Government targets environmental cases and (spoiler alert) their numbers fall

This blog is drafted by Carol Day, Legal Consultant for the RSPB.


A new report from the RSPB, the Environmental Law Foundation (ELF) and Friends of the Earth: A Pillar of Justice II, reveals that the number of environmental Judicial Reviews (JR) brought to the High Court has been declining for the last decade, falling from 180 cases a year at its peak to around 84 cases a year in 2022.

As reported in the Guardian today, the Report, based on Government statistics obtained under the Environmental Information Regulations, suggests that the reduction may be down to two reasons - the high cost of legal action and the impact of legislative changes introduced by the Government in recent years to deter Claimants from challenging public bodies.

Female Hen Harrier, (c) Andy Hay (

In terms of costs, bespoke costs rules for environmental cases limit a claimant’s exposure to legal costs when unsuccessful to £5,000 for individuals and £10,000 in all other cases. But changes to these rules in recent years allow defendants and Interested Parties (frequently the developer promoting a scheme or project) to apply to increase these default caps. ELF case studies show that some individuals and community groups advised they have arguable cases, often with good prospects of success, decide not to go ahead for fear of costs.

The Government has been quite candid that the aim of legislative changes over the same period has been to actively discourage people from bringing JR claims to court. In one consultation, the [then] Lord Chancellor and Secretary of State for Justice Chris Grayling, without any supporting evidence, stated:

I believe in protecting judicial review as a check on unlawful executive action, but I am equally clear that it should not be abused, to act as a brake on growth. In my view judicial review has extended far beyond its original concept, and too often cases are pursued as a campaigning tool, or simply to delay legitimate proposals. That is bad for the economy and the taxpayer, and also bad for public confidence in the justice system.”

The UNECE Aarhus Convention was signed 25 years ago this month in a hitherto little-known Danish city. It had high ambitions - with a central goal to deliver a healthy environment for present and future generations – and guaranteed “procedural rights” for the public of access to information, participation and access to justice in environmental matters. The UK has been held non-compliant with the access to justice pillar of the Convention for over a decade and has been requested by the Aarhus Convention Compliance Committee to remove any barriers to access to justice by 1 October 2024. The Report makes a number of recommendations in order to reverse unhelpful changes to the costs rules, including adopting the Northern Irish model, in which the default caps cannot be increased – but can be decreased where the claimant is of limited means.


Cormorant and young, (c) Ben Andrew (

Our new Report concludes that around 35% of environmental JR applications are granted permission to proceed to a full hearing. The success rate for the permission stage in environmental JRs (in which a judge decides whether the case is arguable) has remained relatively stable over the last decade, although recent data shows a decline in the permission success rate for environmental cases. While it’s difficult to draw any firm conclusions at this stage, it reflects our experience that the courts are becoming more hostile to environmental claims. Permission is far less readily granted and any hearing at that stage can feel like a full-blown consideration of the case as opposed to a determination of arguability.

The Report concludes that around 10% of environmental JRs are ultimately successful for the Claimant. As the success rate for JRs generally is around 3%, environmental cases continue to perform well when compared to JRs as a whole. 

Stonehenge, (c) Ben Andrew (

The Report confirms that measures designed to make it more difficult to challenge public body decision-making are having the desired effect, in that people are being dissuaded from bringing good, arguable cases to court. These cases – like the Net Zero challenge or the Norfolk Vanguard windfarm – have direct impacts on the environment. An active policy of deterring Aarhus claims amounts to a systemic breach of the Convention.

We call on the Government to act on the recommendations of this report to bring itself back into compliance with the Convention by 1 October 2024.

The new report – Pillars of Justice II – is here: