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Court of Appeal finds Aarhus costs discrepancy

In the recent case of Secretary of State for Communities and Local Government v Venn, the Court of Appeal held "with reluctance" that a woman who challenged a development proposed by her neighbour did not have protection against potentially heavy legal costs.

The legal landscape

Article 9 of the Aarhus Convention (to which the UK is a party) states that members of the public should be able to challenge environmental decisions, and the procedures for doing so shall be fair, equitable, timely and "not prohibitively expensive."

In order to observe its obligations under the Aarhus Convention, the UK Government introduced an amendment to the Civil Procedure Rules in April 2013 which provided that in claims for judicial review that fell within the scope of the Aarhus Convention, an individual claimant could not be ordered to pay costs exceeding £5,000 (£10,000 for other types of claimants).

Facts:

The Claimant, Sarah Venn, had applied under the Town and Country Planning Act 1990 Section 288 to quash the Secretary of State's decision to grant planning permission for a single-storey dwelling on the side garden area of a neighbouring property. She said that the Secretary of State had failed to have regard to the emerging local plan policy prohibiting the development of back gardens for separate dwellings. Finding that her claim fell within an environmental challenge under Article 9 of Aarhus, the High Court granted Ms Venn a Protective Costs Order limiting her costs liability to £3,500.

Decision

On appeal, Sullivan LJ giving the judgment of the Court held that:

  • The scope of the Aarhus Convention is very wide and includes most if not all planning challenges, including the Claimant's Section 288 application. 
  • The CPR amendments are confined to applications for judicial review, excluding statutory appeals and applications (and therefore Ms Venn's Section 288 application). 
  • This judicial review limitation within the CPR amendments is not compliant with the UK's obligations under Aarhus; however, the court felt it would be inappropriate to "remedy that flaw by the exercise of a judicial discretion." 

The Court was told that the government is currently reviewing the existing costs regime in environmental cases, and as part of that will consider whether the regime for Aarhus claims should make provision for statutory challenge proceedings. In the meantime, this decision is likely to deter some objectors wishing to challenge planning permissions granted on appeal due to the potential for escalating costs if the claim is unsuccessful.

It remains to be seen whether the Government will remedy this discrepancy but this is unlikely to be the last word on the subject.

The full judgment can be accessed here: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1539.html