Costs – Protective costs order – Aarhus Convention – Respondent operating land reclamation project pursuant to planning permission – Appellant bringing action in private nuisance in respect of noise and dust from project – Whether appellant entitled to protective costs order – Whether this necessary to give effect to principle in Aarhus Convention that proceedings concerned with protection of environment not be prohibitively expensive – Appeal dismissed
The appellant was a member of a local pressure group that was opposed to a land reclamation project carried out by the respondent, with planning permission, on an open-cast mining site near the appellant’s home in Merthyr Tydfil. The purpose of the project was to restore the natural landscape of a large area of open moorland that had been scarred by mining and industrial waste for 300 years, with the cost to be offset by the recovery of coal deposits.
The appellant failed in an attempt to take group litigation order proceedings against the respondents: see [2011] EWCA Civ 928. She then sought to pursue an individual claim for an injunction and damages in private nuisance, alleging that dust and noise from the project unreasonably interfered with the enjoyment of her home owing to a failure by the respondent to comply with the conditions imposed on its planning permission to mitigate the adverse environmental effects of its activities.
In that connection, the appellant applied for a protective costs order (PCO) on the grounds that the proceedings would otherwise be prohibitively expensive contrary to Article 9.4 of the Aarhus Convention, concerned with protecting the environment, or article 11 of Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. She sought to be relieved from any obligation to pay the costs if she lost the claim, while remaining able to claim her costs from the respondent in the usual way if she won.
The application for a PCO was dismissed in the court below. The judge took into account that: (i) the appellant had only modest means; (ii) public funds were not available to fund the litigation; (iii) after-the-event insurance policies were prohibitively expensive; (iv) the appellant had a reasonably arguable case; (v) others living in the vicinity would also benefit from a successful outcome to this litigation; but (vi) it was not clear that the litigation would have any wider impact. The appellant appealed.
The central issue on the appeal was whether the Aarhus Convention applied at all to a claim in private nuisance and, if it did, in what circumstances.
Held: The appeal was dismissed.
(1) Although the court’s obligation to place a limit on costs in “Aarhus Convention claims” was confined under CPR 45.41ff to judicial review claims, in principle the court still had power to order a PCO in an appropriate case under the wide case management powers conferred by CPR 3.1, for the purpose of managing the case and furthering the overriding objective of dealing with cases justly.
(2) The Aarhus Convention was capable of applying to a private nuisance claim. Such a claim could, in appropriate circumstances, fall within Article 9.3, requiring members of the public to have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities that contravened provisions of the national law relating to the environment. While there was no definition of the “environment” in the Convention, it was intended to be wide and, as Article 1 made clear, was concerned with individual well-being. It included as an objective of the Convention the right of every person to live in an environment that was adequate to his or her health and wellbeing. Moreover, the focus of the Convention was on participation; individual litigants could fulfil a valuable function in helping to ensure that high environmental standards were kept, even if, in the process, they were also vindicating a private interest. It was unrealistic to suppose that the powers conferred on public authorities would suffice to achieve the Convention’s objectives since public bodies were often understaffed and under-resourced and did not have the same direct concerns to uphold environmental standards as did members of the public. Action by individuals was a valuable additional method of ensuring that high environmental standards were maintained and there was no reason why, in an appropriate case, a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3. However, not all private nuisance claims would fall within the scope of Article 9.3. Two requirements had to be met: (i) the nature of the complaint had to have a close link with the particular environmental matters regulated by the Convention, even although the action in private nuisance did not directly raise them; and (ii) the claim, if successful, had to confer significant public environmental benefits.
(3) Article 9.3 did not have direct effect. The Convention had been implemented into EU law only in part, by Article 11 of the Directive, which reflected the language of Article 9.2 of the Convention and was concerned only with public access to review procedures to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of the Directive. Consequently, Article 11 was concerned only with the process before consent was given for a plan or project and was not concerned with private nuisance claims. Article 9.3 of the Convention fell outside its scope: Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107; [2010] 1 Costs LR 1; [2009] PLSCS 75 and R (on the application of Prokopp) v London Underground Ltd [2003] EWCA Civ 961; [2004] Env LR 8; [2003] PLSCS 166 applied.
(4) It followed that the court was not obliged to exercise its discretion to grant a PCO wherever this would be required by the Convention; such an approach would involve a judicial usurpation of the legislative function. instead, the Convention was no more than a factor to be taken into account when deciding whether to grant a PCO, which reinforced the need for the courts to be alive to the wider public interest in safeguarding environmental standards when considering whether or not to grant such an order: Venn v Secretary of State for Communities and Local Government and others [2013] EWHC 3546 (Admin) considered; R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 and Rantzen v Mirror Group Newspapers [1994] QB 670 applied.
(5) Although a “public interest” approach was applied to the award of a PCO, the mere fact that a claimant had a personal interest in the litigation did not of itself bar that claimant from obtaining a PCO: R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600, Eweida v British Airways plc [2009] EWCA Civ 1025; [2010] 1 Costs LR 43 and R (on the application of Litvinenko) v Secretary of State for the Home Department [2013] EWHC 3135 (Admin) considered. Moreover, the availability of alternative and potentially cheaper procedures, such as asking the relevant local authority to take enforcement action and challenging its actions by judicial review if it did not, did not necessarily preclude the grant of a PCO. It would be a relevant factor for the court to consider when exercising its discretion, provided that it afforded a realistic, practical and effective remedy, but, where the public authority was either unwilling or unable to take the necessary action, the only option might be a private action. Challenging the authority’s lack of action by way of judicial review was not an effective way of securing the environmental standards that the Convention was designed to achieve.
(6) Applying the required approach, the appellant’s claim was not such as to justify the making of a PCO. The public benefit was both relatively limited and uncertain. While the claim in private nuisance was sufficiently linked to the development, because it was likely, at least indirectly, to raise issues concerning compliance with the planning conditions imposed to mitigate environmental harm, it could not be said to fall within the scope of Article 9.3 of the Convention having regard to the limited public benefit that the action would achieve. Even if it did, there were no grounds for interfering with the judge’s conclusion that no PCO should be granted. There was a strong element of private interest in the claim. While the appellant had contacted the local authority with her complaints, there was no satisfactory evidence demonstrating that that potentially cheaper statutory route had been properly and adequately explored. Moreover, the respondent was a private body using its own private resources, which had already had to pay out considerable sums in costs in relation to the appellant’s unsuccessful group litigation order claim. Even having regard to Article 9.4 as a factor necessarily to be considered in the exercise of the court’s discretion, and recognising that the appellant was of modest means, it would not be just to impose a PCO.
Stephen Tromans QC and Catherine Dobson (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; James Pereira QC and Jack Connah (instructed by DLA Piper UK LLP) appeared for the respondent.
Sally Dobson, barrister
