Environmental Law
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ACCESS TO JUSTICE: JUDICIAL REVIEW
ACCESS TO ENVIRONMENTAL INFORMATION
PARTICIPATION IN ENVIRONMENTAL
DECISIONS
Access to Justice: Judicial Review
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 Environmental enforcement authorities are public
bodies exercising public powers which are exercised
under statute and delegated legislation
 It may be that authorities do not follow statutory
procedures; arrive at decisions unfairly; make decisions
in absence of authority
 High Court: Judicial Review: Ultra Vires
 Reasonableness
 Associated Provincial Picture House v Wednesbury
Corporation [1948] 1KB 223.
Judicial Review
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Remedies:
Certiorari; Prohibition; Mandamus
Need to have:
 Standing Locus Standi
 Promptness [No Delay]
 Grounds [Wednesbury]
Promptness
Three months; other statutory provision; undue delay
Alternative Statutory remedy
R v Environment Agency, ex parte Petrus
Oils[1999]EnvLR 732
Undue delay; good reason/prejudice
Judicial Review
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Flexibility
Lack of promptness
R v Swale BC, ex parte RSPB [1991]
Commencement Date
R v Secretary of State for Trade and Industry, ex parte
Greenpeace [1998] Env LR 413
Courts have strictly enforced rules on delay
As rules on standing have become liberalised
But flexibility in Court discretion to determine
applications in accordance with public interest
R v Secretary of State for Trade and Industry, ex parte
Greenpeace (No 2) [2000] Env LR 221.
Judicial Review
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Standing/Locus Standi
 Sufficient Interest
 Inland Revenue Commissioners v National Federation
of Self Employed and Small Businesses [1982] AC 617
Lord Wilberforce
 R v Secretary of State for Environment, ex parte Rose
Theatre Trust [1990] 1 AER 754
 Local/general interest groups: geographic connection
 Liberalisation?
Judicial Review
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 R v Pollution Inspectorate ex parte Greenpeace Ltd
(No 2) [1994] 4 All ER 329 (Otton J)
 Refused to follow Rose Theatre
 R v Secretary of State for Foreign and
Commonwealth Affairs, ex parte World
Development Movement Ltd (Pergau Dam)[ 1995] 1
WLR 386
 Discretion / Uncertainty?
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Judicial Review
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 Judicial Review of Secretary of State decision to
refuse planning permission (not appeal)
 Article 6 ECHR Right to a fair, public and impartial
hearing
 Human Rights compliant
 R (on the application of Alconbury Developments
Ltd) v Secretary of State for the Environment,
Transport and the Regions [ 2001] 2 All ER 929
Environmental Information
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 United Nations Convention on Access to Information, Public Participation
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in Decision-Making and Access to Justice in Environmental Matters 1998
(Aarhus Convention)
EU Law Directive 2003/4/EC
Environmental Information Regulations 2004
Duty on public authorities to provide environmental information to public
Definition - Regulation 1 (State of elements of environment; emissions,
releases, discharges; admin measures, policies, legislation, plans,
programmes to protect; implementation reports; cost benefit analyses;
state of human health and safety, including food chain.
Time limits; exemptions
Registers (DEFRA)
Criticism
Judicial Review(Public consultation)
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 R (on the application of Greenpeace Ltd) v Secretary of State
for Trade and Industry [2007] Env L Rep 29
1 In this application for judicial review the claimant applies
for a quashing order in respect of the defendant's decision,
announced in “The Energy Challenge Energy Review
Report 2006” to support nuclear new build as part of the
United Kingdom's future electricity generating mix. The
quashing order is sought on the ground that the consultation
process leading to the decision was procedurally flawed and
that therefore the decision was unlawful.(Mr Justice Sullivan)
Judicial Review(Public consultation)
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 Consultation exercise was seriously flawed.
 Application for judicial review of the policy decision
in the Energy Review that new nuclear build has a
role to play in the future UK generating mix succeeds
 Granted declaratory relief to effect that there was a
breach of claimant’s legitimate expectation to fullest
public consultation; that consultation process was
procedurally unfair; that the Energy Review decision
that nuclear new build ‘has a role to play’ was
unlawful.