Rochford District Council, R (on the application of) v Secretary Of State For The Environment [2000] EWHC Admin 337 (12 May 2000)

Judgment As Approved by the Court Crown Copyright © MR JUSTICE TURNER: 1. This is an application for judicial review of the decision of a planning inspector dated 23rd October 1998 under which he determined that there should be a partial costs order in favour of developers. There had been an appeal to the inspector against the non-determination of a planning application by the applicants (the District Council) under which the developers had applied for permission to develop 45 category II sheltered apartments for the elderly together with manager's accommodation and ancillary facilities on land at 63-69 Eastwood Road, Rayleigh, Essex. 2. In paragraph II of the 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 had behaved unreasonably and thereby caused another party to incur unnecessarily, or waste, expenditure. The developers had sought to recover the whole of their costs mainly on the grounds that the District Council had not maintained their own Local Plan in accordance with Government policies successively announced in PPG1, PPG6 and PPG13. That part of the District Council's approach to the application and Inquiry which the inspector criticised was in relation to the impact which the developers' proposals would have on retail function and economic viability on the centre of Rochford. 3. The case which was advanced by the present applicants in support of this application, as identified in form 86a, was that the inspector had found the applicants to have acted unreasonably in two respects which led to the making of the (partial) order against them. First, it was said that there was a lack of objective basis for the applicant's position in relation to the policy SAT3 (as to which, see below) incorporated into the local plan and its subsequent monitoring in the context of later planning guidance; PPG1, PPG6 and PPG13. The applicant's had misapplied that guidance in respect of housing in the town centre. Secondly, it was said that the applicant's opposition to the developers' application was mistaken since the Local Plan did not preclude residential development in secondary shopping areas contrary to the applicant's stance at the Inquiry. The grounds advanced in support of the present application are that: (a) the inspector misapplied the appropriate test to the evidence for the Council on the retail issue. Specifically he took into account the pre-Inquiry position adopted by the applicant's officers when he ought to have considered the evidence in relation to this issue as a whole and its case at the Inquiry based on its experts' evidence which, to an extent, made good any deficiency in its earlier position; (b) the inspector failed to consider the stand of government policy which advocates maintenance and enhancement of the shopping component in town centres while at the same time encouraging mixed development of housing and other elements in town centres; instead he concentrated on that aspect of national policy which favoured housing in town centres. Both aspects of the policy should have been considered. If they were not, the applicant's position on the retail issue "cannot be fairly judged." (c) the inspector failed to take account of the Structure Plan policy SH1 (see below) when considering national policy regarding maintenance and enhancement of the shopping functions of the town centre; (d) the inspector failed to give adequate or intelligible reasons for his finding of unreasonableness in relation to the applicant's interpretation of Local Plan SAT3 and the strategy at paragraph 9.2.0 of that document. 4. The developers have not appeared on the present application which is resisted solely by the named respondent. This summary of the issues raised or sought to be raised on this application create an immediate sense of unease, because there may be implicit within it a challenge to the underlying decision on the merits of the original decision, which it is not now open to the applicants to pursue. 5. The essence of the applicant's submissions is that when approaching the costs' issue, conduct by the applicants antecedent to the developers' appeal was irrelevant to the award of costs. It was no more part of the inspector's responsibility to pass retrospective judgment in relation to the applicant's policy SAT3 than it was to review the applicant's internal decision making processes. It was submitted that only the applicant's conduct with reference to their behaviour at, and in relation to, the Inquiry was relevant to the exercise of the inspector's power to make a costs' order against them. 6. The starting point for this exercise has to be the statutory and other non-statutory provisions which enable an inspector to make a costs' order. Under section 250 (2) of the Town and Country Planning Act 1990 the provisions of sub-sections 2 to 5 of section 250 of the Local Government Act 1972 apply to local inquiries. By section 250 (5) of the Act of 1972 the Minister has power to "make orders as to the costs of the parties at the Inquiry." The power to make such orders, is thus, untrammelled. By Circular 8/93, the Department of the Environment sought to provide guidance on how this power should properly be exercised. Annex 1, paragraph 1, of the Circular provides that costs are awarded only when "unreasonable" behaviour is held to have occurred. Examples of such behaviour are to be found in Annexes 2 to 4. By paragraphs 4,5 and 6 of the same annex it is provided 4. The availability of costs awards, on specific application, is intended to bring a greater sense of discipline to all parties in planning proceedings. A decision to award costs against one of the princapl parties in an appeal is not punitive. ...... 5. ... The guidance is intended both to support planning authorities in the proper exercise of their statutory responsibilities and to reflect the principle that the planning system should not prevent, inhibit or delay development which could reasonably be permitted, in the light of the development plan, so far as it is material to the application, and of any other material considerations. 6. Before an award of costs is made, the following conditions will normally need to be met:- (1) one of the parties has sought an award at the appropriate stage of the proceedings (as explained in Annex 5); (2) the party against whom costs are sought has behaved unreasonably; and (3) this unreasonable conduct has caused the party seeking costs to incur or waste expense unnecessarily, either because it should not have been necessary for the matter to be determined by the Secretary of State, or because of the manner in which another party has behaved in the proceedings (for example, because the arranged inquiry or hearing had to be cancelled or extended, resulting in wasted preparatory work or unnecessary expense). Para 11 of the same annex provides that 11. ......a planning authority may be held to have acted unreasonably if they fail to take into account reported judicial authority, or well-publicised appeal decisions relevant to their reasons for refusal, or relevant policy statements in Government White Papers, DOE and WO Circulars or Planning Policy Guidance Notes (PPGs, RPGs and MPGs). 7. Annex 3 of the Circular is specifically concerned to identify circumstances in which costs may be awarded against planning authorities. Under the cross heading Unreasonable refusal of planning permission it is provided that 7. A planning authority should not prevent, inhibit or delay development which could reasonably be permitted, in the light of the development plan, so far as it is material to the application, and of any other material considerations. 8. Reasons for refusal should be complete, precise, specific and relevant to the application. In any appeal proceedings, the authority will be expected to produce evidence to substantiate each reason for refusal, by reference to the development plan and all other material considerations. If they cannot do so, costs may be awarded against them. This is the ground on which costs are most commonly awarded against a planning authority. Each reason for refusal will be examined for evidence that the provisions of the development plan, and relevant advice in Departmental planning guidance in PPGs, RPGs, MPGs or Circulars, and any relevant judicial authority, were properly taken into account; and that the application was properly considered in the light of these and other material considerations. In any such proceedings, authorities will be expected to produce evidence to show clearly why the development cannot be permitted. If one reason for refusal is not properly supported, but substantial evidence has been produced in support of the others, a partial award may be made, against the authority, of the appellant's costs incurred in opposing that reason. In cases where planning issues are clearly shown to be finely balanced, an award of costs relating to substantive as distinct from procedural, matters is unlikely to be made against the planning authority. 9. Planning authorities are not bound to adopt, or include as part of their case, the professional or technical advice given by their own officers, or received from statutory bodies or consultees. But they will be expected to show that they had reasonable planning grounds for taking a decision contrary to such advice; and they were able to produce relevant evidence to support their decision in all respects. If they fail to do so, costs may be awarded against the authority. ......... 13. The new significance of the development plan in planning decisions, following the implementation of section 54A of the 1990 Act, makes it all the more important that planning authorities should take all reasonable steps to achieve up-to-date area-wide plans, and ensure that those plans are kept up-to-date. In cases where a planning authority refuse an application on the basis that it does not accord with the development plan, and the plan is then shown to be clearly out-of-date in that respect, the authority will risk an award of costs against them, unless they can show that they are taking all reasonable steps to bring the relevant plan up-to-date. 26. .... An award of costs may be made against the planning authority if, in the appeal proceedings, they cannot show that they has specific and adequate reasons for failing to make a decision; or if they cannot produce evidence to substantiate each of their stated reasons why they would have refused planning permission (if they had determined the application within the prescribed period). 8. With these statutory and policy guidance criteria in mind, it is appropriate to examine the terms in which the inspector dealt with the relevant issues in the appeal decision letter. The inspector recorded that the relevant policy was that contained in the Local Plan First Review Chapter 9 "Shopping, Advertisements, and Town Centres". The context of the strategy is set out in paragraph 9.2.0 which, as pertinent to current issues, provides (i) To define a hierarchy of shopping areas within which policies will operate to safeguard the main areas and control changes of use in the smaller areas. (ii) To provide a statement of land use policies and proposals for the town centres of Rayleigh, Hockley and Rochford. (iii) To prevent the intrusion of further non-retail uses into defined primary shopping frontages and to maintain the economic viability of the shopping centres. Paragraph 9.4.11 states Policy SAT3. In his appeal decision letter, the Inspector said: 5. Policy SAT3 concerns secondary shopping areas and must be considered in the context of the strategy identified at paragraph 9.2.0. This paragraph states, amongst other matters, an intention to prevent the intrusion of further non-retail uses into defined primary shopping frontages and to maintain the economic viability of the shopping centres. The appeal site lies within a secondary shopping frontage area on the Rayleigh Town Centre Inset Map. Policy SAT3 itself indicates that any non-retail ground floor uses in such areas must reinforce the retail function, must be uses appropriate to provide in a retail area and will normally be restricted to Classes A2 and A3 uses. ..... This served to identify one of the two principal issues on the appeal as having been the ..... effect on the vitality and viability of the Rayleigh town centre. 9. In his decision, the inspector had concluded that the proposed development would sustain and enhance the vitality and viability of the Rayleigh town centre and would comply with the relevant policies of the development plan and national planning guidance. 10. In the costs decision letter (paragraph 18) the inspector recalled that the retail issue had been a matter of controversy between the parties throughout. The District Council had been unaware at the time of the Inquiry of any research or analysis upon which its First Review of the Local Plan had been based. Nor yet had it taken any steps other than a simple annual survey of the occupants of the town centre to see if its policies were either appropriate or necessary. Finally, the District Council had undertaken no research or analysis to validate the assumption underlying SAT3 until after the appeal process had been commenced; see paragraph 18 of the costs decision letter. These failings were subject to stringent criticisms in the costs decision letter (see paragraphs 19, 20 and 21). There was no explanation forthcoming to account for these failures. It is, in my judgment an inevitable inference that the inspector found that these failings were responsible in large measure, if not wholly, for the time spent at the Inquiry in investigating those matters. The expert retailing evidence had simply not addressed them. This led the inspector to conclude 21. My final finding on this issue relates to the simple observation that, regardless of any findings concerning retail premises on the site the wording of the Strategy at paragraph 9.2.0 and policy SAT3 does not preclude residential development. Rather it simply requires that development should reinforce the shopping function and economic viability of the town centre, indicating that exceptions will normally (my italics) be restricted to Class A2 and A3 uses. The Council, whilst accepting that housing is an appropriate town centre use, gave no sound reasoning for its view that the proposed sheltered housing would not achieve the policy objective. In failing to give soundly based reasons for this position I conclude that the Council acted unreasonably. 11. It will be recollected that for the applicant it had been submitted that it was only conduct subsequent to the appeal proceedings which could properly be taken into account in making a costs order against one of the parties. In my judgment, this submission is completely at odds with the provisions in paragraphs 5 and 6 of Annex1 to 8/93. The "statutory responsibilities" to which paragraph 5 relates are plainly linked to the principle that "the planning system should not prevent ...(or) delay development which could reasonably be permitted ...". If there were any uncertainty in regard to this question it is removed by the provisions of paragraph 6 (3) where the "unreasonable conduct" has been responsible to the applying party to incur costs either because 1. It should not have been necessary for an Inquiry to have been held at all OR 2. Because of the manner in which the other (paying) party has behaved in the proceedings [emphasis added]. The disjunctive OR (above) makes the main point sought to be made by the District Council quite unarguable. 12. In the present case, the inspector was obviously concerned to emphasise the criticism which he had made of the District Council's pre-Inquiry conduct. That was something which could not have been ameliorated by reference to an expert report which was only commissioned after the Inquiry had been set up; see paragraphs 18, 19 and 20 of the costs' decision letter. 13. The second ground, of the inspector's decision as to costs, was that the District Council had misinterpreted its own strategy and policies. It was the fact that they have provided no reason for advancing the case that sheltered housing would not achieve the policy objective of "reinforcing the retail function" within SAT3 which provided the inspector's second ground of decision; see paragraph 21 of the costs' decision letter. 14. In the result, I am satisfied that none of the criticisms made of the inspector's decision are made out. This application must be refused. ________________ COSTS: MR JUSTICE TURNER: In this case I have made the draft judgment available to the parties and have incorporated any editorial corrections, and I have now formally handed it down. MR MOULD: My Lord, in the light of your Lordship's judgment, my application is that this application be dismissed, with the first respondent's costs. My Lord, the figure has been agreed at £3,394.25. MR DAGG: My Lord, that figure is agreed. MR JUSTICE TURNER: Thank you very much. © 2000 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII