Coming into force today (the 28th February 2017) the Government has made important changes to the circumstances in which those seeking to challenge planning decisions can obtain protection against paying the defendant's costs if they are unsuccessful.
The normal rule in litigation is that the losing party pays the winner's costs. However in 2013 the Government changed the rules for those seeking to bring a judicial review of certain environmental decisions. Since 2013 if a Claimant sought to bring a challenge which fell within the scope of the Aarhus Convention they were entitled (unless they opted out) to limit the costs they would be obliged to pay the other side to £5,000 if they were an individual or £10,000 if they were an organisation. The costs the Defendant would be ordered to pay if they were unsuccessful were limited to £35,000. The Courts accepted that the types of claims likely to be covered by these provisions were broad: Venn v SSCLG  EWCA Civ 1539.
The Government has now brought in a number of changes to those rules. The first is that in so far as the challenge is within the scope of article 9(1) and (2) of the Aarhus convention, the costs limitations now apply to challenges under section 289 of the Town and Country Planning Act 1990 and section 65(1) of the Planning (Listed Building and Conservation Areas) Act 1990. As before it does not appear that the provisions apply to challenges under section 288 of the Town and Country Planning Act 1990.
The second change is that in order for the rules to apply the Claimant must be a 'member of the public'. The new rules do not define who is to be considered a 'member of the public' but state that 'references to members of the public are to be construed in accordance with the Aarhus Convention'. 'Member of the public' is not specifically defined in the Aarhus Convention, but 'public' is defined as "one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups" and 'public concerned' is defined as 'the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.' This suggests that 'member of the public' is likely to be broadly interpreted.
The third, and more substantial change, is that in order to bring themselves within the costs protection rules a Claimant will have to submit with the claim form "a schedule of the claimant's financial resources which takes into account any financial support which any person has provided or is likely to provide to the claimant and which is verified by a statement of truth". In other words a Claimant will now have to provide to the Court evidence about their financial means.
Finally, the Court will now take into account the evidence of financial means, the importance of the case and whether it can be regarded as frivolous. The starting point for an Aarhus Convention case as before is that costs a Claimant pays are capped at £5,000/£10,000 with costs they can receive from the Defendant capped at £35,000. However the Court may now vary those amounts if they are satisfied proceedings would not be prohibitively expensive for the Claimant. In deciding whether proceedings are prohibitively expensive the Court will have regard to whether the proceedings exceed the financial resources of the Claimant and whether they are objectively reasonable having regard to a range of factors including the importance of what is at stake for the Claimant and for the environment, and whether the claim is frivolous.
It should be noted that these rule changes are subject to a legal challenge.
How might these changes affect me?
- Those seeking to bring claims will now need to provide detailed financial information;
- Claimants may find they have limited or no costs protection which is likely to reduce the number of claims brought;
- There is likely to be further litigation on what constitutes a 'member of the public';
- Those seeking to defend claims should carefully scrutinise financial information provided and the merits of and importance of the claim to see if they can argue for a raising of the standard amount of costs protection;
- Defendants may find that in some circumstances they are ordered to pay more than £35,000 of the Claimant's costs in the event the claim succeeds.
Members of the Cornerstone Planning Team will be happy to advise further on how these changes may affect you. For more information contact firstname.lastname@example.org or call 020 7242 4986.