Austin v Miller Argent (South Wales) Ltd

Mrs Austin lives at her home in Merthyr Tydfil close to an open-cast coal mine operated by the respondents. They are carrying out operations at Ffos y Fran, about two kilometres east of the Merthyr town centre. Ffos-y-Fran is a land reclamation project whose purpose is to restore the natural landscape to the north-east of the town of Merthyr Tydfil, in the vicinity of Dowlais, a large area of open moorland that has been scarred by mining and industrial waste for some 300 years. The cost of the project is offset by the recovery of coal deposits. Conditions attached to the development permission require effective noise and dust suppression measures to be taken.

The appellant is opposed to the respondent’s activities and is actively involved with a local pressure group which campaigns against the reclamation scheme. She sought unsuccessfully to take Group Litigation Order proceedings against the respondents in a case which also went to the Court of Appeal. The prospective claimants had failed to provide sufficient particulars to demonstrate a multiplicity of actions with common points at issue and a reasonable prospect of success: Austin v Miller Argent (South Wales) Limited [2011] EWCA Civ 928, [2011] Env LR 32 at paragraphs 39 - 44. She now seeks to pursue her own claim in private nuisance alleging that she is affected by dust and noise which unreasonably interferes with the enjoyment of her home, situated approximately 450 metres from the south west corner of the development site. She claims that this would not happen if the respondent complied with the conditions imposed on its planning permission to mitigate the adverse environmental effects of its activities. She alleges that the nuisance is continuing, and seeks damages for past nuisance and an injunction to restrain future wrongdoing.

In this appeal the appellant argues that the cost of proceeding would be prohibitively expensive unless she is protected by a protective costs order (“PCO”) which would relieve her of any liability to pay costs if she loses. She wants the respondents to pay her own costs if she wins, in the usual way. She accepts that the court would only be obliged to grant a PCO if it is satisfied that the proceedings would otherwise be prohibitively expensive and she is able to rely upon provisions in either the Aarhus Convention, which is concerned with protecting the environment, or an EU Directive which implements it (at least in part), Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment.

After a one day hearing in the High Court at Cardiff, HHJ Jarman QC refused the application and gave permission to appeal.

There are certain findings of the judge by which we are bound. First, he was satisfied that the appellant was a woman of modest means; second, that public funds were not available to fund the litigation; third, that after the event insurance policies were prohibitively expensive; fourth, that she had a reasonably arguable case; fifth, that there will be others who live in the vicinity of the appellant’s home who would also benefit from a successful outcome to this litigation; but sixth, that it was far from clear that it would have any wider impact.

There are now circumstances where a court is obliged to place a limit on costs in what are termed “Aarhus Convention Claims”: see CPR 45.41ff. But these are limited to judicial review cases. Nonetheless it is accepted that in principle the court has power in an appropriate case to order a PCO under the wide case management powers of the court conferred by CPR 3.1. CPR 3.1(2)(m) provides that the court may make any order for the purpose of managing the case and furthering the overriding objective. The overriding objective (CPR 1) is that cases should be dealt with justly which includes ensuring that the parties are on an equal footing and that the case is dealt with expeditiously and fairly.

The Aarhus Convention is entitled the “UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.” It came into force in 2001 and was ratified by the UK in 2005. The purpose of the Aarhus Convention is to encourage members of the public to participate in the decision-making process upon proposals for development affecting the environment (Articles 3, 6, 7 and 8); to ensure that members of the public are adequately informed about matters relating to the environment (Articles 3, 4 and 5); to ensure that independent administrative or judicial processes exist by which the public can participate in and challenge decisions and actions affecting the environment (Article 9); and to promote access to administrative and/or judicial remedies by ensuring that remedies are fair and effective, the process equitable and timely, and the cost of taking action is not prohibitively expensive (Article 9.4). The principal provisions with which we are concerned are those found in Articles 9.2 to 9.4:

“9.2

Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a)

having a sufficient interest, or alternatively;

(b)

maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

9.3

In addition and without prejudice to the review procedures referred to in paragraph 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

9.4

In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

It is clear that Article 9.3 is concerned with a much wider set of procedures than Article 9.2.

Enforcement of the Convention is in the hands of the Aarhus Convention Compliance Committee, a body of practitioners and academics. Whilst this is not a court, its decisions “deserve respect on issues relating to standards of public participation”: per Lord Carwath in Walton v Scottish Ministers[2012] UKSC 44, para 100.

The Treaty itself has not been directly incorporated into domestic law. However, Mr Tromans QC, counsel for the appellant, submits that nonetheless the court has an obligation to give effect to the principle that the proceedings should not be prohibitively expensive for two distinct reasons. First, he relies upon a well established principle of English law that, where possible, UK law should be interpreted and applied in harmony with the UK’s international obligations. This principle, he submits, extends to requiring the discretionary powers of the court to be exercised so as to give effect to Article 9.4.

In the alternative, he submits that the obligation to ensure that the proceedings should not be prohibitively expensive has become binding on the domestic courts via EU law. The contention is that this has been achieved by two distinct routes. First, the Convention has, at least in part, been incorporated into the EIA Directive which is part of domestic law. Second, it is in any event binding by virtue of the fact that the EU itself, as a distinct entity, is a party to the Convention. Mr Tromans says that either way the obligation is binding.

Logically the first question is whether the Aarhus Convention has any application at all to a private nuisance claim of the kind advanced here. If it does not, then since the purpose of the Directive is to implement part of the Convention, it cannot have any purchase either.

There is no direct authority on the point, although the issue was considered in Morgan and Baker v Hinton Organics (Wessex) Limited and CAJE [2009] EWCA Civ 107, [2010] 1 Costs LR 1 (Laws, Carnwath and Maurice Kay LJJ) a case not factually dissimilar to this. The claimant householders had brought an action in private nuisance against the operators of a neighbouring waste management plant, complaining that the plant emitted noise and smells. An interim injunction was granted and later discharged. The claimants were unsuccessful in the action because the judge ruled inadmissible the evidence of an expert. The claimants appealed to the Court of Appeal against the judge’s admissibility ruling and against a costs order resulting in an obligation upon the claimants to pay almost £25,000 to the defendants. As to the costs issue, the claimants argued inter alia that the order was unfair and contrary to Article 9.4 of the Aarhus Convention because it made the proceedings prohibitively expensive. This was premised on the assumption that the private nuisance proceedings fell within the scope of Article 9.3. The application failed because it had been raised for the first time in the Court of Appeal. Accordingly, the court chose not to determine the issue whether Article 9.3 was engaged or not. However, Carnwath LJ, giving the judgment of the court, made certain observations on the point:

“Mr Tromans sought to draw a distinction between actions to vindicate general public rights to a clean environment from actions for private nuisance designed to protect private property rights, the latter being outside the scope of the Convention altogether. However, a literal reading of the provisions does not appear to support that restriction. The “public” as defined may be a single natural person, and the proceedings may be in respect of acts or omissions of “private persons”. We doubt in any event whether it is helpful in practice to draw such a clear distinction. In the present case, the claimants' action is no doubt primarily directed to the protection of their own private rights, but the nuisance if it exists affects the whole locality. The public aspect is underlined by the interest of the Agency and the Council.”

Mr Pereira QC, counsel for the respondent, submits that we should find that private nuisance actions fall outwith Article 9.3. As AG Kokott observed in R (Edwards) v Environment Agency [2013] 3 CMLR 18 at paras 30-32 the purpose of the Aarhus costs protection provisions is to ensure that the public have a wide access to justice so that they are able and willing to take an active part in protecting and safeguarding the environment. The imposition of prohibitive costs would undermine that objective. However, the action in private nuisance is an archetypal private law claim which is designed to protect private property rights: see Hunter v Canary Wharf [1996] 1 AC 655. Moreover, although the appellant contends that she is concerned with the enforcement of certain planning conditions, in fact that issue is not directly raised in the proposed proceedings at all. The only issue is whether there is an unreasonable interference with the reasonable enjoyment of her property; that may be established whether or not there is a breach of conditions. The appellant should be treated no differently to any other claimant seeking to protect his or her interests. The fact that a limited number of others may also be similarly placed as the claimant and suffer similar environmental harm is an insufficient reason to treat private nuisance as an Article 9.3 procedure attracting the safeguards of Article 9.4.

Mr Pereira relies upon the following explanation of the purpose of Article 9 contained in a document The Aarhus Convention: An Implementation Guide (2^nd edition, 2013) at page 206:

“Paragraph 3 creates a further class of cases where members of the public can appeal to administrative or judicial bodies. While applicable to a far broader range of acts and omissions than paragraphs 1 and 2, it allows Parties more flexibility in its implementation. It builds upon the eighteenth preambular paragraph of the Convention and paragraph 26 of the Sofia Guidelines to provide standing to certain members of the public to enforce environmental law. Paragraph 3 envisages that members of the public may enforce environmental law either directly, i.e. by bringing the case to court to have the law enforced (rather than simply to redress personal harm), or indirectly, by triggering and participating in administrative procedures so as to have the law enforced. Public enforcement of the law, besides allowing the public to achieve the results it seeks, may also be a major help to understaffed environmental enforcement agencies.”

Counsel focuses on the contrast made in that passage between enforcing environmental law and simply redressing personal harm. He submits that in essence this case falls into the latter category.

The respondent also heavily relies upon the fact that there is a range of other remedies available to someone in the appellant’s position seeking to vindicate the public interest in a case such as this and which she can utilise at very little expense. In particular, there is available to the appellant the right of any member of the public with a sufficient interest to draw to the attention of the planning authority the alleged breaches of condition with a view to enforcement action. A failure by the local authority to act, if unlawful, would be susceptible to challenge by way of judicial review. Section 79(1) of the Environmental Protection Act 1990 sets out a number of environmental states whose existence will constitute a “statutory nuisance”, including “(d) any dust … arising on industrial trade or business premises and prejudicial to health or a nuisance” and “(g) noise emitted from premises so as to be prejudicial to health or a nuisance”. Section 79 places a duty upon every local authority to inspect its area and, when a complaint is made by a resident, to take such steps to investigate the complaint as are reasonably practicable. By section 80, when satisfied that a statutory nuisance exists, the local authority shall serve an “abatement notice” breach of which will render the defendant liable to a fine in summary proceedings. An unreasonable failure to act to prevent a continuing statutory nuisance may be the subject of challenge in judicial review proceedings.

We see the force of these submissions but in our judgment it would be wrong to exclude all claims of private nuisance from the scope of Article 9.3, irrespective of the potentially significant public interest in the wider environmental benefits which they may bring if successful. As Mr Tromans has emphasised, although there is no definition of the environment in the Convention, it is plain from the broad definition of the concept of “environmental information” that it is intended to be wide. Article 1 makes it clear that it is concerned with individual well-being. It includes as an objective of the Convention the right of every person to live in an environment which is adequate to his or her health and well being. Moreover, the focus of the Convention is on participation, and there is merit in recognising the valuable function which individual litigants can play in helping to ensure that high environmental standards are kept, even if in the process they are also vindicating a private interest.

It seems to us unrealistic to believe that the powers conferred upon public authorities will suffice to achieve the Convention’s objectives. Public bodies are often under staffed and under resourced and do not have the same direct concerns to uphold environmental standards as do members of the public. As the passage in the Implementation Guide referred to above makes clear, action by individuals will be a valuable additional method of ensuring that high environmental standards are maintained. We do not see why in an appropriate case a private nuisance claim should not be treated as one of the judicial procedures referred to in Article 9.3. We recognise that the private nuisance claim does not directly challenge the planning conditions, but we agree with Mr Tromans that in practice evidence of breach will go a long way towards demonstrating that there is an unreasonable interference with the reasonable enjoyment of the property: see Barr and others v. Biffa Waste ServicesLimited [2012] EWCA Civ 312, para 76.

Further support for this conclusion is drawn from the fact that the Compliance Committee has expressly found that the law of private nuisance is part of the UK’s law relating to the environment and as such within the scope of Article 9.3: ACCC/C/2008/23, para 45. This finding was approved by the Fourth Session of the Meeting of the Parties (29 June – 1 July 2011). It is right to say, however, that the UK conceded as much in its response to the complaint (para 47).

More recently the Compliance Committee has confirmed that view. On 24 August 2011 it published its further opinion, upon a complaint made by a consortium of interest groups (ECE/MP.PP/C.1/2010/6/Add. 3). It recorded that (para 137) a private action in nuisance was one means by which an individual could seek review of environmental decisions and actions in compliance with Article 9.3. Again, however, the UK government conceded the point.

In our judgment, therefore, private nuisance actions are in principle capable of constituting procedures which fall within the scope of Article 9.3. Plainly that is not true in all actions in private nuisance. Some, such as a complaint about damage from tree roots or water leaks from an upstairs flat will concern only the claimant’s property and have no wider public interest at all. There must be a significant public interest in the action to justify conferring special costs protection on the claimant.

It seems to us that there are two requirements which have to be met before a particular claim can fall within the scope of the provision. First, the nature of the complaint must have a close link with the particular environmental matters regulated by the Convention, even although the action in private nuisance does not directly raise them. Second, the claim must, if successful, confer significant public environmental benefits. In our judgment, if on the particular facts the court were to conclude that the purpose of the claim was principally to protect private property interests and any public benefit was limited and incidental, it ought not to attract the procedural costs protections afforded by Article 9.4.

Mr Pereira advanced a different but related argument to this effect. He submitted that even on the assumption that a private nuisance claim fell within Article 9.3, that would not justify a PCO if, absent private nuisance claims, there are adequate procedures in place to satisfy the obligations of the United Kingdom under Article 9.4. The claimant should be required to pursue those cheaper alternative routes.

Granting the premise that the range of alternative procedures does suffice to constitute compliance, we do not accept this analysis. The question is whether the particular claimant bringing a specific private nuisance claim can demonstrate that the proceedings are prohibitively expensive. That submission cannot be met by a generalised statement that there are other cheaper procedures available. We would accept, however, that the existence of alternative and potentially cheaper procedure, provided that it affords a realistic, practical and effective remedy, is a relevant factor to consider when a court is exercising its discretion whether to grant a PCO or not. But where it is clear that the public authority is either unwilling or unable to take the necessary action, the only option may be a private action. It is then in our view unrealistic to say that the authority’s lack of action can itself be challenged by way of judicial review. That is hardly an effective way of securing the environmental standards which the Convention is designed to achieve.

As we have said, the appellant relies upon two distinct arguments to support this part of her case. First, Mr Tromans QC, her counsel, submits that the claim can properly be brought within the scope of Article 11. Article 11.1 reflects the precise language of Article 9.2 but for convenience we will repeat it here:

“Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a)

having a sufficient interest, or alternatively;

(b)

maintaining the impairment of a right, where administrative procedural law of a Member State requires this as a precondition;

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.”

Article 11.4 provides, again reflecting the language of Article 9.4 of the Convention, that any such procedure shall be fair, equitable, timely and not prohibitively expensive.

In substance, the argument advanced by Mr Tromans is that there must be a review procedure which enables a challenge to be mounted against the “substantive or procedural legality of acts or omissions.” The objective of minimising environmental harm requires, where necessary, the imposition of planning conditions. Individuals have the legitimate expectation that those measures will be complied with and if not, that enforcement action will be taken. It is not, therefore, a large step to say that the draftsman must have intended that the enforcement process was intended to fall within the scope of the article, otherwise the Directive would be ineffective. On this analysis the relevant act or omission, as required by Article 11, is the failure to comply with the conditions which were designed to give effect to the mitigation measures identified in the environmental impact assessment.

We reject this submission. It is at odds with the plain language of the provision, and indeed the scope of the Directive. Article 1 shows that it is about the “assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.” It is concerned with the process before consent is given. It is not intended to implement in full the Aarhus Convention. It is not therefore surprising that Recital 21 refers to Articles 9.2 and 9.4 of the Aarhus Convention but makes no reference to Article 9.3 which, in our judgment, is the relevant article in play here. Similarly, as we have said, Article 11 reproduces in terms Article 9.2 of the Convention.

In our view, the appellant seeks in effect to bring Article 9.3 of the Convention within the scope of Article 11. That is in substance asserting that Article 9.2 and 9.3 cover the same ground. That is an impossible submission. There have indeed been attempts by the European Commission to frame a Directive on access to justice more generally in environmental matters, as Carnwath LJ pointed out in the Morgan and Baker case, but they have come to nothing. This is an indirect, and in our view misconceived, attempt to bring Article 9.3 into the Directive by the backdoor when it has been excluded by the front.

The submission is also contrary to Court of Appeal authority in R (on the application of Prokopp) v London Underground Ltd [2003] EWCA Civ 961; [2004] Env.L.R. 8. In that case planning permission to extend the East London Line lapsed because of a failure to comply with a condition within the stipulated time limit. This rendered the development unlawful because the lawful commencement of the development had not occurred within the five year period. The local planning authority did not, however, take any enforcement action but instead required the developer to enter into a section 106 agreement which reflected the conditions of the invalid planning consent. The claimant contended that there should have been a fresh planning permission and a new EIA. One of the submissions was that the Directive required not merely that there should initially be a valid development consent but that this should continue throughout the execution of the works. The Court of Appeal (Kennedy, Schiemann and Buxton LJJ) rejected this submission. Schiemann LJ held that the Directive does not attempt to impose on member states detailed control throughout the implementation of a project; it was only concerned with the initial granting of consent. The policing of the development thereafter was left to national authorities in accordance with their own rules. At paras 33-35 Schiemann LJ said this:

“33 The Directive has provisions designed to ensure that “before consent is given” for the Projects identified in the Annexes to the Directive various procedures are carried out and an Environmental Impact Assessment (“EIA”) is made – Arts 2, 5, 6 and 8. Broadly, the developer has to provide certain information and to apply for development consent, the information provided by the developer and any other information gathered by the competent authority must be made available to authorities likely to be concerned by the project and to the public, and the results of consultations and information gathered must be taken into account before development consent is granted.

34

The Directive has been transposed by the Regulations. No formal submission have been made before us as to the legality of this transposition although it seems implicit in Mr Clayton’s argument that he submits that the Regulations have not correctly transposed the Directive in as much as they do not provide for an obligation to take enforcement action in any circumstances.

35 It is common ground that the appropriate procedures were gone through before consent was given. On the face of it the obligations imposed by the Directive and the Regulations have been fulfilled.”

Schiemann LJ then considered an argument, akin to that advanced here, that the Directive should be broadly construed so as not to defeat its purpose. He readily accepted this as an uncontroversial principle but noted that:

“the Directive does not attempt to impose on Member States detailed control throughout the implementation of a project. Many things are left to Member States to sort out as they deem best”,

and then cited as an example a breach of a planning condition. He then added this (para 42):

“I do not accept that the purpose of the Directive will be undermined if Member States are in general left free to police, in whatever manner they regard as appropriate, the progress of a project once it has started ….”

Mr Tromans contends that the facts here are quite dissimilar to those in Prokopp. That may be so, but Schiemann LJ was simply identifying the proper scope of the Directive, and in our view that is critical to the argument advanced here. Article 11 is simply not concerned with this private nuisance claim.

Mr Tromans suggests an alternative route by which he says Article 9.3 has been incorporated into EU law. The EU is itself a party to the Aarhus Convention, and as the CJEU pointed out in the case of Lesoochranárske zoskupenie VLK [2012] QB 606 this means that Article 9.3 is part of EU law.

There are two features to note about this case, however. The first is that the court held that Article 9.3 did not have direct effect. Notwithstanding that, the court reiterated the important principle of EU law that procedures adopted to give effect to EU rights must ensure that those rights can be effectively enforced. The critical premise, however, is that there is an EU right in play. In that case it was a right derived from the Habitats Directive. Mr Tromans submitted that this cause of action in private nuisance is relying upon EU law since it is concerned with a breach of conditions which are designed to meet the problems identified as a result of the EIA, an assessment required by EU law.

We do not accept that submission. First, as we have said the proposed claim does not in terms raise a breach of the conditions at all; it does so only indirectly. Second, even if it can be said that the conditions of planning consent are engaged, that is not a matter of EU law. The appellant has no EU right to the benefit of the conditions, and their enforcement is not the enforcement of an EU right. We therefore reject this submission also.

In our judgment therefore, the Directive is not applicable to any claim of private nuisance although the Convention might be engaged in some claims of that nature. An important question is what significance, if any, the Convention then has when costs are under consideration. In his original skeleton argument Mr Tromans accepted that a court would be under no obligation directly to give effect to Article 9.4 but he submitted that it would be a factor in favour of making a costs order in favour of the appellant. This was the relevance afforded to the Convention by Carnwath LJ in the Morganand Baker case (para 44):

“However, from the point of view of a domestic judge, it seems to us….that the principles of the Convention are at the most something to be taken into account in resolving ambiguities or exercising discretions (along with other discretionary factors including fairness to the defendant).”

However, in his oral submissions he went further and submitted that the proper analysis was that the court was obliged to exercise its discretion to grant a PCO where this would be required by the Convention. He relied in that context upon the principle that UK law should be interpreted and applied in harmony with international obligations and certain observations of Lang J in Venn v Secretary of State for Communities and Local Government and others [2013] EWHC 3546 (Admin) para 36 which suggested that this principle would require a PCO to be granted where the failure to do so would involve a Convention breach.

We do not accept that the principle extends to requiring domestic courts to exercise discretions so as to give effect to those obligations. The House of Lords had to consider this question in R v Home Secretary ex parte Brind [1991] 1 AC 696. The detailed facts are immaterial. A question which arose was whether a discretion conferred upon the Secretary of State had to be exercised in accordance with the European Convention on Human Rights, and in particular Article 10, which had not at that time been incorporated into English law. Lord Bridge explained why it would be inappropriate to adopt this principle in relation to the exercise of discretions (p.747 H to 748F):

“It is accepted, of course, by the appellants that, like any other treaty obligations which have not been embodied in the law by statute, the Convention is not part of the domestic law, that the courts accordingly have no power to enforce Convention rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it. But it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it. Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes. I confess that I found considerable persuasive force in this submission. But in the end I have been convinced that the logic of it is flawed. When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction
which involves no importation of international law into the
domestic field. But where Parliament has conferred on the
executive an administrative discretion without indicating the
precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of
Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function.”

It does not follow, however, that the Convention is entirely irrelevant. IN Rantzen v Mirror Group [1994] QB 670 at 691 Neill LJ considered the potential relevance of Article 10 ECHR to the domestic law of defamation, again before the incorporation of the Convention into domestic law. After citing the principle enunciated in Brind that the provision may be used to resolve an ambiguity, he added:

“It is also clear that Article 10 may be used when the court is contemplating how a discretion is to be exercised. Thus, in Attorney-General v Guardian Newspapers Limited [1987] 1 WLR 1248, 1296, Lord Templeman referred to Article 10 when considering whether the interference with the freedom of expression which the grant of an interlocutory injunction would entail was “necessary in a democratic society” for any of the purposes specified in paragraph 2 of Article 10.”

That is consistent with the observations of Carnwath LJ in the Morgan case.

In our view, therefore, the Article 9.4 obligation is no more than a factor to take into account when deciding whether to grant a PCO. It reinforces the need for the courts to be alive to the wider public interest in safeguarding environmental standards when considering whether or not to grant a PCO.

In the seminal case of R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 in which the concept of a PCO and the conditions for making it were first explained, a strict ‘public interest’ approach to the award of a PCO was applied; the claimant should have no private interest in the outcome. Lord Phillips MR summarised the relevant conditions as follows (para 74):

“74.

We would therefore restate the governing principles in these terms. (1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that (i) the issues raised are of general public importance; the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so …”

Mr Pereira submits that following these principles as a matter of domestic law the court has no jurisdiction to grant a PCO to the appellant because she is pursuing a private right and has a private interest in the outcome of the case.

Since Corner House the courts have emphasised that, like all costs rules, these principles should not be applied inflexibly. Nonetheless, the Court of Appeal reiterated in Eweida v British Airways plc [2009] EWCA Civ 1025, [2010] 1 Costs LR 43, after referring to some of these cases, that the requirement that there should be no private interest remained good law. In so doing Sedley LJ (Carnwath and Smith LJJ agreeing) carefully considered a series of cases which had been taken as stating otherwise (such as Morgan and Baker, R (Buglife) v Thurrock Gateway Development Corporation and Another [2008] EWCA Civ 1209, R (Bullmore) v West Hertfordshire NHS Trust [2007] EWHC 1350 (Admin) but concluded that on a proper analysis they could not be said to have modified the principle.

However, subsequent cases have again emphasised that the fact that a claimant has a private interest would not necessarily and in all circumstances defeat a PCO application. In R (Marina Litvinenko) v Secretary of State for the Home Department and others [2013] EWHC 3135 (Admin) (Goldring and Treacy LJJ and Mitting J), the Divisional Court considered an application for a PCO by the claimant who sought, in judicial review proceedings, to challenge a decision by the Secretary of State not to order a public inquiry into the circumstances of her husband’s murder. The murder was notorious for the suspicion of involvement by Russian state agents. The court was required to apply the Corner House Research public interest condition. The court found that there was plainly an important public interest in the proceedings in addition to the wife’s private interest. The issue at stake was whether the UK’s obligations under Article 2 ECHR could be discharged by an investigation having the limited procedural powers of a Coroner’s Inquest. Having considered various authorities, including Eweida, Goldring LJ said at paragraph 26:

“26… In short, in my view Mrs Litvinenko’s private interest in her claim is a factor to take into account when balancing the other Corner House criteria. In the circumstances, having regard to the public interest in her claim, it is not a factor which would prevent me making an order …”

In reaching that conclusion he relied upon some observations of Richards LJ in R(Young) v Oxford City Council [2012] EWCA Civ 46 in which he commented that the existence of a personal interest was not fatal to the making of a PCO, although it was a factor relevant to consider in the exercise of discretion.

Accordingly, we would accept that the mere fact that the claimant has a personal interest in the litigation does not of itself bar her from obtaining a PCO.

The judge did not make a finding whether this private nuisance action fell within the scope of Article 9.3 or not. No doubt this was because he was satisfied that even if it did, he would refuse the application. His reasons were summarised as follows:

“Insofar as I have a discretion to make the order sought, then I would decline to make it. I accept that there is a greater public interest element in this case than there was, for example, in Eweida. I accept also that the proposed proceedings have a reasonable prospect of success and are likely to involve issues as to whether there has been a breach of the conditions in question, and that any injunction is likely to benefit other homes in the immediate vicinity of Mrs Austin’s home. However, it is uncertain whether any injunction would benefit homes in other vicinities close to the development which covers a large area. Any remedy is likely to be directed to the precise conditions prevailing at Mrs Austin’s home and may well be implemented in practice without any significant change in the development processes as a whole.”

We read this as the judge saying that he doubted whether there was any significant public interest in Mrs Austin’s private nuisance claim.

We agree with the judge that the public benefit is both relatively limited and uncertain in this case. We accept that her claim in private nuisance is sufficiently linked to the development because it is likely, at least indirectly, to raise issues concerning compliance with the planning conditions imposed to mitigate environmental harm. But having regard to the limited public benefit which this action would achieve, we are not satisfied that it falls within the scope of Article 9.3.

But even if it does, the question is whether we should interfere with the judge’s conclusion that no PCO should be granted. We do not think that we should. In addition to the matters identified by the judge, there are a number of other factors here which in our view point against making the order. The first is the strong element of private interest in the claim. The second is that although Mr Tromans told us that Mrs Austin had contacted the Council with her complaints, we had no satisfactory evidence demonstrating that this potentially cheaper statutory route had been properly and adequately explored. A third is the fact that this respondent is a private body using its own private resources, and we think it of some relevance to this application that it has already had to pay out considerable sums in costs in relation to the GLO claim unsuccessfully brought by the appellant. Even having regard to Article 9.4 as a factor necessarily to be considered in the exercise of the court’s discretion, and recognising that the appellant is of modest means, we are not satisfied that the judge erred or that it would otherwise be just to impose a PCO in this case.

We should add that had we been inclined to grant the order we would not have disturbed the judge’s assessment that there should be reciprocal cost capping of £7,500 and £40,000 respectively. There could in our view be no justification for requiring the respondents to bear the whole of their costs even if successful.

Accordingly, the appeal is dismissed.