R v Secretary of State for the Environment and Rich Investments Ltd and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUCKER |
| Judgment Date | 13 December 1994 |
| Judgment citation (vLex) | [1994] EWHC J1213-8 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 December 1994 |
| Docket Number | CO/259/94 |
[1994] EWHC J1213-8
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE)
Before: Mr Justice Tucker
CO/259/94
MR N MacLEOD (Instructed by LJ Birch, Chief Solicitor, London Borough of Bexley, Civic Offices, Broadway, Bexleyheath, Kent DA6 7LB) appeared on behalf of the Applicant.
MR C KATKOWSKI (Instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the First Respondents.
MR M HORTON QC (Instructed by Simmons and Simmons, 14 Dominion Street, London EC2M 2RJ) appeared on behalf of the Second Respondents.
This is an Application by a local Planning Authority (The Mayor and Burgesses of London Borough of Bexley) (Bexley) for Judicial Review of an Order made by an Inspector appointed by The Secretary of State for the Environment. The decision was contained in a letter dated 10 December 1993 whereby it was ordered that Bexley pay the costs of a Planning Inquiry which took place over no fewer than 17 days during 1993, having been estimated to last 4 days.
Leave was granted by Pill J. The Second Respondents, Rich Investments Ltd. (Rich) sought to have the Order set aside. That application was heard by Latham J, who refused it. In his Judgment of 23 June 1994 Latham J. summarised the history of the matter, which I gratefully adopt and repeat:
"On the 30th June 1992 the Applicants refused an application by the Respondents for outline planning permission for an extension of an industrial park. Further, the Applicants failed to determine within the appropriate statutory period an outline application dated the 29th July 1992 by the Respondents for planning permission for, in effect, redevelopment of the existing industrial park. On the 17th December 1992 the Applicants resolved that they would have refused permission for this latter application. The Respondents appealed to the Secretary of State, who appointed an Inspector to determine the appeals. An inquiry was held which, by the 27th of August 1993 had lasted some 17 days spread over February, March, April, July, and August of 1993. By then, evidence had been given on behalf of the Applicants by at least a Mr. John Jory, its Assistant Chief Engineer (Traffic and Transportation), who had been cross examined, but not re-examined. The Applicants intended to call a Mr. David Bird and a Mr. Trayler, both independent experts instructed on the Applicants' behalf. As far as the former was concerned proofs had been provided to the inquiry in the usual way: this was not the case in respect of Mr. Trayler, as to the admissibility of whose evidence there was apparently some dispute, with which I am not concerned in this application.
On the 25th August 1993, settlement discussions between the parties had resulted in an oral agreement being made between the legal representatives of the Applicants and the Respondents to compromise the Respondents appeal on terms that the Applicants would withdraw their opposition to the grant of outline planning permission for redevelopment of the industrial park and would request the Inspector to determine the appeal so as to permit development, the details of which were also agreed, subject to the Respondents entering into an agreement relating to the use of certain access routes, and providing that the Respondents should meet the cost of certain road improvements. It was a further term of the agreement that the Respondents would not ask for the costs of the inquiry.
On the 26th August 1993, the Applicants' Town Planning Sub Committee, was prepared in principle to approve the settlement, considered it did not have the power to do so, and referred the matter to the Applicants' Development Committee. When the inquiry resumed on the 27th August 1993, counsel for the Applicants informed the Inspector of the position and requested an adjournment for the Development Committee to come to its decision. As a result, the inquiry was adjourned to the 7th September 1993. Meanwhile on the 2nd September 1993, the Development Committee approved the compromise, but there is a dispute as to whether or not the approval which was in fact granted was in the terms of the compromise agreed by the legal representatives, or whether a further condition had been added. The Applicants considered that the compromise approved by the Development Committee was in accordance with the agreement made in August, and that the Respondents were thereby precluded from asking for costs. The Respondents, on the contrary, considered that there was now no agreement which precluded them from asking for costs.
When the matter came back before the Inspector on the 7th September 1993, the Applicants sought to argue that there was a concluded agreement which precluded the Respondents from making any application for costs, alternatively that if that were not the case, there would have to be litigation in the High Court to resolve the question, and that the Inspector should adjourn the inquiry for a determination of that litigation. The Inspector declined to grant an adjournment for that purpose. The Respondents then sought to put the Applicants to their election as to whether to continue to call evidence, in other words to continue with the inquiry, or simply accept that the inquiry should be determined on the basis either agreed by the legal representatives, or approved by the Development Committee, and argue the question of costs in front of the Inspector without prejudice to any argument that they might have in High Court proceedings which would prevent the Respondents from being able to enforce any order that they might obtain.
The Applicants asked for and were granted an adjournment to consider the matter. The inquiry resumed on the 13th October 1993, when the Applicants withdrew their opposition to the Respondent's appeal, declined to call any further evidence, and dealt with the arguments as to costs without prejudice to their contention that the Respondents were precluded by the agreement from obtaining such costs. It was against this background that the Inspector ultimately determined the appeals by way of granting planning permission to the Respondents, and awarded the Respondents the costs of the inquiry. On the 26th January 1994, the Applicants issued a writ alleging that the Respondents were in breach of contract in applying for their costs, and on the 31st January 1994 appliced for leave in these proceedings to challenge the Inspector's decision as to costs."
That action remains outstanding. I am not concerned with it. What I am considering is an application for Judicial Review, and not any questions of breach of contract or estoppel. The Inspector's jurisdiction to award costs is not challenged. I am not considering the merits of his award. The sole question for me to determine is whether or not the Inspector acted unreasonably in the Wednesbury sense, ( Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 K.B. 223) so that it could be said that his decision was perverse.
The grounds upon which Bexley rely are as set out in Form 86A and in the Applicant's Skeleton Argument. The issues which arise from those grounds are as follows.
(a) and (b) Failure to understand or apply Circular 8/93.
The power to award costs is contained in Sec. 250 (5) of the Local Government Act 1972: "The Minister causing an Inquiry to be held…… may 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."
Circular 8/93 is a comprehensive document containing guidance as to the award of costs incurred in Planning and other proceedings. It begins by stating that Planning Authorities are at risk of an award of costs against them, on appeal in a number of examples, the second of which is if they fail to provide evidence on planning grounds, to substantiate each of their reasons for refusing planning permission, including reasons relying on advice of statutory consultees. The guidance is intended to reflect the principle, of which I have been reminded, that the planning system should not prevent, inhibit or delay development which could reasonably be permitted in the light of the development plan.
Paragraph 6 deals with general conditions for an award. Before an award of costs is made, the following conditions would normally need to be met.
(1)one of the parties has sought an award. (That is so in the present case).
(2)the party against whom costs are sought has behaved unreasonably, and
(3)this unreasonable conduct has caused the party seeking costs to incur or waste expense unnecessarily. (These two conditions, and in particular Condition 2, are in dispute).
In Paragraph 10 it is suggested that a Planning Authority may be held to have acted unreasonably if they fail to take into account (amongst other things) relevant policy statements in Government publications. In this context, Mr. Katkowski for lst Respondent (Secretary of State for the Environment) submits that Bexley failed to take account of the guidance given in 2 circulars —1/85 and 16/9l.
More specific guidance on the award of costs is contained in Annex 3 to circular 8/93, in particular in Paragraphs 7 —14. There were 3 reasons for refusal of Planning Permission.
Mr. MacLeod Q.C. for Bexley in support of his contention that the Inspector misunderstood the effect of the circular or that he acted unreasonably, submitted that in Paragraph 28 of the decision letter the Inspector was concentrating...
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