Changes regarding 'cost capping' for those seeking to challenge planning decisions came into force on 28 February 2017. In some ways the changes make it more costly for third parties to challenge decisions.
The government has introduced these changes as a response to proposals to revise the existing cost protection scheme regarding environment-related planning challenges falling within the scope of the Aarhus Convention. The aims include allowing for cost flexibility in individual cases and deterring 'frivolous' cases from being brought.
The general rule is that the losing party pays both their own and the other party's legal fees. Since 2013 there has been an option to cap such costs at £5,000 for individual claimants and £10,000 for organisations. A 'hybrid regime' has now been introduced whereby the costs limit may be either increased or decreased, provided that they are not 'prohibitively expensive' for the claimant.
In bringing a claim:
- To apply for cost protection, information about a claimant's financial means must be submitted at the start of proceedings
- Separate cost variations will apply to each party in multiple-party claims
- Court fees will be included in the cost calculation.
These cost limitations now also apply to challenges to enforcement notices including those relating to listed buildings and the replacement of trees.
Cost protection can be applied for at the onset of proceedings by submitting a claim form and providing evidence of financial resources. Both the court and the other parties will have access to this financial information. The defendant - and (importantly for developers) the interested party - now has the chance to argue that the costs protection should be varied. However to do so they will need to demonstrate the need for variation. The court's decision to vary the costs protection will take the claimant's financial means into account.
ClientEarth, Friends of the Earth and the Royal Society for the Protection of Birds have all opposed the change, saying that the removal of certainty of costs protection and the need to make personal finances publicly available will serve as too great a deterrence for individuals wishing to bring a claim. However the Ministry of Justice has justified the changes by saying it aims to reduce the amount of frivolous claims and to ensure individuals will not be required to pay costs beyond their means, with legal aid remaining available subject to eligibility.