Voluntary organisations are calling for the rules on legal costs in environmental judicial review across the UK to be changed so that people are not prevented from challenging developments that are damaging to the environment.
Sounds dull? Well, maybe it does but that doesn’t mean it isn’t important. Take the case at Fineshade Wood, if the planning authority had made the wrong decision then the way to challenge it would have been through a Judicial Review and costs are capped at £5k – not a small amount of money but at least you know where you are as an individual – but that cap is now in jeopardy.
Also, under new legislation, the Secretary of State for Justice, currently one Michael Gove, has the power to define what are and aren’t environmental cases and limit the scope of the Aarhus Convention.
Still sounds dull doesn’t it? But maybe it sounds quite important too. UK governments, Westminster and Scotland, obviously think that it is important as they are sending six staff to a meeting in Geneva next week, and the NGO community has managed to find the money to send one on your, and my, and the environment’s behalf. Whilst our representative will be a match for any number of government lawyers it just goes to show that money gets you a bigger say in the law than it should – and that’s what this matter is all about. The UK is seen as one of the least progressive countries when it comes to access to environmental justice for its citizens.
Despite bespoke costs rules for environmental cases being introduced in April 2013, the potential costs of making a challenge via judicial review remain prohibitively expensive for many people. This means the UK does not comply with Article 9(4) of the UNECE Aarhus Convention, which requires legal review mechanisms for environmental cases to be “fair, equitable, timely and not prohibitively expensive”.
Joint Links – a coalition of charities (including the RSPB, Client Earth, WWF, the John Muir Trust, the Salmon and Trout Association and many others) – has presented a joint statement to the Aarhus Convention Task Force on Access to Justice, which is meeting at the UN in Geneva between 15-17 June. The statement calls on the devolved administrations to collate and publish information on the effectiveness of the new cost regimes and to make changes where they do not meet compliance with the Aarhus Convention.
Joint Links is also calling on the governments of the UK to establish a fair and consistent position on time limits in relation to applications for judicial review. The law was changed in 2013 to require challenges to planning matters to be brought within six weeks of the contested decision, but the reduced timescale is making it difficult for community groups and NGOs to challenge potentially unlawful decisions. Other changes introduced through the Criminal Justice and Courts Act 2015 are exacerbating the problems of cost and timing.
Carol Day (pictured right), who will be presenting the statement on Joint Links’ behalf on 16th June and is an expert on the Aarhus Convention (and has written two Guest Blogs on this site on the subject – see here and here) said:
“No doubt the Government will be looking to see whether it can renege on the new rules, but the simple fact is that, despite these changes, environmental litigation remains too expensive for many individuals, community groups and NGOs. We need a consistent UK platform for access to justice and a Government commitment that it will assess whether the new rules are making any difference – and strengthen it where necessary.”