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Aarhus compliance committee 37th meeting considers UK Communications

The United Nations Economic Commission (“UNECE”) for Europe’s Aarhus Convention Compliance Committee at its 37th meeting being held between 26 - 29 June 2012 at the Palais des Nations in Geneva is to consider the substance of 3 communications in relation to the United Kingdom.

ACCC/C/2011/61: which alleges non-compliance by the United Kingdom with provisions of the Convention on public participation and access to justice in relation to the Crossrail Act 2008. See further: http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention/envpptfwg/envppcc/envpppubcom/united-kingdom-c61.html


ACCC/C/2011/60 which alleges that:  “the UK does not provide for full public participation rights (such as the right to give oral presentations) to third party objectors at planning committee hearings of local authorities; therefore, according to the communication, the Party concerned fails to comply with article 3(1), 3(9) and 6(7), of the Convention. In addition, the communication alleges that third party objectors are not granted a right of appeal to the Planning Inspector, because such right of appeal is only given to the applicant for planning permission after refusal by the local authority either on the papers or after a planning committee hearing. A third party objector may only apply for judicial review to the High Court in respect of the grant of planning permission that has been granted either on the papers or after a full planning committee hearing, which review is not adequate, effective, fair or equitable, while the costs incurred may be prohibitively expensive. Thus, according to the communication, the Party concerned fails to comply with article 3(1), 9(2), 9(3) and 9(4).” See further: http://www.unece.org/environmental-policy/treaties/public-participation/aarhus-convention/envpptfwg/envppcc/envpppubcom/united-kingdon-c60.html.


ACCC/C/2010/45 which alleges that the UK fails to “provide a third party appeal to projects, it fails to comply with article 9, paragraph 2(b), or alternatively with article 9, paragraph 3, of the Convention. In particular, the communication alleges that the only way for third parties to trigger a substantive review of a planning decision is to pursue that the planning decision be called-in by the Secretary of State, before the permission is granted, and a public inquiry take place. However, according to the communication, the Secretary of State has very wide powers to decide whether to call-in such a decision and this happens rarely, while it is beyond the competence of the Local Government Ombudsman to review the substance of such matter. In addition, the communication alleges that the available judicial remedies by the Party concerned are not adequate, because they concern procedural legality of a decision and not its substance, while the costs associated with judicial remedies are prohibitively expensive; hence, according to the communication, the Party concerned fails to comply with article 9, paragraph 4, of the Convention. Finally, the communication alleges that by failing to provide for information to the public on access to administrative and judicial review procedures, the Party concerned fails to comply with article 9, paragraph 5, of the Convention. To illustrate its allegations the communication refers to the planning decision for a Sainsbury’s superstore in Hythe, Kent”. See further: http://www.unece.org/env/pp/compliance/Compliancecommittee/45TableUK.html

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25th June 1998 in the Danish city of Aarhus at the Fourth Ministerial Conference in the 'Environment for Europe' process. In accordance with paragraphs 18 to 24 of the annex to decision I/7 of the first session of the Meeting of the Parties to the Aarhus Convention, communications may be brought before the Committee by one or more members of the public concerning any Party’s compliance with the Convention.

The status of the Convention in domestic and EU law is considered by the Court of Appeal in Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107; [2009] C.P. Rep. 26: see the judgment of Carnwath LJ as he then was.

James Maurici is appearing for the UK Government in respect of all 3 Communications.