Stephen Tromans QC acted pro bono (instructed by Hugh James, also acting pro bono) for the Environmental Law Foundation (ELF) on a communication to the Compliance Committee under the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The Committee has found against the UK: see Findings and Recommendations with regard to Communications ACCC/C/2013/85 and ACCC/C/2013/86 which were placed before the Meeting of the Parties at its 55th Meeting in Geneva from 6-9 December 2016. The Committee made a number of important findings. In general, private nuisance proceedings are to be regarded as judicial procedures aimed to challenge acts or omissions by private persons or public authorities which contravene national law relating to the environment, within Article 9(3) of the Convention. The test is whether the nuisance complained of affects the environment, as defined in the Convention. The number of people affected and the claimant’s motivation, or the proceeding’s possible importance in public interest terms are irrelevant. Also importantly, it found that other administrative and judicial procedures, such as complaints to regulators, are not effective alternative remedies. A complaint is not a “challenge” under the Convention, particularly as commencement of any action would be at the discretion of the regulator. Nor is a claim in judicial review against the regulator for failure to act an adequate alternative. It found that whilst statutory nuisance proceedings might in many cases provide an alternative to private nuisance, in a number of cases this would not be so, and hence statutory nuisance does not present a fully effective alternative to nuisance claims. There was evidence before the Committee which was not disputed that costs in private nuisance proceedings typically exceed £100,000, and the Committee accordingly found that the UK has failed to ensure that private nuisance proceedings falling within the scope of article 9, paragraph 3, of the Convention, and for which there is no fully adequate alternative procedure, are not prohibitively expensive.
This is a clear and important finding. It will require reconsideration of the approach of the Court of Appeal in Austin v. Miller Argent  EWCA 1012 (in which Stephen Tromans QC acted for Mrs Austin). Mrs Austin’s case is now the subject of an application and claim for just satisfaction to the European Court of Human Rights.