Posted on 29th July 2015
The Aarhus Convention
By Matthew Pascall, Barrister, Guildford Chambers
In claims for Judicial Review arising out of planning issues, caps on the parties’ liability to pay and recover costs can be imposed under the terms of CPR Rule 45.43, which gives effect to the Aarhus Convention.
CPR Rule 45.43 and its accompanying Practice Direction came into force in April 2013. JR Claim Forms (N461) now include a box in section 6 in which a claimant can indicate that theirs’ is an Aarhus convention claim caught by this rule.
If unsuccessful in the claim:
If successful in the claim:
In Venn v. SSCLG  EWCA Civ. 1539 the Court of Appeal considered what types of claim fall within the scope of the Aarhus Convention and CPR Rule 45.43. The Court concluded that: -
When filing and serving the Acknowledgment of Service form, a defendant can indicate that he does not agree that the claim is covered by the rule and convention. The Court then has to determine that issue. If the defendant is unsuccessful and the Court finds that the rule applies, it will usually order the defendant to pay costs on the indemnity basis. If it agrees and finds that the rule does not apply, it will usually make no order as to the costs incurred in resolving that issue.
In broad terms, the convention was designed to enable the State to be challenged in environment cases without exposing those making such a challenge to a significant financial risk.
To achieve this end, the Practice Direction draws a distinction between a) individuals and, b) all other cases including individuals acting on behalf of a business or other legal person. The £5,000 cap applies in the first case and the £10,000 cap applies in all other cases.
In R (Botley Action Group) v. Eastleigh BC  EWHC 1982 and R (i) Baggus & ii) Forest of Dean Friends of the Earth) v Forest of Dean DC  EWHC 4397, residents’ groups were able to take advantage of the lower, £5,000 cap, although it might seem unusual that a group should be regarded as an individual. In Botley, Collins J justified this view by saying: “One knows, as a matter of reality, that in, I suspect, 99 cases out of a hundred, perhaps even in a hundred, where you have a group of claimants who joined together because they all have the same interests, and effectively it is fair to treat them as one claimant. I think that is the approach that generally will be adopted.”
In Baggus Holman J applied the lower cap and justified the decision in the following way when discussing the issue with counsel: “Whether it is a claimant or several claimants as an action group, they are certainly not claiming on behalf of a business.
There is no business interest here... They are not claiming on behalf of some other legal person, so they are, in the end, whether they are one individual or several, they are claiming as individuals, so I am going to set it at £5,000.”
Local authorities enjoy the upper, £10,000 limit, where, as a claimant, they seek to challenge a planning decision that falls within the Convention: R. (on the application of HS2 Action Alliance Ltd) v Secretary of State for Transport  EWCA Civ 203.