Biggart Baillie Solicitors

Environmental Challenges - Issues Ahead?

Wednesday, January 26, 2011

by Murray Shaw

Updated January 2011

Aarhus Convention

The United Kingdom is a signatory to the Aarhus Convention.  This deals with a number of issues of which probably the most significant is “access to environmental justice”.  It is intended to give rights to members of the public including environmental organisations to challenge the legality of decisions by public authorities to grant consents for a wide range of activities.  Article 9(4) of the Convention requires that procedures for rights to access must “provide adequate and effective remedies including injunctive relief as appropriate and be fair, equitable, timely and not prohibitively expensive”.  The provisions of the Aarhus Convention have been made the subject of specific provisions in European Law as a result of amendments made to an EIA Directive of 1985 on the assessment of the effects of certain public and private projects on the environment.  As however the UK is a signatory to the Aarhus Convention, UK courts have an obligation to apply UK law in a way consistent with the Convention.

The significance and effect of the Aarhus Convention has been before the Scottish Courts.  In the decision of Lady Smith issued on 6 January 2010 in connection with the challenge by Mary Forbes to Aberdeenshire Council and Trump International Golf Links (relating to the new golf course to be constructed by the Trump Organisation in Aberdeenshire), great reliance was placed by the Senior Council for Mrs Forbes on the Aarhus Convention.  That reliance was unsuccessful (at the interim stage) though other issues in that case (such as Mrs Forbes’ title and interest to bring proceedings) were probably more significant.  While the challenge has been dropped by Mrs Forbes there are outstanding issues in relation to expenses where the effect of the Convention may yet be relevant.

“Ensuring Access to Environmental Justice in England and Wales” Report

Compliance with the Aarhus Convention was also considered in a report produced in England entitled “Ensuring Access to Environment Justice in England and Wales” which came out in May 2008.  This report was the work of a Committee chaired by Mr Justice Sullivan as he then was.  The report made reference to the fact that certainly in England compliance with the Convention was largely dependent on existing judicial review procedures to fulfil the requirements of the legislation.  In that context reference was made to the fact that in England there is a fairly liberal approach taken to the question of standing to bring judicial review proceedings in environmental cases.  In Scotland that may not be the same and a number of cases in Scotland recently have been concerned about title and interest to bring applications before the Scottish Courts (the equivalent of standing).  A number of challenges failed because the petitioners were unable to show that they had either title or interest to proceed. 

The Sullivan report also looked at other issues including whether it was appropriate for unsuccessful parties only to bear their own costs and indeed whether such arrangements were enough to ensure compliance with the Aarhus Convention.  The report seems to suggest this is an issue that needed consideration.  Reference was also made to the fact that the Aarhus Convention requires timely procedures and equally that that rules that the procedures should not be prohibitively expensive do not just apply to judicial review applications but also provisions for interim injunction.  In England to obtain an interim injunction an undertaking in damages may be necessary and the suggestion was that that should not be insisted upon in cases falling within the ambit of the Aarhus Convention. 

Specifically the report looked at protective costs orders.   A protective cost order is an order made at an early stage in litigation where the court, if certain criteria are met, can limit the extent to which the applicant will be liable in expenses if unsuccessful.  The normal corollary of such an order is to cap the amount of expenses the applicant will be able to recover from the other parties if and in the event the applicant is successful.  The report suggested that the principles applicable (set out in the case referred to generally referred to as the Corner House case) might need to be reworked. 

Scottish position

The position in Scotland is not the same in a number of respects.  The position in relation to legal aid (which the Sullivan report referred to) is different as is the position on title and interest to sue (as noted above).  There is no recognised procedure in Scotland where in environmental cases the normal order on costs (to the effect the unsuccessful party pay) will not apply.  There is no specific requirement in Scotland to provide an undertaking in damages in relation to an interdict.  While in Scotland we do have protective costs orders they are fairly novel.  The first one granted was granted by Lady Dorrian on 20 January 2010 in a case involving a Mr McGinty who was challenging the Scottish Government over the National Planning Framework [Click here to view Protective Costs in the Scottish Court article].

Guidance from English Courts

The issue of a protective costs order has recently been considered in some detail by the English courts in the context of a case which raises issues which fall within the scope of the Aarhus Convention.  Lord Justice Sullivan (as he now is) was one of the judges in the case – the Queen on the application of Garner v Elmbridge Borough Council (29 July 2010). 

The case concerned an application for planning permission for a redevelopment of Hampton Court Station which is on the opposite bank of the River Thames from Hampton Court Palace a scheduled monument and Grade 1 (Grade A in Scotland) listed building.  The applicant was not a local resident though he did have a long standing interest in Hampton Court Palace.  In an application for judicial review in respect of the planning permission granted (pursued on three separate grounds) a protective costs order was sought.  This was refused at first instance.  The judge was of the view that the case was not one of general public importance and equally that he was not satisfied about the financial grounds for making an order. 

When the case came before the Court of Appeal an order was made – though interestingly enough two other parties had been joined to support the applicant, one of whom appears to have had significant assets. 

In considering matters Lord Justice Sullivan (who wrote the decision) looked at the normal criteria which apply in making a protective costs order and suggested that these needed to be modified in the context of a case which falls within the ambit of the Aarhus Convention.  In particular he considered that the general public importance/public interest issues (which were relevant criteria in terms of the Corner House case) were not criteria which should be considered and applied in the same way in a case falling within the Aarhus Convention.  In effect in “Aarhus cases” he did not see these criteria as being relevant. 

He then looked specifically at the position in relation to whether or not proceedings would be “prohibitively expensive” another key criteria for making a protective costs order.  Apart from the public interest and general importance criteria which he indicated were not relevant in these cases, the other criteria from the Corner House decision are:-

1. that the applicant had no public interest in the outcome of the case (that was the position in the Elmbridge case);
2. that if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing (again that was the position of the Elmbridge case);
3. having regard to the financial resources of the applicant and the amount of costs that are likely to be involved it is fair and just to make the order.

Lord Justice Sullivan spent some time considering this last issue and in particular whether or not the test was an objective one measured by reference to the ability of an ordinary member of the public to meet the liability of costs or what he termed the subjective one – one that had regard to the means of the particular claimant.  At the time of the decision there was a case due to come before the Supreme Court (see below).  It was not clear when that decision would become available.  Accordingly Lord Justice Sullivan felt he had to come to a view in the case before him.  It was fairly clear that Lord Justice Sullivan was tending towards an objective test albeit such a test might have to be applied with an element of subjectivity.  In his judgement he made the following observation:-

 “As a matter of common sense most “ordinary” members of the public, and very many who are more fortunately placed, would be deterred from proceeding by a potential costs liability including VAT that totalled well over double the gross national average wage for a full time employee”. 

Taking that approach it is very likely that in reality Lord Justice Sullivan sees the test as largely objective.  He did however refer to another issue which might arise out of this objective approach, namely that if there required to be an intrusive investigation into the means of an applicant in a public forum, that might well dissuade an interested party from bringing a case.  Specifically he said “the more intrusive the investigation into the means of those who seek PCOs and the more detail that is required of them, the more likely it is that there will be a chilling effect on the willingness of ordinary members of the public (who need the protection that a PCO would afford) to challenge the lawfulness of environmental decisions”.

Against that background Lord Justice Sullivan made an order capping the applicant’s liability for costs at £5,000. 

He then had to consider whether there should be a reciprocal costs cap – in other words if the party bringing the challenge was successful there should be a limit on the costs which that party might recover.  He did accept that the application of such a reciprocal costs cap was not inconsistent with the Aarhus Convention though observed that if there were such caps regularly applied that might well have an effect upon the ability of applicants to find lawyers prepared to take the case or the applicants would have to subsidise the costs of their lawyers (because, for example, the level of recovery might not be sufficient to pay for a Q.C).  Notwithstanding this he decided that a cap of £35,000 was appropriate being a figure which he was fair and proportionate in the circumstances and consistent with a review process that should not be prohibitively expensive (though the figures quoted would suggest it was). 

Obviously any party who is subject to such a challenge will incur costs.  There are clearly issues about protecting their position in relation to challenges which may be unjustified while reflecting the principles which underpin the Aarhus Convention.

In his 2008 report it was fairly clear that Lord Justice Sullivan and his colleagues had serious concerns about compliance in the UK (at least in England and Wales) with the Aarhus Convention.  That view appears to have been justified as the Aarhus Convention Compliance Committee in October 2010 warned that in their view the measures available in the UK were not such as to ensure compliance with the Convention – a view the European Commission seems to share.

The issues arising under the Convention were considered by the Supreme Court in December – see R (on the application of Edwards) v Environment Agency.  This case concerned technical issues about the taxation process in England.  Having dealt with these the court turned to the issue of compliance with the Convention noting that there were different approaches to how the Convention should be applied.  The Supreme Court also noted that the approach proposed by L.J. Jackson in his report on civil costs (from 2009) was different from the approach advocated by L J Sullivan in an update of his report from 2008 published in August 2010.  Accordingly the Supreme Court decided to refer certain questions to the European Court of Justice with a view to clarifying what is necessary for UK law to comply.

Scottish perspective

From a Scottish perspective there may yet be issues to be resolved.  The Scottish Courts do take a different approach to issues of title and interest and one that does not appear to be quite as relaxed as that in England as referred to in the Sullivan report.  In interdict cases there are no requirements for an undertaking in damages, an issue of concern in England.  However protective costs orders are novel in Scotland and in fact the only reported case where one has been made proceeded to a significant extent on the basis of concessions made by the Scottish Government.  The criteria however are similar to the Corner House case.  It may be therefore that the criteria applied in Scotland will need to be refined in a way similar to that suggested by Lord Justice Sullivan in the Elmbridge case if Scotland is to comply with the Aarhus Convention.  What changes may need to be made may have to be determined in light of the reference now made to Europe.