Protected costs order – Aarhus Convention – Environmental matters – Claimant neighbour seeking to quash planning permission on environmental grounds – Claimant applying for protected costs order (PCO) due to limited means – Whether claim qualifying for PCO – Whether claimant fulfilling criteria for PCO – Application granted in part
The claimant applied for a costs protection order (PCO) in respect of her application under section 288 of the Town and Country Planning Act 1990 to quash a grant of planning permission by an inspector appointed by the first defendant secretary of state. The inspector had allowed an appeal by the second defendant, against the refusal of planning permission by the third defendant local authority. He was granted planning permission to build a new house in the garden of a Victorian terrace house in London SE4. The claimant lived next door and was concerned about the loss of green space and the impact of the proposed development on the enjoyment of her home.
She challenged the inspector’s decision contending that he had erred in failing to adequately consider and address the third defendants’ local plan policy against residential development on garden land, failing to consider adequately the relevant minimum separate distance set out in the third defendant’s supplementary planning document and national and London-wide policies, and failing to address topography issues.
The claimant submitted she was entitled to costs protection on the grounds that her claim was concerned with “environmental matters”, within article 1 of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the “Aaarhus Convention”) and fell within the costs protection provided by CPR 45.41; alternatively, the court should exercise its inherent jurisdiction to make a PCO because this was an environmental/Aarhus Convention claim. Because of her limited means, the cap should be set at £1000.
Article 1 of the Aarhus Convention provided that, to protect the right of every person to live in an adequate environment, there should be guaranteed rights of access to information, public participation in decision-making, and access to justice in environmental matters. Article 9 required access to review procedures in respect of the acts and omissions of public authorities concerning national law relating to the environment which had to be adequate, effective, fair, timely and “not prohibitively expensive”.
Held: The application was granted in part.
(1) Not every planning decision would engage environmental matters falling within the Aarhus Convention. In the claimant’s challenge, some of the issues were pure planning, not environmental, but her first ground, which related to the failure to apply Lewisham and London-wide policies on protecting gardens from development, did raise environmental matters within the meaning of the Convention.
Under domestic law, the determination of an application for planning permission, and any appeal, was to be made in accordance with the development plan, unless material considerations indicated otherwise. If the claimant succeeded, the inspector would have acted contrary to the statutory duties in the Town and Country Planning Act 1990 and the principles of public law, resulting in a failure to have proper regard to the relevant policies protecting the environment. That would amount to a contravention of national law relating to the environment, within the meaning of article. 9.3 of the Convention.
(2) However, this claim fell outside the costs protection provided by CPR 45.41 as the rule clearly stated that it applied to “a claim for judicial review”. Although applications under section 288 of the 1990 Act frequently raised the same public law issues as in judicial review claims, the wording of CPR 45.41 referred to “claims”, not “issues”. It would require an express provision in the CPR, comparable to paragraph 19(10) to bring section 288 applications within the meaning of “claims for judicial review”. It was apparent that the Ministry of Justice did not intend statutory applications to be covered by CPR 45.41.
(3) The criteria for the grant of a protective costs order were that the issues raised were of general public importance, the public interest required that those issues should be resolved, having regard to the financial resources of the parties, it was fair and just to make the order and, if the order was not made, the claimant would probably discontinue the proceedings. The fact that the claimant had no private interest in the outcome of the case was a factor to be taken into account but was not decisive. The public importance and the public interest criteria would be treated as satisfied in an Aarhus Convention claim. Since the Aarhus Convention was an international convention to which the UK was a signatory, UK law had to be interpreted and applied in harmony with its provisions where possible.
Accordingly, the criteria for a PCO should be relaxed to give effect to the requirements of the Convention and public importance and public interest criteria were met in this case because the claim raised environmental matters within the scope of the Convention:, R (Corner House Research) v Secretary of State for Trade & Industry [2005] 1 WLR 2600, R (Buglife) v Thurrock Thames Gateway Development Corporation [2008] PLSCS 297, Morgan & Baker v Hinton Organics (Wessex) Ltd [2009] 2 P & CR 4, R (Garner) v Elmbridge Borough Council [2010] 3 EGLR 137 and Walton v Scottish Ministers [2012] UKSC 44 considered.
(4) Article 9.4 of the Convention required that access to justice should not be “prohibitively expensive”. The court had to consider the situation of the parties; what was at stake for the claimant and the protection of the environment; whether the claimant had a reasonable prospect of success; the complexity of the relevant law and procedure; and the existence of a national legal aid scheme or costs protection scheme. The fact that a claimant had not been deterred from asserting his claim was not of itself sufficient to establish that the proceedings were not prohibitively expensive for him: Edwards v Environment Agency [2013] 1 WLR 2914 applied.
The claimant’s claim was plainly not frivolous and appeared to be arguable. It was of the highest importance to her personally. She was currently unemployed and her sole income was Job Seekers Allowance. She owned her own home, valued at about £200,000, and had an outstanding mortgage of £2000. She owed her parents £60,000, a loan to enable her to pay off a high interest mortgage. Her parents were not wealthy. She was ineligible for legal aid, because of the equity in her home. She was unable to pay for her own legal representation. Taking into account all the relevant factors, it would be prohibitively expensive for her to raise more than £3,500 and her total liability to pay costs would be capped at that amount.
Christopher Jacobs (instructed by direct access) appeared for the claimant; Andrew Deakin (instructed by the Treasury Solicitor) for the first defendant; The second and third defendants did not appear and were not represented.
Eileen O’Grady, barrister