1 - Welcome to the Aarhus Blog

The Aarhus Convention was first referred to in a case in England nearly 20 years ago now: see R. (Burkett) v Hammersmith and Fulham LBC (Costs) [2005] C.P. Rep. 11.

The UK had ratified the Aarhus Convention on 24 February 2005. The judgment in Burkett was handed down before that on 14 October 2004.

In Burkett, which concerned costs in a planning judicial review, Carnwath LJ referred to a then recent study of the environmental justice system entitled  “Environmental Justice: a report by the Environmental Justice Project”. This was sponsored by the Environmental Law Foundation and others. It recorded the concern of many respondents that the then current costs regime in England & Wales “precludes compliance with the Aarhus Convention”. Carnwath LJ in the judgment said, somewhat presciently, that he was doubtful about the “possibility of ever living up to the Aarhus ideals within our present legal system”.

Since then, much has happened. Of course, we now have bespoke costs rules in the CPR for “Aarhus Convention claims”.

The UK’s journey to its current Aarhus costs rules is long, tortuous and complex and involves among other things:

1. Two CJEU cases: (Edwards) v Environment Agency (C-260/11) EU:C:2013:221 (reference) and European Commission v United Kingdom (C-530/11) EU:C:2014:67 (infraction);
2. Several decisions by the Aarhus Compliance Committee on communications from members of the public: ACCC/C/2008/33, ACCC/C/2012/77, ACCC/C/2013/85 ACCC/C/2013/85;
3. Several previous iterations of the Aarhus Costs rules;
4. Numerous domestic cases e.g. (Royal Society for the Protection of Birds) v Secretary of State for Justice [2017] 5 Costs L.O. 691.

But, the Aarhus Convention is, of course, more than just costs, important as this is to the third pillar. The first pillar on access to environmental information and the second on public participation are also important. This blog will cover all there pillars and will look at all things Aarhus, so for example:

1. Developments in relation to ongoing communications before the Compliance Committee;
2. Domestic case-law on the Convention and on the Aarhus Convention rules;
3. Developments in the EU and other Member States as regards the Convention;
4. Related Conventions such as the ESPOO Convention and the Escazú Agreement.

Authors:
- James Maurici KC - James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

- Jacqueline Lean - Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC).    She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

- Nick Grant - Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

- Alex Shattock - Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.