Is it time for the UK to leave the Aarhus Convention?

But could the judicial review process and an international treaty be standing in the way of getting Britain back to growth and building? The government thinks it might be – and it is reported that Lord Banner KC has been tasked to look into (and solve) the problems arising from the Aarhus Convention.

The Aarhus Convention is an international environmental treaty initially signed in 1998 and since ratified by 47 countries, including the UK.

The central tenets of the Convention are the obligations on the participating countries to ensure their citizens have access to environmental information; can participate in environmental decision-making; and can access ‘environmental justice’. It is this latter principle that is causing the current concern.

Article 9 sets out the scope of the environmental justice the convention is seeking to protect and states that challenges against decisions that fall within that scope must be available via a procedure which is not “prohibitively expensive”.

The consequence of Article 9 is that the UK has had to take active steps to limit the costs that may be incurred by litigants in a range of environmental law cases, and so commonly protection is available for individuals, NGOs, public bodies and campaign groups from what can often be the substantial costs of litigation.

Specifically, Civil Procedure Rule 46.26 sets out that a claimant may not be ordered to pay costs exceeding the amounts of £5,000 for an individual and £10,000 in all other cases.

The costs protection for a potential claimant challenging an environmental decision within the ambit of the Convention is significant, given the default rule in English litigation that the loser should pay the winner’s costs.

Costs in a typical judicial review claim are normally far higher than £5,000 or £10,000 – so this costs protection provides incentive and encouragement for challengers who may otherwise be discouraged by the risk of having to foot a large bill for the other side’s legal costs, should their challenge fail.

The effect of this is twofold. First, claimants can bring genuine Convention claims safe in the knowledge of protection from costs, regardless of merit. Second, claimants can (and often do) state their claim is a ‘Convention claim’, even if the substantive issue is not normally one that would be classed as ‘environmental’.

Judicial review challenges mostly come in the form of a claim against the grant of planning permission by the local planning authority. Such claims can often be led by individuals or local action groups, who commonly form a so-called ‘unincorporated association’.

Such claimants frequently choose to state that their claim is a Convention claim (which is a simple matter of ticking a box in the form filed when the claim is started). This is commonly done, even where the specific planning permission is not obviously environmental in nature: for example, applications for new homes (including social housing) or a new school. 

Other than the fact that such new buildings will be built, it is not immediately clear what the environmental element of such applications is that would warrant protection from the Convention (and to ensure that the claimants are not prevented from seeking ‘environmental justice’).

In principle, the election to seek Aarhus protection is challengeable (and defendants can indicate if they wish to challenge when they acknowledge service of the claim). However, the reality is that this would often lead to time-consuming and costly satellite litigation, causing further delay, which the local planning authority and the developer are keen to avoid. 

For that reason alone, the election often goes unchallenged. This, in turn, encourages claimants to keep their challenges alive for as long as possible, regardless of the merits, which inevitably delays the start of development while developers wait until they have a ‘clean’ permission. 

While it is sometimes argued that the judicial review process already has safeguards against unmeritorious claims, given that all claims must obtain permission from the court before they can proceed, this is a reasonably low bar. 

Claimants simply need to show their claim is ‘arguable’ to be allowed to take it to a full hearing. Consequently, certain political voices are now calling for change.

The Aarhus Convention is criticised for preventing the swift and effective disposal of environmental challenges. Simply removing the costs cap in an effort to disincentive claimants is not, however, straightforward – for example, it could not be done while at the same time complying with international obligations under the Convention. Lord Banner KC has already stated that there is no case for amending the cost capping rules “for so long as” the UK remains a Convention member.

The political challenge for the government, committed to the rule of law, to grow the economy, and in the face of global warming, is clear: either act in breach of the Convention or leave it. However, the Convention enshrines environmental rights, and the government is simultaneously committed to its 2050 Net Zero Strategy. The rise in support for the Green Party, which has publicly stated that its membership now exceeds the Conservatives, will not be lost on the government either.

In our view, leaving the Convention is unlikely to be a panacea for the planning system and the slow pace of development: the costs-capping regime facilitated by the Convention, whilst generous, is not exclusive – the courts already have powers to implement costs-capping orders.

If claimants lost the automatic protection provided by the Convention, they would most likely still seek such alternative protection from the court. Any such applications for relief are likely to go unchallenged for the same reasons.

Whilst the political rhetoric may be attractive, throwing the baby out with the bathwater by leaving the Convention may, in fact, result in very little practical benefit to developers.

Michael Rhode and Sam Robinson are lawyers at Trowers & Hamlins who specialise in commercial litigation and are frequently instructed in judicial review claims.