In the recent case of The Newton Mearns Residents Flood Prevention Group for Cheviot Drive v East Renfrewshire Council*, the petitioners for judicial review applied for a protective expenses order (PEO). The petitioners sought reduction of the Council’s decisions to grant planning permission for a housing development and to confirm that a planning condition regarding drainage arrangements was fulfilled. The petitioners were an unincorporated association consisting of members whose property adjoined the development site, who were concerned about the risk of flooding arising from the development.

New rules and EIA development

A PEO is an order granted by the Court that places a limit on the level of fees a challenger will be expected to pay in the event that they lose, whatever challenge they raise.

On 25 March 2013, new Court of Session rules came into force, codifying the procedure on PEOs in environmental appeals and judicial reviews. The new rules are designed to make it more affordable for individuals or organisations promoting environmental protection to challenge decisions by public authorities by introducing, amongst other things, a cap of £5,000 on the applicant's liability in expenses to the respondent.

Importantly, as the housing development concerned was not development requiring environmental impact assessment (EIA), the Council’s decisions were not subject to the public participation provisions of the EIA Directive (and the corresponding case law) and were therefore not subject to the new rules. As such, the case was determined by reference to general principles established by the courts in relation to PEOs rather than under the new rules.

Common Law Principles

The following general principles have been established in relation to the granting of PEOs: 

  • The issues raised must be of general public importance and the public interest requires that those issues be resolved;
  • The applicant must have no private interest in the outcome of the case;
  • The applicant must demonstrate that it is fair to grant the PEO given the resources of the applicant and the respondent public body; and
  • If the PEO is not made, the applicant would probably discontinue the action.

These principles are to be applied “flexibly” in line with more recent case law on PEOs, and in particular, having a private interest does not preclude the granting of a PEO, rather the extent of private interest is a consideration in the overall decision.  

Decision and Implications

In the Newton Mearns case, the judge decided not to grant a PEO. He was of the view that the issue raised was “essentially one of local community interest”, rather than of “general public importance”. The issues were of importance only to a small number of residents next to the development, no important point of law or of principle was raised and there was no large section of the public who may be indirectly affected. As regards the petitioners’ “private interest”, the judge considered that this was highly material to the PEO decision in this case.

Lastly, the judge was entitled to take into account the prospects of success of the judicial review challenge. He was of the view that the petitioners were seeking to challenge the merits of the Council’s decisions rather than raising any issue for judicial review. As such, the petition did not have a real prospect of success, which confirmed the judge’s view that a PEO should not be granted.

This case could discourage applications for PEOs, in particular where the development concerned is not EIA development and the new PEO rules do not apply. The consideration of “general public importance” is useful and may well have relevance south of the border, given that this criterion derives from English case law.