Aarhus Costs Caps Upheld | Court Reaffirms Limits in Environmental Litigation

The case involved an application for leave to appeal against a planning inspector’s decision regarding enforcement notices issued to Mr. and Mrs. Waterhouse. The enforcement notices, issued by the local planning authority (LPA) on February 15, 2023, concerned the unauthorized use of a forestry container as a dwelling on Green Belt land near Hexham.The appellants, Mr. and Mrs. Waterhouse, aged 75 and 80 respectively, had appealed the enforcement notices to the planning inspector under section 174 of the Town and Country Planning Act 1990. Their main ground of appeal was that they had been living in the container as their residence since December 2017, claiming immunity from enforcement due to the passage of four years (under section 171B(2)).The planning inspector rejected their appeal, finding insufficient evidence to support their claim of continuous residential use for the required four-year period. Mr. and Mrs. Waterhouse then sought to appeal this decision to the High Court under section 289 of the Town and Country Planning Act 1990.The costs issues in this case primarily revolved around:

1. The application of Aarhus Convention cost caps
2. The appellants’ request to reduce the default cost caps
3. The respondents’ applications for summarily assessed costs
4. The relationship between the costs of the two respondents (Secretary of State and LPA)

These cost issues were complicated by the fact that the appellants had filed their appeal late, necessitating an application for an extension of time. The court had to consider whether to grant this extension and how it might affect the costs position.

Chronology of Relevant Events

• February 15, 2023: LPA issued enforcement notices to Mr. and Mrs. Waterhouse
• February 16, 2023: Mr. and Mrs. Waterhouse appealed to the planning inspector
• January 22, 2024: Planning inspector’s decision issued, rejecting the appeal
• January 30, 2024: Mr. and Mrs. Waterhouse first contacted the Administrative Court in London
• February 8, 2024: Appellants emailed a “Skeleton Case” to the Administrative Court
• February 19, 2024: Deadline for filing the s.289 appeal (28 days after the inspector’s decision)
• February 22, 2024: Appellants received appeal forms by post
• February 24, 2024: Appellants filed incorrect appeal forms
• February 26, 2024: Leeds Administrative Court rejected the incorrect forms
• February 27, 2024: Appellants contacted solicitors
• March 7, 2024: Correct form of notice of appeal filed electronically (18 days late)
• October 17, 2024: High Court hearing on the application for leave to appeal and extension of time

Issues to be Decided by the Court

The main issues to be decided by the court in relation to costs were:

i) Whether to grant an extension of time for filing the appeal

ii) Whether to reduce the default Aarhus cost caps

iii) Whether to award costs to the respondents, and if so, in what amount

Parties’ Positions on the Issues

a) Extension of Time:

• Appellants: Argued for an extension based on their efforts to obtain the correct forms, their attempted filing of a “Skeleton Case,” and their status as litigants in person.
• Respondents: Opposed the extension, emphasizing the strict 28-day deadline and the public interest in prompt resolution of planning enforcement appeals.

b) Reduction of Aarhus Cost Caps:

• Appellants: Sought to reduce the default caps from £5,000 per appellant to an aggregate of £5,000 for both, arguing this was necessary to avoid the proceedings being “prohibitively expensive.”
• Respondents: Opposed the reduction, maintaining that the default caps should apply.

c) Award of Costs:

• Secretary of State: Applied for summarily assessed costs of £9,316.99.
• LPA: Applied for summarily assessed costs of £6,000 (including VAT).
• Appellants: Opposed the costs applications, arguing by analogy with CPR 52BPD §8.1 that the court had not ordered the respondents’ attendance.

Decisions and Findings

The judge made several key decisions and findings regarding costs:

Firstly, he addressed the issue of extending time for the appeal:

“Had I found a viable ground of appeal, I would then have extended time, in the overall interests of justice. That would have been in light of viability of the appeal, and because of the combination of: (i) the messaging from the Secretary of State’s inspectorate; (ii) the frustrating quest via phone calls and emails for documents from the Admin Court to which the messaging directly led; and importantly (iii) the attempted filing of the “skeleton”. I would not have shut out an otherwise viable appeal. However, that is not where we are. I am going to refuse the extension of time, because (a) there is no viable ground of appeal and also (b) there was a material mistake on the part of Mr and Mrs Waterhouse about 6 weeks and not 28 days.”

The judge then moved on to consider the Aarhus cost caps:

“I reject the application to reduce the Aarhus default caps by halving them down from the aggregate of £10,000 to an aggregate of £5,000. I do not accept that the costs to a level of £10,000 constitutes a cost risk which makes these proceedings prohibitively expensive. The evidence filed by Mr and Mrs Waterhouse has explained the position, including their budgeting of £35,000 to pay their own lawyers through to a substantive hearing of this appeal. They have their unencumbered house in Chester as well as the level of savings which have been disclosed. It would in my judgment be unjust to reduce the accepted aggregated Aarhus caps. The costs exposure that is relevant is therefore the aggregate £10,000.”

Regarding the award of costs, the judge determined:

“I am, however, quite satisfied in the particular circumstances of this case that it is just in all the circumstances that costs orders should be made, both in favour of the Secretary of State and in favour of the LPA, but only up to a maximum of the £10,000. The nature of this case and its background made it all but inevitable that there would be the sort of participation by the Respondents at this hearing that has taken place. This was a scheduled half-day oral hearing, at which there was a lot that was contested and a lot that needed to be considered. It was, in my judgment, entirely foreseeable on the part of Mr and Mrs Waterhouse – in the circumstances of this proposed appeal – that they would face the written and oral submissions on behalf of both Respondents.”

The judge concluded by summarily assessing the costs in the sum of £7,500 and the LPA’s costs in the sum of £2,500.