Court of Appeal takes the initiative on costs and Aarhus Convention




Richard Macrory


ENDS Report


England - Suttons Wharf

One of the challenges of the Aarhus Convention facing the UK is the provisions concerning access to justice which allow third parties to challenge environmental decisions made by public bodies before an independent court or other impartial body. The procedures must be "fair,, equitable, timely and not prohibitively expensive" but environment groups have argued that the heavy costs involved in judicial review applications - and the risk of paying the other side's costs if one loses - are contrary to Aarhus's spirit.

The principles concerning who has the standing to bring judicial review proceedings in the UK have been liberalised by the courts in recent years and there is no doubt they are Aarhus compliant. But environmental NGOs and lawyers continue to press the question of costs.

The government has shown little appetite to address this and legal aid has continued to be tightened. It may yet find itself being challenged as being in breach of the Convention, but the courts to their credit have shown more initiative.

In the 2005 Corner House case, the Court of Appeal provided new guidelines encouraging judges to be more generous in giving advance protective costs orders (PCOs) in public law litigation (ENDS Report 362, pp60-61). These would protect a party from having to pay the winning side's costs.

In a recent decision, the Court of Appeal continued to show itself alive to the costs problem facing third parties. R on the application of England v London Borough of Tower Hamlets (Court of Appeal (Civil Division) [2006] EWCA Civ 1742) concerned a challenge by a local resident to the demolition of an historic warehouse canopy to make way for a housing development.

Initially, the High Court had granted an interim injunction pending the judicial review application, but although leave was granted to apply for judicial review, the injunction was lifted. By the time the case came before the courts, the demolition was mostly complete.

One of the applicant's core arguments concerned the application of the EC Directive on environmental assessment. Under UK planning law, demolition of buildings - with some exceptions - does not require planning permission, but the applicant argued that this breached the EC Directive, which required a consent procedure for works involving demolition.

Lord Justice Carnwath noted that this was an interesting point, though he considered a complaint to the European Commission might be preferable to a challenge before the UK courts and a possibly lengthy reference to the European Court of Justice.

In the present case, now that the structure that the applicant was seeking to protect was gone, Lord Justice Carnwath was unclear as to his continuing interest: "The court decides issues between interested parties, not issues in the abstract. In the present circumstances, we think that it would be wholly disproportionate to throw further doubt over the progress of this development while such a point is litigated through the courts, possibly to the European Court.

The applicant had originally been funded by legal aid. But by the time the case reached the Court of Appeal, the applicant's barrister told the solicitor, environmental lawyer, Richard Buxton, that because the canopy had already been demolished, he could not support a further application for legal aid.

The solicitor informed the court he could not therefore obtain representation for the hearing. In the circumstances, the court unusually decided to hear him personally, though strictly he was not authorised as an advocate before the Court of Appeal.

One of the issues raised was whether the court could make a PCO, but no formal application had been made and the court felt it inappropriate to grant an order without hearing other parties who might be affected. Nevertheless, in rejecting the suggestion, Lord Justice Carnwath gave some potentially significant pointers to the future development of the use of PCOs

He said it was important to develop the means to make such an application without the process itself becoming an extra financially burden. He also noted that while the Court of Appeal in Corner House had signalled a more liberal approach, its guidelines had indicated PCOs were inappropriate where the applicant had a private interest in the case's outcome.

Although this ‘restrictive' approach had been subsequently applied by the Court of Appeal, it had also been questioned in a report last year by Lord Justice Kay, Litigation in the Public Interest.

Lord Justice Carnwath signalled his agreement with the criticisms. He went on to observe: "Different considerations may in any event apply to a case such as the present where Mr England's ‘interest' , as I understand it, is not a private interest but simply one he shares with the other members of his group in the protection of the environment." He considered the Aarhus Convention provisions may also be relevant in this context.

The court concluded by urging the Civil Procedure Rules Committee to review these questions in the light of the Kay Report's findings and recommendations.

The case was dismissed but with no order as to costs, and although the applicant lost, the decision indicated that at least some members of the Court of Appeal wish to see significant progress made in reducing the financial burden on applicants involved in judicial review applications.

Richard Macrory is professor of environmental law, University College, London

Ends Report 385 / February 2007