The Unfortunate Case Of The Council’s Sports Hub

It’s easy for a planning lawyer to summarise R (Boot) v Elmbridge Borough Council  (Supperstone J, 16 January 2017). The High Court confirmed what we already know from paragraph 89 of the NPPF – that “the provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it” is not inappropriate development, but that conversely, if harm is caused to the openness of the Green Belt, even limited harm, the development is inappropriate and permission should be refused save in very special circumstances.
The court duly quashed a planning permission granted on 26 January 2016 for the “Elmbridge Sports Hub” – a proposed athletics stadium, ‘league’ football pitch and training pitches (grass and artificial) for Walton Casuals FC, Walton and Hersham FC and Walton Athletics club to replace their current facilities, on a former landfill site in Waterside Drive, Walton-on-Thames.

However, scratch beneath the surface of any case and there are usually some interesting factors. 

This is not a developer-led proposal. It’s being promoted by Elmbridge Borough Council, on land that it owns. The development is proposed to be funded by the sale by the Council, for the development of 52 homes, of Walton and Hersham FC’s present ground at Stompond Lane. 
Most developers would not take the risk of starting construction work ahead of their permission being free from legal challenge. However, Elmbridge embarked on construction on 21 March 2016, despite the scheme already at that stage having become significantly controversial. Indeed the claimant’s solicitors, renowned claimant firm Richard Buxton & Co, were already on board for objectors and had previously scored an early blow by securing an EIA screening direction from the Secretary of State in July 2015, when the application had already initially gone to committee, requiring environmental impact assessment to be carried out. The Secretary of State ruled:
“Whilst this is a finely balanced case, the proposal does raise concerns to suggest the potential for significant environmental impacts through surface disturbance of the former landfill site, uncertainty about the extent of the contamination of the site and the potential for gas migration to both the River Thames and nearby residential properties.”
Why did development start when the permission was still at risk, presumably when proceedings had already been served, or at least a pre-action protocol letter? I don’t know any of the details but I do note that the local elections took place a little afterwards in May 2016. Was this at all relevant?
Rolling ahead to 2017, by the time that the permission was quashed, the construction project was significantly advanced. With the developer a local planning authority, responsible for planning enforcement, this is surely hardly a comfortable position.  

Image from Get Surrey website

Elmbridge had tried unsuccessfully to delay the court hearing, fixed for 6 December 2016, to allow a second planning application to be determined, for a revised version of the scheme, a request that was rejected by Ouseley J in November.  
The second application eventually went to committee on 17 January 2017, the day after the first permission was quashed and on the basis of a detailed officers’ report, resolved to approve it (perhaps no surprise there). Having delayed the scheme first on an EIA point and secondly on the council’s flawed approach to green belt policy, no doubt objectors will be looking for their next line of attack. 
So a straight-forward ruling by Supperstone J but the situation on the ground is plainly a mess. How does a local planning authority get itself into this sort of position? To what extent is this about financial or political imperatives and, against the backdrop of a construction project in mid flow (one dreads to think of the financial consequences under its construction contract if the authority now pauses or abandons the project), how easy was it for members to determine the second application with open minds but on the contrary how difficult it may be for objectors to prove to a court that minds were already made up?
Simon Ricketts 21 January 2017
Personal views, et cetera

Mending Aarhus

On 1 April 2013 the Government changed the Civil Procedure Rules to introduce a system of automatic costs capping  for judicial reviews in England and Wales in relation to “environmental matters” (a broad definition that embraces many “planning” JRs). This was to seek to comply with the Aarhus Convention’s principle that access to environmental justice should not be prohibitively expensive. However, surprise surprise, in some ways arguably the Government went further than was necessary and in other ways it didn’t go far enough. 
What the system did was to allow claimants to opt for mutual cost capping when bringing a claim. If the claimant ultimately lost, as an individual (however well-resourced) his or her exposure to the successful defendant’s costs would then be capped at £5k and if a company or other body (however well-resourced) its exposure would be capped at £10k. As a quid pro quo, if the claimant won it could only recover up to £35k. The system only applies at first instance – further applications to the court for specific costs protection are required if the case then goes onto the Court of Appeal and beyond to the Supreme Court 
The Government brought in the new system ahead of the CJEU giving judgment in Case C 530/11 European Commission v United Kingdom of Great Britain and Northern Ireland  (13 February 2014). The CJEU did not address the post 1 April 2013 system but found that the previous regime was indeed non-compliant. Whilst the new system has addressed most of the CJEU’s criticisms, there are certainly still gaps, for example the current restriction of automatic cost capping to judicial review rather than statutory challenges (for instance to appeal decisions by the Secretary of State and inspectors) and the way in which automatic cost capping only applies at first instance.  
The Government consulted  in 2015 on proposals to amend the automatic cost capping system, partly to seek to comply with the CJEU ruling and partly to tighten up on the process where it could. Particularly contentious elements included proposing that claimants should submit a schedule of their financial resources when commencing the proceedings so as to allow for argument as to whether the cap should be increased in the particular case, a proposal that cost capping should only be confirmed once a claim had received permission to proceed to a full hearing (ie had been ruled to be arguable) and a proposal to double the standard caps to £10,000 (for individuals) and £20,000 for all other categories of claimant. 
The Government has now published on 18 November 2016 Costs Protection In Environmental Claims, its response to that consultation document. 
It has stepped back from the more contentious proposals. In summary it proposes that the Civil Procedure Rules be amended to:
– extend Aarhus cost capping to statutory challenges engaging EU law based statutes (this would bring to an end the nonsense of the current Venn litigation saga, in which the refusals of first Ouseley J on 15 August 2016  and then Lewison LJ on 3 November 2016  to grant permission for Ms Venn to appeal are worth a read – further background in this Landmark Chambers update).

– give more certainty that there will be costs protection in Court of Appeal cases “where this is necessary to prevent the proceedings from being prohibitively expensive for the claimant”. The Government will invite the Supreme Court to set equivalent rules to apply to appeals that it hears. So not an automatic system for appeals but clearer guidance.  

– refine a definition of “members of the public” who are entitled to Aarhus cost capping. I take this as code for removing the ability for local authority claimants to obtain automatic Aarhus cost capping protection, subject to the outcome of the Aarhus Convention Compliance Committee’s consideration as to whether Hillingdon Council, and other local authorities engaged in the judicial review of the Government’s decision to proceed with HS2, qualify for protection under the Convention (following the ruling  of the Court of Appeal on 11 March 2015 that they do under the Civil Procedure Rules – which may have been drawn unnecessarily widely). 

– allow parties to make applications to reduce or increase the caps in particular cases. The test will be that the costs of proceedings must “neither be subjectively prohibitively expensive (they must not exceed the financial resources of the claimant) nor appear to be objectively unreasonable” (ie that set out by the CJEU in C-260/11 Edwards v Environment Agency  (11 April 2013). To make its case, the claimant would need to “provide information on significant assets, income, liabilities and expenditure. This information would take account of any third-party funding which the claimant had received”. 

– clarify that where there are multiple claimants, a separate cap applies to each claimant (reflecting incidentally the approach recently taken in R (Birchall Gardens LLP and Tarmac Trading Limited) v Hertfordshire County Council  (Holgate J, 4 November 2016)).

The Government does not intend to extend the Aarhus cost capping system to private nuisance cases (the subject of proceedings currently before the European Court of Human Rights: 39714/15 Austin v. UK) or similar non public law cases that raise environmental issues. Nor does it intend to increase the standard caps or to delay cost capping to beyond the permission stage.  
James Maurici QC has prepared a useful comparative table  of the proposals in the consultation paper and those in the response document. 
Whilst the Government seeks to limit the circumstances in which parties can apply to vary costs caps, stressing the risk of costs orders against parties that do so unreasonably, undoubtedly this will lead to additional pre-hearing sparring and uncertainty (which is not to criticise the proposal – it has sometimes been galling to see claimants obtain automatic costs protection at the standard level, when the claimants’ means may be at least equal that of the cash-strapped defendant authority).  
In my view the response document seeks to achieve a sensible and reasonable balance and for that reason will no doubt come under attack from all quarters…

Simon Ricketts 19.11.16
Personal views, et cetera