In the last issue of the newsletter we examined the recent decision of the High Court in R (oao Peter Gibson) v Harrow LBC and Parish of St George Headstone [2013] EWHC 3449 (Admin) where the court was faced with a judicial review of a planning permission granted by the London Borough of Harrow where a local resident argued that the decision was flawed because of alleged failures to screen the development for EIA purposes and to place a copy of an earlier screening decision on the planning register. Whilst the claim was dismissed in strident terms there is another feature of this case that warrants attention because of the potential injustice that can result from the application of the Protective Costs Order regime (and by necessary extension the new Aarhus Convention costs protection in CPR Rule 45.41).

In Gibson the claimant was granted a Protective Costs Order of £2,500. The claimant had taken no active part in opposing the development prior to the application for judicial review. The basis for the Order was that the claim allegedly involved a potential breach of EU EIA law. However when the case came before the court is was clear that there had been no breach of EU law involved. The only failing on the part of the local planning authority had been in relation to the domestic regulations governing the procedure for placing screening opinions on the planning register. The requirement in the regulations goes further than the requirements of the EIA Directive. The other grounds of challenge were purely domestic planning law grounds attacking the reasoning in the officer’s report.

In common with many judicial review applications, the Interested Party felt compelled to participate in order to protect its hard won planning permission (a battle that had included two planning appeals and a village green inquiry). In this case, the Interested Party was not a commercial developer but the local church, a charity, that wished to raise funds for works to the church by selling a redundant private sports field for development for a modest amount of residential development (including a sizeable proportion of affordable homes) and the provision of a new area of public open space. Its funds were limited.

In costs terms the outcome has been dramatic. The claimant, despite having his claim comprehensively dismissed, was only liable to pay £2,500 towards the costs of the local planning authority and nothing towards those of the Interested Party whereas their combined costs ran into tens of thousands of pounds. Thus, the public purse and a charity have been left seriously out of pocket as a result. It is arguable that in the rush on the part of the courts and the government to comply with the Aarhus Convention the pendulum has swung in completely the opposite direction and removed one injustice and simply replaced it with another.

In JB Trustees, Phillip Jeans and Sandra Jean v Secretary of State & Dennis Jeans Development Ltd [2013] EWHC 3555 (Admin) (also reported in this Newsletter) the costs outcome was equally dramatic for the third defendant developer. Here, following the principles set out in the case of Bolton MBC v Secretary of State for the Environment (No.2) [1995] 1 WLR 1176, the issue was whether the developer was, strictly, able to show there had been a separate issue or an interest requiring separate representation to be awarded its costs (see White Book Practice Note 48.14.6). The claimant had been warned by the third defendant’s solicitors at the outset that it did not have legal standing (on which it failed as a primary point of Lindblom J’s judgment). Due to deficiencies in the claimant’s supporting evidence to the section 288 challenge the third defendant had been obliged to place a number of key missing documents before the Court and prepare and file several witness statements. It had also had to ensure that an attempt by the claimant to have the section 288 proceedings adjourned in advance of the hearing (before Lindblom J) was successfully resisted. Even the judge had remarked on the “abnormal history” of the case, that it had been purely tactical and that it had been without merit. Nonetheless, he still found that the Bolton (No.2) “principles” had not been met. While the developer’s involvement had been of assistance to the Court, the Judge took the firm line that the developer should not be awarded any of its costs. Given that the third defendant was, essentially, a private individual, experiencing the stress and uncertainty of litigation involving a family member over some 12 months, that he was unable to gain the benefit of a valuable, hard- won planning permission, and that he had been obliged to incur legal costs running into many thousands of pounds simply to protect his position it could be thought that another injustice has resulted.

In conclusion, if “justice delayed is justice denied” then, with these types of contests, arguably, justice not seen (through a second costs award) is also justice denied.