Shepherd, R (on the application of) v Secretary of State for Communities and Local Government

In reviewing a planning inspector’s costs decision, the court’s role is supervisory. The court must not substitute its own assessment where the decision-maker has directed herself properly to the relevant guidance and material facts.

Under the Costs Circular, unreasonable behaviour bears its ordinary meaning and does not require a Wednesbury standard of irrationality. The decision-maker must assess the circumstances broadly, including whether withdrawal of an enforcement notice followed a material change, but need not determine every underlying planning or land-control dispute. A costs decision remains discretionary, and withdrawal of an enforcement notice does not automatically justify an award.

The claimant sought judicial review of a planning inspector’s decision refusing costs after a local planning authority withdrew an enforcement notice during an appeal. The notice had required cessation of tipping operations. It was withdrawn after a third party obtained conditional planning permission for tipping at the site.

The claimant argued that the inspector had failed to grapple with the difference between the unrestricted use asserted in the appeal and the conditional use authorised by the later permission. The central issue was whether the costs decision involved an error of public law.

1. Claim dismissed. The inspector’s decision not to award costs was lawful. Costs in enforcement appeals are normally borne by the parties themselves, and an award depends on unreasonable behaviour causing unnecessary or wasted expense.
2. The reference in the Costs Circular to unreasonable behaviour adopts the ordinary meaning of that word, rather than the Wednesbury standard. The guidance that an authority may be at risk of costs after withdrawing an enforcement notice does not create an automatic entitlement to costs.
3. The inspector was required by paragraph B41 of the Costs Circular to make her own assessment, within the general costs discretion, of whether there had been a material change of circumstances. The exercise was not confined to reviewing the local authority’s view.
4. The decision-maker was entitled to consider the whole evidential context. She was not required to determine whether the later planning permission had been implemented, or finally resolve the competing disputes about ownership and control of the site. The relevant question was whether the authority had acted unreasonably in the circumstances.
5. The court’s function was supervisory. It had to resist substituting its own costs assessment for that of the inspector. The inspector’s conclusion was open to her and was not shown to be irrational. The claimant’s separate ground based on PPG18 had already been refused permission and was not reopened.
6. Costs were awarded to the Secretary of State, summarily assessed at £6,968.