42 - Aarhus costs: An embarrassment of riches…

Slightly later than scheduled (and thus maintaining the bus analogy from the first post – Post 31 Aarhus costs: An embarrassment of riches (Part 1) – this blog continues the round-up of recent cases in which Aarhus costs protections have been in issues before by the courts.

The first case of note for the purposes of this blog is the decision of the Business and Propery Court in Bristol in Cotham School v Bristol City Council & ors [2024] EWHC 154 (Ch). The Claimant school had commenced a Part 8 claim for an order under s.14 of the Commons Registration Act 1965 amending the commons register kept by the Defendant Council to delete an entry relating to ‘Stoke lodge playing fields’, which the school leased from the Council for school use.

In its claim form, the school had sought an order limiting its exposure to the other parties’ costs on three bases: (1) the Aarhus costs protections in CPR Part 46; (2) the Corner House jurisdiction; and (3) the jurisdiction to make a ‘costs capping order’ under CPR r.3.19. The judgment of 2 February 2024 considered those applications, alongside a number of other preliminary issues which had been considered at a case management hearing on 24 January 2024.

On the application for an Aarhus costs cap, the Judge (HHJ Paul Matthews sitting as a Judge of the High Court) concluded that the claim was not an “Aarhus Convention claim” for the purposes of CPR Part 46:

Whilst the claim would not fall within Articles 9(1) or (2) of the Aarhus Convention, in principle the Commons Registration Act 1965 so far as relevant to the present claim fell within the expression “provisions of … national law relating to the environment” for the purposes of Article 9(3) (J§§70-1);
However, the Judge was not satisfied that the claim fell within Article 9(3) as Article 9(3) required a decision to be taken “by private persons [or] public authorities” which did not include “bodies or institutions acting in a judicial …capacity”, and “on the face of it, that is the capacity in which the City Council as registration authority took the decision. It did not take it as a political body” (J§74);
In any event, the claim was neither a claim for judicial review (which was not disputed) nor a “review under statute”: “… the nature of the claim under section 14 is a freestanding claim, de novo, that the land the subject of the claim does not meet the statutory criteria for a town or village green, and that therefore the amendment of the register constituted by the registration of the land should be reversed. Although a decision under section 14 to reverse the earlier entry was wrong, and therefore made in “error” (a word used by s.14(b)), this claim is not a review of that decision. If it were, then for one thing the court could not receive evidence not before the original decision maker … One would also expect to find a time limit for the application to be made. Yet there is none.” (J§92).

The Judge was at pains to stress, however, that the conclusion that a claim under s.14 was not an “Aarhus Convention claim” for the purpose of CPR Part 46 was a result of a decision by the Civil Procedure Rules Committee to define such claims as they had. “So far as I can see, there is nothing in the terms of the Convention itself which requires this restriction”. (J§93). It will be interesting to see, therefore, whether this judgment results in a further amendment of the definition in the CPR Part 46, similar to that which followed a similar conclusion in Venn v Secretary of State for Communities and Local Government [2015] 1 WLR 2328 (on which, see Post 14: Costs caps: a re-cap).

The judgment also contains an interesting consideration of whether the Claimant was a ‘member of the public’ for the purposes of the Aarhus Convention (J§§77-85). The second defendant had submitted that the school (an academy) was a public authority, by reference to what was described as an ex tempore decision of Singh J in R (Omotosho) v Harris Academy Crystal Palace [2011] EWHC 3350. In considering that judgment (which did not concern the Aarhus Convention and in which it appears it was not even questioned whether the decision at issue was amenable to judicial review), the Judge said as follows:

“At its highest, however, all that this decision shows is that an academy school may exercise some functions of a sufficiently public character as to attract the jurisdiction of judicial review in relation to the exercise of those particular functions. It does not mean that every decision of an academy school makes is of that description. If an academy school decided to bring a claim for compensation against a motorist who negligently drove into the school minibus and caused damage, no-one could suggest that that decision could be subject to judicial review. So too it is here, where the claimant is bringing a claim to vindicate its proprietary rights under the lease of 2011 by seeking the cancellation of the registration of its school playing fields as a town or village green. This is not a public function, and, in making this decision, and prosecuting its claim, the claimant is not in my judgment acting as a public authority.” (J§80)

He derived some support, in that regard, from the decision of John Howell QC in Crondall Parish Council v Secretary of State for Housing, Communities and Local Government (CO/900/2018), citing in particular paragraph 14 of the written judgement given in that case:

“In considering the construction of the convention itself, it is significant in my judgment (i) that ‘the public’ is widely defined to include any natural or legal person, a definition that will inevitably include bodies falling within the wider definition of a ‘public authority’; (ii) that there is no provision excluding anybody falling within that definition of a ‘public authority’ from being a member of ‘the public’; (iii) that there is no apparent warrant within the convention itself inferring that the two categories are mutually exclusive in all circumstances; and (iv) that to exclude some public authorities, such as a parish council, by some inference from being a member of ‘the public’ in relation to access to environmental information held by other public authorities and from participation in the procedure leading to significant decisions for the environment taken by other authorities would undermine principles underlying the Aarhus Convention is recognised in its recitals.”

The concept of the ‘hybrid’ public authority is not one which has been particularly explored since the amendments to the definition of ‘Aarhus Convention claim’ in the CPR. It may be one which warrants further consideration going forward.

The second case of note concerns the costs orders made in Friends of the Earth Limited v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 2349 (Admin) (the West Cumbia Mining Case). In that case, SSLHC had consented to judgment (in light of the Supreme Court decision in Finch – see Post 36) but it continued to be resisted by the Second Defendant (West Cumbria Mining Ltd). Holgate J granted permission to proceed with 4 of the Grounds, and ordered the decision to be quashed. The issue which then arose on costs concerned the Second Defendant’s liability for the Claimants’ costs: specifically, liability for up to £35,000 in respect of each of the two Claimants. In the relatively detailed reasons given for ordering the Second Defendant to pay each Claimant’s costs of the claim from the date when SSLHC consented to judgment up to £35,000, Holgate J highlighted that:

The Aarhus provisions in CPR Part 46 operate as a cap on the amount which a paying party would otherwise be liable to pay. They do not contain principles for determining liability. The general rules on costs apply, with the cap then applied. (NB: This reflects the analysis of the Court of Appeal in CPRE Kent v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 at §§41-57);
These were two separate claims with separate representation. If there had been no submission to judgment, and the Claimants had both been successful, SSLHC would have been liable for both sets of Claimants’ costs. In circumstances where SSLHC consented to judgment, and the Second Defendant chose to fight on, then it was at risk of costs, just as the Claimants were at risk of liability to pay its costs;
The costs capping order made expressly provided for separate costs caps in each claim. It did not impose cost caps treating the two claims as if they were one. The costs caps in the CPR apply to a claim or each claim. They do not provide for the court to treat one or more claims as a single claim.
The order imposed a costs cap of £35,000 for “the defendants” but that order was made pursuant to what was then Part VII of CPR 45, with the (then) r.45.43(4) (now r.46.26(4)) making clear the £35,000 cost limit applies in relation to each defendant individually, subject to any direction made by the court (none having been made or sought in this case). There was only one receiving party (i.e. Claimant) in each case.

This is a timely reminder that:

liability is to be determined first, then the cap applied;
the fact that two or more different cases are case-managed together does not mean only one cap applies for Aarhus purposes if they are separate claims;
the cap applies per Defendant, and you need an application to vary to change that position; and
stepping into a Defendant’s (or First Defendant’s) shoes puts an Interested Party/Second Defendant at risk from that point forward, up to the limit of their separate Aarhus cap.

The third, and final, case is the costs dispute which arose in R (Wilkinson) v London Borough of Enfield [2024] EWHC 1193 (Admin) (the Tottenham Hotspurs case). In its claim form, the Claimant indicated that the claim was an Aarhus claim, on the basis that the decision being judicially reviewed was the Defendant’s decision to dispose of 140 acres of open space, removing the public trust for recreational purposes over the land, and restricting public access to that open space. The Defendant and Interested Party disputed that it was an Aarhus Convention claim. Lang J considered that it was, but highlighted the provisions in CPR PD 23.A (para 11.2) and r.3.3 for a party to apply to set aside or vary an order made when the court determined an application on the papers without a hearing. The Defendant and Interested Party applied to set aside those parts of the Order, pursuant to that jurisdiction, with the Interested Party drawing attention in particular to Forbes v Wokingham BC [2018] EWHC 2530 (Admin) in which Mr CMG Ockleton (Vice President of the UT (sitting as a Deputy Judge of the High Court) rejected an argument advanced by the Claimant in that case that because the recognition of land as a town or village green carries prohibitions on interference with its use or, to an extent, structures on it, the challenge to a refusal to register amounts to a challenge to a decision under national law relating to the environment, stating:

“The recognition or otherwise of a town or village green carries no implications for the state of the land or any modifications to the land or its use. Any such changes might be the subject of further processes of application or permission, but there is nothing in the law relating to commons which of itself impinges on any of the factors set out in Article 2(3) of the Convention.”

The applications to vary the Order were subsequently withdrawn, an agreement on costs having been reached between the parties, so the points raised were not subject to substantive consideration. However, it does raise an interesting question about whether and to what extent decisions relating to the status of land (for example, as open space or commons) as opposed to decisions relating to potential changes to land properly fall within Article 9(3) of the Aarhus Convention and thus, by extension, the definition of ‘Aarhus Convention claim’ in CPR Part 46. It is also a useful reminder that where a party wishes to challenge a costs capping order made when permission is granted on the papers is by way of an application to vary/set aside that order pursuant to the Court’s jurisdiction to set aside or vary order made without a hearing rather than an application to vary the limits of the cap under CPR Part 46.

This blog post was written by Jacqueline Lean.

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Authors of the Aarhus blogs

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman KC and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.