2 - The Aarhus Convention at Planning Inquiries

Introduction

The Aarhus Convention was ratified by the UK in February 2005. As mentioned in the first blog it has, in the almost 20 years since, been cited and relied on many times in Higher Court cases in the UK. But what about in planning inquiries and planning hearings?

A COMPASS search suggests only 32 planning decisions where the Aarhus Convention has been referred to. 7 of those are Scottish decisions, 2 Welsh and the rest English.

The first ever mention of the Aarhus Convention in a planning inquiry came in 2006. The appeal concerned Land at Landywood Lane Staffordshire (APP/C3430/A/05/1194463 and APP/C3430/A/05/1194464, Secretary of State’s decision dated 26 September 2006). The appeal related to a residential mixed use scheme. In support of a contention that the appeal should be refused on grounds of prematurity the local planning authority cited the Aarhus Convention. The Inspector rejected these points saying at IR 16.53 that he agreed with the appellant “that local people had the opportunity to, and did, participate at the EIP in its consideration of the Cheslyn Hay/Great Wyrley area as a location for housing. Similarly they have participated in this Inquiry, which of course - unlike the SP [the relevant policy] - is site specific.”

An analysis of the planning decisions

DCOs: a number of references to the Aarhus Convention have come in the context of DCO applications. That is unsurprising given the existence of s. 104(4) of the Planning Act 2008 which disapplies the presumption in favour of an NPS where “deciding the application in accordance with any relevant national policy statement would lead to the United Kingdom being in breach of any of its international obligations”. This applies to unincorporated international conventions, see R. (Spurrier) v Secretary of State for Transport [2020] P.T.S.R. 240 at para. 638. Thus:

1. The Sizewell C DCO (EN010012, Secretary of State decision 20 July 2022): the Examining Authority (“EA”) refer to the both the Aarhus and Espoo Conventions as relevant (see para. 3.6.35, 3.9.3, 3.9.5 5.10.170, 5.20.78, 5.20.85, 6.4.845 and 10.2.1) in relation to potential transboundary effects and the application of the Planning Inspectorate Advice Note 12: Transboundary Impacts Consultation.
2. The A303 Amesbury to Berwick Down DCO (Secretary of State decision 12 November 2020): in that case complaints were made, and rejected, about the consultation process undertaken, with reliance placed in this regard, on the Aarhus Convention (see paras. 3.5.19, 4.2.4, 7.3.44, 7.3.49 and 7.3.85 – 92 of the EA report and para 67 of the Secretary of State’s decision).
3. The Thames Tideway DCO (100-CO-PNS-PINSP-000001; Secretary of State decision 12 September 2014): the EA dismissed complaints about consultation that had sought to place reliance on the Aarhus Convention (see paras. 16.26 and 16.27).
Other English planning decisions (in reverse chronological order):
1. Land at Whitehouse Farm, Thorncliffe Bank, Thorncliffe, Leek, Staffs (APP/B3438/A/14/2223722, decision 14 July 2015): This proposed installation of a 6kW turbine, with a hub height of 12m and maximum height of 14.8m to blade tip. The Inspector noted at para. 5 “comments of local residents and other third parties relating to the Aarhus Convention, specifically concerns as to opportunities for public participation during the Council’s determination of the application”. The Inspector rejected this pointing out that the “officer’s report states that they sought legal advice on this matter. That concludes that provided applications are properly validated, considered and determined then in their view the Local Authority will have done all that it can be expected to do. There is nothing before me to suggest that the Council did not properly discharge its obligations in this regard” (ibid.)
2. Land adjacent to Kelsick House Farm, Abbeytown, Wigton CA7 4TL (APP/G0908/A/14/2215537, decision 21 November 2014): The proposal was for the erection of single turbine with a hub height of 60m and a tip height of up to 86.5m. The Inspector said at para. 43 that “[t]he alleged failure to observe the Aarhus Convention is not relevant to the planning merits of the proposal and is a matter for the Council.”
3. In two decisions issued close together in Staffordshire: (i) The Bungalow, Lask Edge Farm, Lask Edge Road, Lask Edge, Leek, ST13 8QS (APP/B3438/A/14/2216593, 4 November 2014) and (ii) Three Nooks Farm, Lask Edge, Leek ST13 8QT (APP/B3438/A/13/2210857, 31 October 2014) both wind turbine proposals (one was for single 5KW micro turbine on a 15m tower and one for a 50kw wind turbine on a 24.6m monopole). The inspector said that the “Council’s handling of the application has been criticised (including an alleged failure to observe the Aarhus Convention), but they relate to procedural matters, whilst arrangements for dealing with wind turbine proposals in general are an issue for the Authority to deal with.” (see paras. 33 and 32 respectively in the two decisions)
4. In two decisions in Stratford-Upon-Avon objectors cited the Aarhus Convention in support of prematurity arguments: (i) Former IMI Norgren Site, Campden Road, Shipston on Stour, CV36 4PX (APP/J3720/A/12/2185727, 27 June 2013) at paras. 92 – 94; and (ii) land west of Shottery, South of Alcster Road and north Of Evesham Road, Stratford-Upon-Avon (APP/J3720/A/11/2163206, Secretary of State decision 24 October 2012) at paras. 194 and 505. The former decision involved a proposal for a mixed use development comprising up to 130 houses and 929 sqm Employment (B1). The latter decision involved a residential led scheme for 800 units. A s. 288 challenge based on Aarhus grounds was later rejected in relation to the Shottery appeal, see Stratford on Avon DC v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin) at paras. 48 – 74 per Hickinbottom J. I appeared for the Secretary of State in that case.
5. Land rear of 18 Salford Road, Bidford-on-Avon, Alcester, Warwickshire, 850 4ENA (APP/J3720/A/12/2176743, 9 January 2013): this was a proposal for the erection of up to 137 dwellings and new medical centre. The Inspector said “[a]s for the Aarhus Convention, I am more inclined to the Appellants' view that reserving the matter for subsequent approval would neither change the principle nor the location of the access nor deny anyone the ability to be consulted. In any event, it is the practical difficulties that lead me to conclude that the difficulties in gaining an acceptable access that delivers the very strong argument against 'approving' the access layout as it stands.”
6. Land at Hallburn Farm, Hallburn, Longtown, Carlisle (APP/E0915/A12/2170838 and APP/E0915/A/12/2177996, decision of the Secretary of State 23 May 2013): this appeal related to: (i) six wind turbines with a tip height not exceeding 126.5m; and (ii) nine wind turbine generators, transformer housings, control room, 80m high meteorological mast. Third party objectors argued (see para. 6.6) that “taking account of mis-statements about the benefits of wind energy in reducing carbon dioxide gases, and the requirement for the European Union to reassess renewables policy (in order to comply with the Aarhus Convention), a moratorium should be placed on all wind farm appeals”. Objectors sought to place reliance on the findings (at the time of the inquiry they were draft findings) against the EU made by the Aarhus Compliance Committee in ACCC/C/2010/54: see paras. 6.17, 6.32 - 6.33. The Inspector rejected this saying (at para. 8.6). “Several objectors make reference to The Compliance Committee of the United Nations Economic Commission for Europe in relation to the Aarhus Convention and public participation. [6.5, 6.17, 6.32, 6.33] Its draft ruling will, no doubt, have come to the attention of the UK Government. However, of the appellants drew my attention to any relevant documents by way of response; and, in the absence of any formal statement by Government, there would appear to be no basis to impose an embargo on the consideration of wind farm proposals.” The Inspector recommended that planning permission be granted. The Secretary of State disagreed and refused permission.
7. Lockstock Power Station, Lockstock, Northwich, Cheshire the Secretary of State (12.04.09.04/35C; decision dated 2 October 2012): This was an application under s. 36 of the Electricity Act 1989 for an energy from waste plant. An objector raised the Aarhus Convention (see para. 11.23) in the context of human rights and protection of health. The point was not substantively considered in the decision.
8. Land off Pochin Way and land to the south of Erf Way and north of Cledford Lane, Middlewich, Cheshire (09/0738/W (Appeal A) & 10/2551/W (Appeal B); Secretary of State decision sated 20 July 2012): the proposal was again an energy from waste plant in Cheshire. The Aarhus Convention was raised in relation to the public being “disengaged from the appeal and inquiry process”. The Inspector set out the arguments at length and considered these in detail rejecting all the complaints: see paras. 58 – 59, 61 – 62, 242, 252, 259, 443, 456-458 and 465. The Secretary of State agreed (see para. 5).
9. Land at Deans Farm, Bishop’s Cleeve, Gloucestershire GL52 7YP (APP/G1630/A/11/2146206, APP/G1630/A/11/2148635 and APP/G1630/A/11/2159796): the proposals concerned a number of residential schemes for 450-550 dwellings. The arguments of objectors again focussed on prematurity and relied on the Aarhus Convention. The Inspector set out the arguments in full and rejected them: see paras 3.3, 6.17, 8.27, 9.16, 14.24 – 14.26.
10. Linear site following the alignment of a proposed wastewater transfer tunnel between Black Rock in Brighton and the mean low water mark at Friars' Bay, east of Peacehaven (Ref: APP/G1440/A/05/1189234, Secretary of State decision 25 September 2006): in opposing a new waste water treatment works objectors relied on the Aarhus Convention in passing (see para. 4.60).
11. Crystal Place Park, Bromley (APP/G5180/V/09/2098454, PP/G5180/V/09/2100067 and APP/G5180/V/09/2100066, Secretary of State decision 13 December 2010): This was a called-in application for a comprehensive phased scheme for landscaping and improvement of the Park comprising the demolition of and alterations to existing buildings and structures. A number of Aarhus issues were raised. The Aarhus Convention was debated by the parties to the inquiry in the context of:
  1. Electronic access to information: see paras. 296 – 300, 646 and 660 of the Inspector’s Report;
  2. The availability of information on (a) the energy requirements and emissions from the greenhouses and (b) about the actual levels of lighting which will be installed: see paras. 645 – 648 with the erroneous suggestion being made that the Convention was directly effective.
12. Southall Gas Pressure Reduction Station and adjacent land, The Straight, Southall, London UB11QX (PP/A5270/A/09/2114021, Secretary of State decision 29 June 2010): The proposal was for the construction of a combined heat and intelligent power plant (CHiP). The Aarhus Convention was raised by third party objectors in relation to access to information and consultation: see the Inspector’s Report at paras. 6.2.20, 7.14 and 7.20. The Inspector concluded at para. 10.4.9 that “… the ES has addressed the requirement to provide environmental information relating to the scheme. Consultation has been undertaken in accordance with statutory requirements and the application and the Inquiry were publicised. I therefore consider that the Convention requirements have been met.”
13. Victoria Underground Station, Victoria (APP/X5990N/08/1203278. APP/X5990N /08/1203279 APP/X5990N/08/1203280, Secretary of State’s decision dated 23 July 2009): This concerned various listed building applications along with an Order under sections 1 and 5 of the Transport and Works Act 1992 including deemed planning permission for the works under Section 90(2A) of the Town and Country Planning Act 1990. The Order (by Article 38) provided a defence against an action brought for statutory nuisance in respect of Section 79(1)(g) of the EPA, by a person other than the local authority. Objectors argued that this would breach Articles 6 and 9 of the Aarhus Convention (see the Inspector’s Report at para. 4.8.9 and 5.7.9). This was contested by the applicant (see para. 7.8.9).
14. Stansted Airport, Stansted, Essex (APP/C1570/A/06/2032278, Secretary of State decision dated 8 October 2008): the case for the councils is recorded in the Inspector’s Report as containing the following (see para. 5.3) “it should be recorded that this has been a good example of the public local Inquiry system at work, that there has been no abuse of the timetable, and that many local voices have been heard, entirely in accordance with the Aarhus Convention.”
15. Olympic CPO Inspector’s Report (LDN23/G5750/2/5 (parts 1 & 2) , LDN23/G5750/8/2 (parts 1 – 6) and LDN23/G5750/8/3 (part 1), Secretary of State decision 18 December 2006): It is noted in the Inspector’s Report that objectors raised the issue of “the absence of properly funded legal assistance is a breach of the Aarhus Convention”: see para. 4.3.398.
Wales:
1. Land surrounding Bryn Llywelyn, Llanllwni, Pencader, Carmarthenshire APP/M6825/A/12/2189697, APP/M6825/X/13/515763 & APP/M6825/X/13/515764 (decision of the Welsh Ministers on 6 May 2014): This was a proposal for 21 wind turbines 127m high. The Inspector’s Report records a complaint made by the Council in relation to the Aarhus Convention but this is not further dealt with in the decision which was to refuse consent: see para. 241.
2. Land near Sychpant Farm, Blaen-Cil-Llech, Llandyfriog, Newcastle Emlyn, Ceredigion, SA38 9HB (APP/D6820/A/12/2189964, decision 18 November 2013): this was a proposal for a wind turbine. The Inspector said at para. 23 “Representations have been made that raise issues relating to the Aarhus Convention. Whilst it is beyond my remit to determine the validity of national government compliance, I am satisfied that the arguments put forward do not justify refusing this proposal”.
Scotland:

1. Land at Torr Leathann, Strathrory, Ardross, Alness (PPA-270-22, Reporter’s decision dated 7 January 2022): this appeal concerned a wind farm development and the Reporter said at para 178 “With regard to matters raised by the Ardross Community Council in relation to the Aarhus Convention, the appellant has indicated how the convention has been complied with in their ‘comments on representations’. In light of that submission, which refers to the actions of the Aarhus Convention Compliance Committee during the pandemic, I cannot be clear that the consultation and engagement was or was not compliant with the Aarhus Convention during the difficult restrictions of the Covid-19 pandemic. In addition, by allowing the application to be validated and consulted upon during the pandemic does not in my mind show a clear contravention of the Aarhus Convention by the council during the pandemic. In any event, the nature of engagement is not a matter which should be directly material to my planning judgement in this case.”
2. In a number of decisions concerning offshore wind under the Electricity Act 1989 the following passages appeared:
  
  “Failure to meet the requirements of the Aarhus Convention
  
  A member of the public raised that in August 2013, the United Nations Economic Commission for Europe (“UNECE”) declared that the UK Government's National Renewable Energy Action Plan (“NREAP”) violated the laws that transpose the Aarhus Convention into the UK legal framework. In particular, the public had not been given full access to information on the impacts on people and the environment, nor had been given decision-making powers over their approval.
  
  …
  
  On the single accusation relating to the UK Government – public participation in the Renewables Roadmap – the UK Government was found to be in breach of the Convention, as it had not conducted a SEA or other public consultation. However, on the four accusations for which the Scottish Government had lead responsibility, including public participation in the preparation of plans, programmes and policies in Scotland, and public participation in relation to the section 36 consent of a wind farm proposal, the Scottish Government’s position was upheld. The ruling confirmed that Scotland is in compliance with this international obligation.
  
  The Scottish Ministers consider that proper assessments have been undertaken for this Development and proper opportunity was afforded for consultation with stakeholders and members of the public, in compliance with the Public Participation Directive. The Scottish Ministers are committed to applying strict environmental assessment procedures. The Scottish Ministers, therefore do not consider it appropriate to cause a public inquiry to be held to further investigate this.”
  
  See: the Inch Cape Offshore Windfarm, applications (decision dated 10 October 2014), the Seagreen Alpha Offshore Wind Farm decision and the Seagreen Bravo Offshore Wind Farm decision (all dated 10 October 2014) and the Beatrice Offshore Windfarm and Stevenson Offshore Wind Farm (decisions dated 19 March 2014).
3. Assel Valley, Dalfask Hill, Pinmore, Girvan, South Ayrshire, KA26 0HX (PPA-370-2026, 3 September 2013): the proposal was for the erection of wind farm consisting of 11 wind turbines and associated infrastructure. The Reporter noted that a potential breach of the Aarhus Convention (Articles 4, 5 and 9) was cited “because of the failure by the appellant, the council and government to provide wind speed and noise pollution raw data and because of the potential presence of lead which could prejudice human health” (see para 20). The Reporter concluded that there was no breach: see para. 22.

So what can we draw from all of this:

COMPASS gives access to 200,000 planning decisions. In the nearly 20 years since the Aarhus Convention was ratified it is mentioned in only 32 decisions.
The most common context in which it is raised is in regard to alleged failures of consultation or the provision of information.
When the Convention is raised it is usually by third party objectors to proposed development. Regrettably, one of the most common contexts in which it has been raised was in relation to wind turbine development. It is ironic that such an important environmental convention is being used to try and block development essential to combat climate change.
The relative lack of reference to the Aarhus Convention can be explained by several factors. First, as regards the first pillar – access to information – the requirements of the Convention are given effect via the Environmental Information Regulations that transposed the Environmental Information Directive. That said a COMPASS search suggests only 17 references to those Regulations, But of course, appeals in respect of these matters go to the tribunals not the Planning Inspectorate. Second, the provisions of the second pillar – public participation – are not incorporated into domestic law. Third, the final pillar largely concerns access to courts rather than the processes at planning inquiries.
Where Convention points have been raised at inquiries they have met little, if any success, and we have seen that in several cases Inspectors have dismissed the issues raised as not relevant to the planning merits. Where complaints have been made about the consultation requirements of the Convention the response from Inspectors has been that following our domestic processes meets the requirements of the Convention.

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.