The case concerned an application by the Defendant Council for a declaration that the Claimant’s statutory review of a decision to grant an experimental traffic regulation order was not an Aarhus Convention Claim, or in the alternative, that the standard costs cap be increased to £35,000.

Background

On 20 March 2025, the Defendant granted The Central Bedfordshire Council (Prohibition of Motor Vehicles) (BOAT NO.33, Sandy Lane, Apsley Heath) Experimental Order 2025 (“the Order”).

The Order imposed a blanket prohibition on the use by all motorised vehicles of a byway open to all traffic known as Sandy Lane, Apsley Heath.

The Claimant challenged the granting of the Order under Paragraph 35 of Part VI of Schedule 9 to the Road Traffic Regulation Act 1984 (“RTRA 1984”). The Claimant asserted its claim was an Aarhus Convention claim within the meaning of CPR 46.24.

Pursuant to CPR 46.27(5)(b), an application to vary the Aarhus costs cap must be made by the Defendant in their acknowledgement of service. In this case, an application was not made. Therefore, the Defendant applied for an extension of time under CPR 3.9 in relation.

The Court’s decision

Whether relief from sanctions should be granted

The Judge emphasised that the CPR rules place clear demands on both parties; [14]:

“Claimants must claim the Aarhus costs protection benefit at the very beginning of a claim and must supply the relevant financial information at the inception of a claim. Defendants must notify any disagreement or desire to vary the costs cap at their earliest opportunity, namely the filing of the AoS form. It is then incumbent on the Court to make an early decision on the dispute before more significant costs are incurred. The rules are strict so as to ensure reasonable predictability at an early stage.”

In this case, the Claimant complied with the rules but the Defendant did not. Indeed, within their acknowledgement of service, the Defendant did not dispute that the claim benefitted from the Aarhus costs cap, nor could they provide a good reason for why they had failed to comply with the CPR rules.

Applying the well-known principles in Denton v TH White Ltd [2014] EWCA Civ 906, the Court found that the Defendant’s acknowledged breach of the rules was a serious one; [17].

The Judge further found that, given that proceedings in these claims do not include a permission stage, both Parties had incurred additional costs in preparing for the application. This was in the context that the Defendant had applied to lift the cap some 21 days after their acknowledgement of service had been filed. There was no good reason for the breach; [19].

Finally, applying the final limb of the Denton test, namely whether, upon examination of all of the circumstances of the case, discretion ought to be exercised to grant relief, the Court found that, given the nature of the breach and lack of good reason, the application should be refused; [20].

The application to lift the Aarhus costs cap

Though the Defendant’s application to extend time was refused, the Judge nevertheless considered whether the claim fell within the Aarhus costs cap in any event.

In submitting that the claim should not benefit from the cost cap, the Defendant relied upon the following passage of Holgate LJ’s judgment in Global Feedback:

“151. Likewise, it would be wrong for a judge simply to ask whether a claim or ground of challenge is to do with the protection of the environment or with the effect of a decision or legal provision on the environment. Instead, it is necessary to return to the language of the Convention and its purposes as established in the case law, and to have in mind the principles for the interpretation of international treaties (see e.g. [88]-[90] and [121] above). Put in a nutshell, what matters is whether the purpose of the national law that has allegedly been contravened is to protect or regulate the environment, not, whether the decision being challenged has an effect on, or some connection with, the environment.”

In light of this passage and the Aarhus Convention’s Implementation Guide as an aid to construction, the Defendant submitted that the relevant sections of the RTA 1984 do not regulate environmental quality, set environmental standards or create environmental obligations. Nor is the subject matter of the provisions environmental because their purpose is not to regulate the environment.

By contrast the Claimant highlighted section 1 of the RTA 1984,  which directs the local authority making the order to have regard to a number of factors including (1) for avoiding danger to persons or other traffic using the road or for preventing the likelihood of any such danger arising, (2) for preventing damage to the road, (3) for facilitating the passage on the road or any other road of any class of traffic (including pedestrians), and (4) for preserving or improving the amenities of the area through which the road runs. Further, s.122 RTA 1984 requires local authorities to have regard to the effects of a potential Order on local amenities and the national air quality strategy. Each of these was alleged to relate to the environment.

Giving her reasons, the Judge first cited the following paragraphs from Global Feedback:

“137. In determining the extent to which Art.9(3) may apply to any of the above scenarios, an essential question is whether the claimant is able to allege that the defendant has contravened a national legal provision for the protection or regulation of the environment. That will depend upon the wording, context and purpose of the provision under which the defendant has acted.

138. Take for example a defendant which has acted under a statute the purposes of which are not in general for the protection or regulation of the environment. The legislation may nonetheless contain a provision which requires a particular factor to be taken into account and the language or context demonstrates that the object of that provision is to protect or regulate the environment. In that situation Art.9(3) will most likely be engaged. But another piece of non-environmental law may simply impose a general obligation to take into account all relevant considerations without more. Venn indicates that a provision of that kind does not engage Art.9(3). I agree. The purposes of such a provision is not to protect or regulate the environment.”  

The Judge found that s.122 RTA 1984 must be read as a whole. It specifically directs the decision maker to take certain matters into account. Those other matters include the “amenities” of any locality affected and more particularly, recognition of the importance of regulating and restricting the use of some roads by heavy commercial vehicles “so as to preserve or improve the amenities of the areas through which the roads run”. The Judge found that these were “patently environmental matters” and that it is “clear that when section 122 is read as a whole it is directed at making decisions with environmental considerations at the forefront of the decision maker’s mind”; [37].

Turning to s.1 of the RTA 1984, which frames the circumstances in which it is expedient to regulate the highway network, the Judge noted that the provision includes inter alia the prevention of damage to the road or to any building on or near the road (s1(1)(b)) and to prevent road use by vehicles which are unsuitable having regard to the existing character of the road ss1(1)(d) and (e).

When compared to the definition of environmental information in Article 2(3) of the Aarhus Convention, the Judge was satisfied that the wording in s.1 was concerned with the protection and/or regulation of the environment; [41].

As such, the Judge found that the claim benefited from the Aarhus costs cap and the Defendant’s application would have failed in any event; [43].

Analysis

Many interpreted the Court of Appeal’s judgment as a significant curtailment of the scope of Aarhus Convention claims. This judgment reaffirms that the ambit of “provisions of national law relating to the environment” remains wide. Indeed, as the Judge noted at [37], at first blush the provisions at issue were not concerned with the protection of the environment. A closer reading than that offered by the Defendant in this case is therefore required to determine whether a claim is one which properly benefits from the Aarhus costs cap.

The judgment also offers useful guidance on the procedural rules concerning applications to lift costs caps. Defendants who do not lodge their objections within the acknowledgement of service will receive short shrift from the Courts. Subject to a good reason being offered for the delay, cost caps will remain in place unless disputed in the early stages of proceedings.

Gabriel Nelson is a barrister at Francis Taylor Building specialising in environmental, planning and public law.

Brendan Brett appeared for the Claimant in this case. Esther Drabkin-Reiter was involved (for the Claimant) in earlier related proceedings. Neither have had any involvement in the drafting of this post.