In this latest Environmental Law News Update, Mark Davies and William McBarnet consider the Welsh Government’s consultation on environmental policy post-Brexit, UK plans to designate over half of the UK’s global waters as Marine Protected Areas and a recent case concerning the impact of licensing badger culls on sites of special scientific interest.
Welsh Government consultation shows a potential divergence of approach to environmental law post-Brexit
The Welsh Government has today announced a 12-week consultation to seek views on ‘how to address gaps in environmental principles and governance relating to Wales when the UK leaves the European Union’.
The most immediate reaction to this consultation must be why now? Why, with less than two weeks to go until the date for Brexit, has the Welsh Government opened a 12-week consultation? The assertion in the Ministerial Forward (not a typo, the consultation document really does say ‘Ministerial Forward’ rather than Ministerial Foreword’) that the Welsh Government is ‘committed to ensuring there is no drop in environmental standards’ must surely be viewed dimly in light of the time frame, although, to an extent, the Welsh Government should feel entitled to fall back on its excellent Well-being of Future Generations Act and Environment Act, which England does not possess.
In light of the Well-being and Environment Acts, the two EU Environmental Principles the consultation recognises as not being replicated in Welsh Primary Legislation are the ‘Polluter Pays’ and the ‘Rectification at Source’ principles and the consultation invites views on whether legislation should be drafted to introduce these into the existing framework.
In respect of the lack of oversight from the Commission post-Brexit, the consultation recognises three gaps in governance:
- Independent accountability;
- A simple and inexpensive mechanism to raise complaints; and
- Enforcement mechanisms.
Interestingly, here the consultation arguably aims to go further than the current proposals for an Office for Environmental Protection in England in that a body is suggested that would be able to advise and scrutinise Welsh Ministers, NRW, Welsh local authorities and Ministers of the Crown, whilst, importantly, having independent appointment structures and independent sources of funding. The body would also, under the proposals, have both informal and formal enforcement mechanisms, which, under the formal process, would include the ability to refer matters to the courts where a breach continues (in a similar fashion to the Commission currently).
The end the consultation has a section on ‘Working across the UK’, which would seem to be of sensible interest to most involved in the field of environmental law. This would accord with the Welsh Government’s White Paper that called for the four UK administrations to work more collaboratively.
All in all, the consultation contains some important ideas and perhaps reinforces the progressive nature of the Welsh Government to environmental law, it is just hard to understand why it has come so late in the day.
The consultation paper may be found here
UK Government to designate more than half of the UK’s global waters as Marine Protected Areas
On 14 March 2019 DEFRA and the Foreign and Commonwealth Office announced that the UK would be backing plans by Ascension Island to designate over 150,000 square miles of its waters as a fully protected, no-take, Marine Protected Area.
The proposal, which would put the UK at the forefront of calls (admittedly, it should be recalled, these are calls which have made by the UK Government itself) to protect 30% of the world’s oceans by 2030, would involve closing the off-shore area to any fishing activity and safeguarding important marine habitats for future generations.
The designation would bring the total percentage of Marine Protected Areas in the UK’s territorial waters, Overseas Territories and Crown Dependencies to over 50%.
Excitingly, this is one area in which the UK does seem to be driving rising environmental standards. The current target under the United Nations Convention on Biological Diversity is to protect 10% of coastal and marine areas by 2020, and so the UK Government’s move to raise that to 30% by 2030 should be lauded.
Later in the year the Government is due to publish its international ocean strategy, so this is one area to keep an eye on.
The press release regarding the Ascension Island proposals may be found here
R (on the application of Langton) v Secretary of State for Environment, Food and Rural Affairs  EWHC 597 (Admin.)
The High Court found that Natural England (“NE”) had failed to properly assess the impact of licensing badger culls on sites of special scientific interest (“SSSIs”). The claimant contended that Natural England’s approach in granting licences was fundamentally flawed since it omitted certain species when it was deciding on conditions culling operations in 45 SSSIs. The case provides guidance on how the courts will approach any review of NE’s decisions to grant such licences.
It is important to note that the claimant met with limited success in this case. The judge divided the SSSIs under consideration into three categories: those where licence conditions had already been amended (but where one season of ‘unreviewed’ badger control had taken place); those where NE contended that the alleged omissions would not have made any difference to the conditions which it decided to impose on the licences; and those where the SSSI citation for the site needed to be interpreted to identify whether NE had taken all special features into account in the licensing process.
The claim in relation to the sites under the first and second groupings ultimately failed for the same reason – i.e. the court would exclude from consideration sites where an omission to assess would have made no difference. Cranston J noted that the legal basis for this principle was twofold.
Firstly, under section 31(2A) of the Senior Courts Act 1981, the court must refuse relief in cases where it appears to be highly likely that an alleged omission would not have resulted in a substantially different outcome and that that principle was not restricted to conduct of a procedural or technical kind but could include a failure to consider a matter.
Secondly, section 31(2A) has to be see against the background of the court’s general disinclination to give advisory opinions and its discouragement of academic points. One reason for the this is the need to allocate resources proportionately. To take academic points in one case could encourage others to bring similar claims in other cases when the court is already hard-pressed with its caseload.
With regard to sites under the third grouping, there was debate as to what matters NE was obliged to consider when exercising its licensing function. Under section 28G of the Wildlife and Countryside Act 1981 it is obliged to take reasonable steps to further the conservation and enhancement of the flora, fauna or geological or physiographical features by reason of which a SSSI is of special scientific interest.
Cranston J held that the section 28G duty applies when NE makes decisions on badger control licences. The section provided a guide as to which considerations, as a matter of law, meet the test set out in Re Findlay  AC 318, 333-334, per Lord Scarman that relevant considerations are considerations which are so obviously material to the decision that the legislation intends that they be taken into account.
In the circumstances of the case, relevant considerations were those special features leading to the notification of a SSSI. In this connection, there was no duty to undertake further investigation – the special features on notification remain as they are as a matter of law until renotification or denotification. Any duty NE have to protect wild habits more broadly could not, as a matter of general policy, override a statutory and common law duty which included a focus on the special features of a site.
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