Court of Appeal clarifies scope of claims which benefit from Aarhus Costs Protection
The Court of Appeal, on Monday, gave judgment in HM Treasury v. Global Feedback Limited, an appeal raising the issue of what public law claims benefit from Aarhus Costs Protection under the Civil Procedure Rules.
Lord Justice Holgate, writing for the Court, held that the nub of the issue is not whether the claim raises environmental concerns or general public law duties which might (in their observance or breach) give rise to an environmental impacts, but turns on whether the claim alleges that the decision which is challenged “contravene[s] provisions of its national law relating to the environment” (per Article 9(3) of the Aarhus Convention). Thus, the Judgment holds that unless the claim alleges breach of a legal provision that requires taking account of some environmental consideration, that law will not be deemed to relate to “national law relating to the environment.”
The judgment goes into some detail in analysing the Convention and reaches the conclusion that the phrase “relating to” requires a strong, rather than loose connection. It also concludes that some previous decisions giving claims Aarhus status were wrongly decided by the High Court and narrows the existing understanding of the scope of claims which qualify for Aarhus protection to some degree (but as below, most claimants should not fret, a wide range of cases remain covered, certainly including the large majority of planning claims).
The appeal arises out of a claim by Global Feedback that in making the “Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023”, which gave effect to a free trade agreement (FTA) between the UK and Australia, the UK Government decisionmakers had failed to take into account a substantial increase in greenhouse gas emissions from the production of cattle meat, because the FTA would mean higher-emission (but lower cost) Australian beef production would increase to serve the UK market. The Court held that breaches of the 2023 Regulations and the Taxation (Cross-Border Trade) Act 2018 alleged by the claimant did not amount to an alleged contravention of national law relating to the environment.
Takeaways for environmental claimants
Certainly, this decision will have ramifications for certain public law claims which are brought for environmental reasons in an important (but limited) set of circumstances: primarily where there is some debate whether the law at issue requires specific consideration of environmental factors and in claims where the motivation for the claim is environmental, but the statute relates to another subject entirely (such as here, in respect of trade).
However, it should be noted that the large majority of Aarhus claims should be unaffected. Previous judgments have indicated that almost all planning challenges (judicial review and statutory review) will qualify, and many other areas of relevant national legislation clearly involve environmental factors. But claimants will need to be careful to draw the direct connections for the Courts so as to avoid unnecessary ‘satellite litigation’ on this point and to ensure that the environmental connection is clear to the Court when filing claims.
Indeed, the judgment may strengthen some claimant’s hands by setting out a clear analytical framework under which claims qualify. For instance, in the context of Town and Village Green-related claims, the Government has previously made arguments that certain claims are not eligible – some of which, at least, are likely no longer tenable. Similarly in the context of public rights of way, highways, commons legislation, and many other areas in which such claims are brought there will be explicit consideration of environmental factors. That being said, this judgment certainly may make it prohibitively expensive to bring certain environmentally-motivated claims which involve only breaches of non-environmental laws and, of course may cause concern for some claimants. Even where the risk of cost protection being denied is slight, this can dissuade meritorious claims. Claimants will need to consider each case individually with their legal advisors.
It is not yet known whether permission will be sought to appeal to the Supreme Court.
The full judgment by the Court of Appeal can be found here. The case is: HM Treasury & Secretary of State for Business and Trade v Global Feedback Ltd (WWF intervening); [2025] EWCA Civ 624.
Csongor Szij contributed to this blog with useful thoughts and research. Views, however, entirely those of the author.
