The Claimant’s claim centres on entitlement to Single Agricultural Payment in respect of a stinted pasture in County Durham. Given the environmental purposes of the SAP statutory scheme, the Claimant claimed the costs protection in  Section 9 of CPR Part 46, capping his adverse costs liability to £5,000. 

Having at first not taken the point, the Secretary of State belatedly disputed the applicability of the cost protection rules. A series of consequential interlocutory applications were made in connection with this dispute which came for determination on 10 March at the District Registry of the High Court in Leeds. 

In a detailed judgment handed down this morning, Mrs Justice O’Farrell ruled that, whilst the Secretary of State would be permitted to raise the dispute, the claim was an Aarhus Convention claim, as alleged a breach of national law relating to the environment, within the scope of Article 9(3) of the Aarhus Convention. In reaching this conclusion, she applied the finding of the Court of Appeal in HM Treasury v Global Feedback Limited [2025] EWCA Civ 624 that “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”, and which endorsed the approach of the Court of Appeal in Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328 that a broad interpretation should be given to the term “environment” based upon the wide ambit of the definition of “environmental information” in Article 2(3) of the Convention. 

Having considered the relevant EU and UK legislative framework, Court accepted that “the purpose of the above legislative provisions, pursuant to which the Scheme was implemented, was agricultural and environmental protection. Under the statutory framework, payments under the Scheme were directly linked with cross-compliance, which was intended to achieve standards of good agricultural and environmental condition.”

The Claimant’s alternative arguments, that the claim fell within Article ((1) of the Convention, or that a protective costs order under the Criminal Justice and Courts Act 2015 should be made, were rejected.

Along the way, two other dicta of the court are notable. First, the judge once again reiterated that Aarhus cost protection, if claimed in the claim form and supported by evidence, applies automatically unless and until set aside by the Court on the basis of a dispute raised in an acknowledgement of service. Secondly, the court accepted the submission, supported by R v Oxfordshire, ex parte Sunningwell [2000]1 A.C. 336 and Cotham School v Bristol City Council [2024] EWHC 154 (Ch), that the Commons Act 1965 is itself national law relating to the environment as “legislation … affecting or likely to affect” the state of the “water, soil, land, landscape”.

The Claim, issued more than a year ago and delayed by these interlocutory disputes, has now been identified as suitable for expedition. Those with an interest in the law of commons may therefore expect some interesting assessment of the character of stinted pastures and the interplay between registration and subsidy schemes later in the year. 

Brendan Brett acted for the successful claimant. 

A copy of the judgment can be read here.