Aarhus Costs Protection Rules Amended

The Civil Procedure (Amendment) Rules 2018 (SI 2018/239), made on 23 February 2018, will come into force on 6 April 2018.

They are intended to clarify the Civil Procedure Rules (CPR) in relation to Aarhus Costs Protection following the September 2017 judgment in R (The Royal Society for the Protection of Birds, Friends of the Earth Ltd and another v Secretary of State for Justice and another [2017] EWHC 2309 (Admin), in which a number of NGOs challenged the February 2017 amendments to the CPR for Aarhus Convention claims.

Rule 45.42(1)(b), which describes the financial information a claimant is required to provide if seeking the benefit of the costs protection provisions, is removed and replaced with a provision that mirrors the requirements for applications for costs capping orders in judicial review claims which are not Aarhus Convention claims.

As a consequence, a claimant will now need to file and serve with the claim form, a schedule of their financial resources, verified with a statement of truth, which provides details of—

  • the claimant’s significant assets, liabilities, income and expenditure; and
  • in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided.

A provision is introduced into rule 45.22(2) that confirms that the court may only vary the costs cap (or remove altogether the limits on liability) on an application by a claimant or defendant.

Finally, at the end of rule 45.44 a provision is inserted to make it clear that an application to vary such a costs cap (or remove a limit) must be made at the outset and determined by the court at the earliest opportunity; and that an application may only be made at a later stage in the process if there has been significant change in circumstances.

Change To Regulations To Facilitate Local Authority Development Proposals

Whilst changes to legislation are usually the last thing LPAs welcome, the same may not be true of the Town and Country Planning General (Amendment) (England) Regulations 2018 (the 2018 Regulations) which come into force on 23 February 2018.

Whilst planning permissions usually run with the land, meaning that they can be implemented by anyone, the same has not been true of permissions granted by a LPA for its own development (or in the case of a joint development, the LPA and other person specified within the planning application) as a consequence of Regulation 9 of the Town and Country Planning General Regulations 1992 

The 2018 Regulations will remove Regulation 9 with the effect that planning permissions granted by LPAs to themselves will now run with the land.

The 2018 Regulations will not affect planning permission granted prior to 23 February 2018, but their coming into force will equip LPAs with a further means of facilitating development in their areas. LPAs utilising this small but powerful change in the Regulations can plan ahead in terms of development by ensuring their land is sold for a use that benefits the area by virtue of the planning permission that runs with it.

In theory this is a positive change for LPAs, but whether or not they make use of the potential benefits remains to be seen.