Environmental Law Review

Ownership of land is important for a number of reasons. One reason is the agenda-setting role the landowner has in terms of its use, which in turn has an impact on the environment. Environmental law plays a role in regulating the use of land, as do other devices such as planning law and private law controls including the law of nuisance. In the absence of such regulation the decisions of the owner are crucial. Land reform, by which it is meant the process that is geared towards the reallocation of property rights, either: changes who is invested with that crucial decision-making power; or influences the decision making of an existing owner, who might act in a way to negate any policy argument for reallocation of ownership. Both of these reactions can impact on the environment. How well are those impacts understood, and to what extent do they feature in the law-making process or the application of land reform measures? This article will use the contemporary Scottish scene, particularly its two land reform statutes of 2003 and 2016, to scrutinise where the environment sits in the land reform debate. This will provide an opportunity to assess the environmental implications of actual and forthcoming land reform measures where the environment has featured in a specific land reform process.

In light of the increasing focus on Greenhouse Gases (GHG), this article seeks to put green tax theory into practice by analysing the 2012 reforms of the Carbon Reduction Commitment (CRC). It is a scheme that targets high carbon-emitting organisations which do not fall within either the European Emissions Trading Scheme or the Climate Change Agreements. It is a scheme, therefore, that fills an important lacuna in the emissions reducing toolbox. Little academic attention has been spent considering the CRC, which started in 2010 and which has been accused of being an administrative burden on both participants and the regulator. The CRC has received extensive scrutiny from industry following a consultation in 2012 which proposed the simplifying reforms. The article considers both the principles of effective taxation, alongside a narrower study of effective green taxation and in doing so outlines four factors of an effective emissions tax: comprehensiveness, certainty of emissions reduction, flexibility and administrative costs. It is using these four factors that the author conducts a deep and thick analysis of the reforms, using a cost-benefit analysis approach, in order to determine whether the CRC has become a more efficient environmental tax.

Applications for licences to kill buzzards in order to prevent serious damage to the viability of pheasant shoots were regarded by Natural England, the licensing authority, as sufficiently novel to require direction from the Department for the Environment, Food and Rural Affairs (Defra), the government department responsible for the licensing provisions in the Wildlife & Countryside Act and their implementation in accordance with the EU Birds Directive. Defra declined to issue a specific policy for raptors and instructed Natural England to apply the general policy. The court found that Natural England had not done this but had, in effect, applied a hidden policy to refuse such applications. Natural England’s decision to refuse to grant licences was quashed on the grounds of reliance on an undisclosed policy, taking account unlawfully of public opinion, unreasonableness and failing to deal with the option of licensing live trapping of birds. Ouseley J also found that the case was covered by the Aarhus Convention because it related to an environmental matter. The fact that the case was about a refusal to grant a licence and therefore amounted to a challenge seeking to cause harm was irrelevant.