80 - The Aarhus Convention in planning appeals (revisited)

I wrote a blog way back on 8 March 2023 entitled “The Aarhus Convention at Planning Inquiries”. It was the second-ever Aarhus blog. In that blog, I reported that “[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.”

There are now apparently 39 such decisions according to COMPASS. COMPASS stands for “Computerised Planning Appeals Service Search. It is an online subscription database of UK planning appeals, managed by Haymarket Media Group.

New decisions referring to the Aarhus Convention since my earlier blog include:

In Scotland:

1. ECU00002124; ECU00002125; ECU00002126; ECU0000212; ECU00002128: This was a decision under the Scottish Electricity Act 1989 (“the 1989 Act”) (14 February 2025). The Report of Inquiry notes complaints (by Galloway Without Pylons (“GWP”)) about inadequate community consultation (see paras. 3.72-3.73) relying on Article 6(3) of the Aarhus Convention (“3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision making.”). The Report records (at para. 3.74) that the complaint was “that the extended time period over which public consultation on this project has taken place is inconsistent with the expectation of a “reasonable time-frame” in Aarhus. It believes that, as a minimum, the applicant should have re-visited some of the options that were considered initially and consulted again on those options closer to the time of the EIA”. This was rejected with the Report of Inquiry saying that:

“3.75 We understand GWP’s point that the local population is likely to have changed over the long gestation period for this project. We also accept that it is likely to be easier for members of the public to respond meaningfully to consultation when a project has been developed to a stage where specific siting details for elements such as individual pylons has been reached. However, contrary to GWP’s assertion, neither of these factors is relevant to an assessment of the adequacy of the applicant’s EIA methodology. It is clear from the evidence that the applicant complied at all stages with necessary consultation / publicity requirements, including at the EIA stage, and we agree with the applicant that it would have been disingenuous for the applicant to have sought public views on alternative proposals that had already been found to be technically and/or economically unviable.”

2. ECU00002002 (26 June 2023): This was another Scottish Government decision under the 1989 Act concerning the Clashinndarroch Wind Farm. There was a confidential annex to the EIA report on wildcat impacts. It was argued by an objector – Wildcat Haven – that (see para. 4.31) that “[w]hile it is not disputed that some information within the Confidential Annexes has been legitimately redacted, the extent of redaction does not comply with decisions of the UNECE Aarhus Compliance Committee, nor SNH (NatureScot) Guidelines on the use of such annexes. It has frustrated public participation in the assessment of the scheme and is challengeable”. The Applicant’s response was that “As part of the inquiry process a redacted version of the confidential information was provided to the parties in advance of evidence exchanges. The scope of the redactions within the confidential annexes of the EIA Report is typical of such documents, and it was not overly redacted” (see para 2.2). The Report of Inquiry concluded (see para 3.15) that, as far as possible, the relevant information was made available.

3. ECU00002199: This was yet another Scottish Government 1989 Act decision (dated 21 August 2024) in respect of proposed new overhead power lines. In that case, there were complaints by the Glenorchy & Innishail Community Council and others that the applicant has not engaged in any “meaningful community consultation and has not followed the Aarhus Convention” (see paras. 41 and 54 of the decision letter and para. 22 of the Report of Inquiry, the latter recording an objection that “[t]he applicant has merely paid lip service to the consultation process and has maximised shareholder return over all else. The consideration of potential alternatives and the engagement of the public in that process does not respect the Aarhus Convention.).” These complaints were rejected with the Scottish Government saying:

“13. The Scottish Ministers have had regard to the requirements regarding publicity and consultation laid down in the Consents Regulations and the EIA Regulations and are satisfied that the general public, as well as statutory and other consultees, have been afforded the opportunity to consider and make representations on the proposed Development.

…

75. The reporter noted that the route for the Development was determined by the Company following a period of extensive stakeholder consultation consideration of the concerns raised by stakeholders. The Company also gave appropriate consideration to undergrounding by undertaking a feasibility study and commissioning a Cable Route Report.”

4. There is also a passing mention of the Aarhus Convention again in the context of inadequate community engagement in ECU00000533. This was again a Scottish Government 1989 Act decision (dated 5 February 2026) concerning the Scoop Hill Wind Farm.

In England and in the context of DCOs:

5. The DCO Examining Authority (“ExA”) report on the Stonehenge A303 (Secretary of State’s decision 14 July 2023) contains a number of references to Aarhus focussed on allegations by objectors to inadequate consultation: see paras. 3.5.19 and 7.4.39, 7.3.85 -7.3.92 (“The ExA does not consider that the grant of development consent for the Proposed Development in accordance with the NPSNN would result in the UK being in breach of its international obligations or the SoS acting unlawfully or in breach of any duty imposed upon him including by the Aarhus Convention, the EIA Directive, or the PA2008.)” There is also a passing mention of Aarhus in the Secretary of State’s decision at para. 188 agreeing with the ExA.

6. There are also passing mentions of Aarhus in the Secretary of State’s decisions in the proposed A38 Derby Junctions DCO (Secretary of State decision 17 August 2023) at para. 145 and in the proposed A46 Trans-Pennine DCO (Secretary of State decision 7 March 2024) at para 301.

In terms of planning inquiries in England, I found no new mentions of the Aarhus Convention.

The lessons I drew in Blog 2 were as follows:

“So what can we draw from all of this:

1. 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.
2. The most common context in which it is raised is in regard to alleged failures of consultation or the provision of information.
3. 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.
4. 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 …. 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.
5. 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.”

Over 2 years, nothing much has changed.

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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.