Court of Appeal clarifies scope of Aarhus Convention claims under UK law

The case relates to a legal challenge brought by environmental charity Global Feedback Limited against HM Treasury and the business and trade secretary concerning regulations that gave effect to tariff preferences on Australian imports. The regulations were introduced under a free trade agreement brokered between the UK and Australia in December 2021 which entered into force in May 2023.

In June 2024, the charity was granted permission by the High Court for a full judicial review of the trade agreement over concerns the regulations would lead to a substantial increase in greenhouse gases emissions from Australian beef imports and would have an adverse impact on UK farmers, environmental standards and animal welfare.

The High Court ruled that the claim met the requirements of an Aarhus Convention claim. The Aarhus Convention states that environmental challenges are granted special international law protections, including cost protection measures to limit the cost liability of a group bringing a challenge to prevent claims from becoming prohibitively expensive.

The government appealed the ruling, arguing that the judicial review claim did not fulfil the criteria to be covered by the costs cap on the basis that the claim was not a challenge relating to the environment.

In its judgment (33-page/ 685KB), the Court of Appeal examined case law to determine whether the claim benefited from Aarhus costs protection. The court found that that the Aarhus Convention “only applies to a contravention of a legal provision which concerns, or is to do with, the environment, its protection or regulation" and that public law principles alone “are not legal provisions relating to the environment.”

The court ruled that the legal challenge therefore fell “outside the scope” of the Aarhus Convention and that the costs cap did not apply.

Commenting on the ruling, Nicola Seymour, litigation expert at Pinsent Masons, said the Court of Appeal’s decision “gives guidance to equivalent and lower courts on this issue and has taken a narrow view on the position compared to some of the previous case law”.  Seymour said, in this case, the underlying legal provision related to taxation, not environmental issues. The specific section of the statute contained a requirement to have regard to international obligations, but did not make reference to a specific environmental protection measure.

The judgment also provides helpful commentary by comparing and contrasting the various scenarios from previous case law on this topic. Seymour said: “For example, a broader interpretation – in the 2015 Venn case – was that a challenge to a planning decision under section 70(2) of the 1990 Town and Country Planning Act could potentially fall within the Aarhus Convention cost cap because planning law, though not exclusively environmental, implements environmental protection through policies. In addition, the Court of Appeal disagreed with the High Court’s interpretation in the 2021 Friends of the Earth case as the underlying legislation was not related to the environment. However, if rules or provisions have an environmental purpose – for example, internal banking rules on environmental eligibility for loans as in the 2021 ClientEarth-European Investment Bank case – this could fall within the Aarhus provisions.”

Seymour said the court made clear that “a breach of public law that may or may not have consequences for the environment does not in and of itself mean that there has been a contravention of a national law relating to the environment”.

The decision does raise questions over the future application of Aarhus costs cap orders, which could affect claims by other environmental groups in the UK, said Seymour. “This judgment is likely to limit the ability of potential claims to challenge a decision by a public body that indirectly affects the environment, unless the underlying legal provision exercised is environment focussed,” she said.