Town and country planning – Statutory review – Costs – First respondent local authority adopting local plan following finding of second respondent that plan was sound – Appellant seeking statutory review – Court refusing permission and awarding costs against appellant in favour of respondents and interested party – Appellant appealing – Whether adverse costs order appropriate in favour of multiple parties at permission stage – Whether Aarhus cap properly applied – Appeal dismissed
The second respondent local authority adopted the Maidstone Borough Local Plan, following a finding by an inspector appointed by the first respondent secretary of state that the plan was “sound” within section 20(5) of the Planning and Compulsory Purchase Act 2004. The plan included a particular policy which allocated a large site at Woodcut Farm for mixed employment floor space, promoted by the interested party.
The appellant sought statutory review of the decision to adopt the plan. Lang J refused permission to apply. She accepted that the claim was subject to the Aarhus cap (a cap on the total costs liability of claimants to ensure that environmental litigation was not prohibitively expensive contained in CPR part 45). In the present case, the cap was £10,000. The appellant was ordered to pay the respondents’ and the interested party’s costs of acknowledgment of service and summary grounds of dispute. The total sum awarded reached the full limit of the Aarhus cap and the amount payable to the interested party was capped because of the costs limit.
The appellant objected to the award of more than one set of costs; and to the quantum of the costs ordered. It argued that it was wrong in principle for the costs at the permission stage to absorb the entirety of the Aarhus cap. The matter was considered on the papers by another judge who affirmed the decision of Lang J. The appellant appealed.
Issues arose concerning: (i) the extent to which a court could make adverse costs orders in favour of more than one defendant or interested party in a planning case where permission to apply for statutory (or judicial) review was refused; and (ii) the proper application of the Aarhus cap in a case which failed because permission was refused.
Held: The appeal was dismissed.
(1) There was no general rule in planning cases limiting the number of parties who could recover their reasonable and proportionate costs of preparing an acknowledgement of service and summary grounds, if the application was refused at the permission stage. CPR rule 54.8 made it mandatory for any person served with the claim form who wished to take part in the statutory or judicial review to file an acknowledgement of service. If they failed to do so, they might not be permitted to take part in the permission hearing (rule 54.9(1)(a)). In judicial review cases, rules 54.8 and 54.9 required a defendant or interested party to incur costs in order to set out their response to a claim. It was implicit that such parties, who were being put to that time and expense, were prima facie entitled to their costs of so doing. That was recognised by rule 54.9(2), as explained in R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29.
There were significant similarities between the statutory review process in certain planning cases, set out in Practice Direction 8C, and the judicial review process in part 54. In the absence of any express provision in the CPR providing for different costs regimes, it would be impractical and potentially unfair for different regimes to be applied to very similar types of proceedings, and the precise nature of the planning challenge should make no difference to the parties’ costs entitlement. In both judicial review and statutory review cases, when permission to seek review was refused, a claimant might be liable to more than one defendant and/or interested party for their costs of preparing and filing their acknowledgment of service and summary grounds. It was not necessary for the additional defendant and/or interested party to show exceptional or special circumstances in order, in principle, to recover those costs so long as they were reasonable and proportionate: Leach [2001] EWHC Admin 455, Mount Cook and R (on the application of Luton Borough Council) v Central Bedfordshire Council [2015] EWCA Civ 537; [2015] 2 P & CR19 applied. Bolton Metropolitan District Council v the Secretary of State for the Environment [1995] 1 WLR 1176 considered.
(2) Interested parties fell within the scope of CPR part 45. Rule 45.4.3 limited the costs exposure to the claimant. It did not spell out to whom the claimant might be paying the costs up to the limit of the cap. The CPR provided for no lower cap on the costs that a successful defendant or interested party might be able to recover following success at the permission stage. The Aarhus cap was global and applied to the costs incurred by the successful defendant or interested party, at whatever stage the assessment was done. If a single defendant persuaded the court through its acknowledgment of service and summary grounds that permission should be refused, they were entitled to recover reasonable and proportionate costs up to the amount of the cap. No different rules applied to cases with more than one successful defendant or interested party.
The Aarhus cap offered claimants costs certainty and the ability to pursue litigation knowing that, if they lost, their liability would be no more than the cap. That had a knock-on effect for defendants and interested parties in an environmental claim. If permission was granted, they faced the prospect of expensive litigation with very little costs protection. They needed to deploy all their arguments at the outset in the hope of avoiding permission being granted. In the present case, there was no suggestion that the costs assessed were unreasonable or disproportionate. The reduction in the interested party’s costs was justified; it was not a defendant and had a greater freedom to choose how far it was involved in the challenge at the permission stage. The cap was on the appellant’s overall costs liability. The £10,000 cap was not applied illegitimately and did not lead to excessive costs. On the facts, the appellant had no grounds for complaint.
Ned Westaway (instructed by Richard Buxton Environmental and Public Law) appeared for the appellant; Jacqueline Lean (instructed by the Government Legal Department) appeared for the first respondent; the second respondent and the interested party did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of CPRE (Kent) v Secretary of State for Communities and Local Government and anr
