No Time To Be 21: Where Are We With Aarhus Costs Protection?

As with blog posts, it is helpful for legislation to have a snappy title.

The United Nations Economic Commission for Europe’s Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters is therefore better known as the Aarhus Convention, after the city in Denmark where it was signed on 25 June 1998.

It currently has 47 parties. The UK ratified it in February 2005, as did the EU.

The Convention has three pillars:

⁃ access to information

⁃ public participation in decision making

⁃ access to justice

You will know that the Aarhus Convention requires that access to justice in environmental matters should be “be fair, equitable, timely and not prohibitively expensive”, a challenging requirement in jurisdictions such as ours where access to justice in environmental matters frequently relies upon access to the High Court and appellate courts thereafter, and where processes are almost by definition prohibitively expensive – not just your own lawyers’ costs (cough) but, if the dice roll the wrong way, your liability for those of the defendant authority.

I last properly blogged on Parliament’s, and the English courts system’s, response to that challenge in my blog post dated 11 March 2017, Aarhus: Caps In The Air Again.

I agreed to speak on this subject at the Kingsland Conference event at King’s College London arranged for this Tuesday to mark the 21st anniversary of the signing of the Convention. If this post whets your appetite to hear that day from much more knowledgeable people than me on every aspect of the Convention’s three pillars, then do sign up.

In itself, the Convention has no direct effect in domestic law and its enforcement is indirect, at member state level via meetings of the parties to the Convention and non-binding communications by the Aarhus Convention Compliance Committee. I say “in itself” because it does have direct effect in domestic law via specific EU directives in relation to environmental protection, which was the basis for the European Court of Justice’s preliminary ruling in Edwards (CJEU, 11 April 2013).

At the time of my March 2017 blog post the Civil Procedure (Amendment) Rules 2017 had just come into force, which tightened up the regime in various ways.

The claimant’s default cap against exposure to the defendant’s legal costs in an Aarhus Convention claim) is still £5k where the claimant is an individual and otherwise £10k, with the default cap on how much the claimant can claim if successful still capped at £35k. The caps apply to each party where there are multiple claimants or multiple defendants.

An Aarhus Convention claim is basically defined as a claim brought by a member of the public, challenging the legality of a decision on grounds which concern environmental matters as defined in Articles 9 (1), (2) and (3) or the Convention, whether the claim is by judicial review, or under two specific forms of statutory review:

⁃ section 289 of the Town and Country Planning Act 1990 (challenges to decisions in relation to enforcement notice appeals)

⁃ section 65 of the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990 ((challenges to decisions in relation to listed building enforcement notice appeals)

The 2017 changes introduced the requirement that, where a claimant brings a claim and is seeking Aarhus costs protection it must say so on the claim form and must file a schedule of financial resources. The court may remove or vary the cap in these circumstances if satisfied that “to do so would not make the costs of the proceedings prohibitively expensive for the claimant“.

Proceedings are to be considered prohibitively expensive if their likely costs (including any court fees which are payable by the claimant) either—

(a) exceed the financial resources of the claimant, or

(b) are objectively unreasonable having regard to –

(i) the situation of the parties;

(ii) whether the claimant has a reasonable prospect of success;

(iii) the importance of what is at stake for the claimant;

(iv) the importance of what is at stake for the environment;

(v) the complexity of the relevant law and procedure; and

(vi) whether the claim is frivolous“.

Where the court considers the financial resources of the claimant, “it must have regard to any financial support which any person has provided or is likely to provide to the claimant”.

Three aspects of the 2017 rule amendments were challenged by the the RSPB, Friends of the Earth and ClientEarth in R (RSPB) v Secretary of State for Justice (Dove J, 15 September 2017):

1. The ability for the court to vary costs caps at any stage in the litigation would not meet the EU law requirement for “reasonable predictability

2. No express provision for hearings to be in private when a claimant or a third party supporter’s financial details may be discussed and examined.

3. Uncertainty as to whether the claimant’s own costs of bringing the litigation should be included in any assessment of their financial resources.

Dove J’s judgment is essential reading for an understanding of the background to costs capping in environmental matters, including the domestic and CJEU authorities.

He found against the claimants on the first ground but the issue was addressed in any event by Parliament in the Civil Procedure (Amendment) Rules 2018 which tightened up the procedural rules to make it clear that, save where there is a significant change in circumstances, variation of the caps can only be considered by the court if either the applicant had so requested in his claim form or if the defendant had so requested in his acknowledgement of service.

He found for the claimants on the second ground and the rules have again been changed to specify that hearings in relation to examination of claimants’ financial details must be heard in private.

He found that it was unnecessary to make a formal declaration to deal with the third ground but considered that it was clear that the court may indeed take account of a claimant’s reasonable costs in determining whether proceedings are “prohibitively expensive“.

The 2017 rule amendments defined “environmental matters” by reference to matters falling within the scope of Article 9 (1) to (3) of the Convention. I had wrongly assumed in my previous blog that the effect might be to limit the scope of the procedure but that has not been the case, following the broad meaning given by the Court of Appeal in Secretary of State v Venn (Court of Appeal, 27 November 2014).

I had also wondered whether the reference to “members of the public” in the amended rules might exclude parish councils from seeking Aarhus costs protection, but that assumption may also have been misplaced. At the permission stage of Crondall Parish Council v Secretary of State (Dove J, 14 May 2019), deputy judge John Howell QC accepted that the parish council was indeed a “member of the public”.

The 2017 rule amendments do not extend the automatic costs capping process to the Court of Appeal and beyond. It will be for the appellate court to consider whether the costs of the appeal proceedings will be prohibitively expensive for a party which was a claimant (with no guidance as to how the costs of previous stages in the litigation are to be taken into account).

The UK is still under some international pressure as to its approach to compliance. In its September 2017 decision VI/8k, the Economic Commission for Europe noted that “while the 2017 amendments to the cost protection system in England and Wales introduced some positive improvements, the 2017 amendments overall appear to have moved [the UK] further away from meeting the requirements of its 2014 decision V/9n, namely that the UK should:

“(a) Further review its system for allocating costs in all court procedures subject to article 9, and undertake practical and legislative measures to ensure that the allocation of costs in all such cases is fair and equitable and not prohibitively expensive;

(b) Further consider the establishment of appropriate assistance mechanisms to remove or reduce financial barriers to access to justice;

(d) Put in place the necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement article 9, paragraph 4, of the Convention”.

Furthermore, “by failing to ensure that private nuisance proceedings within the scope of article 9, paragraph 3, of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive, the Party concerned fails to comply with article 9, paragraph 4, of the Convention“.

There is also a complaint which is being investigated by the Aarhus Convention Compliance Committee. It is based on (1) the exclusion from current system of automatic costs capping for section 288 challenges of planning appeal decisions and (2) the risk of public disclosure of claimants’ financial means.

The complainant sets out the position as follows:

In 2008 a property developer sought to obtain planning permission to build an estate of 18 houses in open countryside outside of Ashover, Derbyshire. Permission to carry out this development was refused. The developer then reapplied for planning permission to develop 26 houses in 2014 and again in 2015. These applications were both refused. An appeal was made against the most recent decision and an Inspector was appointed by the Secretary of State for Communities and Local Government to hear the evidence and make a recommendation to the Secretary of State. After hearing all evidence over a four-day period and visiting the site the Inspector recommended that the appeal be dismissed and planning permission be refused. The Secretary of State disagreed with his Inspector’s recommendation, allowed the appeal, and granted planning permission.

Challenging the Decision

Objectors to the development sought a legal opinion on challenging the Secretary of State’s decision. It was the opinion of counsel that challenging the Secretary of State’s decision would be extremely costly and could fail. The costs protection regime for “Aarhus claims” would not be available for challenges to decisions of the Secretary of State even though the only difference rendering it inapplicable was the identity of the decision-maker. As a result of the uncertainty as to costs no member of the public had the appetite to challenge the decision.

We have been made aware that amendments were made to Part 45 Section VII of England and Wales’ Civil Procedure Rules (“CPR”) (“The 2017 Amendments”) on 28th February 2017. These mean that any claimant or a third party supporter of a claim now risks public disclosure of their financial means.”

DEFRA’s response dated 8 March 2019 is interesting:

1. Section 288 challenges will be brought within the scope of the rules later this year.

2. The new Civil Procedure (Amendment) Rules 2019 change the criteria as to when a hearing will be held in private but one of the criteria is whether “it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality“.

There do remain various open questions, for instance:

1. Post-Brexit, how will we see the Government flesh out the principle outlined in the draft Environment (Principles and Governance) Bill of “access to justice in relation to environmental matters“?

2. Does the current process give claimants “reasonable predictability“?

2. What are the practical risks for a defendant, in terms of potentially thereby elongating proceedings, in seeking to vary or remove a costs cap?

3. What effects are the changes having in practice on potential claimants as well as third party funders?

4. Where there is no Aarhus costs protection, are we going to see more applications for security for costs by defendants: the £250,000 required of Heathrow Hub Limited for example in the recent Heathrow proceedings (to be heard in the Court of Appeal in November) or the £60,000 required of the claimant in We Love Hackney v London Borough of Hackney (Farbey J, 17 April 2019).

Happy birthday, Aarhus Convention. Let them eat cake?

Simon Ricketts, 22 June 2019

Personal views, et cetera

Author: simonicity

Partner at boutique planning law firm, Town Legal LLP, but this blog represents my personal views only.

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