Gamekeeper’s environmental Aarhus claim to shoot buzzards?

14 November 2015 by David Hart KC

McMorn (R, on the application of) v Natural England [2015] EWHC 3297 (Admin) – read judgment

An interesting point arose in this judicial review (for which see Rosalind English’s post here). Could the claimant could get the benefit of an order that any costs he might have had to pay were capped at £5,000? The original judge, Thirlwall J, when granting permission, had refused this costs protection. Ouseley J granted it, though, because the claimant won, the order is academic (short of a successful appeal by the defendant). 

This kind of costs protection only applies when the claim is an environmental claim covered by the Aarhus Convention: see a whole list of posts at the end of this one, including the true bluffer’s guide here. The UK has been dragged kicking and screaming into compliance with the Aarhus costs requirements, that environmental challenges not be “prohibitively expensive”, thanks to a combination of the Convention’s own enforcement body and the EU Court in Luxembourg.

But the domestic courts have had some difficulty in deciding what is or is not comes within an environmental challenge.

As we will see, the judge also thought that an Aarhus claim requires a more intensive review of the substantive decision than might have been applied had the claim been a typical domestic challenge on grounds of irrationality. I deal with that point first.

Standard of review

There has been a line of cases going before the Aarhus Compliance Committee in which the ACC criticised the UK for adopting a too strict standard of review in Aarhus challenges, namely requiring the irrationality traditionally associated with the 1940s Wednesbury case. The Court of Appeal however has recently stated that, in a Birds or Habitats Directive challenge, Wednesbury rules the day: Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174.

Ouseley J however recognised how Wednesbury principles can accommodate a more intensive review depending on the nature of the interests affected. He attributes this to Beatson LJ at [37] in Smyth, which I think must be a mistake – Beatson LJ said this in the Evans case, for which see my post here.

At [204] Ouseley J  recorded the argument for the claimant as

 An intense form of review was required here because, Aarhus claim or not, the decisions of NE affected the Claimant’s livelihood directly, without right of appeal, and NE’s policy required that licences should not be unreasonably withheld. But I have concluded that this is an Aarhus claim, and that a more intensive form of scrutiny is justified, for reasons I come to in dealing with costs.

He accepted this submission at [234], though did not expand on the intensity of such review.

Costs

The current costs rules (CPR Part 45. 41(2)) provides for fixed costs to be payable by the unsuccessful Claimant in an Aarhus judicial review of

a decision, act or omission all or part of which is subject to the provisions of the [Aarhus Convention], including a claim which proceeds on the basis that the decision, act or omission or part of it, is so subject.

The point taken against the gamekeeper is that he was not by definition seeking to protect the environment, indeed quite the contrary. Therefore a refusal of a licence would not contravene provisions of national law relating to the environment.

Ouseley J was unimpressed: see [240]. The objectives of the Aarhus Convention include affording access to justice in environmental matters, which he said plainly covered decisions on applications for licences to shoot birds for whatever permissible justification. Article 9 (3) of the Convention provides for access to administrative or judicial procedures “to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.” And, he held,

The word “contravene” does not mean that the Article 9 (3) obligation applies only where the claim succeeds in establishing a contravention; it includes a challenge founded on the contention that there has been such a contravention.

Hence, he thought that both sides of the controversy would be seeking access to justice in environmental matters. The purpose of the Convention in Article 1 is to protect the right of every person to live in an environment adequate to his well-being. So a decision striking the balance between the interests of wildlife and of a livestock farmer, whichever way the decision challenged may have gone, is a decision subject to the Convention.

As he pointed out with some force, to draw a distinction between claims pro and con the environment cannot be operated without the Court forming a value judgment as to whether a decision would advance or harm or be neutral in its effect on environmental interests.

Culling wildlife to protect other wildlife, damage to some environmental interest in the interests of renewable energy illustrated the sort of problems which would have to be resolved early on in litigation in order to decide whether a claim was within the Convention or not.

And, in words which are bound to be much cited in later cases:

The Convention is not just for the disinterested environmentalist or national body, but must have recognised that many individuals or ad hoc groups of individuals would be concerned with decisions which affected them personally, as it affected their enjoyment of their property, leisure, area or interests.

Conclusion

My deliberately tendentious question in the title of this post raises the instinctive response to our gamekeeper’s claim, namely that it does not sound environmental. But a moment’s thought demonstrates the fallacy of this. The gamekeeper is just as entitled to access to justice as the NGO seeking to quash a decision to cull badgers or gulls. Indeed one can envisage a decision to allow a cull of say 100 birds, challenged for unlawfulness by the RSPB from one angle (too many) and by the gamekeeper (too few), in which (if NE were right) the RSPB could shelter behind its £10,000 cap on costs and the gamekeeper would be fully exposed.

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