R (Birch) v. Barnsley MBC

Transcript date:

Tuesday, January 26, 2010



High Court

Judgement type:

Costs - PCO


Collins J

Transcript file:

Neutral Citation Number: [2009] EWHC 3561(Admin)
Royal Courts of Justice 
London WC2A 2LL

Friday, 16 October 2009

B e f o r e:





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Mr J HYAM (instructed by Richard Buxton Solicitors) appeared on behalf of the Claimant 
Miss Lisa Busch (instructed by Barnsley Metropolitan District Council) appeared on behalf of the Defendant

J U D G M E N T 
(As approved)

Crown copyright©

1. MR JUSTICE COLLINS: This is a claim for judicial review of a decision by the defendant, Barnsley Council, to grant planning permission for the use of land near Barnsley as a waste composting site. The claimant in fact lives within 100 metres of the boundary of the site in question and was one of a large number of people who objected to the proposed development, the objections being based partly upon traffic considerations in the sense that it would involve the use of narrow rural lanes by heavy goods vehicles. That of course itself is an environmental issue. Also through the spreading of the compost on land which it is said is not a part of the development that required planning permission, but would, as perhaps is common knowledge, be capable of producing an unpleasant situation for those living nearby.

2. There were also issues about the site itself, which is, as I understand it, either next to, or possibly includes, an area designated as a nature conservation site with landscale value and two natural heritage sites, albeit Natural England did not object to the proposal. There were, I am told, some 728 objectors, or objections, but in the end the decision was to grant planning permission.

3. Mr HYAM makes the point that this falls within the Directive resulting from the Aarhus agreement, and, in those circumstances, there is a requirement, as a matter of our law, because that is what Europe has required, that those who wish to challenge on environmental grounds' developments should not be precluded from so doing, if they have a reasonable case to present, by the inability to meet the costs of litigation. This includes not only meeting the costs, but running the risk in our system of having to meet the defendant's costs if they lose. Hence the protective costs order has been developed to deal with that.

4. It has in the Corner House case, which is still binding, been put on a relatively narrow basis in the sense that there is a requirement of a general public interest or importance in the decision in question. An issue is how wide does that general public interest have to be? Certainly Buxton LJ has indicated that it can be local, rather than national. That must be right.

5. Here it is suggested that the claimant cannot show that there is now any wider interest. He is directly affected in the sense that he is within (if I may put it somewhat crudely) "the smelling range of the composting". However, there is no indication, Miss Busch submits, that there are others, albeit they objected at the hearing, who now have an interest. It does not seem to me that that is a conclusion that can properly be reached. The fact is that he has decided that he will risk some degree of financial outlay and there is, as Wyn Williams J has now indicated, an arguable case. I appreciate that he did not give huge encouragement, nonetheless, this is not a case which can be categorised as one which has no merit, or is simply troublesome to the defendants, with no reasonable chance of success.

6. However, the fact that the interest is not as wide as in some cases, and the fact that clearly this claimant has his own interest in pursuing the matter, I am entirely satisfied does not preclude him from a protective costs order. It does mean that one can consider the terms of the order and make one which is less favourable perhaps for him than might otherwise be the case. The evidence before me is that anything in excess of £2,500 liability on him would mean that he is unable to pursue the matter, albeit it is an arguable case. It does not seem to me that it is right for me to seek to go behind that. Indeed Miss Busch recognises that that is the evidence.

7. It seems to me in those circumstances that if I make an order it should be on the basis that if he loses he pays that sum. The question then is whether there should be a reciprocal costs order in case he succeeds. In my judgment there should be in the circumstances of a case such as this. Those representing him have in fact entered into a CFA. That of course would normally give them 100 per cent uplift were they to succeed, I think in the circumstances of a case such as this it is appropriate to say that if there is to be a cap upon his liability, equally there is no good reason why the 100 per cent, or indeed any uplift, should be applied. The solicitors are entitled, of course, to recover their reasonable costs so that they are not out of pocket as a result of agreeing to take on a case such as this. I see no reason in principle why they should not be entitled, in the circumstances, to the normal uplift, which is the benefit of a CFA if success is in the end achieved. I say nothing about the general principle as to 100 per cent uplifts.

8. The question then is what is a reasonable sum? Figures have been put forward on behalf of the claimant which produce a projected sum, this being a one day case, of some £31,000. Miss Busch submits with a rival schedule, which indicates that her client's costs anticipated to amount to no more than about £17,500, that therefore £31,000 is excessive.

9. I bear in mind that usually a claimant incurs greater costs in preparing and presenting a case than a defendant, because of course the claimant has to have carriage of the case and produce the necessary bundles, documents, etc. Nonetheless, it seems to me that the amount claimed, or the amount suggested, is on the high side.

10. What I propose to do in the circumstances is to make a protective costs order. So far as the claimant is concerned, it will be a liability of £2,500 were he to lose. So far as the defendants are concerned, if they have to pay costs it will be ten times that, namely £25,000 as a cap.

11. I appreciate that there is a bit of broad brush in the figures that I have assessed, but that, I am afraid, is somewhat inevitable in the circumstances of cases such as this.

12. MR HYAM: I am grateful. My Lord, then I suppose, I do not want to waste the court's time, there is the issue of the costs of today's application. If you remember how it came before you, it went on the papers before Wyn Williams J.

13. MR JUSTICE COLLINS: I think they should be, should they not, costs of today and costs in the case.

14. MR HYAM: I think so.

15. MR JUSTICE COLLINS: I can reserve them. I think probably they are part of the costs in the case.

16. MR HYAM: I am grateful.