Air Pollution

September 16th, 2021 by James Goudie QC in Environment, Highways and Leisure

A local authority must not act in a way which contributes indirectly towards, or facilitates, a breach of ECHR Article 8 rights, for example by providing land for or subsidising a pollution causing waste disposal or other plant: Lopez Ostra v Spain (1994) 20 EHRR 277.  A local authority may be liable for inaction, or insufficiently speedy and robust action, against polluters and the perpetrators of nuisance, or for the environmental consequences of development which the authority provides under economic development powers, or which the authority permits, as landowner, or as planning or licensing authority.  There may be positive obligations under Article 8 and fair balances have to be struck.

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EMERGENCY TRANSPORT PLAN

September 10th, 2021 by James Goudie QC in Environment, Highways and Leisure

Local authorities are subject to a network management duty. Section 16(1) of the Traffic Management Act 2004 imposes a duty upon them not only to manage their road network, but to do so with a view to achieving objectives which include securing the expeditious movement of traffic upon the network. The duty is subject to reasonable practicability, and is elaborated upon in Section 16(2). In Trail Riders Fellowship v Devon County Council (2013) EWHC 2104 (Admin) the Court held that the highway authority had been entitled to make a Traffic Regulation Order prohibiting motor vehicles from using part of a road where that was expedient in the interests of road safety.

In HHRC Ltd v Hackney LBC (2021) EWHC 2440 ( Admin) Dove J says, at para 42, that the terms of Section 16 provide the authority with broad parameters within which to act consistently with the duty, that the objectives of Section 16 are broad, and qualified by the need to act, as far as reasonably practicable, having regard to the local authority’s other obligations and Policies. There is also statutory Guidance from the SoS. Read more »

 

ETO

August 16th, 2021 by James Goudie QC in Environment, Highways and Leisure

A statutory challenge to a decision in February 2021 not to revoke an Experimental Traffic Order in relation to a street in the Barbican failed in R (Tomkins ) v City of London Corporation (2021) EWHC 2265 (Admin). The challenge was on the basis that it was no longer possible to continue with the experiment in any meaningful way once traffic levels had reduced because of covid lockdown. However, monitoring had continued, albeit on a less comprehensive basis than intended, and useful data obtained. A genuine experiment continued. Not revoking the ETO was not irrational. See especially para 101 of the Judgment, and the treatment at para 86 of Trail Riders v Peak District Authority (2012) EWHC 3359 (Admin).

 

Dedication of Track as Bridleway

July 21st, 2021 by James Goudie QC in Environment, Highways and Leisure

In Garland v SoS for Environment etc (2021) EWCA Civ 1098 the Court of Appeal says that,  in deciding whether the common law dedication of a right of way over land would constitute a public nuisance, as a matter of fact, there is no need of evidence of an actual specific accident or incident. The character of the route itself may justify the inference that the route is potentially dangerous to a section of the public.

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Environmental Information

June 30th, 2021 by James Goudie QC in Environment, Highways and Leisure

The operator of Heathrow Airport is not a public authority for the purposes of the Environmental Information Regulations. So held by the FTT in Heathrow Airport Ltd v Information Commissioner, EA/2020/0101, Judgment on 18;June 2021. Although the Airport  had operated as a function of the State prior to its privatisation, and is closely regulated by the Civil Aviation Authority, it is a commercial enterprise. It competes with similar businesses. It is not akin to the provision of a public service.

 

Highway Safety

March 30th, 2021 by James Goudie QC in Environment, Highways and Leisure

When determining whether planning consent should be granted to upgrade an advertising hoarding to a digital display, not only must the residential amenity of the display be considered. Specific conditions should be addressed, in the interests of highway safety, in relation to the use of moving images and both the frequency and the speed of change of advertisements on the display. So held in Calderdale Borough Council v SoS (2021) EWHC 695 (Admin).

 

Footpaths

February 25th, 2021 by James Goudie QC in Environment, Highways and Leisure

In Open Spaces Society v SoS (2021) EWCA Civ 241 the Court of Appeal held that, in deciding whether it is expedient to confirm a public path diversion order, in exercise of the power conferred by Section 119(6) of the Highways Act 1980, the decision-maker MUST have regard to the matters specified in paras (a) to (c) and any material provision of a rights of way improvement plan, AND MAY have regard to ANY OTHER RELEVANT MATTER, including, when appropriate, the owner or occupier of the land over which the path currently passes, or the WIDER PUBLIC INTEREST.

 

The BREXIT Deal and the Environment

December 29th, 2020 by James Goudie QC in Environment, Highways and Leisure

Commitments on the environment in the 1246 page Brexit deal go beyond other EU trade agreements. The deal sets out some specific mutual commitments. These include maintaining the planned reduction of greenhouse gases and a system of carbon pricing. The commitment extends to not lowering the overall level of environmental protection in a way that impacts trade or investment. The deal also outlines common principles, such as the polluter pays, and provides for enforcement measures.

 

ETOs

December 15th, 2020 by James Goudie QC in Environment, Highways and Leisure

The validity of a temporary Experimental Traffic Order, restricting access through a London street to zero omission vehicles, was upheld Tomkins v City of London (2020) EWHC 3357 (Admin). It was found that there had been no duty to carry out a non-statutory consultation. There was no legitimate expectation to that effect. However, declarations were granted in relation to failings to comply with procedural requirements and statutory requirements in relation to statement of reasons.

 

Environmental Information

July 17th, 2020 by James Goudie QC in Environment, Highways and Leisure

There is an exception to the duty under Directive 2003/4 and the Environmental Information Regulations 2004, S.I. 2004/3391, to disclose environmental information, when the request for disclosure involves the disclosure of “ internal communications”. What are they? They are not defined in the Directive. Read more »