Aarhus cost protection for environmental court challenges is reportedly being reconsidered by the Ministry of Justice, raising concern about whether residents and campaign groups could still afford to challenge unlawful planning and infrastructure decisions. The Guardian reported on 13 November 2026 that, according to environmental lawyers, the Ministry of Justice has been holding private meetings with selected stakeholders about possible changes to the present costs regime.
No public proposal or formal consultation has been issued. According to the lawyers quoted by the newspaper, the meetings concerned plans to remove the cost cap protections, with other possible changes including doubling the cost caps at each stage of a challenge, changing the treatment of crowdfunding and removing protection where a court finds a misuse of judicial review. The government disputes that it intends to remove protection from properly founded claims and says it remains committed to the United Kingdom’s international obligations.
I think the important point is to separate a reported policy discussion from a change in the law. The current court rules remain in force. Even so, Aarhus cost protection matters enormously in planning because the risk of paying another party’s legal bill can decide whether a community, charity or individual is able to bring a challenge at all.
What Aarhus cost protection currently does
The Aarhus Convention is an international environmental treaty. It covers access to environmental information, public participation in environmental decision-making and access to justice. The United Kingdom is one of its parties.
Article 9 requires relevant review procedures to be fair, equitable, timely and not prohibitively expensive. In England and Wales, part of that obligation is reflected in the Civil Procedure Rules governing certain environmental judicial reviews and statutory challenges.
Under Civil Procedure Rule 46.26, the usual maximum adverse costs liability is £5,000 for an individual acting only as an individual and £10,000 in other claimant cases. The usual maximum for a defendant is £35,000. These are not limits on what a claimant may spend on their own lawyers. They principally limit how much one side can be ordered to pay towards the other side’s costs, subject to the detailed rules and the court’s powers.
The rules are not automatic for every planning dispute. A claim must fall within the definition of an Aarhus Convention claim, the claimant must state that position on the claim form and provide the required schedule of financial resources. The court can also vary the limits where the statutory tests are met.
Planning Geek’s guide to judicial review and High Court planning challenges explains the difference between reviewing the legality of a decision and asking a court to remake the planning merits. Our guide on what happens when planning permission is challenged also sets out the practical stages after a claim is brought.
What has been reported
The Guardian, citing environmental lawyers, says the Ministry of Justice has been holding private meetings with “select” stakeholders about possible reform. Its report identifies several ideas said to be under consideration, but it does not point to a published consultation paper, draft rule change or ministerial decision.
One reported possibility is to double the claimant costs limits at each stage of a challenge. Another is to remove protection where the court finds a misuse of judicial review. The article also suggests that groups relying on crowdfunding could face exposure linked to the money they raise.
Those details need to be treated as reported proposals rather than settled government policy. The Ministry of Justice has previously examined access to justice under the convention. Its 2024 call for evidence focused on findings that the United Kingdom was not fully compliant and asked how England and Wales should respond. That exercise was framed around improving compliance, not removing the convention’s protections.
A government spokesperson told the Guardian: “There are no plans to remove costs protections for well-founded claims.” The same response said the government remained committed to maintaining access to environmental justice that is not prohibitively expensive.
The distinction between well-founded claims and claims ultimately successful in court will need careful attention if any formal proposal appears. Judicial review requires an arguable legal case before permission is granted, but a claimant can bring a serious and responsibly advanced case and still lose after the court has considered the legal issues fully.
Why the planning consequences could be substantial
Aarhus cost protection has practical importance where a planning decision engages environmental law. That can include environmental impact assessment, habitats protection, major roads, energy infrastructure, mineral extraction and other projects where public bodies must follow statutory assessment and consultation duties.
Aarhus cost protection does not give objectors a veto over development. It provides a measure of predictability about financial exposure when legality is challenged. A court can dismiss a weak case, refuse permission to proceed or uphold the challenged decision. The protection concerns access to the process, not a guaranteed outcome.
Environmental challenges can also clarify the law for future decisions. In R (Finch) v Surrey County Council and others [2024] UKSC 20, the Supreme Court decided that the environmental impact assessment for an oil extraction project needed to address downstream greenhouse gas emissions from burning the refined oil. The judgment changed how relevant emissions are approached, but it followed years of litigation that a local campaign group had to fund.
Sarah Finch told the Guardian that her group would not have brought that case if it had faced the risk of paying the other side’s unrestricted costs. That is why changes to Aarhus cost protection could affect more than specialist lawyers. They could alter the practical ability of residents and public interest bodies to test whether planning and infrastructure decisions comply with environmental law.
There is also an important balance. Developers, councils and government departments can face delay and expense when claims are brought. The courts already have tools for dealing with unarguable or abusive proceedings, including the permission stage and costs consequences. Any reform would need to explain what additional problem it is designed to solve and how access to justice would remain affordable.
The existing rules are more nuanced than a fixed cap
The present regime already allows the court to examine a claimant’s resources and the circumstances of the claim. Rule 46.27 permits a costs limit to be varied, or removed, only through an application and only where the resulting proceedings would not become prohibitively expensive for the claimant.
Relevant factors include the parties’ situations, the claimant’s prospects, the importance of the case to the claimant and the environment, legal complexity and whether the claim is frivolous. Financial support from other people must also be considered. Crowdfunding is therefore not wholly invisible under the current rules.
The Supreme Court has considered how the regime operates where several successful defendants seek costs. Planning Geek’s local Case Law entry for CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36 explains why costs awards to more than one defendant could together use up the applicable claimant cap.
That background matters before judging any future proposal. A headline suggesting that all environmental litigants enjoy an unconditional £5,000 ceiling would be incomplete. Equally, presenting the rules as preventing courts from controlling improper claims would overlook powers that already exist.
What happens next
For now, nothing has changed in the Civil Procedure Rules. The reported discussions may lead to a public consultation, a narrower rule amendment or no formal proposal at all. Anyone considering a live challenge must take current specialist legal advice and should not rely on press reporting as a statement of the applicable costs order.
I would watch for three things. The first is whether the Ministry of Justice publishes evidence explaining the problem it believes needs to be addressed. The second is whether any proposal distinguishes genuinely abusive litigation from claims that are arguable but difficult. The third is whether revised limits would still comply with the convention’s requirement that environmental proceedings are not prohibitively expensive.
The current Civil Procedure Rules, the government’s 2024 call for evidence and the United Nations Economic Commission for Europe explanation of access to justice provide the official baseline. The Guardian report of 13 November is the source of the latest claims about private discussions.
Aarhus cost protection therefore remains available under the existing rules. The significance of the latest reporting is that a change with potentially wide planning consequences may now be under consideration, not that those consequences have already taken effect.
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