Rivers, Rights of Way and Nuclear Power Stations: New Aarhus Communications

Three recent communications to the Aarhus Compliance Committee (available here) illustrate the ongoing debates and controversies which surround the Aarhus Convention and its proper ambit.   The first, Communication ACCC/C/2013/95, concerning a dispute with Crawley Borough Council over a right of way adjacent to the complainant’s property was held to be outside the scope of the Convention and so inadmissible.  Following the introduction of CPR 45.41 which provides for costs protection in Aarhus cases, the proper limits of the Convention is likely to be the subject of ongoing debate (see, for example, R (Venn) v Secretary of State for Communities and Local Government [2013] EWHC 3546 (Admin) paragraphs 7-16).

An important communication, ruled admissible, is Communication ACCC/C/2013/91, in which the complainant (a member of the German Parliament but acting as a private citizen) complains that the failure of the UK Government to provide the German public with opportunities to participate in the environmental decision making process to construct two nuclear reactors at Hinkley Point violated Article 6 of the Convention.  The complaint, if upheld, could have significant implications for national infrastructure projects.

Communication ACCC/C/2013/90, also found to be admissible, raises more familiar issues.  The complaint wishes to challenge an EIA screening decision that the grant of planning consent for the relocation of settlement lagoons (involved in the production of concrete) to within 40m of a Special Area of Conservation was not likely to have significant effects on the environment.  The complaint, a not-for-profit organisation which manages fishing rights on the River Faughan, challenges the lack of consultation on the EIA screening decision.  Additionally, the complainant asserts that the retrospective grant of planning consent for development now immune to enforcement action due to passage of time amounts to a failure to facilitate public participation in environmental decision making.  Finally, the complainant asserts that judicial review, the only remedy available to the complainant, is prohibitively expensive.  The Compliance Committee has suspended consideration of the complaint pending the outcome of judicial review proceedings initiated by the complainant.