R (on the application of Edwards and another ) v Environment Agency and Others (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Hope,Lord Mance,Lord Carnwath,Lord Neuberger,Lord Clarke |
| Judgment Date | 11 December 2013 |
| Neutral Citation | [2013] UKSC 78 |
| Date | 11 December 2013 |
| Court | Supreme Court |
[2013] UKSC 78
THE SUPREME COURT
Michaelmas Term
Lord Neuberger, President
Lord Hope
Lord Mance
Lord Clarke
Lord Carnwath
Appellant
David Wolfe QC
(Instructed by Richard Buxton Environmental and Public Law)
Respondents
James Eadie QC
James Maurici QC
(Instructed by Treasury Solicitor)
Lord Carnwath (with whom Lord Neuberger, Lord Hope, Lord Mance and Lord Clarke agree)
Heard on 22 July 2013
The "Aarhus Convention" (more fully, the "Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters") requires that the procedures to which it refers should be "fair, equitable, timely and not prohibitively expensive" (article 9.4). Although the United Kingdom is a party to the Convention, it is not directly applicable in domestic law. However, the same requirements have been incorporated by amendments made in 2003 into directives, relating in particular to environmental impact assessment (EIA Directive 85/337/EEC) and integrated pollution prevention and control (IPPC Directive 96/61/EC); compliance was required by 25 June 2005 ( Council Directive 2003/35/EC article 6) (The EIA Directive is now consolidated at 2011/92/EC). It has not been disputed that the present proceedings, though begun before that date, are at least at this level subject to what I will call the "Aarhus tests" under directly applicable European law.
For reasons explained in its judgment of December 2010 ( [2010] UKSC 57; [2011] 1 WLR 79), the Supreme Court referred to the Court of Justice of the European Union (CJEU) certain questions relating to the expression "not prohibitively expensive". The reference followed the dismissal of the substantive appeal, and the making of an order for costs against the effective appellant, Mrs Pallikaropoulos (Edwards v Environment Agency [2008] 1 WLR 1587; [2008] UKHL 22). The answers of the CJEU were given in a judgment dated 11 April 2013: Edwards v Environment Agency (No 2) ( Case C-260/11) [2013] 1 WLR 2914 (following an opinion of Advocate General Kokott dated 18 October 2012). We heard oral submissions from the parties on 22 July 2013. Following that hearing it was agreed that our decision would be deferred pending receipt of the same Advocate General's opinion in infraction proceedings against the United Kingdom relating to alleged non-implementation of the directives. That opinion was delivered on 12 September 2013 (Commission of the European Union v United Kingdom ( Case C-530/11)). We have received further submissions of the parties on that opinion. We have also been informed that a request by the UK government to reopen the oral procedure in that case has been refused by the court.
Before turning to those issues, it is necessary to recall briefly the subject-matter, and somewhat unusual course, of the substantive judicial review proceedings, including the circumstances in which Mrs Pallikaropoulos became a party.
The proceedings concerned a cement works in Rugby. On 12 August 2003 the Environment Agency issued a permit to continue operations with an alteration in its fuel from coal and petroleum coke to shredded tyres. This proposal gave rise to a public campaign on environmental grounds, one opponent being a local pressure group called "Rugby in Plume". Judicial review proceedings were begun on 28 October 2003 challenging the Agency's decision.
The proceedings were begun in the name of a local resident, Mr David Edwards. The background to his involvement was described by Keith J, when permitting the claim to proceed ( [2004] EWHC 736 (Admin)), paras 12–13). He noted the public campaign led by Rugby in Plume, its "leading light" being Mrs Pallikaropoulos, who claimed to speak for "between 50,000 and 90,000 local residents" affected by the proposals, and to have committed "substantial funds of her own" to the campaign. Following the decision of the Rugby Borough Council, on advice from leading counsel, not to pursue its own claim for judicial review, she was reported as "pledging to carry on the battle using legal aid", and was also reported as saying:
"I'm too rich [to get legal aid], because I own my own house, so someone in Rugby has to come forward who feels strongly enough to take the case forward under the legal aid scheme."
Although there was no direct evidence from Mr Edwards that he had responded to this request for assistance, the judge found it difficult to resist the inference that he had been —
"put up as a claimant in order to secure public funding of the claim by the Legal Services Commission… when those who are the moving force behind the claim believe that public funding for the claim would not otherwise have been available".
Keith J held that this somewhat unconventional background neither deprived Mr Edwards of a sufficient interest to bring judicial review proceedings, nor constituted an abuse of process. There was no appeal from that conclusion. It had the consequence that the proceedings in the High Court continued at public expense and without significant risk to the applicant, or to his supporters, of an adverse costs order if they lost.
The substantive application was heard by Lindsay J and dismissed on 19 April 2005: [2005] EWHC 657 (Admin), [2006] Env L R 56. He observed that the public opposition was "not unnatural":
"I say that that was not unnatural as burning rubber is notorious for the noxious smell given off and the dense smoke created and many, unaware of the way in which the chipped tyres would be burned in a modern 'state of the art' kiln at temperatures of up to 1400 degrees, would expect and fear the worst." (para 5)
However, as he found in the course of his judgment, these fears, natural or not, were contradicted by the evidence. He dismissed an argument that the proposal was a change which "may have significant adverse effects on the environment" (EIA Directive Annex II para 13), saying:
"… it is plain… that tyre burning in itself as a fuel has no significant adverse effects on the environment and, indeed, overall may even have beneficial effects on the environment…" (para 31).
Lord Hoffmann, giving the leading judgment in the House of Lords on the substantive appeal, described this as —
"an unchallenged finding of fact that the only change in operation proposed by the application, namely the use of tyres, would not have significant negative effects on human beings or the environment…" ( [2008] 1 WLR 1587, para 30)
Lindsay J rejected grounds alleging non-compliance with the two directives. He upheld a complaint of procedural unfairness by the Agency arising from failure to disclose an internal assessment report "AQMAU 1" relating to emissions of "particulate matter" (PM10), but exercised his discretion to refuse relief. He also declined to make a reference to the CJEU.
Mr Edwards appealed to the Court of Appeal with permission granted by Keene LJ. The appeal was heard over three days beginning on 6 February 2006, and was dismissed on similar grounds, including the exercise of discretion ( [2006] EWCA Civ 877; [2007] Env LR 126). The court held that the change was not a "project" within the meaning of the EIA directive, but that if that were wrong there had been substantial compliance. On the procedural issues, Auld LJ observed:
"… given the Judge's finding on the evidence before him of no environmental harm from the plant and the continuous and dynamic nature of the PPC regulatory system enabling assessments to be made on what is known rather than predicted by AQMAU over three years ago, it would be pointless to quash the permit simply to enable the public to be consulted on out-of-date data." (para 126)
The court again declined to make a reference to the CJEU.
There had been an unexpected development on the third and final day of the hearing. Mr Edwards, while wishing to continue with his appeal, withdrew his instructions from both solicitors and counsel (Mr Wolfe QC). Mrs Pallikaropoulos, described by Auld LJ as "a prime mover", who had been in court throughout the appeal, applied without objection to be joined as an additional appellant. This course was described by Auld LJ as "plainly in the public interest" to enable the appeal to be concluded. He agreed to Mr Wolfe's proposal that her potential liability to costs in the Court of Appeal should be capped at £2,000. Following dismissal of the appeal, the respondents' costs capped at this level were awarded against her.
She was given leave to appeal by the House of Lords. She applied to the House of Lords for an order varying or dispensing with the ordinary requirement, under the applicable practice direction of the House (not replicated in the new Supreme Court rules), to give security for costs in the sum of £25,000, and for a protective costs order, under the principles set out in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600. On 22 March 2007 the Judicial Office wrote to the parties informing them that the applications had been rejected for the following reasons:
"Their Lordships proceed on the basis that the appeal raises an issue or issues of general importance and they are prepared to assume that [existence] of private interest may not always preclude the making of a special costs order in such a case. But their Lordships do not accept that information about the applicant's means, about the identity and means of any who she represents and about the position generally in the absence of any special order, are or should be regarded as immaterial; further, they do not consider that the suggested protective orders regarding costs appear proportionate on the information which is before them and in the light...
To continue reading
Request your trial
-
Reclaiming Motion Of J Mark Gibson For Judicial Review Of A Decision Of The Scottish Ministers, Energy And Climate Change Directorate, Dated 23 July 2014
...analysis of the amount of the costs”. The same point was made by the UK Supreme Court in R (Edwards) v Environment Agency (No.2) [2014] 1 WLR 55, particularly at paragraphs 23 and 28. [21] Considering the issues raised by Lord Carnwath JSC at paragraph 28 in Edwards, it was not contended in......
-
Austin v Miller Argent (South Wales) Ltd
...for the respondent, submits that we should find that private nuisance actions fall outwith Article 9.3. As AG Kokott observed in R (Edwards) v Environment Agency [2013] 3 CMLR 18 at paras 30–32 the purpose of the Aarhus costs protection provisions is to ensure that the public have a wide ac......
-
Campaign to Protect Rural England-Kent Branch v Secretary of State for Communities and Local Government
...the cap should nevertheless be deployed as a further means of reducing costs. 5.2The Principal Authorities 42 In R (Edwards and another) v Environments Agency and another (No 2) [2013] UKSC 78; [2014] 1 WLR 55, Lord Neuberger referred to the European Court decision in Edwards and said at ......
-
Rural Integrity's (Lisburn 01) and related Limited companies Application
...Consideratio n was then given to the Aarhus rules and principles. The court then referred to Edwards v Environmental Agency (No 2) [2013] UKSC 78, at [27] – [28]: “[27] In Edwards v Environment Agency (No 2) [2013] UKSC 78, the claimant, via judicial review proceedings, challenged the Agenc......
-
Indeterminacy, Disagreement and the Human Rights Act: An Empirical Study of Litigation in the UK House of Lords and Supreme Court 1997–2017
...cases where there is no appeal below as such, such as R (on the application of Edwardsand another) vEnvironment Agency and others (No 2) [2013] UKSC 78, [2014] 1 WLR 55 whichconcerned costs in the Supreme Court.300 C2020 The Author. The Modern Law Review C2020 The Modern Law ReviewLimited......