Environmental Judicial Review in the United Kingdom

Introduction

Environmental judicial review challenges the legality of decisions and actions of public authorities that affect the environment. The United Kingdom is a party to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters 1998, which imposes obligations on states to ensure that members of the public have access to justice in environmental matters. The Convention has significantly influenced the development of environmental judicial review in the UK, particularly in relation to standing, costs, and the scope of review.

The Aarhus Convention

The Aarhus Convention was ratified by the United Kingdom in 2005 and the European Union in 2005 (the UK was bound through EU membership and continues to be bound as an independent party post-Brexit). The Convention establishes three pillars: access to environmental information (Article 4); public participation in environmental decision-making (Article 6); and access to justice in environmental matters (Article 9).

Article 9 of the Convention requires that members of the public have access to a review procedure before a court of law or another independent and impartial body to challenge the substantive and procedural legality of decisions, acts, and omissions subject to the public participation provisions. The review procedure must be “fair, equitable, timely and not prohibitively expensive.”

Standing

The Aarhus Convention requires that members of the public have access to justice in environmental matters without having to demonstrate a sufficient interest. The UK has implemented this requirement through a liberal approach to standing in environmental judicial review.

The Civil Procedure Rules (CPR) 54.1 requires that the claimant have sufficient interest in the matter to which the application relates. In environmental cases, the courts have recognised standing for environmental non-governmental organisations (NGOs), community groups, and individual citizens who can demonstrate a genuine interest in environmental protection.

In R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement (1995), the court recognised standing for a pressure group challenging the legality of aid to Malaysia, accepting that the group had a sufficient interest in the proper exercise of statutory powers. In R (Friends of the Earth) v Secretary of State for Business, Energy and Industrial Strategy (2022), the court recognised Friends of the Earth’s standing to challenge the adequacy of the Net Zero Strategy.

Protective Costs Orders

The requirement that environmental litigation be “not prohibitively expensive” under the Aarhus Convention led to the development of protective costs orders (PCOs) in environmental judicial review. The Civil Procedure Rules provide a special costs regime for Aarhus Convention claims, under which the court must limit the costs recoverable by the claimant and the defendant.

Under CPR 45.41, a claimant in an Aarhus Convention claim may apply for an order limiting their liability for the defendant’s costs. The court must make such an order unless it is satisfied that the claim is vexatious or has no realistic prospect of success. The maximum costs exposure for the claimant is £5,000 for an individual and £10,000 for an organisation. The defendant’s maximum costs liability is capped at £35,000.

Grounds of Review

Environmental judicial review proceeds on the same grounds as ordinary judicial review: illegality, irrationality, procedural impropriety, and breach of Convention rights. However, environmental cases often raise distinctive issues, including: challenges to environmental impact assessments and habitats assessments; challenges to planning permissions and development consent orders for projects with environmental impacts; challenges to pollution permits and waste management licences; and challenges to the government’s compliance with climate change targets.

Procedural requirements are particularly important in environmental judicial review. The Environmental Impact Assessment Directive (implemented in the UK by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017) requires that environmental impact assessments be conducted before development consent is granted for certain projects. Failure to conduct a proper EIA is a common ground for challenge, as established in R (Edwards) v Environment Agency (2013), where the Court of Justice of the European Union held that a failure to properly assess environmental impacts could render a development consent unlawful.

Habitats assessments under the Conservation of Habitats and Species Regulations 2017 (which implement the Habitats Directive) are also frequently challenged. In Sweetman v An Bord Pleanála (2013), the Court of Justice held that a habitats assessment must be rigorous and that a plan or project may be authorised only where there is no reasonable scientific doubt as to the absence of adverse effects on the integrity of the site.

Time Limits

The time limit for bringing an environmental judicial review claim is three months from the date of the decision (CPR 54.5). However, challenges to certain planning and environmental decisions are subject to a shorter six-week time limit under section 288 of the Town and Country Planning Act 1990 and related legislation. The shorter time limits require claimants to act promptly in challenging environmental decisions.

Remedies

The remedies available in environmental judicial review are the same as in ordinary judicial review: quashing orders (to set aside the decision); prohibiting orders (to prevent unlawful action); mandatory orders (to require action); declarations; injunctions; and damages. The court has discretion to grant or refuse a remedy, and may refuse a remedy even where the decision is found to be unlawful if granting a remedy would cause substantial hardship or prejudice to third parties.

Conclusion

Environmental judicial review in the United Kingdom provides an important mechanism for holding public authorities to account for decisions affecting the environment. The Aarhus Convention has influenced the development of the law on standing, costs, and access to justice, ensuring that environmental challenges are not prohibitively expensive and that environmental NGOs have standing to represent the public interest in environmental protection.