CAAD appeals and costs

The Upper Tribunal (Lands Chamber) has handed down the first decision to consider the principles to be applied, and the approach to be adopted, in an application for costs in a CAAD (certificate of appropriate alternative development) appeal. James Pereira KC and Mark O’Brien O’Reilly analyse the ruling.

As the Upper Tribunal noted, this was the first time that the Tribunal had been asked to determine costs under rule10(6)(aa) of the Tribunal’s Procedure Rules which were amended following the decision of the Court of Appeal in Leech Homes Limited v Northumberland County Council [2021] EWCA Civ 198.

The decision followed a successful CAAD Appeal made by Mr Bashir – Bashir v Newham LBC [2024] UKUT 146 (LC). The substantive judgment is available here. The Acquiring Authority (who had refused a CAAD application made by Mr Bashir) had sought an order for all of its costs despite the fact that the Appellant had succeeded in its CAAD appeal. The Upper Tribunal confirmed that the Acquiring Authority was not the successful party and rejected that part of the application.In respect of its alternative argument that an issues-based order should be made, the Upper Tribunal considered a number of authorities relating to cost orders generally and confirmed that an order that that the successful party will pay the otherwise unsuccessful party’s costs on one or more issues will only be made in exceptional cases. This was not one such case and confirmed that there was no doubt but that the Appellant had been the successful party. Although he had not succeeded on all parts of his case, there was nothing exceptional about the appeal which would result in the Appellant having to pay a proportion of the Acquiring Authority’s Costs apart from a discrete issue relating to heritage matters where the Tribunal made an order in respect of a small proportion of the Acquiring Authority’s costs on that issue. 

The decision is, therefore, important as it is the first time the Upper Tribunal has had to consider an application for costs in a CAAD appeal. It is available here. 

James Pereira KC and Mark O’Brien O’Reilly are barristers at Francis Taylor Building. Instructed by Holmes & Hills LLP, they acted for the successful Appellant throughout the proceedings.