D Morgan Plc, R (on the application of) v The Welsh Ministers & Anor (Rev 1)

In a planning costs application, quashing an enforcement notice for technical uncertainty does not create a presumption that the authority acted unreasonably or require an award of costs. The governing question is whether the authority’s conduct, considered in the round, was unreasonable in its ordinary sense. Guidance examples identify circumstances that may support that conclusion but do not determine it.

The decision-maker may consider the authority’s reasons for initiating and pursuing enforcement action, including whether it had a genuine public-interest basis and a reasonable evidential foundation. A fair reading of the decision as a whole is required. A costs decision is not procedurally unfair merely because evidence relevant to the nullity issue also bears on the reasonableness of the authority’s conduct.

The claimant sought judicial review of an Inspector’s refusal to award costs following the claimant’s successful challenge to enforcement notices concerning waste tipping and embankments at Sea View Farm, Flintshire.

The Inspector held that the principal enforcement notice was a nullity because its requirements were hopelessly uncertain. He nevertheless refused costs, finding that the council had advanced a reasonable case and that unreasonable behaviour causing unnecessary expense had not been demonstrated. The claimant challenged that decision for misapplication of Welsh Office Circular 23/93 and procedural unfairness arising from the staged public inquiry.

1. Application dismissed. The Inspector had applied the correct question under Welsh Office Circular 23/93: whether the council’s conduct was unreasonable in the ordinary sense. The Circular’s examples are guidance only. They do not create a presumption that costs follow where an enforcement notice is technically defective or quashed.
2. The Inspector was entitled to conclude that the council’s conduct was reasonable although the notice was a nullity. The council had succeeded on one nullity argument, had relied on expert evidence concerning the possible interpretation of the planning permission plan, and had a genuine view that excessive tipping and harm to amenity justified enforcement action. A deficient legal interpretation was capable of being a reasonable case, rather than a serious misunderstanding of clearly established law.
3. The Inspector’s decision had to be read fairly and as a whole. Although the description of the council’s error could have been clearer, the decision showed that he had considered the technical defect, the evidential basis for enforcement, the public-interest context and the distinction between the uncertainty in the planning plan and its incorporation into the notice.
4. There was no procedural unfairness. Evidence about excessive tipping and amenity had been relevant to the issue whether the notice was sufficiently certain. The claimant was not prevented from challenging that evidence. The Inspector made no concluded finding on the merits; he assessed whether the council had a reasonable evidential basis for pursuing enforcement action.
5. The remaining grounds were rejected and the judicial review claim was dismissed. Ancillary orders, including costs and any application for permission to appeal, were left for agreement or a subsequent telephone hearing.

First-instance judicial review. No earlier decision is stated in the judgment.