Terms of Reference
The Environmental Litigation Working Party seeks to review, influence and inform UKELA members on matters connected with environmental litigation. This includes:
- regulatory reform, including enforcement, civil sanctions and sentencing;
- access to justice, including judicial review reform and the rules for costs in environmental cases;
- improving the machinery of environmental litigation, for example by consolidating more cases within the new First-tier Tribunal (Environment).
The Working Party has a wide membership, including solicitors, barristers, consultants and regulators. We meet three to four times per year. Meetings are generally held in London, but we aim to provide dial-in facilities for those who wish to participate by phone. We exchange information in-between meetings via email.
The Working Party is open to any UKELA member with an interest in the area. Contact the convenor if you would like to join the group.
We will shortly be providing details.
Recent Events and Activities
The most recent Working Party meeting took place at 5.00pm on Thursday 21 September at the offices of CMS, 78 Cannon St, London, EC4N 6AF.
Our guest speaker was David Hart QC of 1 Crown Office Row. David's environmental work covers the whole range of issues - litigious, regulatory, planning, public law, criminal and transactional work – over all subject areas including water, waste, air, odour, noise, fishing, and windfarms. He also has a wide contaminated land practice, and he has appeared in courts at all levels, including the European Court of Justice, the House of Lords and the Supreme Court. He also appears in the criminal courts on environmental matters.
During our WP meeting, we discussed the response to the Environment Agency’s consultation on its proposed changes to its current Enforcement Sanctions and Guidance and we had joining us a representative from the Environment Agency.
2015 meetings included:
- a presentation by Chris Hopkins barrister from No 5 Chambers about hot environmental issues, on 11 November at CMS Cameron McKenna's London offices;
- a joint meeting with the water working party on the topic of fracking and water contamination, held at the annual UKELA conference in Liverpool, on 4 July;
- an update by Chris Badger of Six Pump Court on recent litigation developments and trends, on 21 April.
The Working Party is taking an active interest in the following areas:
Costs in environmental cases: We responded in December 2015 to a Ministry of Justice consultation on proposed changes to the environmental costs regime that was introduced in April 2013. Our response raised concerns, amongst other things, that the proposals would create uncertainty for all parties, cause delays and satellite litigation, and risk putting the UK in breach of the Aarhus Convention. A copy of the response is available below.
Sentencing environmental offences: The Sentencing Council's new guideline for environmental offences took effect in 1 July 2014. It represents a significant departure from past sentencing practice, involving the introduction of a new tariff-based approach to setting fines.
The Working Party has been taking a close interest in development of the guideline and its application in practice. We met with representatives of the Sentencing Council in February to talk through the final version of the guideline, prior to implementation. We responded to the Sentencing Council's consultation in summer 2013. The response is available below.
Civil Sanctions: New regulations that came into force on 6 April 2015 make it possible for the Environment Agency to accept enforcement undertakings to deal with offences under the Environmental Permitting Regulations, instead of prosecuting them. UKELA welcomes this move as the first extension of civil sanctions to mainstream environmental offences, albeit we would have preferred to have seen a wider range of civil sanctions made available: see our correspondence with the government on this issue.
The Working Party is keen to see the guidance on the use of enforcement undertakings updated to address general issues connected to their use, as well as points specific to environmental permitting offences. We are in touch with Defra and the Environment Agency on this issue. We set out our key points in this note to the Environment Agency.
Judicial review reform: The Ministry of Justice published plans for reform, following the second consultation on this area in nine months. The underlying aims of its proposals was 'to stem the growth in applications for judicial review' (December 2012 consultation) and to reduce delays to development projects in particular.
Together with the Planning & Sustainable Development Working Party, we submitted joint responses to both of the recent consultations. The first response (January 2013), raised concerns that reducing the time limit for bringing planning judicial reviews 'would give rise to a real sense of injustice and to actual injustice'; and cautioned against removing the right to seek an oral permission hearing for applications that have been rejected on the papers as 'entirely without merit'. The second response (November 2013) was broadly supportive of proposals for a specialist Land and Planning Chamber of the Administrative Court, but raised concerns about some proposal including those to restrict standing in a way that might be contrary to the Aarhus Convention. Copies of both response are available below.
Extending the jurisdiction of the environmental tribunal: Defra and the Welsh Assembly consulted in Spring 2013 on reforms to the Environmental Permitting Regulations that included transferring permitting appeals to the new environmental tribunal (the environmental jurisdiction of the First Tier Tribunal). UKELA supports consolidating more appeals in the new tribunal. The consultation response is available below.