Schedule 3: The Office for Environmental Protection: Northern Ireland Part 1: The OEP’s Northern Ireland functions Review application
Paragraph 12 enables the OEP to bring legal proceedings against a relevant public authority in specified circumstances.
	Sub-paragraph (1) gives the OEP powers to make a review application in relation to the conduct of a relevant public authority, as long as the conduct in question has been described in a decision notice previously issued to the authority in question as a failure to comply with relevant environmental law. This subsection also specifies that the OEP may only make a review application if it is satisfied on the balance of probabilities that the public authority has failed to comply with environmental law, and it considers that the failure in question is serious. This is the same test that the OEP must apply in deciding whether or not it may issue a decision notice. The OEP must remain satisfied, after considering any response to its decision notice, that the failure in question is serious. It cannot make a review application if the response leads it to conclude that there was in fact no serious failure.
	Sub-paragraph (2) defines a "review application" in this paragraph as an application for judicial review in respect of conduct of a relevant public authority, and confirms that any reference to a "review application" in this Part of this Schedule is to an application made by virtue of sub-paragraph (1). This means that the usual judicial review remedies are available to the court e.g. quashing orders and declarations. Sub-paragraph (9) sets out that a "review application" includes an application for permission of the High Court to apply for judicial review.
	Sub-paragraph (3) places restrictions on when the OEP can bring a review application. This must not be before either (i) the end of the period within which the relevant public authority is required to respond to a decision notice under paragraph 10, or (ii) the date on which the OEP receives the relevant public authority’s response, whichever is earlier. This means that there will be sufficient time for the relevant public authority to respond to a decision notice and for this response to be taken into consideration by the OEP before it makes a decision on whether to proceed with making a review application, while ensuring that the OEP is not obliged to wait until the end of the period specified in its decision notice if the public authority responds sooner. Sub-paragraph (4) disapplies the usual time limit for bringing a judicial review application subject to the restrictions as set out in sub-paragraph (3).
	Sub-paragraph (5) provides that the High Court may grant a remedy on a review application under this Paragraph, but only if one of two conditions, described as Conditions A and B, are met.
	Sub-paragraph (6) defines Condition A. Condition A is that the court is satisfied that granting such aa remedy would not be likely to cause substantial hardship, or substantial prejudice to the rights of a third party, or be detrimental to good administration.
	Sub-paragraph (7) defines Condition B. Where Condition A is not met, the court may turn to Condition B. Condition B is that Condition A is not met, but the court is satisfied that it is necessary to grant a remedy in order to prevent or mitigate serious damage to the natural environment or human health, and there is an exceptional public interest reason to do so.
	This condition therefore provides the court discretion to undertake a weighted balancing exercise in the event that Condition A is not met. In doing so the court would need to weigh the public interest in preventing serious harm to the natural environment or human health against the public interest in preventing the occurrence of substantial hardship or prejudice to a third party, or detriment to good administration. In order to grant a remedy, the court would need to be satisfied that the public interest in preventing this serious harm substantially outweighed the interest in preventing hardship, thereby constituting an ‘exceptional public interest reason’ to grant the remedy.
	Sub-paragraph (8) requires a relevant public authority which has been the subject of a review application to publish a statement upon conclusion of the review proceedings where the High Court makes a finding that the public authority has failed to comply with relevant environmental law – and this finding has not been overturned on appeal. This must set out the future action it plans to take.
	Sub-paragraph (9) requires a public authority to publish the statement as provided for in sub-paragraph (8) within two months of the day that proceedings, including any appeal, conclude.