Page 41 - Lawtext Environmental Liabilty Journal Example

[2007] 4 Env. Liability[2007] 4 Env. Liability : Case Commentaries R (on the application of Greenpeace Ltd) v
SS for Trade and Industry

[2008] 3 Env. Liability : Case Commentaries Punitive damages ruled excessive in Exxon Valdez : Battista 107107
107
107
107
Case Commentaries The Habitats Regulations 1994 – The Dilly Lane case : Sector
applications by Hart District Council predicated upon on the SPA, and incorporating those proposals into the
appropriate assessment issues were subsequently granted project,’ the competent authority thereafter would be
by the Secretary of State and then challenged in the High ‘required to ignore them when considering whether an
Court by the local planning authority, Hart District Council. appropriate assessment was necessary’. Such a position,
Alongside the issue as to when mitigation measures should which required the disaggregation of elements of a
be appropriately factored into the Regulation 48 development’s mitigation package, was ‘ludicrous’.
determination process, the Council also argued that the The contrary pragmatic position was to be adopted. This
Secretary of State had placed disproportionate weight upon required a competent authority to ‘consider whether the
the advice of Natural England as to the sufficiency of the project as a whole, including such measures, if they are
development’s ecological mitigation package created to part of the project, is likely to have a significant effect on
offset its potential impact upon the Thames Basin Heaths the SPA’.
Special Protection Area. With regard to Natural England, Mr Justice Sullivan
In a judgment infused with pragmatism, rather than one expressed the opinion that a competent authority was
which adheres rigidly to legal form, Mr Justice Sullivan entitled, if it so chose, to give ‘great weight’ to the views of
stressed that the competent authority was not ‘considering the government’s nature conservancy advisers. Indeed, a
the likely effects of some hypothetical project in the ‘cogent explanation’ would be required if the competent
abstract’. Whilst the Regulation 48 process was complex authority decided not to give considerable weight to their
at face value, such complexity was only skin deep. A views.
practical approach was advocated.
With regard to the issue of the correct stage at which Comment
mitigation should be considered by the competent authority On a practical level, the Dilly Lane judgment emphasises
under Regulation 48 there was ‘no sensible reason why the importance to developers of a clear strategy in dealing
those features [of the project mitigation] should be ignored with Natural England on projects likely to trigger a decision
at the initial, screening, stage merely because they have been under Regulation 48, whilst fortuitously removing a layer
incorporated into the project to avoid, or mitigate, any likely of legal uncertainty in the development process when a
effect on the SPA’. Any other construction would create European site is involved. Nevertheless, it remains an area
an unhelpful situation such that although the developer went within which those promoting development must
to ‘the time, trouble and expense of devising specific undoubtedly continue to tread with significant caution and
mitigation measures designed to avoid or mitigate any effect care.

ENVIRONMENTAL LIABILITY PUBLISHED BY LAWTEXT PUBLISHING LIMITED
www.lawtext.com