The Court of Appeal (Lloyd, Richards and Sullivan LJ) gave judgment on 29th July 2010 in R (on the application of Garner) v Elmbridge Borough Council  EWCA Civ 1006.
The appellant (Garner) was appealing against a decision of Nicol J refusing him a PCO. It was common ground that the case was one to which Directive 85/337 (as amended by Directive 2003/35) applied which, in effect, transposes the principles of the Aarhus Convention into EU law. It was also common ground that Article 10a of the amended directive was directly effective and could be relied on in a proposed challenge the grant of planning permission in an EIA case. The principles set out below are accordingly of wide application.
The following important issues were discussed by the Court:
‘member of the public concerned’
1.The appellant was a “member of the public concerned” for the purposes of Article 10a as ‘even if he is not affected or likely to be affected by the decision to grant planning permission’ he does have ‘an interest in the decision- making process in respect of applications for planning permissions which affect the setting of Hampton Court Palace’
‘issues of general public importance/ public interest requiring resolution of those issues’
2.The ‘Corner House’ conditions relating to general public importance and to public interest requiring resolution of these issues do not apply in an Article 10a case.
3.Under Community law ensuring that environmental decisions subject to the directive are taken in a lawful manner is taken to be a matter of general public importance.
4.A wholly subjective approach, as applied by the trial judge, is not consistent with the aims underlying the directive.
5.The level of costs involved in a two day judicial review would be such as to deter most “ordinary members” of the public concerned from proceeding and would accordingly be “prohibitively expensive”.
6.The more subjective the test the more intrusive the investigation into the means of those seeking PCOs. It was emphasised that such means testing would be in a public forum and this was contrasted with public funding from the Legal Services Commission where disclosure of means is a private process.
Reciprocal cost capping
7.The court held that the imposition of a reciprocal limit upon the respondent’s liability for costs is not necessarily inconsistent with article 10a neither is determining the appellant’s liability under the PCO at nil.
8.The court accepted that modest reciprocal costs caps might have the effect that successful claimant’s lawyers would subsidise the process or that claimants would be exposed to expensive costs claims from their own lawyers.
9.In the event the appellant’s liability under the PCO was £5,000 (for the two appellants) and the respondent’s liability was limited to £35,000.