It is clear, from the decision in R (on the application of Boxhall) v
He had applied to quash a decision by the local planning authority (LPA) to grant planning permission to his neighbour for the erection of a two-storey extension. After permission to apply for judicial review had been granted, and following submissions by the claimant’s counsel at the substantive hearing, the LPA agreed that the planning permission should be quashed. The apparent reason for this was that the neighbour had recently signed a section 106 agreement under which he agreed not to implement the planning permission.
The claimant contended that the LPA should be ordered to pay his costs because: (i) he would have succeeded on the application to quash the planning permission; and (ii) he had had to pursue that application up to the point at which the LPA agreed to quash the planning permission. The LPA argued that the claimant would not have been successful and that the proceedings had become academic after the neighbouring owner had indicated several months earlier that he did not intend to implement the planning permission.
The court concluded that the claimant’s prospect of success on his principal ground of challenge was sufficiently high as to justify a costs order. Before reaching that conclusion, the judge also ruled in favour of the claimant on the conduct issue because: (i) the section 106 agreement would probably not have protected the claimant against a mortgagee in possession of his neighbour; (ii) the absence of a quashing order would probably make it difficult for the claimant to refinance his property or to sell it; (iii) the planning permission would not serve any purpose; and (iv) the Court of Appeal had earlier made it clear that a section 106 agreement is not an adequate substitute for a quashing order in the appropriate case.
John Martin is a freelance writer
