The establishment of a new environmental tribunal would mark a major step towards achieving environmental justice in this country, by providing a far stronger framework for dealing with the complex cases of environmental pollution that can come before the courts. That is the key recommendation of a UCL research report funded by DEFRA and published on 11 June 2003.

The report describes how a specialised environmental tribunal would be far better equipped to deal knowledgeably and efficiently with cases involving such issues as landfill sites and contaminated land. Such a tribunal could also provide the mechanism whereby individuals or businesses could appeal against the granting of licences for testing and using Genetically Modified Organisms (GMOs).

The UCL team found a general level of dissatisfaction with current appeal arrangements because of the confusion arising from the wide variety of different appeal mechanisms and bodies which exist. In some cases, no explicit right of appeal is provided in the legislation at all, so that individuals and businesses have to resort to time consuming and costly judicial review procedures in the High Court in order to challenge decisions taken by the Government or its agencies.

The report also recommends that members of the public and NGOs be allowed to make appeals or be heard in such environmental cases in certain circumstances in order to generally enhance access to environmental justice.

“The current system that has developed for dealing with environmental cases is one that is not easily understood even by regular users, and has failed to reflect contemporary developments in environmental law,” said Professor Richard Macrory of the UCL Centre for Law and Environment. “A specialised environmental tribunal would increase public confidence in the operation of environmental regulation in this country. It would reduce the burden on judicial bodies that are less suited to handling these types of appeal, and would be easier to use for individuals and businesses.

“The need for an environmental tribunal is all the more pressing given the range of new environmental requirements currently on the horizon, covering issues such as end of life vehicles, environmental liability, greenhouse gas emissions trading and agricultural waste. The tribunal would also help the UK to better meet its international commitments on access to environmental justice under the Aarhus Convention.”

The report’s authors set out specific examples of how an environmental tribunal might operate in practice to improve the quality of environmental justice, including the following case scenario:

• Following complaints of noise and dust pollution from local residents, a local authority serves a statutory nuisance notice on a company operating a foundry works in an urban area. The company appeals against the notice and because of the complex issues involved this appeal is handled by the environmental tribunal rather than the local magistrates’ court. The new tribunal reaches its decision based on its specialised knowledge of the relevant law and wide experience in this field, and upholds the notice. Should the company then fail to comply, the prosecution for non-compliance would be heard by the local magistrates’ court, which need only be concerned with assessing the factual evidence of non-compliance rather than the validity of the notice.

Further information

1. A seminar to launch the report was held on 11 June 2003 at the offices of Freshfields Bruckhaus Deringer. For more information contact Heidi Foden, UCL Media Relations, 020 7679 7678.
2. The report ‘Modernising Environmental Justice – Regulation and the Role of an Environmental Tribunal’ has been prepared by Professor Richard Macrory CBE and Michael Woods, LLM, Solicitor, at the Centre for Law and the Environment, Faculty of Laws, University College London, for the Department for Environment Food and Rural Affairs; copies will be available for downloading at the research project webpage – www.ucl.ac.uk/laws/environment or from the Media Relations office.
3. The Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters was completed by the United Nations Economic Commission for Europe (UNECE) in 1998 and came into force on 30 October 2001. The European Community, including the UK, has signed the Convention, and is in the process of putting in place amending legislation to allow formal ratification. The Convention includes obligations on state parties to ensure a “clear, transparent and consistent framework” for environmental regulation, and to provide “adequate and effective remedies... [that are] fair, equitable, timely and not prohibitively expensive”. For more details see: www.unece.org/env/pp/.