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3 July 2017

Aarhus Compliance Committee adopt findings in Communication ACCC/C/2014/101

On 18 June 2017 the Aarhus Compliance Committee adopted its findings in ACCC/C/2014/101.

This case concerns a communication brought by HS2 Action Alliance Limited, the London Borough of Hillingdon, and Charlotte Jones, alleging the failure of the EU to comply with its obligations under Article 7 of the Aarhus Convention. The Communication is related to Communication ACCC/C/2014/100 concerning compliance by the United Kingdom and a decision on which is still outstanding.

The Communications arise from the decision of the Government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, High Speed Rail: Investing in Britain's Future—Decisions and Next Steps (Cm 8247) (10 January 2012) (“the DNS”): see further the decision of the Supreme Court in R (on the application of Buckinghamshire CC) v Secretary of State for Transport [2014] 1 W.L.R. 324. The communicants having failed in the domestic courts took their complaints to Geneva an made separate but related communications against the EU and the UK.

The Committee found the EU not to be in breach of the Convention:

“52. With respect to the DNS, the Committee notes that the following points are common ground between the parties to this case: 

    • Article 7 of the Convention applies to the DNS.
    • Article 3, of the SEA Directive requires that an environmental assessment be carried out for plans and programmes which “set the framework for future development consent of projects”. 
    • In its judgment of 22 January 2014, the United Kingdom’s Supreme Court unanimously held that the DNS did not set the framework for future development consent, and accordingly the DNS was not required to undergo environmental assessment and public participation under the SEA Directive.  The Party concerned has no other legislation in force to implement the Convention that would require the DNS to be subject to public participation.

53. The Committee notes that, according to the Supreme Court’s judgment, the DNS is not covered by the SEA Directive. Nor is it covered by the Public Participation Directive. Moreover, public participation in the preparation of the DNS is not required by any other piece of EU legislation in force (see para. 52 above) nor is the preparation of the DNS itself required by any EU legislation in force. 

54. The Committee notes that the communicant cites the Committee’s findings on communication ACCC/C/2010/54 (European Union) in its submissions, and in particular, the Committee’s finding that, with respect to article 7 of the Convention, “the Party concerned should have in place a regulatory framework to ensure proper implementation of the Convention”.43  

55. The Committee points out that its findings on communication ACCC/C/2010/54 concern a very different legal situation. Preparation of national renewable energy action plans is required by article 4 of the Renewable Energy Directive44 which means that it is “covered by Community law in force”. Accordingly, in accordance with its declaration upon approval, the Party concerned had assumed obligations under the Convention. As noted in paragraph 53 above, this is not so in the present case.

56. Based on the above considerations, the Committee finds that, in the light of the Party concerned’s declaration upon approval, since the Party concerned has no law in force that would require preparation of the DNS itself or that would require public participation with respect to plans or programmes, such as the DNS, which do not set the framework for future development consent, the Party concerned has no obligations to make appropriate practical and/or other provisions for the public to participate during the preparation of such plans and programmes. Accordingly, the Committee finds that the Party concerned is not in non-compliance with article 7 of the Convention in the context of this case.

Article 3, paragraph 1 

57. The Committee considers that the communicant’s allegation that the Party concerned has failed to meet the requirement in article 3, paragraph 1 to “take the necessary legislative, regulatory and other measures” to implement the provisions of the Convention in this case necessarily presupposes that the Party concerned has an obligation under the Convention to provide for a framework for public participation with respect to plans and programmes relating to the environment, such as the DNS, which do not set the framework for future development consent. However, the Committee has already found in paragraph 51 above that, in the light of its declaration upon approval, the Party concerned only has obligations under the Convention to the extent that it has law in force. Thus, since the Party concerned has no law in force that would require preparation of the DNS itself or that would require public participation with respect to plans or programmes, such as the DNS, which do not set the framework for future development consent (see para. 56), the Party concerned has no obligations under article 3, paragraph 1 of the Convention to provide a proper regulatory framework with respect to public participation in the preparation of such plans and programmes either. 

58. Accordingly, the Committee does not find the Party concern to be in noncompliance with article 3, paragraph 1, of the Convention in the context of this case.

IV. Conclusions 

59. Based on the above considerations, the Committee does not find the Party concerned to be in non-compliance with article 3, paragraph 1, or article 7 of the Convention in the circumstances of this case.”

For more details click here.  

James Maurici QC and Jacqueline Lean appeared for the UK Government in Communications 100 and 101.

Charles Banner appeared for the communicants in Communications 100 and 101.

Barristers Involved

Sectors:
Environment

Services:
Litigation