Local Authorities Can Rely On The Aarhus Costs Cap Protection (But For A Limited Time Only?)

Author:Mr Christopher Stanwell and Tim Stansfeld
Profession:Nabarro LLP

Summary and implications

The Court of Appeal has upheld the High Court's ruling that the Aarhus costs cap protection applies to local authorities.

Aarhus Convention claims costs cap

The Civil Procedure Rules (CPR) provide that, for Aarhus Convention claims (claims which relate to the environment including environmental impact assessment and habitat regulations claims), a claimant cannot be ordered to pay over £5,000 (where the claimant is an individual), or £10,000 (for all other claimants), as liability for the other side's costs.

By way of background the Aarhus Convention has been ratified by the European Union and the United Kingdom and contains three pillars:

Access to environmental information held by public authorities. Participation in environmental decision-making by the public. Access to justice in environmental matters, which includes procedures to challenge decisions in a manner which is timely and not prohibitively expensive. The Court of Appeal's ruling

Following HS2 Action Alliance's (HS2AA) and London Borough of Hillingdon's (LB Hillingdon) judicial review of the Secretary of State for Transport's decision to make the safeguarding directions for Phase 1 of the HS2 project without carrying out a strategic environmental assessment (SEA), the High Court held that the Aarhus costs cap applied to local authorities.

The Secretary of State, in appealing against that High Court costs ruling, sought to argue that the benefit of the costs cap was dependent on the claimant being a "member of the public concerned" from articles 2 and 9 of the Aarhus Convention, and that LB Hillingdon instead came within a separate mutually exclusive definition of a "public authority" in article 2.

The Court of Appeal unanimously held that, once it has been resolved that the claim is an Aarhus claim because of the nature of the decision, act or omission subject of the claim, further recourse to the Aarhus Convention is unnecessary. The costs liability of a party to that claim is dealt with under the CPR. Accordingly the Court of Appeal stated "it is neither necessary nor appropriate to refer to the Aarhus Convention in order to place a gloss upon the ordinary and natural meaning of the word 'claimant'" (per Lord Justice Sullivan).

Limiting Aarhus cost caps by amending the CPR

The background to the appeal is that the Ministry of Justice (MoJ) appears to wish to amend the CPR so as to exclude local authorities from the benefit of the costs cap. The...

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