The Aarhus Convention's effect on private nuisance proceedings

What is the scope and purpose of the Aarhus Convention 1998 in the context of private nuisance claims? Dr Paul Stookes of Richard Buxton Solicitors, who represented the appellant in Austin v Miller Agent, comments on the Court of Appeal ruling that private nuisance proceedings were capable of falling within the scope of the Convention.

Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012, [2014] All ER (D) 199 (Jul)

The appellant sought to pursue a private nuisance action against the respondent, concerning the respondent's non-compliance with planning permission conditions. The judge refused the appellant a protective costs order (PCO) and she appealed. The Court of Appeal, Civil Division, in dismissing the appeal, held that the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, art 9.3 (the Aarhus Convention) could apply to private nuisance actions. However, having regard to the limited public benefit which the appellant's action would achieve, it did not fall within the scope of the Convention, art 9.3.

What were the key features of this case?

The underlying facts are that Mrs Austin has been trying to prevent continuing noise and dust deposition which she understands come from a large opencast coal mining operation close to her home in Merthyr Tydfil, South Wales. The problems have been carrying on since 2008. Mrs Austin cannot afford the cost of legal proceedings and made a pre-action application to the High Court for costs protection in a proposed claim in private nuisance. The application included an argument that those proceedings would be an environmental claim and that therefore they had to be 'fair, equitable, timely and not prohibitively expensive under Article 9(4) of the Aarhus Convention 1998'.

The High Court dismissed the application in August 2013 but granted permission to appeal on the basis that the matter was one of 'significant public importance'. The Court of Appeal agreed with Mrs Austin that private nuisance proceedings were capable of falling within the scope of the Aarhus Convention but introduced what appears to be a novel and, possibly unlawful, restriction on the application of the Convention by requiring that there is a 'significant public enviro