Protective Expenses Orders, The Aarhus Convention and the Public Participation Directive

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.

Consultation on Proposals for PEOs

The Scottish Government consulted on specific proposals for a costs capping scheme via court rules on PEOs in its consultation paper Legal Challenges to Decisions by Public Authorities Under the Public Participation Directive 2003/35/EC: A Consultation, in January 2012.

The usual rule in civil litigation is that expenses should follow success. A PEO represents a modification of that rule by limiting the amount of expenses a challenger (referred to as a 'petitioner' in judicial review proceedings) has to pay to the other side if unsuccessful. Although there is no formalised procedure for granting them, a number of PEOs have been granted in judicial review cases.

An independent analysis of responses to the consultation was published in October 2012. Responses to the consultation are available here.

In light of the EU Commission's concerns, the Scottish Government has proposed that, in conjunction with measures proposed by the UK Government and the Northern Ireland Department of Justice, there should be specific Rules of the Court of Session for granting PEOs to put compliance with the requirements of the PPD beyond doubt. The proposals presented to the Court of Sesion Rules Council (which has responsibility for drafting rules of court) are detailed in the Scottish Government's response to the consultation findings.

Similar exercises have been carried out in England and Wales and in Northern Ireland.