Trick or Treat: High Court on Aarhus, PIB Problems & AI in Planning
By the pricking of my thumbs, something wicked this way comes.
Halloween is a big deal in our household. The children have been obsessed with zombies, witches, ghosts and ghouls for weeks now… and this evening’s trick or treating has been planned with military precision. I even have to wear a costume. No one is safe.
It is well known that misery loves company. Since I can’t force you all to don animal ears or silly hats and join us on our annual excursion to demand sweets with menaces… this week’s blog is delivering its planning news with a distinctly seasonal flavour. After all, this is Halloween.
Aarhus on a Haunted Hill
The first terrifying tale on our list is a spine-chilling saga of badgers, redactions and costs protection orders. Well, kind of…. It’s a high court decision on Aarhus.
The Badger Trust & Anor, R (On the Application Of) v Natural England [2025] EWHC 2761 (Admin) is one of those rare judicial review decisions that can be summed up by its opening sentence.
The Hon. Mr Justice Fordham opens by stating:
“1. This is a judicial review case about badgers. But what I have to decide are an issue about the redaction of documents in judicial review and an issue about whether to change the level of the shielding costs caps which are in place to protect the Claimants.”
and that, dear readers, is exactly what he goes on to do.
It is a remarkably clear decision, which provides helpful guidance on both when redaction can be appropriate in judicial review cases, and on the approach to be taken to considering whether to lift or amend the default cost caps set by the civil procedure rules for Aarhus convention cases.
I am not going to spend much time on the redaction issues. However, given that Fordham J provided a handy ‘take away’ point in the judgment, it feels churlish not to include it:
“16. There is, I think, a takeaway point from what happened in this case. Once proceedings are commenced, documents within the court papers which have been redacted need to be considered by the redacting party. That includes where they were disclosed at a pre-action stage and have been filed by another party. The Court needs assistance. There may need to be a reference to an explanation in a pre-action letter, which may need further focus. There may well need to be a witness statement: cf. R (XY) v SSHD [2024] EWHC 81 (Admin) [2024] 1 WLR 2272 at §141. There may need to be an application, raised promptly in the AOS. That is because there are now legal proceedings, there is now the open justice principle, and there is a Court needing assistance as to how to respect the open justice principle and protect any relevant interest.”
The analysis on how the to approach whether to vary cost-caps from the default protections set for Aarhus claims by the civil procedure rules, however, is worth spending a little more time on.
I really can’t improve on Fordham J’s reasoning here – so I am borrowing heavily from the judgment.
“26. In my judgment the significance of the Rule 26 Caps of £5k and £10k is as follows. They supply the initial answer in every Aarhus case, unless and until a Court identifies an appropriate variation based on assessing what would avoid the proceedings being prohibitively expensive. They are not subverted by a variation which would “go behind that figure”: cf. Edwards at §§32-33. But they are not just a placeholder. The Court is, at least, entitled to regard them as “normal” and “general”. That was the language used by the Court in CPRE. In my judgment, it is language which involves no error or misappreciation. The Rule 26 Caps can be taken to have been chosen by rule-makers, on a principled, informed and insightful basis. It can properly be taken that the rule-makers – acting in an informed and insightful way – would have been trying to do three things. First, to have close regard to the importance of access to environmental justice with its accompanying public interest imperative. Second, to avoid chilling consequences for responsible individuals and groups who would wish to access environmental justice in the public interest, by clear signalling accompanied by flexibility of application. Third, to minimise any proliferation of satellite litigation, including its own chilling implications. This is why there is an onus on a party wanting to vary them, whether up or down. This is why a clear demonstration would be needed for a variation, as Natural England accepts. That makes the Rule 26 Caps an even-handed starting point. They can be expected generally to provide an answer, at least in a paradigm environmental protection context, where a claimant seeks access to environmental justice, with undiluted public interest motivations. They are in the nature of a soft presumption. They are a basis for parties to be able to get on with environmental judicial review cases. All of which is why there is an onus, as Mr Luckhurst rightly accepts.
27. I do not think there is more, or less, to it than that. I do not think any of what I have said is a gloss on the rules. I do not think any of is cumbersome or sophisticated. In fact, I think it is very straightforward and easy to understand and apply. It means the Rule 26 Caps involve giving a signal, in a litigation context where signalling particularly matters. They are not just a placeholder. A variation decision does not start with a clean-sheet, as if the Rule 26 Caps did not exist or their levels were unknown.”
“What is Limb (a)?
29. In deciding whether to allow a variation, the central focus is on prohibitive expensiveness. The idea of prohibitive expensiveness of proceedings derives from Aarhus Article 9(4). It is the idea at the heart of the framing of Rule 27 (see CPR 46.27(2)(3)). It is the explanation required of a party seeking a variation (CPR 46.27(5)(a)(b)). It has two limbs. Prohibitive expensiveness Limb (a) is this: where likely costs exceed the claimant’s financial resources (CPR 46.27(3)(a)), having regard to a single mandatory relevancy of third party financial support (see CPR 46.27(4)).
30. What is Limb (a)? I think the answer is this. Limb (a) is about real-world unaffordability of the actual case for the actual claimant, in light of the money which the claimant has or can access. It is really a kind of means test. It is a first way in which a level of costs of proceedings can be prohibitively expensive. That is because Limbs (a) and (b) are an “either … or” for prohibitive expensiveness of proceedings.”
“What is Limb (b)?
“34. Prohibitive expensiveness Limb (b) is where likely costs are objectively unreasonable, having regard to six mandatory relevancies (CPR 46.27(3)(b)). What is Limb (b)? I think the answer is this. It is an objective standard, notwithstanding that the costs are actual costs incurred by the public authority and notwithstanding that they are real-world affordable for the actual claimant. The objective limit is not objective affordability. It is objective reasonableness. It is objective reasonableness to promote and secure access to environmental justice, with its public interest imperative. It is applicable to the contours and character of the parties, and the nature and implications of the proceedings. Hence the six prescribed mandatory relevancies (CPR 46.27(3)(b)).
35. It is vital to understand why there is a second limb. Limb (b) is not a second way to defeat a claimant for whom the proceedings are real-world unaffordable. Limb (b) is a second way to protect a claimant for whom the proceedings are real-world affordable. It arises if the first way has failed. Its premise is that there is real-world affordability. What this means is that, notwithstanding that the costs are the real costs of the actual case, and notwithstanding that the costs are within the claimant’s real-world affordability, they are still assessed as objectively unreasonable. It means there is a second question, after considering the claimant’s means. It starts with real-world unaffordability, but then turns to objective unreasonableness. These are the two, independent bases of prohibitive expensiveness.”
“38. Limb (b) is not framed as a test of affordability. It is framed as a test of reasonableness. With its 6 mandatory relevancies, it looks at the situation of both parties, and the nature and implications of the case as an environmental judicial review. It thinks, deliberately, about what is needed by the environment (factor (iv)). That does not mean over-generosity. It does not mean anything goes. The situation of a claimant (factor (i)) can overlap with facts which also informed real-world affordability. A polluter resisting an environmental protection measure promoted by a public authority is likely to struggle to invoke objective unreasonableness for actual costs which are, for the claimant, real-world affordable. So is a wealthy landowner whose invocation of environmental protection happens to coincide with the protection of “extensive individual economic interests” (Edwards at §28ii). The situation of the defendant public authority (factor (i)) could involve its size and resources, or how its own environmental protection mission could be threatened. There are questions about importance, for the claimant and “for the environment” (factors (iii) and (iv)). There are questions of viability of the claim (factors (ii) and (vi)). There is a question of legal complexity (factor (v)). These are the features which inform whether there should be a shield from the real costs of litigation – albeit that they are real-world affordable for the claimant – by reference to what is an objectively reasonable measure of prohibitive expense, in the public interest world of environmental protection and legal audits of public authority decision-making.”
So there you have it. Maybe not such scary stuff after all…..
Night of the Living PIB
Our second camp-fire ghost story is a tale of things that go bump in the night…. well, sort of… it is yet another tale from the House of Lords report stage for the Planning & Infrastructure Bill.
A sordid and horrifying story of unexpected amendments that lived and hillside hopes that sadly died. Much of it did, however, take place fairly late at night – which is somewhat fitting.
I am only going to focus on a couple of the amendments – largely for space reasons – but it has been a dramatic set of debates so please do read them if you have more time.
Silent Hillside
Firstly, lets turn to the grisly fate of Lord Banner’s Hillside Amendments (105 and 113). These did not survive report stage and have been left, for the moment, on the floor of the House of Lords.
The debate did, however, elicit the following promises from Baroness Taylor of Stevenage:
“Therefore, in response to the concerns, the Government propose a two-step approach to dealing with Hillside. First, we will implement the provisions from the Levelling-up and Regeneration Act for a new, more comprehensive route to vary planning permissions—Section 73B. In practice, we want this new route to replace Section 73 as the key means for varying permissions, given that Section 73 has its own limitations, which case law has also highlighted. The use of Section 73B will provide an alternative mechanism to drop-in permissions for many large-scale developments—although we recognise not all.
Secondly, we will explore with the sector the merits of putting drop-in permissions on a statutory footing to provide a further alternative. This approach will enable provision to be made to make lawful the continued carrying out of development under the original permission for the large development, addressing the Hillside issue. It will also enable some of the other legal issues with drop-in permissions to be resolved.
In implementing Section 73B and exploring a statutory role for drop-in permissions to deal with change to large-scale developments, I emphasise that we do not want these routes to be used to water down important public benefits from large-scale development, such as the level of affordable housing agreed at the time of the original planning permission. They are about dealing with legitimate variations in a pragmatic way in response to changing circumstances over time.”
Whilst s.73B is not a solution to Hillside issues (and was never intended to be) it would be helpful to have another way of amending planning permissions – so fingers crossed that it shows up soon!
Environmental Delivery Plan Massacre
The next amendment of note relates to EDPs and the Nature Recovery Plan.
The House of Lords voted through an amendment (amendment 130) which restricts the scope of EDPs to environmental impacts that effect “nutrient neutrality, water quality, water resource or air quality”.
This is a significant defeat for MHCLG, as it drastically narrows the potential uses of EDPs in the English Planning System – removing protected species and habitat creation from scope with one fell swoop.
The Government had argued against this amendment on the basis that “to limit EDPs in the way the amendment suggests would be to close off the potential that EDPs offer to deliver more than the current system and help support the recovery of protected sites and species, rather than merely offsetting the impact of development”.
So it is likely that this change will be a bone of contention when the Bill gets into ping pong.
The Ghost in the Machine
And finally… we end our Halloween Spooktacular with a modern tale of technology and terror….
Ok. That is entirely untrue.
Instead, I bring news of the MHCLG Augmented Planning Decisions Tender, which launched earlier this week.
MHCLG and the Department for Science, Innovation & Technology* have launched a tender seeking “a planning tool that enables AI-augmented decision making for planning applications.”
The intention is to begin with householder applications, before potentially expanding to advertising consents, change of use applications and listed building consents.
According to the tender notice:
“The objective is to dramatically reduce planning application processing times initially targeting a reduction from upwards of 8 weeks to circa 4 weeks, with a long-term vision of near-instant decisions for straightforward applications. All reduction targets do not include elements that solutions cannot be expected to affect i.e. statutory 21-day consultation periods, site visits, neighbour notifications, external consultee responses, and committee scheduling.”
Proposals will need to demonstrate understanding of the relevant parts of the planning process including administrative processes (e.g. policy research, citation generation, report generation) as well as analytical processes (e.g. material considerations identification, policy compliance assessment, planning balance evaluation, decision reasoning). Solutions should be designed to assist planning officers with the above processes and provide reasoned, verifiable recommendations for decisions. Solutions must be integrated with existing planning systems.”
All of which sounds rather easier said than done!
After all, given where we are at the moment, “near-instant” AI driven planning decisions sounds very much like science fiction… Not least as the application of planning judgment has historically been much more of an art than a science….
Is it still even planning judgment by the decision-maker if the decision-maker is a machine?
All deep philosophising aside, the Demo Day sounds like fun – I am really curious to see what the test scenarios for the new system look like!
Anyway, that’s enough from me. I need to find where we hid the pumpkin and see if we have any face-paints left in the house.
Happy Halloween one and all!
*DSIT?
