Aarhus Convention update: Government still ignoring private nuisance claims

By David Hart QC

In November 2016, the Government responded in rather disappointing terms (here) to a consultation about amending its costs rules in civil cases to reflect the requirements of the Aarhus Convention.

Article 9 of this Convention says that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be adequate and effective and “not prohibitively expensive”. Aarhus starters may want to have a look at my bluffers guide to Aarhus – here.

First, the limited bit of good news in the governmental response.

Statutory reviews
The Government recognised the anomaly arising out of the fact that whilst domestic rules for judicial review are governed by Aarhus-compliant cost rules, statutory reviews of planning decisions are not. The Court of Appeal in Venn (see my post here) so ruled. Mrs Venn wanted to stop her neighbour developing his garden. The neighbour had won a planning appeal, and she wanted to bring a claim under section 288 of the Town and Country Planning Act 1990) challenging that win. S.288 adopts judicial review principles, though, unlike judicial review, the backing for it is statutory rather than the common law.

In CPR 45.41 to 45.44 & Practice Direction 45, someone who brings a judicial review “all or part of which is subject to the provisions” of the Aarhus Convention may not be ordered to pay costs exceeding £5,000 for individuals and £10,000 for others. So this caps the costs you might be expected to pay if you lose. Mrs Venn wanted a cost cap so she knew where she stood before she got herself into these proceedings.

The Court of Appeal said that the costs rules were applicable only to judicial reviews, not other challenges falling within the Convention (even though they walked and talked like judicial reviews). They reached this view reluctantly and took some comfort, in November 2014, that Government was looking at the problem.

Well, Government spent 2 years looking at a clear anomaly (compare and contrast what the UK is going to have to do in the under next 2 years under Article 50), and it has now finally decided to legislate this away by applying the same regime to both sorts of challenges. Phew.

The rest

The bad news is contained in the rest of the recommendations, the effect of which will be to complicate and thus render more expensive a currently simple system in the CPR which I have briefly referred to above for determining costs caps. This is detailed stuff, albeit important – for an excellent summary see James Maurici Q.C.’s table linked to his post here.

I shall concentrate on one important issue which the Government has truly ducked in the response.

Private nuisance
The protections under the Aarhus Convention are not limited to public law proceedings. That much is clear from Art.9(3) itself which is applicable to “judicial procedures to challenge acts or omissions by private persons and public authorities which contravene national law relating to the environment.” Not very difficult to decipher the words underlined. And Art.9(4) applies the prohibition against prohibitive costs to all such procedures.

Despite those words in Art.9(3), the Government has tried to draw a distinction between public law cases and environmental cases raising private law issues such as in the private law of nuisance.

For non-lawyers, a private nuisance is when you get stunk out of your home or driven to complain to the police about next door’s noise or when your neighbour funnels polluted water across your land or sends clouds of dust onto your garden or washing.

This restrictive reading of Art.9(3) was tried out by the private law defendant in Morgan, a case of mine, and did not receive a warm reception from the Court of Appeal. As it said:

However, a literal reading of the provisions does not appear to support that restriction. The “public” as defined may be a single natural person, and the proceedings may be in respect of acts or omissions of “private persons”. We doubt in any event whether it is helpful in practice to draw such a clear distinction. In the present case, the claimants’ action is no doubt primarily directed to the protection of their own private rights, but the nuisance if it exists affects the whole locality. The public aspect is underlined by the interest of the Agency and the Council.

The CA went on to say that it would proceed on the basis that the Convention is capable of applying to private nuisance proceedings such as in this case.

It concluded that there was no direct claim under the Convention itself. International treaties need implementing domestically before they become domestically enforceable, as the Supreme Court has reminded us recently in the Brexit decision here, and my clients could not simply rely on the Convention without more.

The next stage in the saga came in Austin v. Miller Argent in 2014 here, and my post here, a claim against the operators of an open cast mine/reclamation, again not a public authority. Mrs Austin relied upon Article 9(3) on a costs issue. The Court of Appeal (following Morgan) thought there was no reason in principle why a private nuisance claim could not fall within Article 9(3) and be protected by Article 9(4). They added a rider: whether it did so would depend on whether the complaint was closely linked to the particular issues regulated by the Convention and would, if successful, confer environmental benefits.

By this time, and as a result of an earlier reverse in the courts (another one of mine – here), Mrs Austin had written to the Aarhus Convention Compliance Committee (ACCC) complaining about the UK system of costs in environmental cases. And before that, the Environmental Law Foundation (more confessions – I now chair it – see here for what it does) had complained about forthcoming changes in the costs rules which would make it more difficult to start such claims.

These complaints (communications, in Aarhus-speak) rumbled along but by 2015 the ACCC had sent out draft findings of non-compliance to Government. These findings were finalised in November 2016: see here. Their gist was that Article 9(3) did apply to such private nuisance actions and that the UK was in breach of it because its costs rules made such claims prohibitively expensive. So the body set up to assess whether contracting parties were obeying the Convention had decided that the UK was non-compliant on this ground.

Cue the Government in its response the same month, November 2016. It recorded (para.117) the fact that respondents had referred to the ACCC findings and Austin – but it did not acknowledge that the ACCC had found that the Government was in breach of the Convention.
Its response was to decide (para.14) that it did not intend to amend the costs rules.

This is because the ECPR [the costs rules] was not designed with these cases in mind. Defendants in these cases are not necessarily public authorities, meaning that the costs cap would not necessarily be appropriate.

I agree that public law costs rules have to be rather different from private law costs rules, but you cannot cop out of the latter because you wrongly in the past only applied your mind to the former. It needs a bit of thought, but that is what governments are for, and Government has been gaily modifying the costs rules in private cases for the last 10 years or so when it wanted to.

The merest sop is implicitly extended to the ACCC findings:

The government will continue to consider how best to address these cases.

Stand back a bit. The Courts of Appeal in Morgan in 2009 and Austin in 2014 in effect warned the Ministry of Justice that MoJ had misunderstood the scope of Art.9(3). There had been criticism of UK costs bills for many years. Add these together and there was an obvious breach of Art.9 – there are no steps to prevent costs being prohibitively expensive in private law nuisance claims. Despite that, MoJ spent 3 years or so contesting the ACCC communications, and, despite having been found wrong there in 2015/16, promises to do no more than think about it.

One has to say that Government is ignoring Aarhus, when it chooses, as it does here. Bottom line – it does not have financial teeth, like EU infraction judgments, which can turn themselves into daily fines for non-compliance.

The problem of getting an individual private law nuisance claim up and running for all but the most wealthy people remains. Until April 2013, the costs rules enabled claimants to recover the costs of insuring the possibility of them losing from the defendants if they won. Government got rid of that – it had its flaws, but something needs to replace it. Multiple claims may still be able to get off the ground, but the handful of clients I had in Morgan would not even begin to get off the ground these days without some costs protection. So, please, a little more action, and less prevarication, from Government in response to what is now an adjudged Aarhus Convention infringement.

This article was first published on the 1 Crown Office Row Human Rights blog.