Automatic cost capping in Aarhus claims post-Venn v Secretary of State for Communities and Local Government  EWCA Civ. 1539
– A review by Dr Ashley Bowes, Guildford Chambers
In April 2013 an amendment to the CPR came into effect which provided that in claims for judicial review which fell within the scope of the Aarhus Convention, a claimant could not be ordered to pay more than a prescribed amount and could not recover more than a prescribed amount, unless they expressly opted-out (CPR r.45.41-43). The amounts were prescribed at para.5.1-5.2 PD45 “Fixed-Costs” as being £5,000 for individual claimants, and in all other cases more than £10,000, as maximum cost liability to other parties in the event of them losing, and £35,000 as maximum cost recovery in the event of them winning.
In Venn, the issue arose as to whether the above costs code applied to a statuary appeal (in that case under s.288 Town and Country Planning Act 1990). Lang J held that (i) the scope of the Convention was wide and covered most planning cases, (ii) the CPR code was deliberately drafted only to extend to judicial reviews, but (iii) the Corner House principles for granting a PCO were relaxed to secure compliance with the Convention.
On appeal, Sullivan LJ giving the judgment of the Court held that:
- the scope of the Convention was very wide and would include most if not all planning challenges (see paras 11-12, 16-18)
- the CPR amendments did not extend to claims beyond judicial review, but that was a breach of the Convention and there should be a legislative correction to secure compliance (see paras.34-35)
- a PCO should only be granted in line with the Corner House principles (save for the Garner modifications to secure compliance with directly effective EIA Directives) the CPR amendments did not change the goal-posts (see para.33).
“The judgment provides useful clarification of the scope of the Convention and gives a firm line on the manner in which the discretion to make a PCO should be exercised post the CPR amendments. It remains to be seen whether the Government will take steps to remedy the breach given the current climate of narrowing challenges to the use of executive power, see for example the Criminal Justice and Court Bill currently emerging from a mauling in the Lords. There also remains uncertainty over whether unincorporated associations (such as residents and action groups) benefit from the £5,000 or the £10,000 cap. In Botley Action Group v Eastleigh BC  EWHC 1982 (Admin.) the £5,000 cap was applied by Lang J on the basis a residents’ group was a collective of individuals bringing the claim together; however, subsequent decisions appear to be rowing back from that line.”
Ashley Bowes has successfully argued the Aarhus Convention (and by continuation the CPR cost cap) applied to a Parish Council challenging the grant of planning permission (R(Ash Parish Council) v Guildford Borough Council  EWHC 3864 (Admin.) and to a residents’ association challenging a decision to deregister common land (R(Tadworth & Walton Residents’ Association) v Secretary of State for the Environment, Food & Rural Affairs (CO/4492/2014) (permission granted by Lang J on 10 November 2014)).