Aarhus cost cap protection still applies to local authorities, Court of Appeal rules in high-profile HS2 case

Ref. HS2AA and LB Hillingdon v Secretary of State for Transport [2014] EWHC 2759

At High Court level, the Claimants argued that the Defendant (SofS for Transport) acted unlawfully in using statutory powers to make safeguarding directions for Phase 1 of HS2. In particular, they claimed that safeguarding directions ought to have been assessed under the regime for strategic environmental assessment (SEA) in Directive 2001/42/EC. The Secretary’s failure to do so, in their opinion, rendered them unlawful and liable to be quashed.

The claim concerned the proposed High Speed Two railway (HS2) which is, in the Government’s view, “the most significant single transport infrastructure project in the UK since the building of the motorways”. That is how the project is described in the Command Paper “High Speed Rail: Investing in Britain’s Future – Decisions and Next Steps” (2012).

In its scale and purpose, writes Mr Justice Lindblom, HS2 recalls the great schemes of railway expansion promoted in the 19th century.

Perhaps the most interesting facet of this case, however, concerns the influence of the Aarhus Convention of costs and the judgement of the Court of Appeal, made after leave was granted by Mr Justice Lindblom to take the matter further.

At present, 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.

The Aarhus Convention has been ratified by the European Union and the United Kingdom and contains three pillars:

1. Access to environmental information held by public authorities.
2. Participation in environmental decision-making by the public.
3. Access to justice in environmental matters, which includes procedures to challenge decisions in a manner which is timely and not prohibitively expensive.

The High Court held that the Aarhus cap did apply to local authorities, which acts to partially mitigate the longstanding concerns of the European Commission and United Nations Aarhus Convention Compliance Committee (Compliance Committee) about the costs of bringing environmental claims in the UK courts. By capping the cost claims, claimants are encouraged to bring action.

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.

Nevertheless, the Court of Appeal held that, once it has been resolved that the claim is an Aarhus claim, further recourse to the Aarhus Convention itself is unnecessary. Further definitions of ‘public concerned’ and ‘public authority’ therefore do not hold sway and the cost caps apply.

The decision is a boost for Councils across the country who will continue to be able to appeal against planning and infrastructure decisions with limited financial risk. It is not necessarily permanent, however, as the Compliance Committee will convene later in the year to reach a decision on the aspect that the Court of Appeal declined to – interpreting the terms “public authority” and “public concerned” in articles 2 and 9 of the Aarhus Convention, and deciding definitively whether local authorities can be part of the “public concerned” as well as a “public authority”.

If LPAs are categorised as ‘public authorities’ only, the Minister for Justice will be able to amend the Civil Procedure Rules (CPR) to exclude them from the cost cap. We await the Compliance Committee’s decision with interest.

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SRJ  09.05.15