Planning appeals and costs awards

Parties in planning appeals and other planning proceedings normally meet their own expenses, however, where a party has behaved unreasonably and caused another party to incur unnecessary or wasted expense, they may be subject to an award of costs. ‘Unreasonable’ is used in its ordinary meaning and may cover procedural or substantive unreasonableness.

In R (Halton Borough Council) v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 1566 the Court of Appeal considered whether a Local Planning Authority had behaved unreasonably in withdrawing its support for a planning application in the course of a called in inquiry following answers given by its expert in cross-examination.

Factual Background & First Instance

In September 2017, a developer submitted a planning application to Halton Borough Council (“the Council”) for 139 dwellings. The site was located within the vicinity of the Runcorn Chemicals Complex. The Health and Safety Executive (“HSE”) objected to the application on safety grounds. The Council considered the HSE’s objections but judged the proposal to be in line with its own adopted development plan, which had been approved by two local plan inspectors who had not endorsed the HSE’s objections at the time, and resolved to grant the application. In the light of the HSE’s objections the Secretary of State called in the application and listed a public inquiry.

The developer submitted a position statement which said that, although it remained committed to the development, the primary public safety matter was between the HSE and the Council, and it did not intend to provide evidence at the inquiry. The Council, as a rule 6 party, submitted a statement of case in support of the application. The HSE and Viridor (an operator of a nearby energy-from waste plant) submitted statements of case objecting to the application, also as rule 6 parties.

The Council’s proof of evidence on public safety matters was the expert evidence of Mr Hopwood of DNV (the consultants who had been advising the Council). It contained an expert evidence declaration conforming with the Planning Inspectorate guidance. Multiple conferences were held with Mr Hopwood involving counsel, both before and after the exchange of evidence, at which the merits of both parties’ positions and their evidence were discussed extensively.

During the public inquiry, Mr Hopwood was cross examined by leading counsel on behalf of the HSE. During cross-examination he agreed that the development plan policy on which the Council relied, failed to follow the principles in the National Planning Policy Guidance. When those principles were followed the outcome was to advise strongly against the grant of planning permission. Thus, Mr Hopwood accepted that if he were in the inspector’s position he would advise the Secretary of State strongly against the grant of planning permission. These were answers which, according to the Council, were inconsistent with the advice that Mr Hopwood had previously given.

In light of Mr Hopwood’s answers, the Council withdrew its support for the application. In consequence, the developer withdrew the application and the inquiry came to an “abrupt halt”.

The HSE and Viridor applied for their costs against the Council. These applications were considered by a member of the Costs & Decisions Team at the Planning Inspectorate, Mr Parsons. He concluded that the Council’s decision to withdraw their support for the application had been unreasonable, and that a costs award should be made from the dates on which the HSE and Viridor submitted their rule 6 statements. In particular, Mr Parsons held:

“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 Council applied to judicially review the costs award made against them. [1]  At first instance, the Council’s application was dismissed by Fordham J [2] who held that Mr Parsons’ decision was an evaluative judgment within the range of reasonable decisions open to him, and that there was no demonstrable flaw in his reasoning.

The Council appealed against Fordham J’s judgment on two grounds:

1. Mr Parsons’ reasons for finding that the Council were responsible for the situation it found itself in after Mr Hopwood gave evidence were demonstrably flawed and unsound.
2. Mr Parsons gave inadequate reasons to explain why he concluded that the Council were responsible for that situation.

The Court of Appeal’s judgment

The Court of Appeal allowed the Council’s appeal, Lewison LJ gave judgment with which Asplin LJ and Coulson LJ agreed.

Lewison LJ first addressed what Mr Parsons’ had identified as the Council’s unreasonable behaviour. At [58] he noted that Mr Parson’s reasoning “appears to be that the Council should have tested Mr Hopwood’s evidence and satisfied themselves that it could withstand cross-examination. The carrying out such an exercise was a normal procedural requirement and a failure to do so was unreasonable.” Lewison LJ held at [59] that this “sets the bar too high”. In any case in which there is a difference of expert-opinion “the decision maker is likely to resolve the difference in favour of one expert rather than another” and in that sense the losing party’s expert evidence “will not have stood up to scrutiny following cross-examination. But that of itself cannot rationally be regarded as unreasonable behaviour”.

Lewison LJ went on to hold at [61] that “testing the evidence of an expert to see whether it would stand up to cross-examination cannot be described as a “normal procedural requirement” even if it is permissible procedural option”; an instructing party should not be expected to second guess its expert as a matter of routine.

At [62] he held that “the Council cannot tell from Mr Parsons’ decision what it did wrong”. Further, if it had been “unreasonable conduct on the part of the Council to continue to rely on Mr Hopwood’s expert evidence, it would not have mattered whether the Council withdrew its support for the development or soldiered on to the bitter end. So the link between the withdrawal of the Council’s support and the f inding of unreasonable conduct is tenuous, to say the least”.

It was also relevant, Lewison LJ noted at [66], that the matters on which Mr Hopwood made the crucial concessions were on the validity of policy, not themselves a matter of public safety (his expert discipline). Accordingly, “I cannot see how it could reasonably have been anticipated that questions about the validity of the policy were to be put to the expert on public safety.”

The appeal was allowed and at [67] Lewison LJ concluded:

“If Mr Parsons regarded the Council’s withdrawal of support for the proposed development following the change in Mr Hopwood’s evidence as being “without good reason” I consider that his conclusion in that regard is untenable. If he meant to suggest that it is a “normal procedural requirement” to go beyond the Council’s extensive discussion of the parties’ positions before Mr Hopwood’s cross-examination, I can see no rational basis for that conclusion. If, on the other hand, he meant to identify some other “normal procedural requirement” with which the Council did not comply, I do not understand what it was.”

Comment

Lewison LJ’s judgment is a sensible and thoroughly reasoned one with the key takeaway being that it is not a normal procedural requirement for a party to test whether its expert’s evidence will withstand cross-examination. At [63]-[65] he also addressed the interesting issue of how far a party could permissibly go in testing their expert’s evidence, noting at [64] that “[a]ny discussion with witnesses must, of course, steer clear of coaching the witness” but that “[w]here discussion ends and practising begins is clearly a matter of judgment”.

Costs awards following a planning appeal are, largely, a matter of judgment for the decision maker but their reasoning must still stand up and be lawful. If you are on the receiving end of a costs award, it is always worth considering whether the decision and its reasoning come up to scratch. If you do identify any grounds on which to challenge an award hopefully it won’t, like for Halton Borough Council, require a circuitous trip to the Court of Appeal for a positive outcome.

Christopher Moss is a barrister at 39 Essex Chambers.

[1] The claim proceeded by way of judicial review, rather than statutory review, as a result of the earlier decision in this case by HHJ Stephen Davies in [2023] EWHC 293 (Admin). HHJ Stephen Davies held that a costs order made on the withdrawal of an application where there had been no final decision following an inquiry was not a decision made “in connection with” a relevant decision under s284 TCPA 1990 and therefore any challenge had to be made by judicial review. 

[2] [2024] EWHC 2030 (Admin)