Legal

PP 2011/3

Legal

Estates Gazette

04 January 2011

Practice points

Costs, Environment

In R (on the application of Edwards) v Environment Agency [2010] UKSC 57; [2010] PLSCS 317, both Directives applied. The appellant had sought unsuccessfully to challenge the grant of a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000, which at that time implemented the IPPC Directive. She was subsequently ordered to pay the costs of the respondents, the Environment Agency and Defra, amounting to £88,000. (She had been refused a protective costs order.)

The respondents appealed certain subsequent decisions by the costs officers, under r 53 of the Supreme Court Rules, and referred questions to a panel of justices. One of these was whether the test mentioned above should focus exclusively on the actual parties to the litigation, or whether it should focus on what would be prohibitively expensive for the ordinary member of the public.

The justices placed considerable weight on the decision of the Court of Appeal in R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006; [2010] PLSCS 247 where Sullivan LJ had stated: “Whether or not the proper approach to the ‘not prohibitively expensive’ requirement under article 10a should be a wholly objective one, I am satisfied that a purely subjective approach, as was applied by [the first instance judge] is not consistent with the objectives underlying the [EIA Directive]”. He added that the underlying purpose of that provision of the EIA Directive would be frustrated if the court was entitled to consider the matter solely by reference to the means of the claimant who happened to come forward without having to consider whether the potential costs would be prohibitively expensive for an ordinary member of the public concerned.

The justices however referred the issue to the Court of Justice of the European Union for a preliminary ruling, staying the order against the appellant in the meantime.

John Martin is a freelance writer

Article 15a of Council Directive 85/337/EEC (the EIA Directive) and article 15a of Council Directive 2003/35/EC (the IPPC Directive) were inserted to implement provisions in the Aarhus Convention obliging member states to ensure that the public has access to a review procedure before a court of law to challenge the substantive or procedural legality of decisions etc subject to the public participation provisions of the two directives. In particular, any such procedure must be fair, timely and “not prohibitively expensive”. However, uncertainty continues as to the correct test indicated by those final three words. In R (on the application of Edwards) v Environment Agency [2010] UKSC 57; [2010] PLSCS 317, both Directives applied. The appellant had sought unsuccessfully to challenge the grant of a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000, which at that time implemented the IPPC Directive. She was subsequently ordered to pay the costs of the respondents, the Environment Agency and Defra, amounting to £88,000. (She had been refused a protective costs order.) The respondents appealed certain subsequent decisions by the costs officers, under r 53 of the Supreme Court Rules, and referred questions to a panel of justices. One of these was whether the test mentioned above should focus exclusively on the actual parties to the litigation, or whether it should focus on what would be prohibitively expensive for the ordinary member of the public. The justices placed considerable weight on the decision of the Court of Appeal in R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006; [2010] PLSCS 247 where Sullivan LJ had stated: “Whether or not the proper approach to the ‘not prohibitively expensive’ requirement under article 10a should be a wholly objective one, I am satisfied that a purely subjective approach, as was applied by [the first instance judge] is not consistent with the objectives underlying the [EIA Directive]”. He added that the underlying purpose of that provision of the EIA Directive would be frustrated if the court was entitled to consider the matter solely by reference to the means of the claimant who happened to come forward without having to consider whether the potential costs would be prohibitively expensive for an ordinary member of the public concerned. The justices however referred the issue to the Court of Justice of the European Union for a preliminary ruling, staying the order against the appellant in the meantime. John Martin is a freelance writer