New cost limits for planning challenges and environmental claims

The UK is a signatory to the Aarhus Convention which requires that all signatory states must ensure access to environmental justice. The Convention requires that legal proceedings which fall within its scope must not be prohibitively expensive. Following EU enforcement proceedings brought against the UK Government in 2013, new provisions where introduced into the Civil Procedure Rules (CPR) to limit costs that could be awarded against parties in judicial review proceedings that fell within the scope of the Convention. Recent changes introduced by the Amendment Rules have introduced a broader range of claims to be included in the regime. Cost caps are no longer fixed and cost-limits will be determined by the courts on a case-by-case basis. While the changes may seek to ensure access to justice for environmental claimants, it remains to be seen whether the increased flexibility of the court in setting cost caps will have this effect.

A protective cost order (PCO) is an order which limits the potential liability of one or more parties to litigation in court to pay the court fees of the other party. Its purpose is to restrict the financial burden imposed on the parties to the dispute and, in so doing, preserve access to justice by the public by preventing the costs of litigation from becoming ‘prohibitively’ high.

The ability of the Court to make PCOs in respect of ‘Aarhus Convention claims’ is set out in Part 45 of the CPR. ‘Aarhus Convention claims’ were defined as judicial review claims (whereby the Court is asked to examine the activities of a public body to determine whether they were lawful) which fall within ‘the scope of the Convention’ and which relate to access to environmental information and environmental justice. This narrow scope of eligibility has meant that claims including appeals against planning decisions and public nuisance matters on environmental grounds were excluded, despite falling within the scope of the Convention.

CPR Part 45 also imposed a fixed cap on PCOs which could be made by the courts, restricting the liability of claimants to £5,000 (if claiming as an individual and £10,000 in all other cases) and of defendants to £35,000.

The Civil Procedure (Amendment) Rules 2017 make a number of changes to the protective costs regime which apply to Aarhus Convention claims commenced on or after February 28, 2017 as follows.

• The definition of ‘Aarhus Convention claim’ has been extended so that PCOs are no longer confined to judicial review claims and are now available in more types of litigation. In relation to planning cases, this means that PCOs will apply to challenges to decisions taken by the Secretary of State or an Inspector in relation to statutory appeals against planning application decisions, enforcement notices and listed building enforcement notices.
• Although the cap on PCOs set out above will continue to be the default position, the courts are now entitled to vary or remove those limits if satisfied that this would not make the cost of proceedings ‘prohibitively expensive’. In deciding whether proceedings would be prohibitively expensive, the court must consider the financial resources of the claimant, including any financial support received from third parties.
• These cost limits will only apply to claims brought by ‘members of the public’ and local authorities will no longer benefit from PCOs under these provisions.
• If an ‘Aarhus Convention claim’ continues to the appeal stage, an Appeal Court must now make a PCO where proceedings would otherwise be ‘prohibitively expensive’. Previously appeal courts had discretion to make such orders but were not obliged to do so.

The amended Part 45 of the CPR contains information for the Court when deciding what is ‘prohibitively expensive’ and whether the PCO will be limited to £5,000 in the case of an individual, which will need to be considered before a claim is made. This might have the effect of reducing the number of claims but on the other hand the scope of such claims has widened so it is also likely that the number of PCOs may increase.