“Why do we have an award of costs? Parties in planning appeals and other planning proceedings normally meet their own expenses. All parties are expected to behave reasonably to support an efficient and timely process, for example in providing all the required evidence and ensuring that timetables are met. Where a party has behaved unreasonably, and this has directly caused another party to incur unnecessary or wasted expense in the appeal process, they may be subject to an award of costs. The aim of the costs regime is to: • encourage all those involved in the appeal process to behave in a reasonable way and follow good practice, both in terms of timeliness and in the presentation of full and detailed evidence to support their case; • encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay; • discourage unnecessary appeals by encouraging all parties to consider a revised planning application which meets reasonable local objections.” • encourage all those involved in the appeal process to behave in a reasonable way and follow good practice, both in terms of timeliness and in the presentation of full and detailed evidence to support their case; • encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay; • discourage unnecessary appeals by encouraging all parties to consider a revised planning application which meets reasonable local objections.”
“How does the award of costs apply to called-in planning applications? When a planning application is “called-in”, it is determined by the Secretary of State rather than by the local planning authority. This places the parties at a called-in proceeding in a different position from that in a planning appeal. The local planning authority is not defending a decision to refuse planning permission, or a failure to determine the application within the prescribed period. In these circumstances, it is not envisaged that a party would be at risk of an award of costs for unreasonable behaviour relating to the substance of the case or action taken prior to the call-in decision. However, a party’s failure to comply with the normal procedural requirements of inquiries, including aborting the process by withdrawing the application without good reason, risks an award of costs for unreasonable behaviour.”
“When might an award of costs be made against an interested party? Interested parties who choose to be recognised as Rule 6 parties under the inquiry procedure rules, may be liable to an award of costs if they behave unreasonably. They may also have an award of costs made to them. See the Planning Inspectorate guide on Rule 6 for more detail. It is not anticipated that awards of costs will be made in favour of, or against, other interested parties, other than in exceptional circumstances. An award will not be made in favour of, or against interested parties, where a finding of unreasonable behaviour by one of the principal parties relates to the merits of the appeal. However an award may be made in favour of, or against, an interested party on procedural grounds, for example where an appeal has been withdrawn without good reason or where an unnecessary adjournment of a hearing or inquiry is caused by unreasonable conduct. In cases dealt with by written representations, it is not envisaged that awards of costs involving interested parties will arise.”
“It may be a convenient paraphrase of that guidance to say that authorities are expected to produce “substantial evidence”, but it depends what “substantial evidence” means in this context. Clearly, the evidence upon which an authority relies to support a ground for refusal of permission must have some substance in the sense of providing some respectable basis for its stance upon a particular issue. But it need not be of such substance as to persuade the inspector to find in the authority’s favour on the issue. Otherwise every evidential failure to persuade an inspector on an issue would expose the loser to a finding of unreasonableness on an application for costs in relation to that issue.”
“There is thus an evidential threshold which, if reached, is [likely] The report of the judgment uses the word “unlikely” but counsel were agreed that that was a typographical error. to put a planning authority beyond the risk of a finding that it has been guilty of unreasonable conduct. I propose to refer to it by use of the phrase “sufficient evidential basis” by which I mean evidence, not lacking real substance, which is capable of belief and which, if accepted, would be capable of making good the plaintiff authority’s objection. I would wish to stress, though, there may not be only one test of unreasonable conduct in relation to the raising of a planning objection and the evidential threshold. A planning authority which persists with an objection knowing the appellant is in a position to advance cogent and overwhelming evidence to refute it may, in an appropriate case and despite any evidence the planning authority may have to offer, lay itself open to a finding of unreasonable conduct despite the fact that its own evidence crosses the evidential threshold so that it may be at risk, therefore, of an order that it pay the costs of the attendance of the appellant’s relevant witnesses at the inquiry. The guidance provided by the circular does not purport to deal with every permutation of circumstances which may arise. The Inspector asked to find that a party to an inquiry has acted unreasonably has to make a judgment drawing such assistance as is available from the guidance in the circular.”
“ In these circumstances, as stated in the guidance at paragraph 034 of the PPG, it is not normally envisaged that a party will be at risk of an award of costs relating to the substance of the case or action taken prior to the application being called-in. However, a party’s failure to comply with the normal procedural requirements of inquiries, including aborting the process by withdrawing the application without good reasons, may risk an award of costs should that amount to unreasonable behaviour.”
“15. HSE are evidently aggrieved that the Council had resolved to grant planning permission for the proposed development against their advice. However, as the called-in application was never determined because it was withdrawn by the applicant it is considered a matter of conjecture as to what the outcome on the merits of the planning application would have been if it had not been withdrawn and the Inspector had heard the respective parties’ evidence, inspected the site and reported to the Secretary of State, resulting in a formal decision on the called-in planning application. While HSE argue that the Council failed to give proper consideration to the strength of their public safety objections and the unique scale of the risks when resolving to approve the application, the Secretary of State has had regard to the fact that this was a called-in planning application and therefore it is not normally envisaged that a party will be at risk of an award of costs relating to the substance of the case or action taken prior to the application being called-in, as already noted in paragraph 7 above. In the absence of a formal decision on this matter therefore the Secretary of State cannot conclude that the Council acted unreasonably by resolving to approve planning permission for the proposed development at the outset. 16. However, the final sentence of paragraph 034 of the PPG makes it clear that a party’s failure to comply with the normal procedural requirements for inquiries, may place them at risk of a partial award of costs for unreasonable behaviour in a call-in case. In this case the work undertaken by parties to comply with the relevant requirements of the call-in were rendered abortive by the Council’s decision to no longer support the application made by MJ Gleeson. Careful consideration has therefore been given to the Council’s stated reasons for withdrawing their support for the proposals when they did. 17. It is undisputed that the Council decided that they could no longer support the application in the light of evidence heard in the closed public safety session held at the inquiry on13 January 2022 . This resulted in the call-in process being aborted as the applicant decided to withdraw their planning application as they had previously stated that they would be relying on the Council to provide evidence in support of their resolution to approve the application. In their defence of the costs application the Council say that Mr Hopwood, their expert witness on public safety matters, gave certain answers in cross-examination by the HSE’s representative which were inconsistent with the advice previously received. The Council considered that the responses given by Mr Hopwood harmed their case so significantly that they no longer believed that they had any prospect of success. The Council argued that it was not unreasonable to have withdrawn their support for the application in these circumstances. 18. However, the Council have not explained, in clear and precise terms, the details of the responses given by Mr Hopwood in cross-examination that caused them to change their position on their reasons for supporting the application and why they now considered that their case had been seriously undermined. It appears to the Secretary of State that the responsibility for appointing Mr Hopwood as their expert witness on public safety matters rests with them and they should have been satisfied with the strength of the advice received and crucially that they could rely on it being capable of standing up to scrutiny by any other parties through cross-examination. Having resolved to approve the application the onus was on the Council to ensure that they were in a position to prosecute their case through to a decision. 19. The view is taken that the Council would, or should, have known of the full extent of HSE’s public safety objections to the proposed development when they submitted their Rule (6) pre-inquiry statement of case and that they would be required to address those concerns at the forthcoming call-in inquiry. No evidence is seen to suggest that HSE changed their position regarding the public safety aspect of the proposed scheme during the call-in process and it appears to the Secretary of State that the public safety issues to be considered at the inquiry remained the same. 20. It was incumbent upon the Council, as the call-in inquiry process progressed, to continue to appraise their position ensuring that their original grounds for resolving to approve the planning application remained. Instead, the Council changed their previous stance at the inquiry, but it is evident that there had been no material change in the planning circumstances or evidence sufficient to justify such a volte face. In the circumstances, it is difficult not to conclude that the situation that the Council found themselves in at the inquiry was of their own making. The practical consequences of the Council’s decision to no longer support the application caused the inquiry to collapse and the call-in proceedings were subsequently aborted following the applicant’s decision to withdraw the planning application. The conclusion therefore reached is that the Council’s decision to withdraw their support for the application when they did was unreasonable, with the result that HSE, as a Rule 6 party in the call-in proceedings, incurred unnecessary wasted expense in preparing to resist the application. An award of costs will therefore be made.”
“… the court will not interfere with the decision taken unless it is “irrational” in the sense either that it is outside the range of reasonable decisions open to the decision-maker or that there is a demonstrable flaw in the reasoning which led to the decision. Examples of such a flaw would be that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error…”
“Process rationality includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap. This is the type of irrationality Sedley J was describing when he spoke of a decision that “does not add up – in which, in other words, there is an error of reasoning which robs the decision of logic”: R v Parliamentary Commissioner for Administration ex p. Balchin[1998] 1 PLR 1 , [13]. In similar vein, Saini J said that the court should ask, “does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?”: R (Wells) v Parole Board[2019] EWHC 2710 (Admin) , at [33] .”
“The following key points which are relevant to the present case can all be derived from the line of cases to which I have referred: i) The judicial review court can intervene in the exercise of its supervisory jurisdiction where: (a) the costs decision-maker has materially misdirected themselves; or (b) the decision is unreasonable in a public law sense. A material misdirection can include deciding the case other than in accordance with the Guidance. ii) Clear and intelligible reasons must be given for the decision, so that the reasons do not raise a substantial doubt as to whether the decision was lawful including as a proper exercise of discretion having regard to the Guidance. iii) The decision letter must be read straightforwardly and as a whole. iv) The decision as to costs involves a wide statutory power vested in the costs decision-maker. Costs are pre-eminently a matter for the decision-maker; a decision is not unreasonable because a different decision-maker might have taken a different view, or because there is room for significant disagreement.”
“However, the final sentence of paragraph 034 of the PPG makes it clear that a party’s failure to comply with the normal procedural requirements for inquiries, may place them at risk of a partial award of costs for unreasonable behaviour in a call-in case.”
“It is the duty of an expert to help the Inspector. This duty overrides any duty the expert may have to the party that involved them in the appeal or that is paying them.”
“…the Council have not explained, in clear and precise terms, the details of the responses given by Mr Hopwood in cross-examination that caused them to change their position on their reasons for supporting the application and why they now considered that their case had been seriously undermined.”
“The conclusion therefore reached is that the Council’s decision to withdraw their support for the application when they did was unreasonable… ” (Emphasis added)
“This calls for some elaboration. Where it is realised by a party that they are no longer able to maintain an application, appeal, enforcement notice or reason for refusal there should be prompt withdrawal. Withdrawal may be for good reason; or there may be no good reason. An example of a good reason is a material change in another party’s case or material change in circumstances relevant to the planning issues (see para 054). Withdrawal will always have the virtue of avoiding ongoing and future costs and expenses. In that sense, it will always be reasonable – and there will always be good reason – for withdrawal as distinct from failure to withdraw. But withdrawal raises an important temporal question. Should it have been earlier? Suppose, much earlier, the party knew perfectly well – or should have appreciated – that they were no longer able to maintain an application, appeal, enforcement notice or reason for refusal. The late withdrawal may be unreasonable behaviour. This temporal perspective is strongly reinforced by what is said at para 054, amplifying withdrawal without good reason by emphasising the importance of withdrawal “at the earliest opportunity”
“The Trust suggest that Professor Hopkins was obviously unreliable, either because his advice and reports were (and/or should have been seen to have been) erroneous, and/or that he was too close to the case. Whilst I accept the criticism that, certainly with hindsight, Professor Hopkins was much too quick to make up his mind, and much too trenchant in his views, I do not think it could be said that what he was saying was plainly wrong, or that the Crown should have known that what he was saying was plainly wrong.”
“… I do not accept the criticism that Professor Hopkins was expressing views which the Crown should and could have concluded were wholly untenable. On the contrary, even the email from the RCoA provided some support for what Professor Hopkins was saying.”
“ In my view, it would be unfair to say that anything went ‘wrong’: in some ways, what happened was a good example of the adversarial trial process in action.”
“ An expert may be instructed by the CPS and indeed, it is common to say that an expert called at trial, is called by the Crown or the defence as the case may be or gives evidence on their behalf. The relationship with an expert is however a contractual one, not one of agency; and the mere fact of the contractual relationship does not make the CPS responsible for the expert’s acts or omissions for the purposes of regulation 3, any more than the CPS would be responsible for the conduct of a witness of fact who, for example, having given a witness statement supporting the Crown’s case, refuses to co-operate or answer questions, or recants his or her evidence, so that a trial has to be aborted. In short, expert witnesses in a criminal trial do not give their evidence or act, “on behalf of” the CPS. Nor are they to be regarded as “part of the Crown”
“As Mr Treverton-Jones points out, an expert has an expertise which the prosecuting authorities do not have; hence the need to instruct him. Once the expert in this case had given his opinion that the image in question was accessible, there was nothing to suggest a need to interrogate the expert; or that he was plainly wrong in a way that should have been obvious to the Crown: see further paras 25 to 29 below. In the event, once the error was acknowledged by the expert the prosecution was, quite properly, brought to an end.”
“The role of advocate is often carried out by a barrister. In order to perform effectively as an expert witness you will need to be well prepared. By re-reading your proof of evidence with you, your barrister (or other person carrying out the advocacy role) should be able to identify any areas that are likely to come under scrutiny in cross-examination. Annotating your proof and identifying useful cross references will mean that you will be able to respond under pressure.” “To write a good proof of evidence takes time. Reading and discussing the statements of case and statements of common ground with your advocate or barrister will mean that you have all the facts at the start, and it should prevent you from changing your mind during the inquiry.” “When preparing for cross-examination it is important to understand the weakest aspects of your case and prepare to answer questions on these points. Your barrister or advocate will be able to help you to draw out these aspects of the case but they will not tell you what answer to give.”
“you must not rehearse, practise with or coach a witness in respect of their evidence.”