Ben Standing, partner in planning and environment at UK and Ireland law firm Browne Jacobson, explores the benefits and challenges brought by the Aarhus Convention
As the government seeks to turbocharge housebuilding and infrastructure development across Britain, one piece of international law has attracted increasing scrutiny.
The UK government and environmental regulations are on a collision course. An ambitious push to build 1.5 million homes during this parliament will only be possible, Whitehall believes, if it can untangle any obstacle in its way.
Planning rules deemed overburdensome and environmental red tape are therefore in the crosshairs, although legislators should tread carefully not to overhaul perfectly reasonable perimeters that ensure development is in the public interest.
More recently, the growing sentiment against environmental regulations has moved beyond UK legislation to capture international law.
The Aarhus Convention, in particular, has received criticism because some consider that it causes delays on major infrastructure projects by making it easy for the general public to make legal challenges on environmental grounds.
Supporters, however, say environmental justice should remain an open door for everyone, considering that the environment can’t protect itself, yet the condition of the environment impacts everyone. They also point to how increased checks and balances ultimately improve decision-making.
What is the Aarhus Convention?
The Aarhus Convention – named after Denmark’s second largest city – is a UN convention that was adopted by the UK in 2005. It covers three main pillars: access to information, the right to participate in environmental decision-making and access to justice.
The convention has spawned various implementing measures, including the environmental equivalent of Freedom of Information legislation – Environmental Information Regulations 2004.
The most contentious aspect, however, is how it has been enshrined into UK law through amendments to the Civil Procedure Rules (CPR), which govern court proceedings in England and Wales. In relation to a judicial review, claimants are entitled to a legal cost cap of £5,000 for individuals and £10,000 for organisations following unsuccessful claims, based on the principle that access to justice should be affordable and “not prohibitively expensive”. This figure can be amended depending on the resources available to the claimant, however.
In 2017, the scope of these caps was extended beyond judicial reviews to also include statutory reviews like planning challenges.
In practical terms, this means that if any person or group wants to challenge something on environmental grounds, they only need to cover their own legal fees and potentially the cost cap, not tens of thousands of pounds of the other side’s costs.
The idea is that ordinary people can therefore challenge actions they consider are causing harm to the environment – effectively giving the environment a voice.
Changes have been made in recent years that require claimants to submit details of their financial position when filing a claim, allowing courts to assess whether the cost cap needs adjustment for those with greater means, but standard caps remain the norm (with very mixed results for defendants when the cap is challenged).
Examples in practice
The Aarhus Convention applies across a wide range of environmental challenges, with about 80 to 100 cases brought in the UK each year.
In 2022, we advised the Marine Management Organisation (MMO) in successfully defending a judicial review challenge in the High Court regarding its decision to grant a marine licence connected to Hinkley Point C nuclear power station.
The case was brought by Tarian Hafren Severn Shield CYF – a group of scientists, organisations and individuals opposed to the disposal of material dredged from the Severn Estuary as part of the project back into the Severn because of concerns about radioactivity. The judge ruled in the MMO’s favour, although the cost of defending the case on the public purse was considerable, and only a small amount could be recovered from the claimant.
Perhaps the most well-known adopter of the Aarhus Convention in action is environmental group ClientEarth, which has judicially reviewed the government on numerous occasions about its clean air plans. It has succeeded in litigation on multiple occasions, forcing the government to produce multiple versions of clean air strategies to achieve legal goals.
Friends of the Earth has also been behind high-profile cases, challenging the UK government’s EU Withdrawal Bill,l given its significant environmental implications and attempting to block the expansion of Heathrow Airport – the Supreme Court eventually overturned the Court of Appeal’s decision that had halted this.
Many planning applications fall within Aarhus protections, making this law a significant consideration for development projects across the country. However, the majority of judicial reviews, including those with Aarhus cost protections, are unsuccessful.
Why critics want reform
Criticism of the Aarhus Convention is straightforward. Given this is one area of law where campaigners can bring a challenge with considerably more cost certainty, claimants are more likely to do so.
A campaigner might have £20,000 from crowdfunding and could pursue a claim through the courts for about £15,000, knowing that whatever the other side spends, they only have to pay £5,000 on the other side’s costs even if they lose. Even when there’s less than a 50% chance of winning, but still a reasonable possibility, they might just give it a go.
We act for many public bodies that have claims brought against them by action groups in relation to decisions with potential environmental impacts. It is very rare for their claims to be successful, and yet the cost to the public purse of just defending these claims can be high, as well as causing delays to projects. When authorisations are challenged, this causes uncertainty.
At a time when the government is desperately trying to accelerate housing delivery and infrastructure development, this creates obvious frustration. The argument runs that frivolous or weak claims are being brought because the financial risk is limited, tying up projects in legal challenges and draining public resources.
Benefits of the Aarhus Convention
However, this criticism misses crucial benefits that the Aarhus Convention brings to our justice system and public decision-making.
Even where campaigners don’t succeed with litigation, they often raise important issues in their scrutiny over how a public body has arrived at a decision, which must then be taken into account in future.
The mere threat of people being able to bring these claims and lawsuits, occasionally resulting in a judgment against a public body, can be enough to improve the quality of decision-making.
It’s also doubtful that the odd judicial review claim is what’s really slowing development down, given that judicial review claims only account for a very small percentage of total decisions made.
Arguments for limiting access to the justice system, by making it more expensive and weeding out “unnecessary” claims, don’t feel in the public interest. It is arguably not in line with the principle of “giving the environment a voice”.
There is also the benefit that some cases raise valid concerns. In our work acting for public bodies in environmental claims, we have witnessed how these threats have forced them to improve on how the decision-making process is recorded. Without such scrutiny, there may be a temptation across the board to push through decisions quickly at the expense of thoroughness. Widening access to justice, therefore, supports checks and balances, a key aspect of open democracy.
Why environmental justice deserves special status
One argument against Aarhus might be that surely all access to justice should be affordable, so why should access to environmental justice have a special status?
My response would be that the protection of the environment is for the protection of all, whether in relation to carbon emissions, river pollution or many other scenarios affecting nature.
And while an individual is able to defend themselves against an act of defamation or an organisation can turn to the law for protecting intellectual property, for example, the environment can’t protect itself in the courts without an entity speaking up on its behalf.
It is for society’s collective benefit that members of the public are able to scrutinise what public bodies do in relation to key issues such as the environment.
The real problem is underfunded decision-making
Building is very expensive, even before any potential legal challenges come into consideration.
Skilled construction workers are in high demand, driving up wages, while the costs associated with land, materials and borrowing have risen sharply in recent years.
Bottlenecks at the planning application stage also appear long before any threat of judicial review, with many local authorities experiencing a shortage of planning officers.
Frankly, if we want public sector decision-making to be of high quality, we must ensure there are enough people possessing the necessary skills and experience within those bodies to make good decisions.
This requires sufficient funding, as well as proper support for developers when submitting applications, so these include all the necessary information.
An overstretched and underfunded system ultimately risks poor-quality decisions and increased challenges as a result.
By stopping people’s ability to challenge, we are, in effect, accepting this. Aarhus dissenters may argue that the relative lack of success in such challenges indicates that decision-making is already of sufficient quality.
But this hides a wider truth – that the prospect of scrutiny, not just from the wealthy but a broad base, is vital in holding government to account and ensuring transparency.
Instead, we ought to address the underlying problems, which will inevitably lead to reduced environmental litigation.
A balanced approach: Potential reforms
While it’s this author’s belief that the Aarhus Convention plays an important role in our justice system, there may be scope for targeted reform that addresses concerns about frivolous claims without undermining access to environmental justice.
We should acknowledge the frustration and annoyance of frivolous claims being brought. Perhaps a solution more akin to the planning system for appeals would be appropriate.
In the planning system, both sides bear their own costs as standard, unless one side has acted unreasonably. If a local authority refuses consent with no logical basis, or doesn’t turn up to a hearing, it might be hit by costs.
Equally, if an appeal is brought with no rational basis by the developer, the council can claim its costs. But if there was a genuine point to be argued, each party pays their own costs.
In any Aarhus reform, the cost cap could be applied unless the judge disapplies it for unreasonable conduct. Most claims that are brought are not frivolous or unnecessary – most people do raise valid points of law, so most would probably still benefit from protection, but there would be a deterrent against truly unreasonable claims.
This approach would maintain affordable access to justice for legitimate environmental concerns, while providing courts with the power to penalise genuinely unreasonable litigation.
Final thoughts
Environmental legislation has evolved from being a niche concern in the 1990s to a mainstream priority in the 2020s.
There have probably been more challenges, but the challenge to the environment has become more acute as awareness of climate change has grown.
Twenty years ago, we didn’t have councils declaring climate emergencies. People have become more aware of their rights, and the body of environmental law under which claims can be made has grown.
By its very necessity, the more environmental law there is, the more challenges people can bring for breaching it.
Rather than viewing the Aarhus Convention as an obstacle to development, we should recognise it as an important safeguard that improves the quality of public decision-making.
The real barriers to getting things built in Britain are not the occasional judicial review, but rather the chronic underfunding of local planning authorities, skills shortages, labour constraints, and inadequate resources for timely, high-quality decision-making.
If we want to turbocharge development while protecting our environment, the answer isn’t to restrict access to justice – it’s to invest in the capacity and capability of our public sector decision-makers.
Only then can we ensure development proceeds on a sound footing, with proper environmental safeguards that benefit us all.
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