Background
Mr Peart, a sheep farmer and holder of grazing stints on Burnhope Moor in County Durham, sought judicial review of a ministerial decision rejecting his appeal over payments under the former Single Payment Scheme. He contends that stint holders own the Moor’s vegetation and herbage proportionately and should receive payments attributable to structural surplus grazing. The Secretary of State maintains that he was entitled to payments only for grazing rights recorded in the Commons Register, not for surplus grazing allocated to the registered owner of the common.
This judgment did not decide the merits of that underlying dispute. It addressed procedural applications and, principally, whether the claim qualified for Aarhus Convention costs protection under CPR 46. The parties had both missed procedural deadlines: Mr Peart filed his financial-resources schedule late, while the Secretary of State initially accepted the claim’s Aarhus status before later seeking to dispute it. Mr Peart also sought to amend his grounds and, alternatively, requested a statutory costs-capping order.
The Court’s Holding
Mrs Justice O’Farrell granted both parties retrospective procedural relief, allowing Mr Peart’s late financial schedule and permitting the Secretary of State to amend her acknowledgment of service to contest Aarhus status. Applying the Court of Appeal’s approach in HM Treasury v Global Feedback Ltd, the court nevertheless held that the claim fell within Article 9(3) of the Aarhus Convention. The challenged payment regime was implemented through EU and English legislation whose purposes included agricultural and environmental protection, with payments directly linked to compliance with standards of good agricultural and environmental condition. The claim therefore alleged contravention of legislation that itself related to environmental protection or regulation, rather than merely challenging a decision having an environmental effect.
The court allowed amendments elaborating Mr Peart’s Article 9(3) case but refused proposed Article 9(1) information-access amendments because no relevant request for environmental information or reviewable decision had been identified and an alternative statutory remedy was available. It also rejected proposed procedural-unfairness amendments that lacked a real prospect of success. Because Aarhus protection applied, CPR 46.26 limited each side’s potential costs liability. The alternative statutory costs-capping application was dismissed because the proceedings were not public-interest proceedings within section 88 of the Criminal Justice and Courts Act 2015, principally given the very small number of people likely to be directly affected. The court ordered costs in the case and directed an expedited substantive hearing.
Key Takeaways
- A claim falls within Article 9(3) only if it alleges breach of a legal provision that itself concerns environmental protection or regulation; an environmental impact alone is insufficient.
- The Single Payment Scheme legislation met that test because its agricultural-support provisions were directly linked to environmental cross-compliance requirements.
- The ruling granted costs protection but did not resolve whether Mr Peart was entitled to payments for structural surplus grazing on Burnhope Moor.
Why It Matters
The decision applies Global Feedback while showing that a statutory regime need not be exclusively environmental to engage Aarhus costs protection. Agricultural payment legislation can qualify where environmental protection and compliance standards form part of the regime’s purposes and operation.
The judgment also distinguishes Aarhus protection from the narrower statutory test for a public-interest costs-capping order. A claim may concern legislation relating to the environment and receive Aarhus protection even though its practical consequences affect too few people to constitute public-interest proceedings under the 2015 Act.