Judicial review – Claimant’s neighbour granted claim to quash planning permission – Defendant council agreeing at hearing to quash permission – Whether claimant entitled to costs – Whether unnecessary for claimant to pursue claim in light of section 106 agreement by which neighbour undertaking not to implement permission – Costs awarded in favour of claimant
In June 2010, the defendant council granted planning permission to the interested party for the erection of a two-storey garage for six cars, with a games room and first-floor terrace. The claimant, who owned the adjoining property, obtained permission to apply for judicial review of the grant of permission. His grounds of challenge included the defendant’s failure to consider the effect of the development on the setting of an adjacent conservation area, from which the new garage would be visible.
In September 2010, the interested party indicated that he did not intend to implement the planning permission but instead wanted to carry out a different development, for which permission was subsequently granted in November 2010. In January 2011, a week before the hearing of the claimant’s judicial review claim, the interested party signed a planning agreement, under section 106 of the Town and Country Planning Act 1990, by which he agreed not to implement the first permission. The claim none the less proceeded to a substantive hearing, at which, for the first time, the defendants indicated that they no longer contested the claim and agreed to the quashing of the first planning permission. Accordingly, only the issue of costs remained outstanding.
On that issue, the defendants contended that the claimant should not have pursued his claim in the light of the interested party’s indication and subsequent section 106 obligation, which had rendered the proceedings academic; they further argued that the claim would have failed on the merits. The claimant contended that he would have succeeded on the claim and that the defendants should pay his costs. He submitted that it had been necessary to pursue the litigation until the defendants had ceased to contest it since, even with the section 106 agreement, the first permission: (i) would otherwise have remained in force; (ii) could have been relied on by, for example, a mortgagee in possession; and (iii) could have made it difficult for the claimant to refinance or dispose of his property.
Held: Costs were awarded in favour of the claimant.
When assessing costs, the court had to take into account the claimant’s prospects of success on the substantive issues and the conduct of the parties, while bearing in mind that the need to provide justice did not require the same degree of analysis of the merits as would be required at a full hearing. It was relevant that the defendants had for the first time, conceded at the hearing, that the claimant was entitled to the relief he sought, namely the quashing of the first planning permission: Boxall v Waltham Forest London Borough Council (2001) 4 CCL Rep 258 applied.
As to the merits, at no stage in the consideration of the planning application had the defendants addressed the significance of the conservation area. The matter was not referred to in the planning application, the defendants’ internal documents, at the meeting of the planning committee at which permission was granted or in the decision notice. It was impossible to conclude that the decision would have been the same had the effect on the conservation area been considered.
The indication and subsequent section 106 undertaking by the interested party that he would not implement the planning permission had not rendered the claimant’s claim academic or unnecessary. The interested party’s indication in September 2010 had no legal effect and would not have bound a purchaser of his house or any third party. The section 106 agreement would probably not have protected the claimant from a claim by a mortgagee in possession relying on the first planning permission. Moreover, a section 106 agreement was not the proper way of dealing with an earlier planning permission that was under challenge unless “very good reasons” could show that the acceptance of an undertaking would be more appropriate than the quashing of the unlawful permission: R (on the application of Brown) v Carlisle City Council [2010] EWCA Civ 523; [2010] JPL 1571 applied. There were no such reasons in the instant case; on the contrary, there were good reasons for quashing, including those advanced by the claimant. It was surprising that the defendants had not agreed to quash the first permission at an earlier date sought to reach a settlement. The claimant had obtained the relief he sought in the proceedings, he had been entitled to pursue his claim up to that point and was accordingly entitled to his costs.
Richard Harwood (instructed by Hill Dickinson LLP) appeared for the claimant; Paul Tucker QC (instructed by the legal department of Sefton Metropolitan District Council) appeared for the defendants; the interested party did not appear and was not represented.
Sally Dobson, barrister
