Protective costs order tests

R (on the application of Garner) (Applicant) v Elmbridge Council (Respondent) & (1) Gladedale Group LTD (2) Network Rail (Interested Parties) QBD (Admin) (Nicol J) 3 March

The applicant applied for a protective costs order in its judicial review claim against the respondent local authority. A developer had sought to develop sites near the Thames at East Moesley, namely the Jolly Boatman and Hampton Court Station sites, opposite Hampton Court Palace, a listed building. The development involved, among other things, constructing a hotel. English Heritage had accepted the development in principle, but the applicant and Historical Royal Palaces made objections. The local authority granted planning permission, but required the site to be developed in accordance with a specified classical design scheme. The applicant, who despite not being a resident in the borough had a particular interest in Hampton Court Palace, questioned the local authority’s approach to a flood risk assessment in respect of the site and the impact of the development on the setting of the palace and sought judicial review of the local authority’s decision. The main issues for the purposes of determining whether a protective costs order should be made were whether (i) the issues raised were of general public importance and the public interest required that those issues should be resolved; (ii) it was fair and just to make the order, having regard to the applicant’s financial resources, and whether, if the order was not made, the applicant would probably discontinue the proceedings and would be acting reasonably in so doing.