Factual and Procedural Background
This appeal concerns the Secretary of State’s challenge to an amended Order made by Lang J on 21st November 2013, which granted the Claimant a Protective Costs Order ("PCO") limiting her liability for the Defendants' costs to £3,500 inclusive of VAT. The Claimant had applied under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision dated 25th April 2013 by an Inspector appointed by the Secretary of State (the First Defendant), who allowed the Second Defendant’s appeal against the refusal by the Third Defendant to grant planning permission for a dwelling on a side garden area in Lewisham, London. The Second and Third Defendants did not participate in the proceedings before Lang J or in this appeal.
The Claimant resides next door to the property at issue and challenged the Inspector’s decision on the basis that the Inspector failed to take into account emerging local plan policy, specifically Development Management Local Plan Policy No 32, which restricts development of back gardens in certain residential typologies. The Claimant relied on national policies including the National Planning Policy Framework (NPPF), the London Plan, and supplementary guidance from the Mayor of London. Evidence was also cited from environmental organizations expressing concern about "garden grabbing".
The procedural history involves the Claimant’s application for a PCO on the basis that her challenge was an environmental claim within the scope of the Aarhus Convention, and the Secretary of State’s opposition to this characterization and to the grant of costs protection.
Legal Issues Presented
- Whether the Claimant’s application under section 288 of the 1990 Act falls within Article 9(3) of the Aarhus Convention.
- If so, what principles govern the Court’s discretion to grant a Protective Costs Order in Aarhus cases where no directly enforceable EU environmental Directives apply.
Arguments of the Parties
Claimant's Arguments
- The Claimant contended that her section 288 application was an "Aarhus Convention claim" under CPR 45.41 entitling her to costs protection.
- Alternatively, the Court should exercise its inherent jurisdiction to grant a PCO because the challenge was an environmental claim within Article 9(3) of Aarhus.
- She argued that the distinction in costs protection based on the identity of the decision-maker (local authority versus Secretary of State) was arbitrary and inconsistent with the purpose of Aarhus compliance.
- The Claimant maintained that the nature of the environmental challenge in her statutory application was identical to one made by judicial review, thus the Corner House principles, particularly those relating to public importance, were no longer applicable.
Secretary of State's Arguments
- The Secretary of State argued that the Claimant’s application did not fall within Article 9(3) of Aarhus because it did not challenge an act or omission contravening national environmental law.
- Even if it fell within Article 9(3), the Claimant’s application was not an "Aarhus Convention claim" for CPR 45.41 purposes because it was a statutory application to quash, not judicial review.
- The Court’s discretion to grant a PCO must be exercised according to the established principles in R (Corner House Research) v Secretary of State for Trade and Industry, modified only where necessary to comply with directly enforceable EU environmental Directives, which were not applicable here.
- The Secretary of State submitted that the existence of a private interest in the outcome was a relevant factor weighing against the grant of a PCO.
- He contended that it would be inappropriate for the Court to circumvent the deliberate legislative limitation in CPR 45.41 by extending PCOs to statutory applications to quash.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192 |
Established principles governing the exercise of discretion to grant Protective Costs Orders. |
The Court held these principles remain binding except where modified to comply with directly enforceable EU environmental Directives. |
| R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1209 |
Modification of Corner House principles required for compliance with directly effective EU environmental Directives. |
The Court applied a flexible approach, modifying Corner House principles only as necessary for Directive compliance. |
| Lesoochran rske VLK v Slovenskej Republiky (Brown Bear case) (Case C-240/09) [2012] QB 606 |
Broad interpretation of "environmental" under Aarhus; Convention provisions form part of EU legal order. |
The Court endorsed a broad scope of environmental matters and that national law should be interpreted consistently with Article 9(3) to ensure effective judicial protection. |
| R (Buglife: The Invertebrates Conservation Trust) v Thurrock Thames Gateway Development Corp [2008] EWCA Civ 1209 |
Confirmed Corner House principles as binding and applicable equally to environmental and other public interest cases. |
Followed the principle that PCOs should be granted based on established criteria without separate environmental case rules. |
| R (Morgan) v Hinton Organics (Wessex) Limited [2009] EWCA Civ 107 |
Confirmed that Aarhus principles are to be taken into account but do not override established costs rules absent specific EU Directives. |
Applied Corner House principles flexibly, recognizing Aarhus as a factor but not creating separate rules for environmental cases. |
| European Commission v United Kingdom (Case C-530/11) [2014] 3 WLR 853 ("Commission v UK") |
UK failed to ensure judicial proceedings were not prohibitively expensive under EIA and SEA Directives. |
Supported the conclusion that the UK costs regime excluding statutory appeals from protection was non-compliant with Aarhus. |
| Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012 |
Discretion to grant PCOs is a factor in safeguarding environmental standards but not an obligation. |
The Court held that Article 9.4 is a factor in discretion, rejecting a mandatory obligation to grant PCOs even in Aarhus cases. |
| R v Home Secretary ex parte Brind [1991] 1 AC 696 |
Principles governing judicial discretion. |
Applied to reject the argument that the Court must grant a PCO to avoid breaching Aarhus. |
Court's Reasoning and Analysis
The Court first addressed whether the Claimant’s section 288 application fell within Article 9(3) of the Aarhus Convention, concluding affirmatively. The Court endorsed Lang J’s reasoning that the UK’s planning system, which requires environmental policies to be prepared, taken into account, and followed unless material considerations indicate otherwise, constitutes "national law relating to the environment" within the meaning of Aarhus. The Court rejected the Secretary of State’s argument that only statutory provisions specifically environmental in nature qualify, emphasizing the integrated nature of national legislation and policy in environmental protection.
Turning to the principles governing the grant of Protective Costs Orders in Aarhus cases where no directly enforceable EU environmental Directive applies, the Court reviewed established principles from Corner House and subsequent cases such as Garner, Buglife, and Morgan. It recognized that CPR 45.41, which provides costs protection for Aarhus judicial review claims, deliberately excludes statutory appeals and applications like the Claimant’s section 288 challenge.
The Court acknowledged that while this exclusion results in a systemic flaw in Aarhus compliance—since costs protection depends on the identity of the decision-maker rather than the nature of the environmental decision—it is not within the Court’s power to remedy this by judicial discretion. The Court emphasized that the legislative intent behind CPR 45.41 must be respected, and that modification of the costs regime to achieve full Aarhus compliance requires legislative action.
The Court was persuaded by the Secretary of State’s submission that the Court’s discretion to grant a PCO in statutory appeals falling within Article 9(3) is constrained by Corner House principles, except where EU Directives mandate modification. The Claimant’s arguments for extending costs protection beyond CPR 45.41’s scope were therefore rejected, notwithstanding the acknowledged unfairness and systemic non-compliance with Aarhus.
Holding and Implications
The Court ALLOWED the Secretary of State’s appeal, overturning the Order granting the Claimant a Protective Costs Order in respect of her section 288 application.
The direct effect is that the Claimant is not entitled to the costs protection previously granted, and the limitation of liability for costs to £3,500 is removed. The Court recognized that this outcome exposes a systemic flaw in the UK’s costs regime regarding Aarhus compliance, as costs protection depends on the identity of the decision-maker rather than the nature of the environmental challenge.
No new precedent altering the established principles governing Protective Costs Orders was created. Instead, the Court emphasized that remedying the identified Aarhus compliance issue requires legislative intervention. The government is undertaking a review of the costs regime in environmental cases, which may consider extending costs protection to statutory review proceedings dealing with environmental matters.