Right to make green challenges to planning decisions under threat, say UK lawyers

Exclusive: Government in ‘private meetings’ about removing cost cap protections under Aarhus convention

The government is considering stripping back legal protections that limit the costs community groups face when challenging planning decisions that threaten nature.

The Aarhus convention, an environmental treaty that was signed into law by the UK in 2005, guarantees the legal right to participate in democratic processes on environmental matters – such as sewage pollution, new roads or datacentre developments.

Under the treaty, when an individual brings an environmental legal claim, they are protected by a cost cap that means they pay only £5,000 of the other side’s costs if they lose. For organisations, the cost cap protection is £10,000.

The purpose of this is to ensure legal challenges about the environment are not prohibitively expensive for individuals and public interest groups.

According too environmental lawyers, the Ministry of Justice has been holding private meetings with “select” stakeholders on plans to remove these cost cap protections and distance the UK from the convention.

Other possible changes include doubling cost caps at each stage of a challenge and removing the costs protection where a court finds a “misuse of judicial review”.

Another potential change would allow groups that crowdfund legal challenges to face costs of up to 70% of the money they raise if they lose.

Proposals to change the way environmental judicial reviews worked began under Keir Starmer’s government, which repeatedly referred to nature as a blocker to growth. Starmer singled out the activist Dr Andrew Boswell as an example of the “nimbys and zealots” bringing “vexatious” legal claims that thwart growth, including a two-year legal fight against the expansion of the A47 in Norfolk that he ultimately lost.

Boswell said Starmer was “putting a target” on his back and that his campaign against the A47, which was funded by £73,000 in crowdsourcing from 2,000 individuals, “brought the community together in Norfolk”.

Carol Day, a senior environmental solicitor at Leigh Day, said the changes would “bring environmental litigation almost to a halt”.

“If they had a bank of cases where they could point to legal action holding things up, I think we could try and have a sensible discussion about it. But we have nothing from them, no kind of hard and fast evidence.”

Another environmental lawyer said the changes being proposed would “fundamentally undermine access to environmental justice deliberately” and mean “potentially really terrible decisions” would not be challenged.

“Local community objectors are often at the cutting edge of challenges that expose widespread government failures in relation to national and international obligations,” the lawyer said.

Sarah Finch, an environmental campaigner whose grassroots judicial review over an oil well in Surrey changed UK climate law, said the government’s proposals would have prevented her group from bringing the case.

“If we ran the risk of paying the other side’s fees, we would have never brought this legal action,” she said. “It’s completely despicable for the government to take this right away. It’s a proposal to restrict people’s access to environmental justice.”

Lawyers fear the private meetings signal the government is accelerating towards leaving the convention, which the government denies. Day said: “The UK government say they don’t want to leave the convention, but [potential changes] would put them in a very difficult position because they would be very significantly non-compliant with it.”

Kyle Lischak, the head of the environmental law charity ClientEarth UK, said: “The right to challenge unlawful decisions is one of the few ways people can hold those in power to account …

“Whether it’s datacentres or intensive livestock production, people too often find their rights and their environment on the chopping block in favour of rapid industrial buildout – and these people need the safe, affordable route to court to protect themselves, and nature, that the law should guarantee them.”

Niall Toru, a senior lawyer at Friends of the Earth, said: “The government seems determined to find someone to blame for slow growth, and environmental campaigners and community groups make an easy target. But nature isn’t holding the economy back. Floods, droughts, pollution and climate breakdown are costing people and businesses billions.

“These proposals will not fix those problems. Instead, they will make more people feel that decisions are being imposed on them without any meaningful way to challenge them.”

A government spokesperson said: “The government is committed to upholding its obligations under the Aarhus convention, including maintaining access to environmental justice that is not prohibitively expensive. There are no plans to remove costs protections for well-founded claims.”