Report No. 186

As to the jurisdiction and powers of the Environmental Courts, the Royal Commission stated (para 5.38):

The precise jurisdiction of the Environmental Tribunal would be a matter for government, but we have indicated in box 5B various areas that would be appropriate. We envisage civil litigations will continue to be handled by the civil courts and criminal matters by the criminal courts. The new Tribunals would take over such functions as the present jurisdiction of magistrates' courts on such subjects as contaminated land and statutory nuisance.

Although, in general, the Tribunal should have the final rights of decision on appeals submitted to it, there may be cases of acute policy sensitivity where it ought to make a recommendation to the Minister rather than the final decision, and the Alconbury decision implies that such a mechanism would be consistent with the Human Rights Act. It also would then be similar 85to that of a planning inspector where a planning appeal is received by the Secretary of State. The Tribunal's main concern would be with appeals, but it might have some original jurisdiction, for example, in deciding statutory nuisance cases currently taken by complaints to a magistrate's court."

Thus, the proposal is for the Environmental Court would have 'appellate' as well as 'original' jurisdiction. They would not oust the normal civil and criminal jurisdiction of ordinary Courts but would remain special Courts for environmental issues.

The Box 5B contains a chart at the bottom of which we have the 'New Regional Environmental Tribunals' which will hear appeals on 'environmental matters'. These are appeals from (a) decisions of Environmental Agencies (in respect of IPPC, discharge to water courses waste licences etc.) (b) appeals, currently heard by magistrate's courts, from notices served by local authorities in relation to contaminated land and statutory nuisances, (c) designation of sites of special scientific interest and Habitat Regulations, (d) decision of Secretary of State on licences for genetically modified organisms and other government decisions where there is no right of appeal at present other than by judicial review.

In UK, the Criminal Courts would deal with environmental offences in the same way as at present; one Court in each County might be designated to deal with environmental offences. The Civil Courts would continue to deal with environmental disputes between private parties on issues such as nuisance or negligence.

The Commission went on to recommend (see para 5.39) to combine the Environmental Tribunal with the Planning Inspectorate to establish a 'Planning and Environmental Tribunal' (on the lines of some of the options considered by Professed Grant). That would resolve the doubts remaining about the position of planning inspectors in relation to the Human Rights Act.

It would be an advantage to have a firm institutional linkage between the appeals system for land use and the procedures for a more specialized environmental regulation. Such a development, the Royal Commission said, may come after some time. But the Commission's view was that it was preferable for a tribunal to start by taking over and consolidating the wide variety of other procedures for environmental regulation, rather than risk being swamped by the much greater volume of appeals.

As to locus standi, so far as judicial review matters are concerned, the Royal Commission had a liberal view when it stated (see para 5.40) that a very important distinction between appeals on merits and judicial review is that appeals by way of judicial review are not restricted to the applicant. Third parties such as a neighbour or amenity groups may also bring judicial reviews against, say, the decision of a local planning authority to grant planning permission, the Environmental Agency to grant an IPPC licence, or the decision of the Secretary of State on a merits appeal.

To do so, they have to satisfy the Court that they have 'sufficient interest' Contemporary practice is far more liberal. Local amenity groups and national environmental 87organizations have frequently been granted leave to bring judicial review, particularly if they made representations concerning the original applications."

The Royal Commission then referred to the 1990 E.C. Directive on the freedom of access to information on environment as implemented in U.K. by the Environment Information Regulations 1992 and the 1998 Convention on 'Access to Information, Public Participation in Decision Making and Access to Justice' on Environmental Matters (see paras 5.41 to 5.47) and to several aspects as to locus standi of individual and environmental organizations in respect of planning and development as well as environmental matters.

U.K. has not yet established Environmental Tribunals for environmental issues, but it appears to us that the country is in the process of establishing such Courts soon.

The following is the further literature on the subject in respect of U.K.:

(i) William Birties: "Why we need an Environment Court' (Legal Week, 2000, 2(1), 19

(ii) Freshfields: "The Environmental Courts Concept"

Comm LJ 2000 17(28-31))

(iii) Editorial: "The case for an environmental court" ((2000) JPL 453)

(iv) Editorial: "The Govt's response to the Grant Report on an Environmental Court" ((2000) JPC B 95)

(v) Paula de Prez: 'An environmental court: the case for inclusion of a criminal law jurisdiction' (Environmental Law and management (2000, 12(5), 191)

(vi) Martyn Day, Richard Stein and William Birties: "An Environmental Court Part-I" [(2001) 151 New LJ 630; Part II (2001) 151 New LJ 672].

(vii) "Do we need an environmental court?" (In House Lawyer No. 81, June 2000, 64.)