DEFRA failing to give public 'access to justice' under PPC

The Environment Department (DEFRA) is failing to fully implement the EU Directive on public participation and access to justice in proposals to amend the pollution prevention and control (PPC) regulations, according to environmental campaigners and lawyers. The Environment Agency is concerned over the Directive's impact on its PPC permitting schedule.

In August, DEFRA proposed a raft of amendments to the PPC regulations, in part aimed at transposing the public participation Directive in the UK (ENDS Report 355, p 36 ). The Directive is one of the main legal instruments implementing the 1998 Aarhus Convention on access to information, public participation and access to justice in environmental decision-making (ENDS Report 279, pp 43-44 ).

The UK originally intended to ratify the Convention in 2001. However, there are serious concerns over whether British law and practice can meet its requirements without significant reform, despite official denials (ENDS Report 354, p 44 ).

The Directive requires that the public should be given "early and effective opportunities to participate" in environmental decision-making procedures. It also requires that the public should have access to a court of law or similar body, in order to challenge the substantive or procedural legality of environmental decisions, and that such a procedure shall be "fair, equitable, timely and not prohibitively expensive." The Directive must be implemented by June 2005.

DEFRA's position is that many of the Directive's provision are already in place in the PPC regime and that only relatively minor amendments are needed. In particular, DEFRA suggested in its August consultation paper that access-to-justice provisions are already met through judicial review procedures.

DEFRA acknowledged that some changes, such as a new requirement on the Agency to publish a reasoned decision on each permit application, may result in an additional "burden" on the regulator. The consultation gave no further information on what impact the requirement might have.

Environmental group Friends of the Earth is, however, clear that DEFRA's proposals "will result in a serious under-implementation of the Directive and of the Convention....This will have a negative impact on the ability of the UK to ratify the Convention."

Currently, the PPC regulations require an applicant to advertise its application in one or more local papers and in the London Gazette. The regulator must make the application available on the public register. The public have 28 days to submit a written response.

FoE argues that the procedures are insufficient to allow the public and environmental groups to participate "effectively". In particular, many people are unlikely to consult such publications on a regular basis, if at all. Moreover, 28 days is insufficient for members of the public to consider and respond to the highly technical issues contained in applications.

Indeed, many statutory consultees such as primary care trusts and sewerage undertakers have struggled to respond within the same time frame. FoE suggests that the regulator should provide the public with access to an on-line database of applications.

FoE's greatest concerns are reserved for DEFRA's business-as-usual stance on access to justice. FoE says that existing judicial review procedures are "prohibitively expensive" for members of the public and environmental groups.

FoE cites a recent study conducted by the environmental justice project, set up by WWF, the Environmental Law Foundation (ELF) and solicitors Leigh Day and Co, which surveyed 37 lawyers and five environmental groups. It found that cost was the main barrier to challenging official decisions through the courts, with 82% saying they were "not satisfied" with current arrangements (ENDS Report 350, pp 15-16 ).

FoE also says that under the Directive, environmental groups with "sufficient interest" are given the right to challenge official decisions in court. The PPC regulations should be amended to implement this requirement.

Many lawyers and legal organisations have similar concerns. The ELF, a charity providing legal advice to the public, said: "The Government's proposed amendments do not adequately transpose the requirements of the EU Directive on public participation."

Andrew Wiseman, chairman of the UK Environmental Law Association, which represents environmental legal specialists, said he hoped the amendments were just a first step and that DEFRA would recognise that a lot more needed to be done to implement the Directive.

The Law Society, which represents solicitors practising in England and Wales, also questioned whether DEFRA's proposals would comply with the Directive.

David Wolfe, a barrister specialising in judicial review with Matrix chambers, told DEFRA that "the suggestion that judicial review is not 'prohibitively expensive' is unsustainable and I strongly disagree with it." A key factor was the potential bill faced by a claimant for costs, if defeated. These costs were typically between £30,000-50,000, in addition to the claimant's own costs. No community group could risk these costs, he said.

Meanwhile, the Agency says that it is "generally supportive" of DEFRA's proposals to implement the public participation Directive. Its response says nothing directly about the Government's interpretation of the Directive's requirements on areas such as access to justice, although it does remark that DEFRA's proposals "lack clarity".

The lack of any response on access to justice is surprising since the Agency, as the main environmental regulator, is likely to be the subject of any potential increase in the number of legal challenges brought about through the Directive.

The Agency's chief concern is the lack of any full assessment of the Directive's impact on the Agency's implementation of IPPC, which it says is "significant."

The Agency is struggling with a backlog of some 600 permit applications and has another 4,200 to determine before 2007 - the deadline set by the IPPC Directive. The Agency is likely to be concerned that any enhanced public participation requirements may add to the backlog, putting the deadline in further jeopardy.

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