Castle Debate 13 March 2017 The Cost of Achieving Environmental - PowerPoint PPT Presentation

� Castle Debate � 13 March 2017 The Cost of Achieving Environmental Justice Richard Wald Barrister

The Lorax, Dr Seuss (1971)

Aarhus, Denmark

The Aarhus Convention • The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. • It entered into force on 30 October 2001. • As of March 2014, it had 47 parties, 46 states and the EU. • All of the ratifying states are in Europe and Central Asia. • The EU and UK both ratified the Aarhus Convention in February 2005 and became parties in May 2005.

Article 9 of the Aarhus Convention • Art. 9(1) – access to review procedure for any person whose request for environmental information has been ignored, refused or inadequately answered • Art. 9(2) – access to review procedure for members of the public concerned to challenge substantive or procedural legality of decisions, acts or omissions subject to public participation provisions of art. 6 • Art. 9(3) – access to administrative or judicial procedures for members of the public to challenge other acts or omissions which contravene provisions of national law relating to the environment • Art. 9(4) – these procedures shall provide adequate and effective remedies, and be fair, equitable, timely and not prohibitively expensive.

Aarhus and Costs in the UK R(Corner House Research) v SSTI [2005] EWCA Civ 192 PCOs to be awarded only in exceptional circumstances and according to the principles set out by the CoA in that case R(Buglife) v Thurrock Thames Gateway Development Corp. [2008] EWCA Civ 1209 [17-18]: “ there should be no difference in principle between the approach to PCOs in cases which raise environmental issues and the approach in cases which raise other serious issues and vice versa ” Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, per Carnwath LJ: “…The UK may be vulnerable to action by the Commission to enforce the Community's own obligations as a party to the treaty. However, from the point of view of a domestic judge, it seems to us (as the DEFRA statement suggests) that the principles of the Convention are at the most something to be taken into account in resolving ambiguities or exercising discretions (along with other discretionary factors including fairness to the defendant ).” [44]

Aarhus and Costs in the UK cont. • R(Garner) v Elmbridge BC [2010] EWCA 1006, per Sullivan LJ at [32]: “… the Court of Appeal recognised in Morgan that some more specific modification of our domestic costs rules may be required .” • 24/08/11 - Decision of the Aarhus Compliance Committee ACCC/C/2008/33 that the UK’s regime for costs in Aarhus environmental cases was not compliant with Aarhus • 19/10/11 - UK Government’s Consultation Paper CP16/11 Costs Protection for Litigants in Environmental Judicial Review Claims • 01/04/13 - CPR 45.41 (aka Environmental Costs Protection Regime or “ECPR”)

CPR 45.41 “VII COSTS LIMITS IN AARHUS CONVENTION CLAIMS “VII COSTS LIMITS IN AARHUS CONVENTION CLAIMS Scope and interpretation Scope and interpretation 45.41 45.41 (1) This Section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims. (2) In this Section, ‘Aarhus Convention claim’ means a claim for judicial review of a decision, act or omission all or part of which is subject to the provisions of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998, including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject.”

Other Environmental Claims SSCLG v Venn [2014] EWCA Civ 1539 Question for the Court of Appeal: could the costs protection afforded to environmental judicial reviews be extended to other forms of environmental claim (here s.288 of the Town and Country Planning Act 1990): Answer: A reluctant no (although consultation ongoing on Aarhus changes) “…it is now clear that the costs protection regime introduced by CPR 45.41 is not Aarhus compliant insofar as it is confined to applications for judicial review, and excludes statutory appeals and applications. A costs regime for environmental cases falling within Aarhus under which costs protection depends not on the nature of the environmental decision or the legal principles upon which it may be challenged, but upon the identity of the decision- taker, is systemically flawed in terms of Aarhus Compliance” (per Sullivan LJ [34])

Scope of Aarhus in UK Environmental Law Austin v Miller Argent [2014] EWCA Civ 1012 Private nuisance claims capable of falling within Art 9(3) but Art 9(4) requirement is no more than a factor to be taken in to account R(HS2 Action Alliance & Anr) v SSfT & Anr . [2015] EWCA Civ 203 Aarhus costs protection can apply to public authorities (nature of the claim, rather than the claimant is the key) R (Harris) v Broads Authority [2016] EWHC 799 (Admin) and R (Birchall Gardens LLP, Tarmac Trading Limited) v Hertfordshire County Council v BP Mitchell Limited, Welwyn Hatfield Borough Council, East Hertfordshire District Council [2016] EWHC 2794 (Admin) Claimants in multi-claimant action subject to shared or aggregated Aarhus cost caps (per Holgate J in both cases)

HMG ECPR Consultation Following Case C-530/11 EC v UK [2014] 3 WLR 853, HMG proposed and (from 17.9.15 to 10.12.15) consulted on the following changes to the ECPR: • extend ECPR to EU environmental statutory reviews • allow hybrid regime so financial caps varied • extension of PCOs to CoA and SC as of right • level playing field for Defs’ challenges to PCO claims • clarify e.g. ECPR is due to Aarhus/EU law, criteria for x-undertakings in damages • November 2016 MoJ responded, accepting most proposals and seeking further clarification on some.

Aarhus Compliance Committee Report • Communication to Aarhus Compliance Committee ACCC/C/2013/85 & ACCC/C/ 2013/86 published 1.12.16 • Private nuisance proceedings are judicial procedures within Art. 9(3) • Test is whether the nuisance affects “environment” • Motivation, no.’s affected and public interest all irrelevant • Other administrative and judicial procedures e.g. complaint to / JR of regulators not effective alternative remedies and not a “challenge” • Statutory nuisance not always an alternative to private nuisance so likewise not an effective alternative remedy • Private nuisance costs typically >£100k so UK had breached Art. 9(3) • Austin v Miller now requires reconsideration and Mrs Austin is currently claiming just satisfaction in the ECtHR

Rule 8(5) Civil Procedure (Amendment) Rules 2017 • Came into force on 28 02 17, largely implementing HMG’s Nov 2016 proposals. Key changes include: (i) “environmental matters” replaced with claims within the scope of the Aarhus Convention (ii) ECPR includes EN appeals but not s288’s or other stat appeals (iii) ECPR now only open to “members of the public” (iv) Schedules of claimant’s resources incl. any financial support (v) Defendant indemnity cost penalties abolished (vi) Multiple claimants now each liable for separate caps (vii) Under new r.45.44 the court may vary or remove the r.45.43 amounts

Rule 8(5) Civil Procedure (Amendment) Rules 2017 • New rules criticised by HoL 2ndary Legislation Scrutiny Committee: “ The MoJ has not provided a convincing case for changing from the previous standardised system of cost capping, which was well understood, to this more complex system which appears to have significant potential to increase both the costs for public administration and the uncapped litigation costs of the claimant.”

Rule 8(5) Civil Procedure (Amendment) Rules 2017 • 24 02 17 ACCC published a report expressing concern about the operation in E&W of costs capping in environmental cases: “with the exception of the proposal to broaden the scope of “Aarhus claims” to include statutory appeals falling within Art 9, para 2 of the Convention all proposed amendments would increase rather than decrease uncertainty and risk of prohibitive costs for claimants.”