Simon Trahair-Davies of Stephens Scown LLP outlines a UK case which considered whether a private nuisance claim was covered by the Aarhus Convention, which gives the public access to environmental information.
This case is of interest to aggregates businesses because it relates to an application for a protective costs order in a private nuisance claim for dust and noise created during a land restoration project, and the question of whether this is covered by the Aarhus Convention.
Aarhus Convention
The Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters adopted in 1998 in Aarhus, Denmark, entered into force on 30 October 2001. It establishes a number of rights of the public (individuals and their associations) with regard to the environment. Parties to the Convention are required to make the necessary provisions so that public authorities (at national, regional or local level) will contribute to these rights to become effective.
The Convention has three pillars, giving rights to the public for access to environmental information, participation in the environmental decision-making process and access to environmental justice. With regard to the environmental justice pillar, this includes allowing members of the public who have sufficient interest or whose rights are being impaired to have access to a review procedure to challenge these decisions.
Background to the case
The land restoration project in question was operated by Miller Argent (South Wales) Ltd near the Welsh town of Merthr Tydfil and aimed to restore the landscape in the wake of mining activities in the area.
The application was made by a resident of the town who brought a claim for nuisance, claiming that Miller Argent had breached its planning conditions due to the dust and noise created by the restoration project. She also claimed that the dust and noise unreasonably interfered with the enjoyment of her home. She applied for damages for past nuisance and an injunction to prevent future nuisance (private nuisance claims can be brought when someone is doing something on their own land, which is lawful, but which has a detrimental effect on someone else).
The claimant also made a claim for a protective costs order (PCO). A PCO caps the liability of one party (usually the claimant) to pay the costs of the other party if their claim is unsuccessful. The aim is to preserve members of the public’s access to the judicial process, by limiting the potential financial burden on them.
The application for a PCO was refused by the High Court but the complainant appealed that decision to the Court of Appeal in the UK.
Court of Appeal decision
The Court of Appeal heard the case in July 2014 and dismissed the appeal. The court considered the main issue of whether the private nuisance claim was within the scope of the Aarhus Convention.
The court decided that although some private nuisance claims would be covered by the Aarhus Convention, this one was not because the public benefit in the case was considered to be uncertain and unlimited.
The court also found that even if it had found the facts to fall within the scope of the Aarhus Convention it could not have granted a PCO because protection of a private interest was a significant part of the claim, the complainant had not fully explored the cheaper option of statutory nuisance proceedings and that Miller Argent had already paid considerable costs in defending an unsuccessful group litigation claim brought by the same complainant. However, the Convention’s requirement for costs not to be prohibitive would be a factor in deciding whether to grant a PCO in private nuisance cases.
Wider implications of decision
The court in this case also found that private nuisance actions can in principle fall within the scope of the Aarhus Convention and set out a two part test that must be met. First that the complainant must have a close link to the environmental matters regulated by the Aarhus Convention and secondly that if the claim is successful it must achieve significant public environmental benefits.
The Court of Appeal also found that private nuisance claims are not within the scope of the EIA Directive 2011.
- Simon Trahair-Davies is a partner in the mining and minerals team at
2974 Stephens Scown LLP in the UK. The firm has more than 70 years’ experience representing mining and minerals clients and its specialist team has recently been recognised once again by independent guides to the law Legal 500 and Chambers. The team’s work on Wolf Mineral’s new tungsten mine in Devon won deal of the year at the South West Property Awards 2014. Simon can be contacted on +44 (0)1872 265100 or <%$Linker:2 Email <?xml version="1.0" encoding="utf-16"?><dictionary /> 0 0 0 oLinkEmail email [email protected] false mailto:email%[email protected] true false %>. For more information visit <%$Linker:2 External <?xml version="1.0" encoding="utf-16"?><dictionary /> 0 0 0 oLinkExternal www.stephens-scown.co.uk Visit www.stephens-scown.co.uk false http://www.stephens-scown.co.uk/ false false %>
