A recent Court of Appeal judgment has sparked concern over the future application of Aarhus costs cap orders, and found that the costs cap can only apply if the challenge concerns national law or policy directly relating to the environment.
HM Treasury and another v Global Feedback Ltd and another [2025] EWCA Civ 624 involved GFL, an environmental charity, which challenged regulations made by HM Treasury and the secretary of state for business and trade. These regulations implemented tariff preferences on Australian imports. GFL argued the government failed to assess the risk of carbon leakage between the UK and Australia, raising environmental concerns. The charity sought the protection of an Aarhus costs cap, which limits legal costs in environmental cases to ensure access to justice.
The key legal question was whether the challenge fell within Article 9(3) of the Aarhus Convention, which provides members of the public must “have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment”. GFL argued that each ground of its claim related to environmental issues. However, the government contended Article 9(3) did not apply as the primary legislation in question – the Taxation (Cross-Border Trade) Act 2018 – does not relate to the environment.
The Court of Appeal sided with the government, ruling that the Aarhus costs cap did not apply. It emphasised that the determining factor is the purpose of the legislation allegedly breached. Since the 2018 Act primarily regulates customs duties and trade, not environmental protection, it does not qualify as “national law relating to the environment” under Article 9(3).
However, the court distinguished this case from the earlier Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539; [2014] PLSCS 332, where Aarhus protection was granted. While the court said the Town and Country Planning Act 1990 “without more does not fall within Article 9(3)”, this matter did fall within the scope as the relevant material consideration left out of account was a policy for the protection of the environment.
This judgment underscores the importance of the legal framework underpinning a claim when seeking Aarhus costs protection. While it narrows the scope for such protections in some cases, it reaffirms their availability in challenges directly tied to environmental law or policy.
Elizabeth Mutter is a solicitor at Irwin Mitchell
