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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Halton Borough Council, R (On the Application Of) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 2030 (Admin) (21 August 2024) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2024/2030.html Cite as: [2024] EWHC 2030 (Admin) |
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KING'S BENCH DIVISION
PLANNING COURT
SITTING IN MANCHESTER
B e f o r e :
____________________
| THE KING (on the application of HALTON BOROUGH COUNCIL) |
Claimant |
|
| - and - |
||
| SECRETARY OF STATE FOR LEVELLING UP, HOUSING AND COMMUNITIES |
Defendant |
|
| - and - |
||
| (1) HEALTH & SAFETY EXECUTIVE (2) VIRIDOR ENERGY LTD |
Interested Parties |
____________________
Robert Williams (instructed by Government Legal Department) for the Defendant
The Interested Parties did not appear and were not represented
Hearing date: 25.7.24
Draft judgment: 2.8.24
____________________
Crown Copyright ©
Remote hand down. This judgment was handed down remotely at 10am on 21st August 2024 by circulation to the parties or their representatives by email and by release to The National Archives.
FORDHAM J:
Introduction
"the most careful consideration" was given to the HSE's response advising against the grant of permission However, the proposals were judged to be in accordance with the LPA's own adopted development plan policies on risk and the LPA came to the conclusion that the HSE's advice did not justify departing from the plan. In this connection, it should be noted that [the Council] has an extensive experience and history with the chemicals industry which stretches back over a century and appears to be unique in terms of local planning authorities insofar as it has a robust policy framework for taking the risks posed by it into account in planning decisions. Furthermore, that framework (unlike the HSE's) has twice been through extensive public consultation and examination as part of the statutory plan-making process and found to be sound by the inspectors who examined it. In addition, the Council has for many years taken advice on risk-related issues, including in relation to its adopted policies and the Pavilions site itself, from specialist risk management consultants (DNV) who have extensive national and international experience in this field.
In light of the evidence provided by Mr Hopwood, HSE sees no basis on which the Council's [support for the planning application] can be maintained in respect of the public safety matters.
The Council responded (14.1.22), recognising that it could no longer maintain its support for the application. The developer's agent then wrote (17.1.22) to say that, in those circumstances, it was withdrawing the application. That brought the inquiry to an end. It means the Planning Inspector's role came to an end. HSE and Viridor made applications (11.2.22) for decisions ordering the Council to pay their costs, in full or in part.
The Impugned Decisions
The impugned decisions record that the Council's changed position had caused the inquiry to collapse and found costs orders warranted based on "unreasonable" conduct. The unreasonable conduct was the withdrawal by the Council, "when they did", with "no good reason". The unreasonableness found lay in the Council's failure, in "appointing" an expert, as well as in continuing to appraise the position, to be "satisfied with the strength" of the expert evidence relied on and, "crucially", its "being capable of standing up to scrutiny". The decisions emphasised that Mr Hopwood's concessions, and the Council's changed position, were a "volte face" which had arisen in circumstances where there had been: no change in the position being adopted by the HSE in objecting to planning permission; no change in the evidence of the HSE; and no change in the planning circumstances.
5. In planning proceedings, the parties are normally expected to meet their own expenses irrespective of the outcome. Costs are only awarded on the grounds of "unreasonable" behaviour, resulting in any wasted or unnecessary expense. Published guidance is in the Government's Planning Practice Guidance (PPG).
6. In the case of planning applications called-in for decision by the Secretary of State under section 77 of the 1990 Act, all the parties involved in such a case are differently placed than they would be at a planning appeal inquiry. The participation of the parties in a called-in case is primarily to assist the Secretary of State in the process of determining the relevant planning issues. The local planning authority is not defending a decision to refuse planning permission, while the applicant pursuing their application is exercising their right to apply for planning permission.
7. In these circumstances, as stated in the guidance at paragraph 034 of the PPG, it is not normally envisaged that a party will be at risk of an award of costs relating to the substance of the case or action taken prior to the application being called-in. However, a party's failure to comply with the normal procedural requirements of inquiries, including aborting the process by withdrawing the application without good reasons, may risk an award of costs should that amount to unreasonable behaviour
10. The guidance in paragraph 056 of the PPG which deals with awards of costs to (or against) third parties is considered particularly relevant. Although this guidance refers to the withdrawal of appeals it is considered applicable, by analogy, to called-in applications
15. HSE are evidently aggrieved that the Council had resolved to grant planning permission for the proposed development against their advice. However, as the called-in application was never determined because it was withdrawn by the applicant it is considered a matter of conjecture as to what the outcome on the merits of the planning application would have been if it had not been withdrawn and the Inspector had heard the respective parties' evidence, inspected the site and reported to the Secretary of State, resulting in a formal decision on the called-in planning application. While HSE argue that the Council failed to give proper consideration to the strength of their public safety objections and the unique scale of the risks proposed by the development when resolving to approve the application, the Secretary of State has had regard to the fact that this was a called-in planning application and therefore it is not normally envisaged that a party will be at risk of an award of costs relating to the substance of the case or action taken prior to the application being called-in, as already noted in paragraph 7 above. In the absence of a formal decision on this matter therefore the Secretary of State cannot conclude that the Council acted unreasonably by resolving to approve planning permission for the proposed development at the outset.
16. However, the final sentence of paragraph 034 of the PPG makes it clear that a party's failure to comply with the normal procedural requirements for inquiries, may place them at risk of a partial award of costs for unreasonable behaviour in a call-in case. In this case the work undertaken by parties to comply with the relevant requirements of the call-in were rendered abortive by the Council's decision to no longer support the application made by M J Gleeson. Careful consideration has therefore been given to the Council's stated reasons for withdrawing their support for the proposals when they did.
17. It is undisputed that the Council decided that they could no longer support the application in the light of evidence heard in the closed public safety session held at the inquiry on 13 January 2022. This resulted in the call-in process being aborted as the applicant decided to withdrawal their planning application as they had previously stated that they would be relying on the Council to provide evidence in support of their resolution to approve the application. In their defence of the costs application the Council say that Mr Hopwood, their expert witness on public safety matters, gave certain answers in cross-examination by the HSE's representative which were inconsistent with the advice previously received. The Council considered that the responses given by Mr Hopwood harmed their case so significantly that they no longer believed that they had any prospect of success. The Council argued that it was not unreasonable to have withdrawn their support for the application in these circumstances.
18. However, the Council have not explained, in clear and precise terms, the details of the responses given by Mr Hopwood in cross-examination that caused them to change their position on their reasons for supporting the application and why they now considered that their case had been seriously undermined. It appears to the Secretary of State that the responsibility for appointing Mr Hopwood as their expert witness on public safety matters rests with them and they should have been satisfied with the strength of the advice received and crucially that they could rely on it being capable of standing up to scrutiny by any other parties through cross-examination. Having resolved to approve the application the onus was on the Council to ensure that they were in a position to prosecute their case through to a decision.
19. The view is taken that the Council would, or should, have known of the full extent of HSE's public safety objections to the proposed development when they submitted their Rule (6) pre-inquiry statement of case and that they would be required to address those concerns at the forthcoming call-in inquiry. No evidence is seen to suggest that HSE changed their position regarding the public safety aspect of the proposed scheme during the call-in process and it appears to the Secretary of State that the public safety issues to be considered at the inquiry remained the same.
20. It was incumbent upon the Council, as the call-in inquiry process progressed, to continue to appraise their position ensuring that their original grounds for resolving to approve the planning application remained. Instead, the Council changed their previous stance at the inquiry, but it is evident that there had been no material change in the planning circumstances or evidence sufficient to justify such a volte face. In the circumstances, it is difficult not to conclude that the situation that the Council found themselves in at the inquiry was of their own making. The practical consequences of the Council's decision to no longer support the application caused the inquiry to collapse and the call-in proceedings were subsequently aborted following the applicant's decision to withdraw the planning application. The conclusion therefore reached is that the Council's decision to withdraw their support for the application when they did was unreasonable, with the result that HSE, as a Rule 6 party in the call-in proceedings, incurred unnecessary wasted expense in preparing to resist the application. An award of costs will therefore be made.
21. As to the extent of the award, while the Council would, or should, have been aware at planning application stage of HSE's public safety concerns regarding the proposed development, it is concluded that an award of costs is justified from the date of HSE's email of 23 June 2021 enclosing their Rule (6) pre-inquiry statement of case which set out in full the precise basis on which they were preparing to resist the planning application following the call-in of the application. A partial award will therefore be made from 23 June 2021 (inclusive).
The Guidance
028. Why do we have an award of costs? Parties in planning appeals and other planning proceedings normally meet their own expenses. All parties are expected to behave reasonably to support an efficient and timely process, for example in providing all the required evidence and ensuring that timetables are met. Where a party has behaved unreasonably, and this has directly caused another party to incur unnecessary or wasted expense in the appeal process, they may be subject to an award of costs. The aim of the costs regime is to: [1] encourage all those involved in the appeal process to behave in a reasonable way and follow good practice, both in terms of timeliness and in the presentation of full and detailed evidence to support their case; [2] encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay; [3] discourage unnecessary appeals by encouraging all parties to consider a revised planning application which meets reasonable local objections.
030. In what circumstances may costs be awarded? Costs may be awarded where: [1] a party has behaved unreasonably; and [2] the unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process.
031. What does "unreasonable" mean? The word "unreasonable" is used in its ordinary meaning, as established by the courts in Manchester City Council v SSE & Mercury Communications Limited [1988] JPL 774. Unreasonable behaviour in the context of an application for an award of costs may be either: [1] procedural - relating to the process; or substantive - relating to the issues arising from the merits of the appeal. The Inspector has discretion when deciding an award, enabling extenuating circumstances to be taken into account.
034. How does the award of costs apply to called-in planning applications? When a planning application is "called-in", it is determined by the Secretary of State rather than by the local planning authority. This places the parties at a called-in proceeding in a different position from that in a planning appeal. The local planning authority is not defending a decision to refuse planning permission, or a failure to determine the application within the prescribed period. In these circumstances, it is not envisaged that a party would be at risk of an award of costs for unreasonable behaviour relating to the substance of the case or action taken prior to the call-in decision. However, a party's failure to comply with the normal procedural requirements of inquiries, including aborting the process by withdrawing the application without good reason, risks an award of costs for unreasonable behaviour.
056. When might an award of costs be made against an interested party? Interested parties who choose to be recognised as Rule 6 parties under the inquiry procedure rules, may be liable to an award of costs if they behave unreasonably. They may also have an award of costs made to them. See the Planning Inspectorate guide on Rule 6 for more detail. It is not anticipated that awards of costs will be made in favour of, or against, other interested parties, other than in exceptional circumstances. An award will not be made in favour of, or against interested parties, where a finding of unreasonable behaviour by one of the principal parties relates to the merits of the appeal. However an award may be made in favour of, or against, an interested party on procedural grounds, for example where an appeal has been withdrawn without good reason or where an unnecessary adjournment of a hearing or inquiry is caused by unreasonable conduct. In cases dealt with by written representations, it is not envisaged that awards of costs involving interested parties will arise.
042. What happens if the appeal or an enforcement notice is withdrawn and the appeal is not decided? If the appeal or enforcement notice is withdrawn without sound reason, or with avoidable delay, giving rise to unnecessary or wasted expense for another party, an application for costs can be made.
046. When might an award of costs be made against a local planning authority? Awards against a local planning authority may be either procedural, relating to the appeal process or substantive, relating to the planning merits of the appeal. The examples below relate mainly to planning appeals and are not exhaustive. The Planning Inspectorate will take all evidence into account, alongside any extenuating circumstances.
047. What type of behaviour may give rise to a procedural award against a local planning authority? Local planning authorities are required to behave reasonably in relation to procedural matters at the appeal, for example by complying with the requirements and deadlines of the process. Examples of unreasonable behaviour which may result in an award of costs include: [1] lack of co-operation with the other party or parties; [2] delay in providing information or other failure to adhere to deadlines; [3] only supplying relevant information at appeal when it was previously requested, but not provided, at application stage; [4] not agreeing a statement of common ground in a timely manner or not agreeing factual matters common to witnesses of both principal parties; [5] introducing fresh and substantial evidence at a late stage necessitating an adjournment, or extra expense for preparatory work that would not otherwise have arisen; [6] prolonging the proceedings by introducing a new reason for refusal; [7] withdrawal of any reason for refusal or reason for issuing an enforcement notice; [8] failing to provide relevant information within statutory time limits, resulting in an enforcement notice being quashed without the issues on appeal being determined; [9] failing to attend or to be represented at a site visit, hearing or inquiry without good reason; [10] withdrawing an enforcement notice without good reason; [11] providing information that is shown to be manifestly inaccurate or untrue; [12] deliberately concealing relevant evidence at planning application stage or at subsequent appeal; [13] failing to notify the public of an inquiry or hearing, where this leads to the need for an adjournment. (This list is not exhaustive.)
049. What type of behaviour may give rise to a substantive award against a local planning authority? Local planning authorities are at risk of an award of costs if they behave unreasonably with respect to the substance of the matter under appeal, for example, by unreasonably refusing or failing to determine planning applications, or by unreasonably defending appeals. Examples of this include: [1] preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations; [2] failure to produce evidence to substantiate each reason for refusal on appeal; [3] vague, generalised or inaccurate assertions about a proposal's impact, which are unsupported by any objective analysis; [4] refusing planning permission on a planning ground capable of being dealt with by conditions risks an award of costs, where it is concluded that suitable conditions would enable the proposed development to go ahead; [5] acting contrary to, or not following, well-established case law; [6] persisting in objections to a scheme or elements of a scheme which the Secretary of State or an Inspector has previously indicated to be acceptable; [7] not determining similar cases in a consistent manner; [8] failing to grant a further planning permission for a scheme that is the subject of an extant or recently expired permission where there has been no material change in circumstances; [9] refusing to approve reserved matters when the objections relate to issues that should already have been considered at the outline stage; [10] imposing a condition that is not necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects, and thus does not comply with the guidance in the National Planning Policy Framework on planning conditions and obligations; [11] requiring that the appellant enter into a planning obligation which does not accord with the law or relevant national policy in the National Planning Policy Framework, on planning conditions and obligations; [12] refusing to enter into pre-application discussions, or to provide reasonably requested information, when a more helpful approach would probably have resulted in either the appeal being avoided altogether, or the issues to be considered being narrowed, thus reducing the expense associated with the appeal; [13] not reviewing their case promptly following the lodging of an appeal against refusal of planning permission (or non-determination), or an application to remove or vary one or more conditions, as part of sensible on-going case management; [14] if the local planning authority grants planning permission on an identical application where the evidence base is unchanged and the scheme has not been amended in any way, they run the risk of a full award of costs for an abortive appeal which is subsequently withdrawn. (This list is not exhaustive.)
054. Can an award of costs be made if the appellant withdraws an appeal? Yes, if the appeal is withdrawn without good reason. Appellants are encouraged to withdraw their appeal at the earliest opportunity if there is good reason to do so. If an appeal is withdrawn without any material change in the planning authority's case, or any other material change in circumstances relevant to the planning issues arising on the appeal, an award of costs may be made against the appellant if the claiming party can clearly show that they have incurred wasted expense as a result.
"Good Reason" and "Withdrawal"
i) Paragraph 034 refers to the costs risk in a call-in case for "aborting the process by withdrawing the application without good reason".
ii) Paragraph 042 refers to costs where an appeal or enforcement notice is "withdrawn without sound reason, or with avoidable delay", giving rise to unnecessary or wasted expense for another party.
iii) Paragraph 047 gives as examples of unreasonable behaviour giving rise to a "procedural award" against an LPA (at [7] and [10]): "withdrawal of any reason for refusal", "withdrawal of any reason for issuing an enforcement notice" and "withdrawing an enforcement notice without good reason".
iv) Paragraph 052 gives as an example of unreasonable behaviour, giving rise to a "procedural" award of costs against an appellant: "withdrawal of an appeal without good reason".
v) Paragraph 054 refers to costs awarded against an appellant "if the appeal is withdrawn without good reason".
vi) Paragraph 056 refers to costs "on procedural grounds" where an appeal has been "withdrawn without good reason".
Case-Law
i) In R v Environment Secretary, ex p Chichester DC [1993] 2 PLR 1 (Hutchison J, 27.10.92) the LPA's judicial review claim unsuccessfully challenged a planning inspector's costs award in favour of a developer who had successfully appealed a reserved matters approval matter undetermined by the LPA within the prescribed period. The guidance was in Circular 2/87. The test in that guidance and ever since was whether unreasonable conduct by the LPA had caused the unnecessary expense. The inspector had asked the right question, with no misdirection, and an inaccuracy did not constitute a material misdirection when the decision letter was read fairly and as a whole.
ii) In R v Environment Secretary, ex p North Norfolk DC [1994] 2 PLR 78 (Auld J, 12.7.94) the LPA's judicial review claim successfully challenged a planning inspector's costs award in favour of a developer who had unsuccessfully appealed a planning application undetermined by the LPA within the prescribed period. The guidance was again Circular 2/87. The inspector's decision letter had given legally inadequate reasons, failing to explain on what basis the LPA's evidence in support of its putative reasons for refusal had not been substantial, and the decision was remitted for reconsideration afresh.
iii) In R v Environment Secretary, ex p Wakefield MBC (1998) 75 P & CR 78 (Jowitt J, 16.10.96) the LPA's judicial review claim unsuccessfully challenged a planning inspector's costs award in favour of a developer who had unsuccessfully appealed a refusal to permit opencast coal extraction. The relevant guidance was now Circular 8/93. There was no material error of law or unreasonableness in the costs decision; and the inspector was entitled to conclude that the LPA had not crossed the evidential threshold of a sufficient evidential basis capable of making good an objection.
iv) In R (Golding) v Communities Secretary [2012] EWHC 1656 (Admin) (HHJ Waksman QC, 27.4.12) the developer's judicial review claim unsuccessfully challenged the planning inspector's costs awards in favour of the LPA and an objector, after a successful planning appeal relating to conversion of a caravan site, where wasted costs had arisen from an adjournment and late evidence. The inspector's decision involved no material error of law or unreasonableness. The relevant guidance was now a March 2009 Circular.
v) In R (Swale BC) v Housing Secretary [2020] EWHC 3482 (Admin) (Sir Ross Cranston, 17.12.20) the LPA's judicial review claim unsuccessfully challenged a planning inspector's costs award in favour of a developer who had successfully appealed a refusal of planning permission. There was no material error of law or unreasonableness in the decision. By now the relevant guidance was, as it is now, in the PPG (3.3.14).
i) The judicial review court can intervene in the exercise of its supervisory jurisdiction where (see Swale §57): (a) the costs decision-maker has materially misdirected themselves (see Chichester at pp.9-11); or (b) the decision is unreasonable in a public law sense (see Golding §§22, 35). A material misdirection can include deciding the case other than in accordance with the Guidance (see Swale §54, 58i).
ii) Clear and intelligible reasons must be given for the decision, so that the reasons do not raise a substantial doubt as to whether the decision was lawful including as a proper exercise of discretion having regard to the Guidance (North Norfolk at p.89).
iii) The decision letter must be read straightforwardly and as a whole (Chichester at 11; Swale §70).
iv) The decision as to costs involves a wide statutory power vested in the costs decision-maker (North Norfolk at 84; Swale §49). Costs are pre-eminently a matter for the decision-maker; a decision is not unreasonable because a different decision-maker might have taken a different view, or because there is room for significant disagreement (Golding §§22, 35, 36; Swale §69).
i) There is a clear distinction between interpretation of policy (appropriate for judicial analysis on an objective correctness standard) and application of policy (an exercise of judgment for the primary decision-maker subject to a reasonableness standard): Barker Mill Estates Trustees v Test Valley BC [2016] EWHC 3028 (Admin) [2017] PTSR 408 at §§83-84; Mead Realisations Ltd v Levelling Up Secretary [2024] EWHC 279 (Admin) at §72.
ii) Public law unreasonableness means (a) the decision is outside the range of reasonable decisions open to the decision-maker or (b) there was a demonstrable flaw in the reasoning which led to the decision, such as the absence of evidence to support an important step in the reasoning or a serious logical or methodological error: R (Finch) v Surrey County Council [2024] UKSC 20 at §56.
iii) The courts should respect the expertise of specialist planning decision-makers, and can start from the position that the policy framework will have been known and understood: Hopkins Homes Ltd v Communities Secretary [2017] UKSC 37 [2017] 1 WLR 1865 at §25.
iv) A decision-maker may depart from policy guidance if clear reasons are given for the departure: Gransden & Co Ltd v Environment Secretary (1987) 54 P & CR 86 at p.94.
v) Reasons must be intelligible and adequate, enabling a reader to understand why the matter was decided as it was, what conclusions were reached on the principal controversial issues, and how issues of law or fact were resolved; not giving rise to substantial doubt as to misunderstanding relevant policy or failing to reach a reasonable decision on relevant grounds; with the degree of particularity depending on the nature of the issues. Decision letters should be read in a straightforward manner recognising that they are addressed to parties well aware of the issues involved and arguments advanced: South Bucks DC v Porter [2004] UKHL 33 [2004] 1 WLR 1953 at §36. Conclusions in a decision letter should not be laboriously dissected in an effort to find fault: St Modwen Ltd v Communities Secretary [2017] EWCA Civ 1643 [2018] PTSR 746 at §7.
The Procedural-Only Point
i) The Guidance draws an important distinction between unreasonable behaviour which is "procedural" and "substantive" (see paragraphs 031 and 046). This is a crucial distinction, because the relevant paragraph of the Guidance for costs in a called-in case (see paragraph 034), and the paragraph regarding costs in favour of interested parties which the Decision-Maker identified as applicable by analogy (see paragraph 056), each make clear that they are contemplating costs awards for unreasonable behaviour which is "procedural" (ie. relating to the process) and not "substantive" (ie. relating to issues arising from the merits). There is another restriction in called-in cases, namely that the unreasonable behaviour cannot be action taken prior to the call-in decision (paragraph 034). The Decision-Maker recognised this (Decision Letter §7). The rationale was also rightly recognised (Decision Letter §6): the parties in a called-in case participate primarily to assist the Secretary of State in the process of determining the issues; the LPA is not defending a decision to refuse planning permission. This important and fundamental restriction to unreasonable behaviour which is "procedural" is, for called-in cases, the relevant policy (Swale §58i), which narrows the general test in the Guidance (Chichester p.8) of whether "unreasonable behaviour" has directly caused unnecessary or wasted expense (paragraph 030).
ii) The Guidance also gives clear examples of unreasonable behaviour by an LPA which is "substantive" (paragraph 049). Two of these are: "failure to produce evidence to substantiate" a reason for refusing planning permission (paragraph 049 at [2]; Swale §58iv); and the LPA "not reviewing their case promptly as part of sensible on-going case management" (at [13]). The first of these links to the aim described in paragraph 028 of the Guidance (at [2]), about encouraging LPAs to rely on reasons for refusal "which stand up to scrutiny on the planning merits of the case" (Swale §51). That is plainly "substantive".
iii) Turning to the impugned decisions, the adverse conclusions on costs are squarely based on two key aspects of the Council's conduct. The first key aspect is about the Council's responsibility to be satisfied with the strength of the evidence of an appointed expert witness, and crucially that it could be relied on as capable of standing up to scrutiny on cross-examination (Decision Letter §18). But that first aspect is squarely "substantive". It relates to issues arising from the merits. It is the clear example of "substantive" unreasonable behaviour in the Guidance: failure to produce evidence to substantiate a position (paragraph 049 at [2]). It links to the "substantive" matter considered in the case-law, where what is said is that the LPA has to meet an evidential threshold, of evidence providing "some respectable basis", not lacking in real substance (North Norfolk at p.83; Wakefield pp.80-81). The second key aspect is about the Council's responsibility to appraise the position ensuring that the original grounds remained (Decision Letter §20). But that too is squarely "substantive", relating to issues arising from the merits. It is the other clear example of "substantive" unreasonable behaviour in the Guidance: not reviewing the case as part of on-going case management (paragraph 049 at [13]). Indeed, the clear implication of the reasoning is that the HSE had an unassailable position on the merits of the safety issues, which again is plainly "substantive".
iv) It follows from all of this that the Guidance must have been misinterpreted, or alternatively has unreasonably been applied. The Decision-Maker's reasons do not grapple with the distinction between "procedural" and "substantive". They do not refer to or consider the examples at paragraph 049 of the Guidance. They do not identify the fact that this is a departure from the Guidance; still less do they identify a clear and good reason for the departure. The decision is outside the range of reasonable decisions or involves a demonstrable flaw.
v) It is true that there can be overlap between unreasonable conduct which is "procedural", and that which is "substantive". These are overlapping circles. However, where behaviour is in the overlap area being capable of characterisation as "procedure" and as "substantive" it must be excluded from the scope of the Guidance (paragraph 034). It is fatal that the unreasonable conduct can be characterised as "substantive". Costs cannot, consistently with the objectively correct interpretation (or alternatively the reasonable application) of the Guidance be awarded; except by departure from the Guidance which is recognised by the costs decision-maker and justified by good reason.
The Review-Finding Point
i) The Decision-Maker reasoned (Decision Letter §20) that it was incumbent on the Council "to continue to appraise their position, ensuring that their original grounds for resolving to approve the planning application remained". This was in the context of representations by the HSE and Viridor that there had been a failure to review the case. Given that what follows is a description of a "volte face" and a "situation of their own making", and so withdrawal of support "when they did" was unreasonable (§20), it must follow that the Decision-Maker found as a fact that the Council had failed to continue to appraise their position. That is what the Decision Letter is clearly saying, when read fairly and as a whole.
ii) That finding of fact could not reasonably be made on the evidence. The Decision-Maker did not identify any evidence on which such a finding could be based. The Decision-Maker had received representations from the Council which stated, twice, that the matter had indeed been kept under review. First, in the original representations (11.3.22) the Council had said this:
The HSE is wrong to claim that the LPA failed to review its case. On the contrary, the LPA kept this under constant review throughout the inquiry process (as, indeed, its decision to reconsider its position in light of Mr Hopwood's oral evidence demonstrates). Multiple conferences were held involving counsel, Mr Hopwood and Mr Gibbs [the Council's planning witness], both before and after the exchange of evidence, at which the merits of both parties' positions and their evidence were discussed extensively.
Secondly, in subsequent representations (6.4.22), the Council said:
As explained in the LPA's original submissions, not only did it keep its case under constant review (including by taking advice from counsel at all key stages) but the fact that it changed its position following Mr. Hopwood's evidence is clear demonstration that this was what it was what it was doing and of its reasonableness.
This description was never contradicted or rebutted. There was no evidential basis on which the Decision-Maker could reasonably find that there had been a failure to keep the matter under review.
i) This was a collapse. The call-in process had been aborted because of a collapse in the Council's case on the safety issue, for which the developer was relying on the Council and on which the Council had made a prior resolution to approve the application. Oral answers from the Council's public safety expert witness (13.1.22) harmed its case so significantly that it was believed now to have no prospect of success; but the Council had not provided any clear and precise explanation of the details.
ii) The Council had responsibilities. These were to appoint its expert witness; to satisfy itself of the strength of the expert's advice; to satisfy itself that they could rely on it standing up to scrutiny; to ensure it was in a position to prosecute the case through to decision; and to appraise the position, ensuring that its grounds remained.
iii) Nothing else had changed. The volte face, after the answers given at the hearing, came in circumstances where there was no material change in the planning circumstances and no material change in the evidence; where the Council knew or should have known throughout the inquiry (from 23.6.21) the full extent of the HSE's public safety objections, from the planning application stage and the Council's resolution.
The Changed-Evidence Point
The Scrutiny-Testing Point
i) The Decision-Maker clearly found that the Council had acted unreasonably, "crucially", because it should have been satisfied that Mr Hopwood's evidence would be "capable of standing up to scrutiny through cross-examination" (Decision Letter §18). But that finding was unreasonable, and inadequately reasoned. The Decision-Maker failed to appreciate the relationship between a party and a witness called by a party. Especially where the witness is an independent expert witness. There are fundamental problems in terms of what can be required; what is possible; and what is proper.
ii) Even in the context of unreasonable behaviour which is "substantive", the responsibility "to produce evidence to substantiate" a position (Guidance paragraph 049 at [2]), there is an evidential threshold of evidence, providing "some respectable basis", and not lacking in real substance (§20iii above). There is no duty acting reasonably to test the evidence of a witness to ensure that it is capable of standing up to scrutiny on cross-examination. No rule, code of conduct or policy guidance describes such a duty. In civil litigation, if a witness fails to come up to proof and the case made cannot be substantiated, costs are likely to follow. But that is because costs follow the event in civil litigation. The loser pays the winner's costs. In the present context, what is needed is unreasonable conduct. There is nothing unreasonable whether in legal proceedings or in a planning inquiry in the conduct of a party whose witness fails to come up to proof. There is nothing unreasonable in failing to take steps to be satisfied that the witness's evidence will come up to proof.
iii) The legal representatives of a party, in proceedings or in an inquiry, are not entitled to 'coach' a witness and they are not entitled to conduct a 'rehearsal' with simulated cross-examination, to put the witness through testing as in an an oral hearing. Test this by supposing a witness of fact. But it is an important principle regarding all witnesses, including expert witnesses. In the RTPI (Royal Town Planning Institute) Practice Advice (2018): Planners as Expert Witnesses (p.8) the point is made (by reference to the Bar Council's Guidance (2017): Witness Preparation) that:
There is guidance for barristers from the Bar Council in preparing witnesses, in particular in preparing a witnesses' written evidence. It emphasises the difference between acceptable witness preparation and coaching. Coaching is where it is suggested what the witness should say or express themselves, "you must not rehearse, practise with or coach a witness in respect of their evidence".
The same principle is emphasised in the PEBA (Planning and Environmental Bar Association) Good Practice Guidance (2.11.23) at §§6 and 10, adding that it "applies to all the oral evidence to be given by a barrister's witness both in terms of evidence in chief and also later when cross-examined by the other side" (§7).
iv) It would therefore have been quite wrong for legal representatives to conduct any coaching or rehearsal of the expert witness by simulated cross-examination. Indeed, even if it were desired to undertake such an exercise so as to ensure that costs were not unnecessarily being incurred by other parties, it would still be inappropriate and impermissible to undertake that sort of testing. That is because of the obvious objection that the consequence would be that the witness was being prepared by being rehearsed for cross-examination.
v) Expert evidence is given by reference to professional and ethical standards of independence. The expert is not acting for the party. It is quite wrong to equate an expert not coming up to proof, or whose evidence does not withstand scrutiny at a hearing, with unreasonableness on the part of the party who in good faith has called that expert and has put forward the independent evidence contained in a report or proof of evidence which the expert has provided. Important illuminations of this principled position can be seen from two cases where costs orders needed a species of unreasonable behaviour by a prosecutor in a criminal trial. In R v Cornish [2016] EWHC 779 (QB) (Coulson J, 15.4.16) the trial judge, after a crown court prosecution for gross negligence manslaughter and corporate manslaughter had culminated in a finding of no case to answer, dealt with defendants' applications for costs from the prosecution. The species of conduct was described in the governing provisions section 19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 where costs could be ordered in light of some "unnecessary or improper act or omission" by a party to the criminal proceedings. The judge dismissed the defendants' costs applications. In the judgment, he dealt with the expert evidence of Professor Hopkins who had been put forward as an expert by the prosecution. He explained that the expert views had not necessarily been "obviously wrong" and the Professor had not been expressing views which the Crown "should have concluded were wholly untenable" (§§34 and 35). What had gone wrong was a good example of the adversarial trial process in action (§44). That approach was endorsed by the Divisional Court in R (DPP) v Aylesbury Crown Court [2017] EWHC 2987 (Admin) [2018] 4 WLR 30 where the same statutory provisions were in play. The Divisional Court, having explained that the actions of an expert were not "by or on behalf of" the party calling the expert, endorsed Cornish (§23) so that the "appropriate test to apply" to the question of "individual responsibility" for the party instructing the expert "for an act or omission relating to that witness" was whether the evidence of the expert was "plainly wrong" in a way that should have been "obvious" to the prosecution (§23). The Court went on to say (§24) that once the expert in this case had given his opinion there was "nothing to suggest the need to interrogate the expert". This was distinct from the question whether there was conduct which was "improper" (§25). These are criminal cases, but they involve a conduct-based costs test, and there must be an equivalent (even if adjusted) principled position in relation to witnesses and costs and unreasonable behaviour in a planning inquiry.
vi) In the present case, the Council had in good faith put forward an expert who had given their independent expert opinion. There was no duty to interrogate the expert. There was no basis for saying, and the Decision-Maker did not conclude, that the expert's evidence was "plainly wrong" or that this should have been "obvious". The Decision-Maker thought a process of testing was necessary, in order to act reasonably. But that was not a reasonable finding. There was no such duty. It was not possible. And it was not permissible. The reasons do not address any of this. It could not, in all the circumstances, reasonably be concluded that there was any unreasonableness in the action of the Council in failing to satisfy itself that the expert evidence would be capable of standing up to scrutiny through cross examination. And in any event no legally adequate reasons were given why, on a correct appreciation of the position of a party and an expert witness, it could be concluded and was being concluded that it was unreasonable to fail to take action to ensure that expert evidence was capable of withstanding scrutiny.
The Insufficient-Time Point
Conclusion
Permission to Appeal
