Costs – Statutory challenge to planning decision – Interested party – Grant of planning permission by defendant secretary of state through planning inspector – Claimant local authority challenging grant of permission – Owners and prospective developers of land participating in proceedings as interested parties – Challenge failing – Whether developers entitled to costs of preparing and serving acknowledgment of service and grounds of defence – Costs awarded
The defendant’s planning inspector granted planning permission for a development that the trustees of the relevant land proposed to carry out. The claimant local planning authority brought proceedings, under section 288 of the Town and Country Planning Act 1990, to challenge the grant of permission. The trustees participated in those proceedings as an interested party. Both the defendant and the trustees served an acknowledgment of service, as required by the Civil Procedure Rules, indicating their intention to contest the claim. The trustees also served grounds of defence. At the hearing, the defendant shouldered the main burden of opposing the claim. The claim was dismissed largely for the reasons set out in the trustees’ grounds of defence, as developed in skeleton arguments and in the oral submissions on behalf of the defendant and the trustees.
The trustees sought an order for the claimants to pay the trustees’ costs incurred in connection with the acknowledgment of service and grounds of defence. It was common ground that, since the trustees were obliged to serve an acknowledgment of service, they could recover the costs of filing that document. However, the claimants contended that the trustees were not entitled to any substantive costs incurred in preparing the acknowledgment of service. They further submitted that no costs could be recovered in respect of the grounds of defence since the trustees had not been required to submit such grounds.
Held: Costs were awarded.
(1) The starting point was that, subject to any contrary enactment or rules of court, costs were in the discretion of the court: see section 51 of the Senior Courts Act 1981. When considering what costs to allow in respect of the required step of serving an acknowledgment of service, the court could take into account the costs properly associated with preparing and serving that document: R (on the application of Roundham and Larling Parish Council) v Breckland Council [2008] EWCA Civ 714 applied. For an interested party, that would include a reasonable time for reading the claimants’ case, assessing the merits of the claim and taking an initial decision on whether to accept or contest that claim; that initial decision would also include a decision on whether to participate in the proceedings or leave the burden of opposing the claim to the named defendant. The trustees were entitled to recover the costs of and reasonably associated with the decision to file the acknowledgment of service and the filing of that document.
(2) In relation to the grounds of defence, there was no rule of law or practice that prevented the exercise of the court’s jurisdiction on costs in favour of an interested party in a case such as the present: Bovale v Secretary of State of State for Communities and Local Government [2009] 1 WLR 2274 distinguished. It would be wrong to award costs to a developer in place of the defendant secretary of state, since the secretary of state was normally entitled to the whole of his costs incurred in successfully defending his decision. Beyond that, however, costs remained in the discretion of the court. The exercise of the discretion was necessarily dependent on the facts of the case. The burden was on the developer to satisfy the court that it should be awarded costs. The court would consider whether the party claiming the second award of costs had contributed something over and above what the secretary of state would contribute or had in fact contributed. Two such features might be the clarifying of issues or the existence of a separate interest from that of the secretary of state, the protection of which justified the developer in incurring costs.
An award of costs to the trustees in respect of the grounds of defence was justified in the instant case. At the time when the trustees decided to serve the grounds of defence, they had an interest that was discrete from, and went beyond, that of the defendant secretary of state in having the decision of his inspector upheld. It made no difference to the defendant when the inspector’s decision was upheld but the trustees, as prospective developers to whom time was money, had a further interest in seeing that that happened promptly. They had submitted their grounds of defence in the hope of persuading the claimants that their position was ill-founded. The trustees were justified in pursuing their interest in a prompt resolution even though it involved the incurring of legal fees. The grounds of defence clarified the issues for the claimants’ consideration and might, if the claimants had considered them dispassionately, have led them to a change of view about the sustainability of the inspector’s decision. Accordingly, an award of costs was justified notwithstanding that the trustees had not been obliged to serve grounds of defence.
(3) In the instant case, the combined process of deciding what course to adopt, then preparing and serving the acknowledgment of service and grounds of defence, justified approximately two hours of solicitors’ time and three hours of counsel’s time, for which total costs of £2,100, including VAT, were awarded.
Gwion Lewis (instructed by the legal department of Kensington and Chelsea Royal London Borough Council) appeared for the claimants; Stephen Whale (instructed by the Treasury Solicitor_ appeared for the defendant; Reuben Taylor (instructed by Richard Max & Co) appeared for the interested party.
Sally Dobson, barrister
