At the UN's 2002 World Summit on Sustainable Development, human rights were acknowledged as one of the factors underpinning sustainable development, with the Johannesburg Plan of Implementation stating that: ‘Peace, security, stability and respect for human rights and fundamental freedoms, including the right to development, as well as respect for cultural diversity, are essential for achieving sustainable development and ensuring that sustainable development benefits all’. 1
<http://www.un.org/esa/sustdev/documents/WSSD_POI_PD/English/POIToc.htm> para 5, accessed 04 September 2009.
See, for example, C Schall, ‘Public Interest litigation concerning environmental matters before human rights courts: a promising future concept?’ (2008) J Env L 417.
See, eg, A Boyle and M Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, Oxford 1996); G Beck, ‘Human rights adjudication under the ECHR between value pluralism and essential contestability’ (2008) EHRLR 214.
Human rights may offer substantive and/or procedural protection 4
See, for example, M Fitzmaurice, ‘The European Convention on Human Rights and the human right to a clean environment’, Contemporary Issues in International Environmental Law (Edward Elgar, Cheltenham 2009).
Ibid; T Hayward, Constitutional Environmental Rights (Oxford University Press, Oxford 2005).
Domestic constitutions also often provide for substantive environmental rights, though their content and application are often hugely controversial, see Hayward (n 5).
Established instruments such as the 1950 European Convention on Human Rights 7
ECHR, <http://www.hri.org/docs/ECHR50.html#C.Art6> accessed 18 August 2009.
See A Mowbray, ‘The Creativity of the European Court of Human Rights’ (2005) HRLR 57–79 for a brief consideration of the generally applicable ‘living instrument’ and ‘practical and effective’ doctrine approaches and specific discussion of what he terms the ‘particularly sensitive field’ of environment based case law, 69.
Indeed, the ECHR's jurisprudence in this area has been influenced (though not bound by) more recent developments, notably the Aarhus Convention, see Schall (n 2) at 432.
(A/303-C) (1995) 20 EHRR 277.
(1998) 26 EHRR 357.
(2007) 45 EHRR 10.
See, for example, Dudgeon v UK (1982) 4 EHRR 149.
Though they can act in a representative capacity, see Asselbourg v Luxembourg (App no 2912/95) ECHR 29 June 1999.
In addition to emerging coverage under established general human rights law regimes, a new generation of international law instruments is providing for specific (usually procedural) rights pertaining to the environment underpinning substantive law, such as those contained in the Espoo Convention and the Kiev Protocol 15
See, for example, K Morrow, ‘Public Participation in the Assessment of the Effects of Certain Plans and Programmes on the Environment, Directive 2001/42/EC, the UNECE Espoo Convention and the Kiev Protocol’ (2004) 4 Yearbook of European Environmental Law 49.
Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, <http://www.unece.org/env/pp/documents/cep43e.pdf> accessed 19 August 2009.
Schall (n 2) 433.
 EWCA Civ 107,  P&CR 4.
The EU is not a signatory of the ECHR, though the ECJ has frequently referred the Convention in its jurisprudence.
For discussion of the significance of Community law in this area, see R Gordon, ‘Using EC law in environmental judicial review’ (2007) JPL 826.
For a general overview, see the European Convention, ‘The Aarhus Convention’ <http://ec.europa.eu/environment/aarhus/#legislation> accessed 01 September 2009.
 OJ L264/13.
As demonstrated in Case T-585/93 Greenpeace v Commission  ECR II-02205.
Schall (n 2) 440.
 ECR II-00081.
 Celex 608O0355.
Ibid paras 44–48.
As confirmed in Case C-239/03 Commission v France  ECR I-09325.
24 October 2003 Commission Proposal for a Directive of the European Parliament and of the Council on access to justice in environmental matters COM (2003) 624.
The nature of environmental procedural rights litigation is such that it is normally pursued before the UK courts in public law, often in a claim for judicial review. Domestic administrative law offers protection to a range of procedural rights through the application of rules relating to procedural impropriety, principally through the concept of natural justice, specifically the right to a fair hearing and the rule against bias. Increasingly a broader concept of fairness is playing a role in decision-making in domestic judicial review, and it is frequently invoked in environmental cases. The cases raised by environmental rights claims are such that a complex web of argument is often employed, calling into play inventive combinations of ECHR rights, Aarhus rights, participation rights in EU law and domestic administrative law. This paper will now consider some of the most interesting recent litigation that has arisen with respect to environmental rights before the UK courts, subject to the proviso that, where multiple strands of argument have been employed, the case is categorized with reference to what appears dominant or particularly significant in the judgment in question.
2 Human rights cases
The Human Rights Act (HRA) 1998 imports ECHR rights into domestic law, allowing claimants to access them in the domestic courts rather than having to take cases before the European Court of Human Rights in Strasbourg. HRA cases also offer significant opportunities to reopen issues previously regarded as settled in domestic law, and cases from the broad environmental sphere have proved prominent in this. 30
See K Morrow, ‘The Rights Question: the Initial Impact of the Human Rights Act on Domestic Law relating to the Environment’ (2005) JPL 1010 for a discussion of early litigation in this area.
 UKHL 66,  AC 42.
The relationship between human rights provisions, the common law and the WIA arose again in Dobson and Others v Thames Water Utilities Limited. 32
 EWCA Civ 28, 2009 WL 6455.
In the absence of negligence, the case would fall under the Marcic ruling, para 38.
McKenna v British Aluminium  Env LR 30; Chancery Division recognized that such claims were potentially arguable.
This was based on Lord Woolf CJ's approach in Anufrijeva v Southwark London Borough Council  QB 1124, as approved by the House of Lords in R (Greenfield) v Secretary of State for the Home Department  1 WLR 673, para 42.
Ibid para 50.
Human rights claims also featured R (Hardy) v Milford Haven Port Authority, 37
 EWCA Civ 1403.
See M Edwards, ‘R (on the application of Hardy) v Milford Haven Port Authority’ Case Comment (2008) JPL 702.
After protests to the European Parliament, the European Commission promised to investigate related complaints on the pipeline issue, ‘Gas Pipe Concerns to be Examined’ <http://news.bbc.co.uk/1/hi/wales/south_west/7152749.stm> (20 December 2007) accessed 01 September 2009.
Hardy v Pembrokeshire County Council  EWCA 240 had attempted, unsuccessfully, to engage Article 2 of the ECHR in a judicial review of the environmental impact assessment process. The case failed on delay.
 EWCA Civ 1403.
Ibid para 31.
R (Hardy) v Milford Haven Port Authority  EWHC 1883 Admin,  JPL 702.
A further example of a case heavily featuring the ECHR is Georgina Downs v Secretary of States for Environment, Food and Rural Affairs. 44
 EWHC 2666 Admin,  Env LR 19.
Downs v Secretary of State for Environment, Food and Rural Affairs  EWCA Civ 664; WL 1894645.
 EWHC 2666 Admin para 76.
Ibid para 91.
Ibid para 107.
(2912/95) 29 June 1999.
 EWHC 2666 Admin para 109.
Ibid para 111.
See (n 10), above.
See (n 11), above.
See (n 12), above.
 EWHC 2666 Admin para 112.
Hunter v Canary Wharf  AC 655.
In re Corby Group Litigation  EWCA Civ 463,  QB 335. The claimants succeeded in their action at first instance in Corby Group Litigation v Corby DC  EWHC 1944 (TCC) though Corby District Council on 18 August 2009 announced their intention to appeal, see M Tran, ‘Council to Appeal Against Toxic Waste Negligence Judgment’ Guardian (London 19 August 2009) <http://www.guardian.co.uk/environment/2009/aug/19/corby-toxic-waste-birth-defects-appeal> accessed 23 August 2009.
(2003) 37 EHRR 28, para 113.
In summary then, while some aspects of the approach adopted by the Court to the human rights claim in UK law are encouraging in principle, and such claims are being given sufficient credence to warrant close judicial scrutiny, on balance, the protection of environmental interests remains contingent on breach of substantive Convention rights and the obstacles that claimants face remain considerable.
3 Information cases
Edwards v Environment Agency 59
 EWCA Civ 877,  Env LR 9.
 UKHL 22,  Env LR 34.
Broader concerns with information in environmental contexts in the UK are raised by the case of The Office of Communications v The Information Commissioner, 61
 EWCA Civ 90, Times, 27 February 2009.
The Regulations are underpinned by the Code of Practice on the discharge of the obligations of public authorities under the Environmental Information Regulations 2004 (SI 2004: 3391) (2005) <http://www.ico.gov.uk/upload/documents/library/environmental_info_reg/detailed_specialist_guides/environmental_information_regulations_code_of_practice.pdf> accessed 24 August 2009.
 EWCA Civ 90 para 46.
 EWCA Civ 1403.
While also technical in many respects, participation cases tend to raise issues of principle in a hugely visible way. This is very apparent in R (Greenpeace Ltd) v Secretary of State for Trade and Industry. 65
 EWHC 311 Admin,  Env LR 29.
DTI, The Energy Challenge: Energy Review Report 2006 <http://www.berr.gov.uk/files/file31890.pdf> accessed 24 August 2009.
The minimum period prescribed by the Cabinet Office for consultation exercises in the then applicable second version of its ‘Code of Practice on Consultation’, January 2004. This is reiterated in the current Department for Business, Enterprise and Regulatory Reform (BERR) Code of Practice on Consultation, 2008 <http://www.berr.gov.uk/files/file47158.pdf> accessed 24 August 2009.
Executive Summary to the Consultation Document.
Much of the material, which formed the basis of the government's decision, was not available until after the consultation process closed.
 EWHC 311 Admin para 49.
 QB 213. The criteria drew on those employed in R v Brent London Borough Council, ex parte Gunning  LGR 168.
 EWHC 311 Admin para 63.
Ibid eg, paras 67, 68, 74 and 79.
Ibid para 113.
See Morrow (n 15) above.
 EWHC 311 Admin para 120.
The case of Bard Campaign, David Bliss v Secretary of State for Communities and Local Government 77
 EWHC 308 Admin, 2009 WL 648836.
Ibid para 64.
Ibid para 74.
Ibid para 81.
Ibid para 117 et seq.
Participation threw up another interesting case, this time under the IPPC regime in R (Lewes District Friends of the Earth) v East Sussex CC. 83
 EWHC 1981 Admin,  Env LR 11.
On technical grounds relating to the adequacy of the reasons given by the EA.
Ibid para 38.
See, eg, R v Swale BC, ex p RSPB  1 PLR 6; R (England) v Tower Hamlets LBC  EWCA Civ 1742, (see (n 87), below).
5 Access to justice
The UK Government reported in 2008, 87
Department of Environment, Food and Rural Affairs (DEFRA) 2008 UK Aarhus Convention Implementation Report 2008 <http://www.defra.gov.uk/ENVIRONMENT/internat/aarhus/pdf/compliance-report.pdf> accessed 24 August 2009.
See, for example, the UNECE Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters Synthesis Report of the Status of the Implementation of the Convention, 2008 ECE/MP.PP/2008/4 <http://www.unece.org/env/documents/2008/pp/mop3/ece_mp_pp_2008_4_e.pdf> accessed 24 August 2009.
European Commission Measures on Access to Justice in Environmental Matters (Article 9(3)) (2007) <http://ec.europa.eu/environment/aarhus/study_access.htm> accessed 04 September 2009.
(2006) <http://www.liberty-human-rights.org.uk/publications/6-reports/litigating-the-public-interest.pdf> accessed 04 September 2009.
<http://www.ukela.org/content/doclib/116.pdf> accessed 04 September 2009.
(2008) <http://www.wwf.org.uk/filelibrary/pdf/justice_report_08.pdf> accessed 04 September 2009.
Claims by legal or natural persons in their own right pursuing Aarhus rights are fairly unproblematic in principle in UK law and will be touched upon only briefly here. Such litigation most frequently takes the form of judicial review as third parties lack statutory rights of appeal in command and control regulatory regimes that dominate this area. This does not generally pose difficulties as the courts tend to be fairly generous where standing is concerned in environmental cases. This is amply demonstrated in cases such as R v Her Majesty's Inspectorate of Pollution (HMIP) and the Minister of Agriculture, Fisheries and Food, ex parte Greenpeace 93
 2 CMLR 548.
 1 WLR 386.
 1 QB 504.
Although access to the courts in the UK is rarely legally problematic, financially access can be much more challenging, with the cost of bringing proceedings proving a most significant fetter on public admittance to the courts. While the provision of rights in the environmental sphere is all very laudable, Article 9(4) of the Aarhus Convention recognizes that their significance is likely marginal if the cost 96
In addition to standing, cost is generally acknowledged as the factor presenting the greatest obstacle to environmental public interest litigations, see, for example, JE Bonine: Best Practices – Access to Justice (Agenda for Public Interest Law Reform) <http://www.accessinitiative.org/resource/best-practices%E2%80%94access-justice%EF%80%AA>.
In environmental cases, potential costs are often further ratcheted up by the normal requirement of a cross undertaking in damages in respect of injunctive relief which is often of crucial importance in this context. The funding issue is made more problematic in UK law by the fact that, while the Civil Procedure Rules give the courts considerable discretion with regard to costs, as a general rule, if a claimant loses a case, they will be eligible not only for their own legal costs but also for those of the defendant. This approach has been described as worst practice and a ‘significant barrier to access to justice’. 98
 EWCA Civ 1403.
Ibid para 46.
Bonine (n 96) 20.
The DEFRA report points to the availability of public funding (formerly known as civil legal aid) in this area now extending to public interest cases 102
See the Legal Services Commission Funding Code Criteria <http://legalservices.gov.uk>.
For example, under the HRA/ECHR regime. S2.4.
As noted by the Court of Appeal in R (Burkett) v Hammersmith (No.2)  EWCA Civ 1342,  CP Rep 11.
The courts themselves have attempted to use their discretion with respect to costs to facilitate public interest litigation more generally, through the adoption of Protective Costs Orders (PCOs). The Court of Appeal had the opportunity to reconsider costs, 106
PCOs were originally considered and very restrictively formulated in R v Lord Chancellor, ex p Child Poverty Action Group  1 WLR 347.
 EWCA Civ 192,  1 WLR 2600.
Ibid para 76.
As a general rule the losing party will be expected to pay the winning party's costs, r.43(3)(2)(a) of the Civil Procedure Rules.
See (n 92) paras 41–55 and Appendix 3.
The Cornerhouse case concerned a public interest action by an NGO against the DTI in respect of failure to consult on measures to tackle bribery and corruption. Brooke LJ, giving judgment, identified the requirements to be satisfied in imposing a PCO:
- The issues raised are of general public importance;
- The public interest requires their resolution;
- The claimant has no private interest in the outcome;
- Having regard to the financial resources of the parties, it is fair and just to make an order;
- If the order were not made, the claimant would probably discontinue the litigation and would be acting reasonably in doing so.
See (n 92), above.
 EWCA Civ 1172,  CP Rep 6.
At a lecture to the Law Society, see ‘Current Topics’ JPL  1767–1773 at 1768.
 EWCA Civ 1742.
 EWCA Civ 609,  Cost LR 844.
 EWCA Civ 107,  2 P&CR 4.
A further significant consideration relating to costs raised by the Cornerhouse approach relates to its commercial viability. In the case the Court stated that pro bono representation would strengthen a claim for a PCO. In reality relatively few cases proceed on this basis and relying on the altruism of some practitioners is hardly a sufficient basis to deal with this issue. The Court also limited the costs recoverable for successful claimants 117
 EWCA Civ 192 para 76.
See (n 92) above.
A view evidently shared by the Working Group on Facilitating Public Interest Litigation, which recommended that it be deemed irrelevant (n 90).
This would seem to be borne out by the ‘Environmental Justice: a Report by the Environmental Justice Project’ at www.defra.gov,uk/environment/justice/index.htm.
 EWCA 1209,  EWCA 1209,  Env LR 18.
Ibid para 6.
In R (Burkett) v Hammersmith (No.2) 123
 EWCA Civ 1342,  CP Rep 11.
Ibid para 5.
Ibid para 15.
This was limited to £62,756. Ibid at para 12.
Ibid para 76.
This view is echoed by M Edwards in his Case Comment on Burkett  JPL 525 at 542.
In Burkett the Law Lords further alluded to problems of the cost-effectiveness or otherwise of litigation as a response to environmental disputes, noting the availability of other avenues of redress. 129
 EWCA Civ 1342 para 76; see also P Stookes: ‘Current Concerns in Environmental Decision Making’  JPL 536–46.
This view is supported in Morgan (below) where at para 46 the Court points out that alternative remedies need to be considered not only for cost but also for efficacy.
The Law Lords also took the view that the Burkett litigation did not result in practical benefit to the claimant, and as the development had already been completed by the time that the case was finally determined, in a narrow sense, this is true. This will often be the case, as the wheels of justice grind exceeding slow, but the development of land once planning permission is given is often swift. However it cannot be overemphasized that the broader issues involved in public interest cases are often of considerable importance in their own right. Burkett itself clarifies number of complex points of law (notably on time limits in judicial review and on costs issues), the elucidation of which will doubtless benefit future litigants in the public interest and environmental spheres and beyond. The claimant herself succeeded in having the issues that concerned her thoroughly examined by the courts: that is, of course, the least that any litigant is entitled to expect, but for the would be public interest litigants is, as will be abundantly clear from the discussion above, far from a given.
Cost concerns were of course amplified by the recognition that, in Burkett they would be paid by the public purse regardless of outcome as the LSC uses scare funds to support claimants in actions against public bodies which must themselves use scare funds to defend the action. 131
 EWCA Civ 1342 para 19.
See (n 91), above.
The negative implications of the Burkett case were made manifest in the Court of Appeal decision in R (England) v London Borough of Tower Hamlets & Ors. 133
 EWCA Civ 1742.
Separate litigation has been launched on this issue; it will be interesting to see what information based on participation issues arise from this.
In making the latter observation, the Court referred to the impact of successful litigation concerning the UK's failure to comply with EU law in R v Bromley LBC, ex parte Barker 136
… it is unclear to us what interest Mr England has in litigating them once the structure which he was seeking to protect has gone. … Although judicial review proceedings may often serve to clarify issues of wider importance than the particular concerns of the parties. … The court decides issues between interested parties, not issues in the abstract. 135
Ibid para 9.
 UKHL 52,  1 AC 470.
Ibid para 10.
R (Buglife) v Thurrock Gateway Development Corporation raises arguably somewhat disquieting issues. It involved judicial review of a grant of planning permission for a distribution hub on a site of national importance for invertebrate life. Sullivan J (as he then was) awarded Buglife a PCO capping potential liability at £10,000, taking into account the resources of the parties but also the fact that permission had been refused. Interestingly he also ordered, though this was not requested by Thurrock, that potential costs payable to Buglife be capped in the same amount. No reasons were given for this, nor did the parties request them. The Court of Appeal attributed it to what the judge thought just. 138
Ibid para 5.
 EWCA Civ 749.
Ibid para 17.
See (n 92) para 7, 9–11.
Morgan v Hinton Organics (Wessex) Ltd 142
 EWCA Civ 107,  2 P&CR 4.
PCOs were only raised before the Court of Appeal, ibid para 35.
Ibid para 6. This form of words had been approved in Environment Agency v Biffa Waste Services Limited  EWHC 3495 Admin, para 7.
Ibid para 15.
Ibid para 42.
Ibid paras 49–50.
Ibid para 50.
Ibid para 51.
Ibid para 56.
Ibid para 39.
The outcome before the Court of Appeal in Morgan is significant in a number of respects, not least in underlining the limited status enjoyed by the Aarhus Convention as an unincorporated international treaty in UK law 152
Ibid para 50.
Part 44, specifically CPR 44.3.
As, for example, in Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment  UKPC 6 where a costs order was eschewed even though the Alliance lost its appeal on the basis that the case was brought in the public interest.
On balance, while it is true to say that PCOs are important in principle, and raise a number of interesting legal issues, and the Cornerhouse requirements as subsequently developed are less restrictive than those that they replaced nonetheless, they ensure, as the Court intended, 155
R (Corner House Research) v Secretary of State for Trade and Industry  EWCA Civ 192 at para 72.
Sullivan Report (n 92).
Ibid. R. Clayton ‘Public Interest Litigation, Costs and the Role of Legal Aid’  PL 429 notes that, of the first five contested cases, only one was successful, namely: R (The British Union for the Abolition of Vivisection) v Secretary of State for the Home Department  EWHC 250.
See (n 90), above.
See (n 92), Ch 8 Protective Costs Orders, 18–22.
Civil Litigation Costs Review, Preliminary Report, 08 May 2009 <http://www.judiciary.gov.uk/about_judiciary/cost-review/preliminary-report.htm> accessed 11 September 2009 Vol 1, 334–37.
New human rights based approaches, despite the limitations discussed above, have certainly opened up new opportunities for litigating environmental claims. In so doing, they also generate other effects. They have, for example, recontextualized and reinvigorated discussion of the common law in established areas, notably nuisance. They have also contributed to the development of the concept of fairness in judicial review. This type of litigation has also wrought more diffuse impacts. The enhanced profile that they offer to environmental interests has proved significant in forging greater publicity for ‘campaigning cases’ than they have previously enjoyed. Campaigning cases may be defined as those brought by an individual, or, more often, an NGO, with the purpose of both litigating a specific issue and of publicizing wider controversies, and many of the foregoing examples of environmental rights based litigation would fall squarely within this category. Such cases tend to be, depending upon one's perspective, opportunistic or pragmatic and creative, employing both broader human rights based and procedural participation routes as available, in conjunction with common law claims. The broader impact of these cases is a significant issue, as there are limits as to what may be achieved by even a successful action in public law. In judicial review, the decision will be retaken, in the correct manner, but the ultimate outcome may be the same. Under the HRA, a declaration of incompatibility may be issued, though the government need not ultimately comply with it. 164
On the whole though, thus far human rights based approaches in UK law, while they have bred considerable and extremely interesting judicial discussion, have not for the most part greatly extended the legal protection on offer to environmental interests. Protection offered under the ECHR regime is limited by the contingent nature of the rights in question and other limitations inherent in the regime. Changes could be made in this area, short of the controversial introduction of a substantive environmental right, that would improve the effectiveness of the system in respect of environmental interest, for example in opening access to NGOs under Article 34. The Aarhus Convention should, in principle, be a considerable boon for those pursuing environmental claims, but it is only effective in direct proportion to its implementation by signatories. The EU has been rather selective in its approach to date and, this, coupled with the limited status of the Convention in domestic law means that its impacts are at best uneven. In any event, the continued problems posed by the cost of litigation continue to hamper the ability to access Convention rights. The real difficulty lies in the fact that integrating human rights based approaches to the environment into modern law, while much less demanding than according protection to the environment in its own right, is no small thing – success would require a profound change in legal culture predicated on a thoroughgoing societal alteration in the way that we view the environment and our place within it. While recent developments may be regarded as moves in the right direction in mainstreaming the way we address environmental concerns, they represent only small steps when giant leaps are required.
Morrow, Karen - Professor of Environmental Law, Centre for Environmental Law and Policy (CEELP), School of Law, Swansea University, Singleton Park, Swansea, UK