The King (on the application of Halton Borough Council) v Secretary of State for Levelling Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | Fordham J |
| Judgment Date | 21 August 2024 |
| Neutral Citation | [2024] EWHC 2030 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2022-MAN-000340 |
and
[2024] EWHC 2030 (Admin)
Fordham J
Case No: AC-2022-MAN-000340
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
SITTING IN MANCHESTER
John Hunter (instructed by Halton BC) for the Claimant
Robert Williams (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 25.7.24
Draft judgment: 2.8.24
Approved Judgment
Fordham J Remote hand down. This judgment was handed down remotely at 10am on 21st August 2024 by circulation to the parties or their representatives by email and by release to The National Archives.
Introduction
This is a case about costs orders made against a local planning authority ( LPA), after its safety expert witness failed to come up to proof at a “called-in” planning inquiry. The legally correct mode of challenge was resolved by HHJ Stephen Davies at [2023] EWHC 293 (Admin) [2023] PTSR 1125. The targets for judicial review are twin decisions (27.7.22) ordering the Council to pay costs. First, the HSE's costs from 23.6.21 (the date of HSE's rule 6 statement of case). Secondly, Viridor's costs from 2.11.21 (the date Viridor was added as a rule 6 party). The rules governing planning inquiries are the Town and Country Planning (Inquiries Procedure) (England) Rules 2000 (SI 2000 No. 1624). Called-in planning inquiries are governed by s.77 of the Town and Country Planning Act 1990. The power to award costs is in s.250(5) of the Local Government Act 1972. The Guidance as to costs is the PPG, the Planning Practice Guidance on Appeals (6.3.14).
In September 2017, a developer (MJ Gleeson) had submitted a planning application (reference 17/00468/FUL) to the Council as LPA. Planning permission was sought for 139 dwellings, with associated demolition and ancillary development, on land at Runcorn (WA7 4EX). The HSE objected to the application and advised against it (21.5.20) on safety grounds, the site being located within the vicinity of the Runcorn Chemicals Complex. The Council resolved (5.10.20) to grant the planning application, in line with an Officer Report. As to the position at that stage, here is how the Council subsequently described the position in representations resisting costs awards (11.3.22):
… “the most careful consideration” was given to the HSE's response advising against the grant of permission… However, … the proposals were judged to be in accordance with the LPA's own adopted development plan policies on risk and … the LPA came to the conclusion that the HSE's advice did not justify departing from the plan. In this connection, it should be noted that [the Council] has an extensive experience and history with the chemicals industry which stretches back over a century and appears to be unique in terms of local planning authorities insofar as it has a robust policy framework for taking the risks posed by it into account in planning decisions. Furthermore, that framework (unlike the HSE's) has twice been through extensive public consultation and examination as part of the statutory plan-making process and found to be sound by the inspectors who examined it. In addition, the Council has for many years taken advice on risk-related issues, including in relation to its adopted policies and the Pavilions site itself, from specialist risk management consultants (DNV) who have extensive national and international experience in this field .
The Secretary of State called-in the planning decision (7.5.21), at the HSE's request, in light of the public safety concerns which the HSE had raised. Rule 6 statements of case were submitted by the Council and the HSE (23.6.21). At the same time, the developer submitted a position statement (23.6.21) which said that, although it remained committed to the development, the primary public safety matter was between the HSE and the Council, and it did not intend to provide evidence at the Inquiry. The Council and HSE proceeded to submit their rule 13 proofs of evidence relating to public safety matters (on 4.8.21) and an HSE rebuttal proof (on 17.12.21), in readiness for 8 days of inquiry hearings (starting on 11.1.22). The Planning Inspector was Brian Simms. Viridor operates one of the UK's largest energy-from-waste plants at Runcorn near the proposed development, and also objected to the application. It was joined to the inquiry proceedings as a rule 6 party (2.11.21). The Council's rule 13 proof of evidence on the public safety matter was expert evidence of Mr Hopwood of DNV (the consultants who had been advising the Council). It was submitted (4.8.21) with an expert evidence declaration. As had been requested in the HSE's rule 6 statement of case (23.6.21), a direction was made by the Secretary of State under s.321(3) of the 1990 Act (27.10.21), to hold part of the inquiry in private due to national security concerns regarding public safety matters.
When he was cross-examined by HSE's advocate at the (closed) inquiry hearing on Day 3 of the inquiry (13.1.22), Mr Hopwood agreed that – if he were in a Planning Inspector's position – he would have to advise the Secretary of State strongly against the grant of planning permission. That turn of events had a domino effect. There was an adjournment of the inquiry hearing. GLD (as solicitors for the HSE) wrote to the Council (13.1.22) saying:
In light of the evidence provided by Mr Hopwood, HSE sees no basis on which the Council's [support for the planning application] can be maintained in respect of the public safety matters .
The Council responded (14.1.22), recognising that it could no longer maintain its support for the application. The developer's agent then wrote (17.1.22) to say that, in those circumstances, it was withdrawing the application. That brought the inquiry to an end. It means the Planning Inspector's role came to an end. HSE and Viridor made applications (11.2.22) for decisions ordering the Council to pay their costs, in full or in part.
Since the Planning Inspector's role had come to an end, a member of the Costs & Decisions Team at the Planning Inspectorate (Steve Parsons) was authorised as Decision-Maker, to determine the costs applications. That is the practice (Guidance paragraph 039) when an inquiry is discontinued after withdrawal of a planning application, appeal or enforcement notice. The s.321(3) direction was amended to allow the Decision-Maker access to the restricted documents. Written submissions on costs were made by all relevant parties. These were placed before me in these proceedings. Other key documents from the inquiry proceedings were before the Decision-Maker – such as statements of case, proofs of evidence and an unagreed HSE solicitors' note of the Hopwood cross-examination. These were not placed before me in these proceedings. The Decision-Maker (Mr Parsons) was not as well-placed as the Planning Inspector (Mr Simms) would have been. But he was certainly better-placed than me. Added to which, he is the primary decision-maker entrusted with latitude for judgment and appreciation. My role is a secondary review function in the exercise of a supervisory jurisdiction.
The Impugned Decisions
In granting permission for judicial review at [2024] EWHC 705 (Admin), I ventured this overview (at §3):
The … impugned decisions record that the Council's changed position had caused the inquiry to collapse and found costs orders warranted based on “unreasonable” conduct. The unreasonable conduct was the withdrawal by the Council, “when they did”, with “no good reason”. The unreasonableness found lay in the Council's failure, in “appointing” an expert, as well as in continuing to appraise the position, to be “satisfied with the strength” of the expert evidence relied on and, “crucially”, its “being capable of standing up to scrutiny”. The decisions emphasised that Mr Hopwood's concessions, and the Council's changed position, were a “volte face” which had arisen in circumstances where there had been: no change in the position being adopted by the HSE in objecting to planning permission; no change in the evidence of the HSE; and no change in the planning circumstances .
I will later identify three key features of the decision (§30 below). For now, and having given that overview, it is sufficient to set out the following passages from the Decision Letter which awarded the HSE its costs. That reasoning was adopted in the decision awarding costs in favour of Viridor. First, this passage (Decision Letter §§5–7, 10), setting the scene:
5. In planning proceedings, the parties are normally expected to meet their own expenses irrespective of the outcome. Costs are only awarded on the grounds of “unreasonable” behaviour, resulting in any wasted or unnecessary expense. Published guidance is in the Government's Planning Practice Guidance (PPG) .
6. In the case of planning applications called-in for decision by the Secretary of State under section 77 of the 1990 Act, all the parties involved in such a case are differently placed than they would be at a planning appeal inquiry. The participation of the parties in a called-in case is primarily to assist the Secretary of State in the process of determining the relevant planning issues. The local planning authority is not defending a decision to refuse planning permission, while the applicant pursuing their application is exercising their right to apply for planning permission .
7. In these circumstances, as stated in the guidance at paragraph 034 of the PPG, it is not normally envisaged that a party will be at risk of an award of costs relating to the substance of the case or action taken prior to the...
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