CASE-LAW UPDATE

Victoria Hutton

20 November 2018

Topics

• Fracking and Protest Injunctions

• Nuisance and Japanese Knotweed

• Habitats and the ECJ

• Human Rights and Salmon

Fracking and Injunctions

Fracking and Injunctions

• Over the course of 2018:

– R(oao Dennett) v Lancashire CC [2018] 10 WLUK

224

– Cuadrilla Bowland Ltd v Persons Unknown [2018] 7

WLUK 223

– Ineos Upstream Ltd v Lord Advocate [2018] CSOH 66

– Cuadrilla Bowland Ltd v Persons Unknown [2018] 5

WLUK 628

– Preston New Road Action Group v SSCLG [2018]

EWCA Civ 9

Challenges to Fracking

• Preston New Road Action Group v SSCLG

– PP granted for exploratory works to assess feasibility

of extracting shale gas by fracking at two sites. Six

year process followed by restoration of the sites.

– SoS concluded that proposals were compliant with

relevant policies. He also concluded that it could be

assumed that the regulatory regime would operate

effectively to control emissions and that there would

be no public health impacts

Preston New Road (cont.)

• Grounds of challenge:

– SoS misapplied policy CS5 in concluding that

temporary harm was not a breach of the policy.

– SoS misapplied policy DM2 by failing to consider

whether the proposal would make a positive

contribution.

– SoS misapplied valued landscapes policy in the

NPPF

– Procedural unfairness

– Failure to heed health effects

Preston New Road (cont.)

• Appeal Dismissed:

– CS policies lawfully interpreted and applied

– Para.109 in NPPF was not framed in terms of

preventing any harm at all it was for the

decision maker to conclude whether

temporary harm would breach the policy

– No procedural unfairness

– SoS had reached rational conclusion on

health effects.

R(oao Dennett) v Lancashire CC [2018] 10 WLUK 224

• Application for interim injunction to prevent

commencement of fracking and also for judicial

review of LPA’s decision with regards to their

assessment of safety risks.

• The IP had been granted petroleum exploration

and development license and environmental

permit for site in Preston and PP for horizontal

shale gas well by SoS.

• Drilling had been completed for two sell sites

and fracking due to commence.

R(oao Dennett) (Cont.)

• C submitted that the LPA had failed to take a

precautionary approach to the environmental

impact and risks.

• Application refused, Supperstone J held that the

risks had been properly considered and not for

the court to substitute its own risk assessment

for that of the experts.

• Risk assessment had proceeded on

precautionary basis by applying worst-case

scenario.

Ineos Upstream v Lord Advocate [2018] CSOH 66

• JR which alleged that the Scottish

Government had unlawfully prohibited

fracking.

• Court held, no legally enforceable

prohibition. Instead, emerging and un-

finalised planning policy which did not

express support for fracking.

Protest Injunctions

• Two interim injunction applications by

Cuadrilla

– Cuadrilla Bowland Ltd v Persons Unknown

[2018] 7 WLUK 223 (continuation)

– Cuadrilla Bowland Ltd v Persons Unknown

[2018] 5 WLUK 628 (original)

Protest Injunctions

• Originally against persons unknown

• 4 named defendants came forward on day

of hearing

• Causes of action included trespass,

unlawful interference with access and

obstructing the highway

Protest Injunctions

• Injunction granted and later continued.

• American Cyanamid test applied

• Rights under arts 10 and 11 ECHR

engaged

• Court applied test in s12(3) HRA 1998

• Held more likely than not that the

claimants would succeed at trial

Nuisance and Japanese Knotweed

Nuisance and Japanese Knotweed

• Network Rail Infrastructure Ltd v Williams [2018]

EWCA Civ 1514

– NR appealed against county court decision allowing

actions in private nuisance for the effects of Japanese

Knotweed on their properties

– No physical damage, but Recorder had found NR had

failed to carry out obligation as a reasonable

landowner to prevent interference with quiet

enjoyment of the properties, causing continuing

nuisance and damage.

Network Rail (cont.)

• CoA’s conclusions on nuisance:

– Private nuisance is a violation of property rights

involving either an interference with legal rights of a

landowner or interference with amenity of the land.

– Categories of encroachment, interference and

physical injury are examples not exhaustive list.

– Damage not always an essential requirement for the

cause of action. Concept of damage is elastic.

– Nuisance could be caused by inaction.

– Broad unifying principle is reasonableness between

neighbours.

Network Rail (cont.)

• CoA further held:

– Recorder was wrong to conclude that the presence of

knotweed was actionable because it diminished

market value of the properties.

– The knotweed carried risk of future physical damage,

this with the failure of NR reasonably to prevent

interference was sufficient to form the cause of action.

– Encroachment by the rhizomes diminished the utility

and amenity of the properties and therefore nuisance

was committed.

– Final mandatory injunctions may be possible.

HABITATS

HABITATS

• People Over Wind and Sweetman v Coillte

Teoranta

• Edel Grace and Sweetman v An Bord

Pleanala

– ECJ disagrees with long line of E&W caselaw

and confirms that mitigation measures may

not be taken into account in deciding whether

to carry out an AA.

Salmon and Human Rights

R(Mott) v Environment Agency [2018] UKSC 10

• EA imposed annual ‘catch limit’ on Mr

Mott’s commercial fisherman’s license to

operate a salmon fishery in the Severn

Estuary.

• Limit imposed by Salmon and Freshwater

Fisheries Act 1975, Sch.2 para.14A

• Limit reduced catch by 95%

R(Mott) v Environment Agency [2018] UKSC 10

• Purpose of limit was to protect salmon

stocks in the River Wye (SAC)

• No compensation paid.

• Mott claimed this breached his rights

under Art 1, Protocol 1 ECHR

R(Mott) v Environment Agency [2018] UKSC 10

• EA argued that there was a distinction

between the control and expropriation of

an individual’s rights (R(oao Trailer and

Marina (Leven) Ltd v SSEFRA [2004] EWCA

Civ 1580)

R(Mott) v Environment Agency [2018] UKSC 10

• Appeal dismissed.

• Distinction between expropriation and control

not clear-cut in Strasbourg case law and not

crucial to instant case.

• The effect on Mott was excessive and

disproportionate.

• Need to attach special importance to protection

of the environment did not detract from need to

strike fair balance between public and private

interests.

R(Mott) v Environment Agency [2018] UKSC 10

• Although not necessary to define as either expropriation

or control the elimination of 95% of the benefit of the

rights made it closer to deprivation.

• EA had not considered impact on Mott’s livelihood.

• Court stressed exceptional nature of Mr Mott’s case and

wide margin of discretion in imposing necessary

environmental controls.

• No general expectation of compensation under art.1

protocol.1 for adverse effects.

Case-law Update

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Victoria Hutton

20 November 2018