Access to justice questioned in Tower Hamlets

A case where the historic building local residents were fighting to protect from the wrecking ball was all but demolished before the courts got round to listening to their arguments has raised questions about environmental justice and the legal process.

R (England) v London Borough of Tower Hamlets

Access to Justice, EIA and protective costs

An English Court of Appeal case has highlighted some of the issues associated with access to justice. The case of R on the application of England v London Borough of Tower Hamlets concerned a challenge by a local resident to the demolition of a historic warehouse canopy to make way for a residential development.

Although the High Court had granted an initial injunction, this had been lifted at the same time as the High Court granted leave to apply for judicial review. Accordingly, by the time the case came to the Court of Appeal (seeking to appeal to removal of the injunction) the demolition was largely complete already.

A central argument of the applicant was that the EIA Directive required that works involving demolition be subject to a consent procedure, and yet under UK planning law such works were, with certain exceptions, not subject to planning permission.

The Court of Appeal conceded that this raised an interesting point, but was reluctant to allow the case to go forward given that the subject matter had already been destroyed, and Mr England’s interest in pursuing the case was also therefore in doubt.

The Court opined that a more efficient method of dealing with this would be by way of a complaint to the European Commission, and they rejected the suggestion that they were acting contrary to their duty under Article 234 of the EC Treaty to refer the matter to the ECJ for a preliminary ruling.

Another issue raised at the hearing was whether the court could make a protective costs order, thereby protecting the applicant from having to pay the winning side’s costs.

Since no formal application for such an order had been made, and because other parties who might be affected had not had a chance to be heard, the court felt it inappropriate to make such an order.

Although he rejected the suggestion, the judge did indicate the importance of developing a method of making an application for a protective costs order without that process in itself becoming an additional financial burden.

He also criticised the guidelines issued by the court in the Corner House case in 2005 insofar as they stated that it was inappropriate to grant a protective costs order where the applicant had a private interest in the outcome of the case.

The case can be accessed at the following link.

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