CA Decision | Aarhus Convention Costs Protection Inapplicable Where Claim Challenges Non-Environmental Law Despite Environmental Impact.

HM TREASURY & SECRETARY OF STATE FOR BUSINESS AND TRADE V GLOBAL FEEDBACK LIMITED [2025] EWCA Civ 624

In HM Treasury and Secretary of State for Business & Trade v Global Feedback Limited, the Court of Appeal comprehensively examined the scope of Aarhus Convention claims under CPR Part IX of 46, specifically addressing costs protection for environmental judicial reviews. The court rejected the lower court’s determination that the claim qualified as an Aarhus Convention claim, finding that merely having an environmental connection is insufficient for costs protection. The judgment clarified that to engage Article 9(3) and attract standard costs limits under CPR 46.26, a claim must challenge a legal provision genuinely intended to protect or regulate the environment. Critically, public law principles and general statutory obligations to consider environmental matters do not automatically transform a claim into an Aarhus Convention claim. The court noted that CPR 46.28(2) requires a definitive assessment at the earliest opportunity, not merely an arguable case. Consequently, the standard costs limits would not apply, leaving potential costs protection to be considered through a separate costs protection order application under alternative mechanisms.

...the present case raises this issue: does Art.9(3) of the Aarhus Convention apply where a claim alleges that a defendant’s decision or act under a legal provision not relating to the environment is vitiated by a public law error in some way connected to the environment or an effect on the environment? [...] The mere fact that this concerns the environment, or an effect upon the environment, does not turn the breach of a public law principle into a breach of national environmental law. It does not alter the non-environmental nature or purpose of that legal provision. In such circumstances, Art.9(3) is not engaged.

Citations

Venn v Secretary of State for Communities and Local Government [2015] EWCA Civ 379; [2015] 1 WLR 2328 A breach of a legal requirement to take into account or apply an environmental policy engages Article 9(3) of the Aarhus Convention, where that policy forms part of national law relating to the environment. Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012; [2015] 1 WLR 62 A claim in private nuisance may fall within Article 9(3) if it closely relates to environmental matters regulated by the Convention and would deliver significant public environmental benefits. R (Friends of the Earth Ltd) v Secretary of State for International Trade [2021] EWHC 2369 (Admin) A claim under a statutory framework not aimed at environmental protection did not fall within Article 9(3); public law principles alone do not constitute national law relating to the environment. R (ClientEarth) v Financial Conduct Authority [2023] EWHC 3301 (Admin); [2024] Env. L.R. 20 Statutory provisions governing financial disclosures and prospectus approvals, though capable of referencing environmental risks, are not laws relating to the environment for the purpose of Article 9(3). ClientEarth v European Investment Bank (Case T-9/19) [2021] CMLR 17 Internal eligibility criteria linked to environmental aims, if binding on the decision-maker, may constitute environmental law where they substantially condition decision-making with environmental objectives. R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52; [2021] PTSR 190 A public law obligation to consider obviously material environmental matters does not by itself constitute national law relating to the environment under Article 9(3). Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky (Case C-240/09) [2012] QB 606 Article 9(3) covers breaches of national environmental laws; Member States must ensure procedural rules do not undermine effective environmental protection guaranteed by such laws. Deutsche Umwelthilfe eV v Bundesrepublik Deutschland (Case C-873/19) [2023] Env. L.R. 17 The definition of environmental law under Article 9(3) encompasses provisions expressly enacted to achieve environmental protection, such as EU regulations restricting polluting technologies. Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844; [2017] PTSR 1644 The right of access to “environmental information” must be interpreted with reference to the language and purpose of the Aarhus Convention to avoid an overly broad scope. R (Friends of the Earth Ltd) v Secretary of State for International Trade [2023] EWCA Civ 14; [2023] 1 WLR 2011 Treaty interpretation must be constrained by the agreed language of the Convention; courts should adhere strictly to its terms when determining the scope of Article 9(3).

Track allocation housing disrepair CPR 46.13 settlement sum costs restriction SCCO

MRO fee markup cap 25% detailed assessment personal injury Senior Courts Costs Office

Security for costs refused CPR 25.27 very high probability success excessive estimate King's Bench

IPEC scale costs transfer Patents Court PD 30 para 9.2 costs caps Court of Appeal

Costs budget variation CPR 3.15A promptness significant development unfair prejudice Chancery Division

Costs budgeting inter partes proportionality high hourly rates AI disclosure Patents Court CPR 3E

Beneficiary personal liability section 71(3) Solicitors Act 1974 indemnity costs VAT self-supply SCCO

Summary assessment indemnity costs unless order payment on account disclosure default Chancery Division

Provisional assessment set aside CPR 3.1(7) points of dispute filing duty PD 47 para 14.3 SCCO

Fixed recoverable costs police claims CPR 26.9(10)(e) intentional tort exemption

Key Points

Whether a claim falls within Article 9(3) and (4) of the Aarhus Convention must be determined definitively at the earliest opportunity, not merely on an arguable basis, and typically arises at the permission stage of a judicial review. [72]
For a claim to qualify as an Aarhus Convention claim under CPR Part 46, it must involve the contravention of a provision of national law whose purpose is to protect or regulate the environment; a legal provision which merely has incidental or indirect environmental effects does not suffice. [63], [74]–[76], [88], [96]
Public law principles, such as the requirement to take into account relevant or obviously material considerations or to act rationally, do not in themselves constitute national law relating to the environment for the purposes of Article 9(3). Such principles must be linked to a specific statutory or policy obligation with an environmental protection purpose to engage the Aarhus costs regime. [132]–[143]
A general statutory duty to have regard to international obligations, without particular reference to environmental protection, does not constitute a legal provision for the purposes of Article 9(3); nor does the mere fact that environmental issues were considered in the decision-making process. [145]–[146]
Where proceedings fall outside the scope of Article 9(3) and CPR Part 46, any application for costs protection must instead be made under the standard regime for protective costs orders rather than relying on automatic limits under CPR 46.26. [148]

"...this is a challenge which amounts to allegations of breaches of public law principles and not any breach of this country's law relating to the environment or environmental law. It therefore falls outside the scope of Art.9(3) of the Aarhus Convention. Any costs protection could only be considered through an application for a costs protection order."

Key Findings In The Case

The court held that section 28 of the Taxation (Cross-Border Trade) Act 2018, which requires public authorities to have regard to relevant international obligations, does not constitute a provision of national law whose purpose is to protect or regulate the environment and therefore does not bring the claim within Article 9(3) of the Aarhus Convention [145].
The judge found that Global Feedback Limited (GFL)’s grounds of challenge—being based on irrationality, failure to make proper inquiries (Tameside duty), and misinterpretation of international law—amounted to alleged breaches of general public law principles rather than any contravention of a legal provision whose purpose is environmental protection [147].
The court determined that the making of the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023 was authorised under an economic and trade statute (the 2018 Act) which had no underlying environmental protection objective, and the incidental consideration of climate issues did not convert the legal basis into environmental law [144].
The court rejected the argument that GFL’s claim was analogous to that in Venn v Secretary of State for Communities and Local Government, finding no statutory obligation in the 2018 Act comparable to the mandatory consideration of environmental planning policy required in planning law [141].
By determining that no provision of UK national law had been contravened for the purposes of environmental protection, the court concluded that GFL’s claim was not an “Aarhus Convention claim,” and thus the default costs protection under CPR 46.26 did not apply; any application for costs protection must instead be pursued through the standard protective costs order regime [152].

"...a principle of public law, without more, does not form part of our law relating to the environment. It does not become so by being applied in a factual matrix which involves environmental impact or effect, nor could that matrix alter the non-environmental nature of the legal provision under which the defendant acts. Article 9(3) is not engaged. Indeed, if Art.9(3) were to be treated as applying to this type of situation, then it would have been unnecessary in Venn for the Court of Appeal to have relied upon the reasoning in [12] to [17] of its decision."

Background

The case involved an appeal by HM Treasury and the Secretary of State for Business and Trade against a decision by Lang J that a judicial review claim brought by Global Feedback Limited (“GFL”) was an “Aarhus Convention claim” under CPR 46.24(2)(a), thereby attracting costs protection. The underlying claim challenged the legality of the Customs Tariff (Preferential Trade Arrangements and Tariff Quotas) (Australia) (Amendment) Regulations 2023, which implemented tariff preferences under a UK-Australia Free Trade Agreement. GFL, an environmental charity, argued these regulations would increase greenhouse gas emissions through “carbon leakage” from increased Australian beef production. The key costs issue was whether the claim fell within Article 9(3) of the Aarhus Convention as involving a challenge to acts contravening “provisions of national law relating to the environment”.

Costs Issues Before the Court

The central costs issue was whether the judicial review qualified as an Aarhus Convention claim under CPR 46, which would impose costs limits protecting GFL. This turned on whether the challenged decisions allegedly contravened provisions of UK law “relating to the environment” under Article 9(3). The appellants argued the Taxation (Cross-Border Trade) Act 2018 (under which the regulations were made) was not environmental legislation, while GFL relied particularly on section 28 requiring regard for international obligations including climate agreements.

The Parties’ Positions

The appellants contended Article 9(3) only applied where the contravened law’s purpose was environmental protection or regulation. They argued the 2018 Act concerned import duties, not the environment, and section 28 was a general provision requiring regard for relevant international obligations without specifying environmental aims. They distinguished Venn by arguing the planning context was unique in implementing environmental protection through policy.

GFL submitted that section 28’s requirement to consider UN climate agreements meant the claim involved contravention of national law relating to the environment. They argued this was analogous to Venn, where policies formed part of the environmental legal framework. The intervener WWF took a broader view that any law capable of affecting the environment engaged Article 9(3).

The Court’s Decision

The Court of Appeal allowed the appeal, holding the claim was not an Aarhus Convention claim. It analysed Article 9(3)’s language, confirming “relating to” required the national law’s purpose to be environmental protection or regulation. The travaux préparatoires and French text supported this interpretation, showing the original “national environmental law” wording was maintained in substance.

The Court distinguished Venn, noting planning legislation uniquely implemented environmental protection through policy. Section 28 of the 2018 Act was a general provision without environmental purpose. Mere public law errors concerning environmental effects did not engage Article 9(3) unless the contravened law itself had environmental aims. The Court disapproved the broader approach in Friends of the Earth, emphasising the need to focus on the purpose of the legal provision allegedly contravened rather than the decision’s environmental impacts.

As the 2018 Act’s provisions were not for environmental protection, and section 28 did not specifically require environmental considerations, the claim fell outside Article 9(3). Costs protection under CPR 46 therefore did not apply, though GFL could seek a costs protection order under alternative provisions.

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