UK taken to court over the “prohibitive expense” of challenges to environmental projects




Philip Reynolds






The UK is being taken to the European Union Court of Justice (ECJ) over the high costs of challenging environmental project decisions, including waste facilities.

According to the European Commission (EC), there is concern that the potential costs of losing legal actions is prohibiting cases being brought from individuals and non-government organisations in the first place. The case was referred to the EU Court of Justice on the recommendation of Environment Commissioner Janez Potočnik.

The action concerns challenges to projects covered by the Environmental Impact Assessment directive (EIA) that require an EIA to be undertaken in support of the planning application.

Aaron & Partners LLP associate Claire Petricca-Riding told MRW: "At present, the EC considers that access to justice for environmental matters in the UK is falling short of what is required - namely, that access to justice should be fair, equitable, timely and not prohibitively expensive. Any specific projects being challenged would need to be caught by the EIA directive. Waste facilities of a particular size, including incinerators, are among the projects covered.

"An EIA has to be undertaken in support of the planning application, and then considered by the local planning authority. This gives campaign groups, private individuals and non-governmental organisations the right to make a challenge based on this information. If the local planning authority grants the application, the only opportunity objectors would have to challenge the decision would be to bring a judicial review challenge." Petricca-Riding explained that costs for claimants are "prohibitively expensive for ordinary private individuals" at present, and that it is likely the European Court of Justice will find in favour of the Commission.

She added: "It is likely the ECJ will agree with the EC. This will force the government to take steps to address the UK's shortcomings. There has been little open discussion about how this will be achieved. However, a range of measures can be considered. One example would be a determination that each party should bear its own costs.

"Alternatively, the Government could set up a publicly funded department to make it easier for challenges to be brought for legitimate environmental claims. Such a department, however, would only apply to potentially polluting projects covered by the EIA or the integrated pollution prevention and control directive."

Environmental solicitor Richard Buxton, who owns his own firm, told MRW: "The Government was supposed to introduce rules on this point by 25 June 2005 at the latest and here we are nearly six years on and the Government has not transposed these rules, so the European Commission has been very lenient in waiting for six years.

"It would make life so much simpler for everyone, including those who construct waste incinerators if one didn't have these protracted arguments about costs - for example in a lot of our cases there's a huge amount of time and delay in the legal proceedings taken up by costs, it is a complete waste of everybody's time."
A Defra spokesman said: "The Government takes its obligation to comply with EU and international commitments seriously. We are considering our response."

Philip Reynolds
Reporter, MRW