The House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37, while stressing that costs are always in the discretion of the court, put forward the following propositions in planning cases where the Secretary of State is the defendant.
(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award, whether by agreement or by further order of the court. (2) The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State, or unless he has an interest that requires separate representation. The mere fact that he is a developer will not of itself justify a second set of costs in every case. (3) A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised and the extent to which there are indeed separate interests should have been clarified. (4) An award of a third set of costs will rarely be justified, even if there are in theory three or more separate issues.
In Tewkesbury Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 286 (Admin); [2013] PLSCS 57 the claimant unsuccessfully challenged under section 288 of the Town and Country Planning Act 1990 two decisions by the Secretary of State to grant planning permission for residential development to unrelated developers on separate parcels of land. The court, applying the Bolton propositions, awarded costs to the Secretary of State but dismissed applications by the developers for costs to be awarded to them also. The judge recognised that for each developer, the proposed development represented a significant investment and that it was therefore understandable that each would wish to have its own representatives at the hearing. However, it would not be right that their presence should be at the expense of the claimant.
John Martin
