Flintshire County Council, R (on the application of) v National Assembly for Wales & Anor

Guidance on costs following the withdrawal of a planning appeal distinguishes between initial notification that an inquiry will occur and formal notification of the inquiry arrangements. Formal notification requires communication of the necessary particulars, including the date, time and venue. Under the 2003 Welsh inquiry rules, the relevant formal notification is the notice under regulation 10, not the earlier notice that an inquiry is to be held. The guidance is not binding. It provides a starting point, but the decision-maker must consider the circumstances of the individual case. Costs incurred before formal notification are not therefore automatically excluded. A decision applying the guidance will be unlawful only if the guidance is misinterpreted, relevant matters are ignored, irrelevant matters are considered, or the decision is irrational.

SCA Hygiene Products UK Ltd appealed against Flintshire County Council’s failure to determine a planning application. An inquiry was arranged, but SCA withdrew the appeal before it took place. The National Assembly for Wales awarded the Council costs incurred only after 1 April 2004, treating that date as three working days after formal notification of the inquiry arrangements.

The Council sought judicial review, arguing that formal notification occurred earlier and that the decision-maker had unlawfully confined the costs award by following the ministerial guidance too rigidly. The central issues were the proper interpretation of the guidance and its relationship with the Town and Planning Country Appeals (Determination by Inspectors) (Inquiries Procedure) (Wales) Rules 2003.

1. Claim dismissed. The National Assembly was entitled to treat the letter of 29 March 2004, together with the enclosed inquiry notice, as the formal notification of the inquiry arrangements. The earlier letters established that an inquiry was intended and fixed a date, but the venue remained unsettled. They therefore amounted only to initial notification.
2. The distinction in Circular 8/93 between initial notification and formal notification was deliberate. The 2003 Rules maintained a comparable distinction. The definition of “relevant notice” in regulation 2, as used in regulation 4, concerned notification that an inquiry was to be held. Regulation 10 concerned the date and notification of the inquiry and required notice of the date, time and place, together with other particulars. That regulation 10 notification corresponded to the formal notification contemplated by the Circular.
3. The Circular was guidance rather than a binding rule. A decision-maker could use formal notification as the starting point for assessing recoverable costs, but was not required to exclude costs incurred earlier. Whether earlier costs should be awarded depended on all the circumstances of the case.
4. The decision letter concluded that the withdrawal was unreasonable, that it had caused wasted expenditure, and that costs should be awarded from the date treated as formal notification. The Council’s challenge was founded on the alleged misinterpretation of the Circular. The court found no sufficient material to establish a failure to consider relevant matters, an irrelevant consideration, an unreasonable decision in the Wednesbury sense, or irrationality. It declined to speculate about possible factors that had not formed part of the Council’s pleaded challenge.
5. The applicant was ordered to pay the respondent’s agreed costs of £6,345.55 within 14 days.

Permission to apply for judicial review was granted by Collins J on 29 April 2005. The claim was then determined at first instance by the High Court (Administrative Court).