Planning permission — Outline planning permission granted — Matters reserved — Applications for approval of details reserved refused — Appeal by developers to Secretary of State — Appeals determined by inspector in favour of developers — Costs awarded against planning authority — Authority seeking judicial review of order on costs — Whether inspector applied correct test for awarding costs — Whether inspector misdirected himself-Application dismissed — Inspector’s decision could not be impugned
On October 27 1988 outline planning permission was granted, by the Secretary of State, for residential development of a former holiday camp site at Selsey. Certain matters were reserved, conditions were imposed and a section 52 agreement concluded. In 1989 the developers coupled an application for planning permission for 13 houses on additional land they had acquired. Those applications were subject to negotiations and discussion between the developers and the council, but were not determined within the prescribed period. In 1990, to meet some of the points raised by the council, two fresh applications were made. They were not determined and in due course appeals were brought to the Secretary of State who appointed an inspector to determine them.
The council subsequently indicated the reasons for which they would have refused each of the applications. Having considered the developers’ alternative proposals, the inspector allowed all the appeals. He then made an order for costs against the planning authority which sought judicial review of that decision on costs, contending that the inspector misapprehended the nature of the test for making such an order and misdirected himself.
The grounds of appeal were that: (1) the inspector misdirected himself as to what matters could be considered by a local planning authority at the reserved matters stage pursuant to an outline application; (2) he took into account irrelevant matters in his decision to award costs, namely that “details of the development must eventually be approved in one form or another”; and (3) he failed to consider the proper test for an award of costs, namely whether the local planning authority had produced substantial evidence to support its case.
Held The application was dismissed.
1. In deciding whether a planning authority had unreasonably refused planning permission the test was whether the unreasonable conduct of the authority had caused the other party to incur unnecessary expense. While the question of whether there was substantial evidence to support the authority’s objections would usually be relevant, it did not embody the legal test for making an order for costs.
2. The inspector had directed himself correctly by posing the question whether the council had acted unreasonably and caused the incurring of unnecessary costs and had plainly had in mind the guidance principles contained in Circular 2/87 when considering that question. The inspector’s decision had to be read as a whole. So read it was consistent with the guidance circular and conveyed that the inspector was properly applying the test of unreasonableness.
3. The inspector’s words had to be interpreted in the light of the facts of the particular case and in context. It was clear that if particular sentences in the decision letter were viewed in isolation, some criticisms could be advanced. However, considering the three grounds of appeal, it could not be said that any material misdirection had been established. The inspector’s very full reasons had to be read as a whole taking into account the fact that his letter was addressed to people who knew the facts, the background and the issues. There was no challenge based in Wednesbury unreasonableness and reading the decision letter as a whole, it appeared that the inspector had well in mind the relevant guidance in Circular 2/87 and the need to address the question whether the council’s opposition to the detailed plans was reasonable. The inspector was saying that the absence of substantial grounds for opposing a scheme which their officers had advised was not open to serious opposition, was unreasonable, and caused an unnecessary inquiry. His conclusion could not be impugned on any of the three grounds relied on.
David Mole QC (instructed by the solicitor to Chichester District Council) appeared for the planning authority; Rabinder Singh (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Anthony Porten QC (instructed by Breeze & Wyles, of Enfield) appeared for the developers.
