Lochailort Investments Ltd v Secretary of State Mendip District Council (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 16 October 2014 |
| Neutral Citation | [2014] EWHC 3358 (Admin) |
| Docket Number | Case No: CO/1198/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 October 2014 |
[2014] EWHC 3358 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Foskett
Case No: CO/1198/2014
and
Martin Edwards (instructed by AWB Partnership) for the Claimant
Neither the Defendant nor the Interested Party appeared
Hearing date: 3 October 2014
This claim for judicial review is brought with permission granted by Haddon-Cave J. It relates to a decision by a planning inspector acting on behalf of the Secretary of State concerning the costs of a planning appeal determined by written representations.
The Claimant was the successful appellant. The Interested Party was the local planning authority.
The appeal to the Secretary of State concerned a planning application to demolish an existing dwelling in a village some seven miles from Bath in Somerset and to erect on the site three new dwellings. As I have indicated, the inspector allowed the appeal against the refusal of the application by the Interested Party. The Claimant's planning consultant had submitted a written application for costs against the Interested Party in the normal way in the event that it was successful before the outcome of the appeal was known. I will say a little more about the basis of the application shortly. However, in due course, the inspector declined to make the order sought and it is that decision that is the subject of the present challenge.
Mr Martin Edwards has advanced the application on the Claimant's behalf and I am grateful to him for his assistance. Unfortunately and most surprisingly, neither the Defendant nor the Interested Party acknowledged service of these proceedings and neither has been represented before me or made any other kind of written submission. It is, of course, always helpful to have the countervailing arguments advanced even in a case, such as this, where the Claimant's arguments have been advanced fairly and helpfully. Furthermore, it is hardly fair to the inspector that someone has not taken a position on her behalf: it could have been to argue that her decision letter cannot be impugned or, alternatively, it could involve a recognition that the decision letter was inadequate. As it is, I am left in some doubt about the attitude of the Secretary of State. However, notwithstanding that, I must consider the merits of the application.
The Circular that sets the policy framework for consideration of issues of costs in this context is Costs Circular 03/2009. I do not intend to extend this judgment by an extensive citation of extracts from the Circular, but I will refer to a few relevant paragraphs shortly. Before doing so, I should summarise the local planning authority's reasons for refusing the application for planning permission. In order to understand those reasons it is necessary to appreciate that the development site adjoined an established property known as 'The Old Vicarage' and that the lane in which the site and this property were located was narrow and served as the highway access to the local primary school and the parish church. The reasons given by the local planning authority for refusing the application for planning permission can be summarised as follows:
a) The layout and design of the development would not relate satisfactorily to its surroundings and would harm the visual character and appearance of the area contrary to certain local policies;
b) The layout and design of the development would be "significantly overbearing and oppressive to the residential amenities of the Old Vicarage" contrary to other provisions of the local plan;
c) The development would be likely to result in a significant increase in the vehicular traffic and create harm to highway safety contrary to the provisions of certain local plans.
It is unnecessary to go into detail for present purposes, but the inspector was not satisfied that these grounds for refusal could be sustained and, accordingly, allowed the appeal and granted planning permission, albeit subject to conditions. It should, perhaps, be noted that the decision of the local planning authority was contrary to the recommendations of its officers and was made by a narrow majority. That is not, of course, an unfamiliar scenario.
The costs application made by the Claimant's planning consultants ran to some five pages and contained 29 paragraphs, a good number of which merely recited parts of the Circular and contained references to various well known authorities in this context. The Interested Party put in a three page response.
The application referred to various paragraphs in the Circular and, as I have indicated, I will refer to some of them, but the provisions of the Circular will be well known to those who practise in this field.
The essential philosophy of the Circular can be found in the bullet points in paragraph A3. I need not quote from it, but good behaviour and good practice is encouraged. The Circular goes on to record that normally parties meet their own expenses and those statistics are given based on the records of the planning inspectorate. Whilst it makes no difference to the outcome of the current application, it is noteworthy that, on average applications for costs are made in only 4% of appeals dealt with on written representations and the general rate overall of success in such applications is about 40%.
The conditions applicable to an award of costs are set out in paragraph A12 of the Circular as follows:
"Costs will normally be awarded where the following conditions have been met:
• a party has made a timely application for an award of costs
• the party against whom the award is sought has acted unreasonably and
• the unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expense in the appeal process – either the whole of the expense because it should not have been necessary for the matter to be determined by the Secretary of State or appointed Inspector, or part of the expense because of the manner in which a party has behaved in the process"
Later in the Circular appears a definition, or at least an appreciation, of what "unreasonable" means in this context. In a general sense this appears as paragraph A22 which is as follows:
"The word unreasonable is used in its ordinary meaning as established by the Courts in Manchester City Council v SSE & Mercury Communications Limited [1988] JPL 774. Further explanation of what is likely to be regarded as unreasonable behaviour is set out in Part B of the annex. The most common examples concern non-compliance with procedural requirements or failure by the...
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