Aarhus under scrutiny: but how concerned do those dealing with planning challenges need to be?

A Court of Appeal judgment handed down this week has got some feeling anxious about the future application of Aarhus costs cap orders. This comes at an interesting time when we are currently awaiting the Government’s response to a consultation on expanding the application of the Aarhus Convention. Importantly for those of us working on planning challenges, this judgment provides a distinction between the current case and Venn, highlighting that cases can benefit from Aarhus costs protection providing the challenge concerns national law or policy directly relating to the environment. 

In this instance, Global Feedback Ltd (“GFL”), an environmental charity, had brought judicial review proceedings against regulations made by HM Treasury and the Secretary of State for Business and Trade implementing tariff preferences on Australian imports, arguing the Government had failed to assess the nature and extent of carbon leakage between the UK and Australia. An application was made for the Aarhus costs cap to apply, which was challenged. The judicial review had been stayed pending the outcome of this appeal on Aarhus costs protection. 

Article 9(3) of the Aarhus Convention requires members of the public to “have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”. 

The primary legislation under scrutiny in this judicial review is the Taxation (Cross-Border Trade) Act 2018 (“the 2018 Act”) which gave affect to the regulations under challenge. GFL submitted that the claim did fall within Article 9(3) because each ground of challenge related to the environment. However, the Appellant argued that the fact this legislation may have an effect on economic activity and therefore emissions does not alter the nature of the legislation so that it can be treated as “national law relating to the environment” (as required for Article 9(3)).

The Court of Appeal allowed the appeal, finding that “what matters is whether the purpose of the national law that has allegedly been contravened is to protect or regulate the environment, not, whether the decision being challenged has an effect on, or some connection with, the environment”. It was said the purpose of the 2018 Act is to regulate customs duty and the importation of goods, not the environment. 

However, the Court did distinguish this decision from Venn v Seretary of Sate for Communities and Local Government [2015] 1 WLR 2328, a challenge to a planning inspector’s decision to grant planning permission for the erection of a dwelling which was argued was in contravention of s.70(2) of the TCPA 1990.  

The Court of Appeal said of the current challenge that “Unlike, the statutory matrix in Venn, there is nothing to suggest that Parliament treated the general language of s.28 [of the 2018 Act] as imposing a requirement, or providing a mechanism, for the protection or regulation of the environment”. The most pertinent paragraphs on this point are copied in full below (with some emphasis added): 

“103. Given that a great deal of the UK's environmental protection is provided in this way, it would deprive Art.9(3) of much of its effect if a distinction were to be drawn between policies which do relate to the environment and the law which does not directly do so, but requires them to be taken into account in accordance with s.70(2) and s.38(6). This combination of law and policy, with the law requiring that policy be prepared, taken into account and in some instances followed, comprises a "national law relating to the environment" (Venn [17]). Accordingly, a claim that a decision-maker had failed to comply with a legal provision requiring him to take into account or apply a policy for the protection of the environment falls within Art.9(3). The policy forms part of that national legal framework relating to the environment.

104. Properly read, there is nothing in Venn which gives a broad meaning to the phrase "relating to". Instead "provisions of national law relating to the environment" can include a policy which that national law requires to be taken into account, in so far as the policy is for the protection (or regulation) of the environment.

105. Sullivan LJ stated at [11] that the concept of "environmental information" and hence "environment" in the Aarhus Convention is "arguably broad enough" to cover most, if not all, planning issues. But that is not the same thing as saying that a "challenge" to a particular decision, act, or omission falls within Art.9(3). To engage Art.9(3), a challenge must allege a contravention of a legal provision relating to the environment, that is for the protection (or regulation) of the environment. The clear implication of Venn is that an allegation that a decision-maker has failed to take into account a material consideration in breach of s.70(2) of the TCPA 1990 without more does not fall within Art.9(3). Section 70(2) is not itself a legal provision "relating to the environment". Such a claim does not fall within Art.9(3) unless, in addition, the material consideration left out of account was a policy (or perhaps some other measure) for the protection (or regulation) of the environment. What Sullivan LJ envisaged was that the policies applicable to most, if not all, planning applications will include some policies for the protection (or regulation) of the environment.

…

139. An essential part of the reasoning in Venn was based upon the Court’s understanding that Parliament had chosen to implement much of the UK’s environmental protection through a statutory scheme, namely planning legislation, although that has the broader purpose of controlling land use by reference to planning considerations. In particular, Parliament envisaged that that protection would be provided through a requirement to apply relevant policies for the protection or regulation of the environment at both national and local level. Venn applies to such policies in two ways. Statutory development plan policies fall into the first category of material considerations, that is mandated considerations (see [136] above). But draft development plan policies, and national policies in the NPPF, fall outside that category. They must have been treated by the Court of Appeal as potential “obviously material considerations” in the second category.

140. Accordingly, although s.70(2) of the TCPA 1990 and s.38(6) of the 2004 Act impose obligations to take into account statutory development plan policies and, in general, material considerations, but not environmental matters specifically, the court was able to infer that Parliament intended that environmental protection would be achieved through those provisions combined with relevant policies for the protection or regulation of the environment.

141. However, it cannot be assumed that the Court’s reasoning in Venn, which was specific to the nature of the well-established role played by the planning regime in environmental protection, is transferrable to open-ended statutory requirements to take into account relevant considerations in other legislation enacted for non-environmental purposes, such as funding for overseas projects, financial market controls or international trading arrangements. Certainly, no argument was presented to us in the present case, which could justify reading across this critical part of the reasoning in Venn to the 2018 Act. To read across Venn while disregarding this essential part of its ratio would result in an overly broad application of Art.9(3) and by the same token Art.9(4).

142. What should be the court’s approach where a claimant alleges that a defendant, when acting under a legal provision not relating to the environment, failed to take into account an obviously material consideration, such as the alleged effect of his decision or action upon an environmental interest or issue? Here, by definition, the reasoning in Venn does not apply. As previously stated, the purpose of a bare principle of public law is not to protect or regulate the environment. Its purpose is to regulate the lawfulness of decisions, actions or omissions of public authorities, irrespective of the various functions they carry out. Therefore, a principle of public law, without more, does not form part of our law relating to the environment. It does not become so by being applied in a factual matrix which involves environmental impact or effect, nor could that matrix alter the non-environmental nature of the legal provision under which the defendant acts. Article 9(3) is not engaged. Indeed, if Art.9(3) were to be treated as applying to this type of situation, then it would have been unnecessary in Venn for the Court of Appeal to have relied upon the reasoning in [12] to [17] of its decision. Instead, the Court could simply and directly have said that a public law error in a decision which has an effect upon the environment, or an environmental issue, is sufficient to engage Art.9(3), irrespective of whether the legal regime under which the defendant acted served the purpose of protecting or regulating the environment. The Court did not do so.”

This ruling has significant implications for future environmental judicial reviews in the UK. It underscores the judiciary's commitment to upholding the Aarhus Convention's principles, ensuring that claimants can challenge environmental decisions without the fear of crippling legal costs.

The case highlights the critical role of the Aarhus Convention in promoting access to justice for environmental matters. The Court of Appeal's decision reaffirms the importance of costs protection in enabling public interest litigation, paving the way for more robust environmental advocacy in the UK.