On Behalf of Mark Wilde:

Thanks for this Neil

 

This is one I’ve been following and I agree with the Court of Appeal. It confirms something which many of us have felt intuitively but has never quite been pinned down by a specific decision, namely that an environmental permit operates without prejudice to existing common law rights. Rather, it merely removes  a statutory obstacle to pursuing an activity.

 

The High Court in Biffa ([2011] 4 All E.R. 1065) emphasised that an environmental permit could not be equated with statutory authority. Instead it was argued that it operated as conclusive evidence regarding the reasonableness of an activity. However, in my view, if you follow that line of reasoning you do in fact start drifting towards establishing a form of statutory authority flowing from a permit. Many of us will be aware that the defence of statutory authority, in respect of infrastructure projects such as railways, can be traced to R v Pease (1832) 4 B & Ad 30, 110 ER 366 (public nuisance). This effectively made the question one of statutory interpretation i.e. did Parliament intend to restrict existing common law rights by conferring the authority? There was a precursor to that case, R v Russell (1827) 6 B & C 566, 108 ER 560 (again public nuisance) concerning the installation of a coal wharf on the River Tyne. In this case the various public local Acts involved were not regarded as definitive  but were taken as evidence of the reasonableness of the activity. So overall I think that the Court of Appeal was right to re-establish some clear water between environmental permits and statutory authority.   

 

Best

 

Mark

(Mark Wilde – Reading, UK)

 

PS – If anyone is interested I can supply a reference for a piece I wrote on Pease and the origins of statutory authority with Charlotte Smith.

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Jason Neyers
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Western University
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