Insight Local Government Lawyer Insight February 2018 17 You will likely have the seen the headlines which accompanied the decision taken by the High Court in September to re-instate fixed costs for disputes in planning environmental cases - overturning rules introduce by the Ministry of Justice in February. To understand the full implications of the ruling, it is important to first understand the background against which the decision is set. From there, we can understand the likely impact of the ruling, and what it will means for disputes in planning and environmental cases going forward. The background Going back to 1 April 2013, we can see that the Civil Procedure Rules were amended to include new rules for claims that fell within the Aarhus Convention. This applied to any claim for judicial review that, in simple terms, engaged environmental matters. The definition of environmental matters within this context was intended to be broad and comprehensive. Moreover, it provided a strong incentive against challenging whether the matter is environmental. If such a challenge was unsuccessful, the defendant would be ordered to pay indemnity costs for having raised the matter (per CPR 45.44). Where the matter was a judicial review that engaged environmental issues, CPR 45.41 provided the claimant with the mechanism to secure a protective costs order. This meant that, even if the claimant lost their claim, they only need to pay £5,000 in costs to the other side, or £10,000 where the claimant was an organisation. In Venn v SSCLG [2013] EWHC 3546 (Admin), it was held that these provisions could be read across to statutory challenges to an Inspector's decision (Pursuant to s.288 of the Town and Country Planning Act 1990). However, they did not apply as a matter of course. The claimant would need to demonstrate that they required the protective costs order in light of their financial resources. These provisions in the CPR had, therefore, acted as a mechanism whereby claimants can pursue judicial reviews, whilst significantly limiting their costs exposure. However, on 28 February 2017, at the behest of the Ministry of Justice, the CPR was amended to soften these provisions through CPR 52.19A. The changes meant that the court had the power to vary the costs cap of £5k or £10k, to a much higher figure depending on the claimant's personal resources and/or access to funds (including from supporters). Accordingly, the previously fixed costs cap became a flexible figure, which could be varied on each occasion. Killian Garvey discusses the recent High Court ruling to re-impose fixed costs for disputes in planning and environmental cases. Access to Justice? What the changes to cost capping in planning and environmental claims really mean