The new rules codify the PCO regime and replace the previous case law
It has become increasingly common in Planning JR cases both for claimants to seek PCOs when the claim is issued and for the Courts to grant the PCO. This is largely because the previous law relating to PCOs had been found to be in breach of the UK’s obligations under the Aarhus Convention to ensure access to justice in environmental cases at a cost which is not “prohibitively expensive.” The Government consulted on proposals to effect the codification of the PCO regime in 2012 and the recent changes to the Civil Procedure Rules provide that for cases which are considered to be Aarhus Convention cases, costs liability caps in relation to both claimants’ and defendants’ costs will apply.
As the CPR apply only to the judicial review of Aarhus Convention case decisions, the costs caps do not apply to statutory challenges to Secretary of State planning decisions or challenges to the adoption of local development documents. The PCO regime does however apply to the challenge of development consent orders.
If a case is considered to be an Aarhus Convention case, the liability of a claimant will be limited:
- against claimants to
- £5,000 where the claimant is an individual acting on its own account; or
- £10,000 where the claimant is, or is acting on behalf of, a business or other legal person; and
- against defendants to £35,000.
These limits apply irrespective of the means of the parties concerned.
Developers face increased risk of delays to development
One of the main deterrents for a claimant when thinking about starting a JR claim has always been the potential exposure to significant costs if he loses the case. Even though the Courts have been more inclined to grant PCOs in recent years, each application for a PCO was heard on its own facts and merits and the grant of the order was not guaranteed. The changes to the CPR now mean that a claimant (whose claim is an Aarhus Convention claim) knows from the outset that his potential costs liability is limited.
Without this deterrent, we consider it likely that there will be a considerable rise in the number of Planning JR cases issued. Even if the grounds of challenge are not valid and the claim ultimately fails, for objectors, JR is a well-known cause of delay to unwanted development. The delay can often be fatal to the development in terms of funding.
You can read more ‘Tips to reduce the risk of JR’ by clicking on the link.
 For the purposes of the CPR, a claim is considered to be an Aarhus Convention claim if it is “a claim for judicial review of a decision, act or omission all or part of which is subject to the provisions of the Aarhus Convention.” The Aarhus Convention covers all aspects of environmental justice so it is not difficult in Planning cases to fall within this definition.