Halton Borough Council, R (on the application of) v Secretary of State for Levelling Up, Housing and Communities

A judicial review court must respect the wide evaluative judgment entrusted to the primary planning costs decision-maker. Intervention is justified for material misdirection, legally inadequate reasons, or a decision outside the range of reasonable responses or affected by a demonstrable flaw in reasoning.

In a called-in planning inquiry, the restriction on costs for conduct relating to the substance of the case or occurring before call-in does not prevent a costs award for aborting the inquiry by withdrawing support without good reason. Whether withdrawal was without good reason may be informed by matters touching on the merits, without requiring determination of the merits themselves. The court must not substitute its own view for the primary decision-maker’s evaluative judgment.

Halton Borough Council challenged two decisions awarding costs to the Health and Safety Executive and Viridor Energy Ltd after a called-in planning inquiry was abandoned.

The Council had resolved to grant permission for residential development near the Runcorn Chemicals Complex. At the inquiry, its public safety expert made concessions in cross-examination. The Council withdrew its support, and the developer withdrew the application. The authorised costs decision-maker awarded costs from 23 June 2021, when the HSE served its rule 6 statement of case.

The claim alleged misinterpretation or unreasonable application of the Planning Practice Guidance, an unreasonable finding that the Council had failed to keep its position under review, inadequate treatment of changed evidence, an unreasonable expectation that expert evidence should withstand cross-examination, and an excessive temporal scope for the award.

1. The claim was dismissed. Permission to appeal was refused. The costs decision-maker’s decisions contained no material misdirection, legal inadequacy of reasons, or public law unreasonableness.
2. The Guidance’s distinction between substantive and procedural unreasonable behaviour was correctly understood and applied. The decision-maker rejected the complaint concerning the Council’s original resolution because it concerned the substance of the case and pre-dated call-in. The later withdrawal of support was treated as procedural conduct within the specific provision concerning aborting a called-in inquiry without good reason.
3. Whether withdrawal was without good reason included its timing. That inquiry could properly take account of matters touching on the substance, such as whether the opposing case or planning circumstances had materially changed, without requiring the decision-maker to determine the underlying planning merits.
4. The decision-maker did not find, as a discrete fact, that the Council had failed to hold meetings or keep its case under review. The reasoning identified several relevant responsibilities: appointing an expert, satisfying itself about the strength and reliability of the advice, ensuring that it could prosecute its case to decision, and ensuring that its grounds for supporting permission remained. Those matters, the collapse of the safety case, and the absence of other material change supported the conclusion that withdrawal when it occurred was unreasonable.
5. The judgment accepted that legal representatives must not rehearse, practise with, or coach a witness, including an expert witness. However, appropriate discussion of the merits and weaknesses of expert evidence is permissible. The decision-maker was not imposing a duty to simulate cross-examination. The relevant question was whether the Council had good reason for withdrawing when it did, in circumstances where its expert evidence collapsed and no other material change was identified.
6. The award from 23 June 2021 fell within the decision-maker’s evaluative latitude. The HSE’s statement of case set out the full and precise basis of its opposition, and the Council’s pre-existing responsibilities and knowledge of the safety concerns informed the chosen date. The High Court had no merits-substitution jurisdiction.

First-instance judicial review in the Planning Court. The court dismissed the claim and refused permission to appeal.