UK breaching access to environmental justice requirements

By Tom Brenan

In what may or may not (depending on your point of view) be regarded as fortuitous timing following the Ministry of Justice’s response to its most recent consultation on the subject (see my previous ELF blog), the Aarhus Convention Compliance Committee has upheld complaints made by the Environmental Law Foundation (ELF) and Alyson Austin that government changes which affect the funding of nuisance claims are in breach of the UK’s obligations on access to environmental justice.

As I highlighted previously, the Aarhus Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters (to which the UK is a signatory) sets out various requirements such as that access to environmental justice must not be ‘prohibitively expensive’. In light of changes introduced by the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) s46, ELF (represented by Stephen Tromans QC and Neil Stockdale of Hugh James Solicitors, both acting pro bono) submitted a complaint to the Committee that this would result in prohibitively expensive costs in private nuisance proceedings and would increase financial and other barriers to access to justice in breach of Article 9 of the Aarhus Convention. This complaint was joined with another made by Alyson Austin about costs of access to justice in private nuisance cases.

The complaints were considered at a hearing in Geneva in March 2014 but the Committee’s findings have only just been published.

The Committee found that private nuisance claims may come within the term ‘national law relating to the environment’ in Article 9(3). This should be given a broad interpretation: the number of people affected, the claimant’s motivation for bringing proceedings, or the possible significance for the public interest are not decisive to an assessment of whether they do so. The Committee also found that other administrative and judicial procedures were not individually or collectively fully adequate alternatives to private nuisance proceedings.

Considering also the government’s view that private nuisance claims should fall outside the costs provisions for environmental claims (see previous ELF blog), and evidence before them which was not disputed that costs in private nuisance proceedings typically exceed £100,000, in those cases which fell within Article 9(3) and where there was no alternative remedy, the Committee found the UK in breach of the Article 9(4) requirement that costs should not be prohibitively expensive. This view was further strengthened by the additional financial burdens for claimants in private nuisance proceedings introduced by LASPO.

The Committee recommended that the UK review its system for allocating costs in private nuisance cases and undertake practical and legislative measures to ensure that such procedures, where there is no fully adequate alternative, are not prohibitively expensive.

These findings confirm ELF’s view that the UK is failing to comply with its access to environmental justice obligations under the Aarhus Convention. A meeting is being sought with the Ministry of Justice and the Department for Environment, Food and Rural Affairs to discuss the findings.

Huge thanks to Stephen Tromans QC and to Neil Stockdale for their willingness to act pro bono. More comment can be found on the 39 Essex Chambers and Hugh James websites.