Why access to environmental justice remains uncertain costs issues and the possible end of the requirement for promptness in environmental judicial review

Environmental Law and Management

Volumn 22, Issue 4, 2010, Pages 182-191

  Upton, William ^a   Neill, James ^a  

^a NONE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

COMPLIANCE; DECISION MAKING; ENVIRONMENTAL JUSTICE; ENVIRONMENTAL LEGISLATION; LIABILITY; LITERATURE REVIEW; NATIONAL STRATEGY; PUBLIC ACCESS;

ENGLAND; UNITED KINGDOM; WALES;

EID: 78649677609     PISSN: 10676058     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (29)

1. See Findings ACCC/C/2008/33. As of 18 October, the findings remain in draft. They can be found on the UNECE website www.unece.org/env/pp/ccMeetings. htm
2. Civil Litigation Costs Review - final report http://www.judiciary.gov.uk/ Resources/JCO/Documents/jackson-final-report-140110.pdf.
3. UK Civil Procedure Rules http://www.justice.gov.uk/civil/procrules-fin/ menus/rules.htm.
4. See the examples given by Brooke LJ in R (Refugee Legal Centre) v SSHD [2004] EWCA Civ 1239 at [21]. For others see those noted by Ben Jaffey in his paper 'Protective Costs Order in Judicial Review', delivered to the Adminstrative Law Bar Association Annual Conference July 2010, (www.adminlaw.org.uk/library) including those instances where unsuccessful claimants have persuaded the court not to make any adverse costs order despite being unsuccessful, and orders that the appellant bears the defendant's costs of an appeal in any event.
5. Per Lord Phillips MR at [74].
6. Approved by the Court of Appeal unanimously in R (Buglife) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209.
7. See the remarks of Waller LJ at [21 ]-[23] and Smith LJ at [73]-[78].
8. The Court referred at [75] to a study by the Environmental Justice Project which recorded the concern of many respondents that the current costs regime 'precludes compliance with the Aarhus Convention'.
9. http://www.unece.org/env/pp/compliance/C2008-23/Amicus%20brief/ AnnexNjusticereport08.pdf. Its full title is 'The Report of the Working Group on Access to Environmental Justice in England and Wales', and it was immediately referred to as the Sullivan Report by reference to its distinguished Chairman. Although the Working Party had no formal status, its conclusions are persuasive, given the standing of those involved and given that they represented the different interest groups.
10. Per Waller LJ at [20].
11. See para 78.
12. Chapter 30 para 4.1 (i).
13. Chapter 30 para 4.1 (vi).
14. Chapter 30 para 4.8.
15. The full title is Directive 2003/53/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment.
16. Directive 96/61 /EC on Integrated Pollution Prevention and Control, which provides for a consent system for a wide range of industrial activities, is similarly amended with a new art 15a, which also provides that procedures for legal challenges must be fair, equitable, timely and not prohibitively expensive.
17. Indeed, the Supreme Court is shortly due to consider the extent to which, on a detailed costs assessment, Aarhus principles should be considered, following the dismissal of the judicial review appeal in R (Pallikaropoulos) v Environment Agency [2008] UKHL 22. Mrs Pallikaropoulos faces a claim for £88,000 costs having unsuccessfully applied for a PCO when filing her petition.
18. See the opinion of Advocate-General Sharpston in Case C-240/09 Lesoochranarske zoskupienie VLK v The Slovak Republic, which considers the issue of whether Article 9(3) of the Convention is directly effective even in the absence of a directive specifically incorporating its provisions into EC law.
19. See art 15 of the Convention, and Decision 1/7 of the Meeting of the Parties in October 2002, which established the general procedure for review of compliance with the Convention.
20. Unless the particular party has agreed that the Committee can itself make such recommendations - see paras 36 and 37 of Decision 1/7. In this particular case, the UK appears to have agreed that the Committee could make any recommendations directly.
21. Guidance Document to the Aarhus Compliance Committee pp 4-5.
22. 22 See http://www.unece.org/env/pp/pubcom.htm for the detailed documentation submitted to the Committee.
23. Paragraph 143(a).
24. See eg H Philpott, G Jones 'He Who Hesitates Is Lost' [2000] JPL 564.
25. Following the rejection by the House of Lords in R (Burkett) v Secretary of State for the Environment [2002] UKHL 23, [2002] 1 WLR 1593,
26. of the inference in R v Ceredigion County Council, ex parte McKeown [1997] COD 463, [1998] 2 PLR 1, that there was any six week rule.
27. Summary of Implementing Measures to Achieve Aarhus Compliance with the UNECE Aarhus Convention: www.defra.gov.uk/environment/internat/aarhus.
28. Were it not to comply with the recommendations suggested by the Committee, the United Kingdom would be the only developed Western European country to have failed to have done so. The only other member parties where issues of compliance have been raised are Albania, Armenia, Kazakhstan, Lithuania, Turkemenistan and Ukraine: see the minutes of the Second and Third MOP in May 2005 and June 2008.
29. Indeed, within a matter of days of the Committee's draft decision being issued, an Update to the Sullivan Report has been published which draws attention to the decision and its ramifications. Lord Justice Sullivan himself states: 'A radical change in the Civil Procedure Rules is required, one which recognises the public interest nature of environmental claims. The new Rules must also recognise the need for legal certainty' (see Foreword to the Update to the Sullivan Report p 4 http://assets.wwf.org.uk/dowloads/access-to- environment.pdf).