Golding v Secretary of State for Communities and Local Government & Ors

Costs awards made by a planning inspector under the general statutory costs jurisdiction are challengeable by judicial review, not under the statutory appeal route for substantive planning decisions. The court’s role is limited to deciding whether the inspector’s decision was irrational or Wednesbury-unreasonable. Disagreement with the assessment is insufficient.

Where a party serves ecological or noise evidence after the prescribed deadline, the inspector may treat that conduct as unreasonable where the evidence should reasonably have been obtained earlier and caused unnecessary appeal costs. Any award must reflect costs actually wasted, excluding expenditure that would have been incurred in any event.

The claimant challenged two costs orders made by a planning inspector after a successful planning appeal concerning permission to convert a holiday caravan site for permanent occupation by gypsies or travellers. The orders required the claimant to pay costs incurred by the local planning authority and, in part, by the objecting waste-management company.

The challenge concerned the claimant’s late ecological and noise evidence, counsel’s unavailability on the first day of the inquiry, the inspector’s assessment of unreasonable conduct and causation, and the correct legal route for challenging the costs orders. The court also considered whether the recoverable costs had to be reduced to exclude expenditure that would have been incurred regardless.

1. Judicial review was the correct route. A costs order made by an inspector under section 255 of the Local Government Act 1972, in connection with a section 78 planning appeal, was not a decision made “on an appeal” for the purposes of section 288 of the Town and Country Planning Act. Section 79 concerned substantive orders on the appeal. The section 288 claim was therefore treated as an application for judicial review, and permission was granted.
2. Limited intensity of review. Costs were pre-eminently a matter for the inspector who had dealt with the underlying inquiry. The court could intervene only if the decisions were irrational or Wednesbury-unreasonable. A different view, or significant disagreement with the inspector, was insufficient.
3. Ecological evidence. The inspector was entitled to find that the claimant had acted unreasonably by serving an ecological survey after the evidence deadline. The need for the survey was apparent from the planning authority’s refusal and the underlying ecological concerns. The finding that the delay caused unnecessary expense was rational.
4. Noise evidence. The inspector was entitled to conclude that relevant noise assessments and mitigation proposals could have been submitted before the deadline. The later material was not merely a response to the objector’s subsequent report. The costs decision was considered and logically reasoned, and was not irrational.
5. Counsel’s unavailability. The inspector could reasonably conclude that alternative counsel might have been instructed and could award the confined costs wasted in discussing counsel’s unavailability, even though the inquiry required an adjournment for other reasons.
6. Quantum and disposition. The local authority could recover only its incremental savings: costs incurred after the deadline less costs that would have been incurred in dealing with conditions in any event. The claim was dismissed. The claimant was ordered to pay the first defendant’s costs, summarily assessed at £6,000. Permission to appeal was refused, but time for appeal was extended to 28 days.

The judgment concerned a first-instance judicial review of planning-inspector costs orders following a planning appeal. The section 288 claim was treated as an application for judicial review.