44 - Aarhus Basics No 3: The Third Pillar of the…

Welcome, dear reader, to the third in our final mini-series (limited edition box set?) on Aarhus Basics: The Three Pillars of the Aarhus Convention. Our first blog in the series was way back in April 2023. Our second blog on the subject was December 2023. Now, finally, in October 2024, we have the third and final blog.

A gap in time that is so vast, a complaint to the Aarhus Convention Compliance Committee might have been started and concluded within it (I am, of course, exaggerating).

It is, however, no exaggeration to say that this post is very much the Winds of Winter of the environmental-treaty blogging world.

Like the Winds of Winter, it is difficult to use the simple medium of the written word to expand on such a satisfying live-action rendition- but I will try.

Today we are doing a short crash course on the Third Pillar of the Aarhus Convention (“P3” -because why not?).

P3 is access to justice in environmental matters. And it is arguably the most important of the three Pillars to those of us concerned with justice, and the various ways in which it can be accessed.

Article 9 of the Convention is where we find the provisions on access to justice. Essentially, it provides that members of the public have access to judicial or administrative redress in environmental cases. There are, in essence, three categories of cases within its scope:

Challenges to decisions on requests for environmental information (Art 9(1)). In the UK this will be ICO and Information Tribunal decisions.
Challenges to decisions, acts, or omissions concerning the permitting of activities covered by Art 6 of the Convention (Art 9(2))- our familiar planning and environmental cases.
Challenges to other acts or omissions ‘by private persons and public authorities which contravene provisions of its national law relating to the environment’ (Art 9(3)). Potentially also planning and environmental cases but also, more controversially in the UK, this would also appear to cover private nuisance cases.

Article 9(4) is where the Convention bites in terms of the protections it seeks to guarantee to those challenging decisions that fall within the above categories. Under Art 9(4), for all three categories there must be ‘adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive’. Decisions must also be recorded in writing and publicly accessible.

For an excellent deep dive on Article 9(4), see my colleague Nick Grant’s blog on the subject. But for today’s purposes, I will emphasise the phrase ‘not prohibitively expensive’ – coincidentally, the same phrase my clerks often use when selling me to prospective clients – which has turned out to be a crucial part of the Convention for the UK legal world.

It is this particular phrase which has had a notable bearing on our island nation’s relatively-internationally-unusual adverse costs rules. Indeed, the very first mention of the Aarhus Convention in an English case was about costs: R (Burkett) v Hammersmith, Fulham LBC (Costs) [2005] CP Rep 11 (then-Lord Justice Carnwath, now an associate member of these chambers).

Basically, being fully on the hook for adverse costs in an environmental challenge is prohibitively expensive for members of the public in many (if not most) cases. In its findings on communication ACCC/C/2008/27 (United Kingdom), the Compliance Committee held that the quantum of costs awarded in that case was prohibitively expensive within the meaning of article 9, paragraph 4, and thus, amounted to non-compliance. Albeit, it held in ACCC/C/2008/33 (United Kingdom) that the “costs follow the event rule” contained in the Civil Procedure Rules was not inherently objectionable under the Convention- it was just a matter of whether, in an individual case, it rendered the proceedings prohibitively expensive. In that case, the Committee concluded that the UK had not adequately implemented its obligation in article 9, paragraph 4, to ensure that the procedures subject to article 9 were not prohibitively expensive.

In essence, to now comply with P3, the UK has implemented a bespoke cost-capping regime for environmental JRs and statutory reviews in CPR 46. For probably the best short guide on the internet to the Aarhus costs rules, see my colleague Jacqueline Lean’s practical-yet-scholarly contribution here.

Of course, questions remain as to whether the existing rules strike the right balance and/or are fully complaint with the provisions of Article 9. You may have seen that the government is currently consulting on options “to bring the UK’s policies into compliance with its obligation under the access to justice provision of the Aarhus Convention.” Issues on the cards that are relevant to P3 include the following:

Whether successful claimants should recover their full costs (the fact they cannot is a particular bugbear of mine, as it is the claimant lawyers who tend to miss out under this rule- cue tiny violin),
Whether the time limit to apply for environmental judicial review should be calculated from when the decision became known to the public rather than the date when the decision was taken,
Whether the cost rules should include private nuisance claims,
Uncertainty as to the cost cap for unincorporated associations,
Restricting or removing the ability to vary costs caps upwards,
Whether the required statement of financial resources dissuades claimants,
Whether a separate costs cap per claimant is appropriate,
Uncertainty about costs protection on appeal,
Whether interveners should benefit from the cap.

If, like most ordinary people, you have strong feelings on the application of the Aarhus costs rules, please do consider responding to this consultation.

Until next time!

This blog post was written by Alex Shattock.

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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.