Hemming, R (On the Application Of) v Birmingham City Council

The statutory conditions for costs protection in a litter-abatement complaint are assessed when the complaint is made. The reasonableness inquiry may include pre-litigation conduct, and a judge has a wide margin in evaluating it. Refusing an offered meeting that could disclose the authority’s policy and imminent remedial action may make proceedings unreasonable.

A protective costs order is discretionary. The Aarhus Convention requirement that proceedings be not prohibitively expensive is a factor, not an automatic entitlement. A Convention point first raised on appeal cannot ordinarily obtain relief, and a court should not bypass an express Civil Procedure Rules exclusion of statutory applications.

Mr Hemming complained under section 91(6) of the Environmental Protection Act 1990 about litter and refuse in Birmingham. The Magistrates’ Court dismissed the complaint and refused costs in his favour under section 91(12), while ordering him to pay the council’s costs.

The High Court dismissed his case-stated appeal and refused an application to amend the stated case: [2015] EWHC 1472 (Admin). Mr Hemming renewed his application for permission to appeal, challenging the assessment of reasonable grounds, the refusal to amend, and the absence of Aarhus Convention costs protection.

The renewed application for permission to appeal was refused. The proposed grounds disclosed no arguable error, important point of principle or compelling reason.

1. Reasonable grounds. Section 91(12) focuses on the circumstances when the complaint is made. The first condition was satisfied because the land was then defaced by litter or refuse. The District Judge was nevertheless entitled to find that the second condition was not met. In assessing reasonableness in instituting proceedings, the judge had a wide margin. Refusing the council’s offer of a meeting deprived Mr Hemming of an opportunity to learn about its policy, the reason for the proposed clearance operation and its imminent timing. The conclusion that proceeding without taking that opportunity was unreasonable could not be criticised.
2. Amendment of the stated case. The statutory scheme did not permit an amendment introducing events after 15 May, the date of the complaint. The substantive appeal had also been conceded as inevitable if the amendment was refused.
3. Aarhus Convention. The point had not been raised before the District Judge. In Morgan v Hinton Organics [2009] EWCA Civ 107, that was treated as an insuperable objection, and the first-instance judge was not obliged to consider the Convention of the judge’s own motion. Austin v Miller Argent (South Wales) [2014] EWCA Civ 1012 established that Article 9(4) of the Aarhus Convention was only a factor in deciding whether to make a protective costs order. Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539 further indicated that the deliberate exclusion of statutory appeals and applications from Part 45.41 of the Civil Procedure Rules should not be sidestepped by judicial discretion to give effect to a convention that was not directly effective or incorporated into domestic law.

• Court of Appeal (Civil Division) — refused the renewed application for permission to appeal.
• High Court, Administrative Court, Birmingham — Wilkie J dismissed the case-stated appeal and rejected the application to amend the stated case: [2015] EWHC 1472 (Admin).
• Birmingham Magistrates’ Court — the District Judge dismissed the litter-abatement complaint and made a costs order in favour of Birmingham City Council.