Environment and planning cases can affect large numbers of people. CrowdJustice sat down with Adrienne Copithorne of Richard Buxton Environmental and Public Law Solicitors and asked a few questions about how these cases work in practice.
Give us some examples of an environmental or planning case. Do they always affect communities?
They vary tremendously from a challenge to a Nationally Significant Infrastructure Project involving an extension to a hazardous waste facility to a dispute over benches on a village green. Usually more than individuals are affected and some involve large numbers of people, depending on the density of the local population. It is more likely than not though that the issues affect more than the person bringing the claim.
How does legal aid work in environmental cases – in other words, when might someone be eligible? Is the criteria different than in non-environmental cases?
There are two stages for determining whether a case should be granted legal aid. The first is that you have a claimant who is financially eligible by being on a very low income. This normally means someone on a ‘major benefit’ such as job-seekers’ allowance or the guaranteed state pension. You have to have less than £700 disposable income per month and savings of less than £3,000. Anyone with an income or assets above that is deemed to be able to afford to bring a claim - which we all know to be unrealistic. The second stage however is that the claim has to have sufficient prospects of bringing a benefit to the claimant and the wider community who will be affected by the decision being challenged.
You cannot get legal aid for a ‘hopeless’ case or one where the outcome is unlikely to make any difference. The criteria I understand is the same for non-environmental cases but there is an extra safeguard for environmental cases in that legal aid is considered to be one of the ways the UK government fulfils its obligations to ensure access to justice in environmental matters is not prohibitively expensive under the Aarhus Convention.
What is a Community Contribution?
When an individual is bringing a claim on behalf of a community, the Legal Aid Agency (LAA) considers that the community should contribute to the costs as not all of those people will be eligible for legal aid themselves.
The LAA usually proposes a percentage of the overall estimated costs to be raised as a ‘community contribution’ towards the costs. This is not an insignificant sum, usually it is between £3,000-10,000. Legal aid is very beneficial but it is not a ‘free ride’.
Do you see any benefits to communities coming together for local issues that affect them?
Usually people come to us because they feel that a decision has been made by their local planning authority that just does not make sense. They often feel quite angry because they perceive that they made many cogent objections to the development and yet planning permission was granted. They often feel that the developer has just persuaded or pressurised the planning authority to grant permission for something that will harm their environment or their amenity.
Taking action through getting legal advice and potentially bringing a claim helps people to understand the decision better and to feel that they can affect their community, they are not powerless. It is not an easy thing to do but I am always impressed by the fortitude and resourcefulness of my clients. I think they often find that once they have organised a legal challenge that they are able to use that framework to shape other aspects of their community and their environment.
Have you noticed a trend in terms of the ability of clients to get access to legal aid over the last few years?
As mentioned, the legal aid budget for environmental judicial reviews is to some extent ‘ring-fenced’ because of the UK’s obligations under the Aarhus Convention. So we have not seen a significant decrease in the number of legal aid certificates granted but the community contribution is definitely increasing all the time. It used to be more of a token contribution but recently it is comprising a large proportion if not the majority of the funding for the claim. This not unfair of course when you consider how other areas of litigation have had funding cut altogether but it does mean that local communities have to put a lot of effort into raising funds, which is where CrowdJustice really helps to focus fund-raising.
What is the practical effect of legal aid on running a case?
Legal aid definitely is a boon to a claimant who is trying to bring a claim in judicial review. This is perhaps more because it gives protection against adverse costs (ie the risk of having to pay the other side’s costs if you lose) than the funding it gives you towards your own side costs. It does mean we lawyers have to work on very reduced rates and there is a fair amount of paper work but the case managers we deal with are fair and efficient. We advise all of our potential clients to consider it if it is an option.
Anything else?
I would just add that the need to fundraise to bring an environmental claim on behalf of the community is not a new thing, it is just that a platform like CrowdJustice helps to make it more effective and transparent. We hope it will encourage potential philanthropists to contribute to causes that they find interesting as well.
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