When is access to environmental justice “prohibitively expensive”?

22 September 2010 by

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.

As David Hart QC reported in this recent post, the Aarhus Compliance Committee sitting in Geneva recently published its draft decision that UK judicial review procedures were indeed prohibitively expensive and prevented access to justice.

In Coedbach, a recent decision of the High Court, the judge determined that a local community group which sought to challenge the grant of planning permission for a biomass fuelled power station was not “a member of the public concerned and…not a person having a sufficient interest”, that the proceedings were not prohibitively expensive, and that the Claimant did not qualify under the rules laid down in R (Corner House Research) v Secretary of Trade and Industry for a protective costs order; in doing so the judge took into account the fact that the group had constituted itself as a limited company.

More on the implications of this decision for environmental interest groups next week.

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