Proposed changes to the Aarhus Convention

The Aarhus Convention marks a cornerstone of environmental governance in the UK as it ensures the public’s right to access environmental information, participate in decision making and access justice in environmental matters. The Aarhus Convention Compliance Committee (ACCC) is the monitoring body for the 47 parties of the Convention and has identified circumstances where the UK has not been non-compliant with the Convention. In order to respond, the Government submitted a call for evidence which closed on  9 December 2024. This article highlights key areas identified to require reform.

Environmental Cost Protection Regime (ECPR)

In England and Wales, the ECPR is addressed through the Civil Procedure Rules (CPR - specifically Part 46). For those claims brought by members of the public by judicial or statutory review which challenge the legality of any decision of a public body within the scope of Article 9(1), 9(2) or 9(3) of the 1998 UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, the maximum costs that a court can order following an unsuccessful judicial review or statutory review challenge are as follows: 

• £5,000 for individual claimants
• £10,000 for all other claimants
• £35,000 for defendants’ liability. 

Challenges by unincorporated associations are common. These are groups of individuals that come together for, or act in support of a purpose, but without having a separate legal personality. Such groups rarely benefit from formalised constitutional documents, membership structures or bank accounts. It is therefore currently unclear whether these groups should constitute as a group or individual for cost purposes. The Government have suggested that the default cap for unincorporated associations should be clearly outlined in the CPR and align with that for non-individual claimants (£10,000). The higher cost cap would assist in striking a fairer balance between protecting claimants and preventing frivolous or excessive litigation as well as reducing the financial burden on public bodies defending environmental challenges. 

Financial Resources

When starting an Aarhus Convention Claim, claimants must serve a schedule of their financial resources (verified by a statement of truth) outlining their assets, liabilities and income as well as any financial support they have received or are likely to receive in connection with the claim. The Call for Evidence outlines that this may act as a barrier to access to justice as claimants may fear that their personal financial circumstances will be discussed in open court. Therefore, the Government are considering whether this requirement should be removed. 

Multiple claimants

CPR 46.26(4) provides that the cost protections in Aarhus Convention claims with multiple claimants or multiple defendants apply in relation to each such claimant or defendant individually and may not be exceeded, irrespective of the number of receiving parties. The Government are considering whether a separate ‘shared claimant’ default costs cap should apply in certain circumstances (i.e. where a second claimant raises the same legal argument). The increase in the cost caps would reflect the increased administrative costs and complexities incurred in dealing with multiple claimants. 

Time limits 

Separate time limits apply for the bringing of a claim for judicial review related to a planning decision under the planning acts and statutory review challenges (e.g. under section 288 of the Town and Country Planning Act). Generally, in respect of the former, a third party must bring a judicial review claim “promptly” and within six weeks from the date when the grounds first arose (i.e. the grant of planning permission). Strict deadlines provide certainty for developers, landowners and promoters by protecting them from sporadic challenges to their consents. 

However, in the Call of Evidence, the Government are seeking views on whether it would be beneficial to amend the time limits so that it starts from when a decision is made public rather than when it was taken. In order to adopt this, the Government are considering either 1) defining ‘when a decision is made public’ in the CPR or statutory instruments or 2) leaving this open to the Court to establish a legal test. The aim is to provide affected parties with as much opportunity to make a claim. Given the bureaucracy, administrative pressures and general under-resourcing within local planning authorities, delays in publication of decisions could lead to delays in decisions being challenge free. This would also have impacts on contracts conditional upon a challenge free permission.

Conclusion

The proposed changes to the Aarhus Convention could reshape the legal landscape of bringing claims. By raising cost caps, the reforms may reduce the volume of legal challenges brought forward by individuals or unincorporated associations, streamlining the planning and development process. However, any uncertainty as to when permissions are “challenge free” would be extremely unhelpful for owners and developers. Any amends to the Aarhus Convention would need to strike a balance between preserving access to justice while ensuring certainty for decision makers and other interested parties.