Appeal judges give 'major boost' to claimants in environmental cases




Solicitor's Journal


Garner - Hampton Court Palace


The Court of Appeal has given claimants in environmental judicial review cases a "major boost" by extending the use of protective costs orders (PCOs).
Keith Garner, an architect, launched a judicial review to challenge planning permission for a mixed-use development on the site of Hampton Court railway station, directly across the river from the royal palace.

Richard Buxton, who runs his own environmental law practice in Cambridge, acted for Garner. He said the ruling would be crucial in improving access to justice for claimants.

"The court is recognising that EU rules require certainty and PCOs will be easier to obtain. It is a major boost for environmental law, from a claimant's point of view.
"PCOs must be granted in all cases involving the EIA [environmental impact assessment] directive and may extend to cases where there are arguments as to whether the directive applies."

Delivering the leading judgment in R (on the application of Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006, Lord Justice Sullivan said Garner had a "long-standing interest" in Hampton Court and had worked for Historic Royal Palaces for ten years.

The architect objected to the scale of the redevelopment of the station site, which included a hotel, flats, an office building and a care home. 
Sullivan LJ said there was no doubt that the EIA directive [83/337/EEC] applied to the case.

As a result, he said that the conditions for PCOs laid down in the leading case of Corner House should be modified "insofar as it is necessary to secure compliance with the directive".
Sullivan LJ rejected the two grounds relied on by Mr Justice Nicol to deny Garner a PCO.

He said that under community law it was a matter of general public importance that environmental decisions subject to the directive were taken in a lawful manner, "and, if there is an issue as to that, the general public interest does require that the issue be resolved in an effective review process".

As a result, he said Nicol J was wrong to reject the appellant's application for a PCO on the basis that the issues raised were not of general public importance.
Lord Justice Sullivan said the second reason why Mr Justice Nicol rejected the PCO was because it was impossible to tell whether the proceedings were ‘prohibitively expensive' without detailed information about the appellants' resources.

He said he would have preferred not to take a decision on "such an important issue of principle" until after the European Commission had decided whether to accept the UK's response to its reasoned opinion of March 2010, in which it accused the UK of failing to comply with the directive.

Sullivan LJ said he was also mindful of a forthcoming Supreme Court ruling on costs in Edwards v the Environment Agency and Others [2006] EWCA Civ 877.
He said that, without the PCO, the costs of an unsuccessful appellant in the case would be prohibitively expensive for anyone of ordinary means. There was no evidence that Buxton's estimate of £60,000 was excessive.

"The more intrusive the investigation into the means of those who seek PCOs and the more detail that is required of them, the more likely it is that there will be a chilling effect on the willingness of ordinary members of the public (who need the protection that a PCO would afford) to challenge the lawfulness of environmental decisions."

Sullivan LJ granted a PCO of £5,000 to the appellants and a PCO to the council, limiting its liability to £35,000. Lord Justices Lloyd and Richards agreed.
The ruling came shortly before the compliance committee for the UN's Aarhus Convention, which aims to guarantees access to justice for environmental litigants, published draft findings on three complaints.

The committee said that by failing to ensure that costs for all court procedures were not prohibitively expensive, "and in particular by the absence of any clear legally binding directions from the legislature or judiciary to this effect", the UK was failing to comply with article 9 of the convention.

"By not having taken the necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement article 9," the committee concluded that the UK was also in breach of article 3.

In a further development, the judicial working group on access to environmental justice, chaired by Lord Justice Sullivan, backed the introduction of one-way costs shifting in favour of claimants, recommended by Lord Justice Jackson.

Sullivan LJ said in an update report that if the Aarhus compliance committee went ahead with its draft guidelines, it was "obvious that tinkering with the protective costs order regime will not be sufficient to address prohibitive costs and secure compliance with Aarhus.

"A radical change in the civil procedure rules is required, one which recognises the public interest nature of environmental claims."