The costs protection regime introduced by CPR 45.41 is not compliant with the UN environmental justice convention, Aarhus, because it is confined to applications for judicial review, and excludes statutory appeals and applications, the Court of Appeal declared yesterday.
Giving the court’s ruling, Lord Justice Sullivan said that “a costs regime for environmental cases falling within Aarhus under which costs protection depends not on the nature of the environmental decision or the legal principles upon which it may be challenged, but upon the identity of the decision-taker, is systemically flawed in terms of Aarhus compliance”.
In The Secretary of State for Communities and Local Government v Venn  EWCA Civ 1539 , the High Court had granted the claimant a protective costs order (PCO) limiting her liability to pay adverse costs to £3,500 in challenging a planning decision under section 288 of the Town and Country Planning Act 1990.
The High Court had ruled that it was not an ‘Aarhus Convention claim’ for the purposes of CPR 45.41 – which introduced PCOs for such claims – because under the rule costs protection was confined to claims for judicial review; the claimant’s section 288 application was a statutory application to quash, albeit that it would be determined on the basis of the legal principles that are applicable to judicial review claims.
Nonetheless, Mrs Justice Lang decided to exercise the court’s discretion to make a PCO because “the Corner House criteria [which set out the guidelines for making a PCO] should be relaxed to give effect to the requirements of the Aarhus Convention.” The government appealed.
It accepted before the Court of Appeal that whether costs protection was available under CPR 45.41 would, in many cases, depend solely upon the identify of the decision-taker, and that there was no principled basis for that distinction if the object of the costs protection regime was to secure compliance with the UK’s obligations under Aarhus.
Sullivan J reluctantly allowed the appeal, saying that as the exclusion of statutory appeals and applications from CPR 45.41 was not an oversight, “but was a deliberate expression of a legislative intent”, judicial discretion could not be used “to side-step the limitation (to applications for judicial review) that has been deliberately imposed by secondary legislation”.
He added: “It would be doubly inappropriate to exercise the discretion for the purpose of giving effect under domestic law to the requirements of an international convention which, while it is an integral part of the legal order of the EU, is not directly effective… and which has not been incorporated into UK domestic law.”
Given this and other decisions, “it is now clear that the costs protection regime introduced by CPR 45.41 is not Aarhus compliant”, a problem which needed to remedied through legislation, he said.
Sullivan J added: “We were told that the government is reviewing the current costs regime in environmental cases, and that as part of that review the government will consider whether the current costs regime for Aarhus claims should make provision for statutory review proceedings dealing with environmental matters… That review will be able to take our conclusions in this appeal.”