0
In this blog I am looking at the recent decision of Karen Ridge (sitting as a Deputy High Court Judge) in Green Land v Central Beds Council [2025] EWHC 2251 (Admin).
The judgment deals exclusively with Aarhus matters.
In the course of a JR of an experimental road traffic regulation order (“TRO”) the defendant made an application for a declaration that the claim was not an Aarhus Convention claim, or in the alternative, that the Claimant’s costs cap should be increased to £35,000.
The CPR requires the defendant to make any challenge to the claim being an Aarhus Convention claim or any application to raise the cap in their Acknowledgement of Service (“SGR”). The application by the defendant was thus a late application. The Judge held that an extension of time was required for this under CPR 3.9. The Judge rejected the application for an extension. She held that: (i) a late challenge like this is to be treated as a default and the strict criteria for relief from sanctions set out in case law (Denton v TH White) [2014] EWCA Civ 906; (ii) it was important that the Aarhus costs rules provided a claimant with “peace of mind” on their costs liability (see para. 13); (iii) the rules put clear demands on both parties and for a defendant it was required to (see para. 14) “notify any disagreement or desire to vary the costs cap at their earliest opportunity, namely the filing of the AoS form”; (iv) here the claimants complied with the rules and the defendant did not and had no good reason for not doing so (paras. 15 and 16). The Judge also said, “Given the nature of the strict rules and the rationale for the rules I have concluded that the breach was a serious one”. This was despite the application being made relatively early in the proceedings (para. 18).
The Judge said that the fact that because the application was made relatively early on in the proceedings it was suggested that the claimant suffered little prejudice but this was immaterial under the Denton approach. The Judge said the failure to raise at the earliest point the challenge was a serious and significant breach that could not be excused. This application of Denton seems right but raises the bar for late challenges on Aarhus.
The Judge went on to consider (obiter) if the claim was an Aarhus Convention claim and held that it was.
She cited the judgment of Holgate LJ in Global Feedback (see blog 59) and which held that one must examine the purpose of the national law which is said to have been contravened and whether that purpose is to protect or regulate the environment.
The Judge said:
“37. The stated purpose of the RTRA in section 122 is to secure the expeditious, convenient and safe movement of traffic and ensure suitable parking provision. When that headline purpose is considered in isolation, I accept Mr Semakula’s argument at first blush that there is no reference to the protection or regulation of the environment. However, section 122(2) must be read as a whole and it specifically directs the decision maker to take other matters into account. Those other matters include the “amenities” of any locality affected and more particularly, recognition of the importance of regulating and restricting the use of some roads by heavy commercial vehicles “so as to preserve or improve the amenities of the areas through which the roads run”. That last clause can be clearly inferred to referring to residential amenity in terms of the living conditions of residents and visual amenity in terms of the effect on the character and appearance of an area. These are patently environmental matters. It is clear that when section 122 is read as a whole it is directed at making decisions with environmental considerations at the forefront of the decision maker’s mind.
38. Similarly, section 122(2)(c) directs that when securing the expeditious and safe movement of traffic etc. regard must be had to the national air quality strategy, another environmental consideration. It is clear then that the requirement to take these particular factors into account is with the aim of protection or regulation of the environment.
39. Section 1(1) of the RTRA frames the circumstances in which it is expedient to regulate the highway network. They include the prevention of damage to the road or to any building on or near the road (s1(1)(b)), to prevent road use by vehicles which are unsuitable having regard to the existing character of the road ss1(1)(d) and (e) and for “preserving or improving the amenities of the area” (s1(1)(f)).
…
41. When the wording and aims of the legislation are considered I am satisfied that the national law alleged to have been contravened provides for regulation of the highway network for a number of reasons, several of which relate to environmental protection. I have set out the factors relating to amenity considerations above. There is also a specific requirement within section 122(2)(c) which requires an order making authority to have regard to the strategy prepared under Section 80 of the Environment Act 1995 in relation to the national air quality strategy. That is not a general reference to have regard to all other relevant matters as was the case in Global Feedback, but rather a requirement to have regard to a specific environmental protection provision.
42. The Defendant’s own reasons cited for the making of the Order were expressed to be for the protection of the BOAT, the protection and preservation of its surface, the promotion of amenity value for walkers and equestrians, and to provide assistance in combatting anti-social behaviour and fly tipping. Those reasons lend support to the Claimant’s arguments that the national law in issue is a provision relating to the environment. Similarly, the Defendant’s assertions that the claim would not have significant environmental benefits but would lead to further environmental harm points to the Order having an environmental purpose.”
In reaching this view the Judge examined the legislation against the definition of “environmental information” found in Article 2(3) of the Aarhus Convention. This is an approach supported by the earlier Court of Appeal decision of SSHCLG v Venn [2015] 1 WLR 2328. The definition includes the Judge noted “the state of elements of the environment such as air and atmosphere, water, soil, land, landscape…as well as ‘the state of human health and safety, conditions of human life…and built structures, in as much as they are or may be affected by the state of the elements of the environment or…by the factors, activities or measures referred to in sub-paragraph (b)’. Sub-paragraph (b) I note, includes activities or measures affecting or likely to affect the elements of the environment set out above.”
What then do we take from this decision:
I would add this. That the road traffic regulation legislation is within the scope of the Aarhus Convention receives further support from the decision of the Compliance Committee in ACCC/C/2010/53. The context of that case included a TRO made under the equivalent Scottish legislation in order to allow the Edinburgh Tram Network to operate within sections of the public road network: https://unece.org/fileadmin/DAM/env/pp/compliance/C2010-53/Findings/ece.mp.pp.c.1.2013.3.e.pdf at paras. 15, 23 and 32. This was the first case I ever did in Geneva … happy days.
This blog post was written by James Maurici KC.
----------------
Authors of the Aarhus blogs
– 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 KC 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.
