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FAQs environment cases

Is my case an environmental case?
Isn’t it very expensive to take legal action? 
Who can I take legal action against?
What grounds do I need to have to take legal action?

How quickly do I need to act?

What is the process for taking environmental cases?
How long does it take to get judgment from the Court?
Can we get an injunction to prevent damage to the environment?

Is my case likely to succeed?
What else can we do to support our case?

Is my case an environmental case?

The rules governing whether a case can be categorised as environmental are new - but the courts are likely to take a broad definition of what falls into this category. An environmental case is likely to concern one or more of the following issues:

  • Air quality;
  • Water quality (freshwater and marine);
  • Adverse impacts on species and/or habitats;
  • Soil quality;
  • Impacts on protected areas and the visual landscape;
  • Proposals concerning Genetically Modified Organisms (GMOs);
  • Noise pollution;
  • Energy and radiation;
  • Administrative measures (including environmental agreements, policies, legislation, plans or programmes) that may adversely affect the environment;
  • Cost-benefit and other economic analyses and assumptions used in environmental decision-making that may adversely affect the environment; and
  • Human health and safety, quality of life and cultural sites and built structures – insofar as they are likely to affect the environment.

Isn’t it very expensive to take legal action?

Generally, yes – but special rules apply in environmental cases. Normally, if you lose your case you not only have to pay your own legal costs, you have to pay the other side’s legal costs as well (the ‘loser pays’ rule). 

In environmental cases, recent changes to the costs rules limit an unsuccessful claimants’ liability for the costs of the other side to up to £5,000 if they are an individual and up to £10,000 if they are a group. We can argue that a smaller amount is appropriate but it is important to know what your maximum liability might be before you decide to go ahead.

Successful claimants can recover their legal costs from the defendant. In theory these costs are capped at £35,000 inclusive of VAT - but it is possible that the cap will be increased or even removed in due course.

These funding arrangements mean that prospective environmental cases can be run in a variety of ways – either on a Conditional Fee Agreement (CFA – or ‘no win no fee’ basis) or privately funded (i.e. you commit to funding your own legal fees and the capped liability of the other side if you lose). If you fund your case privately, you will need to budget for around £35,000 of legal costs.

Finally, it may be that someone on your group or the local area qualifies for legal aid. In such circumstances the Legal Aid Authority covers the costs of the claimants’ solicitors and they are protected from any adverse costs risk – although claimants are generally expected to find a financial contribution of some sort towards the total sum.

Who can I take legal action against?

The Government has made new rules for environmental cases, which primarily concern decisions made by public bodies, including Government ministers and government departments, Local Planning Authorities, the Infrastructure Planning Commission and statutory bodies such as Natural England and the Environment Agency. Such decisions are normally challenged by way of judicial review.

The new costs regime may also encompass appeals made under sections 288 and 289 of the Town and Country Planning Act 1990, in which the claimant (an ‘aggrieved person’) seeks an order quashing the decision of a Planning Inspector or the Secretary of State on an appeal in relation to a Planning Permission application. 

However, it is unclear at this stage whether environmental disputes between neighbours (such as nuisance) will benefit from the new costs protection regime.

What grounds do I need to have to take legal action?

Decisions by public bodies can be challenged on a number of grounds, but they break down into three main categories (which may overlap):

  • Illegality - a public body must understand and apply the law that regulates its decisions and actions. For example, it is likely to be unlawful if the public body takes into account irrelevant factors when making a decision - or if it fails to take account of relevant factors when doing so;
  • Irrationality - it is unlawful for a public body to make a decision which is so unreasonable as to be perverse or irrational. This is difficult argument to win in court, as the threshold for irrationality is extremely high;
  • Unfairness - public bodies should not act so unfairly as to amount to an abuse of power. This means that if there are clear procedures a public body is required to follow, it must do so. Similarly, public bodies must not breach the rules of “natural justice”, for example a public body must act impartially and be seen to do so. There must be a “fair hearing” before a decision is made, although this does not always literally mean an oral hearing. Fairness also demands that the public body gives reasons for its decisions.

The Leigh Day Environmental and Planning Litigation Service can advise you as to the potential grounds for a case and whether you have reasonable prospects of succeeding before the courts.

How quickly do I need to act?

It is imperative that you act very quickly if you are thinking of taking legal action. The time limit to bring a judicial review application is ‘promptly’ or in any event within 3 months from the date of the decision. In planning cases, judicial reviews and statutory appeals under s288 Town & Country Planning Act 1990 must be brought within 6 weeks of the date of the decision.

So, if you think a decision taken by a public body is potentially unlawful the following steps should be taken as a matter of urgency:
  • Find somebody affected by the public body’s decision willing to take legal action. This can be an individual or an organisation (a community group or an environmental NGO/charity) which represents the interest of a group of individuals or concerns;
  • Request and obtain as much documentation as you can about the decision, for example copies of the officer’s report and minutes of meetings at which the public body made the decision, any press releases or press cuttings about the decision, any relevant correspondence with the public body about the decision; and
  • Obtain legal advice/help in order to start legal proceedings.

What is the process for taking environmental cases?

If you have grounds to start a judicial review and you have discussed funding options with your lawyer, you (the claimant) will be required to send a letter before claim to the public body (the defendant). This letter sets out details of the decision, the reason(s) why you believe it to be unlawful and what you would like the defendant to do and by when. The letter must also set a deadline for response (normally 14 days) and state that judicial review proceedings will be issued if a satisfactory response is not received within that time limit.

The defendant’s response must set out either the basis upon which it considers the decision to be lawful or it should agree to reverse its decision and/or enter into negotiations with the claimant about terms of a possible settlement.

If there is no response to the letter before claim or the response is unsatisfactory, the claimant should consider making an application to the Administrative Court (part of the High Court) for permission to bring judicial review proceedings. This must be served on the defendant and any interested party (developer or polluter) and there is a £60 court fee to be paid.

The defendant (and interested party) then normally files and serves an acknowledgment of service and summary grounds of resistance, a document which sets out the basis upon which the public body intends to defend the claim. 

Having considered all the documents, a judge will then decide on the papers (i.e. without a hearing) whether the case is ‘arguable’ and the claimant should be granted permission to proceed to an oral hearing. If permission is refused, the claimant can request that decision to be reconsidered at an oral hearing, unless the court has identified it as ‘totally without merit’. This request must be made within 7 day of their notification of the judge’s decision on the papers.

If permission is granted, all parties then prepare for the full substantive hearing. The claimant must lodge a further fee of £215 within 7 days of service of the judge’s decision. Normally, within 35 days, the defendant must file and serve its evidence and detailed grounds of resistance setting out in greater detail the basis upon which it intends to contest the claim and any written evidence it wishes to rely on. 

During the substantive hearing a judge will consider the claim in detail. This can be several months from when the claim was first issued, although this again will depend on the urgency with which the case needs to be resolved. The hearing can last a couple of hours or several days depending on the complexity of issues involved. There is usually no oral evidence and the claimant does not have to attend court.

The Administrative Court normally provides a fully reasoned decision in writing some days or weeks after a hearing has taken place - although this can be done immediately after the hearing if urgency requires.

If an application for judicial review is successful the court has the following potential orders it can grant to the claimant:
  • Quashing orders: the original decision is declared invalid, it is struck down and the public body has to take the decision again;
  • Prohibiting orders: the public body is forbidden from doing something unlawful in the future;
  • Mandatory  orders: the public body is ordered to do something specific which it has a duty to do;
  •  A declaration, for example on a way to interpret the law in the future.
Either party can seek to appeal against the Court’s decision. However, permission to appeal will be required either from the Administrative Court judge, or if unsuccessful, from the Court of Appeal. Such an application has to be made within 14 days of the Administrative Court’s decision.

How long does it take to get judgment from the Court?

The Administrative Court normally provides a fully reasoned decision in writing some days or weeks after a full hearing has taken place - although this can be done immediately after the hearing if urgency requires.

Either party can seek to appeal against the Court’s decision. However, permission to appeal will be required either from the Administrative Court judge, or if unsuccessful, from the Court of Appeal. Such an application has to be made within 14 days of the Administrative Court’s decision.

Can we get an injunction to prevent damage to the environment?

Depending on whether the defendant (or developer/polluter) agrees to put its decision on hold pending the outcome of the legal challenge, the claimant may need to apply for an injunction from the court preventing the public body (or developer/polluter) from taking any further steps that will prejudice his or her case.

In most cases, the claimant is required to give the court an undertaking that they will, in the event of losing the case, compensate the defendant (or developer/polluter) for any loss of profit incurred as a result of putting the proposal on hold. However, in environmental cases, the court must have regard to whether this would make the case too expensive for the claimant to bring. The court must also make any necessary directions to ensure the case is heard at the earliest opportunity. 

Is my case likely to succeed?

It is important to remember that the best outcome in successful judicial review is likely to be that the public body’s decision is quashed. In these circumstances, it is likely the public body will go on to reconsider the question or issue again.  In order to try and prevent the public body from making the same decision again you will have to win the political argument about why the original decision was wrong.

This is particularly the case in environmental challenges. Such cases do not have high success rates because they often raise complex scientific arguments and/or raise points of European law. It is therefore very important to ensure your legal challenge is supported by a wider campaign of public action. A good example of this is the East London River Crossing, which threatened Oxleas Wood in Greenwich. Even though local residents lost their legal action, a coordinated campaign of public opposition eventually forced the Government to withdraw the proposed scheme. Some ideas for building your campaign can be found in the next question.

What else can we do to support our case?

There are a number of helpful activities that you can pursue at the same time as embarking on legal action. These include:
  • Media activity – alert the press to your issue and proposed legal action. Some journalists may not want to cover the story until you have a judgment but others (local and regional press) are likely to cover the case as it progresses;
  • Contact your MP – it used to be said that for every letter an MP receives on an issue, they would assume another 10 (potential) voters were concerned about it. Writing to your MP (and even better visiting them in their surgery) is a good way of raising the issue locally – and for your MP to raise it on your behalf in Parliament via written and oral questions to Government Ministers;
  • Canvass support – there are a variety of activities you can pursue to garner support for your cause. Start a petition, set-up a website, use social media, organise demonstrations/events and mass letter writing campaigns to raise awareness about your issue – and most importantly to highlight the strength of opposition to it. Many environmental issues have been determinative for politicians (selling off the Nation’s woodlands, expansion at Heathrow airport, hunting) and it is usually people power – as opposed to a legal case – that decides the fate of a proposal. That’s not to say that a well-formulated and timed legal case can’t form a central plank of a campaign – but don’t put all your eggs in one basket;
  • Contact environmental groups – contact national and specialist environmental charities to see if they will support your cause. Visit our useful links page for a list of potential organisations;
  • Submit a complaint to the European Commission – if your issue concerns a potential infringement of European law, you may be able to submit a complaint to the European Commission (DG Environment), who may progress your case for you. However, it can be a very slow process – the average case takes around 7 years from lodging the complaint to a judgment in the European Court – and that’s only if the Commission decides to take your case on. There is a complaints form and more information about this process on the website of the European Commission Secretariat Group:   
  • Aarhus Convention Compliance Committee – if your issue concerns a potential infringement of the UNECE Aarhus Convention, you can submit a Communication to the Aarhus Compliance Committee, which considers complaints from the public and usually reaches a conclusion within two years. You would be advised to speak to the ELS before considering this course of action. There is also a useful Guidance Document on the Compliance Committee on the UNECE website
  • Local Government Ombudsmen - the Local Government Ombudsman considers complaints about councils and some other authorities and organisations. There are currently two Local Government Ombudsmen in England offering a free service. They make decisions independently of all government departments, politicians and bodies they investigate. The Ombudsmen have the same powers as the High Court to obtain information and documents. Their decisions are final and cannot be appealed.  They do not have to investigate every complaint received – they may, for example, decide not to investigate a complaint if they consider it has not affected you significantly. More information can be found here;
  • Parliamentary Ombudsman – the Parliamentary & Health Service Ombudsman can investigate complaints from people who consider they have been caused injustice by administrative fault (maladministration) in connection with the actions or omissions of Government departments and other public bodies. Complaints must be directed through a Member of Parliament and the complainant must first have put their grievance to the department concerned in order to allow officials to respond before taking the matter further. More information can be found here.

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