Protective Costs Orders in Section 288…

A major cost reform in environmental litigation has been the recent introduction of CPR 45.41 which introduces a system of protective costs into judicial reviews of decisions, acts and omissions which are subject to the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention”). CPR 45.41 is intended to give effect to the Aarhus requirement that environmental litigation not be prohibitively expensive.

In its consultation response introducing the measures, the Ministry of Justice recognised that:

“that there are some concerns about costs in statutory procedures of various kinds (including some statutory appeal and statutory review procedures). However, further work is needed to identify whether and, if so, how and to what extent these procedures fall within the scope of the Convention and to identify whether the above approach is the appropriate way forward and, if so, what the impacts might be… The Government is therefore looking into these issues and, where necessary, will bring forward proposals separately, so as not to delay establishment of the scheme for environment judicial review cases.”

The position in s288 Town and Country Planning Act 1990 applications has now been considered in the R (Venn) v Secretary of State for Communities and Local Government [2013] EWHC 3546 (Admin). In that case, the Local Authority refused planning permission for a dwelling to be constructed in the garden of another house, but planning permission was subsequently granted by the Inspector on appeal. The Claimant, seeking to challenge the decision to grant permission on the basis that development plan policies against garden development had not been adequately considered, sought a protective costs order limiting her total costs liability to £1000.

Giving judgment, Mrs Justice Lang found that:

Section 288 applications, although raising similar issues, are not ‘claims for judicial review’ and so fall outside of CPR 45.41;
Although not every planning case will involve environmental issues engaging the Aarhus Convention, the Convention is of wide application and the challenge to a failure to apply policies on protecting gardens from development does raise ‘environmental matters’ within the meaning of the Convention;
The Corner House criteria for protective costs orders should be relaxed to give effect to the requirements of the Aarhus Convention, including the requirement that environmental litigation not be prohibitively expensive.

Having regard to the Claimant’s circumstances, the learned judge granted the Claimant a protective costs order capping her potential costs liability to £3,500.

It will be interesting to see whether the case, and any which follow, prompt the Ministry of Justice to bring forward further measures on protective costs in non-judicial review cases.

Christopher Jacobs appeared for the Claimant.