New Aarhus findings: ACCC/C/2014/100 (UK) – Committee explains public participation requirements for plans/programmes

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Last week, the Aarhus Convention Compliance Committee published its findings on communication ACCC/C/2014/100 (United Kingdom) concerning the controversial “High Speed 2” rail project from London to the West Midlands, Manchester and Leeds. The Committee found that the UK had not failed to comply with the Convention with regard to specific allegations raised by the communicants. However, the findings are nonetheless an important piece of “jurisprudence” of the Committee for specifying in greater detail the requirements for public participation in the preparation of plans/programmes.

Background and scope of the communication

The communication had been filed by High Speed 2 Action Alliance Limited (an NGO), the London Borough of Hillingdon and Ms. Charlotte Jones (a local resident). Based on an early objection, the London Borough was found not to be an admissible communicant for not being a member of the public but a public authority. The communication accordingly continued with the two other communicants and active engagement of other affected citizens as observers.
As the communicants made clear, the communication related only to a consultation carried out by Secretary of State for Transport on the Command Paper setting out the strategy for the promotion, construction and operation of the new high-speed rail line (the “DNS”). It did not relate to any later stages of the permitting procedure.

The communicants had lodged a judicial review alleging a failure to conduct SEA on the DNS but failed because, according to the UK High Court, the DNS did not set the framework for development consent. This assessment was confirmed by the UK Supreme Court in 2014. Subsequently, the communicants lodged the present communication and a separate communication concerning compliance by the European Union (ACCC/C/2014/101), which resulted in findings of no non-compliance in June 2017.

Findings of the Committee

The Committee first considered the requirement that public participation be conducted early, when all options are open (article 7 in conjunction with article 6(4) of the Convention). The Committee firstly held that in a tiered decision-making procedure, the Convention does not prescribe what options are to be studied at which stage. Neither does the Convention require that all options be studied. The public authority must only make sure that the public can propose any options, including the zero option (in this case, to not implement the project), and that these options are de jure and de facto still open, so that this input can also be taken into account. The Committee found that this was the case in the present context.

Secondly, the Committee considered the obligation on the public authorities to provide all the “necessary information to the public” “within a fair and transparent framework” (article 7 of the Convention). The Committee first clarified that the requirement to provide adequate notice to the public about the upcoming public participation phase (article 6(2)) is incorporated into article 7 directly (by way of article 6(3)). As regards further information to be provided, the Committee held that the more detailed minimum requirements in article 6(6) related to specific activities can serve as an inspiration. It concluded that accordingly public authorities were required to make available all information relevant to the decision-making procedure that they have in their possession. It further held that this would usually include:

a) The main reports and advice issued to the competent authority;
b) Any information regarding possible environmental consequences and cost-benefit and other economic analyses and assumptions to be used in the decision-making;
c) An outline of the main alternatives studied by the competent authority.

The Committee then found that in the context of the specific public participation procedure on the Command Paper the Secretary of State had provided sufficient information to the public or that the relevant information had been at least provided at an appropriate stage later in the decision-making procedure.

Comment

The Committee’s findings in this case are in particular important as a clarification of the requirements of the Convention as to what information needs to be made available to facilitate public participation on plans and programmes. Firstly, the findings recognize that the notice requirements of article 6(2) are incorporated into article 7. This had already been clarified in the Implementation Guide (p. 179) but will now also become part of the Committee’s jurisprudence. Secondly, the findings make clear that what is “necessary information” is in fact all information that is in the possession of the public authority and that is relevant for and used in the decision-making on the plan and programme, while indicating some examples (points (a)-(c) above). A national authority is therefore not free to decide what they consider “necessary” for the public to know but should disclose all the information it holds and that is relevant to its decision-making. The example categories (a)-(c) can moreover be useful to guide public authorities but also members of the public to request access where this information is not published proactively.

Another interesting aspect of the findings is the Aarhus Convention’s relationship with strategic environmental assessment (SEA). SEA is not required by the Aarhus Convention. However, in many cases public authorities will comply with article 7 by way of SEA. Also in the present case, the national court challenges of the communicants in fact related to the failure to carry out an SEA. This also appears to be the reason why the applicants ultimately failed before the Committee: The Convention cannot be read in a way that would nonetheless require authorities to do an SEA. Once the UK has ratified the 2003 Espoo Convention Protocol on SEA, the Espoo Implementation Committee may instead be an appropriate forum for such an allegation.

However, the Aarhus Convention can be of use in supplementing some of the requirements on SEA. In particular, the notification requirements in article 6(2) are more specific than what is required by the SEA Directive. Moreover, the Convention can be very useful in setting minimum standards for public participation procedures on plans that relate to the environment but are not subject to SEA. Since article 7 neither refers to “setting the framework for development consent” nor to “significant environmental effects”, the Convention applies much more broadly (compare para. 92 of the findings). This may include environmental education programmes, environmental inspection plans or plans that fall below the SEA “significance” threshold. For these plans and programmes, the findings of the Committee provide much needed guidance as to the participation requirements.

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Jack Catterall