Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSIH 30
	XA52/13 OPINION OF LORD DRUMMOND YOUNG In an Appeal to the Court of Session Under Section 239 of the Town and Country Planning (Scotland) Act 1997 by SALLY CARROLL Appellant; against A decision of a Local Review Body of Scottish Borders Council _______________

Act: Poole QC; Francis Gill & Co

Alt: (Respondent) Scottish Borders Council: Burnet; bto

Interested Party: (Firm of SR Findlay): van der Westhuizen; CMS Cameron McKenna

12 July 2013

[1] The appellant lives in Cockburnspath. An application has been made to Scottish Borders Counsel for the erection of two wind turbines, each 110 metres high, on land to the south west of Neuk Farm, Cockburnspath. The interested party, the firm of SR Findlay, are the owners of the site where it is proposed that the wind turbines should be erected and are the applicants for planning permission. On 21 March 2013 Scottish Borders Council decided to grant planning permission for the turbines. They appear as respondent.

[2] The appellant objected to the grant of planning permission for the turbines. She states that they will be one kilometre from her home, highly visible from it, and will adversely affect the views from her windows and garden and her residential amenity. She avers that it is likely that she will experience difficulty in selling her home in the future, and its value will be reduced even if she can find a buyer. She has appealed against the decision to grant planning permission on the ground that it was not within the powers accorded to the respondent under the Town and Country Planning (Scotland) Act 1997 and that the relevant requirements of that Act have not been complied with.

[3] The appellant avers that the site proposed for the turbines is in coastal farmland in the north eastern part of the Borders region. It is approximate to the highly sensitive coastal margin, and is within two kilometres of the Berwickshire Coast Special Landscape Area, within four kilometres of the Lammermuir Hills Special Landscape Area, within one kilometre of the Dunglass Historic Garden, within two kilometres of the Southern Upland Way, and close to conservation areas at Oldhamstocks and Cockburnspath and to the Berwickshire Coastal Path. The respondent has issued supplementary planning guidance on wind energy which includes a spatial strategy for wind farm development. Under that strategy the proposed site is within the second most protected area against wind farm development, out of five categories, and is next to Cockburnspath, which is in the most protected category.

[4] The first application for the direction of two wind turbines on the site was made in 2010 by the interested party, with a company known as Wind Direct as their agent. This was refused on the basis that the proposal was contrary to the development plan for the area. An application was resubmitted, but on 2 October 2012 the respondent's planning officer refused the application, once again on the ground that it was contrary to the development plan. The developers sought a review, which took place before a Local Review Body, consisting of five councillors of the local authority; provision for such bodies is made in section 43A(8) of the 1997 Act. The Local Review Body met on 18 February 2013 to consider the present application and other business. The appellant avers that, after discussion by councillors and a presentation by the respondent's planning officer, but without any site visit and without hearing from the applicant or other objectors, a vote was held. The recommendation of the planning officer was overturned by a majority of three councillors to two. On 21 March 2013 a written decision was issued by the respondent which granted planning permission subject to certain conditions. In this decision the respondent found that the development was consistent with the development plan. That was not in accordance with its earlier decisions.

[5] The appellant has now appealed to the Court of Session under section 239 of the 1997 Act. She contends that the decision to grant planning permission is not within the powers granted by the 1997 Act and that the relevant requirements of that Act have not been complied with. Specifically, she contends that:

1. The respondent failed to take into account a material consideration, in that they ignored the provisions of their own Technical Guidance Note for the determination of applications to construct wind farms below 200 MW in Berwickshire. The respondent had commissioned a study to prepare the Note, which had been available from October 2012, and had been used by Council officers. The Technical Guidance Note gave specific guidance on coastal farmland, stating that there would be high sensitivity to turbines above 50 metres in height and finding that there was no scope for large (80 metres plus) and medium (50-80 metres) turbines in that area. The decision to grant planning permission for the two turbines of 110 metres gave no consideration to the Technical Guidance Note, or at any rate made no mention of it in the decision.
2. The respondent erred in law in failing to have proper regard to Policy I20 of the Scottish Borders Structure Plan. That policy states that proposals for wind energy developments will be assessed against six criteria, which include impact on the landscape character of the area and, separately, any unacceptable cumulative impacts. In view of the location of the site and the multiplicity of wind farm applications either granted or pending in the area, the question of cumulative impact was an important consideration. The planning officer had described cumulative impacts as "particularly high and alarming" in the earlier refusal of planning permission of 2 October 2012. In failing to address this matter, the respondent also acted contrary to its own Supplementary Planning Guidance. Even if regard were had to those factors, inadequate reasons were given for the decision, in that there were no findings identifying other sites relevant to cumulative impact, or determining what the cumulative impact was and how it bore on the present decision.
3. The respondent further erred in law in failing to have proper regard to Policy H2 of the Scottish Borders Consolidated Local Plan. Policy H2 protects residential amenity. Scottish Planning Policy at paragraph 190 provides that a separation distance of up to 2 kilometres between "areas of search" and the edge of cities and towns is recommended to reduce visual impact. The Supplementary Planning Guidance states that there is a presumption against turbines within two kilometres of any residence. The proposed development is approximately 1 kilometre from the appellant's home and the village of Cockburnspath. No mention of that is made in the decision.
4. The respondent erred in law in its application of Policy D4 of the Local Plan. That policy provides that if there are significant adverse impacts on the natural heritage, including landscape, recreation and tourism which cannot be mitigated, the development will only be approved if the respondent is satisfied that the contribution to wider economic and environmental benefits outweighs the potential damage to the environment or to tourism and recreation. In this respect, it is said that (i) the respondent did not identify what the adverse impacts of the development were; (ii) the respondent's determination of economic benefit contained material errors of fact in relation to the existence of planning permission at a quarry neighbouring the site of the turbines, and there were no clear findings as to the level and nature of the economic benefit; (iii) the respondent failed to have regard to certain provisions of the Structure Plan and the Local Plan, together with article 1 of the First Protocol to the European Convention on Human Rights, in that it did not assess whether the economic benefit to a local business could be obtained in a way that minimized harmful environmental impacts.
5. The respondent acted unfairly and in breach of natural justice in reaching its decision on planning permission without hearing objectors; it had written to objectors including the appellant on 8 January 2013 telling them that they had no right to be heard at the meeting of the Local Review Body. The Local Review Body did not permit objectors to be heard in any way.

Rule of Court 58A and protective expenses orders

[6] Following the lodging of the appeal, the appellant enrolled a motion for a protective expenses order in terms of Rule of Court 58A, which failing at common law, in such a way as to limit her potential liability in expenses to the respondent (the Council) and the interested party (the developer) to a cumulative total of £5,000, and to limit the liability in expenses of the respondent and the interested party to the appellant to £30,000. In the event that that part of the motion were granted, the appellant also has a motion for interim suspension of the planning decision of the Council reached on 21 March 2013 to grant planning permission for the two wind turbines, and for remit to the Outer House for determination. In the event the latter two parts of the motion were not opposed, and I accordingly remitted the appeal to the Outer House and granted interim suspension as sought. Thereafter, sitting in the Outer House, I determined the motion for a protective expenses order.

[7] A protective expenses order has for some time been available at common law. In general, the Scottish courts have followed similar principles to those laid down for England and Wales in R (Corner House Research) v Secretary of State for Trade and Industry, [2005] 1 WLR 2600. Since 25 March 2013, however, provision for a protective expenses orders has been expressly made in the Rules of Court, in the form of Rule 58A, introduced by Act of Sederunt (Rules of the Court of Session Amendment) (Protective Expenses Orders in Environmental Appeals and Judicial Reviews) 2013 (SSI 2013 No 81). Rule 58A was introduced to implement the obligations incumbent on the United Kingdom under the law of the European Union. This was initiated following the adoption of the Åarhus Convention (technically, the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters) in 1998. The Convention was intended to encourage public participation in public decisions on environmental matters, including access to the courts. The Convention was followed by a number of EU legislative measures, which were in large measure consolidated in Directive 2011/92/EU, passed on 13 December 2011, on the assessment of the effects of certain public and private projects on the environment. The Directive was concerned in particular with challenges to planning decisions that might impact on the environment. Article 11 of the Directive provided as follows:

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

(a) having a sufficient interest,...

have access to a review procedure before a court of law... to challenge the substantive or procedural legality of decisions, acts or omissions subject to the public participation provisions of this Directive.

...

4.... Any such procedure shall be fair, equitable, timely and not prohibitively expensive".

[8] An earlier version of article 11 had formed part of the Directive 2003/35/EC, which was followed by public consultation in Scotland to determine how it might best be implemented: the consultation paper is that on Legal Challenges to Decisions by Public Authorities under the Public Participation Directive 2003/35/EC, published in January 2012. The consultation exercise resulted in rule 58A. It is clear in my opinion that that rule must be interpreted in the light of the European Directive and case law in the European Court of Justice elaborating on the meaning of the Directive. I will return later in this opinion to this aspect of the legislation. Rule 58A, so far as material, is in the following terms:

"Application and interpretation of this Chapter

58A.1. (1) This Chapter applies to-

(a) applications to the supervisory jurisdiction of the court;

...

which include a challenge to a decision, act or omission which is subject to, or said to be subject to, the public participation provisions of -

(c) Directive 2011/92/EU of 13^th December 2011 on the assessment of the effects of certain public and private projects on the environment;

...

(2) In this Chapter, references to applicants who are individuals do not include persons who are acting as a representative of an unincorporated body or in a special capacity such as trustee.

(3) In this Chapter, references to a respondent's liability in expenses to the applicant or, as the case may be, an applicant's liability to the respondent means that of all respondents in the proceedings.

...

Availability of protective expenses orders

58A.2 (1) Subject to paragraph (2), a petitioner in an application, or, as the case may be, an appellant in an appeal to which this Chapter applies may apply for a protective expenses order.

(2) The applicant must be-

(a) an individual; or

(b) a non-governmental organization promoting environmental protection.

(3) A protective expenses order is an order which regulates the liability for expenses in the proceedings (including as to the future) of all or any of the parties to them, with the overall aim of ensuring that proceedings are not prohibitively expensive for the applicant.

(4) Subject to paragraph (6), where the court is satisfied that the proceedings are prohibitively expensive for the applicant, it must make a protective expenses order.

(5) For the purposes of this rule, proceedings are prohibitively expensive for an applicant if the applicant could not reasonably proceed with them in the absence of a protective expenses order.

(6) The court may refuse to make a protective expenses order if it considers that-

(a) the applicant has failed to demonstrate a sufficient interest in the subject matter of the proceedings; or

(b) the proceedings have no real prospect of success.

Applications for protective expenses orders

58A.3...

(4) A motion [for a protective expenses order] shall-

(a) set out why the applicant is seeking the order;

(b) be accompanied by any supporting evidence which the applicant intends to refer to in making the application;

(c) set out the terms on which the applicant is represented;

(d) be accompanied by a schedule estimating-

(i) the expenses of the applicant in relation to the proceedings in respect of which the order is sought; and

(ii) the expenses of each other party for which the applicant may be liable in relation to the proceedings in respect of which the order is sought;

...

Terms of protective expenses orders

58A.4 (1) Subject to paragraph (2), a protective expenses order must contain provision limiting the applicant's liability in expenses to the respondent to the sum of £5,000.

(2) The court may, on cause shown by the applicant, lower the sum mentioned in paragraph (1).

(3) Subject to paragraph (4), a protective expenses order must also contain provision limiting the respondent's liability in expenses to the applicant to the sum of £30,000.

(4) The court may, on cause shown by the applicant, raise the sum mentioned in paragraph (3).

(5) A protective expenses order may-

(a) exclude any party's liability and expenses to any other party;

(b) limit any party's liability and expenses to any other party;

(c) provide that no party will be liable for the expenses of any other party;

(d) include provision-

(i) as to a party's liability in expenses if the applicant is successful in the proceedings;

(ii) as to a party's liability in expenses if the applicant is unsuccessful in the proceedings; or

(iii) as to a party's liability in expenses regardless of the outcome of the proceedings.

Determination of terms of a protective expenses order

58A.5 (1) In deciding the terms of a protective expenses order, the court shall (subject to rule 58A.[4])... take into account all the circumstances, including -

(a) the need to ensure that it is not prohibitively expensive for the applicant to continue with the proceedings;

(b) the extent to which the applicant would benefit (whether financially or otherwise) if successful in the proceedings to which the order would apply;

...".

In the text of the opening part of rule 58A.5(1) the words in parentheses are "subject to rule 58A.3(1)". This does not appear to make sense, and in my opinion it must be a drafting error. I have accordingly substituted the words "subject to rule 58A.4", which I think is clearly what was intended.

The requirements of Rule 58A

[9] As I have mentioned, rule 58A is intended to implement EU directives, latterly Directive 2011/92/EU, and must therefore be construed in accordance with those directives. The predecessor of Directive 2011/92/EU was considered by the European Court of Justice in R (Edwards) v Environment Agency, Case C-260/11, in the context of the remedies that are available in English law to challenge administrative decisions that have an impact on the environment. The judgment of the Fourth Chamber of the Court of Justice states a number of principles arising out of the Directive that are material for the interpretation of rule 58A. First, the Directive must be given "an autonomous and uniform interpretation throughout the European Union, which must take into account the context... and the purpose pursued" (paragraph 29). That is of course a principle that is generally applicable to all EU legislation. Secondly, the requirement that litigation should not be prohibitively expensive (article 11(4)) "concerns all the costs arising from participation in the judicial proceedings" (paragraph 27). Thirdly, the relevant European legislation is intended to give the public "wide access to justice" and in so doing to preserve, protect and improve the quality of the environment and to encourage public participation in that task (paragraphs 31-32). Fourthly, the requirement in the directive that judicial proceedings should not be prohibitively expensive

"means that the persons covered by those provisions should not be prevented from seeking, or pursuing a claim for, a review by the courts that falls within the scope of those articles by reason of the financial burden that might arise as a result" (paragraph 35).

Fifthly, in assessing the requirement that the cost of litigation should not be "prohibitively expensive", the Court, after referring to the interest of the person wishing to defend his rights and the public interest in the protection of the environment, continued:

"40. That assessment cannot, therefore, be carried out solely on the basis of the financial situation of the person concerned but must also be based on an objective analysis of the amount of the costs, particularly since... members of the public and associations are naturally required to play an active role in defending the environment. To that extent, the cost of proceedings must not appear... to be objectively unreasonable. Thus, the cost of proceedings must neither exceed the financial resources of the person concerned nor appear... to be objectively unreasonable.

41. As regards the analysis of the financial situation of the person concerned, the assessment which must be carried out by the national court cannot be based exclusively on the estimated financial resources of an 'average' applicant, since such information may have little connection with the situation of the person concerned.

42. The court may also take into account the situation of the parties concerned, whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure and the potentially frivolous nature of the claim...".

[10] The application of the European Directives in this area to protective costs orders in England and Wales has been the subject of court decisions, notably the decision of the Court of Appeal R (Garner) v Elmbridge BC, [2011] 3 All ER 418. This is, however, the first case where rule 58A and its background in EU law have been considered in Scotland. Some assistance can be obtained from Garner in identifying detailed issues that are likely to arise in relation to Scottish protective expenses orders under rule 58A, and I will consider these subsequently. Nevertheless, I am of opinion that the important principles that govern this area of law emerge from the European decision in Edwards.

[11] Rule 58A must be given an interpretation that is both purposive and contextual. That appears from the judgment in Edwards, but it is a principle that applies to domestic legislation, at least outside the sphere of criminal law, just as much as to European legislation. The immediate context of rule 58A is obviously found in the Directive 2011/92/EU; the wider context is that of administrative decisions that may affect the environment, and the means whereby members of the public and interested organizations can challenge such decisions in the courts. The specific requirement of article 11 of the Directive, as interpreted in Edwards, is that environmental litigation "should not be prohibitively expensive". This has been explained as meaning that the cost of litigation should not be allowed to prevent claims for judicial review of administrative decisions that affect the environment. The purpose of rule 58A is thus to ensure that individuals and voluntary organizations can mount legal challenges to such decisions without the fear that, if unsuccessful, they will be liable for large sums in expenses. It is obvious that the risk of liability and expenses is a major disincentive to any form of environmental litigation, and indeed public interest litigation of any sort. The technique that is used in the rule is to permit the court, at a very early stage in the litigation, to fix a maximum limit on the liability that the applicant will incur to any respondents in the event that his or her challenge is unsuccessful; rule 58A.4 sets the default liability at £5,000, although the court is given power to lower that sum on cause shown. This obviously creates the risk that those challenging environmental decisions will run up large accounts of expenses and seek to recover those if they are successful from the relevant public authority. To limit this risk, the protective expenses order must limit any liability of the respondent in expenses to the sum of £30,000; once again, that sum may be raised on cause shown. In addition, a number of miscellaneous powers are available under rule 58A.4(5) to exclude or limit liability in expenses, but it is clear that those powers are only exercisable in special circumstances, when cause has been shown by one of the parties to the litigation.

[12] As to the detailed considerations that are relevant in determining whether a protective expenses order under rule 58A should be made, four particular features are in my opinion of importance. First, the person who seeks such an order must establish that the intended proceedings fall within the scope of the rule, as set out in rule 58A.1(1)(c), or conceivably (d). In other words, the proceedings must be subject to the public participation provisions of, in the present case, Directive 2011/92/EU. It is unnecessary for me to consider this in detail because in the present case it was conceded that the wind turbine proposals fell within the scope of the Directive. Clearly marginal cases will exist in which the application of the Directive is unclear. In most cases, however, it will be clear whether or not there is an environmental impact; that is essentially a fairly straightforward notion.

[13] Secondly, the applicant for an order under rule 58A must demonstrate that he or she has a sufficient interest in the proposed proceedings; this appears from rule 58A.2(6)(a). It is tempting to equate the word "interest" as used in the rule with interest to sue, but I think that that is too simplistic. Interest to sue is concerned with the very fundamental right to bring proceedings, whereas the rule is concerned with immunity from the normal rules governing liability in expenses. For that reason I am of opinion that a somewhat more stringent test should be used: the person seeking an order under the rule should demonstrate that he or she has a genuine interest in the outcome of the decision that is challenged. Close neighbourhood will normally be sufficient for this purpose, at least if the development involves something that may reasonably be considered visually objectionable or undesirable in some other way. Non-governmental organizations promoting environmental protection (referred to in rule 58A.2(2)(b)) will obviously require to show that the proposals to which objection is taken involve a threat to the environment that falls within their objects. It is important, however, that the test of sufficient interest should be satisfied in every case. In particular, in a case where those directly affected by the proposed development choose not to take action, the court has no reason to extend the immunity accorded by the rule to permit others to do so.

[14] Thirdly, a protective expenses order under rule 58A cannot be made if the court considers that the proposed proceedings have "no real prospect of success": rule 58A.2(6)(b). In my opinion it is important that this requirement should not result in a stringent and detailed examination of the applicant's case. Otherwise there is a danger that hearings on protective expenses orders will develop into something akin to full hearings on the merits of the case; I observe that such a tendency is already apparent in the field of immigration law. That would obviously be time-consuming and expensive. The result would be to add significantly to the overall expenses of the proceedings. This can be illustrated by the present case: the hearing on the protective expenses order lasted the better part of a day, whereas it was thought that the full hearing would last for two days. Thus it is likely that the expenses of court appearances have been increased by approximately half as a result of the application for the order. Regular increases of that nature would defeat the objectives of the rule and the underlying Directive, which are designed to reduce the financial burden of environmental litigation on those who challenge planning decisions and the like. Consequently I consider that the question of whether a real prospect of success exists should not be looked at too closely. The meaning of the expression "real prospect of success" is in my opinion that there should exist an arguable case: something that has more than a remote prospect of success. The test certainly does not require a probability of success. In this connection, it should be noted that in Edwards the Court of Justice stated (at paragraph 42) that a domestic court may consider "whether the claimant has a reasonable prospect of success... and the potentially frivolous nature of the claim". Rule 58A.2(6)(b) accords with that approach. Finally, on the issue of prospects of success, I consider that if the court decides that there is a real prospect of success, it is unnecessary and undesirable to say much by way of explanation. In that event the merits of the proceedings will be decided at a full hearing, and the test that is applicable at that stage is quite different from the test of a real prospect of success.

[14] At this point I should note a further factor that may be relevant in marginal cases. In Edwards the Court of Justice, at paragraph 42, referred to a number of factors that the court may take into account, including the prospect of success and the importance of what is at stake for the claimant and for the protection of the environment. The importance of the proceedings for either the claimant's amenity or the protection of the environment is not expressly referred to in rule 58A. Nevertheless, it is in my opinion a factor of some importance. Rule 58A is concerned with expenses, a matter that has traditionally been regarded in Scotland as falling within the discretion of the court: see, for example, McArthur v Lord Advocate, 2006 SLT 170, per Lord Glennie at paragraph [9], and authorities there cited. That general principle must in my opinion apply to the rule. Consequently it is in my opinion relevant for the court to consider what is at stake in the proposed proceedings. If that appears important for the amenity of the applicant or the protection of the environment, that is in my opinion a consideration that can be taken into account, at least in marginal cases.

[15] Fourthly, the court must consider the financial resources of the applicant and the likely expenses of the proposed proceedings. That is clear from rule 58A.2(4) and (5): the court must be "satisfied that the proceedings are prohibitively expensive for the applicant", but if it is so satisfied it is obliged to make the order. The expression "prohibitively expensive" is derived from article 11(4) of the Directive. It is explained in paragraph (6): the requirement is satisfied if the applicant could not reasonably proceed in the absence of a protective expenses order. This clearly involves consideration of two elements: the resources of the applicant and the likely expenses that will be incurred in the litigation. The wording of article 11 and its predecessor was considered in England by the Court of Appeal in R (Garner) v Elmbridge BC, supra, and by the European Court of Justice in Edwards at paragraphs 40 and 41. In Garner the issue was raised as to whether the question of prohibitive expense should be decided on an objective basis, by reference to the ability of an "ordinary" member of the public to meet the potential liability for costs, or whether it should be decided on a subjective basis by reference to the means of the particular claimant, or upon some combination of the two bases: paragraph [42]. In Edwards the court indicated that there must be an objective analysis of the amount of the costs of litigation, which must not appear to be objectively unreasonable. As to the financial situation of a would-be litigant, the assessment cannot be on the basis of an "average" litigant, since that may have little connection with the situation of the person concerned.

[16] This is clearly a significant issue. In my view it falls into two parts. So far as the likely expenses of proceedings are concerned, I am of opinion that a wholly objective approach must be adopted: what must be considered is the likely expenses of the proceedings contemplated, on the basis of fair and reasonable charging rates. The complexity of the proposed proceedings may be a relevant factor, however; in Edwards the Court of Justice mentioned this as a relevant factor at paragraph 42. So far as the resources of the applicant are concerned, I consider it appropriate to adopt an approach that is partly subjective and partly objective. I should make it clear that by a "subjective" approach I mean an approach that has regard to the actual resources of the particular applicant, on a fair assessment; I do not mean that the court should have regard to the manner in which the applicant himself considers his own resources. In my opinion the court must first determine the particular applicant's resources, both capital and income. So far as capital is concerned, it is capital that is actually or potentially liquid that counts; it is not realistic to take account of, for example, the applicant's home or business assets, which are obviously essential to his existence. Secondly, the court must consider the applicant's living expenses, liabilities and the like. At this point an element of objectivity emerges, particularly in relation to living expenses: while the starting point must be the particular applicant's living expenses, if these appear extravagant or disproportionately high on an objective basis the court would in my opinion be entitled to take that factor into account. Thirdly, the court must decide whether the likely expenses of proceedings are beyond the applicant's means. At this stage I consider that the approach must be objective: the question is whether the likely expenses are, objectively, beyond the applicant's available income and capital. The question is whether the likely expenses of the proposed litigation are "prohibitively expensive" for a person with the applicant's resources of income and capital, and that must in my opinion be decided objectively; it cannot be the applicant's own views about whether he can fund the litigation that matter, but rather whether the statutory test is satisfied for a reasonable person with the applicant's actual resources. In practice, of course, the probable expenses of environmental litigation of any complexity are likely to be well beyond the means of an ordinary person.

[17] I note that in Garner Sullivan LJ held that the approach to the "not prohibitively expensive" requirement under the Directive should not be purely subjective. So to hold would be inconsistent with the underlying purpose of the Directive, which was to ensure that members of the public who had a sufficient interest should have access to a review procedure which is not prohibitively expensive; that objective would be frustrated if the court were entitled to consider the matter solely by reference to the means of the claimant who happened to come forward, without having to consider whether the potential costs would be prohibitively expensive for an ordinary member of the public concerned: paragraph [46]. It was left open whether a wholly objective approach might be appropriate. For my own part, I consider that the starting point should normally be the resources, both capital and income, of the particular applicant, which is a subjective factor. I say "normally", because it is possible to conceive of an application brought by a wealthy person that was clearly conceived in the public interest. In such a case it might be argued that an objective test should be applied, in order that the underlying purpose of the Directive should not be frustrated, as Sullivan LJ indicated. For present purposes, however, it is unnecessary to express an opinion on this matter. I would, however, repeat my earlier observation, that issues involving litigation expenses are under the control of the court and involve an element of discretion; that discretion should be exercised in such a way as to achieve overall fairness. In this connection, the court should keep in mind the fundamental test: whether the proposed proceedings are "prohibitively expensive"

[18] In relation to the resources of the applicant and the likely expenses of litigation, a further important consideration is how the relevant facts should be established. So far as the likely expenses of litigation are concerned, it should normally be possible for the applicant's solicitors to provide estimated figures, based on their experience of other cases and general charging rates. Rule 58A.3(4)(d) makes express provision to that effect. It is obviously necessary that the scale of the proceedings should be determined, both the length of any court hearing and the likely documents that will have to be prepared. In some cases this may be a matter of some difficulty, at least at the outset of proceedings. Under current Scottish procedure, however, case management hearings should be available to keep the documents within a reasonable scale and to ensure that the actual hearing is properly focused. That should make prediction easier than might otherwise be the case. In the present case, the solicitors acting for the appellant were able to provide reasonable estimates, and I think that this should normally be possible.

[19] So far as the resources of the applicant are concerned, there is obviously an important issue of confidentiality. I note that this was regarded as a difficult question in Garner, where one of the applicants was unwilling to undergo a means test in a public forum: paragraph [51]. In Scotland, however, a fairly straightforward procedure is available to deal with this matter. In trust variation petitions, the amount of the trust funds must always be disclosed, and frequently other financial information about the family concerned will be important. This information is never disclosed in the petition, which is a document open to the public. Instead, it is disclosed in financial statements that form productions in the proceedings. These are confidential to the court and the parties' legal advisers. Exactly the same approach can be used in proceedings for a protective expenses order. Financial resources should be disclosed in an appropriate statement, lodged as a production. This will be confidential to the court and the parties' legal advisers. This is an important point; any wider disclosure of the information contained in the document, if not authorized by the court, would invariably be regarded as professional misconduct. It is essential, however, that the respondents' legal advisers should have access to the information, because clearly they must be in a position to criticize it if that is thought appropriate. If they require outside advice for that purpose, any disclosure must be authorized by the court or by the applicant or his or her legal advisers. In this way proper confidentiality can be preserved.

[20] Although they were not of importance in the present application, I should mention two further features of the Directive 2011/92/EU and rule 58A. First, the only persons who may benefit from the rule are individuals and non-governmental organizations that promote environmental protection; that is expressly provided at rule 58A.2(2). Secondly, at common law, under the so-called Corner House principles (stated in R (Corner House Research) v Secretary of State for Trade and Industry, supra, at paragraph [74]), it was necessary for a protective expenses order that the issues raised should be of general public importance and that the public interest should require that those issues should be resolved. It was further required that the applicant should have no private interest in the outcome of the case. None of these requirements applies to rule 58A. In relation to the issues of general public importance and public interest, in Garner Sullivan LJ stated (at paragraph [39]):

"[T]here is no justification for the application of the issues of 'general public importance'/ 'public interest requiring resolution of those issues' in the Corner House conditions. Both Åarhus and the Directive are based on the premise that it is in the public interest that there should be effective public participation in the decision-making process in significant environmental cases...; and an important component of that public participation is that the public should be able to ensure, through an effective review procedure that is not prohibitively expensive, that such important environmental decisions are lawfully taken. In summary, under EU law it is a matter of general public importance that those environmental decisions subject to the Directive are taken in a lawful manner, and, if there is an issue as to that, the general public interest does require that the issue be resolved in an effective review process"

I respectfully agree. As Sullivan LJ went on to indicate, under the Marleasing principle (Marleasing SA v La Comercial Internacional de Alimentación SA, Case C-106/89; [1990] I ECR 4135), domestic law must be made to conform with the Directive.

[21] The requirement in Corner House that the applicant should have no private interest in the outcome of the case is perhaps strange to a Scots lawyer, in that Scots law normally requires interest to sue before any proceedings can be brought. Whether any such requirement would have been possible at common law in Scotland is accordingly open to doubt. Nevertheless, there can be no doubt that no such requirement exists under rule 58A. In general, I am of opinion that rule 58A should be interpreted according to its own terms, in the light of the Directive and cases such as Edwards and Garner, which deal with the requirements of the Directive. In view of the width and scope of the rule, it is perhaps unlikely that there will be great demand in future for protective expenses orders at common law.

Procedural issues

[22] A number of procedural issues were canvassed in argument. Not all of these were directly relevant to the present case, but I was invited to express a view in the hope that it might give some guidance to those seeking or opposing protective expenses orders in the immediate future. First, the financial limits specified in rule 58A.4(1) and (3) may be varied, by lowering the amount of the applicant's liability below £5,000 or raising the limit on the respondent's liability above £30,000. It is clear that amount specified in the rule are the default position, and special cause would require to be shown for varying them. In the present case, counsel for the appellant sought orders in accordance with paragraphs (1) and (3) of sub-rule 4, and consequently the criteria for variation were not discussed. It appears to me, however, that the figures selected have been chosen to represent a realistic amount in what may be called a "standard" environmental case. The figure of £5,000 might be reduced if the case were plainly of importance to the applicant and he or she had very limited financial resources. I think that the importance of the case would have to be demonstrated in such a case, however. The figure of £30,000 might be increased in a case that was likely to take more than the standard length of time, possibly because of the complexity of the legal issues. In some cases, too, the public importance of the issues raised might have a bearing on whether these figures should be altered.

[23] I was invited to say something about the documents required in an application of this nature. Rule 58A.3(4) gives a general indication of the documents that are required. In the present case, as well as the standard documents relating to the challenge to the planning decision, I was provided with a number of documents directed towards the need for a protective expenses order, which complied with rule 58A3.(4). Five schedules were provided, stating

1.    the estimated expenses that would be incurred by the appellant in the appeal, on the assumption of a two-day hearing in the Outer House;

2.    the estimated expenses of the respondent (Scottish Borders Council) in the appeal, on the same assumption;

3.    the estimated expenses of the interested party, on the same assumption;

4.    a statement of the appellant's financial resources, including capital and income; further documents were lodged to vouch the figures in this statement, including bank statements and a statement of a government savings account;

5.    the terms on which the appellant is to be represented, including the fees to be charged by counsel and solicitors.

Further documents were lodged to set out the financial resources of the respondent (taken from its annual accounts) and the general scale of operation of the wind turbine suppliers connected with the interested party. A number of letters were also lodged concerning the marketability of residential properties in the vicinity of wind turbines, to demonstrate the impact that the construction of turbines may have on their valuation and hence the importance of the present proceedings to the appellant. Finally, an affidavit of the appellant was lodged dealing with the matters that are relevant to the protective expenses order. This was helpful in setting out her position in a definitive form, given under oath. I consider that those documents were sufficient for me to determine the application, and I would envisage that similar productions will be lodged in any future application.

[24] In the present proceedings the appellant is acting on her own, although I was informed that seven others have objected to the proposed development of the wind turbines, and that three of those have a possible direct interest. In some cases it is obviously possible that a number of persons may wish to take action to challenge a proposed development. In that event, I would envisage the normal approach as being to treat each of them as a separate applicant for the purposes of the limit on the applicant's liability in rule 58A.4(1), although that might be varied in individual cases where, for example, the applicants had widely differing financial resources. In such a case, of course, the result would be that the limit of £5,000 on liability and expenses to the respondent would be of less significance, at least if all of the applicants were acting together in the same proceedings. The limit on the respondent's liability in rule 58A.4(3), however, might not be affected, as one set of legal advisers will be involved.

[25] I was invited to comment on the conduct of future applications for protective expenses orders. It was emphasized that the expenses of the application may add significantly to the total cost of challenging planning decision. In my opinion it is plainly desirable that proceedings for protective expenses orders should be kept short and simple, to minimize expense as far as possible. The legal tests that must be satisfied are not demanding, apart from the need to show a direct interest in the proposed development and the need to demonstrate that the proceedings are "prohibitively expensive". In the application for a protective expenses order it should not be necessary to consider the merits of the planning decision in any detail; the test that must be satisfied is that there is a "real prospect of success", which is a fairly low hurdle. Consequently if one or more of the standard grounds of judicial review appear prima facie to be stateable, that should suffice. The applicant must show a sufficient interest in the subject matter of the proceedings, but that will usually be fairly clear from such matters as the respective locations of the proposed development and the applicant's home. So far as financial resources are concerned, the schedules, supporting documents and affidavit used in the present case were helpful, and I would not envisage that any more than that will be required in a normal case. I should reiterate that all financial information should be contained in productions, which are confidential to the court and the parties' legal advisers; I refer again to what is stated above at paragraphs [18] and [19]. In view of typical expenses of challenges to planning decisions in the Court of Session, which are in my view realistically stated in the appellant's schedules, considerable resources would be required on the part of an applicant if the financial test were not to be met. This may impose significant costs on local planning authorities, but it is in my view an inevitable consequence of the policy underlying the Aarhus Convention and Directive 2011/92/EU.

[26] Submissions were made about the terms of the order, including the position of the interested party. I concluded that for the purposes of the order the respondent and the interested party must be taken together, so that the appellant's liability was limited to a cumulative total of £5,000 to both of them. Correspondingly, I decided that the limit of £30,000 on the liability incurred by the respondent to the appellant should relate to both the respondent and the interested party. In this way the financial limits specified in rule 58A are not affected by the presence of an interested party; the respondent and the interested party are simply taken together. I was also addressed on the expenses of the application for the protective expenses order. It was emphasized by counsel for the appellant that these were quite considerable. I can envisage that that is so; the hearing lasted for most of a day, and considerable documentation was produced, although most of it will relate to the substantive grounds of appeal as well. I decided that the application for a protective expenses order should be treated as a separate hearing for the purposes of expenses. I accordingly found the respondent and the interested party liable to the appellant in the expenses of the hearing. This will not form part of the limit of £30,000 placed on the liability of the respondent and the interested party to the appellant; that sum is in my opinion clearly designed to relate to the expenses of the substantive challenge to the planning decision.

Application of Rule 58A to the present appeal

[27] In my opinion a protective expenses order under rule 58A is justified in the present case. It is accepted that the proposed proceedings fall within the scope of Directive 2011/92/EU. The appellant's home is situated approximately 1 kilometre from the proposed wind turbines. In those circumstances it appears to me that she clearly has an interest in the subject matter of the proceedings; indeed, this was not seriously disputed. I consider that it cannot be said that the proceedings have no real prospect of success. It is not appropriate to consider the merits in detail in such an application, and as I have indicated I consider that fairly summary treatment is all that is required. In the present case, however, the appellant has stated a number of standard grounds of judicial review, relating in particular to departure from planning policies. It is perhaps also significant that this is a case where councillors have proceeded in a manner contrary to the planning advice that they received from officials.

[28] So far as the financial test is concerned, I was provided with adequate financial information about the appellant's resources, and also with what appeared to be a realistic estimate of the expenses of litigation, on the assumption that there is a two-day hearing in the Outer House. On the basis of that information, I concluded that without a protective expenses order the proceedings would be prohibitively expensive for the applicant, in the sense that she could not reasonably proceed with them in the absence of such an order. Most of her living expenses are borne by her husband, who I am informed works in the oil industry and consequently is frequently away from home. To that extent his interest in the proceedings is perhaps somewhat less than that of the appellant, who is, I was informed, a keen gardener and would therefore be directly affected by any wind turbines. In addition, the house in question is the appellant's, not her husband's. In these circumstances I do not consider it appropriate to take the appellant's husband's resources into account. [29] For the foregoing reasons I pronounced a protective expenses order under rule 58A limiting the appellant's liability and expenses to the respondent and to the interested party to a cumulative total of £5.000 and limiting the respondent's and interested party's liability in expenses to the appellant to the sum of £30,000. I further suspended the planning decision and made provision for the lodging of documents prior to a hearing; the timetable required to be amended slightly in order to make allowance for the application for the protective expenses order. I envisage that this may be standard in similar cases in future.