Coedbach Action Team Ltd v Secretary of State for Energy and Climate Change

Access to environmental judicial review under Directive 85/337/EEC depends on the claimant being a member of the public concerned with a sufficient interest or an impaired right. The objective of wide access to justice does not remove that threshold. Whether proceedings are prohibitively expensive is assessed principally by reference to the potential liability of an ordinary member of the relevant public, while permitting some regard to the claimant’s individual circumstances. A protective costs order is generally unnecessary for a private limited company because limited liability can restrict its exposure to adverse costs. The existence of an alternative statutory challenge may also weigh against sufficient interest and the grant of protective costs protection.

The claimant, a private limited company formed to oppose biomass power-station proposals in South Wales, sought judicial review of the defendant’s consent under section 36 of the Electricity Act 1989 and associated deemed planning permission for a Bristol development. It also sought a protective costs order under the environmental access-to-justice provisions of Directive 85/337/EEC, as amended.

The claimant had not participated in the decision-making process concerning the Bristol site. Its interest arose from the possible relevance of that decision to separate planning appeals in which it was an objector. The court considered whether the claimant had a sufficient interest, whether the Directive applied, whether the proceedings were prohibitively expensive, and whether a protective costs order should be made.

1. The protective costs order was refused. The claimant was not a member of the public concerned and did not have a sufficient interest for the purposes of article 10a of Directive 85/337/EEC. Its objects concerned protection of a particular local environment, but it had no direct connection with the decision challenged and had taken no part in the relevant decision-making process.
2. The claimant’s purpose was to prevent the defendant’s decision becoming material to separate planning appeals. The decision could be no more than a material consideration in those appeals and could not bind the appointed inspector as a statement of policy. If the appeals were allowed, the claimant could challenge the resulting decisions under section 288 of the Town and Country Planning Act 1990. That alternative remedy was a relevant factor against sufficient interest and was not illusory merely because the claimant might choose not to retain funds for such a challenge.
3. Because the claimant did not fall within the Directive, the Directive’s requirement that proceedings not be prohibitively expensive did not govern the application. In any event, applying R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006, the assessment was not purely subjective. It required consideration of what would be prohibitively expensive for an ordinary member of the relevant public, with some regard to the particular claimant’s circumstances. The evidence did not establish that the estimated liability was prohibitively expensive.
4. In cases outside the Directive, the principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 applied. The court did not consider it seriously arguable that a claimant lacking sufficient interest under the Directive and for permission, and whose proceedings were not prohibitively expensive, should nevertheless receive a protective costs order.
5. The claimant’s status as a private limited company was an additional factor against making the order. Limited liability could substantially restrict exposure to adverse costs, although security for costs might raise a separate issue in an Aarhus case. The application was therefore refused.