Aarhus Convention Compliance Committee declares…

The UNECE Aarhus Convention Compliance Committee has this month made a preliminary ruling that the two communications against the United Kingdom and the European Union arising out of the legal challenge to the UK Government’s proposals for the High Speed 2 railway are admissible and will proceed to a full hearing in Geneva. The Committee’s decisions on admissibility have regard to the merits and significance of the communication as well as whether domestic remedies have been exhausted.

The communications follow the litigation in the High Court, Court of Appeal and Supreme Court in which it was contended that the January 2012 “Decisions and Next Steps” Command Paper (known as the “DNS”) setting out the Government’s strategy for HS2 and the details for Phase 1 failed to comply with the EU Strategic Environmental Assessment Directive 2001/42/EC. The Courts held that the consultation leading to the DNS had not provided the public with sufficient information about the environmental impacts of HS2 and the reasonable alternatives to it so as to amount to a strategic environmental assessment under the Directive, but that this did not render the DNS unlawful because the SEA Directive did not apply as the DNS did not “set the framework for development consent” for HS2, which was a necessary precondition for the applicability of the Directive.

The first communication is against the United Kingdom. It alleges that the failure to provide sufficient environmental information about HS2 and its reasonable alternatives amounts to a breach by the UK of Article 7 of the Aarhus Convention, which requires effective public participation in plans or programmes relating to the environment, regardless of whether they “set the framework for development consent”.

The second communication is against the European Union. It alleges that, on the Supreme Court’s interpretation of the term “set the framework for development consent” in the SEA Directive, the Directive’s scope excludes a range of plans and programmes which are subject to Article 7 of the Convention and, in the absence of any other EU legislation requiring Member States to subject such plans to effective public participation, the EU has failed to comply with its obligations under Article 7 to put in place a regulatory framework for the public participation in such plans and programmes within the EU.

The documents relating to the communication and the timescale for the UK's and EU's representations to be filed will shortly be available from the UNECE website: http://www.unece.org/env/pp/pubcom.html