Green appeals system ripe for simplification

The existing regulatory appeals framework needs simplification, but the new Environment Tribunal offers a chance for reform, a report argues.

The regulatory appeals framework in England and Wales needs streamlining and should be consolidated under the new Environment Tribunal, according to a report by ENDS columnist Professor Richard Macrory, of the Centre for Law and the Environment, at University College London.

Professor Macrory was asked in October 2010, by Lord Justice Carnwath, senior president of tribunals, to examine the case for enhancing the tribunal’s role. The findings were published in January.1

The report found the appeals system was “complex and confusing” and called for “more coherent, simple and effective” structures.

Appeals against regulators’ decisions and rulings on environmental matters are handled by a variety of bodies. These include the High Court, magistrates courts, the Planning Inspectorate and government departments. But this has created a system lacking common procedures.

An earlier review by Professor Macrory for the environment department (DEFRA) in 2003 reached similar conclusions after considering more than 50 pieces of environmental regulation (ENDS Report 341, pp 3-4). In some cases, there was no right of appeal available.

He called for an environment tribunal to be set up to handle regulatory appeals. The report’s recommendations were not implemented, but the picture changed last year with the creation of the Environment Tribunal as part of the general reorganisation of the tribunal system.

Part of the General Regulatory Chamber of the First-tier Tribunal, the Environment Tribunal comprises six appointed judges and ten non-legal members.

It was established as a result of the Environment Agency and Natural England acquiring civil sanctioning powers under part 3 of the Regulatory Enforcement and Sanctions Act 2008 in January (ENDS Report 432, p 55). These allow regulators to use civil rather than criminal sanctions, but stipulate that appeals against them must be made to a tribunal.

With the establishment of the Environment Tribunal, the time is now ripe for an overhaul and consolidation of appeals procedures, says Professor Macrory. Whether this actually happens is largely in the hands of government departments. The Ministry of Justice is now likely to coordinate a response to the recommendations.

Complex structures

Professor Macrory’s latest report highlights the appeals framework’s complexity.

This is illustrated by the REACH Enforcement Regulations 2008/2852, which provide for four separate appeal routes. Decisions on notices served by the Environment Agency are appealed to the secretary of state, those served by the Health and Safety Executive are heard by an Employment Tribunal, those served by councils are handled through magistrates courts and notices served by the secretary of state go through the High Court.

Further complexity exists under the 2005 Greenhouse Gas Emissions Trading regulations, which cover the UK’s participation in the EU emissions trading scheme.

Under these, the secretary of state is the appeal body against Environment Agency decisions. But the secretary of state is the primary enforcement body in relation to offshore installations and the agency is the appeal body against the secretary of state’s decisions. This is “a rather odd reciprocal arrangement”, says the Macrory report.

The report also pinpoints cases where legislation provides no right of regulatory appeal. “Evidence suggests that the absence of the right to a regulatory appeal leads to greater pressure on judicial reviews which are ill-suited for such cases and a potential wasteful use of judicial resources,” says Professor Macrory.

The tribunal offers several benefits. It has a defined set of procedural rules, is structured so as to command confidence and is able to deal flexibly with both straightforward and more complex cases.

Its jurisdiction was initially limited to hearing appeals against civil sanctions imposed by environmental regulators. Professor Macrory says that because these represent important new powers that avoid the unnecessary use of the criminal courts, “an effective appeals process is vital to prevent abuse” of them.

Other appeals have since been added to its remit, including those relating to eco-design regulations and appeals under the new Welsh plastic bag regulations.

And using the tribunal for appeals, instead of a plethora of bodies, offers huge benefits.

Chiefly, it would consolidate the appeals process within a single, clear structure and be in tune with the government’s reform agenda that seeks to simplify and modernise regulatory structures.

But Professor Macrory identifies several environmental regulatory regimes, covering areas such as greenhouse emissions trading and waste electrical and electronic, where appeals against civil sanctions go to different bodies. The report recommends that, as a start, these appeals should also be heard by the tribunal.

He does not advocate transferring all environmental appeals, however. The Planning Inspectorate should continue to hear those with “significant land-use connections”, while magistrates courts should continue to handle statutory nuisance appeals. But both should have the power to refer appeals to the tribunal.

For new environmental legislation, the report recommends that where powers are granted to a government body or agency to determine someone’s rights or obligations, there should be a presumption that a right of appeal to the Environment Tribunal is made available.

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