The Aarhus Compliance Committee publishes draft…

The Aarhus Compliance Committee have recently published its draft findings on communication ACCC/C/2012/68 concerning compliance by the United Kingdom and the European Union.

Ms. Christine Metcalfe on behalf of the Avich and Kilchrenan Community Council, submitted a communication to the Compliance Committee alleging that the United Kingdom and the European Union had failed to comply with their obligations in relation to the renewable energy programmes and two related projects, for a wind farm and its access route, in the area of Argyll, Scotland.

The communication alleged non-compliance with all 3 Pillars of the Convention in respect of “the implementation of the renewable energy programme, which involved also the implementation of a number of individual wind energy projects” and “the adoption process of a recent European Commission communication on renewable energy policy (Renewable Energy: a major player in the European Energy market” (COM(2012)271))”

The background to this case was Directive 2009/28/EC and the obligation on Member States have to develop National Renewable Energy Plans (NREAPs) – something the Committee has already considered, see paras. 21-23 of communication ACCC/C/2010/54.

The Committee considered whether given the communication was made on behalf of a community council – similar to a parish council in England – it was admissible. It rules:

“Admissibility of the communication
79. The Committee notes that according to decision I/7, annex, paragraph 13(a), its function is, among other things, to consider submissions and communications. Submissions may be brought by one or more Parties about another Party’s compliance or by a Party concerning its own compliance (decision I/7, annex paragraphs 15 and 16); communications may be brought by members of the public concerning compliance by a Party (decision I/7, annex paragraph 18) .
80. The present complaint was submitted as a “communication”, on behalf of the Avich and Kilchrenan Community Council, a body with statutory duties within the Party concerned (UK). In this respect, the Committee considers whether the complaint at issue qualifies as a communication under paragraphs 18 of the annex to decision I/7.
81. In order to define the nature of the complaint, the Committee examines the role of community councils in Scotland. Although community councils have statutory duties in terms of licensing and planning, they have no regulatory decision-making functions and are essentially voluntary bodies established within a statutory framework. They mainly act to further the interests of the community and take action in the interest of the community as appears to be expedient and practicable, including representing the view of the community regarding planning applications. In addition, community councils rely on grants from local authorities and voluntary donations. Community Council members furthermore operate on a voluntary basis and do not receive payment for the services.
82. The Committee was also informed by the Party concerned (UK) that the representations from the Avich and Kilchrenan Community Council with regard to the projects at stake were recorded under the same section as representations from members of the public and non-governmental organizations.
83. Based on the above, in particular the role of the council to represent the interests of the community in planning matters and the fact council members provide their services on a voluntary basis, the Committee decides to consider the present complaint as a communication under paragraph 18 of the annex to decision I/7.”

This approach is consistent with R (Halebank Parish Council) v Halton Borough Council (unreported, 30 April 2012) where HHJ Raynor QC held, in considering a protective costs order application, that the claimant a parish council fell within the definition of the “public” for the purposes of the Aarhus Convention. There is no transcript of this decision available.

The approach of the Committee would rule out public authorities with “regulatory decision-making functions” that are not essentially voluntary bodies relying on the Convention.

The complaints based on failure to provide information were not upheld, and many of the allegations of failure to provide public participation also failed. However the Committee found that:

“100. NREAPs are plans or programmes under article 7 of the Convention (see findings on ACCC/C/2010/54 (ECE/MP.PP/C.1/2012/12), para. 74) and as such are subject to public participation. The fact that the UK’s Renewable Energy Strategy, which informed the NREAP, was subject to public participation does not affect this conclusion, given their different legal status and functions in the EU and UK legal framework respectively.
101. The Committee concludes that because the UKs NREAP was not subjected to public participation, the Party concerned (UK) failed to comply with article 7 of the Convention, in this regard.
…
106. The Committee finds that because the UKs NREAP was not subjected to public participation, the Party concerned (UK) failed to comply with article 7 of the Convention.
107. In view of its consideration in paragraph 77, the Committee points the Party concerned (EU) to its findings and recommendations in communication ACCC/C/2010/54 (EU).”

The draft findings can be found at
http://www.unece.org/env/pp/compliance/compliancecommittee/68tableeuuk.html

The case has attracted national media attention: see “UN ruling puts future of wind farms in Britain in jeopardy” Independent, August 27, 2013 (Online edition).