Law Society concern at ability of intervenors and interested parties to take part in new High Court 'environmental review' cases

Legal costs should be set so they do not deter interested parties and intervenors from participating in the new “environmental reviews” in the courts, the Law Society has said.

In its response to a consultation by the Department for the Environment, Food and Rural Affairs, Chancery Lane said: “We want to make sure that those with a legitimate interest in environmental matters are able to access the justice system [and] will be treated no less fairly than interveners in judicial review cases.”

The Environment Bill, now before Parliament, would establish the concept of environmental review by the High Court.

These reviews could be brought only by the Office for Environmental Protection (OEP) – a new body created by the Bill to replace the role formerly played by the European Commission in enforcing environmental regulations.

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The OEP would be able to apply to the High Court for an environmental review where it has issued a decision notice to a public authority but still believes a serious failure to comply with environmental law has occurred.

Such reviews would be conducted on the same principles as in judicial review.

If the court finds for the OEP, it can issue a ‘statement of non-compliance’ and grant standard judicial review remedies other than damages.

The Law Society said the environmental review procedure should be as closely aligned as possible to those of judicial reviews and changes to the civil procedure rules (CPR) “should not amount to a barrier to people accessing the justice system.

“In particular, the involvement of third parties in environmental disputes must not be inadvertently discouraged given the far-reaching effects such cases can have on communities.”

The Society said it would “caution against understating the inherent value of interveners [who] can play an important role by offering expert analysis or enhancing the understanding of the factual basis of a claim from their practical experience”.

It said the costs regime “should not risk unduly deterring potential interested parties and interveners from seeking to participate” and any provision in the CPR on environmental review costs “should not be any more detrimental than the current legislative measures applied to costs of interveners in judicial review”.

The Society said a less detrimental approach than judicial review could be implemented by only requiring interveners to meet costs in very exceptional circumstances, with their costs covered if the intervention is deemed reasonable.

Mark Smulian

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