Planning permission refused for residential development — Appeal by developers refused — Award of costs in favour of developers against planning authority — Council applying to quash costs order — High Court holding reasons for decision inadequate — Doubt as to whether decision within inspector’s powers — Costs order quashed — Matter remitted for reconsideration
On January 9 1992 Barratt East Midlands Ltd applied to the council for full planning permission for residential development and associated works on a site at the edge of the residential area of North Walsham, Norfolk. The site was in agricultural use, but was subject to an existing planning permission for 56 dwellings. Barratt’s application was to build a mix of 126 houses and bungalows on the site, a proposed density of 10 dwellings per acre, compared with a density of 5.3 dwellings per acre on the surrounding residential estate. The council did not formally determine the application within the required period, but gave putative reasons for refusal, namely: (1) detriment to the character and visual amenity of the area (by reason of density and type of development in comparison to the existing pattern of development in the area and lack of adequate landscaping); and (2) detriment to the amenity of occupiers in the area (by reason of increased traffic on existing road network).
Barratt appealed against the council’s failure to formally determine its application and an inspector appointed by the Secretary of State held a public local inquiry into the appeal under section 78 of the Town and Country Planning Act 1990. By a decision letter he dismissed the appeal on the ground of inadequate landscaping. He found that the other two main grounds of detriment to the amenity had not been established. By a separate decision the inspector determined, on Barratt’s application, to award Barratt its costs of refuting the council’s putative reasons for refusal of permission save for the ground on which the appeal was refused.
Held The costs order was quashed and the matter remitted to the Secretary of State for reconsideration.
1. Para 7 of Circular 2/87 gave guidance where there was an application for costs against a planning authority because of their unreasonable refusal of planning permission. It stated that the authority would be expected to produce evidence to substantiate the reasons for refusal. If they could not do so costs might be awarded against them.
2. The evidence upon which an authority relied to support a ground for refusal of permission must provide some respectable basis for their stance upon a particular issue.
3. In addition, the proper test was whether the unreasonable conduct of the authority caused the other party to incur unnecessary expense: see R v Secretary of State for the Environment, ex parte Chichester District Council [1993] 2 PLR 1.
4. An inspector must give clear and intelligible reasons for a decision on costs, just as he must do on the issues in the appeal: see Seddon Properties Ltd v Secretary of State for the Environment (1978) 248 EG 950; Save Britain’s Heritage v Secretary of State for the Environment [1991] 3 PLR 17.
5. The court should not encourage challenges to an inspector’s decision on costs. However, in this case the inspector’s reasons were so inadequately and obscurely expressed as to raise a substantial doubt whether his decision was within his powers or lawful in the sense of amounting to a proper exercise of his discretion having regard to the Secretary of State’s own guidance in Circular 2/87 (now replaced by Circular 8/93): see Save Britain’s Heritage, at p28, per Lord Bridge.
Peter Village (instructed by Sharpe Pritchard, London agents for the solicitor to North Norfolk District Council) appeared for the council; David Holgate (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
