The Court of Appeal has allowed a local planning authority’s appeal against an award of costs made against it by the Secretary of State for Housing, Communities and Local Government after it withdrew its support for a planning application.
A developer had applied for planning permission for 139 dwellings in the vicinity of a chemical plant. The Health and Safety Executive (HSE) objected to the application and advised against it on safety grounds. The local authority nonetheless resolved to grant permission. In light of the HSE’s objections, the Secretary of State called in the application. A recycling company which operated a waste-to-energy plant near the proposed development also objected to the application.
Under cross-examination, the local authority’s expert witness on public safety matters accepted that the policy it had relied on did not follow the principles in the National Planning Policy Guidance. When those principles were followed, the outcome was to advise strongly against the grant of planning permission. The local authority therefore withdrew its support for the application and the developer withdrew it. The HSE and the recycling company applied for their costs.
The Secretary of State found that the local authority’s decision to withdraw support for the application when it did amounted to unreasonable conduct and justified a partial order for costs. After the local authority’s judicial review challenge to that decision was dismissed by the High Court, it appealed to the Court of Appeal on the grounds that the Secretary of State’s reasons for finding that it was responsible for the situation it found itself in after the expert witness gave evidence were demonstrably flawed and unsound, and that the Secretary of State had given inadequate reasons for its conclusion.
The Court observed that there was a demonstrable flaw in the Secretary of State’s reasoning. The decision said that the local authority had decided it could no longer support the application in the light of the expert witness’s evidence, but also said that there had been no material change in the evidence sufficient to justify such a volte face.
The Court considered that the question was whether the local authority had been unreasonable in relying on the expert witness’s evidence until the moment of his cross-examination. In the Court’s view, it would be setting the bar too high to say that the local authority should have tested the expert witness’s evidence and satisfied itself that it could withstand cross-examination. That could not be described as a normal procedural requirement. The local authority could not tell from the Secretary of State’s decision what it had done wrong or when its case had become unreasonable.
The Court also noted that the matters on which the expert witness had made the crucial concession were not in themselves matters of public safety but concerned the validity of the policy on which the local authority had relied. It could not reasonably have been anticipated that questions about the validity of the policy would be put to the expert witness on public safety.
Allowing the appeal, the Court considered that, if the Secretary of State regarded the local authority’s withdrawal of support for the proposed development following the change in the expert witness’s evidence as being without good reason, that conclusion was untenable.
