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Three main factors appear to have sparked the touchpaper for this latest round of reforms.
The proposals fall into four main areas:
‘Aarhus Convention claims’ (judicial review claims made under the Aarhus Convention’s provisions) are eligible under Civil Procedure Rules (CPR) 45.41(2) for the Environmental Costs Protection Regime (ECPR).
The proposals suggest amending Practice Direction (PD) 52D to include specific statutory reviews in Aarhus Convention claims. This means appeals against enforcement decisions relating to unauthorised development under sections 289(1) and (2) Town
Country Planning Act and section 65(1) of the Planning (Listed Buildings Conservation Areas) Act 1990 would be eligible for the ECPR, dependent on their subject matter.
The proposals suggest amending CPR 45.43 so that only a claimant who is a ‘member of the public’ can be entitled to costs protection. This would exclude proceedings brought by public authorities from the scope of the ECPR. In addition,
the proposals float the idea that costs protection should only be granted once permission to apply for judicial or statutory review (where relevant) has been given.
This is where the most significant changes are proposed. Among them are:
Three amendments are proposed to PD25A. These are:
In Dr Seuss’ children’s tale, the titular ‘Lorax’ who ‘speaks for the trees’ warns the Once-ler of the environmental consequences that a preoccupation with industry and economic growth may lead to.
Although the changes extend the scope of ECPR beyond judicial reviews, other potential restrictions on claimants are worrying. There is substantially increased financial scrutiny and burden on claimants. The paper expressly acknowledges that this
could deter claimants from bringing a claim. Environmental activist groups have already expressed concerns which have not gone unnoticed by the Aarhus Clearinghouse newsroom.
The Government’s proposed ‘measured adjustments’ to the ECPR are unsurprising, in light of other policy developments and goals. The changes are intended to disincentivize ‘unmeritorious challenges to cause delay’ and
so equalise the ‘uneven playing field’ for defendants.
This overlooks the fact that, in environmental litigation, there is often an imbalance of resources between claimants (typically members of the public or campaign groups) and defendants (typically a development company or government agency) from the
outset. The proposals do little to quell this disparity and instead create real disincentives against members of the public pursuing Aarhus claims. If the reforms go through as currently drafted, there may be fewer voices willing or able to speak
for the trees.
 Edwards v. Environment Agency (case C-260/11  and subsequent  UKSC 78) and European Commission v. United Kingdom (case C-530/11;  3 WLR 853)
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