Plunkett, R (on the application of) v Sefton Metropolitan District Council & Anor

Where judicial review proceedings are resolved without a trial but the parties cannot agree costs, the court may assess the likely merits and the parties’ conduct. The usual fallback is no order as to costs, but the court must do justice without discouraging sensible concessions.

An undertaking not to implement an unlawful planning permission, including one secured under section 106, will not ordinarily replace a quashing order. The permission remains a public document and may affect third-party rights, refinancing and disposal of property. Where a planning authority failed to consider the proximity and possible effect of development on a conservation area, it must show that the decision would inevitably have been the same. Showing merely that the outcome might have been unchanged is insufficient.

The claimant challenged planning permission granted by Sefton Metropolitan District Council to the interested party for a large two-storey garage and games room adjoining the claimant’s property.

The claim alleged, among other matters, failure to consider the nearby West Birkdale Conservation Area, failure to comply with publicity requirements, failure to apply relevant planning guidance, consideration of a superseded plan, and defects in the committee report.

A second permission was later granted and the interested party stated that he would not implement the first permission. He subsequently entered into a section 106 undertaking. Sefton nevertheless contested the claim until the substantive hearing, when it agreed to the first permission being quashed. The remaining issue was costs, including whether the proceedings had become academic and the claimant’s prospects of success.

1. The court applied the principles in Boxall and Boxall v Waltham Forest London Borough Council. Although the substantive proceedings had been resolved without a trial, the court could make a costs order. It had to do justice between the parties, consider the parties’ conduct and assess the merits to the extent appropriate, without undertaking the same analysis as at a full hearing.

2. The proceedings were not academic while the first planning permission remained intact. The interested party’s personal undertaking had no legal effect against purchasers or third parties. The later section 106 undertaking probably would not have protected the claimant against a mortgagee-in-possession and could have impeded refinancing or disposal of the property.

3. Following R (Thomas Brown) v Carlisle City Council, a section 106 undertaking was not an adequate substitute for quashing an unlawful planning permission absent very good reasons. The claimant was therefore entitled to continue the proceedings until Sefton agreed to quash the permission.

4. The failure to consider the application’s proximity to the West Birkdale Conservation Area was a strong ground of challenge. Regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 required the authority to consider whether the development affected the character or appearance of the conservation area and, if so, to undertake the specified publicity and consultation. Section 70(2) of the Town and Country Planning Act 1990 also required consideration of relevant development-plan policies and other material considerations.

5. Applying the approach in Smith v North Eastern Derbyshire Primary Care Trust, as applied in R (Copeland) v Tower Hamlets LBC, Sefton would have had to show that the decision would inevitably have been the same. Given the conservation area’s proximity and the likely additional consultation, that could not safely be established. The claimant’s prospects of success were therefore sufficient to support the costs order. The court considered that ground 2 was also likely to succeed, but it was unnecessary to decide grounds 2, 3 and 4.

   Sefton was ordered to pay the claimant’s costs on the standard basis, later agreed at £68,000 inclusive of all costs. The first planning permission was quashed by agreement during the hearing.

Not an appeal. The judgment determined the costs consequences of Sefton’s agreement during the substantive judicial review hearing to quash the first planning permission.