Court of Appeal considers Article 7 of Aarhus in…

The Court of Appeal’s recent decision in HS2 Action Alliance Ltd, Buckinghamshire County Council, Heathrow Hub & others v. Secretary of State for Transport [2013] EWCA Civ 920 concerned conjoined appeals against the decision of Ouseley J. [2013] EWHC 481 (Admin) to dismiss various challenges to the Command Paper High Speed Two – Decisions and Next Steps (“the DNS”) setting out the Government’s strategy for the High Speed Two railway to follow a “Y” network from London to Birmingham, Manchester and Leeds as well as the details of Phase 1 of the route: See HS2 in the Court of Appeal

There was some consideration given in that case to Article 7 of the Aarhus Convention

1. In the judgment of the Master of the Rolls and Lord Justice Richards it was said:

“46. Finally, Mr Elvin submits that the SEAD [Strategic Environmental Assessment Directive] must be interpreted harmoniously with the United Nations Economic Commission for Europe‟s Convention on access to information, public participation in decision-making and access to justice in environmental matters (“the Aarhus Convention”), Article 7 of which provides:
“Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, with a transparent and fair framework, having provided the necessary information to the public. Within this framework article 6, paragraphs 3, 4 and 8 shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the environment.”
He says that it would be incompatible with the obligation imposed by Article 7 to exclude plans and programmes such as the DNS from the public consultation requirement in Article 6(2) of the SEAD. It is no answer to say that there will be public participation in accordance with the EIAD, since by then it will be too late to consider the strategic alternatives to the project.
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63. ... we turn to the point based on Article 7 of the Aarhus Convention. We are prepared to assume that the SEAD should be interpreted harmoniously with the Aarhus Convention, although there may be some doubt about this: see Inter-Environnement v Bruxelles per the Advocate General at paras 22 to 24 of her Opinion. But our conclusion that the DNS is not a plan or programme setting the framework for future development consent does not in our view involve any incompatibility with Article 7. If a plan or programme does not set the framework, it is difficult to see how Article 7 can have been intended to apply to it. In such a case, the requisite degree of public participation can be achieved through compliance with the requirements of the EIAD in the development consent procedure for a specific project.
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The appellants‟ submission is that the March 2010 Command Paper determined the competent authority for adopting the plan or programme and the procedure for preparing it. To the extent that it is necessary to show a degree of legally enforceable regulation of the process by which the DNS was to be adopted, this existed in the form of the Government‟s Code of Practice on Consultation, which was engaged by the requirement in the Command Paper for formal public consultation. The DNS was also required in the sense that the Government had generated a legitimate expectation that following consultation it would publish its confirmed final strategy for HS2. The interpretation is also said to be necessary in order to achieve compatibility with Article 7 of the Aarhus Convention.

2. Sullivan LJ (dissenting) said:

“Aarhus
175. I accept Mr. Elvin‟s submission that the SEAD should be interpreted harmoniously with the United Nations Economic Commission for Europe‟s Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 1998 (the Aarhus Convention), Article 7 of which provides:
“Public participation concerning plans, programmes and policies relating to the environment
Each Party shall make appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment, within transparent and fair framework, having provided the necessary information to the public. Within this framework article 6, paragraphs 3, 4 and 8, shall be applied. The public which may participate shall be identified by the relevant public authority, taking into account the objectives of this Convention. To the extent appropriate, each Party shall endeavour to provide opportunities for public participation in the preparation of policies relating to the enviroment.”
176. In paragraph 63 of their judgment the Master of the Rolls and Lord Justice Richards refer to paragraphs 22-24 of the Advocate General‟s Opinion in Inter-Environnement Bruxelles and suggest that there may be some doubt as to whether the SEAD should be interpreted harmoniously with the Aarhus Convention. In my view there is no doubt about this issue. Paragraphs 22-24 of the Advocate General’s in Inter-Environnement Bruxelles formed part of the reasoning which led her to the conclusion, which the Court rejected, that the word “required” excluded plans and programmes the drawing up of which was not compulsory.
177. In the Aarhus Convention the term “plans or programmes‟ is not defined, they must „relate to the environment‟, but there is no requirement that they must contain measures, rules or procedures which must be complied with in the development consent process. Prior to the EU‟s ratification of the Aarhus Convention on 17th February 2005, the Public Participation Directive 2003/35/EC amended existing EU environmental legislation in order to achieve compliance with the Aarhus Convention. The SEAD was not amended because it was considered to be compliant with the obligations under Article 7: see recital (10) and Article 2(5) of the Public Participation Directive. It would not be compatible with the obligation imposed by Article 7 of the Aarhus Convention to exclude “plans or programmes” such as the DNS from the need to comply with the public consultation requirement in Article 6.2 of the SEAD that:
“…the public referred to in paragraph 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure.”
178. I am troubled by the conclusion of the Master of the Rolls and Lord Justice Richards that because the DNS does not, in their view, set the framework for future development consent it is difficult to see how Article 7 of Aarhus can have been intended to apply to it. We know that the Government did, in fact, engage in a comprehensive consultation exercise prior to adopting the DNS (see paragraphs 84-109 above). In my judgment, a conclusion that even if there had been no consultation prior to the adoption of the DNS there would have been no breach of Article 7 of Aarhus would not be in accordance with the purposive interpretation of EU environmental legislation that has been consistently adopted by the CJEU. For the reasons set out in paragraphs 156-158 above, it is no answer that there will have to be public participation in accordance with the EIAD. By the time that consultation takes place consideration of strategic alternatives will have been foreclosed by the legislative process and the pass will have been sold.
179. For these reasons I conclude that the DNS is a “plan” within the scope of the SEAD. It is not excluded from the scope of the Directive simply by reason of the fact that development consent is being sought via the hybrid bill process.”