Summary and implications
The Court of Appeal has upheld the High Court's ruling that the Aarhus costs cap protection applies to local authorities.
Aarhus Convention claims costs cap
The Civil Procedure Rules (CPR) provide that, for Aarhus Convention claims (claims which relate to the environment including environmental impact assessment and habitat regulations claims), a claimant cannot be ordered to pay over £5,000 (where the claimant is an individual), or £10,000 (for all other claimants), as liability for the other side's costs.
By way of background the Aarhus Convention has been ratified by the European Union and the United Kingdom and contains three pillars:
- Access to environmental information held by public authorities.
- Participation in environmental decision-making by the public.
- Access to justice in environmental matters, which includes procedures to challenge decisions in a manner which is timely and not prohibitively expensive.
The Court of Appeal's ruling
Following HS2 Action Alliance's (HS2AA) and London Borough of Hillingdon's (LB Hillingdon) judicial review of the Secretary of State for Transport's decision to make the safeguarding directions for Phase 1 of the HS2 project without carrying out a strategic environmental assessment (SEA), the High Court held that the Aarhus costs cap applied to local authorities.
The Secretary of State, in appealing against that High Court costs ruling, sought to argue that the benefit of the costs cap was dependent on the claimant being a "member of the public concerned" from articles 2 and 9 of the Aarhus Convention, and that LB Hillingdon instead came within a separate mutually exclusive definition of a "public authority" in article 2.
The Court of Appeal unanimously held that, once it has been resolved that the claim is an Aarhus claim because of the nature of the decision, act or omission subject of the claim, further recourse to the Aarhus Convention is unnecessary. The costs liability of a party to that claim is dealt with under the CPR. Accordingly the Court of Appeal stated "it is neither necessary nor appropriate to refer to the Aarhus Convention in order to place a gloss upon the ordinary and natural meaning of the word 'claimant'" (per Lord Justice Sullivan).
Limiting Aarhus cost caps by amending the CPR
The background to the appeal is that the Ministry of Justice (MoJ) appears to wish to amend the CPR so as to exclude local authorities from the benefit of the costs cap. The costs cap was included in the CPR in 2013 following a series of decisions in the UK and the European Court of Justice requiring that challenges to environmental decisions must not be prohibitively expensive. There is a longstanding concern in the European Commission and United Nations Aarhus Convention Compliance Committee (Compliance Committee) about the costs of bringing environmental claims in the UK courts.
The MoJ's ability to make this amendment depends on the interpretation of the terms "public authority" and "public concerned" in articles 2 and 9 of the Aarhus Convention, and whether local authorities can be part of the "public concerned" as well as a "public authority".
This issue is due to be determined later this year by the Compliance Committee following a communication made to it by LB Hillingdon and HS2AA against the UK and European Commission following the Supreme Court's ruling in January 2014 that the decision to proceed with the HS2 project without carrying out an SEA was not unlawful. On that basis, the Court of Appeal decided it was sensible to let the Compliance Committee complete its determination of this issue, rather than deciding for itself.
Because of this, the MoJ cannot currently amend the CPR to exclude local authorities from the costs cap without risking being in breach of the Aarhus Convention.
Conclusion
Local authorities still have the right of the Aarhus costs cap for the moment. However, the Government is concerned about the number of judicial reviews being made to planning and infrastructure decisions and wants to remove the £10,000 costs cap that applies to local authorities. The definition of an Aarhus claim is relatively broad, and so if local authorities, who have the expertise to bring challenges, do not have the benefit of this costs cap, there is an argument that this may dissuade them from submitting a challenge.
Whilst the Government's view is understandable this should be balanced against the need to have independent scrutiny of decision-making at a cost level that is not prohibitive. It will be interesting to see the approach that the Compliance Committee adopts as it will have important ramifications for environmental decision-making for individuals, local authorities, parish councils and community groups.
Nabarro is advising LB Hillingdon and HS2AA on the communications to the Compliance Committee in addition to advising on the Court of Appeal case.
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