Planning application – Potential strategic importance – Council consulting claimant mayor on grant of permission – Claimant directing refusal as contrary to good strategic planning – Developer bringing unsuccessful appeal – Defendant secretary of state awarding costs of appeal against claimant – Whether defendant erring in law – Application dismissed
The first interested party was a developer that specialised in student accommodation. In February 2001, it applied to the second interested party council for planning permission for a proposed development of between four and 15 storeys to provide 505 student bedrooms together with ancillary uses. The proposed development site adjoined a development that comprised several four-storey blocks of 1930s flats set in their own grounds. One of the amenity spaces used by the residents of that development directly abutted the northern boundary of the proposed development site.
In July 2001, the council resolved to grant planning permission and consulted the claimant mayor of London, as required by the Town and Country Planning (Mayor of London) Order 2000. On the advice of his officers, the claimant wrote to the council, directing it to refuse the planning permission. Although a copy of the officers’ report was enclosed with the direction, the claimant did not provide a formal separate statement of his reasons for issuing the direction but incorporated them into the body of the letter. He contended that the development would, by virtue of its design in terms of scale, layout and relationship to its surroundings, result in a poor-quality development, contrary to planning policy; it was therefore considered to be contrary to good strategic planning in London.
In accordance with article 5(7) of the 2000 Order, the council refused permission. Following a local public inquiry held by an inspector appointed by the defendant secretary of state, the developer’s appeal against that refusal was dismissed owing to the effect of the development upon the amenity of its neighbours. The first and second interested parties were awarded their costs of the appeal against the claimant on the ground that his failure to provide significant evidence in support of his generalised assertions concerning the possible strategic implications of the design was unreasonable. The claimant applied for judicial review.
Held: The application was dismissed.
The claimant had been a party to the inquiry so that the defendant had the power to award costs against him under his general power to award costs against parties to planning inquiries. Although that general power was unfettered by statute, the defendant had adopted policies as to how and when it would be exercised and the question was whether the defendant had misdirected himself in the light of those policies.
The decision letter, read as a whole, made it clear that the defendant had correctly approached the issue of whether a costs award against the claimant would be justified by considering whether it had been established that the claimant had behaved unreasonably in issuing the direction to refuse planning permission in accordance with his policy in circulars 8/93 and 1/2000.
Furthermore, the defendant’s exercise of his discretion to award costs against the claimant could not be faulted, notwithstanding the outcome of the planning appeal. It was clear from the decision letter that the defendant was well aware that the planning appeal had been dismissed on design grounds and that the claimant had produced evidence to substantiate his concerns over the design weaknesses of the proposed development. However, the defendant had been entitled to conclude that planning permission had not been refused on any grounds that justified the claimant’s decision to issue the direction on the basis that the development was contrary to good strategic planning.
Geoffrey Stephenson (instructed by the legal department of the Greater London Authority) appeared for the claimant; Jonathan Karas QC (instructed by the Treasury Solicitor) appeared for the defendant; Robert Fookes (instructed by DLA Piper UK LLP) appeared for the first interested party.
Eileen O’Grady, barrister