Developers appealing against council’s non-determination of planning application – Inspector finding council acting unreasonably and making partial costs order in favour of developers – Council challenging inspector’s costs decision – Whether council’s pre-inquiry conduct relevant to award of costs – Application dismissed
Developers applied to Rochford District Council (the applicants) for permission to develop sheltered apartments for the elderly together with ancillary facilities. The council failed to determine the application within the required period and the developers appealed to an inspector. At the conclusion of the appeal, the developers sought to recover the whole of their costs, mainly on the ground that the council had not maintained their own local plan in accordance with the guidance in PPG1, PPG6 and PPG13. In his costs decision letter, the inspector directed himself in accordance with Circular 8/93 and recognised that costs may only be awarded against a party who has behaved unreasonably and caused another party to incur unnecessary expenditure. The inspector found the council to have acted unreasonably in two respects: (i) there was a lack of objective basis for the council’s position in relation to a policy in its local plan and the council had misapplied national guidance in respect of housing in the town centre; and (ii) the council’s opposition to the developer’s application was mistaken, as the local plan did not preclude residential development in secondary shopping areas. The inspector made a partial costs order in favour of the developers.
The council sought to quash the inspector’s decision on costs, essentially on the ground that its conduct antecedent to the developer’s appeal was irrelevant to the award of costs. It was submitted that only the council’s behaviour at, and in relation to, the inquiry was relevant to the exercise of the inspector’s power to make a costs order against it.
Held: The application was dismissed.
The council’s contention that only conduct subsequent to the appeal proceedings could be taken into account was at odds with paras 5 and 6 of Circular 8/93. In particular, para 6(3) (costs should be awarded where “unreasonable conduct” caused the party seeking costs to incur expense, either because it should not have been necessary for an inquiry to have been held at all, “or, because of the manner in which the other party has behaved in the proceedings”) made that contention unarguable. The inspector was obviously concerned to emphasize the criticism which he had made of the council’s pre-inquiry conduct. None of the criticisms of the inspector’s decision were made out.
John Dagg (instructed by the solicitor to the Rochford District Council) appeared for the applicant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment, Transport and the Regions.
Sarah Addenbrooke, barrister
