Court of Appeal downplays Aarhus

4 March 2013 by

_66025376_3166618Evans, R (o.t.a of) Secretary of State for Communities and Local Government [2013] EWCA Civ 114 – read judgment

There have been important pronouncements over the years by the Aarhus Compliance Committee (ACC) about whether the UK planning system complies with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention). See my post here for the most important ones, and more are likely to follow shortly (see here). The interest in this domestic planning case is in how the Court of Appeal dealt with those pronouncements, where there is domestic case law going the other way.

The underlying challenge was to a decision by the Secretary of State that a proposed development by Persimmon Homes was not likely to have significant effects on the environment – in the jargon, a “screening” decision. The proposal site is near Sudbury, near a Grade 1 listed building (Abbas Hall) and in a valley associated with the 18th painter Thomas Gainsborough; the objector lives nearby and is chairman of the local residents association. The SoS’s decision meant that the proposal was not an “EIA development”  i.e. did not need a formal Environmental Impact Assessment before it could be determined. He reached that decision because

the location of the development, largely shielded by a bowl in the landscape and next to an existing housing development, together with the wider absorption capacity of open rolling hills around the site, mean that the impact of the development would not be of sufficient magnitude to be likely to have a significant effect on the environment.

The question therefore arose – on what legal basis could an objector challenge such a screening decision? Previous cases suggested that the assessment of the significance of an impact or impacts on the environment was essentially a fact-finding exercise which requires the exercise of judgment on the issues of “likelihood” and “significance” – and because the word “significant” requires the exercise of judgment on planning issues and consistency of such judgments, the function is “one for which the courts are ill-equipped”. The Court said that this was particularly so where the issue is the visual impact of a development on a site, and the relevant officer, unlike the court, has visited the site and used his expertise in assessing it.

The Secretary of State argued (and again domestic case law supported him) that the proper test was the – very restrictive – Wednesbury test – in shorthand, one could only challenge it if the decision were irrational.

The objector’s contention was that this was wrong. The judgment suggests that counsel for the objector did not pin his colours to the mast as to what the true test was, but the gist can be gained from the following extract; counsel submitted that

 more intensive scrutiny was required, but he did not make a positive submission as to what that would be. His task, he repeatedly said, was to show that the matter was not clear and that a reference to the CJEU was required. He referred to the suggestion in the Convention Compliance Committee’s December 2010 report that the appropriate standard might be a proportionality test, but he did not submit that it was.

The argument was that CA decisions which adopted and confirmed the Wednesbury approach either pre-date the Convention and its enactment into EU and national law and developments in the jurisprudence of the Court of Justice of the European Union, or are distinguishable or per incuriam [in English, wrong because they missed out something critical] . The  ACC’s  report expressed concern about the Wednesbury approach. The objector also relied on the fact that “what are in play here are fundamental rights”, rights to participation in front-line decision-making and the right of access to a court able to assess the substantive and procedural legality of an environmental decision under Article 9 of the Aarhus Convention.

Reliance on the Convention and the Compliance Committee found little favour with this Court, as can be seen from this summary:

 First, it is clear from the jurisprudence that the Convention is not part of domestic law or EU law: for example, see Walton v Scottish Ministers [2012] UKSC 44 at [100]. Secondly, the Compliance Committee has reached no concluded view that the Wednesbury approach is impermissible. Moreover, its expression of concern is general and unparticularised. For example, it only refers to Wednesbury and does not refer to the other established heads of public law review; error of law, error of fact, and the principles of relevance and of propriety of purpose which are sometimes insufficiently distinguished from Lord Greene’s residual category, which Lord Diplock termed “irrationality”. It also does not identify the variations in the intensity of Wednesbury review that reflect the nature of the interest affected.

And later about the ACC views

… that body has made no decision and has only expressed concerns

But there is a wider issue here, of interest outside the planning and environmental area – indeed over the whole scope of public law where proportionality may come into play.

 Any suggestion that the appropriate approach might be proportionality, however, has to overcome a formidable obstacle. The question for the Secretary of State when making his screening direction in this case was a question of fact, albeit not a hard-edged question.

And in questions of fact, proportionality does not play a part. One has to have recourse to other public law principles such as error of fact, which have their own very considerable limitations.

The real objective of this appeal was to convince the Court to refer the question to the CJEU who might potentially have had a different view on the adequacy of Wednesbury review. The CA were sceptical about this – they thought that the EU test of “manifest error of assessment” in the cases was substantially the same as the Wednesbury test.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation DEFRA Democracy village deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability disclosure Discrimination disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Family life fatal accidents act Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Germany Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection hammerton v uk happy new year Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII hereditary disorder Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee inherited disease Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty in vitro fertilisation Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence limestone pavements lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Sumption Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: