Aarhus Convention—access to justice – practice note

LexisNexis Legal & Professional, LexisNexis UK, LexisPSL, Environment, 17 July 2017

The UK and EU ratified the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) in February 2005, and became parties to it in May 2005. Aarhus comprises three pillars:

References:

Aarhus Convention

  • access to environmental information
  • participation in the environmental decision-making process, and
  • access to justice in environmental matters

The third pillar, access to justice, requires parties to ensure a public right to challenge environmental decisions made in breach of the first two pillars or in breach of other environmental legislation. Aarhus Article 9 requires that judicial procedures to challenge environmental decisions are 'timely and not prohibitively expensive'.

In 2007 and 2010, the European Commission warned the UK that it is in breach of its obligations under Aarhus due to the costs of bringing proceedings challenging environmental decisions. Those warnings reflect the Commission's view that in the UK:

  • legal proceedings can be prohibitively expensive, and
  • the potential costs consequences of a failed challenge deters individuals and NGOs from challenging environmental decisions made by public bodies

In its March 2010 letter, the Commission also raised concerns about the requirement in the UK that applicants must give cross-undertakings in damages before interim injunctions are granted by the courts. The Commission viewed this as a serious impediment to the use of interim injunctions, limiting their use for temporarily halting operations that can have a potentially damaging impact on the environment while their legality is being assessed.

The Aarhus compliance committee

The Aarhus compliance committee has considered a number of complaints concerning the UK's performance in respect of access to justice.

Client Earth

In response to a communication from Client Earth regarding a licence to dispose of contaminated materials from dredging activities, the Committee found:

References:

Compliance Committee Findings

  • the UK failed to ensure that costs in environmental litigation are not prohibitively expensive and neither the UK government nor the UK courts had given 'clear legally binding directions to this effect'
  • the UK's litigation system as a whole did not 'remove or reduce financial…barriers to access to justice'
  • there was no clear minimum time limit for filing applications for judicial review and no clear date from which time starts to run
  • the UK had not established a 'clear, transparent and consistent framework' to implement the relevant provisions of Aarhus Convention, Article 9

Hinton Organics

In Hinton, a communication to the compliance committee arose from proceedings in private nuisance in which the claimant sought an injunction to prohibit unpleasant odours from the neighbouring waste composting site.

References:

Morgan v Hinton Organics [2009] EWCA Civ 107

The Court of Appeal concluded that the principles of the Aarhus Convention are (at most) something for domestic judges in private law cases to consider in resolving ambiguities or in exercising their discretion.

The communicants claimed the UK had: 'failed to ensure the availability of fair, equitable, timely and not prohibitively expensive review procedures in…private nuisance proceedings'.

The Compliance Committee found

References:

Compliance Committee Findings

  • there was no persecution, harassment or penalising in the Environment Agency seeking to recover costs from the communicants, and
  • although the interim costs order made against the communicants (about £5,000) was not prohibitively expensive under para 4 of Article 9 of the Aarhus Convention, nonetheless, it was unfair and inequitable under para 4 that the communicants were required to pay all of those costs and the operator was not required to make any contribution

Accordingly, the UK was in breach of para 4 of Article 9. Although it did not form part of its conclusions, the Compliance Committee also questioned whether the UK had met its obligation under para 2 of Article 3 to ensure that officials and the authorities assisted the public in seeking access to justice in environmental matters.

Belfast City Airport

In August 2008, the Cultra Residents' Association (the communicant) submitted a communication to the Compliance Committee, claiming the UK failed to comply with Article 3 of the Aarhus Convention by making the decision to expand Belfast City Airport through a private planning agreement (ACCC/C/2008/27). This agreement was only enforceable between the contracting parties and did not allow the public any right of appeal, other than by judicial review.

The communicant also claimed a breach of its Article 9 rights when it was ordered to pay the full costs of nearly £40,000, after its application for judicial review was dismissed.

The Compliance Committee found:

References:

Compliance Committee Findings

  • It had insufficient evidence to establish a breach of Article 3, but
  • the amount of costs awarded against the communicant made the application for judicial review prohibitively expensive and the manner of allocating the costs was unfair

The UK was therefore in breach of Article 9.

UK response

The UK Government does not accept that it is in breach of its obligations under Aarhus Convention, Article 9. Nonetheless, reporting on its implementation of Aarhus obligations Defra has highlighted:

  • protective costs orders (PCOs)—the Ministry of Justice (MOJ) is seeking to codify the case law on PCOs into court rules. PCOs were considered by the Supreme Court in Edwards, which has sought a preliminary ruling from the European Court of Justice on the correct test to apply when determining whether costs are prohibitive

References:

Edwards v Environment Agency [2010] UKSC 57

  • Jackson LJ's review of civil litigation costs—MOJ published a consultation on the key findings in November 2010. One important recommendation in Jackson LJ's review was for qualified one-way costs shifting for judicial review. This is where a losing defendant would be required to pay the claimant's costs, but if the claimant were to lose, each side would have to bear its own costs. It is 'qualified' because only some categories of claimants merit protection against liability for adverse costs
  • cross-undertakings—MOJ proposes to consult on whether it would be helpful to set out in rules or guidance, the factors that the court should consider in deciding whether a cross-undertaking is necessary
  • time limits—MOJ is considering the issue of time limits for judicial review proceedings and is discussing this with the judiciary and other interested parties

Separately, in August 2010 Sullivan LJ's Working Group on Access to Environmental Justice published an update to its earlier report on ensuring access to environmental justice in England and Wales. The original report called for improvements to PCOs. The update report instead:

References:

Ensuring access to environmental justice in England and Wales—update

Ensuring access to environmental justice in England and Wales—original report

  • recommends qualified one-way costs shifting, and
  • proposes a different formulation to the rule for qualified one-way costs shifting than that proposed by Jackson LJ's review

The Stichting cases

The EU General Court held that the EU Regulations relating to access to information, public participation and access to justice are deferential to the Aarhus Convention.

References:

Stichting Natuur en Millieu and another v European Commission [2012] All ER (D) 34 (Jul)

Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v European Commission

The Regulations allow an NGO to request a review of an administrative act adopted by a community institution or body, in relation to environmental law.

References:

Regulation (EC) 2006/1367, art 10(1)

The wording of the Regulations defines an administrative act as any measure of individual scope. In contrast the relevant provisions in the Aarhus Convention, art 9(3), define an administrative act as any acts or omissions and thereby provide a more expansive definition.

References:

Regulation (EC) 2006/1367, art 2(1)(g)

The court accepted that the EU regulation was enacted with the purpose of transposing the Aarhus Convention into EU institutional law. The Regulations were clearly inconsistent with the Aarhus Convention. As the Convention is an international treaty to which the EU is a party, it prevailed over secondary EU legislation. In each case the court annulled the decision not to permit a review of the Commission measures.

Jackson reforms 2013

From 1 April 2013 new rules are introduced in the form of amended Civil Procedure Rules 2013, SI 2013/262.

From 1 April 2013, the Pre-Action Protocol requires that where the claim is an Aarhus Convention claim the claimant must state this on the claim form. Unless the defendant contends this, providing reasons, in the defendant’s acknowledgment of service, the claim will proceed on the basis that it is an Aarhus Convention claim.

From 1 April 2013, Aarhus Convention claims will be cost capped. Where the claimant is an individual the maximum costs order against them will be £5,000, and £10,000 in all other cases. Defendants’ costs will be capped at £35,000. It is possible for a claimant to opt out of the new rules governing costs in Aarhus Convention claims where they explicitly state this on the claim form. It is possible for the claim to still proceed on the basis that the Convention applies in other respects while excluding the rules on costs.

References:

Civil Procedure Rules 1998, SI 1998/3132, r 45.43(1)

Interim injunctions and damages can also be awarded. From 1 April 2013, changes apply to the Practice Direction on Interim Injunctions (CPR PD 25A). If the claim is an Aarhus Convention claim and the court is satisfied that an injunction is necessary to prevent significant environmental damage, the court will

  • consider whether or not to require an undertaking from the applicant, and
  • have regard to not making the claim prohibitively expensive for the applicant and further make sure the case is heard promptly

References:

CPR PD 25A, r 5.1B (1)

In Austin v Miller Argent (South Wales), the Court of Appeal held that a private nuisance claim which had a close link to the environmental matters regulated by the Aarhus Convention and which, if successful, would confer significant public environmental benefits was in principal capable of attracting a protective costs order. Elias LJ, giving the judgement of the court, said that the court would only be obliged to grant a protective costs order if it was satisfied that the proceedings would otherwise be prohibitively expensive and the claimant was able to rely upon provisions in either the Aarhus Convention, which was concerned with protecting the environment, or in Directive 2011/92/EU which implemented it, at least in part. Private nuisance actions were in principle capable of constituting procedures which fell within the scope of article 9.3 of the Aarhus Convention which ensured that 'members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment'. Plainly that was not true in all actions in private nuisance. There had to be a significant public interest in the action to justify conferring special costs protection on the claimant and two requirements had to be met. First, the nature of the complaint had to have a close link with the particular environmental matters regulated by the Convention, even though the action in private nuisance did not directly raise them. Second, the claim had to, if successful, confer significant public environmental benefits.

References:

Austin v Miller Argent (South Wales) [2014] EWCA Civ 1012

However, in Venn v Secretary of State for Communities and Local Government, the Court of Appeal held that under CPR 45.41, the availability of protective costs orders for environmental cases falling within the Aarhus Convention had been deliberately limited to judicial review claims and did not extend to statutory appeals or applications. It was not appropriate for the court to exercise its discretion to grant costs protection in respect of an application to quash planning permission under the Town and Country Planning Act 1990, s 288 as that would side-step a limitation deliberately enacted in the CPR to give effect to a Convention which had not been directly incorporated into domestic law. Legislative action was necessary to remedy CPR 45.41's non-compliance with the Convention.

References:

Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539

In R (on the application of Evans) and another (Respondents) v Attorney General (Appellant), the Supreme Court pointed out that article 6.1 of the Aarhus Convention requires that, following a refusal by a public body of a request for environmental information, the refusal must 'be reconsidered… or reviewed administratively', that article 6.2 requires that thereafter the applicant has 'access to a review procedure before a court of law or [similar body]… whose decisions may become final', and that article 6.3 requires that 'final decisions under para 2 shall be binding on the public authority holding information'. In the light of these provisions, the Court considered that it would be impermissible for the executive to have another attempt at preventing disclosure, after a court decision, and that therefore regulation 18(6) of the Environmental Information Regulations 2004, SI 2004/3391 is incompatible with art 6 of Council Directive 2003/4/EC.

References:

Environmental Information Regulations 2004, SI 2004/3391, reg 18(6)

R (on the application of Evans) and another (Respondents) v Attorney General (Appellant) [2015] UKSC 21

Costs protection in environmental claims

The Ministry of Justice (MoJ) consulted on costs protection in environmental claims, and in November 2016 the response was issued.

The MoJ stated that it intended to:

  • extend the environmental costs protection regime (ECPR) to environmental reviews under statute engaging EU law, as well as judicial reviews
  • allow a ‘hybrid’ regime so that, in appropriate cases, the financial caps can be varied
  • introduce more certainty that appropriate claimants will have grants of costs protection in appropriate cases in the Court of Appeal, and inviting the Supreme Court to amend its rules to do likewise
  • introduce a more of a level playing field so that defendants are not unduly discouraged from challenging a claimant’s entitlement to costs protection
  • clarify certain issues, including that the ECPR can only be used by claimants who require costs protection because of EU law or the Aarhus Convention; the factors for a court to consider in ECPR cases when deciding whether to require a cross-undertaking in damages for an interim injunction; and that a separate costs cap applies to each claimant or defendant in cases with multiple parties

The Civil Procedure (Amendment) Rules 2017, SI 2017/95 amend the provisions of the CPR governing costs protection in Aarhus Convention claims and entered into force on 28 February 2017.

References:

Civil Procedure (Amendment) Rules 2017, SI 2017/95

CPR 45.41 and 45.42 now make the above costs limitations available where:

References:

CPR Part 45 Fixed Costs

  • the challenge is made under the Town and Country Planning Act 1990 (TCPA), s 289 or the Planning (Listed Buildings and Conservation Areas) Act 1990, s 65(1) (although challenges by way of judicial review and pursuant to the TCPA 1990, s 288, continue to qualify)
  • the claimant is a 'member of the public'—'member of the public' is not defined, but CPR 45.41(1)(b) states that 'references to a member or members of the public are to be construed in accordance with the Aarhus Convention', which defines 'public' as 'one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups' and 'public concerned' as 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest'. This suggests that 'member of the public' is likely to be broadly interpreted
  • the claimant has 'filed and served with the claim form a schedule of the claimant’s financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth'
  • the claimant has stated in the claim form that the claim is an Aarhus Convention claim

As before, where the above conditions are met, the claimant's costs are capped at £5,000/£10,000 with costs they can receive from the defendant capped at £35,000. However, CPR 45.44 now allows the court to vary or remove altogether those amounts if it is satisfied that:

  • to do so would not make the costs of the proceedings prohibitively expensive for the claimant, and
  • in the case of a variation which would reduce a claimant’s maximum costs liability or increase that of a defendant, without the variation the costs of the proceedings would be prohibitively expensive for the claimant

Proceedings are to be considered 'prohibitively expensive' for the purpose of this rule if their likely costs (including any court fees which are payable by the claimant) either:

  • exceed the financial resources of the claimant (having regard to any financial support provided), or
  • are objectively unreasonable having regard to the situation of the parties, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant, the complexity of the relevant law and procedure, and whether the claim is frivolous.

By virtue of the Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017, SI 2017/100 which enter into force on 28 February 2017, the cost capping regime as set out in sections 88 to 90 of Criminal Justice and Courts Act 2015 does not apply to judicial review proceedings commenced on or after 28 February 2017 to which the separate costs protection regime for Aarhus Convention claims applies.

References:

Criminal Justice and Courts Act 2015 (Disapplication of Sections 88 and 89) Regulations 2017, SI 2017/100

In February 2017 ClientEarth, Friends of the Earth and the Royal Society for Protection of Birds (RSPB) applied for permission for judicial review to challenge the new costs rules. ClientEarth argues the new rules weaken financial protection for people bringing a case, meaning they face unspecified legal costs in return for going to court to protect the environment. It also believes judges will be able to increase the costs cap at any stage, making it impossible to know how much a case will cost from the start. The High Court will now consider the application and issue a response. For more information, see LNB News 28/02/2017 135 and LNB News 21/04/2017 51.