Austin v Miller Argent (South Wales) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias |
| Judgment Date | 21 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1012 |
| Docket Number | Case No: A1/2013/2676 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 July 2014 |
[2014] EWCA Civ 1012
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE SITTING AT CARDIFF
HIS HONOUR JUDGE MILWYN JARMAN QC
2CF30125
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Elias
and
Lord Justice Pitchford
Case No: A1/2013/2676
Mr Stephen Tromans QC, and Ms Catherine Dobson (instructed by Richard Buxton Environment & Public Law) for the Appellant
Mr James Pereira QC and Mr Jack Connah (instructed by DLA Piper UK LLP) for the Respondents
Hearing date: 26 June 2014
This is a judgment to which both of us have contributed.
Mrs Austin lives at her home in Merthyr Tydfil close to an open-cast coal mine operated by the respondents. They are carrying out operations at Ffos y Fran, about two kilometres east of the Merthyr town centre. Ffos-y-Fran is a land reclamation project whose purpose is to restore the natural landscape to the north-east of the town of Merthyr Tydfil, in the vicinity of Dowlais, a large area of open moorland that has been scarred by mining and industrial waste for some 300 years. The cost of the project is offset by the recovery of coal deposits. Conditions attached to the development permission require effective noise and dust suppression measures to be taken.
The appellant is opposed to the respondent's activities and is actively involved with a local pressure group which campaigns against the reclamation scheme. She sought unsuccessfully to take Group Litigation Order proceedings against the respondents in a case which also went to the Court of Appeal. The prospective claimants had failed to provide sufficient particulars to demonstrate a multiplicity of actions with common points at issue and a reasonable prospect of success: Austin v Miller Argent (South Wales) Limited [2011] EWCA Civ 928, [2011] Env LR 32 at paragraphs 39 — 44. She now seeks to pursue her own claim in private nuisance alleging that she is affected by dust and noise which unreasonably interferes with the enjoyment of her home, situated approximately 450 metres from the south west corner of the development site. She claims that this would not happen if the respondent complied with the conditions imposed on its planning permission to mitigate the adverse environmental effects of its activities. She alleges that the nuisance is continuing, and seeks damages for past nuisance and an injunction to restrain future wrongdoing.
In this appeal the appellant argues that the cost of proceeding would be prohibitively expensive unless she is protected by a protective costs order ("PCO") which would relieve her of any liability to pay costs if she loses. She wants the respondents to pay her own costs if she wins, in the usual way. She accepts that the court would only be obliged to grant a PCO if it is satisfied that the proceedings would otherwise be prohibitively expensive and she is able to rely upon provisions in either the Aarhus Convention, which is concerned with protecting the environment, or an EU Directive which implements it (at least in part), Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.
After a one day hearing in the High Court at Cardiff, HHJ Jarman QC refused the application and gave permission to appeal.
There are certain findings of the judge by which we are bound. First, he was satisfied that the appellant was a woman of modest means; second, that public funds were not available to fund the litigation; third, that after the event insurance policies were prohibitively expensive; fourth, that she had a reasonably arguable case; fifth, that there will be others who live in the vicinity of the appellant's home who would also benefit from a successful outcome to this litigation; but sixth, that it was far from clear that it would have any wider impact.
There are now circumstances where a court is obliged to place a limit on costs in what are termed "Aarhus Convention Claims": see CPR 45.41ff. But these are limited to judicial review cases. Nonetheless it is accepted that in principle the court has power in an appropriate case to order a PCO under the wide case management powers of the court conferred by CPR 3.1. CPR 3.1(2)(m) provides that the court may make any order for the purpose of managing the case and furthering the overriding objective. The overriding objective ( CPR 1) is that cases should be dealt with justly which includes ensuring that the parties are on an equal footing and that the case is dealt with expeditiously and fairly.
The relevant legislation
The Aarhus Convention is entitled the "UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters." It came into force in 2001 and was ratified by the UK in 2005. The purpose of the Aarhus Convention is to encourage members of the public to participate in the decision-making process upon proposals for development affecting the environment (Articles 3, 6, 7 and 8); to ensure that members of the public are adequately informed about matters relating to the environment (Articles 3, 4 and 5); to ensure that independent administrative or judicial processes exist by which the public can participate in and challenge decisions and actions affecting the environment (Article 9); and to promote access to administrative and/or judicial remedies by ensuring that remedies are fair and effective, the process equitable and timely, and the cost of taking action is not prohibitively expensive (Article 9.4). The principal provisions with which we are concerned are those found in Articles 9.2 to 9.4:
"9.2 Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:
(a) having a sufficient interest, or alternatively;
(b) maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;
have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.
9.3 In addition and without prejudice to the review procedures referred to in paragraph 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.
9.4 In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible."
It is clear that Article 9.3 is concerned with a much wider set of procedures than Article 9.2.
Enforcement of the Convention is in the hands of the Aarhus Convention Compliance Committee, a body of practitioners and academics. Whilst this is not a court, its decisions "deserve respect on issues relating to standards of public participation": per Lord Carwath in Walton v Scottish Ministers [2012] UKSC 44, para 100.
The Treaty itself has not been directly incorporated into domestic law. However, Mr Tromans QC, counsel for the appellant, submits that nonetheless the court has an obligation to give effect to the principle that the proceedings should not be prohibitively expensive for two distinct reasons. First, he relies upon a well established principle of English law that, where possible, UK law should be interpreted and applied in harmony with the UK's international obligations. This principle, he submits, extends to requiring the discretionary powers of the court to be exercised so as to give effect to Article 9.4.
In the alternative, he submits that the obligation to ensure that the proceedings should not be prohibitively expensive has become binding on the domestic courts via EU law. The contention is that this has been achieved by two distinct routes. First, the Convention has, at least in part, been incorporated into the EIA Directive which is part of domestic law. Second, it is in any event binding by virtue of the fact that the EU itself, as a distinct entity, is a party to the Convention. Mr Tromans says that either way the obligation is binding.
Does the Convention apply to private nuisance actions?
Logically the first question is whether the Aarhus Convention has any application at all to a private nuisance claim of the kind advanced here. If it does not, then since the purpose of the Directive is to implement part of the Convention, it cannot have any purchase either.
There is no direct authority on the point, although the issue was considered in Morgan and Baker v Hinton Organics (Wessex) Limited and CAJE [2009] EWCA Civ 107, [2010] 1 Costs LR 1 (Laws, Carnwath and Maurice Kay LJJ) a case not factually dissimilar to this. The claimant householders had brought an action in private nuisance against the operators of a neighbouring waste management plant, complaining that the plant emitted noise and smells. An interim injunction was granted and later discharged. The claimants were unsuccessful in the action because the...
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