Costs – Protective costs order – Aarhus Convention – Planning permission for construction of house in garden of existing property – Respondent bringing proceedings under section 288 of Town and Country Planning Act 1990 to quash planning permission – Court granting protective costs order to respondent so as to cap potential costs liability – Whether respondent’s claim an environmental challenge within Aarhus Convention to which costs protection regime applying – Principles governing exercise of court’s discretion to make PCO in Aarhus cases – Appeal allowed
The respondent applied to the court, under section 288 of the Town and Country Planning Act 1990, to quash a grant of planning permission by the appellant’s planning inspector for the construction of a new house in the garden of her neighbour’s terraced property in London SE4. She contended that the inspector had failed adequately to consider policies against separate residential development on garden land contained in the local plan and supplementary planning document, supported by national and London-wide policies.
The claimant applied for a protective costs order (PCO) to cap her potential costs liability in the proceedings at £1,000 by reason of her limited means. She contended that her claim concerned “environmental matters” within Article 1 of the Aarhus Convention and thus attracted the requirement in Article 9 that such proceedings should not be “prohibitively expensive”.
Allowing the application, the judge held that: (i) the respondent’s claim was an environmental challenge falling within Article 9(3) of the Aarhus Convention; (ii) it did not fall within the costs protection regime of CPR 45.41 since that provision applied only to a judicial review and not a statutory application to quash under section 288 of the 1990 Act; but (iii) a PCO should nonetheless be granted in the exercise of the court’s inherent jurisdiction so as to cap the respondent’s potential liability at £3,500. In reaching that conclusion, the judge held that the criteria laid down in R (on the application of Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600 for the exercise of the court’s discretion to grant a PCO should be relaxed in Aarhus Convention cases to give effect to the requirements of the Convention: see [2013] EWHC 2546 (Admin); [2013] PLSCS 277. The appellant appealed.
Held: The appeal was allowed.
(1) The respondent’s section 288 application fell within Article 9(3) of the Aarhus Convention. Given the breadth of the definition of “environmental information” in Article 2(3) of the Convention, and considering that administrative matters likely to affect “the state of the land” were classed as “environmental” under the Convention, the term “environmental matters” should be given a broad meaning and was arguably broad enough to catch most, if not all, planning matters. Moreover, the reference in Article 9(3) to “acts or omissions” contravening the national law relating to the environment was sufficiently broad to encompass administrative decisions: Lesoochranárske zoskupenie VLK v Slovenskej Republiky Case C-240/09 [2012] QB 606 applied.
The breach of planning law alleged by the respondent was a contravention of the “national law relating to the environment” for the purposes of the Convention notwithstanding that the planning statutes were not directly concerned with the environment. It was characteristic of the UK’s approach to environmental protection that much of the detail was contained, not in statutory regulations, but in policies, both national and local, which decision-makers were required to take into account as material considerations under section 70(2) of the 1990 Act and which, if they formed part of the development plan, had to be followed by virtue of section 38(46) of the Planning and Compulsory Purchase Act 2004 unless other material considerations indicated otherwise. It was therefore inappropriate to draw a distinction for the purposes of the Aarhus Convention between national and local policies, which did relate to the environment, and the law, which did not directly relate to the environment but which required environmental policies to be prepared and then to be taken into account and followed. It would not be consistent with the underlying purpose of Aarhus to adopt an interpretation of Article 9(3) that would, at least in the UK, deprive it of much of its effect.
(2) The court had power to grant costs protection in Aarhus cases to which CPR 45.41 did not apply. However, the Convention was not directly enforceable and, in areas where it had not been implemented by way of an EU Directive, the discretion to grant a PCO was not untrammelled but instead had to be exercised in accordance with the established principles set out in Corner House. Those principles applied regardless of whether or not the case concerned environmental matters: R (on the application of Buglife: The Invertebrates Conservation Trust) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209; [2009] Env LR 18; [2008] PLSCS 297, Morgan v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107; [2009] Env LR 30; [2009] PLSCS 75 and R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006; [2011] Env LR 10; [2010] 3 EGLR 137 applied. The Corner House principles had been modified in one respect only in cases to which the Aarhus Convention applied: the fact that a claimant had a private interest in the outcome of a challenge to an environmental decision would no longer, of itself, bar that claimant from obtaining a CPO, although it would still be a relevant factor in the exercise of the court’s discretion: Austin v Miller Argent (South Wales) Ltd [2014] EWCA Civ 1012; [2014] EGILR 46 applied.
The exclusion of statutory appeals and applications from CPR 45.41 was not an oversight but was a deliberate expression of legislative intent. It would not be appropriate to exercise a judicial discretion in such a way as to sidestep the limitation that had been deliberately imposed by secondary legislation, and to do so for the purpose of giving effect under domestic law to the requirements of an international Convention which, while an integral part of the legal order of the EU, was not directly effective and had not been incorporated into UK domestic law. Although the European Court had now held that the costs protection regime of CPR 45.41 was not Aarhus compliant, so far as it was confined to applications for judicial review and excluded statutory appeals and application, the court could not remedy that flaw by the exercise of a judicial discretion. Instead, legislation was needed in order to remedy the matter.
James Eadie QC and Andrew Deakin (instructed by the Treasury Solicitor) appeared for the appellant; Richard Drabble QC and Christopher Jacobs (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the respondent.
Sally Dobson, barrister
Read the transcript of Venn v Secretary of State for Communities and Local Government
