The Civil Procedure (Amendment) Rules 2013, which were made and came into force on 1 April 2013, affect cases commenced after that date and introduce 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. The rules define both “Aarhus Convention claim” and “judicial review”.
In Venn v Secretary of State for Communities and Local Government [2013] EWHC 3546 (Admin), the claimant had applied under section 288 of the Town and Country Planning Act 1990 (“the Act”) to quash the decision of an inspector on appeal to grant planning permission for the erection of a new house on a garden plot adjoining her own residence. Her main ground was that the inspector had erred in failing to consider and address adequately a development management local plan policy against residential development on garden land.
The claimant also applied for a PCO. She contended that her claim was an Aarhus Convention claim and that it fell within the scope of CPR 45.41. In the alternative, she argued that the court should exercise its inherent jurisdiction to make a PCO on the basis that her claim was nevertheless an Aarhus Convention claim.
While recognising the distinction between pure planning issues and environmental issues, the court concluded that the claimant’s main ground did raise environmental matters within the Aarhus Convention. However, it rejected her first contention, holding that her claim fell outside CPR 45.41 since it was not a claim for judicial review as defined in the rules. Furthermore, while claims under section 288 of the Act 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 applications to be covered by CPR 45.41. Accordingly, the court could not extend the rules in that way.
However, applying the criteria for making a PCO, as 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 the court decided that it was appropriate to exercise its inherent jurisdiction and make a PCO in favour of the claimant, capping her liability for the costs of other parties at £3,500.
John Martin