Environmental courts and tribunals - the british experience
| Autor | Richard Macrory |
| Cargo del Autor | University College London |
| Páginas | 221-236 |
ENVIRONMENTAL COURTS
AND TRIBUNALS - THE BRITISH EXPERIENCE
Richard
MACRORY
University College London
I. INTRODUCTION
different countries 1. Over half of these had been established since 2004.
the different needs and characteristics of the countries in question, but
the distinctive demands of environmental law.
At the time the report was published, the United Kingdom, in com-
mon with many other European countries 2, had no such specialist court
or tribunal. But a year later in 2010 an environmental tribunal was
established in England and Wales with remarkably little fanfare. The
-
ronmental Pollution often argued that major changes in environmental
law and policy resulted from a combination of hard analysis and some
‘ignition’ event, such as a major pollution incident which demonstrated
failures in the current system 3. But here there was no such sandal or
1 G.
PRING
and C.
PRING
, Greening Justice: Creating and Improving Environmental Courts
and Tribunals (The Access Initiative / World Resources Institute, 2009).
2 The system of Swedish environmental courts being the exception.
3 E.
ASHBY
, Reconciling Man and the Environment (Stanford University Press, 1978).
222 RICHARD MACRORY
ignition event in this case. Despite the fact that there had been almost
twenty years of discussion and debate on the subject, the creation of
the tribunal took place almost by chance, and as a result of a number
of unconnected developments. This chapter traces the background to
the creation of the environmental tribunal, and how it came about. It
then considers how the tribunal might develop further in the future, es-
pecially in the light of BREXIT and its implications for environmental
law in the United Kingdom.
II. THE CASE FOR CHANGE
Environmental litigation in England and Wales is largely handled
by the ordinary courts, depending on the type of law in issue. Thus,
environmental crimes are dealt with by the general criminal courts.
Civil claims between private parties such as actions in nuisance or
negligence but involving environmental issues are handled by the
ordinary civil courts. Judicial review challenging the legality of
decisions of public bodies on environmental questions fall within
the jurisdiction of the Administrative Court of the High Court, as
do all judicial reviews. Environmental regulation (such as the issue
of licences, or the imposition of administrative orders by regulatory
bodies such as the Environment Agency) have generally permitted
the licence applicant or the recipient of such notices to appeal against
the decision, but until 2010 appeals went to a number of different
bodies, depending on the particular regulation in question. These
might include courts, but often also included Independent inspectors
appointed by the Secretary of State.
form of specialized environmental judicial forum appears in a report
published in 1989 following an investigation into the enforcement of
land-use planning controls 4. Robert Carnwath was a leading planning
lawyer (and now a Supreme Court judge) noted: «I can see a case for a
form of Tribunal which is able to encompass the whole range of plan-
ning appeal and enforcement work, including the level of penalties.
Alternatively, there may be a case for reviewing the jurisdiction of the
various courts and tribunals which at present deal different aspects of
what might be called “environmental protection” (including planning)
and seeking to combine them in a single jurisdiction».
Many of the detailed recommendations in the Carnwath report
concerned improving enforcement procedures for land use planning
controls, and these were accepted and implemented by government.
4 R.
CARNWATH
, Enforcing Planning Controls
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