1

The Boydell Lecture – 18 June 14

The Aarhus Convention – where are we now?

by

Lord Hope of Craighead KT1

Last year’s lecturer, George Bartlett, knew Peter Boydell very well. They had worked

together for many years, ever since George Bartlett’s earliest days as a pupil. So he was able

to give his audience a masterly description of that outstanding advocate. Your lecturer a year

before that, Lord Kerr, said that he had never met Peter Boydell, but rather wished he had. I

regret that I too am in the same position as Lord Kerr. Peter and I never met. But there were

at least two occasions when, had his engagements elsewhere not got in the way, we might

well have done so.

One was a case which I had in or about 1970 under the Scottish Private Bill procedure. It

was about water in Loch Lomond. The authority responsible for the supply of water in and

around Edinburgh wanted to use water from Loch Lomond to supplement the supply from its

own reservoirs. Statutory authority was required for this scheme, as the water was to be

supplied to Edinburgh by means of a pipeline. So an application was made for a provisional

order under the Private Legislation Procedure (Scotland) Act 1936. An inquiry was directed

to be held in Scotland before four Parliamentary Commissioners. It was duly held in

Edinburgh, but the confirmation bill was opposed. That intervention, to the great good

fortune of young members of the Bar such as myself who were looking for work, caused the

bill to be referred to an enlarged committee of six Commissioners which was to sit in

London. The proceedings were held in the House of Lords, and they lasted for two weeks

which, for me as the junior member of quite a large team, were most enjoyable. Our

application was successful, and the Loch Lomond Water Scheme was inaugurated in the

1 I am grateful to Jack Connah of Francis Taylor Buildings for his kind help in preparing for this lecture.

2

summer of 1971. Some years later I was involved in another provisional order. This time it

was for what became the Zetland Act 1974, which gave Shetland Islands Council

extraordinary powers over the waters around Shetland as part of the planning for the Sullom

Voe oil terminal. But that bill was dealt with entirely in Scotland. So the Loch Lomond

application was the closest I ever came to the work here in London of the Parliamentary Bar,

of which Peter was such a distinguished member. Sadly he was not among those who guided

us through that process.

The other occasion when we might perhaps have met was a long-running planning inquiry

which took place in one of the most beautiful areas of the West Highlands of Scotland during

the autumn, winter and spring of 1973-1974. Oil had recently been discovered in the North

Sea – a valuable addition to the list of commodities on which I was able to base my practice,

the others being coal, Scotch whisky and, of course, water. The issue was whether two

leading UK construction and engineering companies should be given permission to construct

concrete platforms for installation in the North Sea. They wanted to do this on land close to a

sea loch a short distance from the Kyle of Lochalsh, which separates the Isle of Skye from the

mainland. The applicants could afford to employ leading and junior counsel from England.

The late Michael Mann QC, as he then was, another distinguished member of Peter’s

chambers, was one of those who came north to take part in the inquiry. Sadly Peter was not

among them. That was a great pity, as we had a lot of fun in comfortable hotels set in a

lovely part of the country, albeit battered from time to time by the gales and blizzards that are

frequent there during that part of the year. It was during the miners’ strike, when in the dying

days of Edward Heath’s government the country was reduced to a three day week to conserve

electricity supplies. That did not trouble us, as in our part of the country all the electricity we

3

needed there was provided by generators. I do wish that Peter had been with us so that I

could have got to know him during that happy time.

Developments to service the oil industry were the subject of a long list of public local

inquiries throughout Scotland during the 1970s and 1980s. I was fortunate enough to be

involved in quite a number of them. They took me to the West Highlands, as I have just

mentioned, to Peterhead in the North East three summers running, to Fife and to both Orkney

and Shetland. And then there were a series of inquiries into proposals to lay pipelines from a

terminal at St Fergus north of Aberdeen to Grangemouth in Central Scotland. Looking back

on that experience, I am struck by two things that are relevant to what I want to speak to you

about this evening. The first is how little we were troubled in those days by issues that we

would now regard as part and parcel of environmental law. It is not that there were no

environmental issues. The risk of pollution was always a big issue. The point is that we did

not use the words “the environment” to describe what we were thinking about, and there were

no European directives on the issue to trouble us. The second is that, while the cost of

opposing these developments could of course be substantial, individual objectors did not

seem to be deterred by this. The fact was that most of the burden of protecting what we now

regard as the environment was borne by the local authorities and by NGOs such as the

National Trust for Scotland, the Royal Society for the Protection of Birds (“the RSPB”) and

Scottish Natural Heritage. Those private individuals who did appear in those inquiries

represented themselves, and there was never any question of costs of other parties to the

inquiry being awarded against them under the relevant statutory power2. The opportunities

for appeal under the statute are quite limited and, where they were used, the issues that were

raised were of interest only to the Secretary of State, the local planning authority and the

2 See Local Government Act 1972, section 250(2) and Town and Country Planning Act 1990, section 322(2).

4

proposed developer. Judicial review as we now know it was not introduced in Scotland until

1982 and it took some time before the opportunities that it gave for challenge in planning

cases were fully appreciated. So the question whether members of the public who objected to

what was being proposed, or wanted to challenge the decision of the Secretary of State, were

being deterred by cost from taking part in the inquiry process or any subsequent challenges in

the courts was not, so far as I can recall, seen as an issue of public concern while these

inquiries were going on.

Things began to change when directives on environmental matters began to emerge from the

European Council. One of the first was a Council Directive of 1979, known as the Birds

Directive3. It provided for the maintenance of the population of particular species of birds

and for special conservation measures to be taken to serve that purpose. Ever since the

publication in 1962 of Rachel Carson’s book Silent Spring we had, of course, been aware of

the damage that the human race was doing to the environment. But progress in the UK to

enact measures to protect the environment had been rather slow. The steep decline in many

of our favourite birds such as the skylark, the lapwing and the cuckoo, and of the sea bird

colonies around our coast line, which has been observed in recent years had not yet really

started in this country. There seemed to be no reason for urgency. But, to its credit, the EEC,

as it then was, thought otherwise. In the preamble to the Birds Directive it was noted that a

large number of species of wild birds naturally occurring in the European territory of the

Member States were declining in number, very rapidly in some cases, and that this decline

represented a serious threat to the conservation of the natural environment. Among its

concerns was the protection of migration routes used by regularly occurring migratory

species, and the risk of deterioration of natural habitats. The 1979 Directive was reinforced

3 Council Directive 79/409/EEC of 2 April 1979.

5

and to an extent replaced by a Council Directive of 1992, known as the Habitats Directive4.

That Directive was implemented in this country by the Conservation (Natural Habitats, etc)

Regulations 19945.

The first reported example of steps being taken in our courts to enforce these environmental

protection measures came in 1994. In December of the previous year the Secretary of State

for the Environment had decided to designate the Medway Estuary and Marshes, a wetland of

international importance, as a special protection area under the Birds Directive. But this area

lay close to the Port of Sheerness, one of the largest ports in the UK for cargo and freight

handling and well located for access to domestic markets and the sea. So the Secretary of

State decided to exclude from the area which was to have special protection a portion of

mudflats immediately adjoining the Port of Sheerness. The RSPB objected to this decision,

on the ground that the Secretary of State was not entitled to have regard to economic

considerations when classifying a special protection area. Litigation ensued. The Divisional

Court held that the Secretary of State was so entitled, and its refusal to quash the decision was

upheld by a majority in the Court of Appeal. The House of Lords then sought a preliminary

ruling on the issue by the ECJ, and the Court of Justice upheld the RSPB’s objection6. The

cost of bringing these proceedings, and of pursuing them all the way to the House of Lords

and beyond, must have been substantial – well beyond the reach of most private individuals.

Fortunately for the avocets and little terns that bred on the site and the wildfowl and wader

species that used it as a staging post during the spring and autumn migrations, the RSPB was

able to face up to the cost of doing so. The fact that they were in the end successful must

have enabled them to recover at least some of their costs, and they did not have to face

4 Council Directive 92/43/EEC of 21 May 1992.

5 SI 1994 No 2716.

6 Reg v Secretary of state for the Environment, ex parte Royal Society for the Protection of Birds [1997] QB

206.

6

paying the costs of the Secretary of State. But there must have been times during the

progress of the case through the courts that a heavy liability in costs was seen to be a very

real possibility. It required a legal team with a steady nerve. At the end of the report of this

case in the Law Reports, which is called Reg v Secretary of State for the Environment, ex

parte Royal Society for the Protection of Birds (Port of Sheerness Ltd, Intervener), it is

recorded that the solicitor for the RSPB was Richard Buxton of Cambridge.

Richard Buxton’s name appears again at the end of the next case that I wish to mention

before I come to the Aarhus Convention. But, as the chronology of events is of interest, I

should mention that although the Convention was signed at Aarhus on 25 June 1998 it was

not approved by the Council on behalf of the European Community until February 20057.

This is the case of Berkeley v Secretary of State for the Environment, which was heard by the

House of Lords in June 20008. It was about a proposal to redevelop Fulham Football Club’s

football ground at Craven Cottage on the banks of the River Thames between the bridges at

Hammersmith and Putney. The proposal was to create a riverside walkway which would

encroach slightly into the river and to carry out some remodelling of a retaining wall. The

applicant, Dido Berkeley, lived in a house near the site. She had studied ecology and was

concerned about the effect of the development on the diversity of species in the river. She

was able to find support for her objection in Regulations made in 19889 which had

implemented the environmental impact assessment Directive of 198510

. They required a

developer to carry out an assessment of the effects of certain public and private projects on

the environment. The Club’s scheme had been the subject of detailed, careful and informed

consideration, and the local planning authority had consulted a large number of organisations,

7 Council Decision 2005/370 EC of 17 February 2005.

8 [2001] 2 AC 503.

9 Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1199).

10 Council Directive 85/337/EEC of 27 June 1985.

7

including the London Ecology Unit. But the developer had not provided an environmental

impact statement as described in the Regulations. There was a public inquiry at which

witnesses dealt in detail with the effects of the proposal on the ecology of the river. The

Secretary of State, having received the inspector’s report, granted permission for the project.

Lady Berkeley had attended the inquiry and submitted a written statement, but her objection

was rejected. She applied for the grant of planning permission to be quashed because no

environmental impact statement had been undertaken. Once again Mr Buxton’s client had no

success in the lower courts. But she took her case to the House of Lords, obtained leave to

appeal and won her case there. This was on the ground that the Regulations, read in the light

of the Directive, required that the information as to the environmental effects of the proposal

had to be obtained by means of a particular procedure, which had not been carried out. What

was true for the RSPB about the costs of litigation in the case of the Sheerness case was as

true, if not more so, for Lady Berkeley. She went ahead nevertheless without, so far as I can

recall, seeking a protected costs order or any other means of limiting her exposure to a

liability in costs. She might well have done so if the Aarhus tests had become part of EU

law. But that had not yet happened.

We now move from the banks of the River Thames to Rugby. One of the features of that

town, with which I was very familiar as I went to school there in the 1950s, was a large

cement works situated to the northwest, close to the West Coast railway line. Huge columns

of white smoke could be seen billowing out of its chimneys day after day, at a time when the

environmental effects of smoke pollution were of much less concern that they are now.

Nowadays there is a cement-making plant there that uses the latest technology in cement

making. Authorisation for it was granted in 1999 under the Environmental Protection Act

8

1990. In 2000 a new system of pollution control introduced Regulations11

to give effect to a

Council Directive about integrated pollution prevention and control12

. They imposed limits

on emissions and on the extent to which pollution may affect the air quality. In 2001 the

cement company applied for a permit for changes to the operation of the cement works which

included a proposal to replace some of the fuel for the plant with shredded rubber tyres. In

August 2003 a permit for the company to continue to operate the plant after making these

changes was issued by the Environment Agency.

At first blush, a proposal to burn shredded tyres to provide fuel for a cement plant sounds

highly objectionable. It is not altogether surprising, then, that members of the public who

lived in Rugby took exception to it. In fact the tyres were to be burned in a modern state of

the art kiln at temperatures of up to 1,400 degrees C, with no significant effects on the

environment. But the prospect, in the minds of the public, was of a process that would result

in much dense, black smoke and a very unpleasant smell. So an application was made on

environmental grounds for judicial review of the Agency’s decision to issue a permit to the

company. The proceedings were brought in the name of Mr David Edwards, a local resident.

It may not surprise you if I was to tell you that his solicitor was Richard Buxton. Mr

Edwards’s claim was dismissed at first instance, so he took his claim to appeal. But on the

last day of the hearing he withdrew his instructions to counsel and his solicitors. Somebody

else had to be found if the proceedings were to continue. Mrs Pallikaropoulos, who had been

a leading light in the public campaign against the proposals, agreed to put her name to the

proceedings. The Court of Appeal dismissed her appeal. She was granted leave to appeal to

the House of Lords. But it too dismissed her appeal.

11

Pollution Prevention and Control (England and Wales) Regulations 2000 (SI 2000/1973). 12

Council Directive 96/62/EC of 27 September 1996.

9

So Mr Buxton’s luck had turned. On the last two occasions his clients had won at the final

stage. On this occasion his client lost. As a result, the issue of costs now became a live issue.

By this time the Aarhus test, which requires that such proceedings must be “fair, equitable

and not prohibitively expensive”, had become part of EU law. It had been incorporated by

amendment into the environmental impact assessment directive13

and a directive about

pollution prevention and control14

and, by a directive issued on May 200315

, implementation

was required by 25 June 2005. Mr Edwards had obtained legal aid for the taking of

proceedings at his instance. Indeed, as the judge at first instance noted, it could be inferred

that it was for this reason that he had been put up as the claimant, as Mrs Pallikaropoulos

owned her own house and did not qualify for legal aid. Up to then the proceedings had been

at public expense and without significant risk of an adverse costs order. But now Mr Buxton

had a client who was having to rely entirely on her own funds. But, as he appreciated, she

could invoke the protection of the Aarhus test.

Counsel for Mrs Pallikaropoulos proposed that her liability to costs in the Court of Appeal

should be capped at £2,000, and an order to that effect was made when the appeal was

dismissed. I do not think that limiting her liability was linked at that stage to Aaarhus. But

the issue was raised on her behalf when she was faced with the requirement for bringing an

appeal to the House of Lords16

for security for costs to be given in the sum of £25,000. She

asked for that requirement to be dispensed with and for a protective costs order, but those

applications were refused by the judicial office after consultation with one of the senior Law

Lords. She was informed that the House did not consider that any case had been made for

saying that the proposed appeal would be prohibitively expensive or that the Aarhus directive

13

See fn 9, above. 14

See fn 11, above. 15

Council Directive 2003/35/EC of 26 May 2003, article 6. 16

This rule was departed from when the appellate jurisdiction of the House of Lords was transferred to the UK

Supreme Court.

10

had been breached. She decided nevertheless to proceed with her appeal. Aarhus had not, of

course, been forgotten by Mr Buxton. The question was raised again when the successful

parties in the House of Lords sought an order for the costs of the appeal. But the House,

without giving reasons, made a costs order against her in the usual terms without any

limitation or cap on the amount that could be awarded. The matter then came before the costs

officers in the UK Supreme Court, which had by now come into existence. They decided that

the Aarhus test should be taken into account when determining the amount of the costs to be

awarded, but their decision was objected to by the successful parties. They sought a review

of their decision, and the issue was referred to a panel of five justices over which I presided.

By that stage yet another case involving one of Richard Buxton’s clients, which had an

important bearing on how we approached the issue, had come before the courts.

This was R (Garner) v Elmbridge Borough Council17

. Mr Garner was an architect who had a

long standing interest in the conservation of historic buildings. He had objected to the

granting of planning permission for the redevelopment of Hampton Court Station and of

other land on the opposite bank of the Thames from Hampton Court Palace. He applied for

judicial review and he also applied for a protective costs order. Here last year’s lecturer,

George Bartlett, makes a brief re-appearance – it is a small world, indeed. He was required to

consider the application on the papers, sitting as a deputy High Court judge. He refused

permission to apply for judicial review, and the matter might well have stopped there. But

Mr Garner renewed his application and, after a good deal of to-ing and fro-ing, it was agreed

that it should proceed to a rolled up hearing with the substantive application to follow if

permission was given. That raised the question whether a protective costs order should be

17

[2010] EWCA Civ 1006, [2011] 3 All ER 418.

11

granted. Nicol J, applying the Corner House principles18

, refused to make the order. But his

decision was reversed in the Court of Appeal, and it was here that the Aarhus issue came to

life. Sullivan LJ pointed out that Corner House had not been concerned with environmental

litigation of the kind raised by Mr Garner. So its conditions had to be modified so far as was

necessary to comply with the Aarhus test that had been written in to the directives, bearing in

mind that it had already been held by the European Court that it was not sufficient to rely on

judicial discretion after the event19

. The judge had refused to grant the order because it was

impossible, in his view, to tell whether the proceedings would be “prohibitively expensive”

as he had no detailed information about Mr Garner’s resources. But Sullivan LJ said20

that

this raised an important issue of principle: should that issue be decided on an “objective”

basis, by reference to the ability of an ordinary member of the public to meet the liability; or

on a “subjective” basis, by reference to the means of the particular client. He decided that a

purely subjective approach would not be consistent with the objectives underlying the Aarhus

directive, and that without a protective costs order the liability and costs of an unsuccessful

appellant was likely to be prohibitively expensive to anyone of ordinary means. He observed

too that an intrusive investigation into their means would be likely to have a chilling effect on

the willingness of ordinary members of the public to challenge the lawfulness of

environmental decisions. So he decided that a protective costs order should be granted, and

the other members of the court agreed with him.

This presented the Supreme Court justices with a problem. The costs officers’ decision to

take the Aarhus principles into account was directly contrary to the order of the House of

Lords, which gave them no such authority. No reasons were given for that order, as it was

18

See R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1

WLR 2600. 19

Commission of the European Communities v Ireland (Case C-427/07), [2010] Env LR 123, [2009] ECR I-

6277. 20

Ibid, para 42.

12

not the practice for the House to do this when decisions were being made about costs. But I

knew, as I was a party to the making of the order, that we had not applied our minds to the

point raised by Sullivan LJ in Mr Garner’s case. I also saw that the point that his case had

raised was just as important in Mrs Pallikaropoulos’s case too, as she also had not given the

court any details of her resources. Her argument for not doing this was that the Aarhus test

had to be applied objectively. It seemed to me that the question whether that was the right

approach was not capable of a simple answer. So I thought that the proper course was to set

the House’s order for costs aside so that we could look at the matter again, and to refer the

issue to the CJEU for a preliminary ruling before we decided what we should do. Happily,

after we had heard argument on these points, my colleagues agreed with me21

. So the issue

went off to Luxembourg.

We had been able to look at some materials which suggested, on balance, that Sullivan LJ’s

objective approach to the issue was likely to have been the correct one. But there was

another question that seemed to us to be important and on which a preliminary ruling was

also required. This was whether some modification should be made to the Aarhus test at the

stage of a second appeal. It seemed to us to be questionable whether the public interest was

best served if a limit had to be imposed at that stage on the liability of an unsuccessful litigant

whose argument had already been considered and rejected twice in the courts below. What

article 10a of the two relevant directives requires Member States to do is to ensure that

members of the public should have access to a review procedure before a court of law, or

another independent and impartial body established by law, to challenge the substantive or

procedural legality of decisions that are subject to the public participation provisions of the

Directive, and that the procedure for doing this is “fair, equitable, timely and not

21

R (Edwards) v Secretary of State for the Environment (No 2) [2010] UKSC 57, [2011] 1 WLR 79.

13

prohibitively expensive.” Access to that procedure can reasonably be said to include access

to a procedure for an appeal if there is a point that deserves the attention of an appeal court.

But what about a second appeal, assuming that the member of the public lost the first time

round and was unsuccessful at the second stage too? Ought there not, in the public interest,

be some limit to the number of unsuccessful appeals that can be undertaken at the expense of

a successful public authority? The public has an interest in the protection of the environment.

But it could be said, too, that it has an interest in limiting a public authority’s exposure to

irrecoverable costs, as they will have to be paid for out of public funds at the expense of the

taxpayer.

Before the case came back to us from Luxembourg steps had been taken, after consultation

on the issue, to make rules about the costs protection for litigants in environmental cases in

the High Court. These rules can be taken to have solved the issue at first instance as from 1

April 2013, when they came into effect22

. The costs recoverable by a defendant from a

claimant who is an individual have been limited to £5,000 or to £10,000 in any other

circumstances; and there is a reciprocal cap of £35,000 on the costs recoverable by a claimant

from a defendant. But those figures do not appear in the rules that apply in the Court of

Appeal23

and the Supreme Court24

. Provision is made for the making of protective costs

orders, but the level at which any such order may be set is left open to argument according to

circumstances of each case. So it is at this level that there is still life in the questions that

were put to the CJEU for its preliminary ruling as to the approach that should be taken.

22

CPR 45.41 to 44 and Practice Direction 45. 23

CPR 52.9A. 24

Supreme Court Practice Direction No 13, para 2.2.c.

14

The material that is now available for guidance, apart from the language of Aarhus itself,

consists of three decisions: the ruling by the CJEU in April 2013 on the questions referred to

it by the UK Supreme Court in December 201025

; the judgment delivered by Lord Carnwath

on behalf of the Supreme Court that disposed of Mrs Pallikaropoulos’s application in

December 2013 in the light of the rulings by the CJEU26

; and the judgment of the CJEU of 13

February 2014 in infraction proceedings brought by the European Commission against the

United Kingdom, for failure to fulfil its obligation under the environmental directives to

transpose and apply correctly the relevant articles in domestic law27

. You can, of course, read

all these cases for yourselves. So I am not going to go over all the details. Taking them stage

by stage, and concentrating on the essential points only, it seems to me that this is what they

tell us.

First, there is the CJEU’s decision of April 2013 on the reference by the Supreme Court. We

are told that the assessment cannot be carried out solely on a subjective basis. It must also be

carried out on an objective analysis of the amount of the costs, bearing in mind the role of the

public in defending the environment. But it cannot be based exclusively on the estimated

financial resources of an average applicant, as that may have little connection with the

situation of the claimants. So the court may take their situation into account, as well as

whether they had reasonable prospects of success, the importance of what was at stake for

them and for the protection of the environment, the complexity of the law and the potentially

frivolous nature of the claim at its various stages. But there are two important qualifications.

The fact that a claimant was not deterred from asserting his or her claim is not, in itself,

enough to show that the proceedings were not prohibitively expensive for the purpose of the

25

Case C-260/11, [2013] 1 WLR 2914. 26

[2013] UKSC 78, [2014] 1 WLR 55. 27

Case C-530/11.

15

directives. And the assessment cannot be carried out differently depending on whether it is

being carried out at first instance, on appeal or at the stage of a second appeal.

When he was analysing these propositions in the Supreme Court, Lord Carnwath said that he

did not understand the last point to mean that the same order must be applied at each stage of

the proceedings or that there had to be a single global figure covering all potential stages.

Rather, the same principles should be applied at each stage, taking account of the costs

previously incurred. But the considerations at each level may be different. As Advocate

General Kokott had pointed out in her opinion in the Edwards case28

, it was possible that the

public interest in the further continuation of the proceedings would be reduced after the

decision by the lower court. So it was compatible with the Aarhus test for the issue to be re-

examined at each level of jurisdiction. And the weight to be given to both objective and

subjective considerations could vary according to the circumstances of the individual. A

person who had extensive economic interests in the enforcement of environmental law could

be expected to bear higher risks in terms of costs than a person who could not anticipate any

economic benefit. As for the latter, it had to be borne in mind that the environment could not

defend itself before a court but needs to be represented by active citizens or NGOs. I had

already made that point myself a few months before the Advocate General delivered her

opinion. In Walton v Scottish Ministers29

, drawing on my own experience when objecting on

environmental grounds to a wind farm close to my cottage in Perthshire, I said that an Osprey

which I had been observing, whose route to and from its favourite fishing loch was at risk of

being made much more dangerous by the presence of 16 turbines on our neighbour’s hillside,

had no means of taking that step on its own behalf. If its interests were to be protected,

someone had to be allowed to speak up on its behalf.

28

See fn 24, above, paras 58-61. 29

[2013] UKSC 44, 2013 SC (UKSC) 67, par 152.

16

We did not have the European Court’s judgment in the infraction proceedings before us when

we were considering what order to make in Mrs Pallikaropoulos’s case. We were able to take

from the Advocate General’s opinion, which was already available, the point that the court

must ensure that the costs at all levels of jurisdiction were not prohibitive or excessive. That

was not a significant factor in her case, however, as her liability for costs in the Court of

Appeal had been capped at £2,000. The successful parties had agreed to limit their claim to

£25,000, which was the amount of the security which was already in court. We were unable

to say that a cap of that amount was subjectively unreasonable. As for the objective

approach, that amount was a very significant reduction from the costs that the successful

parties were likely to have incurred in what was a relatively complex case which had taken

three days before the House. The issue as to the true meaning of the directive was of some

difficulty, but by the time it reached the House it was of limited practical significance and we

did not see any clear evidence of more general public support by that stage for an appeal at

that level. The appeal could not be said to have been frivolous, but there had been a serious

risk that it would not succeed. So we found it impossible to say that, viewed objectively, the

figure of £25,000 failed to meet the test laid down by Aarhus.

What then of the CJEU’s judgment in the infraction proceedings? We were asked to defer

our decision in Mrs Pallikaropoulos’s case until it was available. But the resolution of the

case had already been much delayed, and we did not think that any more definitive guidance

was to be expected from that judgment for our purposes. The Commission had received a

complaint – we are not told who the complainer was, but one may be forgiven for thinking

that it was perhaps a client of Mr Buxton – that the UK had not complied with its obligations

17

under the directive which required implementation of the Aarhus test in domestic law30

. It

was not satisfied with the UK’s responses, so it referred the matter to the Court of Justice.

The Commission’s point was that these obligations could not be satisfied merely by case law

and that, even if they could, the case law did not go far enough. The European Court did not

entirely go along with that. The basic requirement was that the legal situation must be

sufficiently precise and clear so that the parties know the full extent of their rights and are

able to rely on them before the national courts. It could not be said that every judicial

pronouncement could not meet that standard. But it held that the regime laid down by our

case law did not ensure the claimant reasonable predictability as regards both whether the

costs of the proceedings in which he becomes involved are payable by him and their

amount31

.

Interesting though this judgment is, there are two reasons for thinking that it has nothing of

any real value to add to the previous jurisprudence about the application in practice of the

Aarhus test. The first is that the issues as to how this should be done which were discussed

by the European Court in the Edwards case were not, as such, subjected to any further

examination. The Court contented itself with an endorsement of the main points that were to

be taken from its previous judgment32

. There was no further elaboration. So the Supreme

Court was right not to defer its decision until this judgment was issued. The second is that,

according to the Court’s settled jurisprudence, the subject matter of the proceedings was

delimited by the letter of formal notice by the Commission and its reasoned opinion which

was issued to the United Kingdom on 22 March 2010. So it was to how matters stood at that

date that its adverse finding was directed. Things have moved on a good deal since then. We

30

See fn 14. 31

See fn 26, para 58. 32

See ibid, paras 44 to 55.

18

now have the Court of Appeal’s decision in Garner 33

until which, as was conceded by the

UK government, our case law did not comply in every respect with the Aarhus test’s

requirements. Moreover the matter has been further clarified by the judgments in the

Edwards case, in which the CJEU itself has played a key role. We have also sharpened up

our approach to this issue in the rules as to costs that apply at every level34

. So it seems

reasonable to think that the system we now have would survive scrutiny were the

Commission to be asked to look at it again, and that the CJEU for its part would be unlikely

to make a declaration as matters stand today that the UK was still failing to transpose the

obligations of the directive correctly.

There is, after all, a limit to the amount of precision that can be achieved in a matter of this

kind. As the European Court’s own judgment in the Edwards case shows all too clearly, an

assessment as to whether the procedure in question is prohibitively expensive will always, in

the end, be a question of fact and degree. The answer is bound to vary from case to case. All

a court can do, when it is asked to provide guidance, is to set out the basic principles. A fixed

costs regime can, of course, go further. That is what has been done at the level of the High

Court, where limits have been set at levels which on any view cannot be said to impose a

burden which is prohibitively excessive. At the higher levels, too, the obligation to apply the

Aarhus test is now set out expressly. That there is more flexibility here, to allow each case to

be considered on its own merits, seems entirely appropriate. No departure from Aarhus is

intended, or from the proposition that the assessment cannot be carried out differently

depending on whether it is being carried out at first instance, on appeal or at the stage of a

second appeal. But allowance has to be made for the fact that the public interest in the

resolution of any issues that are apt for judicial consideration may diminish at each stage as

33

See fn 16. 34

See fns 21-23.

19

issues are clarified. As Lord Carnwath said in Edwards when he was rejecting the

submission that the question what was objectively reasonable was answered definitively by

the figures embodied in the High Court rules, the factors affecting the judgment of what is

objectively or subjectively reasonable may have changed. The test in principle remains the

same, but the court is considering it in a different context35

.

How does this all look from the point of view of the claimant – of people such as myself, who

wish to stand up for the Osprey? My own involvement, as is the case with so many people,

was confined to the stage of the local public inquiry. A liability in costs was not an issue for

me. I did have some difficulty in getting my point across to the Reporter (as the Inspector is

called in Scotland) as I did not have the support of the RSPB, whose list of especially

sensitive wind farm cases where it could afford to intervene did not include mine. He did not

seem to be much interested in studying the bird directive. But his decision on the facts was

beyond any reasonable challenge and, as it happens, the Osprey that I had been concerned

about – my record of its use of the route went back to 1976 – no longer uses it and appears

now to have died. Had there been a point of law on which the Reporter’s decision on the

Secretary of State’s behalf could reasonably have been challenged, I would have had to

decide whether to take the matter further. At that stage the costs implications would have

been an important factor. I would have had to balance just how important the Osprey’s safety

was to the future of the environment in my area. Fortunately Ospreys are not as rare in

Scotland as they were 38 years ago when my bird made its first appearance on our hillside. I

would probably have decided to let the matter go.

35

See fn 25, para 33.

20

But the relative weight to be given to the risk to one bird, however magnificent it is, not same

as the prospect of widespread damage to the local environment that so troubled Mr Buxton’s

clients in the Sheerness mudflats, Fulham football ground, Hampton Court Station and Rugby

cement works cases. It is easy to see that, for people such as them, the balance is likely to be

the other way. There must be some concern, of course, at the possibility that much needed

improvements, such as the much-delayed Aberdeen by-pass which was held up for many

years by Mr Walton, will be the subject of proceedings by people who claim the protection of

Aarhus as persons concerned about the environment but are really are no more than

troublemakers. But even Mr Walton, who was widely thought to be a mere troublemaker,

still had a point to make when his case reached the Supreme Court. The answer to this

concern, surely, lies in the permission requirements that must be satisfied at each level in the

proceedings. Mere troublemakers and those making frivolous claims can be silenced at that

stage. And it has been held at first instance that another of Mr Buxton’s clients who proposes

to bring proceedings in private nuisance is not entitled to a costs protection order, on the

ground that Aarhus does not apply to proceedings of that kind36

. The directives that have

adopted the Aarhus test do not seek to interfere with those aspects of the judicial process.

The point at which Aarhus bites is when permission has been or is being given in a case to

which it applies. As for meeting the Directive’s requirements, we made a slow start. But I

think that – thanks to the perseverance of Mr Buxton and his several clients, who have done

so much to explore the boundaries of this area of our jurisprudence – we can be said now to

have established a regime in this country which meets its requirements. We have achieved a

proper balance in the public interest in the protection of our environment.

David Hope 18 June 2014

36

Per HHJ Milwyn Jarman QC in Alyson Austin v Miller Argent (South Wales) Ltd [2013] EWHC 2622. An

appeal against that decision is due to be heard at the end of June 2014.

21