79 - The Chinese Embassy case and the limits of…

Interesting judgment this week following a CMC in R. (Royal Mint Court Residents’ Association) v Secretary of State for the Home Department [2026] EWHC 904 (Admin) (handed down on 17 April 2026).

This concerned the grant of planning permission for a new embassy for the People’s Republic of China at Royal Mint Court.

The Claimant was a local residents’ association.

There were two claims:

A statutory challenge pursuant to s.288 Town and Country Planning Act 1990 against the grant of planning permission by the Secretary of State for Housing, Communities and Local Government; and
A judicial review of the Secretary of State for the Home Department’s (“SSHD”) decision to provide an extensive range of measures associated with the development to protect national security (“the Mitigation Measures”).

One of the issues at the CMC was “Whether in the judicial review claim the Claimant should benefit from costs protection under the provisions of CPR Part 46 and the Aarhus Convention”.

The Claimant sought an order for costs protection under CPR 46.24 in respect of the judicial review. This was opposed by the SSHD.

There was no dispute that the s.288 challenge to the grant of planning permission did fall within CPR 46.24 and therefore a costs protection order was made by agreement.

The Judge provided a useful summary of the principles:

“13. The law on whether cases would fall within these provisions was recently comprehensively considered by the Court of Appeal in HM Treasury v Global Feedback [2025] EWCA Civ 624. The case concerned a challenge to HM Treasury’s decision to make tariff Regulations which would give preferences to Australian imports under a Free Trade Agreement (“FTA”) [4]. The Claimant was a charity concerned with environmental protection that wished to argue that the FTA would increase greenhouse gas (“GHG”) emissions [5]. The Claimant applied for Aarhus costs protection, and the issue was whether the claim fell within Part IX of CPR 46. The Court of Appeal held that it did not.

14. The critical parts of the judgment of Holgate LJ are as follows;

a. The key requirement is that “the complaint is about a decision, act or omission which contravenes a national law which itself relates to the environment. It is insufficient for a claimant merely to say that his claim relates to the environment, or to the protection of the environment, or to an effect on the environment” [92].

b. In considering the judgment of Sullivan LJ in Venn v SSCLG [2014] EWCA Civ 1539 at [105];

“The clear implication of Venn is that an allegation that a decision-maker has failed to take into account a material consideration in breach of s.70(2) of the TCPA 1990 without more does not fall within Art.9(3). Section 70(2) is not itself a legal provision "relating to the environment". Such a claim does not fall within Art.9(3) unless, in addition, the material consideration left out of account was a policy (or perhaps some other measure) for the protection (or regulation) of the environment. What Sullivan LJ envisaged was that the policies applicable to most, if not all, planning applications will include some policies for the protection (or regulation) of the environment.”

c. It is clear that the fact that a claim merely raises a challenge which is in some way connected with the environment is not sufficient to engage Article 9(3) [135].

d. Whether the defendant has “contravened a national legal provision for the protection or regulation of the environment…” “will depend upon the wording, context and purpose of the provision under which the defendant has acted” [137].

e. Where there is an alleged breach of a public law principle by a defendant acting under a legal provision not related to the environment but there is an alleged environmental consequence, see [142];

“Therefore, a principle of public law, without more, does not form part of our law relating to the environment. It does not become so by being applied in a factual matrix which involves environmental impact or effect, nor could that matrix alter the non-environmental nature of the legal provision under which the defendant acts. Article 9(3) is not engaged. Indeed, if Art.9(3) were to be treated as applying to this type of situation, then it would have been unnecessary in Venn for the Court of Appeal to have relied upon the reasoning in [12] to [17] of its decision. Instead, the Court could simply and directly have said that a public law error in a decision which has an effect upon the environment, or an environmental issue, is sufficient to engage Art.9(3), irrespective of whether the legal regime under which the defendant acted served the purpose of protecting or regulating the environment. The Court did not do so.””

The Claimant argued that the claim for judicial review against SSHD was interwoven with the statutory challenge and that “[t]he planning system imposes a regulatory scheme for consideration of impacts arising from, and mitigations of the impacts required by, the development of land, in reg 122 CIL Regulations 2010” (see para. 15). It was further submitted that (see para. 16) that “the issues in respect of the claim for judicial review do not merely concern the environment – on the assumed basis set out above (which is neither confirmed nor denied by the SSHD for reasons of national security) – but also relate to errors in the SSHCLG and SSHD’s approach to mitigation measures under the planning system which seeks to regulate and protect the environment, including in this case. This is all the more acute given the assumed basis (neither confirmed nor denied by the SSHD for reasons of national security) that there will be physical interventions which are generally captured by planning control and which are highly likely to have consequences for the built environment.”

The SSHD argued (see para. 18) that “the judicial review claim does not fall within Article 9(3) and the dicta of Global Feedback. The claim form describes the decision as being to provide an “extensive range of measures … to protect natural security” and “an extensive series of measures to protect sensitive data”. There is no alleged contravention of “provisions of […] national law relating to the environment”.”

The Judge held that:

“18. Even if the Claimant’s assumption that the Mitigation Measures would have consequences for the environment is accepted (which, as stated above, is neither confirmed nor denied by the SSHD for reasons of national security), it is clear from Global Feedback that that would not be sufficient to get within Article 9(3), see [92]. There is no alleged breach of national law by the SSHD.

19. In my view this case falls within the principles of Global Feedback. The SSHD was making a decision to support or impose the Mitigation Measures under powers related to national security, not the environment. That was both the focus of her decision and the source of her powers.

20. Lord Banner argues that the nexus between the challenged decision and the relevant provisions relating to the environment (i.e. the CIL Regulations) is much closer than in Global Feedback, but I do not accept that is the case. In Global Feedback the alleged environmental impacts were a direct result of the impugned decision, i.e. an increase in GHG emissions and therefore impacts upon climate change obligations. However, that was not sufficient to fall within Article 9(3). Similarly, here it is argued that the decision under challenge will impact upon decisions made under the CIL Regulations and the TCPA. In both cases the decisions in question are one step removed from the provisions of national law relating to the environment. There may be consequences to the environment, and there may be issues that arise in a statutory scheme for environmental protection, but Global Feedback makes clear that that is not sufficient to engage Article 9(3).

21. The claim against the SSHD is not that her decision contravenes a national law for the protection of the environment. That is sufficient for the case to fall outside Article 9(3) and for Aarhus costs protection therefore not to arise.”

The Global Feedback case is in the Supreme Court in June: R (on the application of Foodrise Ltd (formerly Global Feedback Limited)) (Appellant) v His Majesty's Treasury and others (Respondents) - UK Supreme Court

On the reasoning of the Court of Appeal in Global Feedback it seems to me the CMC decision in this case was undoubtedly correct.

Landmark Chambers’ Katharine Elliot appeared for the SSHD. Landmark Chambers’ Matthew Henderson appeared for the Claimants (led by Lord Banner KC).

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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; ACCC/C/2014/100 and 101; ACCC/C/2017/150. He is currently acting on the Free Trade Agreement Communication ACCC/C/2022/194. 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).

– Margherita Cornaglia – Margherita’s public law practice often involves acting in claims raising environmental and climate change related issues. For instance, she acted as junior counsel in the judicial review of the Government’s Third National Adaptation Programme (NAP3), pursued with an Aarhus costs cap, advancing novel arguments under Part 4 of the Climate Change Act. She also acted as junior counsel for community claimants in the Launders Lane litigation, challenging Havering Council’s refusal to designate Arnold’s Field as contaminated land; that claim likewise proceeded with Aarhus costs protection to secure effective participation and accountability. Beyond litigation, she has advised solicitors on the Government’s recent consultation concerning access to justice in relation to the Aarhus Convention, drawing on her broader practice representing NGOs and affected communities in environmental and climate cases.

– 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.

– Rebecca Sage – Rebecca is a junior tenant at Landmark Chambers with a growing practice in planning and environmental law. She is regularly instructed on matters engaging the Aarhus Convention, usually through the lens of judicial review. Rebecca has a developing interest in this complex and important area of the law and its implications for access to information, public participation in decision-making and access to justice.