The Civil Procedure (Amendment) Rules 2013 introduced new rules, namely CPR 45.41 to 45.44, enabling the court to make a protective costs order (“PCO”) in an Aarhus Convention claim for judicial review of a relevant decision, act or omission.
In Venn v Secretary of State for Communities and Local Government [2014] EWCA Civ 1539, it was held at first instance that, while claims under section 288 of the Town and Country Planning Act 1990 frequently raise similar public law issues to those raised in claims for judicial review, it was clear that the Ministry of Justice did not intend statutory review applications to be covered by CPR 45.41. (That decision has not been challenged.)
However, the court concluded that it retained an inherent jurisdiction to make a PCO nevertheless and it did so applying the principles established in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] 4 All ER 1 and modified, in the case of claims made under the Aarhus Convention, in Garner v Elmbridge Borough Council [2010] EWCA Civ 1006; [2010] PLSCS 247.
On appeal, the Court of Appeal has now drawn a distinction – in terms of the relevant principles – between claims made under the Aarhus Convention where an EU Directive applies, and those where no EU Directive applies. (In Venn, where it was accepted both at first instance and on appeal that the section 288 application was an environmental challenge falling within Article 9(3) of the Aarhus Convention, on the facts no directly enforceable EU Directive applied.)
The appeal judges held – albeit with some reluctance – that the coming into effect of CPR 45.41 had “moved the goalposts” to such an extent that the court was no longer bound to apply the Corner House principles (as amended, where appropriate, by Garner) to an application for a PCO in environmental cases falling within Article 9(3) of the Aarhus Convention where no EU Directive was involved. With the deliberate exclusion of statutory review applications from CPR 45.41, it would not be appropriate to exercise a judicial discretion so as to side step the limitation (to judicial review claims) that had been deliberately imposed by secondary legislation.
They went on to add that it would be doubly inappropriate to do so for the purpose of giving effect under domestic law to the requirements of an international Convention that was not directly effective, and which had not been incorporated into UK domestic law.
John Martin is a planning law conultant
