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Environmental Litigation

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.

Next Meetings

The next Working Party meeting will take place at 3.15pm on Thursday 7 April at Weightmans office, 3 Piccadilly Place, Manchester M1 3BN. The meeting will include a presentation by a member of the National Measurement and Regulation Office (regulators of WEEE and RoHS, amongst other things) about their role and expanding remit.

Events information

Recent Events and Activities

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.

Environmental Offences - Definitive Sentencing Guideline

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.

Letter to Michael Fallon, Minister of State for Business and Enterprise, 20 December 2012

Michael Fallon's response, 7 February 2013

Letter to Amy Holmes, Director at Defra, 22 May 2014

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.

Note to the Environment Agency about guidance for enforcement undertakings, 27 March 2015

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.

Summary of the Government's position, February 2014

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.

Consultation Responses

Document TitleComments
Reduction in Sentence for a Guilty Plea Guideline: response to Sentencing Council consultation, 5 May 2016 
Costs Protection in Environmental Claims: response to Ministry of Justice consultation, December 2015 
Further Reform of Judicial Review: response to Ministry of Justice consultation, November 2013 
Sentencing Guideline for Environmental Offences: response to Sentencing Council consultation, June 2013 
Costs Protection for Litigants in Environmental JR claims: response to Ministry of Justice consultation, January 2012 
Civil Litigation Funding and Costs: response Ministry of Justice consultation, February 2011 
Criminal Penalties in Regulatory Contexts: response to Law Commission consultation, November 2010 
Draft Report on Aarhus Implementation: response to Defra consultation, November 2010 
One-way Costs Shifting: comments on Update Report of the Working Party on Access to Environmental Justice, August 2010 
Extending the Jurisdiction of the new Environmental Tribunal: response to Professor Macrory's questions, October 2010 
Implementing the New Civil Sanctions: response to Environment Agency consultation, May 2010 
Implementing Civil Sanctions: cover letter for response to Defra consultation, October 2009 
Implementing Civil Sanctions: response to Defra consultation, October 2009 
Civil Litigation Costs: submission to Jackson review, July 2009 
Draft Report on Aarhus Implementation: response to Defra consultation, March 2008 
Regulatory Enforcement and Sanctions Bill: response to Cabinet Office's BRE consultation, August 2007 
Regulatory Justice - Sanctioning in a post-Hampton World: response to Cabinet Office’s BRE Consultation, March 2006 
Review of Environmental Enforcement: initial response to Defra consultation, March 2006 
Judicial Review Pre-action Protocol: response to LCD consultation, June 2001Responses to the Lord Chancellor’s Department Consultation Paper, entitled ‘Judicial Review: A Proposed Pre-action Protocol’
Access to Information: response to European Commissions proposals, January 2001Comments from the UKELA Practice & Procedure Working Group on the Commission's Proposal, COM (2000) 402 Final, to replace Directive 90/313/EEC on the freedom of access to information on the environment
Sentencing for Environmental Offences: submissions to Sentencing Advisory Panel, October 1999Submissions from Members of UKELA Working Parties regarding the Sentencing Advisory Panel's Consultation Paper on Sentencing for Environmental Offences, Issued on 6 October 1999
The Work of the Environment Agency: submission, October 1999Submissions from members of the UKELA Practice & Procedure Working Party on the work of the Environment Agency

Position and Information Papers

Covering letter to response to Defra's Fairer and Better Environmental Enforcement consultation

Regulatory Enforcement and Sanctions Act 2008 - main issues note

UKELA position paper on civil penalties, June 2005

UKELA position paper on costs, November 2004

Information paper on environmental courts/tribunals, June 2005


Jill Crawford

Jill Crawford

Jill is an Associate Solicitor at BLM. She works in their Regulatory Team based in Birmingham, specialising in Environmental Regulation. Jill worked for a number of years at the Environment Agency as a prosecutor and advisory solicitor before returning to private practice.

0121 643 8777
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