Grant of planning permission by Secretary of State — Unsuccessful High Court challenge by local planning authority — Costs awarded to second respondent only — Whether award of costs should have been made to first respondent
The appellant,
the Secretary of State for the Environment, had granted planning permission on
appeal to Velcourt Ltd (‘the developers’) in relation to land within the area
of the respondents, Wychavon District Council (‘the council’). The council
applied unsuccessfully under section 288 of the Town and Country Planning Act
1990 to quash the decision of the Secretary of State. Turner J declined to
order that the council should pay the Secretary of State’s costs and awarded
costs only to the developers, who were intent on upholding the conclusion of
the Secretary of State that planning permission should issue in their favour.
The Secretary
of State appealed.
The judge was
wrong not to award any costs in favour of the Secretary of State. It was the
Secretary of State’s decision which was being attacked. His counsel bore the
burden of presenting the argument on behalf of the respondents to the council’s
application under section 288 of the 1990 Act: see p45F-G.
The only
question for the judge was whether the developers should have been awarded some
part of their costs in addition: see p45H.
In
circumstances such as the present ones, where the issues argued on behalf of
two or mores respondents were identical, the court should be disposed to make
only one order for costs; but it would be appropriate to afford the parties the
opportunity of determining for themselves what the appropriate apportionment
should be between them. In the event of their being unsuccessful, provision
should be made for recourse to the court so as to make an order in default of
agreement: see p46B-C.
Where the
Secretary of State had wrongly not been awarded any part of his costs, the only
manner in which in the absence of the developers (who did not appear) the
situation could be rectified was to allow the appeal and award costs in the
court below to the Secretary of State in addition to the order already made in
favour of the developers: see p46C-D.
to in the judgments
R v Industrial Disputes Tribunal, ex parte American Express Co Inc
[1954] 1 WLR 1118; [1954] 2 All ER 764
Waverley
Borough Council v Secretary of State for the
Environment [1987] JPL 202; ([1988] 3 PLR 101 — costs)
Appeal against
decision of Turner J
This was an
appeal by the Secretary of State for the Environment against the decision of
Turner J on December 16 1993 whereby he declined to order that Wychavon
District Council should pay the Secretary of State’s costs of an appeal by the
council under section 288 of the Town and Country Planning Act 1990
Drabble (instructed by the Treasury Solicitor) appeared for the appellant, the
Secretary of State for the Environment.
Jones (instructed by the solicitor to Wychavon District Council) appeared for
the first respondents.
respondents, Velcourt Ltd, did not appear and were not represented.
following judgments were delivered.
LEGGATT LJ: The first respondent, the Secretary of State for the Environment,
appeals against the order of Turner J made on December 16 1993 whereby he
declined to order that the applicants, Wychavon District Council, should pay
the Secretary of State’s costs of the applicants’ appeal under section 288 of
the Town and Country Planning Act 1990. The judge had dismissed the council’s
appeal and he proceeded to award costs only to the second respondents, Velcourt
Ltd, who were the developers intent on upholding the conclusion of the
Secretary of State that planning permission should issue in their favour.
The notice of
appeal seeks to impugn the judge’s exercise of his discretion on the ground
that the Secretary of State succeeded on all points of substance having, by his
counsel, borne the greater burden of presenting the argument at the hearing.
The judge appears from the transcript of the discussion with counsel when costs
were awarded to have made no order in favour of the Secretary of State on the
ground that the application raised no issue of principle; whereas the Secretary
of State would contend that there were issues of European Community law, which
were directly raised and which would account for his having been represented by
Mr Gerald Barling QC.
It is also
said on behalf of the Secretary of State that as a matter of principle in the
absence of exceptional circumstances (and there were none) the judge should
have ordered the costs to follow the event, that is ordered the applicants to
pay the Secretary of State’s costs. It is submitted that the correct question
then was whether there was any issue or interest which concerned the second
respondents (whom I shall call ‘the developers’), which did not concern the
Secretary of State, so as to justify the award of a second set of costs in
favour of the developers.
I should make
plain that this court is precluded from deploying any principles by way of
guidance for judges confronted by the problem that was before Turner J by the
absence on this hearing of the developers. That is because no attempt has been
made to impugn the order for costs in their favour. The sole question on this
appeal is whether the judge was wrong not to make an order for costs in favour
of the Secretary of State. On behalf of the council, Mr Timothy Jones has
argued that in choosing between the Secretary of State and the developers which
party
for the simple reason that, although the Secretary of State had been pressed
for years about whether he intended to appear at the hearing, he had refrained
from committing himself until a period before the hearing which Mr Jones
hazarded might have been of the order of two months. His submission was that
the developers were therefore obliged to appear because not until that distance
before the hearing did the Secretary of State make known his position. By then,
in Mr Jones’ language, the proceedings were well under way with the result that
it was by then too late for discussion between respondents about which of them
should appear. It seems to me that that submission cannot succeed in
circumstances where, as Mr Richard Drabble has submitted on behalf of the
Secretary of State, not only was the contention not advanced before the judge
on the hearing of the application for costs, but there is nothing whatever to
show that the developers were in any way affected by the attitude of the
Secretary of State whether to appear or not in making the decision to be
represented on the hearing. Further, there is nothing to show that the developer
was committed to be represented by counsel by the delivery of briefs before
such time as the Secretary of State indicated that he would indeed appear. That
he took that decision can have been no surprise. On the contrary, as Mr Drabble
submits, everybody would know that the Secretary of State would always appear
to defend his decision in relation to an appeal under section 288 of the 1990
Act unless he were conceding that the appeal should succeed. That was not this
case; therefore no one can have been under any misapprehension about the
intention of the Secretary of State to appear on the hearing before Turner J,
notwithstanding the lateness of his actual indication of that intention.
Mr Jones has
reminded the court, though in this context above all others it does not need
the reminder, that the award of costs is discretionary. He has sought to draw a
comparison with judicial review proceedings in which commonly the court is
content to award no more than one set of costs where there is more than one respondent.
Mr Jones submits that if, as appears to be accepted, two sets of costs are not
normally awarded against a developer who is unsuccessful, the same approach
should be adopted in relation to a local authority. There are obvious reasons
of policy why a local authority might otherwise feel disadvantaged because such
an authority would have to contemplate that a double set of costs would
inevitably be awarded against them in the event that they were unsuccessful in
their application.
When
responding to the court’s invitation to indicate what legal principle should
guide the court on occasions such as these, Mr Jones invoked the answer
proposed in the judicial review case of R v Industrial Disputes
Tribunal, ex parte American Express Co Inc [1954] 1 WLR 1118, in which the
court encouraged respondents to decide between themselves who was to argue a
particular case. It appears to me to be wholly undesirable that the court
should adopt any such approach or should presume to dictate to the parties how
they might share beforehand either legal representation or the costs of being
separately represented.
Looking at the
transcripts of the argument before the judge, both as
during the argument as to costs and indeed there was not cited to him the case
of Waverley Borough Council v Secretary of State for the Environment
[1988] 3 PLR 101, in which Simon Brown J indicated that it was a common
practice, where both the Secretary of State and a developer appeared to resist
a challenge by the local authority, for an order for two sets of costs to be
made. Mr Drabble has sought to reinforce that position before us in contending
for a normal practice to that effect, by making available to the court and
enabling us to see for ourselves that there have been a number of occasions on
which judges or deputy judges at first instance have seen fit to make such an
order. No doubt the propriety of orders of that nature must be substantially
affected by the features of each of the cases that have occurred, and it is not
necessary for present purposes to consider the details of any of them. When it
came to an application for leave to appeal to this court, to which the judge
acceded, there appears to have been what I shall only describe as a tiresome
insistence on ‘the normal practice’ having been as indicated in the case before
him by Simon Brown J, rather than reliance upon principle by which the judge
might have been better assisted.
The essential
submission for the Secretary of State on this appeal is that as the decision
maker he is entitled, and indeed it is his duty, to appear to support his own
decision. If he does so successfully, he should therefore receive his costs. If
he has dismissed an appeal against refusal of planning permission, it may be
said that a local authority would not normally have to appear for the purpose
of opposing a developer’s appeal. But it does not follow that it will not be
appropriate to award at least some part of these costs to a developer, who
seeks to uphold a successful appeal against refusal of planning permission. In
this case, the judge preferred the developers to the Secretary of State as the
recipient of one set of costs, apparently on the basis that the developers had a
commercial interest in defending their position. Of course they did, and of
course a developer almost invariably does, and of course they are entitled, on
that account if no other, to be represented; but it does not follow that a
local authority in such circumstances should be called upon to bear more than
one set of costs.
In my
judgment, the judge was, on any view, plainly wrong not to award any costs in
favour of the Secretary of State. It was the Secretary of State’s decision that
was being attacked. His counsel bore the burden of presenting the respondents’
argument. Quite apart from the desirability from the Secretary of State’s point
of view of maintaining consistency of approach, which is present in every case,
there was raised here a point of European Law and it was understandably
regarded as appropriate for the Secretary of State to be party to its
resolution. The judge was wrong when he suggested that the Secretary of State
should only be awarded costs if a point of state principle arose.
The only question
for the judge was whether the developers should have been awarded some part of
their costs in addition to an award of costs in favour of the Secretary of
State. The developers’ counsel had, in the judge’s phrase, ‘trailed in the
Secretary of State’s wake’ in the sense
the developers had not been awarded any part of their costs, they might not
have been able to complain. The judge took the view that they were entitled to
the whole of their costs, so excluding the Secretary of State, doubtless upon
the footing that it was not appropriate to award more than one set of costs in
favour of the respondents. It might be thought that not to award the developers
any of their costs in those circumstances would be harsh, but in any event,
there is no appeal against the judge’s award in favour of the second
respondents.
In my
judgment, in circumstances such as these where the issues argued on behalf of
two or more respondents are identical, the court should be disposed to make
only one order for costs; but if it is minded to take that course, it would be
appropriate to afford the parties the opportunity of determining for themselves
what the appropriate apportionment should be between them. In the event of
their being unsuccessful provision should of course be made for recourse to the
court so as to make an order in default of agreement. In circumstances where
the Secretary of State has wrongly not been awarded any part of his costs, the
only manner in which, in the absence of the developers, the situation can now
be rectified would be by allowing the appeal, as I would propose, and awarding
costs in the court below to the Secretary of State in addition to the order
already made in favour of the developers.
ROCH LJ: I agree.
MORRITT LJ:
I also agree.
Appeal
allowed with costs.
