Trago Mills Ltd, R (on the application of) v The Secretary of State for Communities and Local Government & Anor

Where a compulsory acquisition request is reduced during a development-consent examination, the exclusion of land from the request may trigger the time limit for a successful objector’s costs application. The reference in the costs guidance to withdrawal of a compulsory acquisition request includes effective exclusion of part of the land, not only complete abandonment of the request. The time limit runs from proper notification of that exclusion. The guidance need not prescribe a particular form of notification. An Examining Authority may extend time only where good reason for delay is shown, and may give substantial weight to promptness and administrative finality. A judicial review concerning costs arising from compulsory acquisition within a development-consent process is an Aarhus Convention claim.

The claimant objected to the compulsory acquisition of land for an attenuation pond in a development-consent application under the Planning Act 2008. During the examination, the applicant amended its application and reduced the land subject to compulsory acquisition. The claimant agreed to the reduction but later applied for its costs after the Secretary of State made the development consent order.

The Examining Authority accepted that the claimant was a successful objector but refused the costs application as out of time under the Secretary of State’s Costs Guidance. He declined to extend time. The claimant sought judicial review, challenging the construction of the guidance, notification of the exclusion, the applicable trigger date and the exercise of discretion.

1. Application refused. The Examining Authority correctly treated the amended application as the operative application. Once the amendment was accepted, the Excess Land was outside the compulsory acquisition request and could not be acquired without a further amendment or a procedure protecting affected parties under section 124(4) of the Planning Act 2008 and the Infrastructure Planning (Compulsory Acquisition) Regulations 2010, or an equivalent procedure.
2. The Costs Guidance prescribed no particular form of notification. The claimant had received the amended plans, agreed the reduced land at the hearing, and was formally informed that the amended application would be examined. The claimant was therefore notified of the exclusion by 22 July 2014.
3. Paragraphs D5 and D6 of the Costs Guidance had to be read together. Although imperfectly drafted, withdrawal of a compulsory acquisition request included the effective exclusion of part of the land. The 28-day period therefore ran from notification of the partial exclusion, rather than from the Secretary of State’s later decision on the development consent order. The application made on 2 March 2015 was late.
4. The refusal to extend time was not irrational. The relevant considerations included the seriousness of the delay, its reason and the wider circumstances, reflecting the approach in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537 and Denton v TH White Limited [2014] EWCA Civ 906. The claimant had offered no good reason for deliberately postponing its application, and the Examining Authority was entitled to give considerable weight to promptness and finality.
5. The claim concerned costs arising from the compulsory acquisition elements of a development-consent process. Those costs formed part of the national planning framework, so the judicial review was an Aarhus Convention claim and the costs-capping provisions in CPR Part 45 applied.

Not stated in the judgment.