The Secretary of State for Communities and Local Government v Sarah Louise Venn
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lady Justice Gloster,Lord Justice Vos |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1539 |
| Docket Number | Case No: C1/2013/3555 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 2014 |
[2014] EWCA Civ 1539
Lord Justice Sullivan
Lady Justice Gloster
and
Lord Justice Vos
Case No: C1/2013/3555
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MRS JUSTICE LANG
CO/6859/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
James Eadie QC and Andrew Deakin (instructed by Treasury Solicitors) for the Appellant
Richard Drabble QC and Christopher Jacobs (instructed by Richard Buxton Environmental & Public Law) for the Respondent
Hearing date: 17 th November 2014
Introduction
This is the Secretary of State's appeal against the amended Order dated 21 st November 2013 of Lang J granting the Claimant a Protective Costs Order ("PCO") limiting her liability to pay the Defendants' costs to £3500 (inclusive of VAT) in respect of her application under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") to quash a decision dated 25 th April 2013 of an Inspector appointed by the Secretary of State (the First Defendant below), allowing the Second Defendant's appeal under section 78 of the 1990 Act against the refusal of the Third Defendant to grant planning permission for a single storey courtyard dwelling on the side garden area of 47 Dundalk Road, Lewisham, London, SE4 2JJ. The Second and Third Defendants did not appear before Lang J, and they have played no part in this appeal.
Facts
The factual background is set out in Lang J's judgment [2013] EWHC 3546 (Admin). In summary, the Claimant lives next door to number 47, at 49a Dundalk Road. In Ground 1 of her challenge under section 288 the Claimant contended that the Inspector had failed to have regard to emerging local plan policy in the form of the Third Defendant's Development Management Local Plan Policy No 32, which provides that the development of back gardens for separate dwellings in perimeter form residential typologies identified in the Lewisham Character Study will not be granted planning permission. The Claimant contended that this policy was supported by paragraph 53 of the National Planning Policy Framework (NPPF), by Policy 3.5 in the London Plan, and by the Mayor of London's Supplementary Planning Guidance on Housing.
In paragraphs 17–20 of her judgment Lang J referred to evidence from the Royal Horticultural Society (RHS), the London Wildlife Trust, and the Campaign for the Protection of Rural England, all of whom expressed concern about the adverse effects of what was described by the RHS as "garden grabbing", and to a 2010 briefing from the Town and Country Planning Association which was to the same effect.
The Issues
Before the Judge, the Claimant contended that:
(1) her application under section 288 was an "Aarhus Convention claim" within CPR 45.41, and that she was entitled to costs protection under that rule; alternatively
(2) the Court should exercise its inherent jurisdiction to make a PCO upon the basis that this was an environmental challenge falling within Article 9(3) of the Aarhus Convention (" Aarhus").
The Secretary of State contended that:
(1) the Claimant's application under section 288 of the 1990 Act did not fall within Article 9(3) of Aarhus;
(2) even if the Claimant's application fell within Article 9(3) of Aarhus it was not an "Aarhus Convention claim" for the purposes of CPR 45.41 because it was a statutory application to quash and not an application for judicial review;
(3) while the Court had a discretion to make a PCO, that discretion had to be exercised in accordance with the principles set out in R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 (" Corner House") which could be modified only insofar as it was necessary to secure compliance with directly enforceable EU environmental Directives, which were not in issue in the present case: see R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1209; [2011] Env. LR 10 (" Garner").
The Judge concluded that:
(1) the Claimant's section 288 application was an environmental challenge falling within Article 9(3) of Aarhus (paragraph 24 judgment);
(2) it was not an "Aarhus Convention claim" for the purposes of CPR 45.41 because costs protection under that rule was confined to claims for judicial review, and the Claimant's section 288 application was a statutory application to quash, albeit that it would be determined on the basis of the legal principles that are applicable to judicial review claims (paragraph 32 judgment);
(3) she should exercise the Court's discretion to make a PCO because "the Corner House criteria should be relaxed to give effect to the requirements of the Aarhus Convention" (paragraph 36 judgment).
The Claimant does not challenge the Judge's conclusion that CPR 45.41 applies only to claims for judicial review, and does not apply to statutory appeals or applications, such as her application under section 288 of the 1990 Act. I have no doubt that this concession on the part of the Claimant is correct. The wording of CPR 45.41 is clear, and it is plain that the omission of statutory appeals and applications from costs protection under CPR 45.41 was deliberate: see paragraph 30 of the judgment.
The issues in this appeal are therefore:
(1) whether the Claimant's section 288 application falls within Article 9(3) of Aarhus; and
(2) if it does, what are the principles (if any) upon which the Court should exercise its discretion to grant a PCO in an Aarhus case in which directly enforceable EU environmental Directives are not engaged?
I will deal with these two issues in turn. For convenience, the full text of Article 9 is set out in the Annex to this judgment.
Issue (1) Article 9(3)
I can deal with this issue briefly because Mr. James Eadie QC on behalf of the Secretary of State did not take issue with Lang J's conclusion (see paragraph 11 of the judgment) that the description of "environmental information" in Article 2(3) of Aarhus was an indication of the intended ambit of the term "environmental" in the Convention, and that the Implementation Guide to Aarhus was of assistance in reaching that conclusion. The Implementation Guide says that:
"The clear intention of the drafters, …. was to craft a definition [of environmental information] that would be as broad in scope as possible, a fact that should be taken into account in its interpretation."
In his Skeleton Argument the Secretary of State accepted that "environmental information" is given a broad definition in Article 2.3, and further accepted that since administrative matters likely to affect " the state of the land" are classed as "environmental" under Aarhus the definition of "environmental" in the Convention is arguably broad enough to catch most, if not all, planning matters. The Judge's conclusion that environmental matters are given a broad meaning in Aarhus (see paragraph 15 of the judgment) is supported by the decision of the CJEU in Lesoochranárske VLK v SlovenskejRepubliky (Case C-240/09) [2012] QB 606 ("the Brown Bear case").
In the Brown Bear case, the CJEU concluded that the provisions of the Convention "now form an integral part of the legal order of the European Union" (paragraph 30). While the provisions of Article 9(3) are not directly enforceable (paragraph 45), "it must be observed that those provisions, although drafted in broad terms are intended to ensure effective environmental protection" (paragraph 46). In paragraphs 49 and 50 the CJEU said:
"49. Therefore, if the effective protection of European Union environmental law is not to be undermined, it is inconceivable that article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by European Union law.
50. It follows that, in so far as concerns a species protected by European Union law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by European Union environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in article 9(3) of the Aarhus Convention."
The Secretary of State rightly rejected the distinction that was drawn at the permission stage in R (Save Britain's Heritage (1) and the Victorian Society (2) v Sheffield City Council and University of Sheffield (CO/7189/2013) between the reference to "decision, act or omission" in Article 9(2), and Article 9(3) which refers only to "acts or omissions", not "decisions". As the Secretary of State's Skeleton Argument points out, there is persuasive authority in the Implementation Guide (see page 209); in decisions of the Aarhus Compliance Committee (see ACCC/ C/2005/11 (concerning compliance by Belgium) at paragraph 34 and ACCC/ C/2008/33 (concerning compliance by the United Kingdom) at paragraphs 123–127; and in paragraph 100 of Advocate General Sharpston's Opinion in the Brown Bear Case; to the effect that the term "acts or omissions" is sufficiently broad in this context to encompass administrative decisions.
The sole basis upon which Mr. Eadie submitted that the Judge had erred in concluding that the Claimant's section 288 application fell within Article 9(3) of Aarhus was that the Claimant was not challenging an act or omission by a public authority which contravened a provision of national law relating...
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