In this judgment, the Court of Appeal (Longmore, Sullivan and Lewison LJJ) considered the Secretary of State’s cross-appeal in the challenge to the HS2 safeguarding directions, in which he sought the reversal of the Order of Lindblom J. granting the second claimant, the London Borough of Hillingdon (“LBH”), an Aarhus protective costs order under CPR r. 45.41-45.44 and Practice Direction 45 para. 5.1.
The Secretary of State submitted that (i) whether a claimant is entitled to an Aarhus PCO under CPR r 45.41-45.44 and PD 45 para. 5.1 was to be determined by reference to whether they are a ‘member of the public concerned’ within the meaning of Articles 2 & 9 of the Aarhus Convention, and (ii) a local authority claimant was not a ‘member of the public concerned’ within the meaning of Articles 2 & 9 because it fell within the separate definition of a ‘public authority’ under Article 2.
LBH submitted that (i) the CPR provisions were clear that whether a claimant is entitled to an Aarhus PCO falls to be determined by reference to whether the decision challenged is, or is claimed to be within the scope of the Aarhus Convention, (ii) as the CPR was unambiguous on this point, the Aarhus Convention could not be relied upon to achieve a contrary interpretation that would undermine the clear wording of the CPR, and (iii) in any event, the terms ‘public authority’ and ‘member of the public concerned’ under Articles 2 & 9 of the Convention were not mutually exclusive for all purposes, and a local authority acting not in its capacity as a decision-maker but instead bringing a judicial review claim in the interests of its constituents (pursuant to its powers under s.222 of the Local Government Act 1972) was a “member of the public concerned” in that context despite the fact that it would be a “public authority” when acting in its capacity as a decision-maker on the receiving end of a judicial review claim.
The Court unanimously agreed with LBH’s first and second submissions, and held that since this was sufficient to determine the cross-appeal, it was neither necessary nor appropriate to resolve the dispute as to the proper interpretation of the Convention, particularly since that issue was likely to be resolved in LBH’s pending communications to the Aarhus Compliance Committee against the UK and EU in relation to HS2, which are likely to be considered at a hearing in Geneva later this year.