PP 2013/129

Aarhus Convention rights and obligations are prayed in aid in support of a High Court challenge based on the principle of prematurity. The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention”) was adopted in 1998, and came into force in 2001. The UK is a party to it. The Aarhus Compliance Committee was established under its terms to carry out the role of reviewing compliance by all parties. In Walton v Scottish Ministers [2012] UKSC 44, Lord Carnwath stated that although the Aarhus Convention is not part of domestic law as such – except where incorporated through European Directives – decisions of the Aarhus Compliance Committee deserve respect on issues relating to public participation. In Stratford on Avon District Council v Secretary of State for Communities and Local Government [2013] EWHC 2074 (Admin), the claimant applied to quash the decision of the Secretary of State, following a public inquiry, to grant planning permission for a large residential development. The claimant relied in part on the argument of prematurity, against the background of a new draft core strategy on housing. The inspector had accepted that the proposed development would substantially prejudice the emerging core strategy, but gave little weight to that consideration. The claimant specifically argued that the inspector had erred in that he had ignored the obligations under Article 7 of the Aarhus Convention to ensure effective public participation in the development plan process, at a stage when all options are open. The judge noted that the inspector had proceeded at the inquiry on the basis that the Aarhus Convention obligations were engaged, and that the Secretary of State had conceded that for the purposes of the claimant’s application the court should proceed on the same basis. The court dismissed the claimant’s application. Article 7 did not require all applications for specific developments to be put on hold, while an emerging development plan ran through its rigorous course. That would bring the planning system to a halt. In the present case, the public had been given every opportunity to participate in all aspects of the development plan process. They had also had every opportunity to participate in the decision-making process that led to the inspector determining that the weight he should give to the emerging core strategy was relatively little, and to his determination that other factors outweighed the potential harm to that strategy. This was sufficient. John Martin