Part 1: Environmental Governance Chapter 2: The Office for Environmental Protection Section 38: Environmental review
This section provides for the OEP to bring legal proceedings against a public authority regarding an alleged breach of environmental law. These proceedings are through a mechanism in the High Court called "environmental review". This is a bespoke form of legal proceedings which applies solely to cases brought by the OEP, and it is based on the normal standards and principles of judicial review.
	Subsection (1) sets out that the OEP may apply to the court for an environmental review regarding an alleged breach where it has given a decision notice to a public authority. The OEP therefore cannot bring such a review unless it has gone through this earlier notice stage, which in turn must be preceded by the service of an information notice (see section 35). This process is intended to ensure that cases dealt with through this bespoke process necessarily involve substantial pre-litigation stages, with a view to resolving cases without legal proceedings where possible. This subsection also specifies that the OEP may only apply for an environmental review 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 apply for an environmental review if the response leads it to conclude that there was in fact no serious failure.
	Subsection (2) defines an environmental review as a review of the conduct described in a decision notice as a failure to comply with environmental law. It is not a review of whether the public authority has complied with any recommendations that may be included in a decision notice, or whether a public authority has acted unreasonably in failing to follow the views of the OEP, given that decision notices are not binding. The OEP does not have powers to make binding findings as whether there has been a breach of environmental law; that is the role of the Courts and the purpose of environmental review.
	Subsection (3) sets restrictions for when an application for an environmental review may be made. Subsection (3)(a) sets out that the OEP may not make an application for environmental review before the earlier of: (i) the end of the period within which the public authority in question is required to respond to a decision notice under section 36(3); and (ii) the date on which the OEP receives the authority’s response. This means 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, whilst ensuring that the OEP is able to consider the authority’s response to the decision notice before deciding whether to proceed to applying for an environmental review.
	Subsection (3)(b) provides that the OEP may not apply for an environmental review before the expiry of any time limit in which legal proceedings (judicial review or other similar legal proceedings) in relation to the same conduct could be initiated. This is to ensure that environmental review does not pre-empt other legal proceedings. The timescales for the OEP’s enforcement process mean that the period within which judicial review or similar legal proceedings can be brought will normally have passed before the OEP can apply for an environmental review. For example, where a decision is challenged through judicial review, the application for review must be made promptly and within six weeks for planning cases and three months in other cases. The applicable legislation provides a margin of discretion for the courts to accept judicial review applications outside these time limits in exceptional circumstances. However, the provision in subsection (3)(b) necessarily only captures any specific time limit expressed in law, rather than any time limits that have been extended by the discretion of the court in an individual case.
	Subsection (4) provides that any restriction in other legislation on questioning the conduct of a public authority in legal proceedings does not apply to an environmental review. This provision is made to ensure that the OEP’s route of challenge can exist alongside other pre-existing routes of challenge. In some cases, the relevant legislation may provide that the courts can only entertain challenges against those decisions in the form of a judicial review – for example, section 13 of the Planning Act 2008. Furthermore, some existing statutory routes of challenge specifically exclude any other route of challenge – for example, section 284(1)(b) of the Town and Country Planning Act 1990. However, the intention is that these restrictions should not preclude the OEP bringing a challenge.
	Subsection (5) establishes what the court must determine in an environmental review, namely whether the public authority in question has failed to comply with environmental law. The subsection specifically provides that the court must determine whether there has been a failure applying judicial review principles. As such, this question is to be determined on standard public law grounds. This means that the court will consider whether the decision maker has made an error in law, whether the decision was reasonable, and whether the process was fair. This reflects the intention of this section that public authorities be afforded the normal margin of discretion to take reasonable decisions in accordance with their functions, as they would in a judicial review.
	Subsection (6) provides that, if the court finds on an environmental review that a public authority has failed to comply with environmental law, it must make a statement confirming this, referred to as a "statement of non-compliance".
	Subsection (7) sets out that, whilst the statement of non-compliance confirms that the court has found that the public authority in question has failed to comply with environmental law, it does not in itself invalidate the decision of the public authority in question. For example, if the grant of a planning permission is challenged through environmental review and the court finds it to be unlawful and makes a statement of non-compliance, the planning permission granted would nevertheless remain valid. This is the case unless the court decides that it is appropriate to impose further remedies such as a quashing order, and the conditions for doing so were met.
	Where the court issues a statement of non-compliance, this would not prevent or oblige the Secretary of State, or other relevant decision-maker, from using existing discretionary powers in relation to that decision (that is, to modify or revoke their original decision).
	Subsection (8) provides that, if the court makes a statement of non-compliance, it will have the full suite of remedies, other than damages, available to it as on a judicial review, but only if one of two conditions is met. These are referred to as Conditions A and B.
	These remedies include a declaration, quashing, prohibiting and mandatory orders, and injunctions. Damages are not available in environmental reviews because the OEP, as the only applicant, would have no cause to seek compensation for damages personally suffered where the claimant in a traditional judicial review might. As such, this remedy is unnecessary.
	Subsection (9) defines Condition A. This condition is that the court is satisfied that granting such a remedy would have neither of the effects described in paragraphs (a) and (b) of this subsection.
	The provision that the court may only grant a remedy under Condition A if it is satisfied that neither of the effects described in paragraphs (a) or (b) would occur as a result recognises the fact that the environmental review will take place after the expiry of judicial review time limits and that prejudice may result from quashing the decision at this later date. This provision allows third parties reliant on decisions involving the application of environmental law to have confidence that those decisions will not routinely be quashed or other judicial review relief granted outside the normal judicial review time limits, if substantial prejudice, substantial hardship or detriment to good administration would be likely to result. Together with the provision in subsection (10) these conditions combine to mean that remedies which could have these effects could only be granted in exceptional circumstances. Paragraph (a) of subsection (9) requires the court to be satisfied that a remedy would not be likely to substantially prejudice or cause substantial hardship to a third party (a person other than the public authority defendant) before granting it. Expenditure already spent in reliance of the decision in question may be relevant to the question of substantial prejudice or hardship, along with potentially the recoverability of the sums and the financial means of the third party.
	Paragraph (b) of subsection (9) requires that the court also be satisfied that a remedy it grants would not be detrimental to good administration. This provision recognises the need to protect the orderly implementation of properly-reached decisions, and recognises that finality in decision-making is important for both public authorities and the public.
	Subsection (10) sets out Condition B. This condition is that condition A is not met, but the court is satisfied that, under paragraph (a) it is necessary to grant the remedy in order to prevent or mitigate serious damage to the natural environment or human health, and under paragraph (b) that 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.
	Subsection (11) sets out that the court, subject to the conditions set out in subsection (8), must apply the usual principles applied in a judicial review when considering whether to grant a remedy in an environmental review. It also clarifies that section 31(2A) of the Senior Courts Act 1981 does not apply, a provision under which the court could not grant a remedy in circumstances where it appears highly likely that the outcome for the applicant would not have been substantially different if the breach under consideration had not occurred. The OEP will be the only possible applicant for an environmental review and will never be directly affected by the decisions it may be challenging. By making clear that this provision of the Senior Courts Act 1981 does not apply, subsection (11) therefore ensures the court is able to grant remedies subject to the provisions of subsection (8). If the court does decide to impose a remedy, should the public authority fail to comply with any resulting court order it could be subject to contempt of court proceedings brought by the OEP.
	Subsection (12) requires a public authority that has been the subject of an environmental review in which a statement of non-compliance has been issued by the court (and not overturned on appeal) to publish a statement. This statement should describe any steps the authority intends to take based on the outcome of these proceedings. For example, if the court were to agree with the conclusions outlined by the OEP in its decision notice, and make an order granting a statement of non-compliance and specified remedies, the public authority’s statement could include details of how it intends to ensure the remedies are given effect, and/or details of how it will ensure future breaches are avoided. Where a statement of non-compliance is not issued, the public authority is not required to publish a statement, but would not be prevented from doing so if it so wished.
	Subsection (13) sets out that a statement under subsection (12) must be published within two months of the conclusion of the review proceedings. This means that the statement should be published after the final disposal of proceedings, meaning after judgment has been delivered on the final issue in the case, including any subsequent appeal proceedings.
	Subsection (14) defines several terms used in this section.