Development consent order – Examining authority – Costs – Claimant challenging decision of examining authority to refuse its application for costs as successful objector to development consent order – Whether claimant application for costs being made outside time limit – Whether examining authority wrongly finding no good grounds for exercising discretion to extend time – Application dismissed
The interested party council applied to the defendnt secretary of state for a development consent order (DCO) pursuant to the Planning Act 2008 to improve a 2.8 mile single carriageway section of the single section of the A30 trunk road between Temple and Carblake, near Bodmin, Cornwall, by making it dual. It was a nationally significant infrastructure project as defined in section 31 of the 2008 Act. Attentuation ponds were required to deal with the increased water run-off from the improved sections. During the pre-application consultation stages, the interested party had discussed the location and size of one of the attenuation ponds with the claimant, who owned land adjacent to the project which was proposed to be the subject of compulsory acquisition to facilitate that pond.
As examining authority, the defendant secretary of state appointed a single inspector to examine the proposal and make recommendations. The claimant objected to the acquisition of any of its land and eventually secured the exclusion of part of its land from compulsory acquisition (the excess land). The claimant subsequently challenged the decision of the examining authority inspector to refuse its application for an award of costs in securing the exclusion. It was common ground that the claimant was a successful objector in that respect, which was normally sufficient for a costs order to be made; but the examining authority refused to award costs on the basis that the application for costs was made later than the defendant’s guidance required and there were no good grounds to exercise his discretion to extend that time.
The claimant contended that, under the defendant’s non-statutory costs guidance: “Award of costs: Examination of applications for development consent orders: Guidance (July 2013)”, it was not required to make a costs application in respect of its success in having the compulsory acquisition request (CAR) restricted to exclude the excess land until a date 28 days after the defendant’s determination on the DCO application; in any event, the claimant had decided to make a single costs application after the defendant’s determination on the DCO application to avoid the unnecessary additional time and expense of making several, potentially overlapping costs applications.
Held: The application was dismissed.
(1) The general rule was that an application for cost had to be made within 28 days of the parties being notified by the examining authority that it had completed the examination: see paragraph B31 of the Costs Guidance). Although that guidance was given in the particular context of the general principle that a costs application had to be made within 28 days of the completion of an examination, it appeared to be of general application.
(2) In respect of a successful objector to a CAR, there were special rules for when an application for costs should be made. Unlike the general costs rule in paragraph B31 of the Costs Guidance, the general rule in respect of CARs was 28 days from the notification of the secretary of state’s decision on DCO application or, if applicable, within 28 days of notification of the withdrawal of the application for development consent or the withdrawal of the CAR. Paragraph D5 of the Costs Guidance defined “successful objector” to include an objector to a CAR where the applicant decided not to proceed with compulsory acquisition either entirely or in part, and it withdrew the DCO application or the CAR, or asked for land to be excluded from the CAR, so long as various other conditions were satisfied. However, where the applicant asked for land to be excluded from the CAR, the trigger was, more accurately, not the request but the acceptance by the Examining Authority of the exclusion as a material change/amendment to the application.
(3) The condition in section 123(2) of the 2008 Act (which provided that the secretary of state could only make an order for the compulsory acquisition of land where the application for the order included a request for compulsory acquisition of the land to be authorised) was satisfied only when the application as amended included a CAR for the land to be authorised for compulsory acquisition. Paragraph 2(1) of the Infrastructure Planning (Examination Procedure) Rules 2010 defined “application” to include “any amendments made to the application”. It was the application as amended that went forward for examination, and the application as originally made was no longer of any effect or moment. The whole purpose of section 123 was to ensure that procedural fairness was maintained. The examining authority had not erred. Once the DCO application had been amended, the excess land was not the subject of the examination and was in the same position as any other land that was not within the scope of the book of reference and land plan, or DCO application/CAR otherwise. It was not open to the defendant nevertheless to have authorised the compulsory acquisition of the excess land or any part of it, without complying with the procedure required by section 124(4) of the 2008 Act and the Infrastructure Planning (Compulsory Acquisition) Regulations 2010 (or, at least, a procedure akin to it). For the purposes of Part D of the Costs Guidance, the amendment to the DCO application thus resulted in the effective exclusion or withdrawal of the excess land from the CAR.
(4) On the proper interpretation of the Costs Guidance, the cost application was made about six months late and the inquiry had to be viewed through paragraph B31 which stated that no application for an extension would be accepted unless the applicant showed good grounds for the delay. The examining authority had to deal with the arguments put forward by the claimant and his response had to be read in a broad and common sense way. In all the circumstances, the examining authority could not be criticised for concluding that the discretion to accept the costs application out of time should not be exercised in favour of the claimant. There was nothing to suggest that he did not take into account all relevant factors nor that he took into account irrelevant considerations. He was fully entitled to give great weight to the need for promptness inherent in the Costs Guidance as a whole and especially in paragraph B31, and the absence of any good reason for the delay.
Heather Sargent (instructed by Stephens Scown LLP) appeared for the claimant; Emma Dring (instructed by the Government Legal Department) appeared for the defendant; The interested party did not appear and was not represented.
Eileen O’Grady, barrister