The Environment Legal Control and EU Regulations 



The European Union (EU) has one of the most extensive laws related to environmental protection among the international organizations. The environmental policy of the EU has been formulated by appropriately including the national as well as international environmental policies, standards, and conventions. Due to these factors, the EU environmental policy has emerged as one of the most stringent and holistic environmental policies in the world. The environmental legislation of the EU addresses a wide range of issues such as the depletion of the ozone layer, acid rain, water and waste pollution, noise pollution, air quality, carbon footprints and sustainable energy to name a few. The environmental laws implemented in the EU also have substantial impacts on the environmental policy regulation in the member states. As per the Institute for European Environmental Policy, the body of the environmental law in the union amounts to more than 500 Regulations, Decisions, and Directives.

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Procedure for determining whether an interference is unreasonable and thus an actionable nuisance

Nuisance is a common type of Tort Law. Nuisance refers to anything which can cause annoyance, offence, injury or trouble. A nuisance can be of two types: public or common nuisance and private nuisance. A public nuisance is an act which is not legally warranted or an omission to the discharge of legal duty, which omission or act can obstruct or cause damage or inconvenience to the public with respect to the exercise of rights which are common to all the citizens and inhabitants of the land. A private nuisance, on the other hand, refers to the interference with the rights of a specific group of people. Private nuisance is identified as one of the earliest cases of action considered under common law with the cases conducted for private nuisance dating back to the beginning of the recording of case laws in court trials. The concept of a nuisance as a tort law hints at the fact that the right of quiet enjoyment of an individual is being disrupted or hindered to such an extent that a tort is being committed. It is often difficult to identify whether a particular interference is unreasonable in nature and is, therefore, an actionable nuisance under the English environmental law. This is because the boundaries of a nuisance as a tort are potentially blurred in nature. The existing divide between public and private nuisance also makes the identification of an interference as unreasonable and as an actionable nuisance much more difficult. While there are no accurate and pre-decided definitions of the reasonableness of an action, there is a set of factors which need to be taken into account in the process of determining the unreasonableness of any action so that it can be termed as an actionable nuisance. The common factors which are considered for the determination of the reasonableness of a nuisance include the nature of the area in which the nuisance took place, the duration and time of the interference the conduct of the defendant and the level of normalcy in the activity displayed by the claimant. The existence of rules in cases like Ryland v/s Fletcher further highlight the non-clarity in the boundaries of the nuisance tort law. This case is known to have formed a separate yet related tort with respect to nuisance determination. The new rule in nuisance determination is popularly known as the Rule in Ryland v/s Fletcher and states that ‘the individual who for his own purpose brings anything in his land which can cause damage must keep it at his own responsibility and peril and in case he/she is unable to do so, then he/she would be prima facie responsible and answerable for the damage which is a natural consequence of the element brought into the land’. This rule was developed in the case of Ryland v/s Fletcher on the basis of the ‘right to enjoy property clause’ in the UK black letter law. This rule was further developed as per the English law in subsequent nuisance tart law cases and impacted the existing environmental law to a great extent. After the trial of this case, the English courts started to focus on the nature of actions along with the intention of action in case of nuisance determination. Thus currently, the nature of nuisance is an important factor for consideration in the process of identifying whether interference can be termed as unreasonable and a valid nuisance in legal terms. Another case of Sturges v/s Bridgman highlighted that under the EU law, there is no defence that the claimant in a case has newly come into a nuisance. A new owner of a property is thus eligible to bring a claim for nuisance against an existing activity of a neighbour. The case of Coventry v/s Lawrence in 2012 prompted the launch of a campaign for the purpose of overwriting the ‘coming to a nuisance’ law. The campaigners, in this case, stated that the already ongoing law-abiding activities which are being conducted with the permission of the authorities and support of the local residents are mandatory to be accepted as a valid part of the area by any new resident coming to reside in the same and thru cannot be termed as a nuisance.

In case, the nuisance is claimed on the basis of an abnormal kind of sensitivity displayed by the claimant, then it is outright rejected from being an actual nuisance under the law of the land. A claim for nuisance can be rejected under the common law if it fulfils the definition of abnormal sensitivity. Abnormal sensitivity occurs when the damaged property of the claimant is particularly sensitive or susceptible to any form of impact, harm or damage caused by the actions of the defendant. The case of Robinson v/s Kilvert established that if the actions of the defendant would not have caused any damage to the property of the client if not from the abnormal sensitivity of the claimant then the defendant would not be legally liable to compensate for such damages. However, if such damage has been caused to any abnormally sensitive property and could also have been caused to a non-sensitive property then the defendant would be liable to compensate for the damages inflicted on the property of the claimant. This clause was highlighted in the case of McKinnon Industries v/s Walker. The clause of reasonableness was applicable in this case because it infringed on the basic right to ordinary enjoyment and as a result of this, the claimant, in this case, was legally entitled to claim for the sensitive activities also. The locality in which the interference has occurred is also an important factor to be considered to decide whether the nuisance was reasonable or not. In the legal case of Sturges v/s Bridgman, it was stated by the court that what could have been a nuisance in one residential area might not necessarily be a nuisance in another area because two areas might be distinct in their characteristic demographic features. Therefore, if an interference is out of place with respect to the locality, it can be termed as unreasonable. Nevertheless, another factor which needs to be considered in the context is that the nature of regions changes with time. This was evident in the case of Gillingham Borough Council v/s Medway (Chatham) Dock Co Ltd. In this claim, the granting of the planning permissions for the construction of a commercial dock in one region altered the character of the region, thereby making it legally impossible for the local residents to claim private nuisance caused by the disturbance from the newly developed dock. Though the granting of planning permission by the authority does not assure the constitution of immunity from a nuisance claim, yet in case of Wheeler v/s Saunders Ltd., the court stated that it would essentially be a termed as a nuisance if what has happened in the case can be defined as a change in the inherent character of the region. The court further said that the change of use has occurred to a small piece of land and thus it is not any strategic decision which has been taken by considering the interests of the local residents. Thus, until and unless an entity is prepared to acknowledge that any strategic planning decision taken by the authorities would automatically mean that any associated or resultant nuisance is inevitable, then the argument or claim that the nuisance is authorized by the permission would not be valid. 

In the situations in which the activities of the defendant have caused physical damages to the claimant and/or his property, as in the case of St Helen’s Smelting Co. v/s Tipping, the region of the interference would not be a stand-alone factor for deciding the unreasonableness of the action. The duration and time of the activity which is claimed to be a nuisance should also be considered for determining unreasonableness. This is because some interferences or activities can be reasonable at one time but can fall under the category of unreasonable activities at another point in time. This was evident in Halsey v/s Esso Petroleum case in which filling oil tankers at 10 am was considered to be a reasonable activity but the same things done at 10 pm was deemed to be unreasonable. It should also be mentioned in this respect that a private nuisance is generally defined as a continuing state of affairs and not a onetime situation, However, there are exceptions to this definition as was evident in the De Keyser’s Royal Hotel v/s Spicer case in which pile driving during the night was categorized as a nuisance and in such  a case, the normal remedy for the nuisance was to grant  injunction for limiting or pre-determining the time of the activity. A similar situation was found in the case of British Celanese v/s AH Hunt Ltd in which an electronic company operating in London stored foil strips on the property of the company which blew onto the adjacent land resulting in the power supply of a neighbouring yarn manufacturer to be cut off. In this trial, the court stated that even though apparently this was a one-time event, yet the method used by the company to store the foil strips had the potential to result in similar incidences in the future and as such the defendant, in this case, was held liable to pay for the nuisance. 

Analysis of how far the Aarhus Convention has been implemented in the EU and UK environmental Law

The UNECE Convention or The Aarhus Convention on participation of public in decision-making, access to information and access to environmental matters justice was signed on 25 June 1998 in the city of Aarhus. As of March 2016, there are 47 parties including the European Union and 46 states which have accessed this convention as part of their Environmental law and policy formulation. This convention grants the public the right of accessing information, justice and public participation in the government decision making processes undertaken for the matters concerning the regional, national as well as the international environment. The Aarhus convention is an environmental agreement through which the citizens are provided with the legal rights and opportunities for accessing environmental information. It typically focuses on the interactions between the public authorities and the public of the member states. 

The Aarhus convention has been considered as an integral part of the environmental law of the European Union because it constitutes a substantial achievement in the domain of international environmental law. The inclusion of this convention has been done in the EU environmental policies with the aim of achieving sustainable development and promoting human rights and good governance at the same time. The Regulation (EC) N° 1367/2006 of the European Parliament directed at the application of the provisions specified by the Aarhus Convention on Public Participation in Decision-making, the Access to Justice in Environmental issues for the institutions and the Access to Information in the country had formally come into effect on 28th September 2006. The Aarhus convention as applied in the EU Environment Law covers not only the institutions but also the agencies, bodies, and offices which have been established on the basis of the European Council Treaty. The adoption of this convention has made it mandatory for all such bodies in the Union to adapt to their central practices and procedures to the provisions stipulated by the Aarhus Convention. The Aarhus convention is aimed at guaranteeing the citizens of a nation the right to access information and justice in relation to environmental matters, establishes the minimum standard required for exercising these rights, promotes transparency in all the environmental-legal matters and decisions taken by the governments, prohibits any kind of discrimination against the individuals exercising such rights and setting a uniform international legal mechanism for ensuring equal environmental rights to all the citizens. This convention applies the principles and obligations to all the sectors and levels of governments including the regional, local and national levels as well as to all the administrative agencies and bodies which function in the public sectors. This convention had been adopted with the aim of enhancing the reliability and transparency of the environmental policy formulation and implementation in the EU. Prior to the inclusion of this convention, significant lack of transparency was present in the domain of environmental governance in the union. The government of the EU adopted the convention by considering it to be mandatory for strengthening the environmental rights of the citizens through the implementation of an international legal mechanism. Since the ratification of this convention in the U.K. and EU in 2005, there have been growing awareness regarding the access to justice and democratic participation in matters related to environmental compliance, environmental governance and legal protection for such issues. The Aarhus Regulation as implemented in the UK and EU environmental law typically was aimed at addressing the “three core pillars” included in the Aarhus Convention which is public participation, access to information and access to justice with regards to environmental matters. However, in reality how far the legal system in the EU and UK have practically followed the principles of the Aarhus Convention remains a debatable topic. The UK and the EU had started by signing the Aarhus convention so that any legal case on environment issue does not remain prohibitively expensive for the public. Nonetheless, it has been evident in many cases that the public had not been able to access clear information about the associated costs of legal claims in environmental matters and as such have refrained from going to the courts for justice. Also, in most of the courts in the UK a general reluctance is shown for allowing the merits of a public decision to be legally challenged due to which the general citizens of the EU and UK have not been able to develop full-fledged trust and reliability on the national environmental laws. As per the UN report published in 2016, United Kingdom has been lagging behind in terms of allowing fair access for the public to the court’s systems so that justice related to environmental matters can be uniformly guaranteed. As per the ACC Committee report of 2014, the law reform in the United Kingdom has shifted it supplementary away from the basic national duty to permit the public access justice by claiming for environmental cases. These reports support the argument that in many instances both participatory and procedural rights have remained inaccessible for the public with respect to seeking justice for environmental issues. 

The inclusion of this convention was expected to introduce a trustworthy and reactive relationship between the national government and the civil society, enhance the overall environmental governance network and empower the public to participate in the regulatory policy setting and decision-making processes with respect to environmental protection. Further, the governance by disclosure and the guaranteed access of the public to justice were aimed to be ensured so that the EU could be rapidly shifted towards being an environmentally responsible society. The European Council had been delegated with the task to ensure conformance of the member states as well as the institutions and the bodies which carry out administrative duties with the doctrines mentioned in the Aarhus convention. But as seen in cases like Sweden and Turco v/s Council [2008], the European Council has repeatedly favoured confidentiality of information in the government decision making due to which the openness of legislative processes have been restrained. These kinds of cases have brought into the limelight the shortcomings in the actual implementation of the Aarhus Convention in the EU legal cases. In some other cases such as Franchet v/s By, Kuijer v Verein v/s Council and für Konsumenteninformation v/s Commission, the European Council has not been able to restrict information disclosure because following the Aarhus Convention principles, any exception to the right of accessing environmental information needs to be interpreted in restrictive ways while considering the public interests are serviced by the disclosure of information and whether the information requested for disclosure is related to environmental matters. In these legal cases, it has been discussed time and again that each party involved in the Arhus convention system is bound to promote the principles prescribed in the convention and to publish a national report on a periodic basis but at the same time, verdict for disclosure of information has remained restrictive. Due to this, a transparent and consultative process of justice-seeking with respect to environmental governance has not yet been facilitated in the European Union. Therefore, although this model has the potential to be enforced as a perfect example of a holistic and multi-level governance system useful for fulfilling the environmental interests of all the associated stakeholder groups, it has not been optimally utilized in the EU environmental construct. 


Thus, it is evident that although the EU environmental law is one of the most extensive and detailed environmental laws in the world, yet there are certain shortcoming noted in the law due to the existing discrepancies between the international level Aarhus Convention and the EU law. The poor implementation of the public rights as enshrined by the Aarhus Convention has highlighted that the citizens of the country are often deprived of the basic rights of information access and for participation in the decision making processes in matters which concern them. Therefore, in order to make the EU environmental law sufficient for contributing to the process of making the EU public administration transparent, open and participatory, it is important for the government to consider reviewing the ways the principles of the convention are being interpreted and implemented within the national legal construct. 

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