45 - Public participation in environmental…

Call for evidence on Convention compliance

In the last blog post [blog 44] Alex drew attention to the Government’s current ‘call for evidence’ - ‘Access to Justice in relation to the Aarhus Convention’ – through which it is seeks to “gather views” on the Aarhus Compliance Committee’s recommendations regarding access to justice to determine the best way to reach compliance” in connection with the Environmental Cost Capping Regime, time limits in judicial reviews of planning decisions, and ‘litter abatement orders’.

The call for evidence is open until 9 December 2024. The online survey and consultation document are available on the MOJ website here.

Case management – and costs protections – in NSIP challenges

The week after the last blog post, the Government published the recommendations of the Banner Review, and the MOJ opened a ‘call for evidence’ on the recommendations in the Report.

The report on the review undertaken by Lord Banner KC (assisted by Nick Grant) is available on the Gov.UK website here.

The recommendations included the following:

Recommendation 1:
“For so long as the UK remains a member of the Aarhus Convention, there is no case for amending the rules in relation to cost caps in order to reduce the number of challenges to NSIPs”;

Recommendation 2:
“There is no convincing case for amending the rules in relation to standing to reduce the number of challenges to NSIPs”; and

Recommendation 4:
“1) There may be a case for raising the permission threshold for judicial review claims challenging DCOs, which could be achieved by amendments to the CPR.
2) This requires further consideration in the light of whether the other recommendations in this report are taken forward.
3) The necessary further consideration could be undertaken in the context of a consultation on any proposed changes to the CPR that are made in the light of this report.”

The call for evidence – available here - seeks review on all of the recommendations included in the review. It closes on 30 December2024.

Consultation on draft supplementary EIA guidance (post Finch)

If the last two consultations didn’t offer sufficient excitement to combat the ever shortening hours of daylight as we head towards December, on 30 October 2024 the ‘Offshore Petroleum Regulator for Environment and Decommissioning’ (part of DESNZ) launched its consultation on draft supplementary guidance for assessing the effects of scope 3 emissions on climate from offshore oil and gas projects.

On 29 August 2024, the Regulator had published a statement on the implications of the Supreme Court judgment in Finch (discussed in blog post 36) which was essentially to the effect that until supplementary EIA guidance has been published, certain EIA decisions would be deferred (see: here)

The consultation is open until 8 January 2025. The stated intention is to publish the finalised guidance in Spring 2025.

This blog post was written by Jacqueline Lean.

----------------

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.