USK Valley Conservation Group, R (on the application of) v Brecon Beacons National Park Authority

Costs in public interest judicial review remain a matter for the court’s discretion. Success on one issue does not necessarily justify an order for all costs, particularly where the claimant pursued substantial issues on which it failed. The court may apportion costs by issue, period and party, taking account of the work reasonably required, the relative importance of the issues, the parties’ conduct, and any public interest element. Public interest litigation requires selectivity in identifying the points to be pursued. A costs order will not be disturbed merely because another allocation could reasonably have been made, absent an error of approach.

The claimant challenged a planning permission and related decisions of the defendant National Park Authority. The permission was quashed, and the claimant obtained a declaration concerning a November 2008 decision. The Authority had conceded that the permission should be quashed but succeeded on most of the contested issues. The interested parties successfully resisted allegations concerning fraud, dishonesty and the validity of the planning application.

The judgment concerned costs following the substantive judgment handed down on 27 January. The central issues were how costs should be apportioned between the claimant, the Authority and the interested parties, and whether permission to appeal should be granted against the discretionary costs order.

1. Costs discretion and apportionment. The court treated the costs of the 2005 planning-permission issues separately from the costs of the 2008 decision. The claimant was awarded its costs against the Authority up to one month after service of the acknowledgement of service. Thereafter, the Authority was not required to pay the claimant’s costs of the 2005 issues, and it was not ordered to recover its own costs from the claimant. The approach reflected the claimant’s success in quashing the permission, the public interest element, the Authority’s responsible participation, and the claimant’s failure on substantial and costly issues.
2. The interested parties were ordered to pay 15 per cent of the claimant’s remaining costs relating to the 2005 issues, together with the costs of one-and-a-half hearing days. They were not required to contribute to preparatory and documentation costs relating to issues on which they had succeeded.
3. In relation to the 2008 decision, the claimant succeeded only on a narrow valuation-related issue and lost its principal submission, bias allegation, rationality challenge and lesser valuation issue. The claimant was therefore ordered to pay 80 per cent of the Authority’s costs of the 2008 issue.
4. The public interest nature of proceedings does not justify pursuing unnecessary or weak points at public expense. Public interest litigation requires careful selection of the issues to be fought. The court’s costs assessment was not shown to involve an error of approach and permission to appeal was refused.

The judgment records that the substantive judgment had been handed down on 27 January, but no citation for that decision is stated. This judgment determined the consequential costs issues and refused permission to appeal.