Austin v Miller Argent (South Wales) Ltd

A private nuisance claim may fall within article 9.3 of the Aarhus Convention where the complaint is closely linked to environmental matters regulated by the Convention and success would confer significant public environmental benefits. A claim principally protecting private property, with only limited or incidental public benefit, falls outside that protection.

The Convention is unincorporated and does not compel the exercise of domestic costs discretion in conformity with article 9.4. Its requirement that environmental proceedings should not be prohibitively expensive is nevertheless a relevant factor when considering a protective costs order. A claimant’s private interest is also relevant but does not automatically preclude such an order.

The appellant brought a private nuisance claim against the operator of an open-cast coal mine. She alleged that dust and noise unreasonably interfered with the enjoyment of her home and sought damages and an injunction. She maintained that the nuisance was connected with non-compliance with environmental conditions attached to the planning permission.

Following an unsuccessful application for a group litigation order, reported at [2011] EWCA Civ 928, she pursued an individual claim. HHJ Milwyn Jarman QC refused her application for a protective costs order but granted permission to appeal.

The appeal concerned whether the nuisance proceedings were protected by articles 9.3 and 9.4 of the Aarhus Convention or article 11 of Directive 2011/92/EU, and how those instruments affected the domestic discretion to grant a protective costs order.

1. Appeal dismissed. A private nuisance action could in principle constitute a judicial procedure within article 9.3 of the Aarhus Convention. Individual litigation could help maintain environmental standards even where the claimant also vindicated private property rights. It was therefore inappropriate to exclude the entire cause of action from the Convention’s scope.

2. Two requirements governed whether a particular nuisance claim came within article 9.3. The complaint had to be closely linked to environmental matters regulated by the Convention. Success also had to confer significant public environmental benefits. A claim principally protecting private property, whose public benefit was limited and incidental, did not qualify for the special costs protection contemplated by article 9.4.

3. The existence of a cheaper alternative procedure did not by itself answer whether the claimant’s proceedings were prohibitively expensive. It was, however, relevant to the discretionary decision on a protective costs order where the alternative offered a realistic, practical and effective remedy.

4. Article 11 of Directive 2011/92/EU did not apply. The Directive concerned environmental assessment and public participation before development consent was granted. It did not regulate the subsequent policing of development or incorporate article 9.3 of the Convention. Nor did the proposed nuisance action enforce an EU right merely because the planning conditions addressed matters identified through an environmental impact assessment.

5. The Aarhus Convention had not been incorporated into domestic law. The principle favouring harmony with international obligations did not require a domestic court to exercise its discretion as though article 9.4 were directly binding. The Convention was nevertheless a relevant factor. It reinforced the need to consider the wider public interest in maintaining environmental standards.

6. A claimant’s personal interest did not automatically bar a protective costs order. It remained a factor in the overall assessment, together with the public importance of the proceedings, the parties’ resources, anticipated costs, alternative remedies and fairness to the defendant.

7. The claim was sufficiently connected with environmental matters, but its wider public benefit was limited and uncertain. The strong private interest, the absence of satisfactory evidence that cheaper statutory remedies had been adequately explored, and the burden on a privately funded defendant justified refusing protection. The judge’s reciprocal caps of £7,500 and £40,000 would not have been disturbed had an order otherwise been appropriate.

1. Court of Appeal (Civil Division): Dismissed the appeal from the refusal of a protective costs order: [2014] EWCA Civ 1012.
2. High Court sitting at Cardiff: HHJ Milwyn Jarman QC refused the application for a protective costs order and granted permission to appeal. No citation is stated.