scholarly journals Climate change and nationally significant infrastructure projects: R (on the application of Plan B Earth) v Secretary of State for Transport

2020 ◽  
Vol 22 (2) ◽  
pp. 125-132
Author(s):  
Edward Mitchell
Keyword(s):  
Climate Change ◽  
Supreme Court ◽  
National Policy ◽  
Paris Agreement ◽  
Policy Statement ◽  
Infrastructure Projects ◽  
Secretary Of State ◽  
The Supreme Court ◽  
Plan B ◽  
Court Of Appeal

In R ( on the application of Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214, [2020] 2 WLUK 372, the Court of Appeal held that the Secretary of State had acted unlawfully by failing to take into account the UK’s commitments in the 2015 Paris Agreement when he decided to designate a policy formulated to enable the construction of a third runway at Heathrow airport as a ‘national policy statement’ under the Planning Act 2008. An appeal to the Supreme Court is pending. The outcome of that appeal should help to clarify the legal significance of the Paris Agreement and will have significant implications both for expansion at Heathrow airport, for other major infrastructure projects and for other planning and environmental litigation.

Plan B Earth v Secretary of State for Transport: Airport Expansion, the Paris Agreement and the Planning Act 2008

2020 ◽  
Vol 32 (3) ◽  
pp. 559-575
Author(s):  
Sonam Gordhan
Keyword(s):  
National Policy ◽  
Paris Agreement ◽  
Planning System ◽  
Policy Statement ◽  
Secretary Of State ◽  
Plan B ◽  
The Uk ◽  
The Relationship ◽  
Court Of Appeal

Abstract This case analysis considers the Court of Appeal’s decision in R (Plan B Earth and ors) v Secretary of State for Transport [2020] EWCA Civ 214, which followed the High Court challenge to the Secretary of State’s designation of the UK Airports National Policy Statement. The Court of Appeal found that the Secretary of State’s failure to take into account the UK’s commitment to the Paris Agreement when carrying out his duties under the Planning Act 2008 was unlawful. While permission to appeal this decision has been granted, it remains a notable judgment. The Plan B Earth case confirms the interaction between the UK’s climate change commitments and the statutory framework of the UK’s planning system. It also highlights the complexity of the Court’s institutional role in the context of environmental problems. Analysing the implications of this decision through a policymaking lens risks overlooking the role of public law principles that shaped the Court’s reasoning, defining the relationship between the Paris Agreement and the Planning Act.

A lesson in un-creativity: (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52

2021 ◽  
Vol 23 (4) ◽  
pp. 344-349
Author(s):  
Joanne Hawkins
Keyword(s):  
Climate Change ◽  
Supreme Court ◽  
Decision Maker ◽  
National Policy ◽  
Policy Statement ◽  
Infrastructure Projects ◽  
The Earth ◽  
The Supreme Court ◽  
The Subject ◽  
Missed Opportunity

Plans for a third runway at Heathrow airport have been the subject of ongoing melodrama. In the latest instalment, (R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52), the Supreme Court comprehensively reversed the Court of Appeal's judgment, rejecting the finding that the decision maker acted unlawfully in designating the Airport National Policy Statement (ANPS). This commentary highlights that the Supreme Court judgment signals a missed opportunity to develop a more creative approach to the polycentric and dynamic issue of climate change in the context of nationally significant infrastructure projects. It argues that the decision is, if not wholly unexpected, a disappointing one.

R (Plan B Earth) v. Secretary of State for Transport

2021 ◽  
Vol 193 ◽  
pp. 535-636
Keyword(s):  
Climate Change ◽  
International Law ◽  
National Policy ◽  
Paris Agreement ◽  
Policy Statement ◽  
Content Type ◽  
Secretary Of State ◽  
Municipal Law ◽  
Relationship Of ◽  
Domestic Law

535Relationship of international law and municipal law — Treaties — Treaty not incorporated into municipal law — Whether minister required to take treaty into account — Paris Agreement on Climate Change, 2015 — Decision to designate third runway at Heathrow Airport — Airports National Policy Statement — Planning Act 2008 — Directive 2001/42/EC — Paris Agreement not taken into account — Whether Secretary of State obliged to take Paris Agreement into account — Whether taking Paris Agreement into account would give effect to unincorporated international agreement in domestic lawEnvironment — Treaties — Climate change — Greenhouse gases — Paris Agreement, 2015 — Whether failure to take Paris Agreement into account vitiating decision to designate third runway — Whether Directive 2001/42/EC requiring unincorporated international agreements to be taken into account — The law of England

scholarly journals Urgenda: the Final Judgment of the Dutch Supreme Court

2020 ◽  
Vol 17 (3) ◽  
pp. 307-321
Author(s):  
C.W. (Chris) Backes ◽  
G.A. (Gerrit) van der Veen
Keyword(s):  
Climate Change ◽  
The Netherlands ◽  
Supreme Court ◽  
Public Interest ◽  
Public Interest Litigation ◽  
The Supreme Court ◽  
Final Verdict ◽  
Court Of Appeal ◽  
Dutch Supreme

The final verdict to the Urgenda case provided by the Dutch Supreme Court has been called a victory in the fight to limit climate change and a milestone in public interest litigation, at least in the Netherlands. As a consequence, the Dutch state will have to reduce ghg-emissions by 25% compared with 1990 at the end of 2020. The judgment has attracted widespread acclaim for being ‘courageous’ and exploring unknown legal territory. However, a closer look at the reasoning of the Court of Appeal and the Supreme Court still leaves many questions, which are address in this manuscript.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

scholarly journals Deservingness in Judicial Discourse. An Analysis of the Legal Reasoning Adopted in Dutch Case Law on Irregular Migrant Families’ Access to Shelter

2021 ◽  
pp. 1-10
Author(s):  
Lieneke Slingenberg
Keyword(s):  
Supreme Court ◽  
Legal Reasoning ◽  
Migrant Families ◽  
The Supreme Court ◽  
Judicial Discourse ◽  
Major Shift ◽  
New Interpretation ◽  
Irregular Migrant ◽  
Court Of Appeal

In September 2012, the Dutch Supreme Court upheld a judgment of the Hague Court of Appeal that the eviction from basic shelter of a mother and her minor children, who did not have legal residence in the Netherlands, was unlawful. This ruling was instigated by a radically new interpretation of the European Social Charter’s personal scope and caused a major shift in Dutch policy. This article provides a case study into the legal reasoning adopted by the Court of Appeal and the Supreme Court. It argues that, instead of relying on legal doctrinal reasoning for justifying the outcome, both courts referred to factors that the general public relies on to assess people’s deservingness of welfare. This finding raises fundamental questions about the relationship between human rights law and deservingness; and calls, therefore, for further research into the relevance of deservingness criteria in judicial discourse.

Transforming the Law on Psychiatric Lesions

2021 ◽  
Vol 2021 (2) ◽  
pp. 253-271
Author(s):  
Emile Zitzke
Keyword(s):  
Supreme Court ◽  
Expert Witnesses ◽  
The Supreme Court ◽  
Psychological Harm ◽  
The Law ◽  
Constitutional Right ◽  
Law Of Delict ◽  
Court Of Appeal ◽  
Made In

In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

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