77 - Fingleton 2: Judgment Day

Welcome back, dear reader, to the Aarhus blog: the blog so esoteric that it has its own ancient and complex system of mystic rites.

One such ritual, that will be familiar to regular readers, is the outcry at the government’s plans to rip up whatever form of environmental legal protection is on the altar this week, and then – as night follows day – a sigh of relief at the final government announcement, which is usually a magnanimous and miraculous stay of execution.

So too the government’s response to the Fingleton review. We were told that Finch must be sacrificed: but lo! What is that, in yonder thicket? People Over Wind. Phew. We were being tested all along.

On 13 March 2026 the government’s long-awaited response to the Fingleton review was published, following on from the government’s previous endorsement of all of the recommendations and commitment to “complete implementation within two years.”

As regular readers will also know, some of the Fingleton recommendations were utterly bananas on the ambitious side. They included legislating to overturn Finch, further violence to the Habitats Regulations, and revoking the newly minted protected landscapes duties.

On Aarhus specifically, there were some truly avant-garde recommendations, including a requirement that the merits of the case be certified by advocates to the court (…), a cascading cost cap, capping costs at a percentage of funds raised, denying the cap to those seeking to delay development (um…….) and attempting to amend the Aarhus Convention if necessary.

Entertaining as all of that would have been to litigate, the government has, in its most recent announcement, committed to implementing precisely zero of those recommendations.

The response to the Fingleton review’s wider environmental law recommendations is also fairly muted: no mention of Finch, overturning People Over Wind (a longstanding bugbear of many ecologists), amending but not revoking the protected landscapes duties, a more strategic approach to the Habitats Regulations, EORs back on the table. A bit worrying to many in the eNGO movement, but nothing particularly devastating.

But what about Aarhus specifically? The word ‘Aarhus’ does not even appear in the government’s response, despite the many Aarhus-related suggestions contained in Fingleton Recommendation 20. Here is what the government says in response to Recommendation 20 (emphasis added):

“Judicial review plays a vital role in holding public bodies to account, but as the Taskforce highlighted, it can also enable repetitive or unmeritorious claims that delay Critical National Infrastructure, including new nuclear projects. Repeated challenges across multiple regulatory stages create uncertainty, increase costs, and risk undermining timely delivery of nationally important programmes.

An independent review by Lord Banner KC into delays to Nationally Significant Infrastructure Projects (NSIPs) in 2024 uncovered similar themes. That is why, through the Planning and Infrastructure Act 2025 and targeted updates to the Civil Procedure Rules (CPR), government has already introduced reforms to ensure that challenges against NSIPs are managed more swiftly and proportionately.

Building on this progress, the government will now extend the recent judicial review reforms beyond NSIPs and progress further reforms to modernise the costs regime, ensuring proportionality (recommendation 20).These changes will prioritise genuine legal challenges, strengthen the integrity of the judicial review process, deter misuse, and maintain appropriate access to justice, while supporting the timely deployment of infrastructure essential for energy security, economic growth, and net zero. We will also ensure that all measures are fully aligned with the UK’s international obligations.

The government will consult in Summer 2026 on the detailed proposals required to implement the Taskforce’s recommendation to extend the recent NSIP judicial review reforms to environmental permitting and nuclear site licensing. We will also consider whether similar reforms would be beneficial for other major planning regimes. Following consultation, the government will legislate to extend the NSIP JR reforms and invite the Civil Procedure Rule Committee (CPRC) to make the relevant changes to the CPR by the end of 2027. The government will also work with the CPRC to ensure the reforms operate effectively and invite them to make relevant amendments to the Environmental Costs Protection Regime via the CPR by the end of 2027."

Here is my take:

The (modest) recent NSIP JR reforms will likely be extended to all planning apps, and possibly nuclear licencing-type JRs.
No commitment to implement any of the Fingleton recommendations re: Aarhus cost capping or seeking to amend the Convention itself.
The government will think about amending the Aarhus cost capping rules, subject to its legal obligations under the Convention. Though it is unclear whether they have even committed to do this.
It is also unclear whether any proposed changes to the cost capping rules will be consulted on in Summer 2026- possibly, or possibly not.
It is similarly unclear whether any changes will be implemented by the end of 2027. This seems to be what the last sentence is getting at, but there isn’t an obvious link with the content of the previous paragraphs.

So: glad that’s all been cleared up!

That’s all for now, dear readers. See you next time - same time, same channel!

This blog post was written by Alex Shattock.

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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.