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 environmental benefit' to any claim.

What was the significance of the attempt to litigate under a group litigation order (GLO)?

In 2010, around 500 other local residents applied for a GLO seeking to bring an action against the coal mining company and alleging that they too were suffering from dust and/or noise from the opencast coal mine. The High Court dismissed the GLO application on the basis that it was 'premature' due primarily to the uncertainty as to how many potential claimants could afford to bring any proceedings. The Court of Appeal dismissed an appeal against that ruling.

The potential significance of the GLO application was that if a 'significant public environmental benefit' was a prerequisite for costs protection under the Aarhus Convention then the application for the GLO by 500 other residents provided support for this. The Court of Appeal in the latest judgment arguably misinterprets the GLO judgment. It adds, perhaps obiter, that if it had granted a PCO it would have taken into account the costs incurred in the GLO proceedings as a relevant factor in the amount of any costs order.

How did the court approach the issue of the costs of proceedings and the Aarhus Convention?

The Court of Appeal was responsive to Mrs Austin's approach to the Aarhus Convention finding that it was capable of applying to private nuisance proceedings. It also recognised that it was unrealistic for those suffering pollution to have to rely upon public authorities to remedy environmental harm and to achieve the Aarhus Convention's objectives; that the focus of the Convention is on participation and that there is merit in recognising the valuable function individual litigants can play in helping to ensure that high environmental standards are kept, even if in the process they are also vindicating a private interest; and, that the range of alternative procedures is not suffice to constitute compliance with the Convention.

Importantly, the argument in relation to public authority and alternatives were raised by the UK in recent communications to the United Nations Aarhus Compliance Committee: ACCC 85 & 86, in which the Committee is considering the UK's compliance with the Convention with reference to the facts in Austin and, more generally, the prohibition introduced in April 2013 of recovering after-the-event (ATE) premiums in litigation.

What did the court decide on whether Aarhus applies in private nuisance?

The Court of Appeal has affirmed that the Aarhus Convention is capable of applying to private nuisance proceedings.

Was the Environmental Impact Assessment Directive 85/337/EEC (EIA Directive) engaged?

Mrs Austin had submitted that because the permission to carry on the opencast operations included a condition that those operations must be in compliance with the environmental statement that had been required under the EIA Directive, then the question of costs protection should also consider engaging EIA Directive, art 11 which requires legal proceedings to be 'fair, equitable, timely and not prohibitively expensive'. This submission was rejected by the Court of Appeal.

What should lawyers take from this case?

This judgment has affirmed the relevance of the Aarhus Convention and its broad scope and purpose. The judgment is also consistent with the Civil Procedure Rules 1998, SI 1998/3132, r 45.41-44 which requires costs protection in environmental judicial review claims to ensure that those proceedings are not prohibitively expensive, and, similarly, with recent PCO judgments in environmental cases that are not strictly judicial review eg statutory claims under, the Town and Country Planning Act 1990, s 288 (see eg Venn v Secretary of State [2013] All ER (D) 202 (Nov), [2013] EWHC 3546 (Admin) which is subject to appeal and to be heard in the Autumn 2014).

The underlying concern of legal costs has recently been raised by the Supreme Court in Coventry v Lawrence No 2 [2014] UKSC 46, [2014] All ER (D) 226 (Jul) (another environmental private nuisance case) and which has called for further submissions on the question of costs. There may be real value in joining any appeal in Austin and Coventry v Lawrence in order to fully understand and clarify the question of costs in environmental matters.

Finally, the Aarhus Compliance Committee could issue draft findings in the autumn on UK compliance and may further clarify matters.

Dr Paul Stookes is a solicitor advocate and partner at specialist law firm Richard Buxton Environmental & Public Law, an associate lecturer at the Open University and an accredited mediator.

Interviewed by Nicola Laver.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.