Before : THE HONOURABLE MRS JUSTICE LANG DBE Between :

Transcription

1 Neutral Citation Number: [2013] EWHC 3546 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No: CO/6859/2013 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/11/2013 Before : THE HONOURABLE MRS JUSTICE LANG DBE Between : SARAH LOUISE VENN - and - (1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (2) ROBERT DOS SANTOS (3) LONDON BOROUGH OF LEWISHAM Claimant Defendants Mr C. Jacobs (direct access) for the Claimant Mr A. Deakin (instructed by the Treasury Solicitor) for the First Defendant The Second and Third Defendants did not appear Hearing date: 7 th November Approved Judgment

2 Mrs Justice Lang : 1. The Claimant applied for a costs protection order in respect of her application under section 288, Town and Country Planning Act 1990 to quash a grant of planning permission by an Inspector appointed by the Secretary of state. 2. On 25 th April 2013, the Inspector allowed an appeal by the Second Defendant, against the refusal of planning permission by the Third Defendant. He was granted planning permission to build a new house in the garden of a Victorian terrace house at 47 Dundalk Road London SE4. 3. The Claimant lives next door, at 49a Dundalk Road, and was very concerned about the loss of green space and the impact of the proposed development on the enjoyment of her home. 4. She has identified a number of grounds for legal challenge to the inspector s decision, which may be summarised as follows: a) The Inspector erred in failing to adequately consider and address the Third Defendant s Development Management Local Plan Policy no. 32 against residential development on garden land, supported by the National Policy Planning Framework, paragraphs 53 and 216, and the Mayor of London s Supplementary Planning Guidance. b) The Inspector erred in failing to consider adequately the relevant minimum separate distance of 21 metres and 9 metres as set out in the Third Defendant s Residual Standards Supplementary Planning Document. c) The Inspector failed to address the topography issues. d) There was procedural unfairness. Issues 5. The Claimant submitted she was entitled to costs protection on the grounds that: a) her claim was an Aarhus Convention claim; b) it fell within the scope of the costs protection provided by CPR 45.41; c) alternatively, the court should exercise its inherent jurisdiction to make a costs protection order, on the basis that this was an environmental/ Aarhus Convention claim; d) because of her limited means, the cap should be In response, the Secretary of State submitted: a) her claim was not an Aarhus Convention claim; b) it fell outside the scope of the costs protection provided by CPR because (a) it was not an Aarhus Convention claim and (b) it was not a claim for judicial review; c) the court s inherent jurisdiction to make a costs protection order could only be made on the criteria set out in R (Corner House Research) v. Secretary of State for Trade & Industry [2005] 1 WLR 2600, which she could not fulfil; d) even if her claim was under the Aarhus Convention, it should not benefit from any relaxation of the Corner House principles for environmental claims

3 because it did not come within the scope of the Directives implementing the Aaarhus Convention into EU or UK law; e) alternatively, any cap should be no lower than 5,000. Aaarhus Convention 7. The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aaarhus Convention ) was adopted on 25 th June 1998 and came into force on 30 th October The UK was an initial signatory and ratified the Convention in 2005, as did the European Community. 8. Art. 1 provides that, in order to contribute to the protection of the right of every person to live in an adequate environment, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention. 9. Art. 9 requires access to review procedures in respect of the acts and omissions of public authorities concerning national law relating to the environment. The review procedures must be adequate and effective, fair, timely and not prohibitively expensive. 10. The Claimant submitted that her claim was concerned with environmental matters, within the meaning of Art. 1. The Secretary of State submitted that the grounds upon which her claim was brought were small-scale planning challenges, not environmental matters. No environmental policies were under challenge. Therefore her claim fell outside the Aarhus Convention. 11. The term environmental matters in Art. 1 of the Aarhus Convention is not defined. However, the definition of environmental information in Art. 2.3 is an indication of the intended ambit of the term environmental. In reaching this conclusion, I have been assisted by the Aarhus Convention: An Implementation Guide (2013) which states: The Aarhus Convention does not contain a definition of environment. Article 2, paragraph 3, is therefore important, not only for its obvious relation to the Convention s provisions concerning information, but also because it is the closest that the Convention comes to providing a definition of the scope of the environment. It is logical to interpret the scope of the terms environment and environmental accordingly in reference to the detailed definition of environmental information wherever these terms are used in other provisions of the Convention. Article 2, paragraph 3, does not attempt to define environmental information in an exhaustive manner but rather breaks down its scope into three categories and within each category provides an illustrative list. These lists are likewise non-exhaustive, and so they require a degree of interpretation on the part of authorities in a given case. The clear intention of the drafters, however, was to craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation.

4 12. The definition of Environmental information in Art. 2.3 provides: Environmental information means any information in written, visual, aural, electronic or any other material form on: (a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms and the interaction among these elements. (b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environment decision-making; (c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above. 13. The Implementation Guide gives extensive guidance on the scope of this definition. In relation to Art. 2.3(a), the following passages are material: The Convention lists examples to illustrate what is meant by elements of the environment. The elements in this nonexhaustive list include air and atmosphere, water, soil, land, landscape and natural sites, and biological diversity and its components, including genetically modified organisms. Some of these terms have common sense definitions and it is not necessary to develop technical definitions. However, it is worth noting that some international agreements may be relevant in delineating the scope of the elements of the environment. For example, with respect to air and atmosphere, it may be useful to compare the definition of ambient air found in EU Directive 2008/50/EC on ambient air quality and cleaner air for Europe. The Directive defines ambient air as outdoor air in the stratosphere, excluding work places. By implication, the Aarhus Convention s definition, which is broader, invites Parties to include both indoor and workplace air as well as all levels of the atmosphere. Furthermore, soil, land, landscape and natural sites are grouped together under the Convention to ensure a broad application and scope. The whole complex of these descriptive terms might be used in connection with, for example, natural resources, territory and protected areas. Natural sites may refer to any objects of nature that are of specific value, including not only officially designated protected areas, but also, for example, a forest, a tree, or a park

5 that is of localized significance, having special natural, historic or cultural value. Landscape and natural site protection have become important elements in conservation for many reasons, including aesthetic appeal, protection of unique historical or cultural areas, or preservation of traditional uses of land. Biological diversity and its components, including genetically modified organisms requires a more complex explanation. Article 2 of the CBD gives the following definition of biological diversity: the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems. Biodiversity includes, but is not limited to, ecosystem diversity, species diversity and genetic diversity. In addition, tangible entities identifiable as a specific ecosystem (a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit) are considered components of biodiversity. 14. The Implementation Guide includes the following guidance in relation to the definition in Art. 2.3(c): The Convention takes note of the fact that the human environment, including human health and safety, cultural sites, and other aspects of the built environment, tends to be affected by the same activities that affect the natural environment. They are explicitly included here to the extent that they are or may be affected by the elements of the environment, or by the factors, activities or measures outlined in subparagraph (b). The Convention requires a link between information on human health and safety, conditions of human life, etc., and the elements, factors, activities or measures described in subparagraphs (a) and (b), in order to impose a reasonable limit on the vast kinds of human health and safety information potentially covered In my judgment, there is a distinction between pure planning issues and environmental issues. Not every planning decision will engage environmental matters falling within the Convention, even taking into account the broad meaning given to environmental matters in the Convention. 16. In the Claimant s challenge, some of the issues are pure planning, not environmental. But I have concluded that her first ground, which relates to the failure to apply Lewisham and London-wide policies on protecting gardens from development, does raise environmental matters, within the meaning of the Convention. 17. The environmental matters are best described in the evidence from the Royal Horticultural Society: The Royal Horticultural Society (RHS), the UK s leading horticultural charity, is opposed to the threat and practise of

6 land-infilling between properties through development, a practise that it widely known as garden-grabbing. The RHS fully supported the decision of the Government in June 2010 to reclassify gardens from brownfield sites and to afford them some protection from this practise. However, the launch of the National Planning Policy Framework in March 2012 with its emphasis in favour of sustainable development has again seen cases that would constitute garden growing come before town planners. This is of considerable concern to the RHS which represents over 411,000 members of the gardening public and so is well placed to recognise the potential negative ramifications for the UK s 22.5 million gardeners. About a quarter of all the land in the towns and cities in gardens. This means they make a significant contribution to the places where nearly 90 percent of us live. Yet exemplar studies in London have shown that hard surfaces have increased 26 percent from their coverage. Correspondingly vegetation has been reduced by 3000ha in London alone, a 12 percent drop. Pressures such as garden grabbing and the paving of front gardens have added and continue to add to this depletion. It is too simplistic to take each garden grab on a case-by-case basis. It is known that considerable changes in vegetation cover can happen where a consistent overview is not taken and consistent policy employed. Private gardens perform considerable social, environmental and ecosystem services that should not be taken for granted, particularly in built-up urban areas where green space is a dwindling resource. Specifically, gardens provide: - Urban drainage and localised flood mitigation - Climate change resilience in the urban environment - Reduced heat loss from buildings in towns and cities during winter and reduction of the urban heat island effect primarily in summer - Localised air quality improvement - Space for nature (plants and animals, including bees and other pollinators) - Social value of green space (sense of local identity; encouragement of green space for children to play and discover nature)

7 - Support for human health and well-being 18. The evidence from the RHS then goes on to consider in detail the following topics: Reducing the risk of flooding Cooling Urban Areas Reducing air pollution Supporting bio-diversity Supporting health and well-being 19. Evidence from the London Wildlife Trust expressed the view that the proposed development would result in the loss of garden habitat. Evidence from the Campaign to Protect Rural England objected to the proposed development on the grounds that the increasing tendency to build on garden land was detrimental to urban living where quality of amenities, including green space and open land are at a premium and should be retained in line with existing planning policies. 20. The Claimant quoted a number of statements from informed sources to demonstrate the public interest in the issue of building in gardens. One of these was from a 2010 briefing by the Town and Country Planning Association, which stated: The cumulative impact of garden developments on open space: The sporadic nature of garden developments means that local planning authorities have no clear understanding of the cumulative effect that this process has on the social or physical environment, nor of the resultant future sustainability implications. Protecting urban back gardens from development is an issue that expands beyond the development management function of the town and country planning system. The primary concern is the proportion of minor redevelopment on sites of less than five hectares (i.e. on urban back gardens and small plots of land). The impact of the loss of viable and properly planned networks of urban green infrastructure (made up of strategic and small-scale plots of open space) on the resilience of the built environment to climate change will be profound In densely populated urban areas, gardens can contribute to collective and effective action to adapt to climate change. Their wider social and environmental benefits should not be underestimated. 21. I do not accept the Secretary of State s contention that these environmental matters were not in issue in this particular case because the policy on development in gardens was settled and not challenged by the Claimant. Art. 9.3 of the Convention requires that: members of the public have access to administrative or judicial procedures to challenge acts and omissions by private

8 persons and public authorities which contravene provisions of its national law relating to the environment. 22. Here the Claimant contends that a public authority, namely, the Inspector appointed by the Secretary of State, has made a decision without proper regard to the local plan. Under domestic law, the determination of an application for planning permission, and any appeal, is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) Planning and Compulsory Purchase Act 2004, read together with sections 70(2), 77, 78 TCPA In Tesco Stores Limited v Dundee City Council [2012] UKSC 13, the Supreme Court held that a planning authority must proceed upon a proper understanding of the development plan and only depart from it for good reason. 23. The Claimant also contended that the Inspector failed to have proper regard to the London plan and national policy in the NPPF. These were both material considerations to which the Inspector had to have regard. 24. In my judgment, if her claim succeeds on these grounds, the Inspector would have acted contrary to the statutory duties in the TCPA 1990 and the principles of public law, resulting in a failure to have proper regard to the relevant policies protecting the environment. This would amount to a contravention of national law relating to the environment, within the meaning of Art. 9.3 of the Convention. CPR Rule CPR Rule provides: (1) This Section provides for the costs which are to be recoverable between the parties in Aarhus Convention claims. (2) In this Section, Aarhus Convention claim means a claim for judicial review of a decision, act or omission all or part of which is subject to the provision of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998, including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject. 26. Under Rule 45.43, a party to an Aarhus Convention claim, as defined in Rule 45.41, may not be ordered to pay costs exceeding the amount prescribed in Practice Direction 45 (currently 5000 for individuals). 27. I accept the Secretary of State s submission that this claim falls outside the costs protection provided by CPR as the rule clearly states that it applies to a claim for judicial review. Although applications under section 288 frequently raise the same public law issues as in judicial review claims, the wording of CPR refers to claims not issues. A claim for judicial review is made under section 31, Senior Courts Act 1981 and CPR Part 54. In contrast, this was a statutory application to quash made under section 288, TCPA 1990 and CPR Part 8.

9 28. It is instructive to contrast the wording of CPR with that in paragraph 19(1) of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 which expressly broadens the definition of judicial review to include statutory applications which apply judicial review principles. It provides: judicial review means (a) the procedure on an application for judicial review (see section 31 of the Senior Courts Act 1981) but not including the procedure after the application is treated under rules of court as if it were not such an application, and (b) any procedure in which a court, tribunal or other person mentioned in Part 3 of this Schedule is required by an enactment to make a decision applying the principles that are applied by the court on an application for judicial review. 29. Applications under section 288 TCPA 1990 come within the category at sub paragraph (b) of paragraph 19(10). It would require an express provision in the CPR, comparable to paragraph 19(10) to bring section 288 applications within the meaning of claims for judicial review in CPR It is apparent that the Ministry of Justice did not intend statutory applications to be covered by CPR The Ministry of Justice s formal response to the consultation Costs Protection for Litigants in Environmental Judicial Review Claims (28 th August 2012), stated at paragraphs 11 and 12: The Government also recognises that there are some concerns about costs in statutory procedures of various kinds (including some statutory appeal and statutory review procedures). However, further work is needed to identify whether and, if so, how and to what extent these procedures fall within the scope of the Convention and to identify whether the above approach is the appropriate way forward and, if so, what the impacts might be (having regard, for example, to the fact that the permission filter of judicial review is absent in such cases, and that they may involve appeals by developers as well as members of the public or NGOs). The issues surrounding what application the Convention might have in private law cases in particular are potentially more complex, since (as Lord Justice Jackson indicated in his review) costs protection for one party would potentially have a serious impact on the other party, who might well have very limited resources also. The Government is therefore looking into these issues and, where necessary, will bring forward proposals separately, so as not to delay establishment of the scheme for environment judicial review cases. 31. The Claimant referred to a letter from Friends of the Earth dated 18 th October 2013 pointing out that the European Commission has commenced infringement

10 proceedings against the UK in respect of its implementation of the Convention and that the Advocate General s opinion had concluded that the UK had failed to implement Directive 2003/35/EC (Commission v. UK, Case C-530/11). The Claimant submitted that, applying the principles established in Marleasing [1990] ECR , I should adopt a purposive construction of the CPR so as to include applications under section I reject this submission. Although I agree that it seems inconsistent to exclude section 288 claims from costs protection, there has been no ruling in the EU or UK courts that their exclusion from CPR 45 is unlawful. Moreover, the Directives which are the subject of Commission v. UK are not in play in the Claimant s case. Aarhus Convention procedural protection has been incorporated into various EU directives: the public participation directive, 2005/35/EC; the EIA directive, 85/337/EEC and the integrated pollution prevention and control directive, 2008/1/EC. None of these are relied upon by the Claimant. In the light of the clear wording of CPR 45.41, limiting it to claims for judicial review, I am unable to extend it to s.288 applications. The inherent jurisdiction of the court to grant protective costs orders provides an alternative means of giving effect to the UK s obligations under the Convention. Protective Costs Order 33. The criteria for the grant of a protective costs order set out in R (Corner House Research) v. Secretary of State for Trade & Industry [2005] 1 WLR 2600 were as follows: a) the issues raised are of general public importance; b) the public interest requires that those issues should be resolved; c) the claimant has no private interest in the outcome of the case; d) having regard to the financial resources of the parties, it is fair and just to make the order; e) if the order is not made the claimant will probably discontinue the proceedings. 34. Subsequent cases, which were helpfully reviewed in Morgan & Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, have relaxed the third criterion of no private interest. This is now a factor to take into account, but not decisive. Mr Edis acknowledged that since only a person aggrieved could bring an application under section 288, TCPA 1990, this criterion could never be fulfilled in such cases, and therefore should be accorded little weight. 35. The Corner House criteria have been modified in relation to environmental claims in R (Garner) v Elmbridge BC [2010] EWCA Civ 1006; [2011] 3 All ER 418 and R (Buglife) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209 to take account of the Aarhus Convention procedural rights. The public importance and the public interest criteria will be treated as satisfied in an Aarhus Convention claim. Nonetheless, these criteria have been the subject of criticism by

11 Advocate General Kokott in European Commission v UK Case C-530/11, on the grounds that they remain too restrictive in environmental claims. 36. In Garner and Buglife, the claims involved alleged breaches of Directives in which the Aarhus Convention rights had been implemented into EU and UK law. In this case, the Claimant was unable to point to any Directive which she could rely upon. As the Supreme Court held in Walton v Scottish Ministers [2012] UKSC 44, at [100], the Aarhus Convention is not part of UK domestic law, except where incorporated through European Directives. Nevertheless, I consider that since it is an international convention to which the UK is a signatory, UK law should be interpreted and applied in harmony with its provisions where possible. Accordingly, I conclude that the Corner House criteria should be relaxed to give effect to the requirements of the Aarhus Convention. Adopting the approach in Garner, I treat the public importance and public interest criteria for making a protective costs order as met because the claim raises environmental matters within the scope of the Convention. 37. Art. 9.4 of the Convention requires that access to justice shall not be prohibitively expensive. This provision was recently considered by the European Court of Justice in Edwards v Environment Agency [2013] 1 WLR 2914 which held that the costs of proceedings must neither exceed the financial resources of the person concerned, nor appear to be objectively unreasonable. In making its assessment, the Court must consider the situation of the parties; what is at stake for the claimant and the protection of the environment; whether the claimant has a reasonable prospect of success; the complexity of the relevant law and procedure; and the existence of a national legal aid scheme or costs protection scheme. The fact that a claimant has not been deterred from asserting his claim is not of itself sufficient to establish that the proceedings are not prohibitively expensive for him. 38. No costs estimate or schedule was available, but from my experience of making costs rulings in other section 288 claims, I am satisfied that the costs claims routinely made by the Secretary of State are not objectively unreasonable, and are modest in comparison with claims made by private parties. The case should last one day, assuming that the developer also appears. I would expect the Secretary of State s costs to be between 7,500 and 10,000 inclusive of VAT for the section 288 application (excluding the costs of resisting the protective costs order). 39. The position of the Secretary of State is that he is fully funded from public funds; he cannot avoid incurring legal costs unless he concedes the claim; and any costs not recovered from the Claimant will have to be met by the taxpayer. 40. The Claimant s claim is plainly not frivolous, and it appears arguable. It is of the highest importance to her personally. She is currently unemployed and her sole income is Job Seekers Allowance, in the sum of She owns her own home, valued at about 200,000, and has an outstanding mortgage of She owes her parents 60,000 which they lent her to enable her to pay off a high interest mortgage. Her parents are not wealthy. She is ineligible for legal aid, because of the equity in her home. She is unable to pay for her own legal representation, and her counsel is acting pro bono, at the request of the Bar Pro Bono Unit, without a solicitor. She has to meet expenses such as court fees and the cost of paper and photocopying.

12 41. In order to pay the Secretary of State s costs, I consider that the Claimant would have to take out a loan using her house as collateral, but as her income is so low, she would have difficulty in securing or servicing a large loan. There was no evidence that her parents would be willing or able to lend her more money or act as guarantors, but I cannot rule this out as a possibility. She claims she would be unable to go on with the application without costs protection; this may or may not be so. 42. It was suggested that the Court should hear adjourn to a further hearing to hear oral evidence on her financial position and/or order further disclosure. I have already received a witness statement together with financial documents. Given that this is a straightforward one day case, I considered that it would be contrary to the overriding objective to spend further time and money on disputing the protective costs order. It was unusual that this application had proceeded straight to an oral hearing as these applications are usually determined on the papers. 43. Taking into account all the factors identified in Edwards, and doing the best I can on the information before me, I consider that it would be prohibitively expensive for her to raise more than 3,500 and so I order that her total liability to pay costs to the Secretary of State, and any other Defendant who appears, will be capped at 3, The Second and Third Defendants have chosen not to make any response to the Claimant s application for a protective costs order, but they have liberty to apply to vary or discharge this order in so far as it relates to their costs.