Court of Appeal calls for Parliament to intervene over Aarhus costs confusion

The Court of Appeal has urged Parliament to intervene after identifying a mismatch between the Aarhus Convention - which conferred a number of rights on individuals in relation to the environment - and domestic rules which were supposed to implement it.

In an important decision, the court found itself constrained to remove the protection against potentially heavy legal costs which had earlier been conferred on a woman who objected to a development proposed by her neighbour.

Lord Justice Sullivan said the Court had reached its decision "with reluctance" as it was clear that rules which limited costs protection to judicial review challenges, and excluded statutory planning appeals, were "not compliant" with the convention.

A regime for environmental cases under which costs protection depended not on the nature of the environmental decision reached or legal principles raised, but upon the identity of the decision-maker, was "systematically flawed", said the judge, who was sitting with Lady Justice Gloster and Lord Justice Vos.

However, the court was unable to remedy the flaw in the rules by the exercise of judicial discretion and ruled that that must be a matter for Parliament.

The UK government has previously argued that its system of protective cost orders (PCOs), which limit claimants’ costs should they lose a case, was compliant with the convention.

However, a judgement handed down by the European Court of Justice in February stated that case law on the use of PCOs was contradictory and gave rise to legal uncertainty.

In the Court of Appeal case, Sarah Venn objected when her neighbour was granted permission by a planning inspector to build a single-storey courtyard dwelling in the side garden of her south London home.

She argued the case raised important issues relating to the environmental consequences of 'garden grabbing' and that the inspector had failed to have due regard to local policies.

At a preliminary hearing, a judge granted her a PCO, limiting her potential liability for legal costs to £3,500 in pursuit of her appeal against the inspector's ruling.

In allowing the secretary of state for communities and local government's appeal against the PCO, the court found that the judge had wrongly exercised her discretion.

Under current court rules, Venn's appeal was not an 'Arhus Convention claim' in that it was a statutory appeal, rather than a judicial review challenge.

On the current state of the law, the judge had not been entitled to relax the rules in order to achieve compliance with the convention.

The Secretary of State for Communities and Local Government v Venn. Case Number: C1/2013/3555

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