Elghanian v Secretary of State for Housing, Communities and Local Government & Anor (Ruling on Costs)

In a permission hearing for a statutory planning appeal under section 289 of the Town and Country Planning Act 1990, costs generally follow the event because respondents are entitled to attend the compulsory hearing. The Bolton principle limits recovery where separate representation adds no distinct issue or necessary interest. The costs regime is distinct from judicial review and statutory review. The court should not import the judicial-review practice of awarding preparation costs for an acknowledgment of service, because a section 289 respondent has no equivalent obligation to file such a document. Accordingly, a successful first respondent may recover its costs, but a local planning authority should not recover duplicated costs where it raises no separate issue.

The applicant sought permission to appeal on a point of law under section 289 of the Town and Country Planning Act 1990 against the dismissal of his planning enforcement appeal. Permission was refused at an oral hearing. The First Respondent sought its hearing and preparation costs. The Second Respondent, the local planning authority, sought its own costs, including alternatively the costs of preparing a skeleton argument. The applicant accepted the First Respondent’s application but relied on Bolton MDC v Secretary of State for the Environment to oppose a second set of costs and resisted the proposed analogy with judicial review. The central issue was the proper costs approach for a section 289 permission hearing.

1. The application for permission to appeal was refused. Costs generally followed the event because section 289 proceedings involve an obligatory oral hearing at which respondents are entitled to appear. The court therefore ordered the Applicant to pay the First Respondent’s costs of £4,734.

2. The principle in Bolton MDC v Secretary of State for the Environment remained applicable. Although costs were discretionary, a successful Secretary of State would generally receive the whole of its costs. A second respondent would not normally receive costs unless there was a separate issue on which it was entitled to be heard or an interest requiring separate representation. The Second Respondent accepted that no such separate issue existed, so its additional hearing costs were refused.

3. The section 289 regime was separate and distinct from judicial review under CPR Part 54 and statutory review under section 288 of the Town and Country Planning Act 1990. The judicial-review practice confirmed in R (on the application of Mount Cook Land Ltd) v Westminster City Council could not be applied by analogy.

4. In judicial review and statutory review, an acknowledgment of service is required from a respondent or interested party wishing to participate. Under section 289, neither respondents nor other persons served were required to file a response. A skeleton argument was part of preparation for the oral hearing and was not analogous to an acknowledgment of service. The Second Respondent’s alternative claim for £5,400 was therefore refused.

5. The court noted that harmonisation of the different costs regimes might be desirable, but considered that reform should be made by amending the CPR rather than by piecemeal judicial decision-making. The general costs discretion did not justify departing from the applicable position on these facts.

First-instance ruling on costs following refusal of permission to appeal under section 289 of the Town and Country Planning Act 1990. No prior judgment citation for the underlying planning appeal was stated.