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Report No. 186

United Kingdom:

In UK, the Department of Environment was set up in Nov. 1970. The statutes governing environment are the Wildlife and Countryside Act, 1981, the Water Act, 1989, the 1990 Planning Acts and the Environment Protection Act, 1990 (EPA). The Town and Country Planning Act, 1990 consolidated the legislations for England and Wales and amendments were made to the Planning and Compensation Act, 1990. The Scottish legislation is the Town and Country Planning Act, 1997. The Scottish Environment Protection Agency was established in 1996.

The Environment Agency in England and Wales was established in 1996 to bring together functions previously exercised by the National Rivers Authority (created in 1989) and Her Majesty's Department of Pollution. Then came the Environment Act, 1995 which deals with the Agency's powers.

The House of Lords held in R vs. Secretary of State for Environment, Transport and the Regions exparte Alconbury Development Ltd. & Others" 2001 UKHL 23 that the role of the Secretary of State, as both policy-maker and a decision-maker in individual planning cases (such as call inns) was, (when taken together with the right of Judicial review), compatible with the requirement under the European Convention on Human Rights.

The above decision of the House of Lords (according to the Royal Commission on Environmental Pollution)(23 rd Report on Environmental Planning, March 2002 para 5.33) dealt only with the position of the Secretary of State, and recognized that planning decisions in general raise questions of civil rights. The judgment had significantly left open the 78 position of planning inspectors making delegated decisions, the extent to which third parties have rights, and the extent to which other areas of environmental regulations are equally subject to such principles.

The Magistrate Courts, the Crown Courts (Appellate Courts) the Court of Criminal Appeals; the Country Court and the High Court were and are dealing with the planning and environmental cases. It was felt that there should be one Court or Tribunal to deal with the whole range of planning and appeal and enforcement work, including the levy of penalties.

This was pointed out in the report 'Enforcing Planning Control' (HM SO May 1989) by Robert Carnworth Q.C. (See "Environmental Enforcement: the need for a Specialist Court" Journal of Planning & Enforcement, 1992 p. 798). While some of the other recommendations were accepted in bringing forward the Planning and Compensation Act, 1991, there was no response in regard to the need for a unified system of Courts.

At that juncture, Lord Woolf, in his Garner lecture to U.K.E.L.A. on the theme 'Are the Judiciary Environmentally Myopic' summed up the problems of increasing specialization in environmental law and on the difficulty of Courts, in their present form, moving beyond their traditional role of detached 'Wednesbury' review. (The speech of Lord Woolf is printed in 1992 J.E.L. Vol 4, No.1, p.) He went on to discuss the benefits of "...having a Tribunal with general responsibility for overseeing and enforcing the safeguards provided for the protection of the environment...The Tribunal could be granted a wider discretion to 79determine its procedure so that it is able to bring to bear its specialist experiences of environmental issues in the most effective way."

The Tribunal, according to Lord Woolf, should have the benefit of architects, surveyors and a 'multi-disciplined adjudicating panel' with broad discretion over rights of appearance; power to instruct independent counsel on behalf of the Tribunal or members of the public; resources for direct investigation by the Tribunal itself; incorporation into the Tribunals of the existing Inspectorate to deal with 'cases of lesser dimensions'. Lord Woolf concluded:

I hope I have said enough to indicate that what I am contemplating is not just a Court under another name, nor is it an existing Tribunal under another name. It is a multi-faceted and multi-skilled body which would combine the services provided in existing Courts, Tribunals and Inspectorate in the environmental field. It would be a 'one stop shop' which should lead to faster, cheaper and the more effective resolution of disputes in the environmental area.

It would avoid increasing the load on already overburdened lay institutions by trying to compel them to resolve issues with what they are not designed to deal. It could be a forum in which Judges could play a different role. A role which enabled them not to examine environmental problems with limited vision. It could however be based on our existing experience, combining the skills of the existing inspectorate, the lands Tribunal and other administrative bodies. It could be an exciting project."

In the article by Robert Carnworth, Q.C., referred to earlier, the author has dealt with the strength and weakness of the existing jurisdictions in England in the areas of (i) enforcement procedures, (ii) the public inquiry, (iii) judicial review and statutory appeals, (iv) local ombudsman, and (v) Lands Tribunal and stated

With the impetus given by Sir Harry Woolf, there is now an opportunity to review the structure of the Courts and agencies concerned with the supervision of environmental law. Such a review should start by a pooling of ideas and experiences of all those involved in the practical working of the present syste.- specialist Judges and lawyers; the local ombudsman; the planning inspectorate, local authorities and other relevant public agencies; voluntary groups, business organizations etc. The aim should be a pragmatic evolution towards a logical and simplified structure, incorporating the best of existing practice and procedure."

Lord Woolf again, in another lecture in May 2001, suggested that there was a case for some new form of Environment Court or Tribunal. This was in his 'Environmental Law Foundations Prof. David Hall Medical Lecture' while speaking on the subject 'Environmental risk: the responsibilities of the law and science'.

It was at that stage that a major study was undertaken by Prof. Malcolm Grant of Cambridge in what is known as the "Environment Court Project". The Report on the project was published on February 18, 2000. It was prepared by the Dept. of Land Economy, University of Cambridge. The 81project initiated and supported by the Dept. of Environment Transport and Regions (IETR) and had the support of the Financial Management and Performance Review of the Planning Inspectorate made in 1995-96.

The purpose of the project was to study the concept of an Environment Court in the background of experience in other countries, such as Australia and New Zealand. The Report identified the following ten characteristics that help define the concept though it did not firmly recommend such a Court for UK (see 2000 JPL p 453 'The Case for an Environmental Court'). These are:

(a) a specialist and exclusive jurisdiction;

(b) a power to determine merits appeals;

(c) vertical and horizontal integratio.- (by which is meant a wide environmental jurisdiction which integrates both subject matter and different types of legal proceedings);

(d) the hallmarks of a court or tribunal;

(e) dispute resolution power.- (even disputes over the formulation of policy as well as a more traditional adjudication.);

(f) expertis.- (the members would be specialists in environmental issues);

(g) acces.- (there would be broad rights of access to the Court);

(h) informality of proceeding (such as use of alternative dispute resolution procedures);

(i) costs (this is linked to the need for access and involves means of overcoming the problem of high costs inhibiting access); and

(j) capacity for information.

Comment has been made that the above ten criteria are quite general and that they lack clarity. While it is true that the above criteria may be common to several types of modern Courts or Tribunals not necessarily dealing with 'environment', the fact remains that these general criteria are equally suitable and applicable for Environmental Courts also.

Prof. Malcolm Grants' Project Report published in May 2000 recommended six possible alternative arrangements ranging from a 'Planning Appeals Tribunal' to an 'Environmental Court' as a division of the High Court.

As regards discussions within Town and Country Planning systems, the Royal Commission no doubt stated in its 23rd Report on Environmental Planning (March 2002) (para 5.35) that what was needed was "a system that commands public confidence, improves consistency, is effective at reaching decisions and is not unduly costly. Our main consideration is with merits appeals.

With the Administrative Court now established within the High Court, we are not convinced that there is any need for a specialist environmental court dealing with judicial review or statutory appeals on legal grounds so far as the Town and County planning systems were concerned. Criminal offences concerning planning and environmental matters are probably best left to the ordinary criminal courts, though there is a case for improved guidance on sentencing and more training, especially for magistrates".

Finally, the Royal Commission recommended establishment of Environmental Courts so far as environmental matters outside the Town and County planning systems, for establishment of an Environmental Court, as follows:

there is a great deal of inconsistency at present, both in whether there is a right of appeal on merits and in who decides any such appeal. Some appeals are made to the Secretary of State. Others, such as those concerning contaminated land or statutory nuisances, are made to the magistrate's Courts, which often lack the expertise to handle the considerable technicalities involved. In many contexts, for example, the granting of consents in relation to genetically modified organisms, there is no right of appeal on merits.

Procedures have grown up haphazardly with no apparent underlying principle, and we consider they fail to provide a system appropriate for contemporary needs. We recommend the establishment of Environmental Tribunals to handle appeals under environmental legislation other than the town and country planning system, including those now handled by planning inspectors."(para 5.36)

The Royal Commission observed (para 5.37) that establishing an Environmental Tribunal would be a significant contribution to a more coherent and effective system of environmental regulation. As to its constitution, and scope of appeals from it, the Commission said:

We envisage such a Tribunal would consist of a legal chairperson and members with appropriate specialized expertise. It would rapidly 84develop the authority and understanding needed to handle complex environmental cases. We envisage several tribunals would be established to cover England and similar tribunals for Wales, Scotland and Northern Ireland. On points of law, there would be right of appeal from the Tribunal to the High Court. Applications for judicial review or environmental matters would not be considered by the High Court unless the applicant had exhausted any remedy available from the Environmental Tribunal or from other sources."

The 'alternative remedy' principle as exercised by our High Courts in India in jurisdiction under Article 226 is clearly accepted here.

Proposal to Constitute Environment Courts Back

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