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Aarhus Compliance Committee issue draft findings in communications ACCC/C/2010/45 and ACCC/C/2011/60

The Aarhus Compliance Committee in Geneva today issued draft findings in communications ACCC/C/2010/45 and ACCC/C/2011/60 finding that the UK was “not in non-compliance”, save in respect of judicial review costs issues as per its findings in ACCC/C/2008/33.

The communication alleged widespread breaches of the Convention in terms of:

1. The absence of a right for oral presentations to planning committees determining planning applications;
2. The way EIA screening was undertaken;
3. The absence of a third party right of appeal against the grant of planning permission;
4. Lack of public participation in Local Investment Plans (LIPS): Local Strategic Partnerships (LSPS) and Local Enterprise Partnerships (LEPS)

ACCC/C/2010/60 was a communication made by Mr Terrence Ewing based on his personal experience in planning applications determined by various London authorities. The other communication was made by the Kent Environment and Community Network “KECN”) and  concerned the grant of permission of a superstore, submitted to Shepway District Council. The communication it was said aimed “to exemplify the situation where third parties aggrieved about the environmental impacts of a planning proposal, have limited third party rights of appeal. The communication also raises general concerns of non-compliance by the Party concerned with the public participation requirements under the Convention”.

The Committee’s draft findings are:

“70. The Committee, after the discussion with representatives of the parties at its thirty-seventh meeting, decided to further focus its considerations on the allegations regarding screening decisions subject to article 6, paragraph 1(b), of the Convention, the procedure at public planning meetings and its compliance with article 6, paragraph 7, of the Convention and the role of LIPs, adopted by LSPs, in the planning process and their relationship to article 7 of the Convention as well as any issues that in conjunction with the above that may arise in relation to article 9 of the Convention.
71. The Committee decides not to examine the general compatibility of the planning laws of the Party concerned with the Convention due to the fact that the communications remain vague as to how these laws fail to comply with the Convention; while the Party concerned has provided sufficient prima facie information to illustrate that there are numerous opportunities for public participation during the planning process. The Committee therefore does not reach any conclusion regarding compliance by the Party concerned on this matter.
72. The Committee also decides not to consider the role of LEPs, currently in the process of replacing LSPs, because the allegations of non-compliance were submitted very late in the proceedings and these instruments are currently in the process of being implemented.
Decisions on specific activities (art. 6)
73. The activities referred to in communications C/45 and C/60 do not come within the ambit of article 6, paragraph 1 (a), of the Convention.
74. Article 6, paragraph 1(b), of the Convention requires Parties, in accordance with national law, to apply the provisions of article 6 to decisions on proposed activities not listed in annex I to the Convention which may have a significant effect on the environment. Parties to this end are to determine whether the proposed activity is subject to article 6 of the Convention. As the Committee found in communication ACCC/C/2010/50 (ECE/MP.PP/C.1/2012/11, para. 82), the outcome of an EIA screening decision is a determination under article 6, paragraph 1(b), of the Convention.
75. Communication C/45 refers to the EIA screening decision of 2 June 2009 by the Shepway District Council issued regarding the superstore. On the basis of the information before it in relation to the store as well as other situations raised in communications C/45 and C/60, the Committee finds that the communicants fail to substantiate that the authorities misapplied their discretionary power under article 6, paragraph 1(b), of the Convention.
76. Therefore, the Committee does not further examine whether the Party concerned in relation to these activities is in compliance with article 6, paragraph 2 to 9, of the Convention.
77. Nevertheless, the Committee notes that article 6, paragraph 7, of the Convention gives any member of the public the right to submit comments, information, analyses or opinions during public participation procedures, either in writing or, as appropriate, orally at a public hearing or enquiry with the applicant. The fact that some local authorities only provide for participation of members of the public at planning meetings via written submissions, as stressed in communication C/60, is not as such in non-compliance with article 6, paragraph 7, of the Convention.
Plans and programmes (art. 7)
78. The Committee considers that LIPs, and possibly also LSPs or LEPs, may well be part of the decision on plans or programmes within the purview of article 7 of the Convention. While there is no statutory requirement for the authorities to prepare LIPs, there appears to be a growing trend for local authorities in the UK to set their local planning priorities framework through LIPs. The Homes and Communities Agency has developed a Good Practice for local investment planning  that encourages integration of community involvement. Still this remains guidance for good practice, and authorities have some discretion whether to engage all stakeholders, and not only prospective developers.
79. Therefore, in order to ensure investment flow for future projects, there is a risk that in preparing the LIPs, authorities consult only with potential developers and do not involve other members of the public. In addition, although LIPs are not material to the actual planning decisions and they may be included in the LDF documentation, they seem to be evolving into a de facto element of planning. It is thus highly unlikely that LIPs have no effect at all on subsequent planning decisions, if consultations have already been carried out with prospective investors.
80. The Committee emphasizes that article 6, paragraph 4, of the Convention requires “early public participation, when all options are open and effective public participation can take place”, both in relation to activities under article 6 of the Convention and in relation to plans and programmes under article 7 of the Convention. If the adoption of LIPs, or other developments, were to prejudice public participation as envisaged by article 6, paragraph 4, in relation to article 6 or 7 of the Convention, this would engage the responsibilities of the Party concerned under these provisions of the Convention. If this were the case, the Party concerned would also be obliged to ensure all-inclusive public participation, i.e. not limited to the involvement of private sector, in this early stage of planning.
81. According to the information before the Committee, the practice for the preparation of the LIPs has not crystallized across the Party concerned and largely depends on the discretion of the authority to engage public participation of all stakeholders. Therefore, the Committee is not in a position to conclude whether the Party concerned fails to comply with its obligations arising from article 7. However, given the growing significance of the cooperative endeavors between public and private actors for the preparations of LIPs and in view of the object and purpose of the Convention, the Committee considers that participation of the public in the preparation of the LIPs and related procedures is highly appropriate.
Review procedures (art. 9, para. 2, in conjunction with art. 6, para. 1(b))
82. As mentioned above, the outcome of an EIA screening decision is a determination under article 6, paragraph 1(b), of the Convention. These determinations thus are subject to the requirements of article 9, paragraph 2, of the Convention. This entails that members of the public concerned, as defined in article 9, paragraph 2, of the Convention, “shall have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6.”
83. The Committee notes that the call-in procedures available at the Secretary of State for Communities and Local Government or her/his Planning Inspectors are not procedures under article 9, paragraph 2, of the Convention. They are instead procedures by way of which an applicant whose planning decision has been refused may appeal that decision before an executive body, not constituting a court of law or independent and impartial body established by law. This is so even though in the course of such an appeal members of the public concerned may be heard. If called-in, the procedure results in a retaking of the decision at stake, which depending on the proposed activity under consideration, may engage article 6 of the Convention.
84. The Committee notes that the communicants in communication C/45 did not pursue judicial review of the screening decision at stake in the communication for reasons of the expenses probably involved in such a review procedure as well as the likelihood that only the procedural legality of the screening decision could be raised in such review.
85. The Committee has addressed the issue of the costs involved in procedures for judicial review with respect to the Party concerned in ACCC/C/2008/33, and has found the Party concerned not to comply with article 9, paragraph 4, of the Convention. Thus, the Committee maintains its findings regarding costs expressed in paragraph 136 of that communication. As to the possibility to obtain a review of substantive legality in a procedure for judicial review, which was also addressed in findings in ACCC/C/2008/33, no new facts have been brought before the Committee. Therefore, the Committee, while maintaining its concerns regarding substantive review expressed in paragraph 127 of communication ACCC/C/208/33, does not conclude that the Party concerned fails to comply with article 9, paragraph 2 in this respect.”

James Maurici QC appeared for the UK before the Aarhus Compliance Committee on both communications.

See http://www.unece.org/env/pp/pubcom.html for a full copy of the draft findings.