Planning inquiry — Inquiry lasting 17 days — Local planning authority ordered to pay costs — Authority seeking judicial review of decision — Whether inspector’s decision to order costs against the authority unreasonable — Inspector’s decision quashed — Matter remitted to Secretary of State
The local planning authority, Bexley London Borough Council, refused outline planning permission regarding the demolition of existing buildings and redevelopment of a site at Acorn Industrial Park, Crayford, in 1992. The developers appealed and a public inquiry was held, which lasted 17 days. In August 1993, settlement discussions had been reached, a term of the agreement being that the developers would not ask for costs. The planning authority’s town planning subcommittee considered the settlement, but decided they did not have the power to approve it and referred it to the development committee. The inquiry was adjourned and the compromise approved although there was a dispute as to whether it was in the same terms. The developers no longer felt bound by the earlier agreement not to ask for costs. The inspector concluded that the appeal should be allowed and that he would be granting outline planning permission subject to conditions.
The applicants, Rich Investments Ltd, applied for costs and the inspector found that there had been no proper grounds for the local planning authority’s original refusal. He considered that the council acted unreasonably in pursuing the appeals at a public inquiry and that consequently a full award of costs was justified. Under Circular 8/93 an award of costs in relation to a public inquiry could be made where, inter alia: (a) one party has behaved unreasonably; and (b) the unreasonable conduct incurred unnecessary expense. The local planning authority argued on appeal that the inspector had misunderstood the effect of that circular.
Held Judicial review was granted.
1. With regard to the argument that the inspector had misunderstood the circular, that submission was not accepted. In the court’s view, he showed sufficient understanding to enable him to make a proper approach to the problem which faced him. He was justified in holding that members of the planning committees to be ultimately responsible for the committees’ decisions.
2. Further, nothing persuaded the court that the inspector had acted perversely in reaching the opinion that the council had been unable to substantiate the reasons which they gave for refusing the application.
3. Generally there was an obligation upon both the planning authority and the developer to reach agreement if possible. However, the inspector attributed the failure to arrive at a resolution by negotiation wholly to the council. In that respect his reasoning was flawed.
4. The inspector failed to have regard to a material consideration when considering whether one party behaved reasonably to another. It was not disputed that Rich did at one stage agree to bear their own costs or at least indicated that they were prepared to enter into an agreement to do so.
5. It was something that he should not have disregarded and the inspector, by failing to consider the fact that the developers had at one stage agreed to bear their own costs, acted so unreasonably that it amounted to a perversity on his part. There was no justification in making the order.
Nigel Macleod QC and Jonathan Karas (instructed by the solicitor to Bexley London Borough Council) appeared for the local authority; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Matthew Horton QC (instructed by Simmons & Simmons) appeared for the second respondent developers.
