England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE SEYMOUR QC
QUEEN'S BENCH DIVISION
HQ06X02114

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/05/2008

Lord Justice Carnwath :

1. This case is a renewed hearing of an application for permission to appeal, following the refusal on the papers by Pill LJ.
2. Having heard Mr Stookes, I adjourned the application to enable further evidence to be submitted. Having considered all the material before me, including the 7^th witness statement of Mr Stookes, I am satisfied that the case raises an issue of some general importance relating to the relevance of the Aarhus Convention in the exercise of the judge's discretion as to costs. This is given added significance by the recent publication of the report of the working party under Sullivan J on "Ensuring access to environmental justice in England and Wales" (in which this case is mentioned at paragraph 73).
3. Although the applicant faces a serious hurdle in his failure to have raised the issue before the judge, the need for the court to consider the wider issue is arguably a sufficiently compelling reason to justify the grant of permission in any event. In the unusual circumstances of the case, however, I think it would be wrong to do so without hearing from the prospective respondents. I shall therefore adjourn the application again, to come on in open court with notice to the respondents, and with a direction that the hearing of the appeal will follow at the same hearing if permission is granted
4. The court would in any event be assisted by submissions on behalf of the relevant Government Department, which I take to be DEFRA. The notice of appeal, and skeleton with Mr Stookes' affidavit of 13^th April 2008 and 7^th statement should be served on DEFRA, with an invitation to submit a written statement of the Government's position as to the status of the Convention (if any) for the purpose of domestic proceedings in general, and in the circumstances of this case (having regard also to the Sullivan report). If the Department wishes also to be heard by Counsel, it may apply in writing to a single LJ.
5. The adjourned application and (if permission is granted) the appeal should be heard by three LJs, of two LJs and a judge from the administrative court. It should include environmental and administrative law expertise.