Horton v Secretary of State for Communities and Local Government & Anor

Permission to appeal should be refused where the proposed grounds have no real prospect of success and there is no other compelling reason for an appeal to be heard. A developer’s costs in a planning case are rarely justified. The usual rule is that the developer should not receive costs unless the circumstances are sufficiently exceptional to warrant departure from that position.

The court dealt with two ancillary applications following judicial review proceedings concerning an environmental impact assessment issue. The claimant sought permission to appeal on whether a council letter was a screening opinion and whether it was inadequately reasoned. The developer sought costs for preparing witness statements relating to a ground that the claimant did not pursue at the hearing.

1. The claimant’s application for permission to appeal was refused. Neither proposed issue had a real prospect of success, and no other compelling reason justified an appeal.
2. The developer’s application for the costs of preparing witness statements relating to the abandoned ground was refused. Although the statements were not used at the hearing, pursuing the ground would have caused further time and expense, while the developer would not have been entitled to its hearing costs.
3. The court reaffirmed that a developer’s costs in such cases are rarely justified. This was not one of the rare cases warranting departure from the usual rule that the developer is not entitled to costs.
4. The application was dismissed. The claimant was ordered to pay the Secretary of State’s costs, subject to detailed assessment and determination of liability under section 11 of the Access to Justice Act 1999. A detailed Community Legal Service Funding assessment was ordered.