Aarhus watch: a UK breach, and a fudge

7 September 2013 by David Hart KC

ACCC/C/2012/68 read draft findings here and ACCC/C/2010/45 read findings here

Two interesting decisions from the Geneva-based Aarhus Convention Compliance Committee (ACCC) about whether the UK planning system complies with the UN-ECE Aarhus Convention.

The first was given excellent recent coverage in the Independent – a Scottish wind farm case where UK plans for renewable energy had not received the public consultation which Article 7 of the Convention required. The second, which promised much (see my previous post), ducked the issues in a rather unsatisfactory way.

Windfarms in Argyll

In the first, Communication 68, Ms. Christine Metcalfe, for the Avich and Kilchrenan Community Council, said that the UK and the European Union had failed to comply with their obligations in relation to the UK’s renewable energy programmes and two related projects, for an onshore wind farm (Carriag Gheal) and a 35km access route in Argyll, Scotland.

Ms Metcalfe said that the authorities at the EU, UK and Scottish administrative levels failed to provide information to the public, as required by Articles 4 and 5, about the implementation of the renewable energy programme and these two specific projects. She also said that due to lack of transparency, effective public participation was impeded, contrary to articles 6 and 7. Finally, there are no adequate review procedures for members of the public to challenge the failures of access to information and public participation, as required by article 9(1) and 9(2), while the costs for engaging in such procedures are prohibitively high, contrary to article 9(4) – the last being very familiar stuff in previous ACCC adjudications.

She claimed the UK’s renewables policies have been designed in such a way that they have denied the public the right to be informed about, or to ascertain, the alleged benefits in reducing CO2 and harmful emissions from wind power, or the negative effects of wind power on health, the environment and the economy.

The ACCC made one finding of breach. Article 7 requires that states shall enable public participation in “plans and programmes relating to the environment. No such public participation occurred in respect of the UK’s 2010 National Renewable Energy Plan (NREAP) made under the EU Renewable Energy Directive 2009/28/EC. The NREAP was based upon an earlier UK document, a Renewable Energy Strategy (RES) published in July 2009, which had had some public consultation.

• The NREAP was a “plan or programme” within Article 7 of the Convention, and therefore required public participation. A
• s the ACCC observed

The fact that the UK’s Renewable Energy Strategy, which informed the NREAP, was subject to public participation does not affect this conclusion, given their different legal status and functions in the EU and UK legal framework respectively.

Hence, the finding of breach. The ACCC dismissed the other claims.

Comment

Quite extraordinary, that the government should not invite public participation on a plan which underpins the UK’s implementation of its EU climate change obligations – not least given the long-running and widespread controversy about wind farms and other forms of renewable energy. There is the intriguing prospect that objectors will argue that the unlawfulness of the NREAP should affect planning decisions taken, and to be taken, on the the basis of the policies stated within it.

Supermarkets in Kent

The other recent decision (Communication 45) arose out of the grant of planning permission to a Sainsbury’s superstore in Hythe, Kent, and the difficulties which the objectors faced both before and after determination in having their say, both in and out of court – but the complaint ranged far and wide.  It was linked to Communication 60, where an individual complained that he was not allowed to address orally a number of London Borough planning Committees; he said that the law should enable this to be done in all cases.

The combined challenges sought to revisit the imbalance in the system arising out of the lack of appeal for objectors and the substantive and procedural difficulties inherent in judicial review. The lack of substantive review was put well by the first applicant:

To comply with Article 9(2) and 9(3) it must be possible for a court or other body to make a judgment as to whether the decision, act or omission under scrutiny was within the law. To do so, the court has to be able to establish the facts of the case and then apply the relevant law to those facts. This is not possible in the UK. The only option usually available for third parties is judicial review. In judicial review proceedings, the court cannot investigate or make findings on disputed evidence or visit the location to which the case relates.

Judging from [86], the Committee has done no more than say what it said in previous findings– it maintains its concerns about the UK’s way of conducting judicial review, but it does not make a finding of non-compliance. This is unhelpful, not least because the Court of Appeal here in Evans (see my post here) has picked on this unwillingness to make a finding as undermining the significance of the ACCC’s views, when applied in domestic courts.

The complaint about a lack of procedure to allow objectors to seek enforcement of planning conditions sounds a bit pernickety, but is in fact important. Why, said the challengers, could not objectors play a part in this enforcement process – not least because planning conditions are often designed to mitigate the long-term environmental effect of a project, and hard pressed local authorities may not have the time or money to take on dilatory developers? Or in Aarhus terms, why was there not a breach of Article 9(3) of the Convention which enabled parties to challenge acts or omissions both by public authorities and private persons (i.e. challenging developers not complying with planning conditions)?

This seems like a good point, but one which the ACCC ducked, apparently because it was raised too late in the day. If so, this is not a very sensible response if the ACCC wants to keep its casework down. It is a point of general interest which will come round again.

The other big theme in Communication 45 is its challenge to the way in which key decisions about funding are taken before any meaningful public involvement in development proposals. There are a whole welter of bodies and processes (Local Strategic Partnerships being replaced by Local Enterprise Partnerships, which draft Local Investment Plans which play a part in paving the way towards major developments proceeding). They are not public bodies in the way that a local authority is, subject to open meetings and the like; in practice, they are said to be dominated by local business interests. It was argued that there was no public participation in the preparation of these plans for development.

Defra countered by arguing that any decisions by these bodies did not fall within Article 7 – they were not plans or programmes relating to the environment, and such plans and programmes only came later when land-use plans were drawn up, and there were public participation provisions in respect of the latter.

The ACCC’s findings at [79]-[82] amount to a magnificent fudge. LIPs, and “possibly” LSPs or LEPs “may well be” part of decisions on plans or programmes for the purposes of Article 7 of Aarhus. They seem to be “evolving into a de facto element of planning.”  If the adoption of LIPs were to prejudice public participation, this would engage the UK’s responsibilities under the Convention. However, because the practice for preparation of such LIPs has not crystallised across the UK, the ACCC was “not in a position to conclude whether [the UK] fails to comply with its obligations from Article 7.” Public participation in the preparation of the LIPs and related procedures is “highly appropriate.” But the lack of decision is almost an invitation to keep these arrangements all a bit vague so that business does not have to trouble itself with public participation before it has reached decisions which matter.

Such non-decision making is worse than useless. If taken seriously, it casts a shadow over the legality of the present system without telling either party what the answer is. Part of the problem may lie in the width of the complaint – one of systematic breach – but, even allowing for that, surely the ACCC could do better than it has done – whichever side of the argument one may be on.

So nearly but not quite a breach of Article 7 – but with its observations phrased in such terms that government can ignore it if it chooses.

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