Green watchdog powers could have ‘chilling effect’ on judicial review process, say legal experts

Legal powers to be granted to the proposed Office for Environmental Protection (OEP) under the Environment Bill could hinder organisations’ access to the judicial review process, according to academics and lawyers.

The comments were made during a debate yesterday at 39 Essex Chambers’ annual event on environmental and planning law. 

The OEP, the body that after Brexit will take on some of the oversight and enforcement functions currently held by the EU Commission, will have powers to ask the courts for an “environmental review” of public bodies. The bespoke mechanism lacks detail in the bill, but could lead to the creation of an environmental tribunal system.

Maria Lee, professor of environmental law at the University College London, warned delegates that in the bill’s current form, such a tribunal system could inadvertently inhibit options to go for judicial review because the new review might be considered, “an alternative remedy that must be exhausted before [groups such as NGOs] can go for judicial review action.”   

She added: “And it simply adds delay because the OEP can only bring environmental action once it’s gone through all legal processes.”

To remedy the issue, Lee believes an additional clause should be added to the bill to prevent the tribunal system being used to prevent judicial review from happening.

As the bill stands, the principles of the environmental review will be pinned on an application for judicial review. Lee said she was not expecting “anything particularly creative” from the upper tribunal.

She said: “These are basically judicial review processes, which might be extensive, but aren’t novel.”

Lee wants to see environmental scientific experts sitting with the judge in the upper tribunal, saying they “will be more inclined to look more closely at the factual scenario put in front of them”. But on the face of the bill there’s currently no need to have such experts, Lee said. 

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