46 - The Aarhus Convention and contempt…

2024 has been a bumper year for cases on the scope of the Aarhus Convention rules. So far we have had R (Wilkinson) v Enfield LBC [2024] EWHC 1193 (Admin); R. (ClientEarth) v Financial Conduct Authority [2024] 2 C.M.L.R. 42; Cotham School v Bristol City Council [2024] JPL 955 and R. (Global Feedback Ltd) v HM Treasury [2024] EWHC 1943 Admin.

Last week we also had Whyte v Plymouth CC [2024] 2854 (Admin).

The judgment of Sheldon J. explains (see [1]) that in the early hours of 15 March 2023, pursuant to an application made by Alison White ("the Claimant"), Freedman J issued an ex parte injunction prohibiting Plymouth City Council ("the Council") from carrying out "any further works for the removal of trees, including pruning, or any works preliminary to those works, at Armada Way, Plymouth, Devon until further order upon the hearing of the Return Date Application". Those works, which included the proposed felling and replacement of most of the trees in Armada Way, formed part of a redevelopment scheme that the Council had decided to implement on 14 March 2023. That decision was published by the Council shortly before 6pm on 14 March 2023.

The Claimant contended that the way in which the Council conducted itself in advance of, and in making, the decision to remove trees at Armada Way was a contempt of court as it constituted interference with the "due administration of justice". The Claimant also contends that the Council breached Freedman J's order and have therefore acted in contempt of court ([3]).

The contempt application failed. But what is of interest to readers of this blog is the ruling on Aarhus costs protection.

The Judge held ([68]) that “I consider that the Claimant should be entitled to costs protection under the Aarhus Convention, it being agreed by the parties that that protection can apply retrospectively.”

The Judge explained that CPR Rule 46.24 requires two conditions to be satisfied: (i) the claim must be brought by way of judicial review or statutory review; and (ii) the claim must be within the scope of Article 9(1), 9(2) or 9(3) of the Aarhus Convention.

In relation to the first condition he ruled:

“71. The application for the injunction was a matter that fell within the scope of Article 9(3), as the Claimant sought to challenge an alleged contravention by the Council of domestic law relating to the environment, and so condition (ii) is satisfied. In my judgment, a claim brought by "judicial review" must be read as including an application for contempt that arises from the breach of an order made in, or in anticipation and contemplation of, judicial review proceedings, and so condition (i) is satisfied.

72. Whilst it is strictly correct that at the time when the application for an injunction was made, judicial review proceedings were not yet afoot, it was a condition of the order made by Freedman J that the Claimant had to file an application for judicial review by the close of business on the very day that the order was made: 15 March 2023. The application for the injunction was made, therefore, in anticipation of and in contemplation of judicial review proceedings. When CPR Rule 46.24 refers to an Aarhus Convention claim as being one that involves a claim for judicial review, that must sensibly be read to include interim injunction proceedings that are made in anticipation of and in contemplation of judicial review proceedings. To hold otherwise would mean that the United Kingdom Government, as a Party to the Aarhus Convention, was not giving proper effect to that Convention when setting out its cost protection rules.”

In relation to the second condition he ruled:

73. This can clearly be seen when one considers Article 9(3) of the Aarhus Convention, and the following provisions. Article 9(3) provides that:

" … each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, 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".

74. Articles 9(4) and (5) provide that:

"4…. the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice".

75. It can be seen, therefore, that on its face the Aarhus Convention requires Parties to provide "adequate and effective remedies, including injunctive relief as appropriate" where public authorities act in contravention of provisions of their national law relating to the environment. This must surely include injunctive relief that precedes, but is conditional on, the lodging of judicial review proceedings. In many cases, including the present, it is not realistic to have expected judicial review proceedings to have been initiated before the application for injunctive relief was sought.

76. It also seems to me that contempt proceedings that relate to an order for an injunction made in judicial review proceedings, or in anticipation of those proceedings, would also fall within the scope of the Aarhus Convention. If an order for an injunction made by the Courts in, or in anticipation of, judicial review proceedings alleging a contravention of environmental laws, cannot be enforced then the remedies available will not be "adequate" or "effective" as required by Article 9(4).

77. Mr Beglan, for the Council, submitted that this cannot apply to situations where (i) the application for contempt would not "compensate past damage, prevent future damage and/or to provide for restoration", as the trees had already been felled; and (ii) the substantive proceedings were found to be "academic". Mr Beglan contends that this falls outside of the general understanding of what the Aarhus Convention regime is intended to cover, referring to the "implementation guide" to the Aarhus Convention, produced by the United Nations Economic Commission for Europe, Second edition, 2014.

78. Under the heading 'Adequate and effective remedies", the implementation guide states that:

"The objective of any administrative or judicial review process is to have erroneous decisions, acts and omissions corrected and, ultimately, to obtain a remedy for transgressions of law. Under paragraph 4, Parties must ensure that the review bodies provide "adequate and effective" remedies, including injunctive relief as appropriate. Adequacy requires the relief to ensure the intended effect of the review procedure. This may be to compensate past damage, prevent future damage and/or to provide for restoration. The requirement that the remedies should be effective means that they should be capable of real and efficient enforcement. Parties should try to eliminate any potential barriers to the enforcement of injunctions and other remedies.

When initial or additional damage may still happen and the violation is continuing, or where prior damage can be reversed or mitigated, courts and administrative review bodies must be able to issue an order to stop or to undertake certain action. This order is called an "injunction" and the remedy achieved by it is called "injunctive relief" (see box below). In practice, use of injunctive relief can be critical in an environmental case, since environmental disputes often involve future, proposed activities, or ongoing activities that present imminent threats to human health and the environment. In many cases, if left unchecked, the resulting damage to health or the environment would be irreversible and compensation in such cases may be inadequate.

In other cases, compensatory measures, e.g., to improve the quality of the environment elsewhere, may be the most adequate remedy possible. Although monetary compensation is often inadequate to remedy the harm to the environment, it may still provide some satisfaction for the persons harmed. Monetary compensation may also be a relevant remedy when paid to public authorities by the operator, so as to compensate for the public money spent in vain to protect an area or a species that was adversely affected by an act or omission by the operator in question.

Yet another related form of remedy available in some countries, for example in France, enables a member of the public to bring civil proceedings to challenge a breach of environmental law (as contemplated in article 9, paragraph 3) to recover civil monetary penalties from the owner or operator of a facility transgressing environmental law in place of the appropriate government agency. Such proceedings are sometimes known as "citizen enforcer" proceedings and are discussed again below."

(Emphasis added). Mr Beglan submits that the present application would not "compensate past damage, prevent future damage and/or to provide for restoration", as the trees have already been felled.

79. I consider that Mr Beglan's argument would lead to absurd consequences. It would mean that a public authority against whom an injunction is made could escape the strictures of the Aarhus Convention regime by, as is contended in this case, deliberately breaching an order for an injunction and destroying the subject matter that the injunction was designed to protect. These consequences can be avoided if Article 9(3)-(4) are read as, I understand them to be, to apply to the general mechanisms available to members of the public concerned about environmental matters, rather than to the facts of a particular case. In the domestic context, the contempt regime is the mechanism by which injunctions in environmental matters can generally be enforced even if, in a particular case, enforcement would not have a direct environmentally positive effect.

80. As the application for contempt under Ground Two falls within CPR Rule 46.24 , and the Aarhus Convention more generally, the costs of the claim are subject to the protection at CPR Rule 46.24 . This applies to the whole claim, and not just to the part of the claim that relates to Ground Two. It is not necessary, therefore, for me to determine whether Ground One would, if brought on its own, have attracted costs protection under CPR Rule 46.24 . I have to say, however, that it is doubtful that it would have done. Ground One was not made as part of, or in anticipation of, judicial review proceedings, even though it has connections to some of the factual matters in those proceedings. Ground One was not seeking to enforce an order made in, or in anticipation of, judicial review proceedings, or to mark the failure of the Council to comply with such an order.

81. As I find that the Claimant is entitled to protection under the Aarhus Convention, it is not necessary for me to deal with the alternative contention that costs protection under the Cornerhouse principles should have been afforded to the Claimant.”

This blog post was written by James Maurici KC.

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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.