Council refusing planning permission – Successful appeal by developer to Secretary of State for the Environment – Unsuccessful challenge by council – Whether developer should exceptionally be awarded costs – Costs awarded
The second respondent,Tesco, sought planning permission to build a 26,500 sq ft foodstore on the site of a disused factory on the outskirts of Tring some 40m from the main shopping area. The council, although they acknowledged a need for one such store to serve local shoppers, refused the application largely on the ground that the need would be better met by a more centrally located store. A possible site was the Cattle Market for which Sainsburys had applied for outline permission to build a store of similar size. Tesco appealed to the Secretary of State whose inspector granted permission for the Tesco site referring to the Cattle Market proposal as an “incongruous introduction to the modest domestic scale of the High Street shops”. The council appealed against the decision advancing 31 grounds of appeal of which 15 were abandoned in the course of argument and two were dismissed out of hand. The remaining grounds were considered briefly under five heads and declared to be without substance, it being held, inter alia, that the inspector had scrupulously followed the sequential approach, giving priority to central sites if suitable, urged by PPG 6.
Tesco applied for costs, as against both the council and Sainsburys, and contended, relying upon Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37 , that no award should be made in favour of a developer benefiting from a decision obtained by the Secretary of State for the Environment unless the developer took a separate issue or had an interest requiring separate representation.
Held The application for costs was allowed.
1. The guidelines relied on by the appellants were subject to the paramount principle that costs lay in the discretion of the court: see Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37. While a second award could not generally be made, there was the strongest case for making an exception where the appellants adopted the course, which the judge deprecated, of advancing a mulitplicity of grounds in the hope that one or more might be upheld. Faced with the risk of a point being missed by the Secretary of State, prudence required that Tesco should take part in the proceedings.
2. Although Sainsburys had withdrawn at the last moment, they should also bear the costs up to the hearing as the voluminous documentary evidence filed by Sainsburys had considerably increased the amount of preparation time required by other parties.
Richard Humphreys (instructed by Sharpe Pritchard, London agents for the solicitor to Dacorum Borough Council ) appeared for the appellants; Alice Robinson (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; Patrick Clarkson QC (instructed by Berwin Leighton) appeared for second respondent, Tesco Stores Ltd.
