The Court of Appeal (Sullivan, Gloster & Vos LJJ) today gave judgment in SSCLG v Venn  EWCA Civ 1539. This was an appeal by Secretary of State for Communities and Local Government against the decision of Lang J to grant the Claimant, Sarah Louise Venn, a Protective Costs Order (CPO) limiting her liability to pay the defendant’s costs to £3500, in respect of her application under s.288 of the Town and Country Planning Act 1990.
Lang J concluded that the Claimant’s case was an environmental challenge under 9(3) of Aarhus, but not an “Aarhus Convention claim” (within CPR 45.41) because it was not an application for judicial review. She exercised the Court’s discretion to make a PCO because “the Corner House criteria should be relaxed to give effect to the requirements of the Aarhus Convention”.
The Court of Appeal had to decide whether the Claimant’s section 288 application fell within 9(3) of Aarhus, and if it did, on what principles should the Court exercise its discretion to grant a PCO in an Aarhus case in which directly enforceable EU environmental Directives are not engaged?
The appeal was allowed on the basis that the exclusion of statutory appeals by CPR 45.41 was not an oversight but a deliberate expression of a legislative intent. It would not be appropriate to exercise judicial discretion eg by granting a PCO to “side-step” the limitation. The principles governing the grant of a PCO in an Aarhus case in which directly enforceable EU environmental Directives are not engaged were those in Corner House. Sullivan LJ concluded by stating that despite granting the appeal, the Court of Appeal recognised that the costs regime under 45.41 was “systematically flawed in terms of Aarhus compliance”.