Important changes to costs provisions in Planning challenges

Holmes & Hills' Planning Law solicitors discuss an important change affecting developers, planning consultants and those professionals involved in advising on land and property.

If you are bringing a challenge to planning decisions you should be aware that the government have, on 28th February 2017, made significant changes to costs protection. However, the changes may still be open to challenge and so the position may change. The changes relate to costs provisions in claims that fall under the Aarhus Convention.

Background

The Aarhus Convention was created in order to grant rights to the public for; access to environmental information, participation in the environmental decision-making process and access to environmental justice.

The UK sought to adopt the provisions of the Aarhus Convention in 2005 by way of amendments to Part 45.41 of the Civil Procedure Rules 1998 (“CPR”). This made provision for certain costs protections, by way of limiting the costs a party may be held liable to pay, in claims which fell under the Aarhus Convention. These claims essentially related to a claim for Judicial Review of a public authority’s decision where such claim is based on environmental grounds.  

In 2014 the UK was criticised and ultimately faced with proceedings by the UN for its failure to properly implement the Aarhus Convention. It was found, amongst other things, that the access to environmental justice requirement was not properly implemented as the provisions in the CPR did not ensure that claims were  "not prohibitively expensive".

The current changes

The new changes give the courts greater flexibility in the costs protection that is to be afforded to a party in a claim which falls under the provisions of the Aarhus Convention.

The key aspects of the changes are:

• Appeals under section 289 of the Town and Country Planning Act 1990 (“TCPA”) and section 65(1) Planning (Listed Building and Conservation Areas) Act 1990 (“PLBCAA”) may now be subject to the costs limitations (provided they qualify under article 9(1) and (2) of the Aarhus Convention).
• An Aarhus Convention Claim may be brought by one or more ‘members of the public’.
• If a claimant wishes to rely on the costs limitation regime then a schedule of the claimant’s financial resources, which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth, must be filed and served with the claim form.
• The court may remove the limits on maximum costs liability of any party if it is satisfied that to do so would not make the costs of the proceedings prohibitively expensive for the Claimant.

Comment

By including statutory challenges (under section 289 TCPA and section 65(1) PLBCAA) the provisions are now extend beyond judicial review claims. It is noteworthy that challenges to a Planning Inspector’s appeal decisions for refusal of planning permission (i.e. section 288 TCPA claims) are not specifically mentioned in the new provisions.

Accordingly the scope of Aarhus Claims has been widened and therefore such claims may increase as a consequence.

However, the requirement for financial disclosure may discourage a claimant from seeking costs protection.

• The term ‘members of the public’ is not defined in the amendments but is to be construed in accordance with the Aarhus Convention. This may lead to litigation on the definition of a ‘member of the public’ before more substantial matters in a case are determined. This may bring some uncertainty in the proceedings until there is some judicial authority on the point.
• The requirement for financial disclosure further burdens a claimant in terms of procedural requirements to bring a Aarhus Convention claim.
• The perhaps most pertinent issue is the discretion for courts to remove the limits on costs liability. Previously Aarhus Convention claims would be limited to £5,000 or £10,000 for costs liability of the claimant (depending on whether they were a company or individual) and £35,000 for costs liability for the defendant. Under the new changes the courts can now impose uncapped costs liabilities based on the financial disclosure of a claimant if they are satisfied that it does not make the cost of proceedings ‘prohibitively expensive’.

• The situation of the parties
• Whether the claimant has a reasonable prospect of success
• What is at stake for the claimant
• What is at stake for the environment
• The complexity of the relevant law and procedure
• Whether the claim is frivolous

Such wide discretion ultimately gives rise to uncertainty for both parties as the potential costs liability for the parties is not clear cut from the outset. Prior to the changes the parties knew their costs risk if they were to lose, or the cap on costs recovered should they succeed. It therefore remains to be seen how the most recent changes will effect the number of Aarhus Convention claims that are made and defended.