Consultation outcome

Summary of responses and government response

Updated 23 March 2022

Introduction

This document provides a summary of formal responses to Defra’s consultation on amending the Civil Procedure Rules (CPR) to establish environmental review. The consultation ran from 26 July 2021 to 6 September 2021. In reading this summary you may find it helpful to refer to the original consultation document which sets out additional context.

Background

The Environment Act 2021 has established a new independent statutory environmental body, the Office for Environmental Protection (OEP).

The Environment Act provides the OEP with statutory functions that will enable it to hold government and public authorities to account on their environmental responsibilities. Enforcement cases will usually be resolved by the OEP through the process of information and decision notices and constructive dialogue with the relevant public authority; legal proceedings should only be taken as a last resort. Nonetheless there may be cases where matters cannot be resolved through dialogue. In those cases, the OEP will be able to bring a legal challenge through the new mechanism of environmental review.

In exceptional cases, the OEP may need to act quickly in order to prevent serious damage to the environment or human health. In such circumstances, the OEP may apply directly for a judicial review, under section 39 of the Act, rather than issuing notices. Rule changes will not be necessary for this provision.

Whilst the Environment Act makes broad provisions regarding the nature of environmental review, as well as some matters of process, amendments will be required to the CPR to establish the mechanism in practice, and to specify important matters of procedure. Amendments to the CPR require the approval of the Civil Procedure Rules Committee (CPRC). The CPRC was established by the Civil Procedure Act 1997 to make rules, which apply in the civil courts, including the High Court.

The CPRC has a statutory duty to consult such persons as it considers appropriate in the course of making applicable rules. Defra’s public consultation, alongside extensive stakeholder engagement conducted, is intended to satisfy this obligation.

Purpose of the consultation

The consultation sought views on provisions which should be made in the CPR to establish environmental review, and on key matters of procedure. It did not seek views on the provisions of the Environment Act itself, which was subject to extensive consultation and stakeholder engagement over a period of years preceding passage.

Methodology and respondents

We emailed a broad range of relevant organisations about the launch of the consultation, including public bodies, NGOs and legal associations. We received contributions from 9 organisations, listed below. This low response rate was anticipated given the technical and specialist nature of the consultation and likelihood of being of interest to a niche group of stakeholders. All respondents agreed to waive their rights to confidentiality. Most of the responses were completed by lawyers on behalf of their organisations. Although the number of respondents to this consultation is not large, the number and diversity of organisations and individuals represented by these respondents is significant. Most respondents also attended 1 of 3 stakeholder events organised and actively participated in discussions. Additionally, some attendees at stakeholder events had practical experience of judicial review claims, which informed their contributions.

Though all written responses and notable points from stakeholder events have been considered in our analysis this document only summarises the main points raised by respondents to the consultation. The consultation was not designed to be a representative survey and all responses are treated equally regardless of who the respondent was or their level of support.

List of respondents

• Interim Office for Environmental Protection (IOEP)
• Public Law Project (PLP)
• Law Society of England and Wales
• National Farmers Union (NFU) - representing over 55,000 members
• British Association for Shooting and Conservation (BASC) - representing over 150,000 members
• PePiPoo
• Greener UK - representing 12 NGOs
• Natural England
• UK Environmental Law Association

Summary of responses

There was broad consensus that the rules applicable to environmental review should generally mirror the procedures for judicial review, with specific proposals to reflect the bespoke nature of environmental review. This broadly aligns with the suggested approach put forward in the consultation document.

Question 7 – The role of interested parties

All 9 responses supported participation of interested parties in environmental review in a way that broadly mirrors current provisions of the CPR applicable to judicial review. Responses recognised the expertise or local knowledge that interested parties could contribute.

Some respondents suggested that complainants to the OEP should be expressly included in the rules as interested parties, similar to existing provisions under CPR Practice Direction (PD) 54A paragraph 4.6 (2) for judicial review. Another respondent was however of the view that it will not usually be necessary for the original complainant(s) to be interested parties in the proceedings. In their view, the OEP will have thoroughly investigated the complaint and will be representing the interests of the public in protecting the environment.

Government response

We note the views of majority of respondents who agreed broadly with the approach proposed. We can see significant merits in third parties who could be directly impacted by the decision, which is being challenged, or would potentially be impacted by the granting of a remedy, being allowed to participate in environmental review proceedings. We therefore intend to put forward proposals to this effect in due course.

We see some merits in both arguments around the presumption that complainants to the OEP could join environmental review as interested parties. However, we consider that in the absence of such a presumption, the OEP will be able to identify and include all relevant persons such as complainants who are directly affected at the point of filing the claim. The OEP will need to have effective processes in place to meet the requirements of section 34 of the Act. This specifies that the OEP must keep a complainant informed about the handling of their complaint and if in particular it applies for environmental review. So we do not intend to propose that complainants to the OEP are expressly included as interested parties.

Question 8 and 9 – The role of interveners and application procedures for interveners

We asked for views on what provisions should be made in the rules regarding the role of interveners in environmental review (question 8) and on whether the application procedures for interveners should differ from judicial review under the Civil Procedure Rules (question 9).

All 9 responses we received to question 8 broadly supported that third-party interveners, that is, those who are not directly affected by a claim, could be considered as potential participants in environmental review, subject to the court’s discretion; and that such participation should broadly mirror rules that apply on judicial review. These respondents were of the view that the participation of such persons should be considered where they have something genuinely useful to contribute due to their particular expertise, especially where such persons with valuable contributions have not participated in the OEP’s investigation leading to the claim.

In response to question 9, many respondents suggested that the application procedures for interveners in environmental review should broadly mirror those of judicial review under CPR 54.17 and PD54A, para 12 (as amended by the 131st Practice Direction dated 31 May 2021). These CPR provisions allow the court to hear an application for permission to intervene made under part 23 provided it is made promptly.

Government response to questions 8 and 9

Most respondents broadly agreed with our outlined approach in the consultation document. We therefore intend to mirror this approach in our proposals, by replicating CPR54.17 which gives the court the discretion to hear any person who apply to file evidence or make representation provided an application is made promptly.

We also intend to take forward proposals supported by majority of respondents to mirror the application procedures for interveners under PD54A (Rule 54.17 as amended) which is applicable to judicial review.

We note that though broadly in agreement with mirroring PD54A (Rule 54.17) a few respondents were of the view that some areas within the recent amendments to this rule could discourage intervention. These respondents suggested more flexibility by allowing interveners to submit a summary of the evidence and not the full evidence. We note the concerns of these respondents and will continue to explore this further.

Question 10 – Awarding of main party costs

All 9 respondents called for the award of main party costs on environmental review to mirror the Upper Tribunal costs regime. Under this regime each party generally bears its own costs. This differs from the default position in judicial review in the High Court, where the losing party bears the costs of the successful party. In the view of most, allowing each party to bear own costs will reflect the unusual nature of environmental review, where both parties must necessarily be public authorities and routine inter-partes costs awards (that is, where one party pays the costs of another) will only serve to recycle public funds. There was also consensus that the court should be allowed the discretion to make awards on the basis of wasted costs or where the parties have acted unreasonably in commencing, defending, or participating in proceedings, again mirroring the discretion afforded to the Upper Tribunal.

Some respondents suggested that there may be merit in incentivising early resolution through some provision for costs awards with suggested alternative models such as costs caps and qualified one-way costs shifting under CPR 44.13 and 44.14, subject to the court’s discretion.

Government response

We acknowledge the unanimous position of respondents that award of main party costs on environmental review should mirror the Upper Tribunal costs regime and will therefore continue to explore this approach, alongside other suggestions such as the possibility to limit any costs awards through the use of caps.

Question 11 – Costs of interested parties and interveners

All 8 respondents to this question were of the view that the rules should generally mirror the current procedures applicable on judicial review. On a judicial review, interested parties and interveners generally bear their own costs, with the exception that adverse costs awards may be made at the discretion of the court in certain circumstances including unreasonableness.

Some respondents were of the view that where costs are to be awarded as an exception, these should only be ordered against interveners where there has been improper conduct on their part, rather than being based on the utility of their submissions as is the case under the costs rules for interveners in judicial review proceedings. This suggestion seeks to deviate from the provisions of S.87 of the Criminal Justice and Courts Act 2015 (the “CJCA”).

Government response

We note the majority view that in environmental review, interested parties and interveners should generally bear their own costs, with the courts having discretion to award costs in certain circumstances such as where a party or intervener has acted unreasonably. We recognise the value of this approach, which would mirror the procedures applicable on judicial review, and intend to mirror this approach in our proposals.

Regarding the circumstances in which the court could make adverse cost awards, as suggested by one respondent, we do not consider there is a need to deviate from the procedures in place for judicial review, as it is unlikely an intervention would be allowed by the court if the intervener’s submission was not of value to proceedings.

Question 12 – Whether claims could be decided without a hearing, replicating CPR 54.18

All 9 respondents were supportive of allowing environmental review claims to be decided without a hearing, provided that the requirement in CPR 54.18 that all parties must agree to this is replicated. Some respondents were of the view that this will avoid unnecessary pressure on the courts and parties and support the overriding objective of ensuring that costs are proportionate. Other responses also recognised that this will be particularly appropriate given that, before commencing environmental review, the parties must have followed an enforcement procedure through which arguments ought to have already been aired and evidence disclosed.

Some respondents suggested that the rules should make provision that parties wishing to skip the hearing process apply to the court at the earliest opportunity, for example before the court gives any case management directions.

Owing to the desirability of cases being dealt with in a transparent way, and the role of environmental review in setting standards for future conduct, some respondents suggested that the courts should consider whether it remains in the public interest to sometimes insist upon a hearing, to take relevant evidence, and make public pronouncements.

Government response

We note that majority of the responses were in support of replicating the judicial review procedures. This would mean that environmental review proceedings could be decided without a hearing if all parties agree. Whilst we consider it would be rare that a case which it has not been possible to resolve through the OEP’s extensive pre-litigation procedures could be concluded on environmental review without a hearing, due to either the complexity of the case, or the outstanding differences between the parties, we recognise the value in allowing the court to decide the claim in this way where appropriate. We also note other suggestions and will consider these further.

Questions 13 and 14 - Additional suggestions for how the procedure for environmental review should differ from judicial review and approach to amending the CPR

We received several comments and suggestions which we have grouped thematically. This is a summary of substantive points, though we have noted the additional practical suggestions received which also inform the proposals we intend to take to the CPRC.

Pre-action protocol

Respondents suggested that it will be unnecessary to have a pre-action protocol for environmental review. This would mean that the dedicated protocol for judicial review and the general protocol would not apply. Some respondents argued that this would be appropriate as the objectives given for following pre-action protocols (para 3 of the Practice Direction- Pre-Action Conduct and Protocols) should have been met before the OEP applies for environmental review. In the view of one respondent, given that the Environment Act makes provision for the pre-litigation steps that the OEP must take to resolve the matter with the relevant public body before bringing an environmental review, there is likely to be no benefit to requiring further pre-action correspondence between the OEP and the public bodies. Others suggested that the pre-action requirements should either be streamlined or aligned with the requirements of the Environment Act, so that those earlier steps satisfy any expectations for environmental review.

Government response

We note the suggestions from respondents that the existing pre-action protocols encourage parties to settle their dispute without court proceedings or reduce the issues in dispute if they decide to go to court. We acknowledge the steps within the protocol to share information and relevant documents which could help the parties understand and properly identify the issues in dispute in a proposed claim. We also note another key objective which is to avoid unnecessary expense and keep down the resolution costs.

We have compared these steps and objectives with the provisions of the Environment Act regarding what the OEP must do before making an environmental review claim and note the very similar pre-litigation stages. The OEP has to share information and try to resolve the dispute through information and decision notices, making environmental review a last resort. We consider that these provisions adequately meet the objectives of the protocol and repeating these steps may result in increased cost of litigation rather than cost reductions intended by the protocol. So we propose that there should be no specified pre-action protocol for environmental review and will amend the general protocol to recognise this.

The lack of a permission stage for environmental review

Respondents suggested that since environmental review will not include a permission stage, clarity will be needed on when and how the court would give case management directions. Respondents also suggested that the rules/practice directions should make clear the expectations for parties to file pleadings to make the process less onerous and more efficient for all parties and the court. They further suggested that the rules could provide for defendants to produce a single ‘ground of defence’ which are complete, address each of the points made in the claim form and accompanying grounds, identify relevant facts and set out the reasoning underlying the matter in dispute.

Other suggestions received were that to avoid unnecessary process, which may complicate and delay environmental review and add to its cost, parties might also be encouraged to reference materials relied on during the prior OEP enforcement process.

Finally, that the rules should allow the court to limit arguments to those raised prior to litigation or exclude arguments which defendants did not raise during the prior enforcement process.

Government response

We acknowledge that a major difference between judicial review and environmental review is the lack of permission stage. Our proposals to the CPRC will reflect this and address the impact on procedural rules in light of the bespoke nature of environmental review, for example by means of provisions such as a dedicated practice direction.

The statement of non-compliance

Suggestions were made for consideration to be given for the procedure rules to make provision covering statements of non-compliance. The respondents also argued for provisions in the rules to include the monitoring of public authorities’ compliance with their responsibilities under the Act after the court has issued the statement of non-compliance.

Government response

We consider the Environment Act 2021 makes clear provision regarding the purpose, use and effect of statements of non-compliance.

Forum for environmental review

Several respondents expressed the view that the Planning Court would be the most appropriate forum for environmental review because of considerable overlap between the sorts of issues subject to certain judicial reviews and environmental review, and the specialist legal expertise of the judges. Current CPR rules (CPR 54.21 to 54.24) provide for judicial reviews regarding some environmental claims to be heard by the Planning Court.

Government response

While the Environment Act provides for environmental review to be heard in the High Court it does not specify the division and so it is appropriate this is specified in the rules. We note that the scope of the Planning Court under CPR54.21 (2)(a) covers planning cases including claims involving certain environmental legislation. We intend to propose that the Planning Court be the forum for environmental review.

The duty of candour

Responses suggested that similar to judicial review, the court should not need to routinely order disclosure and inspection of documents in environmental review; rather, the parties should comply with the duty of candour.

They also suggested that though the OEP does have powers to procure information, the court should be empowered to insist on the highest standards of disclosure by public authorities.

Government response

We acknowledge the merits of the suggestion for the duty of candour, which is enshrined in case law and applicable in judicial review, to apply to environmental review. Under this duty, public bodies have a ‘very high duty’ to make full and fair disclosure to the court, including disclosure of the decision-making process. Given that the main parties to an environmental review will be public bodies it could be of benefit for the duty of candour to apply. More so, we could support the application of the duty of candour to environmental review proceedings as it should promote faster and more cost-effective processes. In practice, orders for disclosure of documents are rarely necessary in judicial review.

Approach to uncontested cases

Some respondents suggested that uncontested cases should not always be settled by consent orders. They also suggested that even where the public authority does not contest that its action or decision did breach environmental law, it could be the case that there is still value in obtaining a precedent-setting judgment from the court on the matter.

Further views suggested that allowing a court ruling would secure and enhance transparency and public awareness about the work of the OEP. They also suggested that cases settled by way of consent orders which are not publicised and not binding on other public authorities in a broader way makes little sense in terms of the OEP’s enforcement functions and delivery of its principal objective. And, that by not creating an option for uncontested cases to proceed smoothly and speedily through the courts (including without an oral hearing where appropriate) in order to obtain a binding decision, the OEP is encouraged to take a more litigious approach because bilateral agreement of matters earlier on would not contribute to the OEP’s delivery of its objective.

Government response

We acknowledge the arguments made by respondents to support a proposal to give the courts in specific uncontested cases the discretion to proceed through normal court processes rather than consent orders. We appreciate the suggestion that this could provide the court the opportunity to give a precedent setting ruling rather than a consent order which adopts settlement decisions of the parties and that this could provide legal clarity to other public bodies.

We however recognise that this process would require the consent of parties who have already agreed not to contest any further but seek settlement for whatever reasons including cost considerations. The uncertainties of what such litigation might hold for these parties in terms of remedies could further discourage them from going through a court process rather than a consent order. As such, we are uncertain how often such a route would in fact be utilised.

We note the provisions of CPR40.6, which sets out that consent orders apply where all the parties agree the terms in which a judgment should be given, or an order should be made.

We believe that where the OEP decides to proceed by way of consent orders the agreed terms will be fair and transparent and provide effective clarity for public authorities in future.

We therefore consider that, on balance, consent orders should provide an appropriate and cost-effective means to resolve uncontested cases but have noted the points made by respondents and will consider further as our proposals develop.

Expert evidence

Responses included suggestions that environmental litigation often has greater scientific content because the environmental impacts at issue tend to require specialist (scientific) expertise to properly understand and evaluate them. Further suggestions were that the rules ought to provide for sufficient flexibility to allow the use of expert evidence when reasonably required to resolve proceedings and that there should not be a requirement for the OEP to obtain the court’s permission before relying on written expert evidence which arises from or is otherwise related to the relevant investigation process preceding the environmental review.

Government response

We note the role experts could play in the work of the OEP.

Conclusion and next steps

We are grateful to those who took the time to provide considered and detailed responses to this consultation. The consultation informs the ongoing development of proposals for the CPRC. We have provided an indication of our intentions regarding the proposals which we shall put forward to the CPRC, though we must note that through this process of engagement with the CPRC, the outcome may differ from our original intentions set out in this document. We will continue to engage with stakeholders, including the CPRC and judiciary, over the coming months, to ensure rules and procedures are developed which are appropriate to environmental review’s bespoke nature and circumstances.

Where respondents raised particular questions or sought clarification on matters of procedure in their responses to this consultation these have been noted, and we will seek to ensure these matters are clarified through the rules themselves or accompanying explanatory materials as our proposals develop.

Additional response from the Institute for Environmental Management and Assessment

Following the conclusion of the consultation period, we received an additional response from the Institute for Environmental Management and Assessment (IEMA), which we’ve also considered in ongoing work and engagement.