CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36 (30 July 2021)
Citation:CPRE Kent v Secretary of State for Communities and Local Government [2021] UKSC 36 (30 July 2021).
Subjects invoked: 12. 'Procedure'.94. 'Planning - major private developments'.
Rule of thumb:If an interested 3rd party makes submissions to the Court in a case, can they ever be entitled to expenses for doing so? Yes, the Court affirmed that where one party seeks to sue another party, and other legitimately ‘interested parties’ with a connection to the case, make ‘submissions’ to the Court about the legalities of the issue, then if the case is of so little merit that it does not go past the procedural hearing and does not make it to a full trial, then the interested parties shall be entitled to expenses in some circumstances. This deductively applies in the field of planning, although broadly the decision could also be applied inductively.
Background facts:
This case invoked the subjects of planning – major private developments, and procedure.
The facts of this case were CPRE Kent – Campaign to Protect Rural England - raised a Judicial Review of a planning decision by Maidstone Borough Council. The Maidstone Council granted Roxhill Developments planning permission to convert a site they owned in the Woodcut Farm area into a mixed development employment space – essentially the basic development of the business park. Maidstone Council granted this because it fitted in with a long term local plan they had for the period of 2011-2031, so the Roxhill application at hand was more of a formality with many of the issues already decided long in the past.
CPRE sought to challenge this decision on the basis that it did not show sufficient care for the natural heritage, culture and tradition in rural England. However, after closer legal research, it became clear that this decision fitted in perfectly with Maidstone Council’s long-term plan. This meant that CPRE’s judicial review of the decision was of very little merit and the matter never proceeded onto a full trial and a full hearing of the evidence CPRE sought to bring. CPRE’s Judicial Review never made it past the first stage – it was deemed to be an irrelevant case not properly supported by legal authority, and it was bound to fail. ‘Interested parties’, who CPRE never raised the case against, registered their interest in the case and stated their preliminary objections to CPRE’s case. CPRE Kent was ordered to a legal expenses of £10,000 when their challenge failed at the procedural hearing, and this included the expenses of not just the Secretary of State who had granted the planning permission to Roxhill, but also the ‘interested parties’ in the case who raised objections and CPRE never raised the case against in the first place. CPRE sought to appeal against this expenses award which they saw as excessive.
CPRE Kent argued that this costs decision breached the main underlying principle of planning law which is that is that costs must be ‘fair and proportionate’, which essentially means that a losing litigant only has to bear reasonable legal costs for challenging a planning decision. CPRE Kent argued that it was the only the person who the case was raised against that could be awarded expenses, and not a potentially endless number of ‘interested parties’. CPRE argued that if ‘interested parties’ made submissions in the case then it was up to them to account for their own legal expenses, and that CPRE were not liable for these. The Secretary of State and the other ‘interested parties’ argued that the legal expenses in relation to this planning matter were governed by the Aarhus Convention, a ratified treaty, as well as Practice Directions issued by the Court on expenses. They argued that there was an exception to the general rule led by CPRE, and this exception stated that all defendants and interested parties could obtain their expenses, if the case raised against them was deemed without merit and never proceeded past the preliminary stage to a full hearing. They argued it was this perfectly clear and fair exception that had to be applied to CPRE Kent.
Judgment:
The Court in this matter upheld the arguments of the Secretary of State. They upheld the exception to the general rule. The Court affirmed that if a case raised does not have the merit to proceed to a full hearing, then the ‘interested parties’ who made submissions against the case can in some circumstances be entitled to expenses. The Court upheld that planning cases, with circumstances like the CPRE Kent case, was one such example of this. CPRE were ordered to pay the £10k expenses including to some of the ‘interested parties’ who made submissions against CPRE Kent’s challenge, despite the fact CPRE never even raised the case against them. The Court in this case also affirmed that the appeal are very unlikely to overturn costs arrived at by the lower Courts where the Court is well within rules and practice directions laid. The Court affirmed that in order for this to be done there has to be a clear error of law – or indeed a clear rule that has been broken. There were none in this case and the Judge awarding expenses was within his clear discretion. The Court explained that they are extremely unlikely to overturn cost awards in these circumstances.
Ratio-decidendi:
Lord Hodge ratio decidendi at 28-30 ‘28. In this case Coulson LJ concluded that there was no general rule in planning cases which limits the number of parties who can recover their reasonable and proportionate costs of preparing those documents, if the application is refused at permission stage. He reached this view for essentially two reasons. First, this practice is the obvious consequence of the innovation of the acknowledgement of service procedure in the CPR which makes it mandatory for a person served with a claim form who wishes to take part in a judicial review to file an acknowledgement of service. Secondly, the authorities, which I have discussed above, establish that person’s entitlement to its reasonable and proportionate costs in those circumstances (paras 21-22). The guidance set out by the House of Lords in Bolton has to be read in the light of this subsequent development of new rules in the CPR (para 23). The Bolton principles however remain relevant in planning cases because the successful defendant or interested party can only recover its costs for preparing those documents where the costs are reasonable and proportionate… 30. … Absent an error of law of general public importance, it would not ordinarily be appropriate for this court, for the reasons set out by Lord Reed in Gourlay at para 36, to intervene in a decision on costs, and there is no basis for intervening in this case’,
‘no general rule … which limits the number of parties who can recover their reasonable and proportionate cost of preparing documents, if the application is refused at permission stage’, Lord Hodge
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.