December 19th, 2024
ELF cases 2024 recap
Recap: Manchester Ship Canal
ELF was part of a significant victory in July when the Supreme Court handed down judgment for The Manchester Ship Canal Company Ltd v United Utilities Water Ltd. ELF intervened in this case with assistance and support from a fantastic legal team at Hausfeld, the Good Law Project and barrister support from Stephen Hockman KC and Tom Cleaver of 6 Pump Court. To read more about this case you can follow the link here. This landmark win opens up claims of nuisance against sewage companies for illegal pollution. This means companies can now be held accountable for their pollution and impact on the environment. This point was eloquently made in the judgment;
“A successful claim for damages for an incident or incidents of pollution of a watercourse will impose costs on a sewerage undertaker; but the effect is merely to prevent it from externalising the costs of its operations by leaving them to be borne by the victims of its unlawful behaviour”.
Following the judgment, its use is now being explored by other legal organisations, such as in the case of Jo Bateman, a wild swimmer who wishes to bring a legal claim against South West Water due to sewage discharges into the sea at Exmouth Beach which has prevented her being able to swim.
Though the case is an important step in environmental justice, the judgment has its limitations and ambiguities. This is mainly because on the face of it, to bring a claim, it is necessary to have a proprietary right in the watercourse that is being polluted. However, since the judgment has been handed down, ELF has been exploring how it may be possible to get past this barrier, so companies are held accountable for all their illegal pollution including public nuisance. ELF looks forward to seeing the law progress further to protect all the nation’s waterways.
Recap: Pembrokeshire
Earlier in the year, ELF assisted a community living in Pembrokeshire, the Welsh County famous for its beautiful, wild coastlines and sea bird colonies. They have had ongoing concerns about the remote Ceibwr Bay and the increasing disturbance to the nesting seabirds from recreational activity. In particular, the community got in touch with us about a planning proposal for an adventure sports hub for coasteering and other marine activities putting further pressure on the bay. We wrote about the proposal earlier in the year, link here.
The spot is a popular destination for tourists but is also a nature protected site, home to a diverse range of wildlife such as grey seals, otters and several species of endangered birds. This causes an inevitable tension that can harm the environment and cause disturbance to the protected features. Despite the site being part of a Special Area of Conservation and designated Site of Special Scientific Interest, because of the lack of restrictions on tourists, activities such as coasteering frequently disrupt the habitats of protected marine animals and cause disruption to nesting birds.
Even though the bay is nature-rich, there is a lack of environmental information and surveys for decision-makers to access. ELF assisted the community objecting to the adventure sports hub and pointed out the need for a Habitats Regulation Assessment (HRA) before approval of the application. Following our involvement, an HRA was carried out, but the application was approved by the Council. The case is now with Wild Justice who believe the HRA was flawed and that, therefore, the decision to approve the hub may be unlawful. We understand they are considering judicially reviewing the decision to grant permission.
ELF Victories: Consent to Judgments
When an enquirer comes to ELF looking for assistance with a judicial review challenge, the hope is always that it can be settled outside of Court. This is because litigation is expensive, time consuming, protracted and stressful. In potential judicial review matters, the opportunity to settle comes at the Pre-Action Protocol stage, once a ‘PAP letter’ is sent off. This is a letter that sets out the potential claim, for the decision maker to consider. At this stage, a decision maker can concede or ‘consent to judgment’; this means they agree that the decision was illegal, and they consent to have it ‘quashed’.
Admitting they have erred in law is, unsurprisingly, not something Councils do often. It often requires the decision to be ‘undeniably’ incorrect in law. Therefore, ELF is pleased to state we have had several concessions this year. This has achieved necessary justice for our communities, who often cannot afford to go through with litigation.
Two of these cases have conceded on the same basis; the failure to require an Environmental Statement, in breach of Environmental Impact Assessment Regulations. This is a requirement that applies to specific developments allowed for in the regulations. One of these cases concerned a stockpiling operation in Somerset which we wrote about earlier this year here. The second case was concerned with an application for poultry units in Monmouthshire. In both these cases, the Environmental Statement was not done, and we had the decisions to approve the applications quashed.
ELF is concerned to see this growing trend of omitting environmental information. We are increasingly seeing environmental information either being missed out or being provided to a low standard in planning applications. This is potentially due to the costs of carrying out these surveys, the burden of providing the information being on the applicant rather than the planning authority meaning there is a lack of impartial information, and the deficit of ecology expertise in Councils leading to sub-par scrutiny. Decision makers should be aware that allowing these mistakes can open them up to legal challenge.