Planning permission — Environmental impact — Protective costs order (PCO) – Appellant seeking judicial review of grant of planning permission – Appellant applying for PCO — Whether appellant having sufficient interest – Appeal allowed
In June 2009, the respondent local authority granted planning permission for a comprehensive redevelopment of Hampton Court station and adjoining land in Hampton Court Way (the site). The site was on the opposite bank of the River Thames from Hampton Court Palace, a scheduled ancient monument and a Grade I listed building. The appellant was neither a local resident nor a local elector but he had a long-standing interest in the palace as an architect specialising in the conservation of historic buildings. He had previously worked for Historic Royal Palaces, during which time he had advised the palace director on planning applications that could adversely affect its setting. On his recommendation, objections to earlier developments which had been made, the applications for which had been refused.
The appellant had applied for judicial review of the decision to grant planning permission and for a protective costs order (PCO). His application was refused on the basis that the issues raised were not of general public importance and the public interest did not require their resolution. Further, the court considered that it had insufficient evidence of his financial resources to be able to determine whether it would be reasonable for him to discontinue proceedings if the order were refused.
The appellant appealed, arguing that there was no requirement in Article 10 of Council Directive 85/337/EEC (the EIA Directive), which incorporated the principles set out in the Aarhus Convention and had direct effect in domestic law, that the issues raised in a challenge to an environmental decision should be of general public importance or that the public interest should require that those issues be resolved. He further argued that Article 10a obliged the UK to ensure that the procedure for challenging the lawfulness of the planning permission was not prohibitively expensive.
Held: The appeal was allowed.
The principles relating to PCOs were settled so far as the Court of Appeal was concerned, although they had to be applied flexibly. A PCO might be made at any stage of the proceedings on such conditions as the court thought fit, provided that the court was satisfied that: (i) the issues raised were of general public importance; (ii) the public interest required that those issues should be resolved; (iii) the applicant had no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent and to the level of costs that were likely to be involved, it was fair to make the order; and (v) if the order was not made, the applicant would probably discontinue the proceedings and would be acting reasonably in so doing. If those acting for the applicant were doing so pro bono it would be likely to enhance the merits of the application for a PCO. It was for the court, in its discretion, to decide whether it was fair to make the order in the light of those considerations (the Corner House conditions): R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600 and Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA 107; [2009] 2 P&CR 4 applied.
However, the Court of Appeal had not had to consider whether those principles complied with the requirements of Article 10a in a case where THE EIA Directive applied; it was not disputed that the decision to grant planning permission in the present case was a decision to which the directive applied. The council required an environmental impact assessment (EIA) to accompany the planning application. Therefore, the court had to modify the Corner House conditions, but only in so far as it was necessary to secure compliance with the directive.
Approaching the matter in that way, it could not be accepted that the appellant was not a member of the public concerned for the purposes of Article 10a. Even if the appellant was not “affected or likely to be affected by the decision to grant planning permission”, he did have an interest in the decision-making process in respect of applications for planning permission that affected the setting of Hampton Court Palace. Under Article 10a, member states could decide what constituted a sufficient interest, provided they did so consistently with the objective for giving the public concerned wide access to justice. If the underlying objective was to give the public wide access to justice then the appellant at least did have an interest.
On the basis of further information provided to the court concerning the appellant’s involvement in earlier schemes affecting the setting of Hampton Court Palace, it was arguable that he had a sufficient interest for the purposes of section 31(3) of the Senior Courts Act 1981. That was the only test in the UK for determining whether a member of the public should be able to access the review procedure to challenge the lawfulness of environmental decisions.
Under EC Community law, it was a matter of general public importance that environmental decisions subject to the directive were taken in a lawful manner, and if that was in issue, the general public interest required it to be resolved in an effective review process. The Corner House principles were judge-made law that had to be interpreted and applied in such a way as to ensure conformity with the directive. It followed that the judge had not been entitled to reject the appellant’s application for a PCO on the basis that the issues raised were not of general public importance and did not have to be resolved.
Furthermore, the judge’s subjective approach to the issue of prohibitive costs, although wholly consistent with Corner House principles, was not consistent with Article 10a. Even if it were necessary to have regard to the claimant’s financial circumstances, the underlying purpose of the directive would be frustrated should the court be entitled to decide the matter solely by reference to the claimant’s means, without considering whether the potential costs would be prohibitive for an ordinary member of the public.
There was evidence that a PCO was necessary if the instant proceedings were not to be prohibitively expensive. However, with regard to the appropriate figure, the appellant could not have it both ways. If the test was not subjective and incorporated an element of objectivity, the requirement in Article 10a was that the review procedure should not be prohibitively expensive, not that it should not be so for only one of the parties engaged in the review process. The imposition of some form of reciprocal limit on a respondent’s liability for costs was not necessarily inconsistent with Article 10a and, unlike the general public interest condition, was a feature of Corner House that had to be considered on a case-by-case basis. A PCO would be granted and a reciprocal limitation imposed on the local authority’s liability: Corner House considered.
Richard Drabble QC, David Smith and Dr David Wolfe (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; James Findlay QC and Robert Williams (instructed by the legal department of Elmbridge Borough Coucnil) appeared for the respondents; Jeremy Hyam (instructed by Leigh Day & Co) appeared on behalf of WWF (UK) and Friends of the Earth, intervenors.
Eileen O’Grady, barrister
