In these cases, the UNECE Aarhus Convention Compliance Committee considered two communications alleging that the United Kingdom was in breach of Article 9 of the Convention on the ground that private law nuisance proceedings are “prohibitively expensive” for claimants seeking to challenge environmentally deleterious acts.
Article 9(3) of the Convention provides that each party “shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”. Article 9, paragraph (4) requires that such procedures should not be “prohibitively expensive”.
The first communication, ACCC/C/85/2013, brought by the Environmental Law Foundation, alleged that s.46 of the Legal Aid Sentencing and Punishment of Offenders Act results in non-compliance because it means that a successful claimant cannot recover the premium for ‘after the event’ costs insurance from the defendant. The communicant’s case was that this means that the expense of insuring against a potentially large costs liability is prohibitive.
The second communication, ACCC/C/86/2013, brought by Alyson Austin, alleged that her intended nuisance claim against Miller Argent (South Wales) Ltd, who undertake coal extraction activities in the vicinity of her home, would be “prohibitively expensive” because of the potential costs liability she would face if the claim were to fail. Her application for a protective costs order failed before the High Court but an appeal was pending before the Court of Appeal at the time of the hearing before the Compliance Committee.
The United Kingdom’s case was that:
1) Article 9(3) is not prescriptive as to what kinds of administrative and judicial procedures should be provided for members of the public to challenge acts and omissions which contravene provisions of national law relating to the environment, nor is it prescriptive as to what the provisions of national law relating to the environment should contain;
2) There are a range of administrative and judicial procedures by which members of the public in the UK may challenge acts and omissions which contravene provisions of national law relating to the environment;
3) The law of nuisance is therefore not a necessary plank of the UK’s compliance with Article 9(3) and is in any event a tort primarily focused upon damage to the claimant’s property interests rather than on enabling members of the public to put a stop to acts or omissions which contravene provisions of national law relating to the environment. The latter function is performed by, inter alia, Section 82 of the Environmental Protection Act 1990.
4) In any event, for an allegation of non-compliance with the Convention to be made out, the Compliance Committee would need to be provided with specific evidence of an instance or instances where
a. a member of the public has sought to rely upon the administrative and judicial procedures directed at enabling members of the public to challenge an act or omission which contravenes provisions of national law relating to the environment, but those procedures have been inaccessible, ineffective or prohibitively expensive; and
b. that member of the public would have been able to obtain an order requiring the cessation of the act or omission in question by bringing a nuisance claim; but
c. as a result of s.46 of the 2012 Act, bringing that nuisance claim would be prohibitively expensive.
5) No such evidence has been provided in the present case. The facts of ACCC/C/86/2013 do not demonstrate non-compliance because (inter alia) Ms Austin has a pending appeal against the refusal to grant her a protective costs order and she has therefore not yet exhausted her domestic remedies.
The Aarhus Convention Compliance Committee held a one-day hearing into the communications on 26 March 2014 and reserved their findings.
Charles Banner appeared for the United Kingdom, instructed by the Treasury Solicitor.