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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Waste

July 9th, 2019 by James Goudie QC in Environment, Highways and Leisure

The European Court Judgment in Case C-624/17, Tronex BV, concerns the concepts of “waste” and “shipment of waste”. The Court said:-

“16      Regarding the concept of ‘waste’, it should be borne in mind that Article 3(1) of Directive 2008/98 defines it as any substance or object which the holder discards or intends or is required to discard…

17      In accordance with the Court’s settled case-law, the classification of a substance or object as waste is to be inferred primarily from the holder’s actions and the meaning of the term ‘discard’… Read more »

 

Pollution caused by nitrates

April 1st, 2019 by James Goudie QC in Environment, Highways and Leisure

The European Union adopted rules to counter water pollution caused by nitrates as early as 1991, namely the Waste Water Directive, which regulates the construction and operation of waste-water treatment plants in particular, and the Nitrates Directive, which concerns nitrates from agriculture. The aim of those measures is first and foremost to protect ecosystems from excess nutrient supply. However, at the same time, health risks are also associated with nitrates, particularly in very young infants. The Drinking Water Directive therefore contains a limit value of 50 mg/l for nitrates, a value which also appears in the Nitrates Directive.

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Waste

April 1st, 2019 by James Goudie QC in Environment, Highways and Leisure

Two interesting Judgments of the CJEU on 28 March 2019: Joined Cases C-487/17 to C489/17, Verlezza v Vetreco, and Case C-60/18, Tallina v Keskkonnaamet. The former is concerned with the classification of hazardous waste in circumstances where the waste may be assigned codes for both hazardous and non-hazardous waste. The latter is concerned with re-use and recovery of waste.

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Equality Act

February 25th, 2019 by James Goudie QC in Environment, Highways and Leisure

McNutt v Transport for London [2019] EWHC 365 (Admin) was an appeal by way of case stated against a decision of Hendon Magistrates Court to find Mr McNutt, guilty of the offence contrary to Section 165(7) of the Equality Act 2010 (“the EA 2010”). It raised an important point of statutory construction in relation to the duty, pursuant to Section 165(1)(a) and Section 165(4)(b) of the EA 2010 on the driver of a taxi which has been hired by or for a disabled person in a wheelchair “not to make any additional charge for doing so”. By Section 165(7), it is a criminal offence to make such an additional charge.

A taxi is defined by Section 173(1)(a) to be a vehicle which is licensed under Section 37 of the Town Police Clauses Act 1847 or Section 6 of the Metropolitan Public Carriage Act 1869 (“the 1869 Act”). In simple terms, it means a vehicle plying for hire. Read more »

 

Street Works

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

Section 50 of the New Roads Street Works Act 1991 provides a power for a street or highway authority to grant a licence, subject to Schedule 3 conditions, to permit a person to undertake street works. The power has been considered by Dove J in Calor Gas Ltd v Norfolk County Council (2019) EWHC 308 (Admin). The claimant’s case proceeded, firstly, on the basis that the policy operated by the Council in relation to Section 50 licences was contrary to the statutory scheme. Dove J said:-

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Traffic Regulation Order

December 11th, 2018 by James Goudie QC in Environment, Highways and Leisure

Trail Riders Fellowship v Hampshire County Council (2018) EWHC 3390 (Admin) was a statutory challenge to the decision of the Council to make a local traffic regulation order made under Section 1 of the Road Traffic Regulation Act 1984 (“the 1984 Act”). The Order prohibits the use of three linked rural “green lanes” in Hampshire by motor vehicles and motor cycles. Together these lanes form a through-route joining tarmacked public vehicular highways at their three termini. They are unclassified roads.

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Meaning of “Highway”

December 7th, 2018 by James Goudie QC in Environment, Highways and Leisure

The successful appeal to the Supreme Court in Southwark LBC v Transport for London, in which Judgment was given on 5 December 2018, concerned the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (“the Transfer Order”) and the GLA Roads Designation Order 2000 (SI 2000/1117) (“the Designation Order”). By combined operation of those Orders, responsibility for Greater London Authority (“GLA”) roads was transferred from individual London borough councils, including the Respondents (“the Councils”) as local highway authorities, to the Appellant (“TfL”). The provision at the heart of the appeal was Article 2(1)(a) of the Transfer Order, which provides for the transfer of “the highway, in so far as it is vested in the former highway authority”. Read more »

 

Waste Sites

November 29th, 2018 by James Goudie QC in Environment, Highways and Leisure

The Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018, S.I. 2018/1227 (“the 2018 Regulations”), make amendments to the Environmental Protection Act 1990 (“the EPA”) and the Environmental Permitting (England and Wales) Regulations 2016, S.I. 2016/1154 (“the EP Regulations”).

The 2018 Regulations amendments relate to matters including new conditions for environmental permits authorising certain waste operations, and provisions relating to flood risk activities and radioactive substance activities. Read more »

 

HIGHWAY CONSULTATION

November 23rd, 2018 by James Goudie QC in Environment, Highways and Leisure

In R (Sefton MBC) v Highways England (2018) EWHC 3059 (Admin) Kerr J dismissed an application for judicial review by Sefton Council and held that Highways England, when considering options for a new link road, to improve access to the Port of Liverpool, were not acting unlawfully by declining to include in their consultation on their preferred option of an access road through a country park the alternative option of a tunnel. There was no procedural unfairness in dismissing the tunnel option, and excluding it from the consultation, on grounds of expense.

There was no legitimate expectation to the contrary. Highways England was entitled to limit the parameters of its consultation in the way that it did; and the consultation was, in the Court’s determination, fairly conducted. What fairness requires is fact sensitive. Consultees remained free to advocate so-called “dismissed” options and bring them back to centre stage.

Fairness does not require time and public money to be spent on a proposal costing substantially more than the allocated budget for the project would bear. Indeed the arguments that the tunnel should not be regarded as unaffordable, that alternative claims on public funds should be given a lower priority, and that the budget should be revised upwards, are political arguments, for government, not a matter for the Courts. There were appropriate processes available to consider environmental issues, including the processes with respect to a Development Consent Order.