Tag Archives: Aarhus Convention

by

The CJEU on “prohibitively expensive” and the new protective costs order regime

R (Edwards & Pallikaropoulos) v. Environment Agency et al, 11 April 2013, read CJEU judgment, and read Opinion of A-G Kokott,

and the Civil Procedure Rules 45.41 to 45.44, in force from 1 April 2013, with Practice Direction 45

Twin developments, both of which are important for those involved in environmental cases. They emerge from the UK’s treaty obligations flowing from the Aarhus Convention under which it is obliged to ensure that environmental cases are not “prohibitively expensive” per Article 9(4) of the Convention.

The first development is a decision by the CJEU on the meaning of those words.

The second is a new set of rules providing for protective costs orders in environmental judicial review claims. Continue reading →

by

When does a case become “prohibitively expensive”?

R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated

In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention. 

My further thoughts on this case are found here.

The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.

Continue reading →

by

A coach and Aarhus through the planning system? Third party rights under scrutiny


The Geneva-based Aarhus Compliance Committee is considering a wide-ranging pair of challenges to the planning system claiming that it does not comply with the Aarhus Convention on Environmental Matters. The Committee (ACC) heard oral submissions on 27 June 2012, and on 12 August received what should be the last of the written submissions of the parties.  A decision may emerge before the end of the year, but there is so much interesting material in the papers before the Committee (for which see this and this link) which is worth having a look at.

The challenges raise a whole host of issues – the key ones are:

(i) not all planning committees allow objectors to address them orally before making a planning decision – when they do, they get a bare 3 minutes to say their piece;

(ii) an objector cannot appeal the grant of planning permission; all he can do is seek judicial review if the planning authority err in law, with the potential costs consequences which that involves; compare the developer who has a full appeal on fact and law;

(iii) an objector cannot enforce planning conditions attached to a grant; all he can do is challenge the local authority if it refuses to enforce, again on a point of law;

(iv) the UK does not comply with Article 6 of the Convention in that not all projects likely to have an effect on the environment are properly challengeable;

(v) the UK does not comply with Article 7 of the Convention in respect of public participation in all plans which may relate to the environment.

Continue reading →

by

When the EU implements Aarhus against itself, oh, how minimally it does it.


On the EU watch again, I am afraid. We have looked at getting documents out of the EU, in the context of the IFAW case about the German Chancellor’s letter, via Regulation (EC) No 1049/2001 (the EU Access to Information Regulation). And also on how to seek annulment of  EU laws and decisions from the EU courts (Inuits and all that). Both apply to all EU issues. We have mused on what might happen if the EU institutions sign up to the ECHR, so that complaints about them can go to the Strasbourg Court.

Now we return to environmental cases, where there is a specific measure, EU Aarhus Regulation 1367/2006, which applies the Aarhus Convention to EU institutions. We have seen how in a specific context this Regulation must be interpreted in the light of the meaning of the Convention:  my post on the pesticides and air quality challenges, where the General Court of the EU effectively ignored the words “of individual scope” in the Regulation to make the Regulation comply with the Convention. But I am now going to have a look at this measure more generally. Remember we are not here dealing with getting environmental information out of member states; that question is dealt with via a separate EU Directive (2003/4), transposed in the UK by the Environmental Information Regulations 2004.

Continue reading →

by

When is access to environmental justice “prohibitively expensive”?

Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change [2010] EWHC 2312 (Admin) – Read judgment

A recent decision of the High Court, relating to a challenge to planning permission for a power station, could significantly limit access to environmental justice for local community groups.

The Aarhus Convention requires that access to justice and effective remedies be provided to members of the public in environmental matters, and that the procedures be “fair, equitable, timely and not prohibitively expensive.”

Both the UK and the EU are signatories to the Convention; the access to justice provisions are given effect in EU law in the Directive 85/377 EEC, which requires that such access be given to “members of the public concerned” who have a sufficient interest or  are maintaining the impairment of a right.

Continue reading →

by

Environmental judicial review is “prohibitively expensive”, uncertain and insufficient

A Geneva-based international committee has just said (provisionally) that domestic judicial review law is in breach of international law in environmental cases. Why? And does it matter? In this post we will try and explain why, and suggest that it does matter.

On 25 August 2010, the UN-ECE Aarhus Compliance Committee issued draft rulings in two long-running environmental challenges which, if confirmed, may have wide implications for how environmental judicial reviews are conducted in the UK. A key finding was that such challenges were “prohibitively expensive” to mount and this puts the UK in breach of its “access to justice” obligations under Article 9(4) of the Aarhus Convention. In addition, the Committee ruled that the UK’s grounds for judicial review of the substantive legality of decisions were too narrow, and said that the domestic rules as to timing of these challenges were insufficiently certain.

Continue reading →