Earlier this month, the High Court handed down judgment in R (on the application of Bertoncini) v London Borough of Hammersmith and Fulham (and the interested party). The decision is worth noting, particularly for developers.

Bertoncini had been refused permission to proceed with his judicial review challenge and his cost cap had been increased from £10,000 to £20,000 in total. This was of particular importance to the interested party as it was unlikely that it would receive any costs if the lower limit were applied. 

The court very shortly dismissed Bertoncini’s argument that the third party did not have the standing to apply for such a variation to the cost cap. The court went on to support the interested party’s costs award which included counsel’s and solicitor’s fees, plus the cost of an expert witness. 

His Honour Judge Bird stated that the interested party should have their costs paid and to do otherwise would disincentivise participation in proceedings of this kind. The voice of the interested party is an important one.

When can planning permission be challenged?

The grant of planning permission can be challenged by way of judicial review. Judicial reviews are not cheap. The total legal cost of even the simplest of challenges can easily be in the range of £20,000 to £30,000, but the total costs are regularly much more than this when two or three sets of legal teams gear up for a full day’s hearing. 

In the six weeks following the grant of planning permission, the local planning authority and the successful applicant face an uncertain period when judicial reviews can be commenced. Planning authorities with public funds are unlikely to welcome a challenge. However, it is harder for the applicant who, prior to this decision aced the real possibility that the costs of steps they take to protect their planning permission are unlikely to be recoverable. 

Worse still, some claims are brought specifically to delay and frustrate planning permissions despite them having limited prospect of success. The judicial process offers some protection against un-meritorious challenges in the form of refusing  permission and by flexing the cost cap in the event of frivolous claims. 

What is the costs cap and when does it apply?

The Aarhus Convention is a European wide convention which, among other things, promotes access to justice for environmental issues. By access to justice this primarily means that litigants are not put off commencing challenges due to the costs of such challenges.

The worst case outcome for the litigant bringing the challenge is losing and having to pay their own legal costs and those of the defendant council. This is where the Aarhus Convention comes into play. The judicial review of a planning permission is an environmental claim and Aarhus allows the challenger to take the benefit of costs cap. The cost cap manages the claimant’s cost exposure. By securing a costs cap the claimant knows how much they may have to pay out at the outset.

The starting point for a claimant’s cost cap is £5,000 if they are an individual and £10,000 if they are a business. If they lose they pay the defendant up to the cap, together with the costs of their own legal advisors. There is a reciprocal cap of £35,000 on what they can recover from the defendant should they win.

This default cost cap can be varied on application to the court. The court can increase or decrease the cap or remove it altogether if satisfied that to do so would not make the costs of the proceedings prohibitively expensive for the claimant. This requires, among other things, an assessment of the claimant’s financial resources which are disclosed by the claimant at the outset.

TLT has extensive experience in judicial reviews. If you would like to discuss your requirements, please get in touch.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2020. Specific advice should be sought for specific cases. For more information see our terms & conditions.


Date published

16 June 2020


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