Patrick Bishop

Salmon fishing in the severn: Judicial deference to regulatory judgments based on scientific assessments: R (on the application of Mott) v Environment Agency [2016] EWCA Civ 564

To claim that environmental law is heavily influenced by science is to make a rather trite assertion. Disputes about the probative value of scientific and technical evidence when used as the basis for a regulatory decision are therefore not uncommon. R. (on the application of Mott) v Environment Agency is an example of this phenomenon. In particular, the key issue was whether the Environment Agency had acted perversely (in judicial review terms) by relying on contested scientific evidence as the justification for imposing catch limitations designed to preserve salmon stocks in the river Wye. In finding for the Agency, the Court of Appeal restated and reaffirmed the established principle that decision makers ought to be afforded a wide margin of appreciation in such cases; a principle which reinforces the view that the courts are not an appropriate forum for the resolution of scientific and technical disputes. In commenting on this decision it is contended that the position of the courts in this regard has the potential to undermine the rationale of evidence-based decision making. However, it is impractical in most instances for a regulator to wait for a scientific consensus to emerge, particularly when acting to protect a threatened species. As a compromise solution, it is suggested that prior consultation at least has the potential to allow affected parties to scrutinise the available science, and offer alternative evidence prior to the final decision.

Inadequate Sound Insulation: Does the Law of Nuisance Provide an Effective Remedy?

This paper begins with the basic premise that noise is an inescapable feature of modern life and considers how inadequate sound insulation exacerbates the problems associated with noise pollution. The obvious mechanism for ensuring that buildings are constructed so as to provide sufficient sound insulation is the building control regime contained in the Building Regulations. The paper proceeds to analyse the building regulations and highlights the deficiencies which seriously inhibit their efficacy in terms of providing protection from excessive noise. The central issue therefore, is the extent to which the law of nuisance (both common law and statutory) is capable of providing an effective remedy in situations where the Building Regulations are in-applicable. It will be contended that following the House of Lords decision in Baxter v London Borough of Camden, the utility of common law nuisance has been radically undermined as a solution and this has a knock on effect in relation to statutory nuisance where the term ‘nuisance’ is given its common law definition. For a period of time it did seem that section 70(1)(a) of the Environmental Protection Act 1990, relating to the state of premises, provided a solution to external noise but statutory and case law developments have seriously undermined the effectiveness of section 70(1)(a) in this regard. It is therefore submitted that if the law of nuisance is to have any utility as a remedy for inadequate sound insulation it is essential that the courts adopt a definition of the phrase ‘prejudicial to health’ which is sufficiently wide to cover the adverse psychological effects of noise.