Garner, R (on the application of) v Elmbridge Borough Council & Ors

Factual and Procedural Background

On 16 June 2009, the respondent granted planning permission for the redevelopment of a site at Hampton Court Way, East Molesey, near Hampton Court Palace, a scheduled ancient monument and grade 1 listed building. The appellant, an architect specialising in conservation of historic buildings with a longstanding interest in the palace, challenged the planning permission by judicial review filed on 14 September 2009. The appellant was not a local resident or elector but had previously objected to an earlier redevelopment scheme on the same site in 2007.

The appellant's claim challenged the planning permission on three grounds: failure to provide a summary of reasons for granting permission; failure to give special regard to preserving the setting of the listed building; and failure to apply the sequential test for development in a flood plain. The claim included an application for a protective costs order ("PCO").

The respondent and interested parties opposed the claim, disputing its merits, the appellant's standing, and the timeliness of the proceedings, and opposed the PCO application. Permission to apply for judicial review was initially refused by a deputy High Court judge on the papers in December 2009. The appellant renewed the application, leading to a "rolled up" hearing before Nicol J on 3 March 2010, who dismissed the PCO application and ordered the appellant to pay costs.

The appellant sought permission to appeal the refusal of the PCO and related orders, which was initially refused but later granted by Munby LJ. The appeal concerns the application of the European directive 2003/35/EC (incorporating Aarhus Convention principles) and the interpretation of domestic principles governing PCOs, particularly the Corner House criteria.

Legal Issues Presented

1. Whether the appellant qualifies as a "member of the public concerned" with a sufficient interest under Article 10a of Directive 2003/35/EC to seek judicial review of the planning permission.
2. Whether the domestic principles established in R (Corner House Research) v Secretary of State for Trade and Industry governing the grant of protective costs orders are compatible with the requirements of Article 10a of the directive and the Aarhus Convention.
3. Whether a protective costs order should be granted to the appellant and additional claimants, and if so, on what terms and limits.
4. How to properly assess whether the costs of proceedings are "prohibitively expensive" under Article 10a: whether by reference to the individual claimant's means (subjective test), an objective test based on an "ordinary" member of the public, or a combination.
5. Whether additional claimants should be permitted to join the proceedings.

Arguments of the Parties

Appellant's Arguments

• The directive 2003/35/EC, incorporating Aarhus Convention principles, imposes a direct effect obligation on the UK to ensure that procedures challenging environmental decisions are not prohibitively expensive.
• A protective costs order must be granted to prevent a chilling effect on public participation due to open-ended costs liability.
• The requirement under Article 10a does not include the Corner House conditions of "general public importance" or "public interest" and thus those criteria should not bar a PCO.
• The judge erred in requiring detailed evidence of the appellant’s financial means to determine whether costs would be prohibitively expensive, as the directive requires systemic compliance ensuring the procedure is affordable for an ordinary member of the public concerned.
• The appellant has a sufficient interest as a person concerned with the protection of the historic environment, supported by his longstanding involvement and previous objections related to the site.
• The respondent’s proposed reciprocal costs cap was unreasonable as it would penalise successful claimants or require lawyers to subsidise costs.
• The addition of other claimants with sufficient interest (Keith Garner Limited and Mr Macaulay) should be permitted to strengthen the standing and public interest in the proceedings.

Respondent's Arguments

• The appellant is not a "member of the public concerned" under the directive and lacks sufficient interest to bring the proceedings.
• The Corner House principles remain binding and should be applied flexibly, including the public importance and public interest tests, which are not inconsistent with the directive.
• The assessment of whether costs are prohibitively expensive should be subjective, considering the individual claimant’s means, not purely objective.
• There was insufficient evidence to conclude that the proceedings would be prohibitively expensive for the appellant or Mr Macaulay.
• If a PCO is granted, it should include a reciprocal cap limiting the respondent’s liability for costs to ensure fairness.
• The appellant’s company has no better standing than the appellant himself; however, Mr Macaulay, as a local resident, has sufficient interest.
• The respondent opposed the addition of further claimants and the grant of a PCO for them.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the appellant's status as a "member of the public concerned" under Article 10a of Directive 2003/35/EC, concluding that the appellant does have an interest in the environmental decision-making process affecting Hampton Court Palace due to his longstanding involvement and expertise. The court noted that the question of "sufficient interest" under domestic law remains to be determined at the substantive rolled up hearing but found it at least arguable that the appellant meets this test.

The court then addressed the compatibility of the Corner House principles with the directive’s requirements. It held that while Corner House remains settled law, its conditions must be interpreted and applied so as to conform with the directive. In particular, the requirement that issues be of "general public importance" and that the public interest require resolution of those issues must be disapplied in cases governed by Article 10a, since the directive presumes public interest in environmental review.

Regarding the test for whether proceedings are "prohibitively expensive," the court rejected the purely subjective approach applied by Nicol J, which focused solely on the appellant’s individual financial means. Instead, the court concluded that an objective test must be applied, considering whether the costs would be prohibitively expensive for an ordinary member of the public concerned. This objective element is necessary to fulfill the directive’s purpose of wide access to justice.

The court found that the evidence, including solicitor estimates and actual costs claimed by respondents and interested parties, demonstrated that the potential costs without a PCO would likely be prohibitively expensive for an ordinary member of the public. It recognized the chilling effect that intrusive means testing and public disclosure of financial details would have on public participation.

The court accepted that some reciprocal limitation on respondents’ costs liability is consistent with Article 10a and fair in the circumstances, rejecting the appellant’s argument against any cap. The court emphasized balancing fairness and the directive’s objectives.

Finally, the court allowed the joinder of the additional claimants who have a clearer sufficient interest, to strengthen the public interest representation in the proceedings.

Holding and Implications

The court allowed the appeal, granting permission to appeal the earlier refusal of a protective costs order and permitting the joinder of additional claimants.

A protective costs order was granted for the three appellants in the sum of £5,000, with a reciprocal limitation on the respondent’s costs liability capped at £35,000. The court held that the criteria in Corner House must be interpreted consistently with Article 10a of Directive 2003/35/EC, disapplying the general public importance and public interest tests in environmental cases subject to the directive.

The decision clarifies that the test for prohibitively expensive costs under Article 10a incorporates an objective element, protecting ordinary members of the public concerned, and that intrusive public means testing may deter public participation, contrary to the directive’s purpose.

While the ruling does not establish new precedent beyond this context, it signals the need for domestic courts to adapt protective costs order principles to comply with EU environmental law and the Aarhus Convention, ensuring effective public access to justice in environmental matters.