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 »

 

Aarhus

July 6th, 2020 by James Goudie QC in Environment, Highways and Leisure

In Case C-826/18 from the Netherlands Advocate General Bobek’s Opinion dated 2 July 2020 says that all of (1) Article 6 of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, (2) Article 6 of Directive 2011/92/EU, as amended, on the assessment of environmental effects, and (3) Article 24 of Directive 2010/75/EU on integrated pollution prevention and control, confer full participation rights ONLY on “the public concerned”, NOT on the public at large.

 

Cycle Lanes

June 10th, 2020 by James Goudie QC in Environment, Highways and Leisure

The Civil Enforcement of Parking Contraventions (England) General (Amendment) Regulations 2020, S.I. 2020/548, further amending S.I. 2007/3483, come into force on 22 June 2020. They give local authorities, with civil parking enforcement powers, pursuant to the Traffic Management Act 2004, power to send penalty charge notices based on approved CCTV evidence through the post to drivers who park or load illegally in mandatory cycle lanes.

 

Public Path in Public Park

June 3rd, 2020 by James Goudie QC in Environment, Highways and Leisure

In Barlow v Wigan MBC (2020) EWCA Civ 696 the Court of Appeal holds that a public path in a local authority park engaged the statutory duty under Section 41 of the Highways Act 1980 notwithstanding that the path had not been constructed as a highway by the authority in its capacity as highway authority. The path was nonetheless maintainable at public expense within Section 36 of the Act. It had been dedicated as a highway.

 

Public Road on Private Land

April 16th, 2020 by James Goudie QC in Environment, Highways and Leisure

R (Pereira) v Environment & Traffic Adjudicators (2020) EWHC 811 (Admin) concerned a parking ticket issued by Southwark Council. A judicial review challenge by a motorist succeeded. The case raised the question whether privately owned land, a stretch of pavement in Dulwich Village, was a “highway”, under Section 31 of the Highways Act 1980, or “any other road”, including pavement, under Section 15 of the Greater London Council (General Powers) Act 1974, “to which the public has access”, so as to preclude even the owner of the land, Dr  Pereira, from parking there. Fordham J answered the question in the negative. There are twin preconditions for public access: factual public access and legal public access. Trespass, including tolerated trespass, can never be the basis of lawful public access.

 

 

Environmental Information

December 19th, 2019 by James Goudie QC in Environment, Highways and Leisure

The question that arose in DoT v ICO (2019) EWCA Civ 2241 was as to the application to the information in issue of the definition of “environmental information” in the Environmental Information Regulations 2004 (“the EIR”), implementing EU Directive 2003/4/EC. The case concerned information of potentially “mixed character”: some environmental material, and some not.

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Environmental Bill

October 24th, 2019 by James Goudie QC in Environment, Highways and Leisure

The Government has introduced a 130 Clause Environment Bill, with 20 Schedules, in the context of exiting the EU.  Parts 1 and 2 relate to Environmental Governance, that had been the subject of a Draft Bill, including environmental targets, improvement plans, environmental monitoring and environmental principles, and a new Office for Environmental Protection. Part 3 relates to Waste and Resource Efficiency; Part 4 to Air Quality and Environmental Recall; Part 5 to Water; Part 6 to Nature and Biodiversity; and Part 7 to Conservation Covenants. The provisions include recycling and other obligations upon local authorities, pollution control and other powers for local authorities, and the mandating of net gain in biodiversity through the planning system.

 

Traffic Regulation Order

July 22nd, 2019 by James Goudie QC in Environment, Highways and Leisure

The first instance decision in Trail Riders Fellowship v Hampshire County Council was noted in this Bulletin on 11 December 2018. An appeal has now been dismissed: (2019) EWCA Civ 1275. Sir Ross Cranston’s statement of the law was approved, save for the last part of proposition (iv). Longmore LJ said that there does have to be actual evidence that the balancing exercise required by Section 122 has been, in substance, conducted. It cannot be merely a matter of inference from the status of the decision-maker.

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