As will be well known to many, the Aarhus Convention is given partial effect in domestic law by Part IX of CPR 46, which imposes costs limits for Aarhus Convention claims. Specifically: “a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Art. 9(1), 9(2) or 9(3)” of the Aarhus Convention (CPR 46.24(2)(a)).

This decision seeks to offer greater clarity as to the ambit of such claims and is therefore essential reading for those practising in environmental law. However, in my view, and with respect, it is wrongly decided, resting on flawed reasoning and a misreading of the caselaw, which I will explore at the end of this post.

The Appeal

HM Treasury appealed the decision of Lang J ([2024] EWHC 1943 (Admin)) that the claim was an Aarhus Convention claim, and thereby benefited from the costs protection afforded in CPR 46.

That decision arose from an interlocutory hearing to a judicial review challenging the decision by HM Treasury and the Secretary of State for Business and Trade to make the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 (SI 2023 No. 195) (“the 2023 Regulations”). The 2023 Regulations give effect to tariff preferences on Australian imports under a Free Trade Agreement (“FTA”) between the UK and Australia which was signed on 17 December 2021 and came into force on 31 May 2023.

In order to give effect to the tariff provisions of the FTA, the Appellants made the Regulations pursuant to Part 1 of the Taxation (Cross-Border Trade) Act 2018 (“the 2018 Act”) on 23 February 2023. 

The Respondent (i.e. the Claimant to the judicial review) alleged that the Regulations will harm the environment by adversely impacting on climate change, in particular the increased importation of Australian beef into the UK (which is more GHG intensive than the UK equivalent). They issued the claim on the basis that the Appellants had failed to assess the nature and extent of the carbon leakage for reasons which were illogical and/or irrational and that the decision was tainted by predetermination.

Further, the Respondent relied upon s.28 of the 2018 Act, which requires HM Treasury and the Secretary of State when exercising functions under Part 1 to have regard to relevant “international arrangements” to which the Government is party.

The Respondent alleged that the Appellant had failed to comply with s.28 by failing to take account of Article 4(1)(f) of the United Nations Framework Convention on Climate Change (“UNFCCC”) and/or misinterpreted the provision and the Paris Agreement; [31].

The question for the Court of Appeal to determine was whether the relevant provisions of Part 1 of the 2018 Act, and the public law principles on which the Claimant relied, fell within the scope of Articles 9(3) and 9(4) of the Aarhus Convention. 

The decision of Lang J

In her judgment at [12]-[14], Lang J determined that, arguably, the Appellants were required by s.28 to have regard to the UNFCCC and Paris Agreement, both of which concerned environmental issues. Further, even absent s.28, it was arguable that both treaties were material considerations that the Appellants were obliged to take into account. Both the requirement to have regard under s.28 and the public law grounds relied upon by the Respondent were therefore arguably “provisions of national law relating to the environment.”

Interpreting the Aarhus Convention

Holgate LJ undertook a detailed analysis of the Convention at paragraphs [34]-[50].

With regards to Article 9, Article 9(1) and (2) provide that parties to the Convention must provide procedures before a court or independent body for members of the public to pursue breaches of Article 4 (access to environmental information) and Article 6 (participation in permitting decisions for activities affecting the environment). 

Article 9(3) states as follows:

“In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, 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.”

Finally, Article 9(4) provides:

“In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

With regards to Article 9(3), Holgate LJ identified the key passage as “provisions of national law relating to the environment.” He found that the relative strength of the phrase “relating to” would determine the meaning of the phrase as whole; [75]. Determining the nature and strength of the phrase depends upon the surrounding language, the wider context of the legislation and its purpose; [77].

After having reviewed the caselaw ([78]-[81]), Holgate LJ endorsed the view of Lang J in R (ClientEarth) v Financial Conduct Authority [2023] EWHC 3301 (Admin) at [41] that, to fall within Article 9(3), the subject of a legal provision must be environmental or its purpose must be to protect or otherwise regulate the environment. This statement accurately reflects the language of Article 9(3), read in the context of the Convention as a whole and the jurisprudence; [81].

Interestingly, the Court also had regard to the travaux préparatoires to the Convention. In the original formulation of Article 9(3), the provision addressed access to proceedings about matters relating to environmental protection, a wider concept than the present iteration “to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law”; [83].

Further, the wording of the English version of Article 9(3) was amended again during the treaty’s formation. Originally, it referred to acts or omissions of public authorities “which contravene provisions of its national environmental law.” That was later changed to the present wording of Article 9(3).

However, the French version remained the same: “allant à l’encontre des dispositions du droit national de l’environnement.” Translated literally, that version correlates to the original English version. 

This confirmed for Holgate LJ that “relating to” is used as a strong connector – namely the relevant legal provision of national law should be to do with, or be concerned with, the environment; [88]. As such, Holgate found at [96] that there is 

“nothing in Art. 9 or the Convention read as a whole to indicate that the ambit of Art.9(3) extends to any decision in breach of any national law so long as that decision has an effect or impact on the environment. Instead, Art.9(3) only applies to a contravention of a legal provision which concerns, or is to do with, the environment, its protection or regulation.”

Holgate LJ’s conclusions

Following a thorough review of the caselaw at [97]-[131], the Court of Appeal held that all of the cases, bar one exception, correctly reflected the above interpretation of Article 9(3). 

The exception was the decision of Thornton J in R (Friends of the Earth Limited) v Secretary of State for International Trade [2021] EWHC 2369 (Admin), who found that a claim alleging that the Secretary of State had breach their Tameside duty in failing to gather sufficient information on whether the decision was consistent with the UK’s commitments under the Paris Agreement fell within the scope of Article 9(3).

Holgate LJ rejected the finding at [150]. The statutory scheme in that case was not concerned with the protection nor regulation of the environment, did not contain a provision requiring environmental effects (in the form of policy or otherwise) to be taken into account. Rather, it simply involved an application of public law. 

However, as expressed at [132]-[143], public law principles do not fall within the ambit of Article 9(3). Public law regulates the legality of the administrative actions of public authorities exercising a wide range of functions in many areas of public service, not simply environmental protection and regulation. Public law principles do not form part of our law relating to the environment. Their purpose is not to protect or regulate the environment; [132].  This is the case even where the principle is being applied to a factual matric which involves an environmental effect; [142]. As such, Thornton J’s decision in Friends of the Earth was wrong. 

Turning to Lang J’s decision in the appeal, the Court first found that the issue of whether a claim falls within Part IX of CPR 46 requires a definitive assessment by the Court, not simply whether it is arguably an Aarhus Convention claim. The determination of whether a claim benefits from the costs protection under CPR 46 must be made at the earliest opportunity (CPR 46.28(2)). It is insufficient to merely make a finding on whether the point is arguable; [72].

As to the substance of her judgment, the Court also found she had erred in her finding that the claim was an Aarhus Convention claim; [145]-[148]. Following a review of the relevant provisions at [18]-[30], Holgate LJ found that the purpose of s.28 of the 2018 Act is to require the Appellant to take into account international arrangements relevant to the function being exercised. The Act overall was aimed at regulating customs and trade, not the environment. There is nothing to suggest that Parliament treated the language of the provision as imposing a requirement for the protection of the environment; [145]. As such, the challenge at issue is one of breaches of public law. As already stated, such principles fall outside the scope of Article 9(3); [148].

Conclusion

In conclusion, the Court found as follows:

a.    Article 9(3) only applies to a contravention of a legal provision of national law which concerns, or is to do with, the environment, its protection or regulation.
b.    Public law principles do not fall within that definition. Nor do legal provisions that are, on an ordinary reading, unconcerned with the environment, but which are at issue on the facts of a case which concerns the environment. 

Importantly, the decisions in Venn v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 2328 and Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012 were affirmed as being correct. Specifically, that “provisions of national law relating to the environment” can include a policy which that national law requires to be taken into account, in so far as the policy is for the protection (or regulation) of the environment; [104]. Further, as in Austin, a claim for private nuisance can fall within Article 9(3) where it has a “close link with the particular environmental matters regulated by the Convention” and “confer significant environmental benefits” if successful; [112].

However, Holgate LJ’s finding that both the above cases did not conflict with his overall interpretation of Article 9(3) creates confusion as to why s.28 of the 2018 Act and public law principles on the facts of HM Treasury would not also fall within Article 9(3). I address this below.

The decision in Venn

The Claimant challenged a planning inspector’s grant of planning permission, on the ground that they had failed to have regard to policy contained in a draft local plan, in breach of s.70(2) of the Town and Country Planning Act 1990.

Sullivan LJ held that a broad interpretation is to be given to the term “environment”; [11]. “Environmental information” in the Convention includes measures affecting “the state of land” (Holgate LJ noted that it also includes air and the atmosphere; [98] of his judgment).  For a provision of national law to fall within Article 9(3), its purpose must be the protection of the environment; [16]-[17]. 

The Respondent in that case (the Secretary of State) argued that s.70(2) was not a provision of national law relating to the environment. However, Sullivan LJ disagreed. He found that much of the UK’s environmental protection was implemented through our sophisticated town and country planning regime; [15]. This is achieved through detailed policy, both national and local, to which decision-makers must have regard pursuant to s.70(2); [16].

Therefore, the Court found that, in the Aarhus context, “the UK’s combination of statute and policy, with the former requiring that the latter be prepared, taken into account and in some instances followed, is properly characterised as national law relating to the environment;” [17].

The decision in Austin

This case concerned a claim for private nuisance against the operator of an opencast coal mine. The Claimant sought a protective costs order, contending that the private nuisance claim came within the scope of Article 9(3). The defendant argued that private nuisance claims are simply intended to protect private rights and therefore fall outside Article 9(3); [14]-[15].

The Court of Appeal held that it would be wrong to exclude all claims of private nuisance from the scope of Art.9(3), irrespective of the potentially significant public interest in wider environmental benefits which they may bring if successful. Private individuals can play a valuable role in helping to ensure adherence to good environmental standards even if in the process they are also vindicating a private interest; [17]. This was in line with the UK Government’s previous admission before the Aarhus Convention Compliance Committee that the law of private nuisance formed part of the country’s law relating to the environment; [19]-[20].

However, the Court held that it must be shown that a claim in private nuisance meets two requirements to fall within Art.9(3). First, the nature of the claim must have a “close link with the particular environmental matters regulated by the Convention”. Second, the claim must, if successful, confer significant public environmental benefits; [22].

The view in HM Treasury

Holgate LJ confirmed that the decision in Venn was correct. Specifically, that “provision of national law relating to the environment” can include a policy which that national law requires to be taken into account, in so far as the policy is for the protection (or regulation) of the environment; [104]. 

This approach rests on the fact that the UK’s environmental protection is largely implemented through the planning scheme, such that it would deprive Article 9(3) of its effect if a distinction was drawn between policies that relate to the environment and the law which does not directly do so; [140]-[141].

However, Holgate LJ clarified that a mere challenge of an alleged breach of s.70(2) of the Town and Country Planning Act 1990 is not sufficient to fall within Article 9(3); [105]. S.70(2) is not itself a legal provision relating to the environment. It only falls within Article 9(3) where the material consideration left out of account was a policy for the protection or regulation of the environment. Indeed, Holgate LJ noted that a judicial or statutory review in a planning case may be based upon other provisions of our national law which do relate to the environment; [106].

Further, the decision in Venn is “not transferrable to open-ended statutory requirements to take into account relevant considerations in other legislation enacted for non-environmental purposes, such as funding for overseas projects, financial market controls or international trading arrangements;” [141]. This would result in an overly broad application of both Articles 9(3) and (4). The Court stressed that it had heard no such submissions. However, the Claimant’s submissions if adopted (see [66]-[70]) would essentially have achieved that outcome.

Similarly, though addressed in less detail, Holgate LJ confirmed that the decision in Austin was consistent with his findings; [113].

Issues with the reasoning of Holgate LJ

In my view, and with respect, this reasoning is unsatisfactory. In respect of Venn, this approach rests solely on the conclusion that a significant proportion of the UK’s environmental protection is achieved through the planning system. That is true to an extent, but there are many other areas in which environmental protection is also achieved. An important example would be trade and taxation, in which more or less carbon intensive goods can pass across the UK’s borders depending on the relevant tariffs applicable to those imports; see my earlier blog post on WTO law and the EU’s fledgling carbon border tax. The statutory scheme by which decisions on import duty are regulated is Part 1 of the Taxation (Cross-Border Trade) Act 2018. 

Pursuant to s.28 of that Act, the Government is required to take into account relevant international arrangements. This mirrors the language in s.70(2) (and s.38(6) PCPA): the decision-maker is required to take into account material considerations, but not environmental matters specifically.

For s.28, this could, depending on the facts of the case, include the UNFCCC and the Paris Agreement, perhaps the two most significant international treaties for the protection of the environment from climate change. In other contexts, different treaties concerning environmental protection would be relevant.

Under Holgate LJ’s reasoning, s.70(2) TCPA 1990, when concerned with a policy relating to the environment, falls within Article 9(3) and thereby benefits from costs protection. However, s.28 of the 2018 Act, when concerned with an international treaty for the protection of the environment, would not fall within Article 9(3).

The reason which distinguishes the two outcomes is that the planning regime is the main source of environmental protection in the UK. However, though true in many ways, that conclusion fails to appreciate the myriad ways in which other regimes also protect the environment. It cannot be said that environmental protection is only afforded by legal controls on development. By imposing, in my view, a narrow and artificial distinction between the environmental protection afforded by planning law by comparison to other regimes, the Court of Appeal’s decision has imposed an arbitrary distinction which has significantly curtailed the ambit of Article 9(3). Article 9(3), and the Aarhus Convention more broadly, is not confined to environmental law which protects the environment from the effects of development.

In respect of Austin, it remains unclear why a claim based on the tort of private nuisance, accepted by Holgate LJ and the Court in Austin to be concerned with property rights, can fall within Article 9(3) when sufficiently connected to the environment, but that same reasoning cannot apply to public law claims. Indeed, public law when viewed in isolation is concerned with ensuring that public authority decision-making is lawful, but the context of that decision will determine whether the claim concerns environmental protection or regulation or not. Given that factual circumstances may influence whether private nuisance could be considered a provision of national law relating to the environment, the Court failed to explain why the same could not apply to public law (or indeed any other area of law).

Finally, it is arguable that the Court’s reliance upon Austin and Venn rests on an outdated understanding of environmental law and protection. There is high authority for the proposition that statutes must be read as if they were ‘always speaking’; namely that their interpretation be updated to appropriately reflect the circumstances and context of the present day. Both Venn and Austin predate (e.g.) the signing of the Paris Agreement, a decisive turning point in the global consensus on climate change, and the greater appreciation of the effects of human action (including government decision-making) on the environment that has emerged heretofore. By taking such an approach the Court adopted, in my view, an overly narrow interpretation of “national law relating to the environment.”

The consequences of this approach are significant. Those bringing claims alleging a failure to take account of material consideration in the context of planning (i.e. under s.70(2) or s.38(6)) which concerns environmental protection will benefit from costs protection under CPR 46. However, those bringing similar claims, but falling outside of the planning regime, will not benefit from such protection and will therefore be deterred from bringing such claims. In practice, this means claimants such as environmental NGOs could be prevented from bringing important climate cases, since the claims would fall outside the protected Aarhus regime. This runs directly counter to the Aarhus Convention’s aim to remove financial and procedural barriers to environmental justice.

Further, the HM Treasury approach treats environmental considerations in decision-making as incidental unless anchored in an environmental-purpose statute. However, public bodies often have broad duties to consider climate or environmental impacts as part of their functions, even if they only arise through public law or a general-purpose provision. If an authority fails to heed those considerations, a judicial review could be framed as a straightforward breach of the requirement to take into account material considerations. But the Court’s ruling suggests that unless the duty itself is explicitly an environmental one, the claim is not an Aarhus matter. This could mean that the more integrated environmental concerns become across public authority decision making (especially that of central Government), the harder it may be to claim Aarhus protections, because those concerns would reside in general legal duties rather than stand-alone environmental provisions. Paradoxically, where a public authority actually takes greater steps to consider climate impact this may, under the Court’s test, result in more restricted access to justice, since few of those laws would themselves be specifically related to the regulation or protection of the environment.

A better approach

A better approach, in my view, is to apply the reasoning in Venn to all cases which give rise to a material consideration that concerns the environment. There is no good reason why the environmental protection in those cases should not benefit from the same rule in Venn. That includes s.28 of the 2018 Act, but also all cases where a provision requires the taking into account of material considerations and that consideration concerns the protection or regulation of the environment. This would satisfy the “strong connector” approach as set out by Holgate LJ at [87] – on the facts of the particular case, the legal provision combined with the material consideration would be related to the regulation and/or protection of the environment. Those provisions may be, on their face and within the context of the wider statutory scheme, unconcerned with environmental protection, but they become so when the material consideration is an environmental one (c.f. [138] of the judgment). That is how environmental protection is effectuated, in planning as elsewhere. 

Though Holgate LJ warned that this would result in an overly broad application of Article 9(3), in my view this is merely a reflection of the various ways in which environmental protection is afforded through law. Though the consideration of environmental protection may be more obvious in the context of built development, it is equally important in the context of provisions applicable to import duty, which potentially require consideration of the UK’s obligations under the Paris Agreement.

The same considerations would apply to public law. Though public law considered in isolation is undoubtedly concerned with the rule of law and the separation of powers (see [132]), when applied in an environmental context, it becomes concerned with the regulation and/or protection of the environment.

Both approaches share exactly the same characteristics as that proposed in Venn – namely a provision or public law principle falls within Article 9(3) when the material consideration concerns the environment and does not where no environmental concerns arise. It requires a fact-specific assessment on a case-by-case basis, as in Austin. However, it removes the simplistic distinction that such scenarios only apply to planning law because that is how the UK’s environmental protection is implemented. 

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