September 12th, 2017
Costs Rules Changes Lead To Alternative Approaches To Access Environmental Justice
ELF’s Emma Montlake considers some immediate effects of the recent costs rules changes
ELF is already witnessing the chilling effect on environmental justice of recent changes to the costs rules as the uncertainty of potential costs liability bites deterring many groups from bringing claims. However, we are also working with groups to look for alternative avenues to achieve their aims.
A recent case is a good example of this. A community group in Leeds were concerned that proper consideration had not been given to the street scene in a decision by Leeds City Council (LCC) granting planning permission for a housing development in a conservation area. The grant gave permission for the replacement of a bungalow set on a large plot of land with a four-storey block of flats which would take up a larger part of the green space. This appeared counter to a decision in 2012 refusing a similar proposal on the grounds of impact on the street scene in terms of size and density and the group sought to challenge LCC.
In considering who should bring such a claim, it is common for ELF groups to identify whether or not this should be an individual from the group. However, following rule changes, the group were wary of an individual claimant having to produce a schedule of means and the uncertainty around the security of a costs cap in any event. There is little clarity at the moment, of the detail required in the schedule of means and how much information is required. The requirement to submit personal financial resources for scrutiny and the risk of a potentially unlimited order for costs against them deterred anyone from bringing a claim as an individual.
The group is an unincorporated association, established for the purposes of protection of the conservation area and, after much discussion, the group decided that the association itself should be the claimant, to show a united front. This is an unusual move in our experience and not without its uncertainties. We were also at pains to stress that so far as the new changes were concerned, they may not be shielding themselves from having to produce various schedules of means by individuals from the group. Proceedings were issued and now we wait for LCC’s response.
This case comes on the back of ELF’s recent, unsatisfactory experience in attempts to intervene in the RSPB and others judicial review challenge to the costs rules changes. As ELF reported elsewhere, ELF was supporting the chair of Liverpool Green Party (Thomas Crone)’s, application to intervene with the assistance of Charles Streeten at FTB. ELF considered that we had very important evidence to submit to support the challenge. Sadly, permission to intervene was refused by the Honourable Mr Justice Holgate. Reasons given being that it would be inappropriate to allow the intervention, and “in particular to argue points of law which fall outside the scope of the grounds for which permission has been granted to the Claimant”. Whilst the judge said the applicant raises points of law outside the scope of the grounds, unless you raise a separate point you are at risk of costs under the Criminal Justice and Courts Act 2015. That looks like a catch-22 to me. However, the claimants were permitted to rely upon the witness statement of Mr Crone which they did. Frustrating though it was, at least something came out of all the work that went into it.
So as predicted much uncertainty has been introduced into the spectra of environmental protection through judicial review. As we career headlong down the Brexit route and now know that the government intends to replace enforcement by the Commission and European Court of Justice with our domestic judicial review regime, environmental justice may become more elusive.