High Court upholds costs orders against Halton Borough Council over planning inquiry

The High Court has upheld two costs orders against Halton Borough Council following the collapse of a planning inquiry due to the failure of the council’s expert witness to support its case.

A planning application was submitted in September 2017 by developers MJ Gleeson for the development of 139 dwellings in Runcorn. The Health & Safety Executive (HSE) objected to the application due to safety concerns related to the nearby Runcorn Chemicals Complex. Viridor, which operates one of the UK's largest energy-from-waste plants near the proposed development, also objected to the application.

However, the council resolved to grant planning permission in October 2020 as the proposals were considered to be in accordance with the council’s own adopted development plan policies on risk and decided that the HSE's advice did not justify departing from the plan.

The Secretary of State called in the planning decision in May 2021 at the request of the HSE, leading to a planning inquiry. During the inquiry, the council’s expert witness, Mr. Hopwood of DNV, conceded under cross-examination that, if he were in a planning inspector’s position, he would advise against granting the planning permission, leading the council to withdraw its support for the application. The developer also withdrew its application, ending the inquiry.

Both the HSE and Viridor made applications for the Council to pay their costs, in full or in part. In planning proceedings, costs are only awarded on the grounds of "unreasonable" behaviour, resulting in any wasted or unnecessary expense

As the inquiry was now discontinued, these applications were determined by a member of the Costs & Decisions Team at the Planning Inspectorate.

The High Court upheld the costs orders, which required the council to pay the HSE’s costs from June 23, 2021, and Viridor Energy Ltd’s costs from November 2, 2021. The court found that the council’s failure to maintain its position and the subsequent collapse of the inquiry caused unnecessary expense for the other parties.

The judge, Mr Justice Fordham, found that the council’s conduct in withdrawing its support for the application without good reason constituted unreasonable behaviour. The court noted that the council should have ensured that its expert evidence was robust and capable of withstanding scrutiny. The decision emphasised that the council’s “volte-face” occurred without any change in the HSE’s position or the planning circumstances.

The judge said: “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.”

The full judgment can be found at http://www.bailii.org/ew/cases/EWHC/Admin/2024/2030.html