Bolton Metropolitan District Council & Ors v Secretary of State for the Environment & Ors

The House considered the proper approach to awards of costs where there is multiple representation in planning appeals under section 288 of the Town and Country Planning Act 1990 and its predecessors. The Law Lords emphasised that costs remain a matter of judicial discretion and that long-standing practice must not harden into a rule. The speech set out four propositions: (1) the Secretary of State, when successful, will normally be entitled to the whole of his costs; (2) a developer will not normally be entitled to a separate award of costs unless there was a distinct issue or a separate interest requiring separate representation; (3) multiple awards of costs are more likely at first instance than on later appeal; and (4) a third set of costs will rarely be justified. Applying these principles, the House ordered that the Secretary of State should recover his costs in full and that the Manchester Ship Canal Company should also recover its costs in this House and below; no separate third award was justified for the Trafford Park Development Corporation except to the limited extent allowed below.

This appeal raised only the question of costs following a planning dispute concerning a major out-of-town development. The House invited written submissions on multiple representation in planning appeals after hearing argument. The background included prior authority on multiple representation such as Birmingham City Council v H. (A Minor) and the Court of Appeal decision in Wychavon District Council v Secretary of State for the Environment, which had cast doubt on the earlier practice of awarding separate costs to developers.

Parties and posture:

• Nature of the claim: an application concerning costs arising from planning proceedings; the substantive planning decision and its challenge are background to the costs application.
• Parties: Bolton Metropolitan District Council and others (respondents) challenged a decision of the Secretary of State; appellants included the Secretary of State, Manchester Ship Canal Company and Trafford Park Development Corporation.
• Procedural path: a costs order had been made at first instance by Schiemann J. (awarding developers some costs); the matter reached the House of Lords on the question of costs.

Issues framed by the House:

• Whether multiple sets of costs should be awarded where several parties with apparently identical interests are separately represented in planning appeals.
• How the Court should exercise its discretion under section 288 of the Town and Country Planning Act 1990 and similar provisions, taking account of public expenditure and the crystallisation of issues on appeal.

Reasoning and decision:

• The House reiterated that there are no fixed rules about costs: the court retains broad discretion and should guard against hardening practices.
• Where the Secretary of State successfully defends a decision, he will normally be entitled to the whole of his costs and should not be compelled to share them unless exceptional circumstances exist.
• A developer will only normally obtain a separate award if there was a distinct issue not covered by the Secretary of State's counsel or a separate interest requiring distinct representation; mere developer status is insufficient.
• Because the case involved difficult questions of principle, substantial development interests and an unusual field of opposition, the Manchester Ship Canal Company was entitled to its costs; a further separate award for the development corporation was not justified.

The House therefore made an order on costs in favour of the Secretary of State and the Manchester Ship Canal Company in this House and below.

This was an appellate consideration of costs. The House exercised its discretion and ordered that the Secretary of State was entitled to the whole of his costs and that the Manchester Ship Canal Company was also entitled to its costs in this House and below. The Trafford Park Development Corporation was not entitled to a separate third set of costs except to the limited extent already allowed by Schiemann J. The rationale was that costs decisions are discretionary, long-standing practice must not become rigid, and multiple awards require justification where distinct issues or separate interests exist.

First instance: costs order made by Schiemann J. (details of the substantive first instance determination not set out in this extract). The matter proceeded on the question of costs to the Court of Appeal and thence to the House of Lords, reported as [1995] UKHL 27.