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Second Respondents’ costs in permission hearings for s. 289 planning appeals: Bolton beats Mount Cook

23.04.2018

In recent proceedings on an appeal under s. 289 of the Town and Country Planning Act 1990, Mrs Justice Lang has held in a short written judgement that a second respondent – the local planning authority – was not entitled to any of its costs incurred by participating in the permission stages of the appeal absent any particular justification otherwise. Holding that "the permission and costs regime for appeals under s. 289 is separate and distinct from judicial reviews and other appeals", the Court ruled that the Mount Cook costs principle does not apply in such cases.

This ruling is likely to be of considerable interest to local planning authorities and those representing landowners involved in permission hearings in the context of appeals against planning enforcement notices.

The Appellant, Mr Elghanian, brought appeals under s. 174 of the 1990 Act against two enforcement notices which had been issued against him by the London Borough of Brent ("Brent"). Those appeals were dismissed by an Inspector following an Inquiry, and Mr Elghanian applied to appeal the Inspector's decision under s. 289. Following an oral hearing on 18 April 2018, Mrs Justice Lang refused permission to appeal.

It was common ground that in those circumstances the First Respondent, the Secretary of State, was entitled to its costs of resisting the appeal: R v Secretary of State for Wales ex p Rohzon, 27 April 1993.

However, Brent had also participated in the proceedings by preparing a skeleton argument and attending the hearing. It sought its costs, relying on the principle established in R (on the application of Mount Cook Land Ltd) v Westminster CC [2003] EWCA Civ 1346 that an interested party in a judicial review which has filed an acknowledgment of service ("AoS") should generally be able to recover the costs of doing so from a claimant whose application for permission has been unsuccessful. It was argued that the preparation of a skeleton argument for a s. 289 permission hearing was analogous to an AoS, given it was the first and only opportunity for the planning authority to assert its position, in circumstances where it remained unclear what (if any) position would be taken by the Secretary of State.

The Appellant opposed this application, relying on the rule derived from Bolton MDC v SSE [1995] 1 WLR 1176 that a second respondent in s. 288 planning appeals would "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". No such issue or interest was identified by Brent.

Mrs Justice Land held that Bolton remains good law and applied in the specific context of a permission hearing for a s. 289 appeal. As there was no separate issue which required Brent to be represented at the permission hearing, the Appellant should not be ordered to pay its costs of attendance. However, she also held that Brent was not entitled to its costs of preparing a skeleton argument.

It has already been held – in Rohzon and Williams v SoSCLG [2009] EWHC 475 (Admin) – that the procedure under s. 289 appeals is distinct from that of judicial reviews. In particular, on judicial review any person who wishes to take part in the proceedings must file an AoS. If permission is refused on the papers and the claimant applies to renew at an oral hearing, neither the defendant or any other party need attend unless the court directs otherwise. If they do however attend, the court will not award them their costs save in exceptional circumstances.

A similar procedure applies in the case of appeals under s. 288 of the 1990 Act, which are usually concerned with the grant or dismissal of planning permission. There, any person served with the claim form who wishes to take part in the planning statutory review must also file an AoS. This is followed by consideration of permission on the papers and an oral renewal hearing, where it is also rare to award second respondents their costs.

In contrast, on s. 289 appeals there is an obligatory permission hearing which respondents are entitled – but not required – to attend. There is no provision in the rules for a local planning authority or any other person served with the application to file any pleading.

Mrs Justice Lang considered (at para. 20) that it would be desirable to harmonise these different regimes, but that the appropriate means of doing so was by way of amendment to the CPR rather than by piecemeal judicial decision-making. She concluded:

"A skeleton argument is not analogous to an acknowledgment of service, in my view. It is part of the preparation for an oral hearing. In an application for permission under section 289 TCPA 1990, it is envisaged that respondents and other persons served will attend the permission hearing, and if successful, a costs award will be made in their favour, unless the Bolton principles apply. To that extent, the regime is more favourable to respondents than judicial review or statutory review under section 288 TCPA 1990. I acknowledge that it is less favourable for local planning authorities who are excluded from a costs award in respect of their written response to the application, as well as attendance at the hearing, by the Bolton principles."

James Findlay QC and Tara O'Leary acted for the Appellant, instructed by Sharpe Pritchard LLP.

Jack Parker acted for the Secretary of State, instructed by the Government Legal Service.

Dr Ashley Bowes acted for the London Borough of Brent, instructed by Prospect Law Ltd.