Supreme Court refuses Secretary of State permission to appeal in dispute with council over costs award after planning inquiry

A panel comprising Lord Lloyd-Jones, Lord Leggatt and Lord Stephens concluded this week (5 May) that the Secretary of State’s application for permission to appeal “does not raise an arguable point of law or a point of law of general public importance”.

The case of R (on the application of Halton Borough Council) v Secretary of State for Housing, Communities & Local Government centred around Halton Borough Council’s decision to withdraw its support for a 139-home development positioned near to an industrial centre for the manufacture of chemicals.

The local authority had approved the scheme near Runcorn, deciding that it was safe on the basis of its own safety policy and expert advice from a firm of specialist management consultants.

The Health and Safety Executive and Viridor, a company with a plant in the complex, had objected to the proposal on safety grounds.

The Secretary of State called in the planning application and appointed a planning inspector to conduct an inquiry.

During the inquiry, Halton’s expert witness accepted that its safety policy did not comply with the National Planning Practice Guidance.

He also conceded that if he were in the planning inspector’s position, he would strongly advise the Secretary of State to refuse the Runcorn development planning permission.

As a result, the council withdrew its support for the development and the developer withdrew its planning permission application.

HSE and Viridor - who were interested parties - then sought to recover the costs of participating in the inquiry from the council.

The Secretary of State, acting through a member of the Planning Inspectorate, ultimately decided the council had behaved unreasonably by supporting the planning application on the basis of expert evidence which failed to withstand cross-examination.

Consequently, he ordered the council to pay HSE and Viridor’s costs.

Halton applied for judicial review, but this was dismissed by the High Court.

The local authority later succeeded in the Court of Appeal, which found – among other things – that there was no suggestion that any party should test its own expert’s evidence to see if it would withstand cross-examination.

Lewison LJ added that an instructing party could not be expected to second-guess its expert as a matter of routine.

Adam Carey

See also: Planning appeals and costs awards - Christopher Moss analyses the Court of Appeal judgment.