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Earl Peel: I hope I explained when speaking to my noble friend's amendment that the sort of barriers that I have seen in place are designed in such a way that horse riders, cyclists and walkers can get round them. That is an important point.

Lord McIntosh of Haringey: I indicated that I would come on to that matter. However, I want to make the point in relation to the amendment before us, which concerns gates. A gate will not deter a motorist unless it is locked; and if it is locked it will deter other people as well.

As the noble Earl, Lord Peel, rightly said, there are alternatives and they could be bollards or, as my noble friend Lady Mallalieu, said, parallel rails--a sort of

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chicane--and bollards or a chicane would certainly deter motorists but they would not deter motorcyclists. We must consider how effective they would be in dealing with illegal use or use for criminal purposes, though not illegal.

The department is reviewing the road traffic regulation law. It will be difficult for me to undertake to bring back amendments on Report in this Bill. However, we undertake to look at forms of deterrent other than the gates proposed in the amendment. On that basis I hope that the noble Lord will not press the amendment.

Lord Glentoran: I thank the Minister for that explanation of the Government's view. I should like to say to the noble Baroness, Lady Miller, that our key point on this amendment was not the prevention of crime, though it would be a help. Where crime is concerned, it is worth saying that we are taught day in and day out by the authorities that prevention is far better than cure and to help to prevent crime is the right thing to do. So if the amendment was to help prevent crime then it would be doing a public service.

The noble Baroness, Lady Mallalieu, as an expert in this field, gave her view in relation to horse riders. That was extremely helpful. We are in no way setting about trying to deter or prevent walkers having free and easy access to footpaths with this amendment; indeed, the contrary. We want them to have free and easy access, and also safety and not to have to worry about quad bikes, four-wheel drive vehicles and so forth spoiling their afternoon, evening or even night.

I felt that the Minister did not take the business of travellers seriously. If he was saying that he would return to the matter later in the Bill, I accept that. I believe that the issue of travellers--I am not sure what the English term is, gypsies or whatever--is a real problem. It is of real concern to local authorities and landowners. They have an ability to find their way up small muddy tracks and then set up camps which take an eternity to get rid of. My noble friend Lord Kimball mentioned the hippies and they probably come under the same category.

I am satisfied that the Minister says he will take on board and accept the need to attempt to carry out in the Bill the amendment's original objective.

Lord McIntosh of Haringey: I cannot undertake that amendments will be produced within the Bill. We recognise the problem. We do not believe gates are the answer and do not believe this amendment to be the answer. It may be that a solution will have to be found in some other way.

Lord Glentoran: I thank the Minister for that intervention. In that case we will read what he said and await the outcome of the Bill at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Lord McIntosh of Haringey moved Amendments Nos. 338 and 339:


    Page 60, line 19, leave out ("329(1) of the 1980 Act (interpretation)") and insert ("329 of the 1980 Act (interpretation)--


(a) in subsection (1)").
Page 60, line 22, at end insert--


("(b) in subsection (2) for "either "bridleway" or "footpath"" there is substituted ""bridleway", "footpath" or "restricted byway"".").

On Question, amendments agreed to.

On Question, Schedule 5, as amended, agreed to.

Baroness Farrington of Ribbleton: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Environmental Court

7.46 p.m.

Lord Brennan rose to ask Her Majesty's Government whether they propose to establish a specialist environmental court for England and Wales.

The noble Lord said: My Lords, I rise to speak to the Question to Her Majesty's Government,


    "whether they propose to establish a specialist environmental court for England and Wales".

I regret having phrased the Question in that form as those around me leave the Chamber. It is a matter of much greater significance than just for lawyers.

The reason for this debate is that in February this year the Department of the Environment, Transport and the Regions published the research study it had commissioned from Profession Malcolm Grant, who holds the chair of land economy at Cambridge University. He reported on the feasibility of establishing for England and Wales a specialist environmental court. His study had been sought to assist that ministry in its five-yearly review of the Planning Inspectorate. But, as I indicated, it has far wider effect.

Professor Grant recommends a specialist court or tribunal structure for environmental justice in England and Wales. That is not the product of his thinking alone. It is, in my view, the inevitable path that follows from much previous thinking in this direction. In 1989, we had the Commonwealth Report recommending the same; in 1991, the Garner Lecture by the noble and learned Lord, Lord Woolf, repeated, albeit in a different form, in his 1997 Lord Morris Lecture. We have had major developments in European Community law and, of great significance, the Aarhus Convention of 1998 on Access to Justice, Public Participation and Access to Justice in Environmental Matters. And, lastly, we have the Human Rights Act 1998.

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Professor Grant's report seeks to provide an economic and efficient legal framework for planning and environmental matters. The following problems require such a framework: first, the effective integration of planning and environmental decision making; secondly, the elimination of excessive cost and delay in environmental justice; thirdly, the constitutional position of the planning inspectorate; fourthly, weaknesses in the enforcement mechanisms in this field; fifthly, the lack of expertise in magistrates' courts dealing with extremely technical issues such as contaminated land remediation notices; sixthly and finally, the age-old problem of running major public inquiries, at great length and cost, into complex public projects.

What are the environmental principles on which such a court or tribunal should act? Surely, this is of primary importance. A technical framework for environmental justice is not enough; it must be a framework which can balance decisions against clear objectives. From Europe, we have Article 6 of the EC treaty, which requires that environmental protection requirements must be integrated, in particular with a view to promoting sustainable development. Article 174 provides that Community policy on the environment shall contribute towards objectives which include preserving, protecting and improving the quality of the environment; protecting human health; and prudent and rational utilisation of natural resources. The 1997 directive on the effect of public and private projects on the environment is a classic example of the treaty in action.

In England and Wales, Section 4 of the Environment Act 1995 requires that the agency created by that Act shall,


    "protect or enhance the environment ... towards attaining the objective of achieving sustainable development".

Ministers can give guidance on objectives. The Regional Development Agencies Act 1998 (Section 4), the Greater London Authority Act 1999 (Section 30) and the Local Government Act 2000 (Section 2) all in one form or another provide that those acting under those statutes shall promote and improve not only the environment but the sustainable development of our community's resources.

All that statutory background led to a White Paper in 1999 extolling the virtues of a society which developed its environment with those objective in mind. Now, the Human Rights Act clearly establishes that decisions which determine civil rights shall be subject to Article 6 where such a decision,


    "directly affects the pre-existing property rights of a third party",

and its decision is decisive. Article 8 has been recognised by the European Court of Human Rights as providing in its privacy protection, protection in relation to environmental interference.

With that framework in mind, the question arises whether a change in our legal framework is necessary now. I return to the Human Rights Act. The planning inspectorate is constitutionally an organ of government. It is difficult to argue otherwise. Article 6

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of the convention will be breached by a planning system so based unless there is an effective and fair right of appeal. In July 2000, in the Scottish Court of Session, in County Properties Limited v. The Scottish Ministers, Lord MacFadyen held that it was an abuse of a limited company's human rights for its application for listed building consent to be called in by a Minister because of an objection by a government agency.

That decision is careful and reasoned. It may well be the subject of appeal. Lawyers reading it will look with interest to an argument which will prevail against Lord MacFadyen's analysis. What does it illustrate? That the Human Rights Act is now determining the scope of environmental justice in this country.

On a more general topic, what will courts determine the Human Rights Act to have to say in relation to third party rights in the planning and environment field? At present, we in this country have an entirely one-sided planning system. It is directed at the applicant and the decision maker. We, the citizens around it, have limited rights, if any, to be heard. I said, "rights, if any", because, if permission is given, there are opportunities for representations to be made and there is the remedy of judicial review. Many hold--and I am one of them--that a third party whose rights are affected by a planning decision should have the right--and I mean the right--to intervene and appeal on the merits of a decision affecting his or her rights. Neither the decision in Bryan, in the European Court of Human Rights, nor in my view any reasonable construction of Article 6 can cure such a default in our present system.

That concern about the role of the citizen in entertaining legal rights on his or her own behalf is well illustrated by the Aarhus Convention 1998. It is probably little known by citizens, let alone lawyers, that that convention in the strongest possible terms provides that parties to it "shall" provide by national legislation or regulation for access to information with an expeditious and cheap right of appeal, and the right to public participation in plans, programmes, policies, regulations and legislation affecting the environment. One cannot contemplate a wider requirement for the participation of our citizens in environmental decisions. Those factors--the Human Rights Act and the Aarhus Convention--surely require that attention be given to this topic and be given sooner rather than later.

What structure should therefore be considered? Personally, I find the Grant recommendation to be sensible. He suggests a two-tier court or tribunal involving the Lands Tribunal. We already have the example of the employment tribunal system and the support of the noble and learned Lord, Lord Woolf, for such a system provided that it avoids cost, undue complexity and jurisprudential squabbling. The first tier of such a court or tribunal would include the present initial stages of the planning process. The second tier would involve judges and multi-disciplinary panels. They would then deal with planning inspectorate functions by way of appeal, and be seen to be independent. They would entertain statutory appeals and applications, appeals from

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lower courts and tribunals, applications for judicial review and civil litigation involving toxic torts which are of such major public concern.

In this field, I am not a generalist; I favour expertise. I expect that a tribunal which determines matters of such complexity will do so not just with intellectual acuity but with understanding of that which it is deciding. This result would embrace the best of the foreign experience, particularly in Australasia. It would be a reasonable compromise with our present system and would provide a better system of environmental justice than we have now.

Will it work? It will work only on the following bases: first, that the Woolf management system is employed; and, secondly, that there is informality and reduced cost, and thereby public confidence in the system.

If noble Lords will be patient for a moment, in closing I should like to invite the Government, echoing the words of Patrick McAuslan, to give serious thought to the creation of a judicial-type body--an environmental court or tribunal--with wide-ranging jurisdiction through which it can develop via its decisions environmental jurisprudence to help us forward into the new era of a more conscious and deliberate balancing of development and environmental protection and a more knowledgeable weighing of risks, liabilities and rights.


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