Test of prohibitive expense
It may seem odd to start an update with a judgment on a preliminary application on costs, but, for practitioners, R (Garner) v Elmbridge Borough Council  EWCA Civ 1006 may have a far-reaching influence. The Court of Appeal granted an appeal against a prior refusal of a protective costs order (PCO) in favour of the claimant, who was challenging a grant of planning permission for the extensive redevelopment of Hampton Court Station, on the opposite bank of the Thames from Hampton Court Palace.
In reaching its decision, the court considered the application of article 10a of the EIA directive (and by extension the application of the Aarhus Convention, which underlies that article of the directive), which requires that proceedings in environmental matters not be “prohibitively expensive”.
The court found that, in cases where the directive applied, some modification of the domestic rules on costs must be modified so far as required to comply with the directive. Principally, in cases involving EIA development, the “general public importance/ public interest requiring resolution of those issues” requirement of Corner House is automatically satisfied since both Aarhus and the directive are premised on the basis that there is a general public interest in decision making in “significant environmental projects”.
Second, the court considered whether the test of “prohibitive expense” should be satisfied by a subjective test of reference to the individual claimant’s means and the costs of the particular proceedings before the court or an objective test with reference to the “ordinary member of the public” and the usual costs of a claim in judicial review. The court was more equivocal on this point, commenting that guidance on the question from the Supreme Court was likely to be forthcoming in the case of Edwards v Environment Agency and DEFRA, as well as from the European Commission and the Aarhus Compliance Committee.
However, Sullivan LJ concluded that a “purely subjective approach” depending on whatever claimant happened to come forward was not consistent with the objectives of the directive, noting in particular the estimates of costs given by the parties for a “not straightforward” claim in judicial review would be “prohibitively expensive” for an ordinary member of the public.
Subjecting claimants to detailed scrutiny of their personal financial affairs would also pose a risk of having a “chilling effect” of deterring individuals from taking claims which are in the public interest. The PCO granted by the court limited the three appellants’ liability in aggregate to £5,000 and the respondent’s to £35,000.
Until the decision in Edwards has been handed down (and the applicant there has requested a reference to the ECJ) or the Civil Procedure Rules are amended, Garner is likely to set the scene for PCOs, at least in cases involving EIA development, with a focus on a generally objective test of prohibitive expense (with the exception being the “conspicuously wealthy” claimant) and if a reciprocal cap on the respondent’s liability is imposed it is in a ratio that recognises the imbalance in resources (usually) available to each side.
The Garner decision may also lead to increased acceptance by parties of agreeing limits on recoverable costs on both sides at the outset of a claim, which has the distinct advantage of reducing both ‘satellite litigation’ and uncertainty.
In two recent cases the court has explored the matter of when the environmental impact assessment screening process is so inadequate as to be deemed unlawful. In R (Birch) v Barnsley MBC  EWHC 416 (Admin), the developer had applied for planning permission for a ‘waste composting facility’, which would collect garden compost and spread it to rot into fertiliser. The defendant local authority decided that EIA was not required, principally on the basis that the project was below the size thresholds stipulated in schedule 2 to the EIA Regulations.
The main issue before the High Court was whether the defendant was correct in ignoring the associated operation which would spread the compost (which was subject to a condition in the planning permission) and whether the spread material was ‘waste’. Lord Carlile of Berriew QC found that the failure of the defendant to consider in any structured or detailed way the associated spreading operation itself or whether the end product was ‘waste’ rendered the screening opinion flawed and quashed the permission.
Sullivan LJ dismissed the respondent’s appeal, emphasising the need for planning authorities to consider the cumulative effects of a development in a comprehensive assessment. The argument raised by the respondent that any significant environmental effects produced by the associated spreading operation could be controlled via enforcement powers was dismissed as contrary to the precautionary principle underlying the directive.
In R (Co-operative Group Limited) v Northumberland CC  EWHC 373 (Admin), the High Court quashed a permission on the basis that the negative screening opinion was premised on a five-page letter for the developer which identified potential environmental issues but then merely assured the planning authority that those issues would be “fully addressed in the planning application” rather than describing their likely effects on the environment.
In R (Morge) v Hampshire CC  EWCA Civ 608, the court considered the application of article 12(1)(b) of the Habitats Directive, which requires member states to take measures to prohibit “deliberate disturbance” of protected species, particularly during the period of breeding, rearing, hibernation and migration.
The phrase could hold a wide range of meanings and the claimant had argued that it applied when individual bats may be harmed by colliding with buses on the bus route proposed in the project subject to challenge. Ward LJ dismissed that argument and held that in contrast to article 12(1)(a) which prohibits the capture or killing of individual specimens, disturbance applied to species as a whole. The judge concluded that disturbance within the meaning of article 12(1)(b) must “have a detrimental effect so as to affect the conservation status of the species at population level”.
The court also made a number of observations on what would constitute a breach of the directive which should provide helpful guidance for local authorities and those advising developers (although the case is the subject of an application to the Supreme Court, so the views of that court may be forthcoming).
R (Akester) v DEFRA  EWHC 232 (Admin) concerned a proposal by Wightlink Ferries to introduce a new class of ferries on the route from Lymington to Yarmouth. The claimants, acting on behalf of a local residents’ association, argued that, as the route of the ferries passed through internationally protected wetlands and were by virtue of their design likely to have significant effects on the environment, the directive was engaged. The claimants further argued that DEFRA had failed to implement the directive correctly as it had no regulatory power to stop Wightlink (which was as statutory harbour authority the competent authority to grant permission to introduce the new ferries, but had not carried out appropriate assessment under the directive).
Owen J upheld the claim, holding that the meaning of a “plan or project” under the directive was very broad in light of its objective of providing a high level of environmental protection – “an activity which gives rise to a risk of adverse effects on protected sites, either directly or indirectly”. This purposive definition compels the decision maker to consider first and foremost the effect of the proposal, rather than the form of the proposal itself.
In Case 378/08 and Joined Cases 379/09 and 380/08, Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico, the ECJ considered the application of the Environmental Liability Directive in the courts of member states. The directive extends the ‘polluter pays’ principle by requiring operators to take preventative action to avoid environmental damage, notify authorities if such damage is caused and undertake remediation efforts.
The directive came into effect in England on 1 March 2009; however the ECJ held that it applied to damage that was caused or began and continued after 30 April 2007.
It may therefore be found that England has wrongly transposed the directive and operators could be found liable for acts taking place before 1 March 2009.
The court found that it was permissible for member state authorities to presume causation on the basis of plausible evidence of correlation between the operator’s activities and the damage, although it would be open for the operator in that case to provide evidence rebutting the presumption.
Timing is everything
A case that is of interest even though it is in the context of EU procurement rules rather than environmental law is Uniplex (UK) Ltd v NHS Business Services Authority (C-406/08)  2 CMLR 47. The ECJ held there that the requirement to bring judicial review proceedings “promptly and in any event within three months” gives rise to uncertainty since it empowers the courts to dismiss an action as being out of time even it is brought within the three-month period. Such a provision therefore does not ensure an effective remedy for breaches of EU law.
This seems to mean that arguments based on ‘delay’ when a claim which relies on, for example, the EIA or habitats directives is brought within the three-month limit for judicial review must fail.
However, the ECJ also concluded that the time limit for bringing a claim must run from the date that the claimant knew or ought to have known of the infringement of EU law.
In the planning JR context, that could be taken as three months from the date that the claimant was aware that a (wrong) negative screening opinion had been adopted, whereas in domestic law currently the three-month deadline only runs from the date the subsequent planning permission is granted – which may be many months later.
The Uniplex judgment therefore is a mixed bag, giving greater clarity in one context but introducing uncertainty in the other.
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