EHJ August 2003, pages 244-247 A new report suggests that the establishment of a specialised environmental tribunal would increase public confidence in environmental regulation, reduce the burden on judicial bodies and be easier to use for individuals and businesses. Julie Barratt, EHJ's legal expert, reports

In 1988, the UN Economic Commission for Europe (UNECE) convention on access to information, public participation in decision making and access to justice in environmental matters (the Aarhus Convention) promoted the concept of active environmental citizenship to ensure sustainable and environmentally sound development, including public participation, transparency, and accessible and effective judicial mechanisms for the delivery of environmental justice. Under this agreement, governments are required to establish and maintain "a clear, transparent and consistent framework" to deliver these requirements.1

But how does this requirement sit with the present system of dealing with appeals concerning environmental issues in England and Wales, which has been described as "lacking an underlying coherence and failing to reflect contemporary development in environmental law?"2 The short answer is that it does not.

By way of a solution, the 23rd Report of the Royal Commission on Environmental Pollution recommended the establishment of a specialist environmental tribunal to be the forum for consideration and determination of appeals relating to environmental issues.3 Stemming from this, in 2002, the Department for Environment, Food and Rural Affairs (Defra) commissioned a project, headed by Professor Richard Macrory, to consider the issue of environmental regulation in its current form, and to recommend a path forward, taking account of the obligations imposed by the Aarhus Convention.

Professor Macrory has now reported and the study, Modernising environmental justice - regulation and the role of the environmental tribunal, makes interesting reading for environmental health practitioners and those practising in the field of environmental law.2

Modernising environmental justice, in reviewing the current fora for what it defines as regulatory appeals (ie appeals against refusal of a licence or permit, or conditions attached to the issue of a licence, and appeals against some form of notice under environmental legislation requiring the cessation of activities or remedial action) identifies over 50 different appeal routes. These range from appeals heard in the magistrates court, appeals to the Secretary of State or his nominee, and appeals heard by the Admiralty Division of the High Court, to full blown judicial review proceedings. This plethora of appeal mechanisms can hardly be claimed as in accordance with the requirement for a "clear, transparent and consistent" system, as demanded by the Aarhus Convention.

The report also notes that the right to appeal is limited in most cases to the recipient of a notice or that party refused a licence, and that the right of third parties to appeal against the issue of a licence or the conditions attached to it is none existent. While article 6 of the Human Rights Act 1998 - the right to a fair trial - goes some way to addressing this omission, it requires the third party to jump through a number of judicial hoops to claim the right and success is by no means assured.

What size and cost?

Modernising environmental justice starts by examining the annual workload that would fall to an environmental tribunal were one to be established; taking the total number of regulatory appeals that are heard on an annual basis as being a guideline to the number of cases that would engage the tribunal. This exercise proved difficult as no comprehensive statistics are kept, and given the variety of types of appeal and fora for their determination, this is hardly surprising.

In the main, the figures collected refer to statutory nuisance appeals heard in the magistrates courts (about 1,000 per year) and those appeals determined by the planning inspectorate. It is noted, however, that the number of appeals lodged with the planning inspectorate and those actually determined by it bear little relation to each other. Of 233 appeals lodged in the period April 2002 to March 2003, only eight were determined, the remainder being either withdrawn, declared invalid or out of time, or deferred pending negotiation between the parties. Figures in relation to contaminated land appeals were not available, the procedure being too new to have been tested to any great degree. But it is predicted that regulatory appeals will rise to about 100 per year in 10 years' time, being in the main appeals in respect of local authority notices.

Given that the planning inspectorate determines approximately 14,000 appeals each year, either by written representations, informal hearings or by public inquiry, the report concludes that the total number of regulatory appeals yearly to an environmental tribunal would not be large. However, it notes that the contaminated land regime is not yet functioning to capacity, that emerging European environmental legislation must be taken into account. Also, it notes that simplifying the appeals regime may give rise to an increase in the number of appeals lodged and that the potential for third party right to appeal would increase this workload considerably.

It is concluded that the size and cost of the proposed tribunal would be consistent with that of the lands tribunal and that its instigation would reduce pressure on those bodies currently carrying out an environmental appellant function, but not to such a point as they are not viable.

Which jurisdiction?

The report particularly notes the concerns expressed, in the main by local authority EHPs, that magistrates courts are not the best fora for the determination of complex issues such as determinations of appeals based on the best practical means (BPM) defence. Such defences are highly technical and require the consideration and weighing of expert evidence, which would be better suited to the consideration of a legally trained adjudicator than to lay magistrates.

Further, given the fact that the magistrates court system is overloaded and no special priority is given to such appeals, an appeal to the magistrates court is often a delaying tactic. The report accepts that where the case is relatively straightforward (ie neighbourhood noise nuisance) it may be best left within the jurisdiction of the magistrates court, but where more technical issues fall to be determined, such as BPM, there may be merit in transferring jurisdiction to an environmental tribunal. There is certainly a case to be made for transferring the appeals under the contaminated land regime to the proposed tribunal, as such is their complexity that they will require both time and the consideration of expert evidence to be properly determined.

Environmental appeals, notably those pertaining to pollution-related licences dealt with by the Environment Agency (EA), are also made to the planning inspectorate. Macrory considers the merits of the planning appeals system, which uses inspectors who may be legally qualified or planning professionals. Such inspectors bring a professional expertise to their deliberation and further, have access to government legal advisors.

Planning inquiries are seen as a more "user friendly" forum for consideration of complex technical issues than law courts, and though some concern about opaqueness of planning decision letters and the precedent value attached to them is expressed, there is acknowledgement that there is general user satisfaction with the system. Although it is suggested by users that the lack of expertise of its inspectors in environmental law, makes it an unsuitable forum for the consideration of regulatory appeals.

The case for a dedicated tribunal

Does environmental law merit a separate tribunal, or can it be slotted into the existing regime of planning and land tribunals?

The report reasons that there is a case to be made for a dedicated environmental tribunal. It cites the complex evidential and judgmental issues in the cases and the nature of the science involved in many environmental and public health questions. The increasing body of European law and the growing number of interpretative judgements, notably in the fields of integrated pollution prevention and control (IPPC), waste management, water pollution, genetically modified organisms and habitat protection, are also noted. In addition, other factors such as the precautionary principle, polluter pays and the overarching principle of sustainable development, all unique to environmental law, are taken into account.

While acknowledging that technical and legal complexity of subject matter is not enough in itself to justify a separate jurisdiction, the report suggests that the contribution of the factors cited above is of particular importance. There is short consideration of a combined planning and environmental tribunal, although this is discounted as both impractical and undesirable. The upheaval to the planning inspectorate of taking on all regulatory appeals arising under environmental law would be considerable, and it is not considered that the planning inspectorate is abler to provide authoritative decisions which can serve as guidance as to the meaning and application of regulatory requirements.

Judicial review as a mechanism for appeal is considered, although it should be noted that this mechanism is designed to consider the way in which the decision was made and not the merits of the decision itself. To this end, judicial review does not have the scope of an appeal - in that the decision is not considered anew, rather referred back to the decision maker to be made afresh. It is noted that in the last three years, of the 55 cases filed, only four were successful; 18 being dismissed, 13 being withdrawn, leave to proceed being refused in 12 and the reminder being outstanding at the date of the report. The picture was broadly similar where appellants had asked magistrates to state a case, although the success rate was slightly higher.

What does this say about judicial review as an environmental appeal mechanism? Macrory's view is that a stronger first tier appeals system, as would be provided by an environmental tribunal, would allow for more selective filtering of judicial review applications, which would be consistent with the earlier recommendations of the Leggate Report.4

The right of third party appeals is, as noted above, a vexing question, and one which the report considers. Much public debate has taken place as to whether the right should exist in land use planning appeals, rather less debate has surrounded the same issue as it relates to environmental law. Macrory identifies a number of reasons for examining the question closely; the Government has argued in rejecting third party rights of appeal that the general public have a right to participate in the planning process, but no such similar right exists in relation to environmental planning. Similarly, in planning it is argued that decisions are made by elected members who represent the public view.

Environmental decisions are taken by specialist agencies of the government such as the EA or English Nature, which are not accountable to the public at large. Further, and of significant importance, the requirements of the Aarhus Convention must be addressed. It is acknowledged that giving third party rights of appeal may make hearings longer and more expensive, but with an appropriate filtering mechanism in place to prevent frivolous and vexatious appeals, the Royal Commission on Environmental Pollution in its deliberations on this point concluded that this was a price worth paying.

Having considered continuation of the current system - rejected for the reasons above, incremental adaptation and improvement of existing structures - some benefits over no change at all, but not the best scenario, the report comes down in favour of an environmental tribunal. This is perhaps no great surprise as this was the view of the Royal Commission on Environmental Pollution, of which Professor Macrory was a member, and is also the solution which sits most comfortably with the requirements of both the Human Rights Act 1998 and the Aarhus Convention, and the recommendations of the Leggatt report on unified tribunals.

What form would it take?

As potential users of the proposed environmental tribunal, what can we hope to see? The specific jurisdiction of the tribunal would be a matter for Parliament, however, the report suggests that the core jurisdiction could include the transfer of the majority of regulatory environmental appeals and may consist of:

• appeals relating to decisions of specialist environmental agencies such as the EA;
• appeals in respect of industrial processes regulated by local authorities (ie BPM);
• appeals arising under the contaminated land regime; and
• appeals in respect of statutory nuisance abatement notices served in respect of trade and industry (but not domestic premises, these remaining in the magistrates court).

The report suggests that as the environmental tribunal found its feet, more functions could be transferred to it in order to clear up existing anomalies and to reduce the pressure on the judicial review system and that appeals arising under future environmental legislation should find a home with the tribunal. The environmental appeals currently falling to be determined by the planning inspectorate could also be transferred to the proposed tribunal. Criminal offences for non-compliance with statutory notices would, however, remain a magistrates court function, since such cases are determination of facts not consideration of merits.

There is recognition that the operation of an environmental tribunal may encourage the Government to publish developed statements on environmental policy objectives. This would provide an explicit policy context for the decision-making role of the tribunal, as is happening in the planning field with the issue of planning policy guidance. This is held up as a positive development and would certainly assist those making decisions both within the tribunal and outside it.

Greater enforcement role

Having come down unequivocally on the side of an environmental tribunal, the report goes on to consider an environmental tribunal with a greater enforcement role. The tribunal as originally proposed would have no enforcement role, this remaining in the precincts of the magistrates court. But arguments can be made for it to have some form of criminal enforcement role. There is no detailed consideration of how such an expanded tribunal would operate, or the effect that its inception would have on the present criminal regime, but a number of interesting points are made.

First, it is argued that administrative or civil penalties could be imposed as an additional tool in enforcement. The civil courts have not traditionally been used in environmental law matters, however, the enforcement of the civil or administrative regime could lie with an environmental tribunal. Such a system works successfully in the US and in Germany, and given the low level of criminal sanction attached to environmental law at present, additional civil penalties may act as a stronger deterrent.

Second, the tribunal may sweep up all of the criminal matters relating to environmental law currently dealt with by magistrates courts, with crown courts to deal with the more serious environmental law matters. This would require a more complicated tribunal structure than proposed by the report, but would have the considerable advantage of enabling a decision maker with experience of environmental law issues to determine the cases. This would lead to consistency of approach and sentencing, and incidentally, reduce pressure on the magistrates court system. Finally, the idea of giving additional powers to the super-tribunal is considered - being those powers of interlocutory relief currently in the gift of the High Court (ie injunctions and other similar judicial remedies). This may be a step too far for the judiciary, but would certainly make the tribunal a force to be reckoned with.

The report, while nodding its head to certain issues in the present system, did not consider them further. Private nuisance actions were not included in its deliberations. Town and country planning enforcement issues, such as tree preservation orders, matters falling within the ambit of the lands tribunal and some health and safety matters, though all arguably "environmental" have not been considered. But it should be said that the value of the report is not diminished by these omissions.

The report suggests that the environmental tribunal proposed "would lead to the better application of current environmental law and policy, a more secure basis for addressing future challenges, increased public confidence in how we handle environmental regulation, and the improved environmental outcomes that should follow."6 For those enforcing environmental regulations this is a very important report, the conclusions of which are very welcome.

Although the report arises out of a Defra initiative, as Lord Justice Carnwath notes in his forward to the report, there is no commitment by the department to implement its recommendations. Given the radical changes to the present system that are proposed, an unqualified commitment to implementation could hardly be expected. However, a proposal as practical and workable as that advanced, with such clear benefits for appellants, decision makers and third parties alike, must advise the current thinking on tribunals and would be a step in the right direction for the future determination of environmental regulation appeals.

References

1. Aarhus Convention on access to information, public participation in decision making and access to justice in environmental matters. 25th June 1998 see particularly Articles 1, 3 and 9.
2. Modernising environmental justice - regulation and the role of the environmental tribunal. Macrory Report 2003 para 3.
3. Royal Commission on Environmental Pollution 23rd Report Environmental Planning CM 5459, 2002 HMSO.
4. Tribunals for users - one system one service - report of the review of tribunals. Sir Andrew Leggatt, March 2001 HMSO.
5. Paragraph 17.3.