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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brandvik Kinton Ltd, R (on the application of) v Secretary Of State For Environment, Transport & Regions [2001] EWCA Civ 91 (29 January, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/91.html Cite as: [2001] EWCA Civ 91

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Justice Gibbs)

		Royal Courts of Justice Strand London WC2 Monday 29th January, 2001

1. LORD JUSTICE SEDLEY: This is a renewed application made by Mr Anthony Porten QC for permission to appeal against a decision of Gibbs J. By his order the judge dismissed an application for judicial review of a planning inspector's decision in relation to costs at the conclusion of a planning inquiry at which the applicant company had been unsuccessful. Its application for costs was made on the ground that the local authority, by unreasonable conduct, had provoked most or all of the inquiry. The application failed.
2. The matter came initially before me as a paper application and I refused permission. The reason I gave (at that stage in writing) was simply that I did not accept that the inspector was applying, as had been said against him, a criminal standard of proof. He was simply saying that any extra expense was too doubtful. It was simply because I had nothing to add to Gibbs J's reasons that I did not deal in terms with Mr Porten's main argument. Mr Porten is entitled to that explanation in open court, as are his clients, because I can see that it may have appeared to them that the argument had been overlooked.
3. In any event, we have had the advantage today of a most helpful and lucid argument on the principal point by Mr Porten. It is this. The inspector, says Mr Porten, went wrong in law when in his costs decision - which is an extensive one - he declined to decide in terms whether the local planning authority had acted unreasonably, and jumped instead to a conclusion that even if that were the case (as he was disposed to accept) no measurable increase in costs had resulted. The learned judge for his part, says Mr Porten, treated this as a finding of fact - again, wrongly. What it was, in Mr Porten's contention, was the end product of a failure of proper inquiry on the inspector's part. What there should have been in the inspector's reasoning (and what Mr Porten submits is lacking) is a proper fact-finding and reasoning exercise which travels through the nature and extent of the unreasonable conduct which the inspector considered the authority had been guilty of; next, as Mr Porten's accepts would have to be the case, through the allegations of unreasonable conduct made in return by the authority against the applicants; then through the reach of the issues between the parties; through the effect of the unreasonable conduct on each and all of those issues; and then, finally, to the impact of all these matters upon the costs incurred by the applicant in the inquiry which it had ultimately lost.
4. There are, as Mr Porten has pointed out, well-known authorities - of which Save Britain's Heritage is the best known in this field - requiring adequate and intelligible reasons to be part of any reasoned decision. There are others - which we have not gone through today before the court, but which Mr Porten again will be well familiar with - on the wrongness of demanding unnecessary or inappropriate detail, especially from a lay tribunal. A case like this comes near the line and needs careful attention for that reason.
5. What had occurred in the inquiry, and why it had occurred, was first and foremost a matter for the inspector's professional judgment. His conclusion is set out not only in the costs report, of which it forms the final passage, but in quotation form in the Secretary of State's decision letter of 30th November 1999. I will read it out:

"The crux of the matter is therefore whether the approach taken by the Council caused the appellant to incur unnecessary expense, including the expense of the inquiry. On the evidence, the sides remain some distance apart. The Council now accepts that development on the site of the kitchen garden could be appropriate, should enabling development be justified. It also accepts that, in principle, the 12-apartment scheme could overcome its main objections to the 15-apartment scheme. That still leaves the question of whether enabling development is necessary, of the design of the kitchen garden proposals and other new housing, of the redevelopment of the stables and of the effect the 12-apartment scheme might have, if any, on the need for enabling development. It will be evident from my appeals report that I consider some of these questions to have been resolved by the inquiry. And the inquiry at least had the merit of concentrating the minds of both sides.

Some issues might have been resolved without coming to inquiry. In my view, however, an inquiry was inevitable, even if its scope might have been reduced. And I consider it impossible to say for certain that the appellant's costs would have been less if a shorter inquiry had been preceded by more extensive negotiations.

Accordingly, while I believe there to be some substance in the submission that the Council acted unreasonably, I am not convinced that its actions (or the lack of them) led to the appellant incurring unnecessary expense. There is no issue that did not have to be resolved in one way or another - by negotiation or at the inquiry. I note the appellant's submission on the amount of costs. However, even if I thought unnecessary expense had been incurred, it seems to me that there should be a basis for assessing that expense with some degree of accuracy. In my view, any additional expense that may have been incurred in this case must be a matter for speculation rather than calculation.

Whilst the Council may have been guilty of unreasonable behaviour, there can be no certainty that the appellant incurred unnecessary expense as a result. On balance, therefore, I conclude that an award of costs is not justified."

6. Mr Porten has shown us the planning guidance and circular which spell out the grounds upon which costs may be awarded and which point out that the inspector does not have to quantify the bill of costs, merely to apportion them appropriately. I have said already that I do not think that the phrasing of the passage that I have quoted demonstrates an application of a criminal standard of proof. It is merely the inspector's way of saying that there was no way at all, in his mind, of being able with any confidence to allocate either all or some of the costs to the bad behaviour of the council in the run-up to the inquiry.
7. The inspector was not simply saying this off the top of his head. When one looks at the costs report it runs to some four closely typed pages, of which the passage I have read out forms simply the conclusion. The case for each side is spelt out at considerable length and in considerable detail, and there could be no justification for suggesting (and Mr Porten has not suggested) that the inspector did not have very clearly in mind what this argument was about. In particular, he sets out the applicant's contention:

"If discussions had taken place, and if the criticisms of the sub-division of the Hall made in the Council's evidence had been made earlier, the need for the inquiry might have been avoided. At the most, only a one-day or two-day inquiry would have been needed."

8. In the event the inquiry lasted six days.
9. All of this was plainly in the inspector's mind. In my judgment it is asking more of the inspector than the law itself asks of him to seek a quashing of his decision on the ground that it has not gone through the detailed reasoning process which Mr Porten contends for. It is, in my view, not arguable that it was erroneous for the inspector, having set out the competing considerations, to stand back and to conclude (as he did) that although there had been unreasonable behaviour on the council's part, it was not possible to deduce from it an appreciable impact upon the occurrence or the duration of the inquiry. That was sufficient. Whilst it would have been entirely open to the inspector to say more and to reason in more detail, what he did was in my judgment perfectly tenably upheld by Gibbs J and is not a proper subject now for permission to appeal.
10. Accordingly, for my part, I would refuse permission to appeal without going further - because I do not think it is necessary to do so - into the planning issues or the history of the application.
11. LORD JUSTICE JONATHAN PARKER: I agree.
ORDER: Application for permission to apply for judicial review refused. (Order not part of approved judgment)