Landlords could face more opposition to development if EU court case succeeds
Brussels takes on London over campaigners’ bills
Housing providers could face a wave of legal challenges over plans to develop new homes if politicians in Brussels win a landmark case in the European Court of Justice.
The news emerged after Labour MEP David Martin wrote to the European Commission about plans to build 45 new council homes in Livingston. Existing residents object to the plans on the grounds that the area provides an important habitat for badgers, otters and bats.
Mr Martin, who represents Scotland in Europe, told the commission that residents could be prevented from lodging valid objections to development by prohibitively high legal costs in the UK, which could be tens of thousands of pounds.
In a written response to Mr Martin, sent last week, the commission revealed it is seeking to challenge the UK government in court to ensure residents are able to legally challenge development in their areas. The case would go ahead next year.
The letter said: ‘With regard to the concerns you have raised about the prohibitive costs of judicial review (in Scotland) for local residents to challenge planning decisions, I should inform you that this is a matter which we have decided to refer the United Kingdom to the Court of Justice (in Luxembourg) with regard to the prohibitive cost of judicial review.’
Legal costs in the UK can prove prohibitive for local campaigners because the loser must pay the winner’s legal fees, in addition to their own. But under the Aarhus Convention, European countries must ensure the public has the right to appeal court decisions which potentially violate environmental law.
An option known as one-way cost shifting - where the loser only pays their legal costs in cases where the financial position of the parties are very difficult - could be a potential compromise solution, according to a report commissioned by the Ministry of Justice last year.
Richard Buxton, an environmental lawyer, said: ‘This is not going to change the way housing development can be opposed, but it could make it more feasible for people who do oppose housing to have access to the courts. The courts have recognised that access to justice should be easier, but progress is glacially slow.’
Anna Condliffe, a professional support lawyer at Herbert Smith, said if the UK is forced to change the cost of challenges then it could lead to more legal challenges to development on environmental matters, adding to hundreds already made annually. ‘If the European Court of Justice orders that our law is incompatible with the convention then people would find it easier to challenge planning decisions,’ she said.
A spokesperson for West Lothian Council said: ‘The council has no control over the planning legislation, and has no control over judicial review procedures, the expense involved, or the way in which costs are awarded.’
The ruling could also impact Inside Housing’s Get on our Land campaign which calls for more land to be brought forward for housing.