CA-2024-001754 - [2025] EWCA Civ 990

Part 1 of the EA 2021 is concerned with “environmental governance”. Sections 17 to 19 appear under the heading “Policy statement on environmental principles”.

Section 17(5) identifies five relevant principles:

Section 16 of the European Union (Withdrawal) Act 2018 required the Secretary of State to publish a draft Bill which inter alia would impose (a) a duty on the Secretary of State to publish a policy statement on the application and interpretation of those environmental principles for the making and development of policies by Ministers and (b) a duty on Ministers to have regard to that statement. A draft Bill was published in 2018. This was replaced by relevant sections of the Environment Bill which passed into law as the EA 2021.

Section 17 of the EA 2021 provides:

“17 Policy statement on environmental principles

(1)

The Secretary of State must prepare a policy statement on environmental principles in accordance with this section and section 18.

(2)

A “policy statement on environmental principles” is a statement explaining how the environmental principles should be interpreted and proportionately applied by Ministers of the Crown when making policy.

(3)

It may also explain how Ministers of the Crown, when interpreting and applying the environmental principles, should take into account other considerations relevant to their policy.

(4)

The Secretary of State must be satisfied that the statement will, when it comes into effect, contribute to—

(a)

the improvement of environmental protection, and

(b)

sustainable development.

(5)

In this Part “environmental principles” means the following principles—

(a)

the principle that environmental protection should be integrated into the making of policies,

(b)

the principle of preventative action to avert environmental damage,

(c)

the precautionary principle, so far as relating to the environment,

(d)

the principle that environmental damage should as a priority be rectified at source, and

(e)

the polluter pays principle.”

Section 18 lays down the procedure which the Secretary of State must follow leading to the publishing of an EPPS. After consultation on a draft, the document must be laid before Parliament to enable both Houses to make comments on it and the Secretary of State to produce a response. The Secretary of State must lay a final EPPS before Parliament whereupon the document has effect and is published.

Section 19 provides so far as is material:

“19 Policy statement on environmental principles: effect

(1)

A Minister of the Crown must, when making policy, have due regard to the policy statement on environmental principles currently in effect.

(2)

Nothing in subsection (1) requires a Minister to do anything (or refrain from doing anything) if doing it (or refraining from doing it)—

(a)

would have no significant environmental benefit, or

(b)

would be in any other way disproportionate to the environmental benefit.

… ”

Section 47 includes the following definitions:

“"making" policy includes developing, adopting or revising policy;”

“"policy" includes proposals for legislation, but does not include an administrative decision taken in relation to a particular person or case (for example, a decision on an application for planning permission, funding or a licence, or a decision about regulatory enforcement);”