Halton Borough Council v Secretary of State for Levelling UP, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Stephen Davies |
| Judgment Date | 13 February 2023 |
| Neutral Citation | [2023] EWHC 293 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3239/2022 |
and
[2023] EWHC 293 (Admin)
HIS HONOUR JUDGE Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Case No: CO/3239/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT AT MANCHESTER
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
John Hunter (instructed by Halton Borough Council) for the Claimant
Robert Williams (instructed by Government Legal Department) for the Defendant
No appearance by the First Interested Party
Victoria Hutton (instructed by Pinsent Masons) for the Second Interested Party
Hearing date: 27 January 2023
Draft judgment circulated: 7 February 2023
APPROVED JUDGMENT
Remote hand-down:
This judgment was handed down remotely at 10:00am on 13 February 2023 by circulation to the parties or their representatives by email and by release to The National Archives.
I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
His Honour Judge Stephen Davies
The issues
In this case the court has to determine:
(1) The appropriate test to apply when considering the claimant's application for an extension of time for service of a claim form in a claim for statutory review under s.288 Town and Country Planning Act 1990 (“TCPA”). This question involves deciding whether the approach is mandated by the decision of the Court of Appeal in Corus UK Limited v Erewash BC [2006] EWCA Civ 1175; [2007] 1 P&CR (“ Corus”) which, the claimant submits, is binding precedent for its argument, or is correctly stated by the Court of Appeal in its later decision in Good Law Project Ltd v Secretary of State for Health and Social Care [2022] EWCA Civ 355; [2022] 1 WLR 2339 (“ Good Law”), as the defendant and interested parties contend.
(2) Whether, applying the appropriate test, the claimant is entitled to an extension of time for service of its claim form
(3) Whether the claimant should be allowed to amend the claim form so as to bring the same claim as a claim for judicial review. This application is made on the basis that, because of the differing provisions for service of a judicial review claim as compared with a statutory review claim, the claimant would not have needed to seek an extension of time for service had the claim been formulated as a claim for judicial review from the outset. This question involves deciding the hitherto undecided issue whether or not a claim seeking to challenge an adverse costs decision made following the withdrawal of a planning application during the course of a planning inquiry should be made as a claim for statutory review or as a claim for judicial review.
The applications before the court
In time order the applications before the court comprise:
(1) The claimant's application dated 12 September 2022 for an extension of time for service of the claim form and relief from sanctions (“the extension of time application”).
(2) The defendant's application dated 16th September 2022 for a declaration that the court has no jurisdiction to determine the claim (“the no jurisdiction application”) or, alternatively, an extension of time for filing and serving summary grounds of resistance (“SGR”).
(It is common ground that the no jurisdiction application is a mirror of the extension application and raises no separate issues. The claimant also sensibly accepts that if the claim is permitted to proceed the defendant and the interested parties should have a reasonable extension of time for service of the SGR.)
(3) The application by the second interested party (“Viridor”) seeking similar orders to those sought by the defendant.
(4) The claimant's application dated 23rd September 2022 for permission to amend the claim form and statement of facts and grounds (“SFG”) (“the amendment application”).
The first interested party (“the HSE”) supports the case advanced by the defendant and Viridor but has not itself made the same or similar applications.
Where I refer to the case advanced by the defendant that is shorthand for the case advanced by the defendant and the first interested party and supported by the second interested party and I intend no disrespect to Ms Hutton's submissions in particular in so doing.
The evidence and submissions
The claimant's evidence in support of its extension of time application is a witness statement from Ms Wilson-Lagan, its group solicitor, made 12 September 2022. The defendant and Viridor have responded in witness statements from their respective solicitors Ms File and Ms Hargreaves.
All counsel have produced detailed written submissions and have advanced persuasive oral submissions at the hearing, supplemented by short further written submissions addressing some specific points of law identified at the hearing and requiring further elaboration. I am very grateful to all counsel.
The substantive claim
I can summarise the underlying substantive claim which the claimant is seeking permission to bring. As indicated, it is a claim for statutory review under s.288 TCPA of decisions made by the defendant's planning inspectorate's costs team to award costs against the claimant in favour of the HSE and Viridor in relation to their costs of a planning inquiry held in January 2022.
The inquiry concerned an application by the housebuilding company MJ Gleeson plc for planning permission for 139 dwellings on a site at Sandy Lane, Runcorn. The application had been approved by the claimant but was objected to by the HSE on grounds of public safety and was called in for determination by the defendant under the procedure established by s.77 TCPA.
During the course of the hearing Gleeson withdrew its application once the claimant had informed the inquiry that it could no longer support the application, having considered the evidence given by its expert risk management witness the previous day.
That course of events led to the HSE and Viridor submitting applications for costs against the claimant (and against Gleeson) on the ground that the claimant had acted unreasonably.
Having considered the respective submissions the defendant's costs team made adverse costs orders in favour of the HSE and Viridor against the claimant who, being dissatisfied with those decisions, seeks to challenge them on grounds pleaded in its SFG.
As all counsel agreed, it is not appropriate for me to embark on any preliminary assessment of the merits of the claim in circumstances where no decision has yet been made on the question of permission.
The s288 jurisdiction summarised in the context of this case
The defendant's power to give a direction to “call in” a planning application for his own determination and, if thought appropriate, to appoint a planning inspector to hold an inquiry before making his determination is contained in s.77 TCPA. It is a four stage procedure, viz a direction by the defendant to call in, a decision whether to hold an inquiry or some other procedure, the holding of the inquiry or other procedure and, finally, a determination by the defendant. If there is an inquiry, the defendant is not bound to accept the recommendation of the planning inspector.
Detailed provisions as to the exercise of the power to direct inquiries are found in s.250 Local Government Act 1972 (“LGA 72”). The power to make costs orders is to be found in s.250(5) which permits the defendant to “make orders as to the costs of the parties at the inquiry and as to the parties by whom the costs are to be paid”.
By s.284(1)(g) TCPA the validity of “a relevant costs order made in connection with … an action mentioned in subsection (3) shall not be questioned in any legal proceedings whatsoever except insofar as may be provided by this Part”. Actions mentioned in subsection (3) include “any decision on an application referred to the Secretary of State under section 77”. A relevant costs order is defined by subsection (3A) as an order made under section 250(5) LGA 72 “(orders as to costs of parties), as applied by virtue of any provision of this Act”.
It is common ground that these particular provisions were introduced by s.91 and schedule 16, para.2 of the Criminal Justice and Courts Act 2015. Previously, all challenges to all such costs awards had to be brought by judicial review (see Golding v SSCLG [2012] EWHC 1656 (Admin) at [40]–[43]).
Under s.288(1)(b) and (1A) TCPA any person aggrieved by a relevant costs order made in connection with any action on the part of the Secretary of State to which this section applies and who wishes to question the validity of that action on the grounds that: (i) the relevant costs order is not within the powers of this Act; or (ii) any of the relevant requirements have not been complied with in relation to that action, may make an application to the High Court.
Such application requires the permission of the court and an application for permission must be made before the end of the period of six weeks beginning with the day after the date on which the relevant costs order is made. By virtue of CPR PD54 paragraph 4.11 the claimant form must be served within the period of six weeks, unlike the general provisions relating to judicial review claims which require the claim form to be served within seven days of its issue.
In Corus the Court of Appeal held (in relation to a claim under s.287 TCPA to quash various parts of a local plan) that the court had jurisdiction to extend the time for service of the claim form and that the principles to be applied were those found in CPR 3.1(2)(a) rather than the (more demanding)...
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