The Aarhus Convention, PCOs and private nuisance

Stephen Tromans QC looks at the latest decision on protective costs orders and the Aarhus Convention in private nuisance proceedings.

In Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012 the Court of Appeal has considered the Aarhus Convention’s requirements on the cost of litigation in environmental matters as applied to private nuisance claims and the interplay with EU law.

Mrs Austin lives in Merthyr Tydfil close to an opencast coal mine operated by Miller Argent at Ffos y Fran, about two kilometres east of the Merthyr town centre. She complains that dust and noise from the project are an actionable nuisance and that this is due to failure by the operator to comply with conditions attached to the planning permission.

Being of modest means, she sought a protective costs order limiting her exposure to costs to zero. This was refused in the High Court. The Court of Appeal has dismissed her appeal. The decision raises some interesting issues on Articles 9(2), (3) and (4) of the Aarhus Convention.

The Court of Appeal rejected an argument by the operator that private nuisance claims were not within the scope of Art. 9(3) of the Convention since such claims are based on interference with private interests in land. The Court said:

“... in our judgment it would be wrong to exclude all claims of private nuisance from the scope of Article 9.3, irrespective of the potentially significant public interest in the wider environmental benefits which they may bring if successful. ... although there is no definition of the environment in the Convention, it is plain from the broad definition of the concept of “environmental information” that it is intended to be wide.

Article 1 makes it clear that it is concerned with individual well being. It includes as an objective of the Convention the right of every person to live in an environment which is adequate to his or her health and well being. Moreover, the focus of the Directive is on participation, and there is merit in recognising the valuable function which 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.

It seems to us unrealistic to believe that the powers conferred upon public authorities will suffice to achieve the Convention’s objectives. Public bodies are often under staffed and under resourced and do not have the same direct concerns to uphold environmental standards as do members of the public. As the passage in the Implementation Guide referred to above makes clear, action by individuals will be a valuable additional method of ensuring that high environmental standards are maintained. We do not see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3.”

However, not all nuisance claims according to the Court will fall within Art 9(3). At paras. 21-22, the Court laid down what it saw as the criteria:

“21. In our judgment, therefore, private nuisance actions are in principle capable of constituting procedures which fall within the scope of Article 9.3. Plainly that is not true in all actions in private nuisance. Some, such as a complaint about damage from tree roots or water leaks from an upstairs flat will concern only the claimant’s property and have no wider public interest at all. There must be a significant public interest in the action to justify conferring special costs’ protection on the claimant.

22. It seems to us that there are two requirements which have to be met before a particular claim can fall within the scope of the provision. First, the nature of the complaint must have a close link with the particular environmental matters regulated by the Convention, even although the action in private nuisance does not directly raise them. Second, the claim must, if successful, confer significant public environmental benefits. In our judgment, if on the particular facts the court were to conclude that the purpose of the claim was principally to protect private property interests and any public benefit was limited and incidental, it ought not to attract the procedural costs protections afforded by Article 9.4.”

The Court also considered and rejected the arguments raised by Mrs Austin that EU law was engaged. It was argued that because it was alleged that there had been a failure to comply with planning conditions imposed as part of a planning application subject to EIA, that there was a challenge to acts or omissions of the developer which fell within Article 11 of the EIA Directive, which is in identical terms to Art. 9(2) of the Convention. It was held that the EIA Directive was concerned with procedures leading up to the grant of permission and not with what happens thereafter. Essentially, the Court said, it was an attempt to treat an Art. 9(3) claim as if it were an Art. 9(2) claim. The Court also rejected an argument based on ECJ case law, holding that the appellant had no EU right to the benefit of the planning conditions, and their enforcement was not the enforcement of an EU right.

The Court also held that the Convention does not require the court to exercise its discretion so as to ensure that proceedings are not prohibitively expensive:

“In our view, therefore, the Article 9.4 obligation is no more than a factor to take into account when deciding whether to grant a PCO. It reinforces the need for the courts to be alive to the wider public interest in safeguarding environmental standards when considering whether or not to grant a PCO.”

The case is however useful in holding that the Corner House criteria for a PCO developed in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 have become more flexible since the case of Eweida v British Airways plc [2009] EWCA Civ 1025, [2010] 1 Costs LR 43. The Court accepted that a claimant has a personal interest in the litigation does not of itself bar them from obtaining a PCO.

It seems doubtful that the case will be the last word on this topic. It does however represent useful and important authority on a number of very topical issues.

Stephen Tromans QC is a barrister at 39 Essex Street. Together with Catherine Dobson (from the same set), he appeared for the Appellant. Stephen can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..