Scottish Court of Session Decisions

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Macfadyen Lord Penrose	[2007] CSIH 2 XA49/05 OPINION OF THE LORD JUSTICE CLERK   in the   MOTION   by   RENEWABLE ENERGY SYSTEMS LIMITED Second Respondent:   against   THE MORAY COUNCIL Appellant; _______

For the Appellant: JD Campbell, QC; Morton Fraser

For Second Respondent: CM Campbell, QC; McGrigors

 

4 January 2007

 

Introduction

 

[1] On 14 July 2006 we refused an appeal by the appellant against two decisions of a Reporter appointed by the Scottish Ministers (the first respondents) with delegated powers, by which he allowed appeals by the second respondent against the refusal by the appellant of planning permission for the erection of a wind farm at Drummuir, Banffshire (Moray Council v Scottish Ministers, 2006 SC 691).

[2] Both the first respondents and the second respondent were represented at the hearing of the appeal to this court. The appeal failed on all points. The first respondents and the second respondent have each enrolled for expenses against the appellant. The first respondents' motion has been granted unopposed. The appellant opposes the second respondent's motion on the basis that its appearance at the hearing was unnecessary.

 

Submissions for the parties

[3] Counsel for the appellant submitted that the second respondent was not entitled to expenses since its arguments were in substance those for the first respondents. He relied on certain statements of Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment ([1995] 1 WLR 1176) for the proposition that in an appeal of this kind the developer will normally be entitled to expenses only if he can show that there was likely to be a separate issue on which he was entitled to be heard or that he had an interest that required separate representation. He submitted that neither consideration applied in this case.

[4] Counsel for the appellant relied also on Ashley Bell v East Renfrewshire Council and Ors ([2006] CSOH 009), where a Temporary Judge refused to award expenses to developers who supported the planning authority in successfully defending the validity of a local plan policy on the basis of which they had been granted planning permission (cf Ashley Bell v East Renfrewshire Council and Ors, [2005] CSOH 159). Counsel for the appellant submitted that since the developers in that case had taken no points of their own, the circumstances of this case were virtually identical.

[5] Counsel for the second respondent accepted that the arguments for the second respondent had been in substance those advanced for the first respondents; but he submitted that nevertheless the second respondent had had a clear, separate and independent interest in the appeal. Conjoined representation would not have been appropriate. The first respondents could have withdrawn their opposition at any stage without regard to the consequences of that for the second respondent. The second respondent had lodged answers in order to safeguard its interests. By convening the second respondent, the appellant was to be taken to have accepted a potential liability to it for expenses. The appeal had been wholly unmeritorious and had caused serious delays, to the prejudice of the second respondent. The general principles set out in Bolton MDC v Secretary of State for the Environment (supra) were directed particularly at the second and third stages of appeals. In any event, those principles gave insufficient weight to the factors on which the second respondent now relied. The approach taken by the Temporary Judge in Ashley Bell v East Renfrewshire Council and Ors (2006 CSOH 009, supra) should be taken only where several parties had identical interests and could have been jointly represented; for example, as in Anderson v McCracken Brothers ((1900) 2F 780), which was referred to in that case. The submissions on behalf of the second respondent had assisted the court. Its participation in the appeal was reasonable and appropriate.

 

Conclusions

[6] This motion raises a question of general importance. It arises in the context of a first-stage judicial appeal against a planning decision of the Scottish Ministers in which the appellant, as it was obliged to do, convened the developer in whose favour the decision had been made.

[7] Although it is beyond dispute that such a developer is entitled to be separately represented in opposing the appeal, it does not necessarily follow that he will be entitled to expenses against the appellant if the appeal should fail. The question is on what principles the developer's entitlement to expenses should be determined. For the purposes of this decision, it is unnecessary for me to consider the position of third party interveners such as developers of rival sites and neighbouring local authorities whose planning policies or financial interests may be affected.

[8] Anderson v McCracken Brothers (supra) illustrates the principle that where several parties have an identity of interest, it is appropriate that they should be jointly represented. If they insist on separate representation and are successful, the full expenses of that will not be charged to the other side (ibid, Lord Trayner at pp 793-794). That principle cannot apply in a case like this. Where the planning authority appeals to the Court of Session against the Scottish Ministers' decision, the Ministers and the developer, in opposing the appeal, have separate interests to pursue. It is self-evident that they cannot be jointly represented. Nevertheless, the court still has to consider whether it is reasonable that an unsuccessful appellant should be liable in both sets of expenses.

[9] In our consideration of that question we have guidance from the observations of Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment (supra). In that case, the decision of the Minister to grant planning permission for a major retail proposal was appealed against by eight neighbouring local authorities. The appeal was based on the alleged failure by the Minister to take account of a material consideration and on the alleged inadequacy of his reasons. The appeal was opposed by the Minister, by the developer and by the local development corporation, all of whom were separately represented. The appellants failed at first instance. They succeeded in the Court of Appeal (Bolton MBC v Secretary of State for the Environment, (1994) 69 P & CR 324). They failed in the House of Lords (Bolton MDC v Secretary of State for the Environment, supra). In that case, the Minister was concerned not only to support his decision but to explain and defend his wider policy in relation to out-of-town shopping centres. The developer was concerned only to defend its planning permission. It was held that the developer was entitled to take the view that on the facts of that case it had a sufficiently independent interest requiring protection so as to justify separate representation and an award of costs. The interests of the development corporation, however, were held to be to all intents and purposes identical to those of the developer and it was denied its costs.

[10] Lord Lloyd of Berwick observed that the House of Lords would be astute to ensure that unnecessary costs were not incurred and that where there was multiple representation, the losing party would not normally be required to pay more than one set of costs, unless that was justified in the circumstances of the particular case (at p 1178A-B). He then put forward the following general propositions:

"(1) The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement with other parties, or by further order of the court ...

 

(2)         The developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State; or unless he has an interest which requires separate representation. The mere fact that he is the developer will not of itself justify a second set of costs in every case.

 

(3)         A second set of costs is more likely to be awarded at first instance, than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, and the extent to which there are indeed separate interests should have been clarified ... " (at pp 1178G-H).

 

The second and third of these propositions are of particular relevance to this motion.

 

[11] Where the appeal relates to the validity of the reasons given in the Decision Letter or to the validity of the policy on which the decision is based, the developer may not have a sufficiently independent interest to justify an award of expenses if he should succeed. On the other hand, when the appeal relates to the Reporter's or the Ministers' treatment of the factual issues, such as the specific impacts of the proposal, the separate interest of the developer will be more clearly evident.

The real question, in my view, are whether the divergence in interest between the Ministers and the developer is significant or whether the submission for the developer contributes significantly to the court's consideration of the case.

Ashley Bell v East Renfrewshire Council (supra) is an example of a developer's defence of a planning decision that was nominal at best. In that case the petitioner sought to have a local plan policy quashed on the grounds that it failed to conform with the structure plan and that in adopting it the first respondent had given inadequate reasons for disagreeing with the recommendations of the reporter in the local plan inquiry. The petitioner convened as second and third respondents developers to whom the first respondent had granted outline planning permission in terms of that policy for a development similar to that proposed by the petitioner on a rival site. It is apparent that the intervention of the developers in that case was the merest formality. The submission on their behalf was summarised by the Temporary Judge in four sentences ([2005] CSOH 159, at para [34]). It added nothing to the discussion, so far as I can see. It was on that basis that the Temporary judge refused to award them expenses. A reclaiming motion against that decision was refused by an Extra Division. In a brief Opinion of the Court, the Division declined to interfere with the Temporary Judge's exercise of his discretion (cf Ashley Bell v East Renfrewshire Council and Ors, [2006] CSIH 33).

In this case, the developer put forward no separate point; but the issues raised by the appellant related directly to the developer's case; namely whether the Reporter had misunderstood and wrongly analysed the landscape and visual impacts of the proposal; whether he had misdirected himself in relation to the cumulative impact of this and other proposed wind farms; and whether he had misdirected himself as to the effect of the proposal on residential amenity. The appeal therefore raised questions as to the merits of the proposal itself and the quality of the developer's evidence. From that it followed, in my view, that the second respondent had a direct interest to oppose it. These considerations apply with particular force since this was a first-stage appeal. The fact that the arguments for the Scottish Ministers and for the developer were the same at the end of the day does not seem to me to affect the matter. In my view, these considerations justify the award of expenses to the developer.

I would add three comments. First, since expenses are always a matter for the discretion of the court, I do not intend anything said in this Opinion to restrict that discretion in cases of this kind if there should be special circumstances. Second, we are concerned in this case only with a question of expenses at a first-stage judicial appeal. At later stages, other considerations may apply (cf Bolton MDC v Secretary of State for the Environment, supra). Third, if I had accepted the general proposition of counsel for the appellant, I would have considered that the second respondent was nonetheless entitled to expenses up to the lodging of its answers to the appeal.

 

Disposal

I propose to your Lordships that we should grant the motion.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Macfadyen Lord Penrose	[2007] CSIH 2 XA49/05 OPINION OF LORD MACFADYEN   in the   MOTION   by   RENEWABLE ENERGY SYSTEMS LIMITED Second Respondent:   against   THE MORAY COUNCIL Appellant; _______

For the Appellant: JD Campbell, QC; Morton Fraser

For Second Respondent: CM Campbell, QC; McGrigors

 

4 January 2007

 

[16] I agree with your Lordship in the chair.

 

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Macfadyen Lord Penrose	[2007] CSIH 2 XA49/05 OPINION OF LORD PENROSE   in the   MOTION   by   RENEWABLE ENERGY SYSTEMS LIMITED Second Respondent:   against   THE MORAY COUNCIL Appellant; _______

For the Appellant: J.D. Campbell, QC; Morton Fraser

For Second Respondent: C.M. Campbell, QC; McGrigors

 

4 January 2007

 

[17] I entirely agree with the Opinion of your Lordship in the chair and have nothing useful to add.