Section 51 of the Senior Courts Act 1981 provides that, subject to any contrary enactment or rules of court, costs in civil proceedings are in the discretion of the court. The general approach in planning cases, where there has been multiple representation, has been not to award more than one set of costs unless there are good reasons for doing so. In Bolton Metropolitan District Council v Secretary of Sate for the Environment [1995] 1 WLR 1176, the House of Lords set out a number of governing principles, two of which are relevant for present purposes.
The first is that the Secretary of State, when successful in defending his decision, would normally be entitled to the whole of his costs without being required to share his award by apportionment. The second is that a developer, as interested party, would not normally be entitled to his costs unless he could show that there was a separate issue not covered by counsel for the Secretary of State on which he was entitled to be heard or that he had an interest that required separate representation.
In Kensington and Chelsea Royal London Borough Council v Secretary of State for Communities and Local Government [2012] EWHC 1785 (Admin); [2012] PLSCS 154 the council applied unsuccessfully under section 288 of the Town and Country Planning Act 1990 to quash a decision by the Secretary of State’s planning inspector to grant planning permission on appeal. The developer, as interested party, had served an acknowledgment of service indicating an intention to contest the claim and had also served grounds of defence. At the hearing, the Secretary of State shouldered the main burden of opposing the claim, but submissions were also made on behalf of the developer. The developer sought an order for the council to pay its costs incurred in connection with the acknowledgment of service and the grounds of defence.
The court awarded such costs to the developer, having also awarded costs to the Secretary of State. The judge pointed out that it had to be shown that the developer had contributed something over and above what the Secretary of State had contributed. This might amount to the clarification of issues, or the existence of a separate interest that justified the developer incurring costs. Both were present here and justified an award of costs notwithstanding that the developer was not bound to serve grounds of defence.
John Martin
