European Commission warns the UK about unfair cost of challenging environmental decisions

28 March 2010 by

The European Commission has sent an official warning letter to the UK regarding the prohibitive expense of challenging the legality of environmental decisions.

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed by the United Kingdom in 1998, and came into force in October 2001.  It was ratified by the United Kingdom in February 2005, at the same time as its ratification by the European Community.  Article 9(4) of the Convention provides that access to environmental justice must be fair, equitable, timely and not prohibitively expensive.

The European Convention on Human Rights (ECHR) does not provide for a specific human right to a clean environment, nor a right to environmental justice, although Article 2 (right to life), Article 6 (right to a fair trial) and Article 8 (respect for family and private life) do provide some scope for environmental protection, Conventions such as Aarhus are important in supporting these rights in an environmental context, particularly where the ECHR may provide inadequate protection. This connection is recognised in the preamble to the Aarhus Convention which identifies that, “the adequate protection of the environment is essential for human well-being and the enjoyment of basic human rights, including the right to life itself.”

As such, the correct implementation of the Convention is a significant matter for those interested in human rights, particularly in relation to the environment. In their warning letter, the Commission expressed concern that in the UK, legal proceedings can prove too costly, and that the potential financial consequences of losing challenges is preventing NGO’s and individuals from brining cases against public bodies.

In the warning letter, the Commission also raised concerns about the UK requirement that applicants for interim injunctions give expensive and often unaffordable “cross undertakings in damages” before such orders are granted by the court.  The inability of the RSPB to provide such an undertaking in damages led to the unfortunate consequence in the case of R. v Secretary of State for the Environment Ex p. Royal Society for the Protection of Birds (RSPB) [1997] Env. L.R. 431.  Here the RSPB had made an application for interim relief in the form of a declaration stating that it would be unlawful for the Secretary of State to refuse to act to protect bird habitats whilst the status of those habitats was under consideration.  However, as the RSPB were unable to provide the necessary undertaking, the development was able to go ahead, despite the fact that the European Commission ultimately ruled in favour of the RSPB.  By the time of the eventual decision, however, the habitat had become a car park.

This is the second warning which the UK has received, following an initial warning made in October 2007, when the UK responded that the procedures were under review.  However, as no substantive changes have been put in place to improve the situation since 2007, the Commission considers that the UK remains non-compliant.  Under Article 258 of the European Treaty, the Commission has the power to take legal actions against Member States that had not complied with its obligations under Community law.  The infringement process begins with Letter of Formal Notice and is followed by a Reasoned Opinion.  If the Member State has not complied within two months, the infringement process begins under Article 260 and could result in the UK being summoned to the European Court of Justice.

The issue has also been raised in the recent UK case of Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107.  This case considered whether the principle that costs should not be prohibitively expensive for environmental justice was capable of applying to private nuisance proceedings.  The court found that it was, at most, a matter to which regard might be given in exercising its discretion.  This was because there was no legal principle which would enable the court to treat a pure treaty obligation (even one adopted by the European Community) as converted into a rule of law directly binding on the English court. The application of the Aarhus Convention was not considered in detail because the Claimant had not raised the point before the judge, and as such it may emerge to be resolved in a future case.

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