28 - A month in the life of the Aarhus Convention …

February 2024 has come and gone.

The Aarhus Convention had a busy month in the news.

1. On 1 February it was reported that “Enfield Council and Spurs drop ‘cost capping’ appeal against Whitewebbs campaigner”. The report states that “the parties have now agreed that the judicial review hearing qualifies as “public interest” proceedings, “regardless of whether or not they fall within the Aarhus Convention”. I am involved in this one so will say no more but it is to be covered fully in a future post by Jacqueline… The issues raised as to the scope of the Aarhus Convention where the claim relates to property matters (including land disposal by local authorities) are very interesting …
2. The very next day judgment was given in Cotham School v Bristol CC [2024] EWHC 154 (Ch) 2 Feb 2024. This judgment definitely needs a blog in its own right … The Court held that a claim by an academy school for an entry on the commons register to be reversed under s.14 of the Commons Act 1965 was not an Aarhus Convention claim for the purposes of costs because although it was acting as a member of the public in acting to protect its proprietary rights, the claim was not a "review under statute". The Court also held that it was unnecessary to consider the criteria in R. (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] 1 W.L.R. 2600 in a claim under s.14 of the 1965 Act because the court could not "side-step the limitation ... that had been deliberately imposed by secondary legislation", Venn v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 2328.
3. Also, on 2 February the ACCC received a new communication against the EU ACCC/C/2024/207. This complaint is linked to a request to access environmental information regarding an EU Horizon 2020 project, New Exploration Technologies (NEXT).
   
4. On 4 February it was announced that the Ninth meeting of the Task Force on Access to Information under the Aarhus Convention would take place on 05 - 06 November 2024 in Geneva.
5. On 7 February it was reported that UN Special Rapporteur for Environment Defenders, Michel Forst, has called on Cyprus to lead a group of countries in promoting the Aarhus Convention. It is said in the article that “Cyprus is the first country to officially invite Forst to see how the Aarhus Convention is being implemented”. See also "Environment justice official on monitoring visit to Cyprus" and "Environment protection top priority for Cyprus, Minister says".
6. On 8 and 9 February ENDS reported that the EU Commission was beginning infraction proceedings against a number of states including on Aarhus grounds: see "February infringements package: 9 things you need to know".
7. On 12 February it was reported that Farnham Town Council are undertaking a High Court challenge against the development of 146 homes either side of Waverley Lane in South Farnham, click here. The report refers to “Councillors debating this challenge behind closed doors breaches the principles of participative democracy and makes it unlikely that the Farnham Town Council can use Aarhus to limit costs”. Not sure about that as a piece of legal analysis – the detailed application of the Aarhus Costs rules to town and parish councils is perhaps an issue for a blog on another day …
8. On 13 February the First-tier Tribunal (General Regulatory Chamber) gave its decision in Ball v Information Commissioner [2024] UKFTT 129 (GRC) the case concerned access to information on noise which emanates from Mallory Park Racing Circuit. The request was refused on various grounds including Regulation 12(5)(b) of the Environmental Information Regulations (“EIR”). As usual in such cases Aarhus makes an honourable appearance in the reasoning …
9. On 16 February it was reported that the UNECE Executive Secretary, Tatiana Molceanhad, had held “strategic discussions” with the EU Commission and that “Ms. Molcean addressed the Plenary session of the European Economic and Social Committee. Speaking about the role of civil society in delivering on the Sustainable Development Goals, examples of UNECE tools were underlined, including the use of the Aarhus Convention, noting that of the 219 cases submitted to the Convention’s Compliance Committee to date, 207 have been communications from the public. As an example of its impact, the EU amended its legal framework to enable environmental NGOs and the public to challenge acts and omissions of EU institutions which contravene EU law relating to the environment, in response to Compliance Committee recommendations following a complaint from an NGO. Civil society representatives were also encouraged to have a strong engagement at the upcoming UNECE Regional Forum on Sustainable Development (13-14 March)”. To read further, visit here.
10. On 19 February the Environmental Journal reported that “UK environmental activism crackdown raises alarm for human rights and democracy”. Noting that “Michel Forst, the UN Special Rapporteur on Environmental Defenders under the Aarhus Convention, visited the UK last year, and has published a scathing assessment of Britain’s increasingly draconian approach to activists.” See further Alex’s Blog 26.
11. On 23 February it was reported that Executive Secretary Tatiana Molcean will lead a UNECE delegation to UNEA-6, the world’s highest decision-making body on the environment, which takes place from 26 February to 1 March at the United Nations Environment Programme (UNEP) headquarters in Nairobi, Kenya. The focus was to be on Multilateral Environmental Agreements (MEAs) of which the article highlights the Aarhus Convention is an example, as is the Espoo Convention. Also see here.
12. On 20 February International Business Law Journal published an article entitled “Environmental democracy in mining law in French-speaking African countries” by Jean-Claude Ngnintedem (I.B.L.J. 2024, 1, 21-54). The article examines the extent to which environmental democracy exists in mining law in French-speaking African countries, looking at access to environmental information, public participation in the decision-making process, environmental and social impact assessments. There is discussion of the Aarhus Convention in a number of contexts with the author even suggesting that the Aarhus Convention is “considered to be the universal instrument of environmental democracy …”
13. On 24 February it was reported that the Secretary General of the OSCE, Helga Maria Schmid, is planning to visit Ashgabat in March 2024 to take part in a meeting of the heads of environment ministries of five Central Asian states. The OSCE Centre in Ashgabat assists Turkmenistan in the implementation of its international commitments under the Aarhus Convention and other international environmental instruments, see here. 
14. On 28 February the UN Special Rapporteur on Environmental Defenders under the Aarhus Convention, Michel Forst, released a position paper on state repression of environmental protest and civil disobedience: a major threat to human rights and democracy. See also the reporting of this here.
15. On the same day the European Environment Agency issued a briefing on “Delivering justice in sustainability transitions”. This contains several mentions of the Aarhus Convention in particular in relation to delivering procedural justice in the EU.

This blog post was written by James Maurici KC.

Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.