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Environmental law

Charles undertakes a wide range of environmental litigation and advisory work in the domestic, EU and international law spheres. He is recommended as a leading junior in environmental law in the latest editions of Chambers & Partners UK (2018) and Legal 500 UK (2017). Comments in these directories include that he is “a star of the junior Bar”, “always impressive”“is particularly acknowledged for his work in the sphere of environmental law”, and“combines great charm with expert knowledge; he has a genuine and deep interest in environmental law". In October 2017 he was awarded 'Environment and Planning Junior of the Year' at the Chambers UK Bar Awards. In December 2017 he was shortlisted for ‘Real Estate, Environment and Planning Junior of the Year’ at the Legal 500 UK Bar Awards. His environmental law practice is evenly split between commercial clients, private clients, environmental NGOs and public authorities including the Environment Agency and the Northern Ireland Department of Environment. In 2016, he was elected to the Council of the UK Environmental Law Association.

Charles has acted in some of the most important environmental cases in the High Court and appellate courts in the last decade, including the first Supreme Court case to consider the application of the Aarhus Convention within the UK (Edwards), the Supreme Court’s landmark judgment on strategic environmental assessment and environmental impact assessment in the context of a Parliamentary development consent process (HS2 Action Alliance No. 1), important Court of Appeal judgments on the scope of the ‘project’ for the purposes of environmental impact assessment (Larkfleet) and the distinction in EU law between ‘waste recovery’ and ‘waste disposal’ (Tarmac) as well as most of the other principal authorities on strategic environmental assessment (Save Historic Newmarket, Ashdown Forest, HS2 Action Alliance No. 2 and Larkfleet Homes). He has also acted on multiple occasions before the UNECE Aarhus Convention Compliance Committee in Geneva. He is currently acting as sole counsel as sole counsel for the United Kingdom before the European Court of Human Rights in Austin v. UK, App. No. 39714/15, concerning the circumstances in which Article 8 ECHR applies in cases of alleged environmental pollution and whether protection against adverse costs orders is required to achieve compliance with the right to an effective remedy under Article 13 ECHR. Details of all these cases, and others, are set out below and in the ‘cases’ link above. 

He is the Editor of The Aarhus Convention – A Guide for UK Lawyers (Hart Publishing, 2015), the first book to be published concerning the implementation of the Aarhus Convention in the UK, and author of the chapter on strategic environmental assessment in Garner’s Environmental Law (see the ‘publications’ link above for details of his other publications in this field).

Listed below is are some of Charles’ main cases in this field, arranged by subject matter in the following order: (i) the Aarhus Convention; (ii) Strategic Environmental Assessment; (iii) Environmental Impact Assessment; (iv) habitats; (v) waste; (vi) advising on environmental regulatory compliance; (vii) other. Please scroll down to see each topic. 

Aarhus Convention

  • Acting as lead counsel for the UK Government before the UNECE Aarhus Convention Compliance Committee in Communication ACCC/C/2015/131 concerning allegations that the UK is in breach of Article 9 of the Convention relating to access to justice (with Jacqueline Lean). A hearing is awaited. 

  • Acting for the UK Government before the Aarhus Convention Compliance Committee in Communications ACCC/C/2013/85-86 Environmental Law Foundation & Alyson Austin v. UK, concerning allegations that the costs regime in private law nuisance proceedings in the UK is contrary to Article 9 of the Aarhus Convention.
  • Acting for the communicants before the Aarhus Convention Compliance Committee in Communication ACCC/C/2014/101 London Borough of Hillingdon & others v. European Union, concerning allegations that the EU has failed to comply with its obligations to put in place a regulatory framework to give effect to Article 7 of the Aarhus Convention (public participation in plans and programmes) and Communication ACCC/C/2014/100 101 London Borough of Hillingdon & others v. UK concerning allegations that the UK Government breached Article 7 of the Convention by failing to provide the public with adequate environmental information about HS2 and the alternatives to it before adopting its strategy for HS2 in the January 2012 Command Paper, “High Speed Two: Decisions and Next Steps”. A hearing before the Compliance Committee took place in Geneva in March 2016 and the Committee’s findings are awaited.

  • Appearing for Miller Argent (South Wales) Ltd before the Aarhus Convention Compliance Committee in Communication ACCC/C/2009/40 Condron v. UK, one of the first communications regarding the UK’s compliance with the Convention, concerning whether the UK could in some circumstances be responsible under the Convention for the actions of private bodies.

  • Advising DEFRA, DECC and the Ministry of Justice on Aarhus Convention compliance in the light of recent Compliance Committee and CJEU findings about the costs regime in environmental judicial review proceedings in the UK (with James Maurici QC). 

  • Appearing for the Appellants in the Court of Appeal in R (London Borough of Hillingdon) v. Secretary of State for the Transport [2015] P.T.S.R. 2015 concerning whether local authorities are entitled to an Aarhus protective costs order under CPR r. 45.41 and/or pursuant to Article 9 of the Aarhus Convention. 

  • Appearing for the Appellants before the Supreme Court in R (HS2 Action Alliance Ltd) v. Secretary of State for the Transport [2014] 1 W.L.R. 324, concerning (inter alia) the compatibility with the Strategic Environmental Assessment Directive 2001/42/EC with the EU’s obligations under Article 7 of the Aarhus Convention (with David Elvin QC). 

  • Acting for the Environment Agency, DEFRA and DCLG in the Supreme Court in R (Edwards & Pallikaropoulos) v. Environment Agency [2011] Env. L.R. 13, concerning the approach to be taken in considering whether the costs of environmental litigation are “prohibitively expensive” contrary to Article 9(4) of the Aarhus Convention, as implemented into EU law by Article 10a of the EIA Directive (with James Eadie QC and James Maurici QC). 

Strategic Environmental Assessment

  • Acting for the HS2 Action Alliance in the High Court, Court of Appeal and Supreme Court in R (HS2 Action Alliance Ltd.) v. Secretary of State for Transport [2014] 1 W.L.R. 324, the high profile legal challenge to the Government's White Paper HS2 - Decisions and Next Steps (Jan 2012) on the grounds (inter alia) that the White Paper should have been and was not subject to SEA pursuant to the Strategic Environmental Assessment Directive (with David Elvin QC).

  • Appearing for the HS2 Action Alliance and the London Borough of Hillingdon in the Court of Appeal in November 2014 in R (HS2 Action Alliance Ltd) v. Secretary of State for Transport (No.2) [2014] EWCA Civ 1578, a challenge to the safeguarding direction issued to protect land said to be required for Phase 1 of HS2 on  the grounds it is a plan or programme which sets the framework for development consent applying the Supreme Court’s interpretation of the SEA Directive in the first HS2 challenge, and therefore it ought to have been subject to strategic environmental assessment (with David Elvin QC).   

  • Acting for the claimants in Save Historic Newmarket Ltd v. Forest Heath District Council [2011] J.P.L. 1233, a successful challenge to the Forest Heath Core Strategy on the basis that it was adopted in breach of the requirements of the Strategic Environmental Assessment Directive, in particular the duty for the Environmental Report / Sustainability Appraisal accompanying a draft plan or programme to explain what reasonable alternatives to the proposed policies have been considered and why they were rejected (with David Elvin QC).  
  • Acting for the appellants in Ashdown Forest Economic Development LLP v. Wealden District Council [2016] Env. L.R. 2, a successful EU environmental law challenge to the treatment of the relationship between future development and the Ashdown Forest in the Wealden District Core Strategy Local Plan, concerning the extent of the requirement under the SEA Directive to assess the reasonable alternatives to a plan or programme before its adoption (with David Elvin QC). 

  • Acting for the claimants in R (Larkfleet Homes Limited) v. Rutland District Council [2015] P.T.S.R. 1369, a judicial review challenge to the Uppingham Neighbourhood Plan concerning the legal principles relating to ‘screening decisions’ on whether or not a plan covering a small scale at local level needs to be subject to strategic environmental assessment, and the need for SEA screening decision to have regard to the potential for positive effects as well as negative effects (with David Elvin QC).

  • Advising the Department for Communities and Local Government on SEA issues relating to the revocation of Regional Strategies in 2012/13.

Environmental Impact Assessment

  • Acting for the claimant in R (Larkfleet Limited) v. South Kesteven DC [2016] Env. L.R. 4, a judicial review challenge to the grant of a relief road to enable a large-scale urban extension on the grounds that the road and the urban extension should have been assessed as a single ‘project’ under the EIA Directive or alternatively that the cumulative environmental effects of the road taken together with the urban extension were not assessed in accordance with the requirements of the Directive (with Martin Kingston QC).

  • Acting for the interested party developer in Newry Chamber of Commerce’s Application for Judicial Review [2015] NIQB 65, concerning the assessment of cumulative effects under the EIA Directive and the Court’s approach to EIA judicial reviews in circumstances where the claimant relies upon points which could have been, but were not, made to the decision-maker prior to the challenged decision (with John Litton QC).

  • Acting for the claimant in R (Trevone Objectors Group) v. Cornwall Council [2013] EWHC 4091 (Admin), on the applicability of the precautionary principle and the relevance of a site's size to EIA screening decisions.

  • Acting for the Secretary of State in the Supreme Court in opposition to the claimant’s application for permission to appeal in Mageean v. Secretary of State for Communities and Local Government [2012] Env. L.R. 3, concerning the approach to be taken by a planning inspector in considering whether to refer a previous negative screening direction (i.e. a direction by the Secretary of State in respect of proposed development falling within Schedule 2 of the EIA Regulations that environmental impact assessment is not required owing to the absence of any likely significant environmental effects) back to the Secretary of State for reconsideration (with John Litton QC).
     
  • R (Bucks CC & others) v. Secretary of State for Transport [2014] 1 W.L.R. 324 (SC), on whether the proposed Hybrid Bill procedure for obtaining development consent for HS2 from Parliament is incompatible with the requirements of the EIA Directive.

Habitats

  • Catfield Fen Inquiry (April 2016) - acting as sole counsel for the proprietor of a major agricultural business in a 3 week inquiry into his appeal against the Environment Agency’s decision to refuse his applications for renewal of abstraction licences required to supply the irrigation system needed for salad and pre-pack potato crops. The appeal relates to whether the renewal of the licences would be compatible with the Habitats Directive having regard to the effect of water abstraction on the ecology of the Broads Special Area of Conservation. The issues include the proper interpretation of the Habitats Directive in relation to the assessment of potential harm to a SAC and relating to the test under Article 6(4) for imperative reasons of overriding public interest. The appeal is of potentially far-reaching impact for the farming industry and is supported by the National Farmers’ Union.

  • Acting for the appellants in Ashdown Forest Economic Development LLP v. Wealden District Council [2016] Env. L.R. 2, concerning the relationship between the screening of a plan for potential effects on habitats pursuant to Art. 6 of the Habitats Directive and the consideration of what reasonable alternatives to the plan policies should be assessed pursuant to Art. 5 of the SEA Directive (with David Elvin QC).

  • Acting for the interested party developer in Newry Chamber of Commerce’s Application for Judicial Review [2015] NIQB 65, concerning the assessment of cumulative effects under the Habitats Directive and Habitats Regulations and the Court’s discretion not to quash in circumstances where even if there had been a technical breach of the Directive and Regulations there was no evidence that there was a real rather than hypothetical risk of harm to the designated habitat(s) which should have been considered (with John Litton QC).

  • Acting for the Department of Culture, Arts and Leisure in Northern Ireland in November 2012 in a high profile challenge to its refusal to issue or renew licences for commercial salmon fishing on the Antrim Coast due to the impact of salmon fishing on special areas of conservation protected by the Habitats Directive.

Waste

  • Acting for the Environment Agency in R (Tarmac Aggregates Ltd) v. (1) Secretary of State for Environment, Food and Rural Affairs and (2) Environment Agency [2016] Env. L.R. 15, concerning the approach to determining whether an activity is “waste recovery” under Article 3(15) of the Waste Framework Directive as opposed to “waste disposal”.

  • Acting for Lancashire County Council in R (Residents Against Waste Site Ltd) v. Lancashire CC [2008] Env. L.R. 27, on the meaning and application of the “relevant objectives” under the Waste Framework Directive for considering proposals for the disposal or recovery of waste (with David Elvin QC).

  • Representing Veolia Environmental Services in its successful defence of a High Court challenge to its permission for a strategic integrated waste management facility in Padworth, West Berkshire.

  • Acting for the Environment Agency at inquiries into appeals against the refusal of environmental permit applications relating to (i) a proposed landfill at Birks Quarry, Oldham, and ii) a proposed quarry restoration scheme involving the use of inert waste at Methley Quarry, Leeds.

Advising on environmental regulatory compliance

  • Regularly advising USA-based companies on compliance with EU environmental regulatory law applicable to their products within the EU market, including issues under the Regulation Evaluation Authorisation and Restriction of Chemicals (‘REACH’) Regulation, Waste Electrical and Electronic Equipment (‘WEEE’) Directive and Restriction of Hazardous Substances (‘ROHS’) Directive.
  • Advising the Ministry of Defence on compliance with the REACH Regulation.

  • Advising a major Hong Kong landowner on environmental regulatory issues in Hong Kong.

Other

  • Acting for the Environment Agency in Chancery Division proceedings concerning the Agency's position as administrator of the UK Greenhouse Gas Emissions Trading Scheme Registry in circumstances where a company accidentally transferred 10,000 allowances into another company's account.

  • Case C-528/16 Confédération paysanne v. Premier Ministre (hearing awaited): a reference from the French Conseil d’État on whether mutagenesis is excluded from the scope of the provisions of EU envionmental legislation relating to genetically modified organisms, and if not whether the relevant legislation is invalid having regard to the precautionary principle (sole counsel for the UK Government).