The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention") was adopted on 25 June 1998 in Aarhus, Denmark. It created a framework for public access to environmental matters, granting the public rights and imposing duties on parties and public authorities in relation to the three pillars of the Convention: access to information, public participation and access to justice.
The UK and EU are both parties to the Convention and the EU has partly incorporated the Convention through Public Participation Directive 2003/35/EC ("the PPD"). The PPD requires Member States to ensure effective public participation in decision-making and regulation in relation to certain environmental matters, through access to information, access to justice and consultation. The PPD further requires that there must be access to a procedure for review of decisions by public authorities on environmental matters that is "fair, equitable, timely and not prohibitively expensive".
The sorts of decisions covered by the PPD principally cover those where an environmental impact assessment (EIA) is required, for example, major infrastructure projects. Examples of the types of projects or programmes which may require an environmental impact assessment include:
- windfarm developments,
- hydroelectric schemes,
- major roads,
- waste incinerators, and
- urban developments, such as schools, housing and sports stadia.
Full details of projects which may require an EIA are listed at Annexes I and II of EIA Directive 2011/92/EU.
In Scotland, the obligation to ensure access to a review of decisions by public authorities is principally met by judicial review, where the legality of decisions by public bodies may be challenged by bringing a petition in the Court of Session; and by applications for statutory review, for example, under sections 238 and 239 of the Town and Country Planning Act 1997 (c.8) or Schedule 2 to the Roads (Scotland) Act 1984 (c.54).
EU infraction proceedings
The European Commission has raised questions whether, across the UK, the current regime for granting Protective Expenses Orders ("PEOs) in the UK complies with the requirement under the PPD that access to legal remedies should not be "prohibitively expensive". The Commission considers that the current legal framework for granting PEOs does not provide the level of certainty required by the PPD. A way forward, it has suggested, is to codify the procedure for PEOs in rules of court, with the rules themselves specifying a cap on the petitioner's (or applicant's) liability to pay the respondent's or defender's expenses rather than leaving this to the discretion of the court.