Peart, R (on the application of) v The Secretary of State for Environment, Food and Rural Affairs [2026] EWHC 2052 (Admin)

[2026] EWHC 2052 (Admin)Case No AC-2025-LDS-000056
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue LEEDS DISTRICT REGISTRY
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/08/2026
Before
MRS JUSTICE O'FARRELL DBE
Between
THE KING (on the application of PEART)ClaimantTHE SECRETARY OF STATE FOR ENVIRONMENT, FOOD AND RURAL AFFAIRSDefendant
Siân McGibbon and Brendan Brett (instructed by Lanyon Bowdler) for ClaimantMichael Walsh KC, Khatija Hafesji and Richard Miller (instructed by Government Legal Department) for DefendantHearing Hearing date: 10 th March 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 10.30am on Monday 3 rd August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]There are a number of procedural applications before the court for determination at this hearing but the material issue is whether the claimant is entitled to costs protection in his judicial review proceedings, either as an Aarhus Convention claim, on the basis that the legislation under challenge relates to the environment, or by way of a costs capping order, on the basis that these are public interest proceedings.[2]The substantive proceedings concern a challenge by way of judicial review to the decision of Minister Zeichner dated 19 December 2024 (“the Decision”), refusing the claimant’s appeal against the determination of the Rural Payments Agency (“the RPA”) that no allocation by way of a share of the payment for structural surplus grazing should be made to the claimant in respect of Burnhope Moor under the Single Payment Scheme (“the Scheme”).[3]The claimant is a sheep farmer. Burnhope Moor is an area of rough upland grassland in County Durham with designations as “Special Areas of Conservation” and “Special Protection Areas”. The rights of grazing in the Moor are divided into units known as “stints” with each such unit having a value fixed in terms of the number of animals it can sustain. One stint allows grazing for five sheep or one cow. Two stints allow the grazing of a horse.[4]By Council Regulation (EC) 1782/2003 and, subsequently, Council Regulation (EC) 73/2009, the EU established the Scheme as part of its Common Agricultural Policy (“the CAP”). The Scheme provided for subsidies, by way of direct payments to farmers, that were payable in respect of land regardless of production and with the objective of providing basic income support to farmers. The RPA was tasked with administering the system for making payments to eligible applicants.[5]The claimant’s case is that Burnhope Moor is a stinted pasture. The stint owners are the legal owners of the whole of the vegetation and herbage and are entitled to adjust the grazing of stints from time to time to a level considered by them to be sustainable. Their rights were established by the Weardale Park and Forest (Stanhope) Inclosure Act 1799 and the Award dated 1815. Every stint owner owns the associated proportion of soil and grazing of the common, including any surplus grazing. The owner of the soil has no rights to surplus grazing and therefore should not be included in any calculation of the Scheme. Any surplus grazing should be allocated pro rata to the stint owners.[6]This is disputed by the defendant. It is said that the claimant is only entitled to subsidies in relation to his rights of common in the Burnhope Moor as registered under the Commons Registration Act 1965 (and subsequently the Commons Act 2006), but not the structural surplus as he is not registered as an owner of the common in the Commons Register.[7]The central issue in the claim is the operation of the Scheme; whether the stint-holders hold an exclusive right of pasturage, to the exclusion of the owner of the soil and are entitled to the subsidy payments in respect of the surplus grazing rights even where they are not registered under the 1965 Act.[8]There are a number of applications before the court: i) the defendant’s application dated 23 January 2026, seeking permission to amend the Acknowledgement of Service and/or for relief from sanctions; ii) the claimant’s application dated 9 February 2026 for an extension of time to file his schedule of financial resources; iii) the claimant’s application dated 23 January 2026, seeking permission to amend the Statement of Facts and Grounds; iv) if the defendant’s application to amend the Acknowledgement of Service is granted, whether the claim is an Aarhus Convention claim, entitling the claimant to a limit on the costs that he can be ordered to pay pursuant to CPR 46.26; v) if the claim is not an Aarhus Convention claim, the claimant’s application dated 23 January 2026 for a costs capping order under section 88 of the Criminal Justice and Courts Act 2015; vi) costs.

Procedural history

[9]The genesis of this dispute lies in the claimant’s 2005 application for payment under the Scheme, based on an entitlement to surplus grazing rights by virtue of his status as a stint holder. The RPA decided not to allocate the claimant (and his sister, now deceased) a share of the structural surplus grazing on Burnhope Moor Common for the Scheme because they were not listed as owners of the common in the ownership section of the register for Burnhope Moor. The calculation of their notional area on the Burnhope Moor Common was based solely on the grazing rights registered in the 1965 Commons Register.[10]Each year thereafter, the claimant made an application for payment under the Scheme on identical grounds. Each year, the RPA’s calculation of the claimant’s entitlement to payment was decided based on the grazing rights registered in the 1965 Commons Register.[11]On 13 June 2011 the claimant submitted a stage 1 appeal against the RPA’s decision as to the basis of calculation of payment under the Scheme in the years from 2005 to 2011. On 25 November 2011 the RPA notified the claimant that his appeal was rejected.[12]On 19 January 2012 the claimant submitted a stage 2 appeal. Consideration of that appeal took some time. By letter dated 5 June 2024 the RPA rejected the stage 2 appeal, upholding the stage 1 appeal decision. It informed the claimant that a review would be undertaken by the Independent Agricultural Appeals Panel (“the IAAP”) and a separate service review would ascertain the reasons for the lengthy delay in progressing the appeal.[13]On 7 November 2024 a remote hearing took place before the IAAP. On 9 December 2024 the IAAP recommended to Minister Zeichner that the appeal should be rejected on the grounds that the RPA had applied the Scheme rules correctly. On 19 December 2024 the claimant’s appeal was rejected by the Minister (the Decision).[14]On 18 March 2025 the claim for judicial review was filed, seeking to challenge the Decision on the following grounds: i) the defendant erred in law in allocating any surplus of grazing to the owner of the soil above the grazing rights of the stint-holders identified in the Commons Register; ii) the implementation of the Scheme as interpreted and applied by the defendant was in breach of EU law; alternatively on its facts in the claimant’s case was irrational and unreasonable; iii) the defendant took an unlawful and unreasonable approach as to whether the owner of the soil was a “farmer”; iv) the defendant failed to give adequate reasons for the Decision; v) the Decision was procedurally unfair and/or irrational.[15]In his Claim Form and Statement of Facts and Grounds, the claimant asserted that it was an Aarhus Convention claim within the scope of CPR 46.24(2)(a), being a challenge to a provision of national law relating to the environment within the meaning of Article 9 of the Aarhus Convention.[16]In his Statement of Facts and Grounds, the claimant sought a stay of the claim to allow the parties to comply with the pre-action protocol and endeavour to resolve the dispute. He stated that he had been unable to file a schedule of financial resources as required by CPR 46.25 due to the demands of farming and the lambing season but that he would file the necessary schedule during the period of the stay, which he would seek to agree with the defendant.[17]On 14 April 2025 the claimant and the defendant signed and filed a draft consent order, which included provision for the matter to be dealt with as an Aarhus Convention claim and subject to the Aarhus Convention costs cap.[18]On 16 April 2025 the defendant filed an Acknowledgement of Service and protective Summary Grounds of Resistance in the claim, indicating that it was a claim to which the Aarhus Convention applied and that she did not wish the court to vary or remove the costs limits (then CPR 45.43, now dealt with in CPR 46.27). The summary grounds included a statement that the defendant reserved her right to amend the Summary Grounds of Resistance and to submit fuller reasons upon the determination of the application.[19]On 20 June 2025 the court declined to approve the draft consent order but issued a separate order in the claim, granting a retrospective stay up to the date of the order, and stating:
“Aarhus Convention claim: it having been claimed and is not disputed by the defendant, then, subject to the submission by the claimant within 14 days of a schedule of financial resources, the costs in this claim are subject to usual maximum amounts as set out in CPR 46.26, as an Aarhus Convention claim.”
[20]Pursuant to that order, the date by which the schedule of financial resources was due was 4 July 2025. On 7 July 2025 the claimant filed and served his schedule of financial resources.[21]On 11 July 2025 the defendant filed a further Acknowledgement of Service and Summary Grounds of Resistance, in which she disputed that the claim was an Aarhus Convention claim.[22]On 18 July 2025 the claimant filed a Reply to the further Summary Grounds of Resistance.[23]On 5 September 2025 Karen Ridge, sitting as a Deputy High Court Judge, granted permission for judicial review on all grounds and gave case management directions leading to a substantive hearing, including provision for the defendant to file Detailed Grounds of Resistance.[24]A hearing was listed on 11 November 2025 to determine the Aarhus Convention dispute but was vacated at the request of the defendant, which was not opposed by the claimant. A further hearing was listed on 7 January 2026, at which the issue was not determined but directions were given for the emerging applications to be issued.[25]On 23 January 2026 the claimant filed applications for:(i) permission to amend his Statement of Facts and Grounds; and(ii) a cost capping order pursuant to section 88 of the Criminal Justice and Courts Act 2015 (“the CJCA”).[26]Also on 23 January 2026 the defendant filed applications for:(i) permission to amend the Acknowledgement of Service; and/or(ii) relief from sanctions.[27]On 9 February 2026 the claimant filed an application for a retrospective extension of time in respect of the statement of financial resources.[28]Also on 9 February 2026 the defendant applied for an adjournment of the claimant’s application for a CJCA costs capping order.[29]The applications, including objections to the hearing of the applications, came before the court on 10 March 2026.

Costs protection in Aarhus Convention claims

[30]CPR 46.24 makes provision for the costs which may be recoverable in Aarhus Convention claims.[31]An Aarhus Convention claim is defined in CPR 46.24(2) as:
“a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”).”
[32]CPR 46.26 imposes limits on the costs recoverable from a party in an Aarhus Convention claim. CPR 46.26(1) provides that, subject to the procedural requirements in CPR 46.25 and 46.28, and any variation by the court, a claimant in an Aarhus Convention claim may not be ordered to pay costs exceeding £5,000 where claiming only as an individual; and a defendant may not be ordered to pay costs exceeding £35,000.[33]The purpose of the rules in CPR 46 is to ensure that such proceedings do not engender costs which are prohibitive. The Aarhus Convention requires that access to environmental justice must not be prohibitively expensive: European Commission v United Kingdom (C-530/11) EU:C:2014:67; Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539.[34]CPR 46.25(1) provides that, in order to bring himself within the scope of the costs protection, the claimant must: i) state in the Claim Form that the claim is an Aarhus Convention claim; and ii) file and serve with the Claim Form a schedule of the claimant’s financial resources, verified by a statement of truth and which provides details of(i) the claimant’s significant assets, liabilities, income and expenditure; and(ii) details of any other financial support provided or likely to be provided.[35]Where a claimant has complied with the above requirements of CPR 46.25(1), CPR 46.28(1) provides that the costs protection in CPR 46.26 automatically applies, unless: “(a) the defendant has in the Acknowledgment of Service—(i) denied that the claim is an Aarhus Convention claim; and(ii) set out the defendant’s grounds for such denial; and (b) the court has determined that the claim is not an Aarhus Convention claim. (2) Where the defendant denies that the claim is an Aarhus Convention claim, the court must determine that issue at the earliest opportunity.” (i) denied that the claim is an Aarhus Convention claim; and (ii) set out the defendant’s grounds for such denial; and

The applications for extensions of time

[36]The claimant’s position is that it is too late for the defendant to seek to challenge the Aarhus Convention status of the claim; any such challenge should have been raised in the original Acknowledgement of Service.[37]The defendant’s position is that the claimant failed to serve the schedule of financial resources with the Claim Form; as a result, the default cost protection provisions in CPR 46.26 did not apply. Further, the claimant failed to serve the schedule within the time period specified in the order dated 20 June 2025, a stated prerequisite for the cost protection provisions to apply.[38]It is apparent that each party needs an out of time extension of time pursuant to CPR 3.1(2)(a). The claimant needs an extension of time for late service of the schedule of financial resources. The defendant needs an extension of time to amend the Acknowledgement of Service, raising a challenge to the claimant’s assertion that this is an Aarhus Convention claim.[39]The principles applicable to such applications are not in dispute. It was common ground that an application for relief from sanctions was not necessary. However, as set out in R. (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, the court will consider an application for an out of time extension of time by applying the three-stage approach set out in Denton v TH White Ltd [2014] EWCA Civ 906, namely: i) identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order; ii) consider why the default occurred; and iii) evaluate all the circumstances of the case, so as to enable the court to deal justly with the application.[40]Dealing first with the claimant’s application for a retrospective extension of time to file the schedule of financial resources, Ms McGibbon, counsel for the claimant, accepts that the schedule of financial resources was not filed in time but submits that the delay of one working day was neither serious nor significant. As explained in the third witness statement of John Cox, solicitor at Lanyon Bowdler LLP with conduct of the matter on behalf of the claimant, dated 10 February 2026, the short delay was caused by late amendments to the schedule, which were not immediately approved by Mr Peart because he was out on the moor castrating lambs. Ms McGibbon submits that there is no prejudice to the defendant or to the course of the litigation caused by the late filing of the schedule but that refusal of an extension would have severe and disproportionate consequences on the claimant, given the substantial ongoing costs of the proceedings.[41]Applying the Denton approach, first, taken in isolation, the delay of one working day in filing the schedule of financial resources was not a serious breach of the order. Its significance, however, is that the schedule, which should have been filed and served with the Claim Form on 18 March 2025, was not served until 7 July 2025 and was the trigger for activation of the automatic costs protection under CPR 46.25 and 46.26. Against that earlier delay of over three months, the additional delay in breach of the order of 20 June 2025 was serious and significant.[42]Second, I accept that the reason given for the delay is genuine but it is not the most compelling. Where the court has granted a party the indulgence of an extension of time, the revised deadline should be respected, even where that brings unwelcome inconvenience or interference with other activities. Any anticipated difficulty in meeting the deadline should have been raised with the court and the defendant; not simply ignored.[43]Third, having regard to all the circumstances of the case, I consider that it would be appropriate to grant the retrospective extension of time so as to enable the court to deal justly with the claim. On one view, this dispute is very long in the tooth, having its inception in the rejected basis for subsidy calculation submitted by the claimant in 2005. Given the consistent nature of the payment dispute, an appeal could have been brought prior to 2011, although the claimant is not responsible for the extraordinarily prolonged delay in dealing with the stage 2 appeal. Having finally received the determination of that appeal and waited until the day before expiry of the three month limitation period for bringing a judicial review claim, it was incumbent on the claimant to proceed with a degree of urgency. Balanced against the delays in this case, I accept Ms McGibbon’s submission that there would be severe and disproportionate consequences for the claimant if he were not permitted to rely on the schedule of financial resources for the purpose of seeking costs protection. By July 2025, the costs incurred by the defendant had already exceeded £50,000. For that reason, subject to ensuring that the defendant is not prejudiced by the late filing, a matter that is addressed below, the extension of time should be granted.[44]I turn to the defendant’s application for an extension of time to amend the Acknowledgement of Service to dispute the engagement of the Aarhus Convention costs protection.[45]Mr Walsh KC, leading counsel for the defendant, submits that the court should grant the defendant permission to rely on the amended Acknowledgement of Service. At the date of the initial Acknowledgement of Service, the claimant had not complied with the requirements of CPR 46.25(1). It follows that there was no valid Aarhus Convention claim to which the defendant was required to respond. The schedule of financial resources was not filed until 7 July 2025, at which stage the cost protection provisions in CPR 46.26 were engaged, subject to any dispute in the Acknowledgement of Service. The defendant served its revised Acknowledgement of Service on 11 July 2025 disputing the status of the claim as an Aarhus Convention claim. On that basis, it is submitted that initial failure to dispute the status of the claim was not serious or significant. As regards the reason for delay in challenging the costs protection, the first witness statement of Bernadette Adusei, of the Government Legal Department, dated 30 September 2025, explains that the claimant failed to comply with the pre-action protocol and the defendant experienced difficulties in assembling a legal team to act in this matter because of the complexity of the issues, which span land law, commons, land registration, public and EU law. As a result, the defendant was not in a position to file more than a holding Acknowledgement of Service or Statement of Grounds of Resistance on 16 April 2025. Further, it is said that it would not be consistent to refuse permission to the defendant to dispute the Aarhus Convention status in the circumstances where the defendant is entitled to rely on the same arguments in respect of the claimant’s costs cap application and there is considerable overlap between those matters. Finally, there is no prejudice to the claimant because the Aarhus Convention dispute has crystallised at the Statement of Grounds of Resistance stage as envisaged by the CPR.[46]Applying the Denton approach, first, I consider that the delay in raising the challenge to the Aarhus Convention status of the claim was serious and significant. The claimant stated in the Claim Form that this was an Aarhus Convention claim. The defendant was required to indicate whether or not it disputed that the claim was an Aarhus Convention claim in its Acknowledgement of Service. The defendant indicated in its Acknowledgement of Service dated 16 April 2025 that there was no dispute regarding such status and agreed a draft consent order to that effect. As Ms McGibbon submits, the CPR deliberately makes no provision for a defendant to raise this question at any later stage in the proceedings because one of the purposes of Aarhus cost protection, in addition to capping overall adverse costs liability, is to provide reasonable predictability necessary to ensure that there is sufficient precision and clarity in relation to the potential costs exposure of a claimant and avoid the chilling or deterrent effect on meritorious claims: R (RSPB) v Secretary of State for Justice [2018] Env LR 13 per Dove J (as he then was) at [36].[47]Second, although I accept that the claimant’s failure to comply with the pre-action protocol and difficulty in finding suitable legal representatives justified service of a holding Statement of Grounds of Resistance, the defendant could, and should, have served a covering letter if she wished to reserve her position as to whether this was an Aarhus Convention claim. Indicating that this point was not disputed; indeed, agreeing that it was not in issue in the draft consent order, was liable to mislead the claimant into pursuing the claim with a potential exposure to substantial costs. Although not conceded by the defendant, the likely reason for the position now adopted is the decision of the Court of Appeal in HM Treasury & Others v Global Feedback Limited and WWF UK [2025] EWCA Civ 624, handed down on 13 May 2025.[48]Third, in the circumstances of this case, there is no prejudice to the claimant or the litigation. Following the issue of the claim, the parties agreed that there would be a stay of proceedings, which was retrospectively approved by the court in the order of 20 June 2025 up to that date. Thereafter, the claimant served its schedule of financial resources and the defendant indicated that it challenged the status of the claim as an Aarhus Convention claim. Both were later than stipulated in CPR 46 but, against the background of substantial delay in the underlying dispute and the agreed stay of proceedings, this did not have any adverse impact on resolution of the issue.[49]In conclusion on these applications, the interests of justice lie firmly in allowing both parties to raise the issue of the status of the claim for the court to determine and to rely on all available arguments, particularly in the light of the recent Court of Appeal authority on the point.

Claimant’s application to amend

[50]The claimant seeks permission to amend the Statement of Facts and Grounds. The application is supported by the second witness statement of Mr Cox dated 23 January 2026. There are three categories of amendment: i) paragraph 89, pleading a new case in respect of Ground 5 (the Decision was procedurally unfair and irrational); ii) paragraphs 93, 94 and 95A to 95C, pleading further grounds in support of the claimant’s assertion that this is an Article 9(3) Aarhus Convention claim; and iii) paragraphs 95D to 95H, pleading new grounds in support of the claimant’s assertion that this is an Article 9(1) Aarhus Convention claim.[51]Save for the amendments at paragraphs 89E and 89F, the application to amend is opposed by the defendant on the grounds that the amendments are unarguable, do not reflect the real dispute between the parties and/or are without merit.

Test on applications to amend

[52]The court’s permission is required if the claimant seeks to rely on grounds other than those for which he has been given permission to proceed: CPR 54.15.[53]A formal application to amend must be made. The application must be made promptly and should include or be accompanied by a draft of the amended grounds and be supported by evidence explaining why the proposed amendment is necessary and the reasons for any delay in making the application to amend: Practice Direction 54APD.11 at paragraph 12.2.[54]The Practice Direction provides that for the purposes of determining an application to rely on additional grounds, CPR17.1 and17.2 shall apply. CPR17.3 provides that the court has a general discretion to allow an amendment to a statement of case.[55]The general principles applicable to applications to amend are set out in R(P) v Essex Council [2004] EWHC 2027 (Admin) per Munby J at [35]; Quah Su-Ling v Goldman Sachs International [2015] EWHC 759 per Carr J (as she then was) at [36]-[38]; Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33 per Popplewell LJ at [17]-[18]; and The Front Door (UK) Ltd (t/a/ Richard Reid Associates) v The Lower Mill Estate Ltd [2021] EWHC 2324 at [29].[56]The relevant considerations for the court in this case can be summarised as follows: i) When deciding whether to grant permission to amend, the court must exercise its discretion having regard to the overriding objective. ii) Applications always involve the court striking a balance between injustice to the applicant if the amendment is refused, and injustice to the opposing party and other litigants in general, if the amendment is permitted. iii) Although the court will have regard to the desirability of determining the real dispute between the parties, it must also deal with the case justly and at proportionate cost, which includes (amongst other things) saving expense, ensuring that the case is dealt with expeditiously and fairly, and allocating to it no more than a fair share of the court’s limited resources. iv) The proposed amendment must be clearly formulated, coherent and adequately particularised. v) An application to amend will be refused if it is clear that the proposed amendment has no real prospect of success.

Ground 5 amendments

[57]Ground 5 as pleaded in the existing Statement of Facts and Grounds is that the Decision (read as a whole) was procedurally unfair and/or irrational. The first basis for the allegation, at paragraph 88, is that the delay in determining the appeal was so long as to be unlawful. There is no amendment to that part of the pleading. The second basis for the allegation, at paragraph 89, is that the Decision was based on a misunderstanding of the minutes of the IAAP meeting and, therefore, was erroneous and irrational. Additional particulars of matters that it is said could and should have been raised with the claimant and/or considered by the IAAP, including comments made by the RPA, are pleaded at paragraphs 89E and 89F, to which no objection is taken by the defendant.[58]The proposed amendment which is opposed by the defendant concerns the deletion of the existing Paragraph 89 and replacement with the following: “89A Secondly, having now obtained the Ministerial submission containing the “recommendation” of the IAAP Appeal Panel to the Defendant, it is now apparent that the Panel heard submissions, evidence and formulated its recommendation at an oral hearing on [date]. It was not a written hearing. The purpose of the hearing was to review “information/evidence obtained at the hearing”; the partial record provided shows “scheme experts” were present (SB2/112); and the RPA (effectively the respondent to C’s appeal) was present. 89.B Mr Peart was:(i) never informed of the existence of the IAAP’s oral hearing, nor invited to attend;(ii) not informed of, nor given the opportunity to respond, to the evidence, comments, and submissions made by the RPA and other attendees at the IAAP’s hearing;(iii) never given a full record of the IAAP’s hearing. 89.C This way of proceeding was plainly offensive to natural justice and so unfair as to be unlawful. 89.D Even now, only a limited note of that hearing has been provided to the Claimant.[59]Mr Brett submits that these amendments to Ground 5 have a real prospect of success. They identify flagrant breaches of natural justice in the defendant’s conduct of the process leading up to the decision challenged in these proceedings that have come to light since the proceedings were issued.[60]Ms Hafesji submits that these amendments are unarguable. When making his application to appeal to the IAAP in January 2012, the claimant was asked to indicate his preferred form of review, either written or oral. He selected a written review, thereby giving up his right to attend an oral hearing. By letter dated 7 October 2024, the IAAP appeals team confirmed that the appeal would be a written hearing and that the claimant would have no involvement in that hearing, beyond the documents he had submitted. The IAAP review was conducted by the members of the panel via a Teams meeting and the Decision issued thereafter. A full written summary of the IAAP review, identifying all attendees and documents considered, was sent to the claimant with the Decision on 19 December 2024 and was relied on by the claimant in his pre-action protocol letter dated 18 March 2025.[61]In my judgment, these late amendments are not properly arguable. It is evident from the documents sent to the claimant on 19 December 2024 that, when the claim for judicial review was issued in March 2025, he had all the information necessary to make the allegations now sought to be made in the proposed amendments at paragraphs 89A to D. Contrary to paragraph 89A, the information referred to in the pleading was not new, so as to explain the late amendments. Contrary to paragraph 89B, the claimant elected to have a written, rather than oral, appeal process. He was informed that the review by the IAAP would be carried out without his attendance. He received a full written summary of the process, including the comments and submissions made by the RPA. There is no real prospect of success on the proposed amendments. For those reasons, permission is refused.

Article 9(3) amendments

[62]Paragraphs 93 to 95 of the existing Statement of Facts and Grounds assert that the claim is an Aarhus Convention claim, being a challenge to a provision of national law relating to the environment within the meaning of Article 9. This is a reference to Article 9(3) of the Aarhus Convention.[63]The proposed amendments relating to the existing Article 9(3) case are set out in paragraphs 94, 95, 95A, 95B and 95C of the draft. They provide further details of the claimant’s case that this is an Aarhus Convention claim under Article 9(3), including submissions by reference to the recent Global Feedback decision. It would have been open to the claimant to make these submissions based on the original pleaded case but it is sensible and helpful to include them in the Amended Statement of Facts and Grounds. Accordingly, permission is granted for paragraphs 94, 95A, 95B and 95C.[64]Permission is refused for the amendments in paragraph 93 and 95I, which wrongly suggest that the court order of 20 June 2025 was a determination of the issue, rather than a reflection of the position set out in the draft consent order, which was not approved or sealed by the court. Given the retrospective extensions of time granted by this court in relation to the procedural steps by both parties, dealt with above, the asserted status of the claim as an Article 9(3) Aarhus Convention claim is a live issue to be determined by the court.

Article 9(1) amendments

[65]The claimant seeks to introduce a new argument that the claim is an Aarhus Convention claim within the scope of Article 9(1) as follows:
“95D Secondly, the claim falls within the scope of Article 9(1) of the Aarhus Convention which relates to the provision of adequate redress to “any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article”. 95E The “importance of the obligation to provide access to environmental information” was set out by the Court of Appeal in BEIS v ICO and Henney [2015] UKUT 671, where Beatson LJ explained how the recitals explained the public purpose that “"citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters" and "improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns." 95F “Environmental information” is defined in the Convention at Article 2(3) so as to give “a definition that would be as broad in scope as possible” (Aarhus Implementation Guide, p.50). The term – “means any information in written, visual, aural, electronic or any other material form on: (a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above.” 95G Grounds 3, 4 and 5 of the claim allege failures to give reasons and procedural unfairness in the determination of the Claimant’s appeal. These errors include breaches of duties to give, or refusals to respond to requests to give, the Claimant environmental information, including: (i) The environmental information as to the outcome in his case which is environmental information for being information about “administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment”; (i) The environmental information which was incorporated into the decision in his case, but which was not provided to him, including the evidence, comments, and submissions made by the RPA and other attendees at the hearing of which the Claimant was not informed, to which he was not invited, and of which environmental information he has never been provided; and the adequate reasons required for the decision. These matters are plainly environmental information for the same reason as in (i); (iii) Information as to the status of the freehold owner of the Moor as a “farmer” within the meaning of European law, which information, relating as it ought, to how he has carried out agricultural activities on the land, is plainly related to both the state of elements of the environment and factors which affect them; (iv) Full information about the Minchinhampton Common concession by the Defendant (not the incomplete version so far supplied) which is environmental information for the same reasons; and (v) The full Ministerial submission (not the incomplete version so far supplied)) which is environmental information for the same reasons (vi) Finally, information as to excessive delay which is environmental information for the reasons in (i) and remains outstanding. “95H C’s grounds therefore contain an allegation that D has “inadequately answered”
C’s requests for an entitlement to environmental information”, bring them with the scope of Article 9(1).”[66]I start by considering the scope of Article 4 of the Aarhus Convention, which provides:
“Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information …”
[67]Article 9(1) of the Aarhus Convention provides:
“Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article has access to a review procedure before a court of law or another independent and impartial body established by law. In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.”
[68]Directive 2003/4/EC implements Article 4 and Article 9 of the Aarhus Convention. The relevant domestic legislation which implements Directive 2003/4/EC on public access to environmental information is the Environmental Information Regulations 2004:3391 (“the Regulations”).[69]Article 5 of the Regulations imposes on a public authority that holds environmental information a duty to make it available on request. Where an individual considers that there has been a breach of such duty, there is a right to seek an internal review (Article 11), or enforce through the Freedom of Information Act 2000 (Article 18), including by complaint to the Information Commissioner and an appeal to the First Tier Tribunal.[70]The difficulty for the claimant is that, although the proposed amendments seek to rely on inadequate provision of environmental information, there is no identified request for such information, beyond the Statement of Facts and Grounds itself. That is not a proper basis on which to seek Judicial Review because there is no defined decision or other act which is subject to challenge.[71]Further, as Ms Hafesji submits, such a complaint, even if identified, would not give rise to an arguable ground of judicial review because the claimant would have an alternative remedy by appeal to the First Tier Tribunal. Judicial review is a remedy of last resort and should not be used where alternative remedies, such as an appeal, are conveniently and effectively available: R (Watchtower) v Charity Commission [2016] EWCA Civ 154 per Lord Dyson at [19].[72]For those reasons, the Article 9(1) amendments have no merit and permission for them is refused.

Article 9(3) claim

[73]CPR 46 provides for costs protection in respect of an Aarhus Convention claim.

(a) as:

“a claim brought by one or more members of the public by judicial review or review under statute which challenges the legality of any decision, act or omission of a body exercising public functions, and which is within the scope of Article 9(1), 9(2) or 9(3) of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998 (“the Aarhus Convention”).”
[74]Article 1 of the Aarhus Convention sets out the objective of the same:
“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.”
[75]The environment is not a defined term but environmental information is defined by Article 2(3) of the Aarhus Convention:
““Environmental information” means any information in written, visual, aural, electronic or any other material form on: (a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above.”
[76]Article 9(3) of the Convention provides:
“In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”
[77]The issue that arises in this case is whether the claim constitutes judicial proceedings which allege contraventions of provisions of national law “relating to the environment” so as to fall within the scope of Article 9(3) of the Aarhus Convention.[78]This issue was considered in HM Treasury v Global Feedback Ltd [2025] EWCA Civ 624, a case in which the Court of Appeal carried out a careful and comprehensive analysis of the Aarhus Convention and relevant authorities, setting out the approach that should be adopted when answering this question.[79]Global Feedback concerned a claim for judicial review brought by Global Feedback Limited (“GFL”) against HM Treasury and the Secretary of State for Business and Trade (“the appellants”) in respect of their decision to introduce tariff regulations, giving effect to tariff preferences on Australian imports under a Free Trade Agreement between the UK and Australia. GFL is a charity concerned with environmental protection. It seeks to regenerate nature by transforming food production services. GFL claimed that the tariff regulations would harm the environment by adversely impacting on climate change. The basis of the challenge was that in their impact assessment the appellants had declined to assess the carbon leakage that occurs when production moves from one country to another, resulting in higher net greenhouse gas emissions. GFL argued that the decision was illogical and/or irrational, tainted by predetermination and based on a flawed interpretation of the relevant convention.[80]The Court held that the challenge in question had amounted to allegations of breaches of public law principles but not to any breach of domestic law relating to the environment or environmental law. It therefore fell outside the scope of Article 9(3) of the Aarhus Convention.[81]The scope of Article 9(3) was clarified by Holgate LJ at [92]:
“Whether a claim is brought against a person or a public authority, the key requirement is that the complaint is about a decision, act or omission which contravenes a national law which itself relates to the environment. It is insufficient for a claimant merely to say that his claim relates to the environment, or to the protection of the environment, or to an effect on the environment.”
[82]At [96] Holgate LJ stated:
“There is nothing in Art. 9 or the Convention read as a whole to indicate that the ambit of Art.9(3) extends to any decision in breach of any national law so long as that decision has an effect or impact on the environment. Instead, Art.9(3) only applies to a contravention of a legal provision which concerns, or is to do with, the environment, its protection or regulation.”
[83]The Court in Global Feedback considered an earlier Court of Appeal decision, Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328, in which the court held that a claim challenging a planning inspector’s decision, on the ground that he failed to have regard to a policy in a draft local plan which restricted the development in question, fell within Article 9(3). In Venn, Sullivan LJ accepted that the purpose of a national law to which Article 9(3) applies must be the protection of the environment. A broad interpretation should be given to the term “environment” based upon the wide ambit of the definition of “environmental information” in Article 2(3). Sullivan LJ did not hold that a similarly broad interpretation should be given to the phrase “relating to” used in Article 9(3). As Holgate LJ observed at [104]:
“Properly read, there is nothing in Venn which gives a broad meaning to the phrase "relating to". Instead "provisions of national law relating to the environment" can include a policy which that national law requires to be taken into account, in so far as the policy is for the protection (or regulation) of the environment.”
[84]Holgate LJ emphatically rejected the proposition that Article 9(3) was engaged in respect of a non-environmental legal provision simply on the basis that it concerned an alleged breach of a public law principle that could have an impact on the environment:
“[143] The same analysis applies to the situation where an authority acting under a non-environmental legal provision takes into account an obviously material consideration or simply a relevant consideration, but acts irrationally in the handling of that matter. The mere fact that this concerns the environment, or an effect upon the environment, does not turn the breach of a public law principle into a breach of national environmental law. It does not alter the non- environmental nature or purpose of that legal provision. In such circumstances, Art 9(3) is not engaged. … [148] Accordingly, this is a challenge which amounts to allegations of breaches of public law principles and not any breach of this country’s law relating to the environment or environmental law. It therefore falls outside the scope of Art 9(3) of the Aarhus Convention. Any costs protection could only be considered through an application for a costs protection order.”
[85]The claimant’s submission is that this judicial review claim falls within the scope of Article 9(3) of the Convention because it constitutes judicial proceedings which allege contraventions of provisions of national law relating to the environment. The defendant’s submission is that the claim concerns the payment of subsidies under the Scheme. It is a claim about private property rights, albeit in an agricultural context; it is not a claim alleging contravention of a national law relating to the environment.[86]The starting point is to identify the relevant legislation that is the subject of legal challenge. The Scheme was established as part of the Common Agricultural Policy, derived from EU legislation and implemented through domestic regulations.[87]As initially enacted, Council Regulation (EC) No.1782/2003 provided for common conditions to be established by member states for direct payments under various income support schemes in the framework of the Common Agricultural Policy. The Regulation included the following material provisions: i) Recital (2):
“The full payment of direct aid should be linked to compliance with rules relating to agricultural land, agricultural production and activity. Those rules should serve to incorporate in the common market organisations basic standards for the environment, food safety, animal health and welfare and good agricultural and environmental condition. ” ii) Recital (3): “In order to avoid the abandonment of agricultural land and ensure that it is maintained in good agricultural and environmental condition, standards should be established which may or may not have a basis in provisions of the Member States. It is therefore appropriate to establish a Community framework within which Member States may adopt standards taking account of the specific characteristics of the areas concerned, including soil and climatic conditions and existing farming systems (land use, crop rotation, farming practices) and farm structures.” iii) Recital (4): “Since permanent pasture has a positive environmental effect, it is appropriate to adopt measures to encourage the maintenance of existing permanent pasture to avoid a massive conversion into arable land.” iv) Recital (24): “Enhancing the competitiveness of Community agriculture and promoting food quality and environment standards necessarily entail a drop in institutional prices for agricultural products and an increase in the costs of production for agricultural holdings in the Community. To achieve those aims and promote more market-oriented and sustainable agriculture, it is necessary to complete the shift from production support to producer support by introducing a system of decoupled income support for each farm. While decoupling will leave the actual amounts paid to farmers unchanged, it will significantly increase the effectiveness of the income aid. It is, therefore, appropriate to make the single farm payment conditional upon cross-compliance with environmental, food safety, animal health and welfare, as well as the maintenance of the farm in good agricultural and environmental condition.”
[88]Article 3 of the Regulation set out the main requirements of a farmer receiving direct payments, namely, to respect(a) the statutory management requirements and(b) the good agricultural and environmental condition. The statutory management requirements were described in Article 4 as covering: (i) public, animal and plant health; (ii) environment; and (iii) animal welfare. The good agricultural and environmental condition was set out in Article 5. Article 6 provided for a reduction in payment in the event of non-compliance with the statutory management requirements or good agricultural and environmental condition requirements.[89]Detailed rules for the implementation of the direct payment schemes were set out in Commission Regulation (EC) No 796/2004.[90]A number of amendments have been made to the above regulations, including Council Regulation (EC) 73/2009 and Council Regulation (EC) 1122/2009.[91]The above legislation was enacted in England by the Common Agricultural Policy Single Payment and Support Schemes (cross compliance) (England) Regulations SI 2005/3459. Regulation 4 provided that the standards of good agricultural and environmental condition set out in Schedule 1 applied as minimum requirements for the purposes of Article 5(1) of the Council Regulation. Schedule 1 included standards for soil protection, overgrazing and management of land not in agricultural production. Breach of those standards would result in reductions in the payments under the schemes.[92]Subsequent similar rules were introduced by the Agriculture (Cross Compliance) Regulations SI 2009/3365 and various other pieces of legislation.[93]I accept Mr Brett’s submission that the purpose of the above legislative provisions, pursuant to which the Scheme was implemented, was agricultural and environmental protection. Under the statutory framework, payments under the Scheme were directly linked with cross-compliance, which was intended to achieve standards of good agricultural and environmental condition.[94]Mr Brett’s secondary argument, that the Commons Registration Act 1965 is also legislation relating to the environment, is correct but does not assist in this case. Although there is a dispute as to the proper interpretation of the 1965 Act, and its impact on the operation of the Scheme, there is no pleaded breach of the 1965 Act; the claimant’s case is that it did not apply to the payments to which the Claimant was entitled under the Scheme.[95]The claim in these proceedings can be distinguished on its facts from the claim in Global Feedback. In the latter case, the challenge was to import duties or tariffs pursuant to a Free Trade Agreement. Although it was contended that they would have an indirect impact on the environment, there was no challenge to any law that directly related to the environment. In contrast, in this case, the challenge is to the lawfulness of the legislation implementing the Scheme, one of the purposes of which is protection and regulation of agriculture and the environment.[96]In conclusion, I find that the judicial review claim in these proceedings is a complaint about a decision which is said to contravene the EU and English legislation governing the Scheme, which legislation itself relates to the environment, its protection or regulation. Therefore, it falls within the scope of Article 9(3) of the Aarhus Convention and the provisions for cost protection in CPR 46 apply.

Costs capping application

[97]By its application dated 23 January 2026, the claimant seeks a cost-capping order pursuant to section 188 of the Criminal Justice and Courts Act 2015 (“the CJCA”) in the alternative to its claim for Aarhus costs protection. The application is supported by the witness statement of Mr Cox dated 10 February 2026.[98]The application is opposed by the defendant on the grounds that these are not public interest proceedings and it would not be reasonable for the claimant to withdraw from the proceedings absent any costs cap order. The defendant relies on the fourth witness statement of Ms Adusei dated 20 February 2026 and the first witness statement of Ms Mohua Bhattacharya of the RPA dated 20 February 2026.[99]As I have granted Aarhus costs protection, I deal with the alternative case briefly.[100]The court’s power to make a cost-capping order in a case of this kind is set out in the CJCA 2015. Section 88 provides as follows:
“(1) A cost-capping order may not be made by the high court in connection with judicial review proceedings except in accordance with this section and sections 89 and 90. (2) A cost-capping order is an order limiting or removing the liability of a party to judicial review proceedings to pay another party’s costs in connection with any stage of the proceedings. (3) The court may make a cost-capping order only if leave to apply for judicial review has been granted.”
[101]The jurisdiction of the court to make a cost-capping order is set out at section 88(6):
“The court may make a cost-capping order only if it is satisfied that: (a) the proceedings are public interest proceedings; (b) in the absence of the order, the applicant for judicial review would withdraw the application for judicial review or cease to participate in the proceedings; and (c) it would be reasonable for the applicant for judicial review to do so.”
[102]Section 88(7) provides that:
“The proceedings are public interest proceedings only if (a) an issue that is the subject of the proceedings is of general public importance; (b) the public interest requires the issue to be resolved; and (c) the proceedings are likely to provide an appropriate means of resolving it.”
[103]Section 88(8) provides that:
“The matters to which the court must have regard when determining whether proceedings are public interest proceedings include – (a) the number of people likely to be directly affected if relief is granted to the applicant for judicial review (b) how significant the effect on those people is likely to be, and (c) whether the proceedings involve consideration of a point of law of general public importance.”
[104]If the court considers that the threshold test is satisfied, it has to consider, having regard to all of the circumstances of the case, whether it should exercise its discretion to make a cost capping order.[105]Section 89 states that:
“(1) The matters to which the court must have regard when considering whether to make a cost-capping order in connection with judicial review proceedings, and what the terms of such an order should be, include – (a) the financial resources of the parties to the proceedings, including the financial resources of any person who provides, or may provide, financial support to the parties; (b) the extent to which the applicant for the order is likely to benefit if relief is granted to the applicant for judicial review; (c) the extent to which any person who has provided, or may provide, the applicant with financial support is likely to benefit if relief is granted to the applicant for judicial review; (d) whether legal representatives for the applicant for the order are acting free of charge; and (e) whether the applicant for the order is an appropriate person to represent the interests of other persons or the public interest generally. (2) A cost-capping order that limits or removes the liability of the applicant for judicial review to pay the costs of another party to the proceedings if relief is not granted to the applicant for judicial review must also limit or remove the liability of the other party to pay the applicant’s costs if it is.”
[106]For the reasons submitted by Ms Hafesji, I consider that these proceedings do not constitute public interest proceedings for the purpose of section 88(6)(a), primarily because the number of people likely to be affected if relief is granted in these judicial review proceedings is minimal as explained in Ms Bhattacharya’s statement.[107]First, these proceedings concern the interaction of the private law of commons registration and historic EU law on agricultural subsidies in the form of the Single Payment Scheme (the Scheme) and Basic Payment Scheme (“BPS”). By its very nature, the number of people likely to be directly affected by this judicial review is limited.[108]Second, Burnhope Moor is exceptional among commons and, indeed, stinted pastures. The freehold of most stinted pastures is owned by the stint holders themselves. Where that is the case, the structural surplus payment will, in effect, be distributed to the stint holders in any event. The challenge raised in these proceedings, namely, the allocation of the surplus to the freeholder, does not arise. Those commons are not affected by the outcome of this judicial review.[109]Third, of the 1,325 commons, only 24, including Burnhope Moor, are stinted pastures where the freeholders claimed under the BPS. Even among those 24 commons, because of its history whereby the area of the common was larger than originally intended, Burnhope Moor is disproportionately likely to generate a structural surplus, and thus have generated a claim by the freeholder for the Scheme or BPS. If the claimant succeeded in his judicial review claim, in the majority of cases any payments made to stint holders would be modest. Further, the structural surplus allocation for the 23 other stinted pastures which may be affected has never been challenged, and there is not, and has never been, an appeal similar to this case.[110]Fourth, a decision has been made to end direct payments entirely by 2027. From 2024 a system of delinked payments was introduced in place of the BPS, as part of the phase-out of direct payments, with payments being made to farmers on a sliding scale eventually tapering down to zero. Further, the Direct Payments to Farmers (Reconsideration and Appeal) (Modification) (England) Regulations 2023 were introduced at the same time as the delinked payments. They imposed strict time-limits (60 days) on the right to appeal decisions under the BPS. This gives the Rural Payments Agency a degree of finality and certainty over its base data for the calculation of delinked payments. As a result, it is no longer possible for individuals to challenge payment decisions made under the Scheme up to and including 2023.[111]Fifth, the number of people likely to be directly affected if relief is granted to the claimant is limited to the claimant (Mr Peart), WR Walton & Son, and AR Rutherford, and of these Mr Peart would be the most significantly affected, having a claim for £228,292.94.[112]Further, although this case raises interesting and novel points of law concerning the practice of stints and commons registration generally, novelty itself does not amount to a point of law of general public importance which the public interest requires to be resolved for the purpose of section 88(7) of the CJCA. It is not sufficient for the claimant to rely on a general public law interest that there should be proper scrutiny of the decision in issue; the decision must give rise to a point of law of general public importance.[113]For those reasons, the threshold test for a cost capping order would not be satisfied if this claim did not fall within the definition of an Aarhus Convention claim.[114]For completion, turning to the conditions in section 88(6)(b) and (c) of the CJCA, there is evidence from Mr Cox in his third witness statement that the claimant in this case would not pursue these judicial review proceedings if he continued to be exposed to the financial risk of adverse costs liabilities. The claimant is an elderly farmer and the likely costs on each side of the claim are estimated in the region of £150,000. Mr Peart has produced a statement of means in support of his application for costs protection. In his witness statement dated 23 January 2026 Mr Peart notes that he began this action in the expectation that the costs cap prescribed by the Aarhus convention would apply to it, limiting his exposure to the defendant’s costs. He states that he could not contemplate incurring that level of costs liability which it appears likely if this matter proceeded to trial without a costs cap and he were to lose.[115]That is disputed by the defendant, who notes that the proceedings are of importance to the claimant; he has pursued this challenge to the proper calculation of the Scheme payments since 2005, over twenty years. The defendant’s position is that the claimant can afford to pursue these proceedings without a cost-cap. He has cash in hand and at bank of approximately £150,000 and his other assets total £1.6million. He continues to derive an income from two pensions (the value of which is undisclosed) and has an additional income from his farming activities of approximately £25,000 per year.[116]On balance, I accept the claimant’s evidence that he would withdraw from these judicial review proceedings, and that it would be reasonable for him to do so, in the absence of an order for costs protection. Although he has been fighting this cause for many years and has shown remarkable determination in pursuing it, after more than 20 years, he is now an elderly man, his sister has died and the potential exposure to costs could be very substantial.[117]Therefore, if, contrary to my findings above, the court was satisfied that the proceedings were public interest proceedings, this would be an appropriate case in which to make a costs capping order.

Costs

[118]I have considered the parties’ position as to costs. I have had regard to CPR 44.2 and CPR 46.28(3)(b). As set out in this Judgment:(i) the claimant failed to serve its schedule of finances with the Claim Form;(ii) the defendant failed to challenge the status of the claim as an Aarhus claim in its initial Acknowledgement of Service;(iii) the Claimant was partially successful and partially unsuccessful on its amendment application;(iv) the Claimant was successful on the Aarhus determination;(v) the Claimant was unsuccessful on its costs capping application. In circumstances where the parties have won or lost on a number of applications and issues, the appropriate order is costs in the case.

Timetable

[119]I am firmly of the view that this matter should be brought to a conclusion as swiftly and cost-effectively as possible. The issues that arise in the judicial review claim have now been ventilated on both sides. The claim is suitable for an expedited hearing and shall be listed for hearing in the week commencing 12 October 2026, or as soon thereafter as the court can accommodate the hearing, with a time estimate of 3 days.

Conclusion

[120]In conclusion, on the applications before the court: i) The claimant is granted permission for an extension of time to file his schedule of financial resources until 7 July 2025. ii) The defendant is granted permission to amend the Acknowledgement of Service to dispute the status of the claim as an Aarhus Convention claim. iii) The claimant is granted permission to amend the Statement of Facts and Grounds as set out in this judgment. iv) The court determines that this claim is an Aarhus Convention claim, entitling the claimant and defendant to a limit on the costs that they can be ordered to pay pursuant to CPR 46.26. v) The claimant’s application for a costs capping order under section 88 of the Criminal Justice and Courts Act 2015 is dismissed. vi) The claim is suitable for an expedited hearing. vii) Costs in the case.