Section 14 and the Substantial Question Relating to Environment

In one line

The Tribunal's jurisdiction depends on two things: a substantial question relating to environment, and a Schedule I Act. Miss either and the application fails.

In exam wording: section 14(1) of the National Green Tribunal Act 2010 gives the Tribunal jurisdiction over all civil cases where a substantial question relating to environment, including the enforcement of any legal right relating to environment, is involved and such question arises out of the implementation of the enactments specified in Schedule I; sub-section (2) requires it to hear and settle those disputes and pass orders; and sub-section (3) requires an application within six months of the date on which the cause of action first arose, extendable by a further period not exceeding sixty days for sufficient cause.

The three limbs

Section 14(1) has three conditions and an examination answer must address all three.

One, a civil case. The Tribunal decides civil disputes. It does not try offences, and it does not exercise a criminal jurisdiction, though its own section 26 creates an offence of failing to comply with its orders.

Two, a substantial question relating to environment, including the enforcement of any legal right relating to environment.

Three, arising out of the implementation of the enactments specified in Schedule I.

What is a "substantial question relating to environment"?

The Act defines it, in section 2(1)(m), and the definition is a real one rather than a formula. In substance it covers a case where:

• there is a direct violation of a specific statutory environmental obligation by a person, by which the community at large, other than an individual or a group of individuals, is affected or likely to be affected by the environmental consequences; or
• the environmental consequences relate to a specific activity or a point source of pollution;

and it extends to a case where damage to public health is broadly measurable, or the damage to the environment or property is substantial, or the damage is or is likely to be caused to public health at large.

Two features decide cases.

The community, not the individual. The words "other than an individual or group of individuals" matter. A dispute between two neighbours about a smell is not ordinarily a substantial question relating to environment; it is a private nuisance for a civil court. What brings a matter into section 14 is that the community at large is affected. That is the practical dividing line and it is what stops the Tribunal becoming a general forum for property disputes dressed in environmental language.

A point source, or a measurable public harm. The second limb catches the case where the community is not obviously affected but the pollution has an identifiable source, and the third catches the case where public health damage is broadly measurable or environmental or property damage is substantial.