Planning appeal — Planning permission refused — Inspector allowing appeal by developer — Local authority seeking to quash decision — Application refused — Order for costs against local authority — Only one set of costs awarded in favour of developer — Whether two sets of costs — Whether Secretary of State entitled to costs — Court of Appeal ordering local authority to pay costs of Secretary of State
An inspector appointed by the Secretary of State for the Environment allowed the appeal of a developer from the decision of the local authority to refuse the permission for the erection of poultry houses for broiler production and dwellings for agricultural workers at Throckmorton Airfield, Hereford. The local authority applied to the High Court under section 288 of the Town and Country Planning Act 1990 seeking leave to quash that decision. That application was refused and both the Secretary of State and the developer applied for their costs against the local authority. The judge decided that it was appropriate to award only one set of costs and ordered that the developer, who had a commercial interest to protect, should recover its costs, but that the Secretary of State should not. However, the Secretary of State was granted leave to appeal on costs.
Held The appeal was allowed.
1. It was normal only to make one order for costs.
2. The High Court had indicated that it was common practice where both the Secretary of State and the developer appeared to resist a challenge by a local authority for an order for two sets of costs to be made: see Waverley Borough Council v Secretary of State for the Environment [1988] 3 PLR 101. However, the Court of Appeal could see no reason for such a practice.
3. The Secretary of State was entitled to, and would always appear to, defend decisions made by him or his inspector on a section 288 appeal unless he was conceding that the appeal had to succeed. There had to be special circumstances for not ordering costs in favour of the Secretary of State if an appeal against his decision was unsuccessful: see Fitzpatrick v Secretary of State for the Environment [1990] 1 PLR 8.
4. In R v Industrial Disputes Tribunal, ex parte American Express Co Inc [1954] 1 WLR 1118, where there was more than one respondent the court encouraged the respondents to agree between themselves who should argue the case since the court would in future be reluctant to order two sets of costs. However, it was undesirable to adopt such an approach or dictate to parties that they should share legal representation or the costs of being separately represented in cases such as the present.
5. The developer had a commercial interest in the outcome of such an appeal and was almost invariably represented, but it did not follow that the local authority should have to bear more than one set of costs.
6. However, in the present case where the Secretary of State had been wrongly deprived of costs the only manner in which the situation could be rectified was to award costs to the Secretary of State in addition to the order in favour of the developer.
Richard Drabble (instructed by the Treasury Solicitor) appeared for the Secretary of State for Environment; Timothy Jones (instructed by the solicitor to Wychavon District Council) appeared for the local authority; the developer did not appear and was not represented.
