Mayor of London, R (on the application of) v First Secretary of State & Ors

An award of costs in planning proceedings may be made where a party has behaved unreasonably and caused unnecessary expense. In assessing the Mayor’s conduct, the Secretary of State was entitled to examine both the direction refusing permission and the evidence later advanced to substantiate it. Strategic planning powers do not extend to matters of purely local significance. Design may raise strategic issues, but the Mayor must explain and substantiate how the particular concerns have significance beyond the immediate locality. A planning appeal’s dismissal on different, non-strategic grounds does not prevent an award of costs arising from an unjustified strategic direction.

The Mayor challenged the Secretary of State’s reconsidered decision to award Victoria Hall Ltd and the London Borough of Brent their costs of a planning appeal. The appeal followed the Mayor’s direction under the Town and Country Planning (Mayor of London) Order 2000 that planning permission be refused for student accommodation and ancillary uses at Wembley.

The Secretary of State had concluded that the Mayor acted unreasonably because he failed to substantiate the strategic significance of his design objections. The planning appeal was dismissed on the separate ground that the development would harm neighbouring amenity. The Mayor advanced five grounds, including errors of approach, evidential assessment, treatment of the direction, interpretation of strategic planning, and consideration of the appeal outcome.

1. Application dismissed. The Secretary of State’s decision to award full costs was lawful.
2. The applicable question was whether the Mayor had behaved unreasonably, consistently with the policy in Circular 8/93 as supplemented by Circular 1/2000. The Secretary of State’s reference to whether the Mayor’s decision was reasonable did not impose an impermissible burden of proof when the decision letter was read as a whole.
3. The material issue was whether the Mayor had provided planning evidence substantiating the stated reason for the direction. The Mayor was not required to conduct a full inquiry before issuing it, but he had to identify the specific concerns requiring inquiry and substantiate their strategic significance. General assertions about poor design, without explaining how the effects were significant beyond the immediate locality, were insufficient.
4. The Mayor’s powers under article 5(1)(b) of the Town and Country Planning (Mayor of London) Order 2000 concerned good strategic planning. Design could have strategic implications, but not every design issue was strategic. The fact that a site lay within a strategic regeneration area did not itself make every proposal strategically significant.
5. The form and content of the direction were highly material. They stated the reason for refusal and the policies relied upon, so the Secretary of State was entitled to scrutinise them before considering whether the later evidence substantiated that case.
6. The dismissal of the planning appeal did not prevent the costs order. The appeal had been dismissed for non-strategic effects on neighbouring amenity, whereas the Mayor’s direction had not been justified on strategic planning grounds. The unreasonable direction had directly caused the unnecessary inquiry costs.

The court also accepted that “reasonableness” in this costs context did not bear the technical Wednesbury meaning identified in Hann v Secretary of State for the Environment, Transport and the Regions and R v Secretary of State for the Environment ex parte North Norfolk District Council.

The original costs decision was quashed by consent by the High Court on 24 July 2003 for inadequate reasons and remitted to the Secretary of State for reconsideration. The present court dismissed the Mayor’s challenge to the Secretary of State’s reconsidered costs decision.