85 - Fresh Aarhus Challenges: Two new…

Two new communications have landed alleging the UK’s non-compliance with the Convention. The Committee has yet to decide whether either is admissible.

PRE/ACCC/C/2026/230

An individual alleges that the Comhairle nan Eilean Siar, the Council for the Outer Hebrides, “failed to satisfactorily include the outcome of public participation in the process of approving the application by SSEN Transmission for the Lewis Hub” (a new substation) contrary to Article 6(8). The nub of the complaint? The proposal elicited 860 objections but the Committee only heard from two objectors at its meeting, compared to the one supporter who also got a speaking slot. The members, (50% of whom were not at the meeting) then did not ask anyone who had submitted representations any questions or made any further comments. Then the members made a decision at the end of the meeting, which the complainant alleges shows a “lack of meaningful deliberation”.

The UK has filed a response indicating the communication is manifestly unreasonable as the complainant has failed to exhaust domestic remedies (including not deciding to bring a judicial review).

It’s hard to see how there can be any legitimate complaint here. The implicit suggestion that if 860 people object there have to be many many objectors allowed to speak at a hearing would be administratively unworkable. Even more so if it is held to be a breach of the convention when Members do not feel the need to ask questions of said objectors. The notion that there has been a breach of the Convention is absurd. Not that that will necessarily stop an adverse finding of course.

PRE/ACCC/C/2026/233

A charity, the Lifescape Project, a charity in Norwich, has filed a Communication alleging a breach of articles 9(3) and (4) in the absence of members of the public having the ability to challenge public authority subsidy decisions. The particular decision in issue is the 2025 award of a CfD to Drax Group plc for bioenergy production, which the complainant considered challenging, but didn’t, given a challenge would be via the Competition Appeal Tribunal and that tribunal does not have an Aarhus cap.

Again, the UK has contested the admissibility of the communication. Notwithstanding the complainant setting out a number of ways it says the CAT could have protected the communicant’s position in costs, it failed to launch a claim and give the CAT that opportunity. Moreover, the Communicant could have sought to JR the impugned decision, rather than solely rely on the CAT process. The Communicant of course contests that position.

A decision on admissibility is awaited.

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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.

– 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.