R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion – updated
In environmental cases, this costs question arises in a sharp-focussed way, because the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”: Article 9(4) of the Convention.
The issue arose because a domestic judicial review got to the House of Lords and the claimant lost. She was ordered to pay the costs. In due course, the matter came before the Supreme Court who asked the Court of Justice of the European Union to say what “prohibitively expensive” means in the Convention. The first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Mr Abramovich. Any costs liability may deter someone on state benefits.
Secretary of State for Communities and Local Government v. Venn, Court of Appeal, 27 November 2014 – read judgment
Back to Aarhus and the constant problem we have in the UK making sure that the cost of planning and environmental litigation is not prohibitively expensive.
Article 9 of the Aarhus Convention (to which the EU has subscribed) says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. If this means nothing to you, you might want to limber up with my bluffers guide to Aarhus – here -not least on how to pronounce it and how it fits into domestic law.
Ms Venn wanted to stop the owner of land next door to her London property “garden-grabbing”, namely building another dwelling in his garden. The local authority had refused permission, the landowner successfully appealed to a planning inspector, and on further review, Ms Venn said that the inspector had failed to have regard to emerging planning policy in determining the appeal against her.
Lang J gave Ms Venn a protective costs order (PCO), limiting her costs exposure to £3,500 if she lost. The CA reversed this. As ever, the devil is in the detail. Had her appeal been by way of judicial review, she would have got an order in her favour. So why didn’t she?
A Geneva-based international committee has just said (provisionally) that domestic judicial review law is in breach of international law in environmental cases. Why? And does it matter? In this post we will try and explain why, and suggest that it does matter.
On 25 August 2010, the UN-ECE Aarhus Compliance Committee issued draft rulings in two long-running environmental challenges which, if confirmed, may have wide implications for how environmental judicial reviews are conducted in the UK. A key finding was that such challenges were “prohibitively expensive” to mount and this puts the UK in breach of its “access to justice” obligations under Article 9(4) of the Aarhus Convention. In addition, the Committee ruled that the UK’s grounds for judicial review of the substantive legality of decisions were too narrow, and said that the domestic rules as to timing of these challenges were insufficiently certain.
The audience heard how on her first day working in environmental law, Claire McGregor boarded a plane to the Ivory Coast to work on the Trafigura case involving 30,000 claimants suing oil multinational Trafigura for compensation following a toxic oil spill. The case went on to become the largest group litigation case in the UK. Continue reading →
Big business between government and property developers may be at risk from public interest challenges in the courts if current obstacles are removed.
Following critical findings by a UN environmental body, the Government has set out its latest proposals for allocating the costs burden in environmental cases. The current position is that an applicant who seeks to dispute the lawfulness of a decision, say, to grant permission for a development, will only get a court order preventing commencement of construction if they are prepared to pay for the developer’s loss should their claim fail at the full trial of the merits.
R (Edwards & another) v. Environment Agency, Opinion of A-G Kokott, CJEU, 18 October 2012, read opinion
In my post of yesterday, about this opinion of the Adocate-General, I set out the context in which the Supreme Court was asking for guidance from the CJEU on how to provide for costs in environmental cases, given that the UK is committed by Treaty obligations (the Aarhus Convention) and specific provisions of EU law to ensure that environmental cases are not “prohibitively expensive.”
As I put it, the first and obvious question is – prohibitive to whom? No litigation may be prohibitively expensive to Roman Abramovich. Any costs liability may deter someone on state benefits.
Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012read judgment
This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.
As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.
In October 2011, I posted on an important consultation, Cost Protection for Litigants in Environmental Judicial Review Claims, in which the Ministry of Justice wheeled out its proposals to get it out of the various scrapes caused by the expense of environmental challenges. The Aarhus Convention requires that environmental challenges not be “prohibitively expensive”, and both the European Commission and the Aarhus Compliance Committee don’t think that the English system complies – it costs way too much.
In a nutshell, MoJ were suggesting that there should be a starting point in the form of costs orders designed to protect unsuccessful claimants against excessive costs incurred by successful defendants – unsurprisingly called Protective Costs Orders. If a Claimant got permission to challenge an environmental decision, but then lost on a full judicial review hearing, he or she should have to pay no more than £5,000. In return, he should not be able to recover any more than £30,000 if he won. MoJ’s consultation period has now closed, and a very significant response has been received from Lord Justice Jackson, who recently carried out a set of mammoth reviews of litigation costs in all areas of the law.
The ticklish question of how to come up with a cheap but effective form of environmental judicial review still has not been answered.
One way talked about at a recent seminar on environmental tribunals (see John Jolliffe’s post of today) is to use the environmental part of the new tribunal system, and have judicial reviews heard by judges sitting there. As John noted, the advantage to claimants is that there is a general practice in the part of the tribunal dealing with land disputes that costs are not awarded against them if they lose – unless they have been thoroughly unreasonable. Continue reading →
On Monday 13 March, I went along to the latest Castle Debate, held in conjunctionwith the Environmental Law Foundation: see here for more of the same, all free debates, and fascinating topics for anyone interested in environmental law and policy.
It, and Tom Brenan’s talk in particular, reminded me that, despite it being not long after my last Aarhus post (on private law proceedings, here), it was time to set out the latest rules governing judicial reviews, which came into operation on 28 February. The bone of contention, as ever, is the concept that challenging environmental decisions should not be prohibitively expensive.
Until last month, the rules were relatively simple, and were designed, for better or for worse, to minimise the amounts of arguments about costs in environmental challenges. If you were an individual, £5,000 capped the costs which you would have to pay the other side if you lost.
But Government had become obsessed that environmental challengers were somehow getting a free lunch, and the rules have now been spun into something so complicated that defendants who want to burn off claimants before the claim gets heard have been given a pretty broad licence to do so. For most individuals, committing yourself to paying £5,000 if you lose is a pretty sharp deterrent. But Government does not think so.
R (o.t.a HS2AA, Buckingham County Council and others) v. Secretary of State for Transport,  UKSC 3 – read judgments
So the challenge to the way in which the Government wished to push the HS2 project through Parliament has failed before the Supreme Court, though not without clarifying the way in which key EU environmental provisions are meant to work. And we will also see a further flexing of the Court’s muscles against a too straightforward reading of the supremacy of EU law when seen against our constitutional principles.
The objectors said the command paper which preceded the Parliamentary hybrid bill, in which the Government set out its proposals for HS2, fell within the scope of the Strategic Environmental Assessment Directive 2001/42/EC and that an SEA ought therefore to have been carried out. The directive applies to plans or programmes which set a “framework” (Art.3(2)(a)) for future decisions whether to grant development consent for projects, and it was said that the command paper set the framework for the decision whether to grant consent for HS2.
Secondly, the objectors said that the legislative procedure in Parliament does not meet the requirements of the Environmental Impact Assessment Directive 2011/92/EU. The EU Court of Justice has interpreted that directive as imposing a number of requirements, including that the legislature must have available to it the information required by the directive, and a requirement that national courts must be able to verify that the requirements of the directive have been satisfied, taking account of the entire legislative process, including the preparatory documents and the parliamentary debates. Continue reading →
Sections 50 to 57 of the Criminal Justice and Courts Bill and Explanatory Notes; the full Government response is here, 4 February 2014
At first sight, proposals full of sound and fury, and signifying not a great deal for planning and environmental challenges. There are some slippery costs changes which we need to look at, but some of the potentially more concerning proposals (see Adam’s post and the linked posts) do not fully apply to this area, as I shall explain. There are also some perfectly sensible proposals about harmonising planning challenges which lawyers have been advocating for years.
This consultation got going in September 2013 when Grayling put forward his round 2 of reform to judicial review in a wide-ranging, and frankly worrying, consultation paper. This week’s announcement and draft bill seeks to take some of these measures forward, but leaves others at home.
Mercifully, the bill does not include the ill-thought out consultation proposal to reform rules about standing in judicial review – who can complain of unlawful action by government? The proposal had been very worrying to those concerned with environmental challenges. It would have led to the rather unsatisfactory position that a NIMBY complaining about a nearby development would have been able to challenge an unlawful decision, but an entirely altruistic concern about unlawfulness affecting, say, birds, bats or habitats would have been dismissed not on the merits, but because the NGO or individual conservationist had insufficient “interest” in the outcome. See my previous post on this.
Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08)  ZACC 14 – read judgment
Costs again, I am afraid, and how to make sure that ordinary people can litigate important cases without being stifled by a huge costs bill if they lose.
I have a certain amount of “form” for it on this blog, but it is important stuff. It is worth seeing where we have got to, and measuring that progress against the response to the same problem from an avowedly constitutional court, that of South Africa.
Access to environmental justice is a subject close to the hearts of various contributors to this blog, as one can see from the posts listed below. But not only to them – Sullivan LJ was the chairman of the working group that in 2008 wrote “Ensuring Access to Environmental Justice in England and Wales”. Jackson LJ returned to the issue in his report on the costs of civil litigation. In December last year the Supreme Court referred to the Court of Justice of the EU, Edwards, a case about the English costs regime, and whether it complies with the Aarhus convention. Finally, in April 2011 the European Commission said it was going to refer the UK to the CJEU for failing to comply with the costs element of the Convention.
So the UKELA seminar on “Developing the new Environmental Tribunal” hosted by Simmons & Simmons on 16th May 2011, was timely, to say the least, particularly as the speakers included Lord Justice Sullivan, and Lord Justice Carnwath the senior president of the Tribunals, and Professor Richard Macrory Q.C., author of a new report on the Environment Tribunal.
A little cluster of cases has recently been decided which bear on the nature and extent to which environmental information is accessible to the public. They involve Somerset oilseed rape, pesticide residues in Dutch lettuces, and Scottish mobile phone masts. And we visit some German apiarists to consider the implications of such information being or not being provided. So hold on to your hat.
In G.M. Freeze v. DEFRA (8 March 2011), the aptly-named appellant wanted to obtain the six-digit National Grid reference for a field in Somerset. The farmer had sown some supposedly conventional oilseed rape seed in which there was, unbeknownst to him and the seed manufacturer, some genetically-modified seed at a concentration of 5 plants per 10,000. The crop thus grown then cross-pollinated with the neighbouring field of oilseed rape, contaminating the latter to 1 part per 10,000. Continue reading →
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