Infrastructure and the Environment – some learning from Heathrow

Thu, 19 Mar 2020

Introduction

At present, the contest between need and the environmental effects of expansion of Heathrow has been settled by a virus.  The Government advises against all international travel.  In the minds of many, and in particular the media, R (oao) Planet B Earth v Secretary of State for Transport [2020] EWCA Civ 214, is a case about climate change and, of course, it is.   But it is also a case which yields learning in a host of other areas.  This short piece highlights one of them.  It is this question: in a technical or scientific case, how closely will the court mark the parties’ homework?  Is it ‘tick and flick’ or PhD viva?  As always, lawyers have coined their own term – ‘intrusiveness of review’.

Planet B is quite clear and quite conventional on this point.  It makes no new law.  However, such questions do not exist in silos all of their own.  The same law applies whatever the facts.  Where the facts are much more personal, the court has adopted a more intrusive approach.  Are the arguments easily transmissible to environmental facts?  That question is considered by reference to R (oao) Cotter v National Institute for Health and Care Excellence (NICE) [2020] EWHC 435.

One practical question which emerges from the comparison is to ask, if an environmental judicial review is focussed on the specific harm to an individual, rather than an environmental ‘compartment’ (air, water etc) or society more broadly, would the court’s review of the decision be more intrusive?  If these arguments are adopted in environmental litigation, are infrastructure decisions at risk of more intense scrutiny?

Planet B

In Planet B[1],  the Court of Appeal agreed with the Divisional Court which said that, "the degree of scrutiny required by any challenge before [it] will be dependent upon … the strand of policy which is under review". It saw in the decision of this court in R. (on the application of Mott) v Environment Agency [2016] EWCA Civ 564; [2016] 1 W.L.R. 4338 "a helpful reminder of well-established good law: the court should accord an enhanced margin of appreciation to decisions involving or based upon "scientific, technical and predictive assessments" by those with appropriate expertise". It observed that "where a decision is highly dependent upon the assessment of a wide variety of complex technical matters by those who are expert in such matters and/or who are assigned to the task of assessment (ultimately by Parliament), the margin of appreciation will be substantial".

It was argued that the domestic law concept of review on "Wednesbury" principles is inappropriate where fundamental principles of EU law are in play.   Rather, the "precautionary principle", should have been applied by the Secretary of State when preparing and designating the airports national policy statement – because uncertainty remained over the environmental impacts of the Heathrow north-west runway. The application of a standard of review based on proportionality, not “Wednesbury” rationality was justified because identification of alternatives under the Habitats Directive was the same kind of exercise as establishing, in the second stage of a proportionality assessment, whether the means chosen are the least restrictive alternative[2]. Measures that impair fundamental environmental protections granted by EU law are comparable in their significance to a serious interference with fundamental rights under EU law.

The interaction between environmental harm and real risks to life have been met head on by the Advocate General[3]:

"43.  … [In] complex scientific or technical assessments and weighing up there is, as a rule, broad discretion which can be reviewed only to some degree. That discretion is nevertheless limited in certain cases and must therefore be reviewed more intensively, in particular where they are particularly serious interferences with fundamental rights.

  1. … The rules on ambient air quality … put in concrete terms the Union's obligations to provide protection following from the fundamental right to life under art. 2(1) of the Charter and the high level of environmental protection required under art. 3(3) TEU, art. 37 of the Charter and art. 191(2) TFEU . …." 

The Court stayed firmly with the established “Wednesbury” approach for two reasons:

  • No fundamental EU rights were interfered with in this case, let alone seriously interfered with or made "impossible in practice" to exercise;
  • There is a clear strand of EU case law that respects the discretion of Member States to lay down procedural rules for the protection of EU law rights. "Wednesbury" irrationality is the normal standard of review applicable in judicial review proceedings in this jurisdiction where interferences are alleged with rights of various kinds, including rights arising in domestic environmental law. And it seems to us appropriate in principle, and not less favourable, to apply the same standard to rights under EU law.

So, ‘situation normal’.

Cotter

Meanwhile in Cotter, the High Court had to consider a decision by the National Institute for Health and Care Excellence (‘NICE’).  That decision was concerned with a drug known as Kuvan, which treats a rare metabolic condition which inhibits the body’s ability to metabolise protein.  If left untreated, irreversible brain damage results.  The standard treatment is dietary management.  But the necessary diet is very restricted indeed.  Kuvan has been shown to alleviate the need to restrict diet.

The claimant was an 11 year old girl.

If NICE recommends to the NHS that a drug should be used, then the NHS is obliged to prescribe it to responsive patients.  NICE makes its recommendation after assessment under one of two possible processes, one of which is the Highly Specialised Technology (‘HST’) process.  To use this process of assessment, specified criteria have to be met.  In this case, NICE decided against using the HST process.  That decision was challenged in the judicial review.

The question of the intensity of review arose.  The claimant submitted that the court should not shy away from a thorough review of a decision even if it was taken by experts on a matter requiring specialist expertise. In the Songwriters case[4], Green J said:

"144 ... It is an error to suggest that simply because the subject matter of a decision, or the evidence used to justify it, is "economic" or "technical" that courts should recoil in terror and move gratefully into judicial reticence mode by reference to "margin of appreciation". If this were the judicial default position courts would find it hard indeed to hold in favour of claimants in clinical negligence cases where, almost invariably, the case turns on complex scientific evidence. In R (Rotherham MBC) [2015] PTSR 322 the Supreme Court recognised the dangers of "judicial timidity": para 65, per Lord Neuberger of Abbotsbury PSC. Decisions of the utmost importance to individuals, to companies and to society are routinely "economic" and "technical" and errors in those decisions should be as much susceptible to judicial review as other equivalent but less technical decisions. There should be no lacuna in judicial review simply because the nature of the decision under challenge is a difficult one."

In Cotter, Cavanah J agreed with Green J in the Songwriters case, but balanced that with the judgment which was vested in a group of people with particular experience and expertise to take it. The views of the decision-makers should be given proper respect, whilst also bearing in mind that the impact of the decision was very significant on those whose chances of obtaining Kuvan on the NHS were thereby reduced.

In short, the judge split the difference on the intensity of review; but more than Wednesbury.

Future arguments

On the facts in Heathrow, it seems unlikely that the decision would have been very different if the habitats regulations issues had been subject to a higher intensity of review.  But there is a different line which claimants may take in future cases in which they identify the dangers of ‘judicial timidity’ and thus have an opportunity to test the technical robustness of complex decisions.  Such a case seems more likely where the environmental effects present health risks.  That area of litigation is very far from new as the ‘incinerator cases’ show[5].  There is, it seems, still a need for the promoters of infrastructure projects, and any development with significant environmental effects, to continue to work as though they have a judge looking over their shoulder.

[1] See the judgment in Planet B at [68]

[2] Opinion of Advocate General Kokott in Case C-239/04 Commission v Portugal [2006] ECR I-10183.

[3] Opinion of Advocate General Kokott in Case C-723/17 Craeynest v Brussels Hoofdstedelijk Gewest [2020] Env. L.R. 4 

[4] R (British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin)

[5] By way of example, R v Bolton MBC ex p Kirkham [1998] Env LR 560

Related articles

There is, generally, a right to cross-examine. It was established in the 1992 rules,[1] and is present in the same form in r 16(5) of the 2000 Rules[2]:...

Date: Tue, 21 Jul 2020
Oxton Farm v Harrogate BC [2020] EWCA Civ 805...

Date: Wed, 08 Jul 2020
This case is a High Court challenge by statutory judicial review to the Secretary of State's decision to grant a development consent order for the construction and operation of two gas-fired generating units at an existing coal-fired power station site in Yorkshire....

Date: Tue, 30 Jun 2020