The Secretary of State for Communities and Local Government v Venn

A statutory planning challenge may fall within Article 9(3) of the Aarhus Convention where it alleges a failure to give effect to environmental planning policy. National law relating to the environment includes the statutory and policy framework through which environmental protection is secured.

However, where CPR 45.41 deliberately confines automatic costs protection to judicial review claims, the court cannot use its protective-costs-order discretion to extend that regime to statutory applications. This remains so even if the resulting exclusion is incompatible with Aarhus requirements. Legislative action, rather than judicial discretion, is required to cure that defect.

The claimant, a neighbour of a proposed dwelling, brought a statutory challenge under section 288 of the Town and Country Planning Act 1990 to an inspector’s grant of planning permission. She alleged, among other matters, that emerging local planning policy restricting garden development had not been taken into account.

Lang J held that the challenge fell within Article 9(3) of the Aarhus Convention. Although it was not an Aarhus Convention claim within CPR 45.41, she granted a protective costs order after relaxing the Corner House criteria: [2013] EWHC 3546 (Admin).

The Secretary of State appealed. The central issues were whether the statutory challenge fell within Article 9(3), and whether a protective costs order could be granted despite the deliberate exclusion of statutory applications from CPR 45.41.

Appeal allowed. Lord Justice Sullivan gave the judgment, with which Lady Justice Gloster and Lord Justice Vos agreed.

1. The claimant’s section 288 application fell within Article 9(3) of the Aarhus Convention. In the United Kingdom, environmental protection is substantially implemented through the planning system. The statutory requirements for environmental policies to be prepared, considered and, in some circumstances, followed form part of national law relating to the environment. A challenge alleging failure to take such policy into account could therefore engage Article 9(3).

2. CPR 45.41 plainly and deliberately confined its costs protection to judicial review claims. It did not extend to statutory appeals or applications, including a section 288 application. The court retained a discretion to grant a protective costs order, but that discretion had to be exercised under the established Corner House principles, subject to any modification required by a directly effective EU environmental directive.

3. No such directive applied. The court could not use its discretion to circumvent the restriction imposed by CPR 45.41 in order to give domestic effect to Article 9(3), which was not directly enforceable and had not been incorporated into domestic law. A claimant’s private interest was not an automatic bar to a protective costs order, but remained relevant to discretion.

4. The court accepted that limiting costs protection by reference to the identity of the decision-maker, rather than the nature of the environmental challenge, was systemically incompatible with Aarhus requirements. Nonetheless, that defect could be remedied only by legislation. The protective costs order granted below could not stand.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and held that the protective costs order could not be granted: [2014] EWCA Civ 1539.
• High Court, Administrative Court: Lang J held that the section 288 challenge fell within Article 9(3) of the Aarhus Convention and granted a protective costs order: [2013] EWHC 3546 (Admin).