The PCO regime and s. 288

Jon Darby examines the Court of Appeal’s ruling in a case where the Communities Secretary sought to appeal the granting of a protective costs order for a claimant in respect of her application for a quashing order under s. 288 of the Town and Country Planning Act 1990.

Previously, in Venn v Secretary of State for Communities and Local Government [2013] EWHC 3546 (Admin), Mrs Justice Lang had held that CPR rule 45.43 was limited to judicial review proceedings only. In distinguishing between section 288 applications and judicial review claims, she had noted that although “applications under section 288 frequently raise the same public law issues as in judicial review claims, the wording of CPR 45.41 refers to ‘claims’ not ‘issues’”.

Whilst agreeing that it “seems inconsistent” to exclude section 288 claims from costs protection it was nevertheless acknowledged that “there has been no ruling in the EU or UK courts that their exclusion from CPR 45 is unlawful”. Notwithstanding, Mrs Justice Lang held that the “inherent jurisdiction of the court to grant protective costs orders” and a consequential relaxation of the Corner House criteria in relation to environmental claims would enable the court to give effect to the requirements of the Convention.

She then adopted the approach in R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006 and [2011] EWCA Civ 891), and “treated the public importance and public interest criteria for making a protective costs order as met” because the claim raised “environmental matters within the scope of the Convention”.

In its recent judgment in Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539, the Court of Appeal confirmed that the Convention definition of environmental information is sufficiently broad to catch most planning matters, including section 288 applications. Therefore, such challenges fall within Article 9(3) of the Aarhus Convention and require access to a judicial procedure that is not prohibitively expensive.

However, the Court of Appeal also held that CPR 45.41 is clearly worded and specifically confined to claims for judicial review. Further, the court held that it could not exercise its discretion to make a PCO under Corner House principles because the exclusion of statutory appeals and applications from CPR 45.41 was a deliberative expression of legislative intent, which it would be inappropriate to circumvent.

In light of the above, the present costs protection regime is flawed in that the identity of the decision-taker is of greater significance than the decision itself. The Court of Appeal indicated that such a system is “systemically flawed” in terms of Aarhus compliance. Following the clear steer provided by the Court of Appeal it would be surprising if the Government’s ongoing review of the costs regime in environmental cases does not explicitly consider whether provision ought properly to be made for statutory challenges.

Jon Darby is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..