When is an environmental case not an Aarhus claim?

In the case of case of HM Treasury v Global Feedback Ltd [2025] EWCA Civ 624, the Court of Appeal considered the circumstances in which a claim would fall within the ‘Aarhus Convention’ 2001 to give rise to costs protection under Civil Procedure Rules (CPR) Pt 46 Pt IX.

The judgment provides crucial commentary on both procedural and substantive matters.

The question for the Court was whether the claimant (GFL), an environmental charity, could benefit from the special cost protection (Aarhus protection) in judicial review proceedings. It turned on a small phrase found at art.9(3) of the Aarhus Convention. 

The question for the court was set out at §132 the Court set out that the question was “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 Court of Appeal decided GFL’s case did not amount to an Aarhus claim, for reasons set out below. 

In doing so it has arguably tightened the boundaries of Aarhus costs protection and increased the need for extra vigilance for practitioners advising in this area. 

The Aarhus Convention

The Aarhus Convention is an international treaty designed to ensure that justice in environmental matters is not blocked simply because potential claimants cannot afford to bring a case. 

Article 9(3) requires parties to ensure the public can challenge acts or omissions by public bodies that contravene national environmental law.

What counts as an Aarhus Claim?

In England and Wales, Part IX of the CPR 46 partially implements article 9(4) by providing costs protection for “Aarhus Convention claims”.

An Aarhus Convention claim is a judicial review (or statutory review) brought by a member of the public challenging the legality of a public body’s decision that falls within article 9(1), (2), or (3). 

Under CPR 46 the starting adverse costs cap is £5,000 for individuals, £10,000 for non-individuals. 

Given that such cases can cost tens of thousands of pounds, the value of this protection is obvious. But it applies only if the claim falls within the Convention’s scope – a scope that is now understood to be narrower in nature than previously understood. 

The Case

GFL is a UK environmental charity which brought a judicial review against HM Treasury and the SoS BEIS. 

GFL challenged the February 2023 decision to make regulations which implemented the 2021 UK-Australia Free Trade Agreement (UKAFTA). The UKAFTA came into force in May 2023. 

GFL’s concern? Cheaper Australian beef could mean:

• More beef production in Australia (which has a higher greenhouse gas footprint than UK beef);
• Increased emissions contributing to climate change because the lower prices of Australian beef will lead to an increase in production. Moving production from one country to another would result in higher net GHG emissions GFL termed “Carbon leakage”. 

They argued that the Government:

• Failed to assess the risk of carbon leakage; and
• Misunderstood obligations under the UNFCCC and the Paris Agreement.

On its face, the nature of the UKAFTA is one that has environmental implications. However, HM Treasury and SoS BEIS argued the claim should not benefit from Aarhus costs protection. They lost this point at first instance with Lang J granting Aarhus protection: [2024] EWHC 1943 (Admin). 

The Government appealed, and it was granted permission.

What Counts as “Relating to the Environment”?

The Court of Appeal honed in on one question: Does the claim allege a breach of national law whose primary purpose is environmental protection or regulation?

GFL and WWF (the intervenor) maintained that a claim raising any public law error in some way connected with the environment fell within article 9(3), even if it had been taken under a legal provision which did not relate to the environment. The Court of Appeal rejected this argument. At §151 it stated:

“…it would be wrong for a judge simply to ask whether a claim or ground of challenge is to do with the protection of the environment or with the effect of a decision or legal provision on the environment. Instead, it is necessary to return to the language of the Convention and its purposes as established in the case law, and to have in mind the principles for the interpretation of international treaties (see e.g. [88]-[90] and [121] above). Put in a nutshell, what matters is whether the purpose of the national law that has allegedly been contravened is to protect or regulate the environment, not, whether the decision being challenged has an effect on, or some connection with, the environment. Accordingly, I accept that the FCA case was correctly decided in relation to the ambit of Art.9(3).”

In this decision the court has arguably adopted a narrower approach than previously understood, with “relating to” pointing to the purpose of the national law, rather than its effect. 

In other words, to be an Aarhus claim the relevant law allegedly breached needs to have a strong, direct connection about the environment, rather than it incidentally affecting it.

Why GFL’s Claim Failed the Aarhus Test

Applying this to the GFL’s claim, the tariff rules were made under the Taxation (Cross-Border Trade) Act 2018. It was found that the legislation was about trade, rather than environmental protection. Even if the decision might have environmental consequences, the court said it was a public law challenge, not an environmental law breach. At §142 it stated:

“…the purpose of a bare principle of public law is not to protect or regulate the environment. Its purpose is to regulate the lawfulness of decisions, actions or omissions of public authorities, irrespective of the various functions they carry out. Therefore, a principle of public law, without more, does not form part of our law relating to the environment.” 

A Narrower Interpretation 

In making its decision, the Court of Appeal has clarified that only laws with an environmental purpose (or tightly connected environmental policies under such laws) qualify for Aarhus protection. In doing so it has seemingly stepped back from broader interpretations in earlier cases, including Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539.

This distinction between laws closely entwined with environmental protection (like planning laws) and general statutes with incidental environmental effects will perhaps have bigger implications for claimants than we have been used to.

Key Takeaways for Practitioners

• Not every case with environmental consequences will qualify as an Aarhus claim. General public law errors (even if tied to environmental outcomes) won’t necessarily trigger Aarhus costs protection.
• In determining the extent to which article 9(3) may apply, an essential question is whether the claimant is able to allege that the defendant has contravened a national legal provision for the protection or regulation of the environment. That will depend upon the wording, context and purpose of the provision under which the defendant has acted.
• Procedurally, the Court has made clear that when applying for Aarhus costs protection, it not only needs to state whether and why the claim falls within articles 9(1) (2) or (3), but also which provision of the “national law relating to the environment” is said to be contravened: (see §73.)
• The £5k/£10k costs caps remain valuable tools, but eligibility may be harder to establish from now framing will be everything. 

For lawyers seeking to rely on the Convention, this case is essential reading.