been ordered to pay a contribution to the company’s costs simply on the basis that the inevitable had to occur, namely that the abatement notice had to be extended. No sensible local authority would have refused an extension of time if it was reasonably proposed.

“Those familiar with abatement notices know that in call cases councils normally gratefully receive suggestions as to an extension of time where a case is put forward in which the relevant party, having received the abatement notice is saying “We will comply but we need a bit more time”. No sensible council will not grant the time then, if it is reasonably proposed”

The order for the payment of costs to the company was set aside. Best practicable means and abatement notices In St Albans District Council v Patel (2008), the Administrative Court held that a magistrates' court had not failed to apply the proper test of best practicable means under the Environmental Protection Act 1990 s.80(7) in holding that a pub owner had established the statutory defence against the contravention of a noise abatement notice. At the time of writing a transcript of the judgment and the neutral citation number were not available. St Albans District Council appealed by way of case stated against a decision of a magistrates' court that the respondent, Mr Patel, had established the statutory defence against the contravention of a noise abatement notice. Mr Patel owned licensed premises. Informations were preferred by the local authority against him, alleging that he had on three occasions contravened a requirement of an abatement notice under the requiring that noise nuisance be abated. It was alleged that noise nuisance from the pub garden had been heard within the property of a local resident. The magistrates held that there had been statutory noise nuisance on the relevant dates but that Mr Patel had established, on a balance of probabilities, the defence of best practicable means under the Act. The magistrates found that Mr Patel had taken various steps to reduce the noise including closing one area of the garden, and restricting the number of people allowed there. They found that the advice of an environmental health officer, from whom they heard evidence, indicated that the only way for Mr Patel to comply with the notice was to close the garden, but that the implications of doing so, from a financial perspective, would not be practicable. The local authority submitted that the magistrates had failed to apply the proper test of best practicable means under s.80(7) of the Act. It argued that the magistrates had considered only the practicability of one option, namely to close the

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garden altogether, but that they had not considered lesser measures such as further reducing the area of the garden used by customers, or by restricting the hours of use. The Court held that it was clear from the case stated that the magistrates were fully aware of the contention that there were lesser measures that could have been taken. It was clear that the magistrates had those lesser measures well in mind when they concluded that Mr Patel had established that he had used the best practicable means to counteract the noise nuisance. When the case stated was read as a whole, it was plain that the magistrates agreed with Mr Patel’s evidence that financial effects prevented him from employing those lesser measures, and that on the balance of probabilities, the lesser measures were not practicable. Accordingly, the test of best practicable means was properly formulated and applied. The first case seeking damages for a Court’s error in applying EC law The case of Stephen Cooper v Attorney General [2008] EWHC 2178 (QB) is the first case in the United Kingdom in which a Claimant has applied for an award of damages on the ground that a Court adjudicating at last instance made an error in applying EC law. It is also yet more litigation over the White City development in West London (which Mrs Barker challenged all the way up to the ECJ and back again). The proceedings were based on the cause of action recognized by the European Court of Justice in Case C-244/01 Kobler v Repulik Osterreich [2003] ECR-I 10239. The ECJ stated as follows (at para 59) “the principle that Member States are obliged to make good damage caused to individuals by infringements of Community law for which they are responsible is also applicable where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals, the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties. In order to determine whether the infringement is sufficiently serious when the infringement at issue stems from such a decision, the competent national court, taking into account the specific nature of the judicial function, must determine whether that infringement is manifest” Mr Cooper as trustee of a branch of the Council for the Protection of Rural England, had applied for judicial review of a local authority's decision to grant outline planning permission and approval of reserved matters for the development of a large site in London. The ground for challenge was that the local authority officer who had decided that no environmental impact assessment was necessary had had no authority to make that decision, so that there had been a failure to comply with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 reg.4(2), which had implemented Directive 85/337 . Those applications were heard by Richards J and rejected for reasons of delay.

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Mr Cooper had also sought judicial review of the local authority's decision to refuse to revoke the permission, and that application was rejected on the merits. Mr Cooper’s appeals against all three refusals were rejected by the Court of Appeal. In the judgments relating to reserved matters and revocation, the courts had stated that an environmental impact assessment was required before the grant of permission, and in relation to revocation the courts had addressed the issue on the basis that the Regulations had correctly implemented the Directive. The issues before Plender J were (i) whether the English courts had erred in EC law in the reasoning that led to the disposal of the judicial review proceedings; (ii) whether such errors were sufficiently serious to be of the type required for State liability. Plender J held that: (1) In respect of Mr Cooper’s application in relation to the outline planning permission, there was nothing incompatible with EC law in a Member State fixing a time limit within which proceedings had to be commenced. Therefore, the courts had not erred in rejecting the application by reason of delay. In relation to the decisions in respect of reserved matters and the refusal to revoke the permission, the courts had made errors of law by stating that the local authority had been obliged to consider whether an environmental assessment was required before consent was given, as that was inconsistent with the later decision of the ECJ in Commission of the European Communities v United Kingdom (C-508/03) (2006) QB 764 ECJ (1st Chamber), Commission applied. In relation to the revocation issue the courts had also erred in proceeding on the premise that the Regulations had correctly implemented the Directive, as the decision in Commission had found that in one respect that was not correct. (2) Member States had to make good damage caused to individuals by infringements of EC law for which they were responsible even where the infringement stemmed from a decision of a court adjudicating at last instance, provided that three conditions were fulfilled (a) the rule of law infringed had to be intended to confer rights on individuals; (b) the breach had to be sufficiently serious; (c) there had to be a causal link between the breach of the obligation and the loss or damage sustained by the parties, Kobler v Austria (C-224/01) (2003) ECR I-10239 AGO and Traghetti del Mediterraneo SpA (In Liquidation) v Italy (C-173/03) (2006) All ER (EC) 983 ECJ applied. However, claims based on Kobler were to be reserved for exceptional cases, involving errors that were manifest. In assessing whether that was the case, account had to be taken of the specific characteristics of the judicial function, which entailed the application of judgment to the interpretation of provisions capable of bearing more than one meaning. In the instant case, although there had been errors of law, the decisions had been consistent with EC law as it had been interpreted on the dates on which those judgments had been given, and were based on a plausible interpretation of the Directive. There had been no manifest error such as to give rise to liability pursuant to Kobler.

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Judicial Review of fuel poverty targets The case of (1) FRIENDS OF THE EARTH (2) HELP THE AGED v (1) SECRETARY OF STATE FOR BUSINESS ENTERPRISE & REGULATORY REFORM (2) SECRETARY OF STATE FOR ENVIRONMENT, FOOD & RURAL AFFAIRS (2008) [2008] EWHC 2518 (Admin) concerned a challenge by Friends of the Earth and Help the Aged to the alleged continuing failure of the defendant secretaries of state to perform their duties under the Warm Homes and Energy Conservation Act 2000 s.2(5). The purpose of the Act was to require the secretary of state to publish and implement a strategy setting out policies ensuring that, as far as reasonably practicable, persons did not live in fuel poverty. A strategy was published, setting as its target that the government as far as reasonably practicable would seek an end to fuel poverty by certain dates. The government initiated a series of measures designed to address the issue, but the evidence indicated that a number of households would remain in fuel poverty beyond the dates set out in the strategy. The government took the view that it was taking all measures which were reasonably practicable to meet its targets. However, in a witness statement of a representative of DEFRA, it was stated that it was not considered reasonably practicable to take all of the measures that would be required to eradicate fuel poverty, as such measures were not necessarily cost effective and the resources were not available to pay for them all given the money available to the department in the light of other spending commitments. F submitted that the anticipated failure of the government to reach the targets demonstrated that the secretaries of state had not done and were not doing what was reasonably practicable to achieve them because of budgetary constraints. F further argued that the secretaries of state had not therefore properly understood the duty to implement the strategy. The Court held that (1) The obligation on the government was to take the steps considered necessary to implement the strategy. Where the strategy required the government as far as reasonably practicable to seek an end to fuel poverty by certain dates, the government must consider what steps were "reasonably practicable" to meet those objectives. In framing the Act, Parliament would have taken as axiomatic that the pressures on budgets were intense and that the government would have to take the necessary steps in the context of other pressing needs for funds. Parliament could not have intended that, whatever the expense, so long as not disproportionate to the benefit, the government should be obliged to expend whatever funds might be necessary to eliminate fuel poverty in priority to all other commitments. Parliament obliged the secretary of state to formulate a policy strategy to ensure, so far as reasonably practicable, the desired objectives. It then required the government to take the steps which in its opinion were necessary to implement the policy strategy. In doing so, it imported a statutory duty to make those efforts. It did not assume a statutory duty to achieve the desired results whatever the cost. Absent a rationality challenge or a demonstrated failure to implement an identifiable part of the strategy's provisions, it was not open to the court to review the policy decisions of the secretaries of state as to the way they should go about implementing the strategy. It was

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open to the government to have regard to its overall budget and the other calls on its resources in deciding what steps to take in the implementation of the strategy, including its requirement that efforts should be made to achieve the targets as far as reasonably practicable. The penalty, if any, for failure to achieve the desired results of the strategy because of errors in policy making should be political rather than legal. (2) That conclusion did not ignore the provisions of s.3 of the Act. It might be helpful if the use of that type of provision in legislation was reviewed so as to avoid possible confusion in the future. (3) It was clear that the duty imposed by s.2(5) of the Act was a duty imposed on the secretary of state, that is, a duty imposed on the government as a whole. On reading the witness statement of the representative of DEFRA, it seemed possible that the decision as to what steps were reasonably practicable might have been determined not by reference to the resources of government as a whole but merely by reference to the budgets of individual departments. If that was so then there might have been a potential breach of duty under the Act to that limited extent. However the evidence on that point was far from conclusive and was an insufficient basis for a finding of breach of statutory duty. The challenge sought to be made, in the guise of an allegation of breach of the duty under s.2(5) was, in fact, a challenge to the making of policy, in particular in relation to the allocation of funds. (4) F's contention that the government had failed to implement a particular aspect of the strategy was not made out. Justine Thornton 39 Essex Street London WC2R 3AT justine.thornton@39essex.com