Brandvik Kinton Ltd, R (on the application of) v Secretary Of State For Environment, Transport & Regions

A planning inspector deciding a costs application must give adequate and intelligible reasons, but need not analyse every issue in the detailed sequence proposed by a disappointed party. The inspector may use professional judgment to assess whether unreasonable conduct caused unnecessary expense. An inability to quantify or confidently apportion additional costs may justify refusing an award, provided the competing considerations have been properly addressed. Express acceptance that unreasonable behaviour occurred does not require an award where its impact on the inquiry or costs remains speculative. A conclusion that the inspector applied a criminal standard of proof is not established merely by language referring to certainty or confidence.

Brandvik Kinton Ltd sought judicial review of a planning inspector’s refusal to award costs following an unsuccessful planning inquiry. The claim alleged that the local planning authority had acted unreasonably and thereby provoked most or all of the inquiry. The inspector accepted that there was some substance in that allegation but concluded that any additional expense was speculative and that an inquiry would have been necessary in any event.

Gibbs J dismissed the judicial review application. The claimant renewed its application for permission to appeal, arguing that the inspector had failed to decide whether the authority acted unreasonably and had failed to conduct the detailed causation and costs analysis said to be required.

1. Application refused. The Court of Appeal, comprising Lord Justice Sedley and Lord Justice Jonathan Parker, unanimously refused permission to appeal.
2. The inspector’s task was principally one of professional judgment concerning what had occurred at the inquiry and why. His report considered the competing positions and explained that, although the authority might have acted unreasonably, it was impossible to identify with sufficient confidence any additional expense caused by that conduct.
3. The language used did not impose a criminal standard of proof. It conveyed the inspector’s view that there was no reliable basis for allocating all or part of the costs to the authority’s conduct.
4. The law requires adequate and intelligible reasons, as recognised in the authority of Save Britain's Heritage, but does not require unnecessary or inappropriate detail, particularly from a lay tribunal. The inspector was not required to work through every allegation, issue and item of expense in the elaborate sequence proposed by the claimant.
5. It was legally tenable for the inspector to conclude that the unreasonable behaviour had no appreciable demonstrable impact on the occurrence or duration of the inquiry. The inquiry had lasted six days, but the inspector considered that an inquiry was inevitable even if its scope might have been reduced. His reasoning was sufficient and was properly upheld by Gibbs J.

• High Court of Justice, Queen’s Bench Division, Administrative Court: Gibbs J dismissed the application for judicial review of the planning inspector’s costs decision.
• Court of Appeal (Civil Division): renewed application for permission to appeal refused: [2001] EWCA Civ 91.