Bolton Metropolitan Borough Council and others v Secretary of State for the Environment and others a

Costs — Multiple representation in planning appeals — Guidelines set out for award of costs — Third set of costs not justifiedManchester Ship Canal Co applied for permission to develop land by erecting the Trafford Centre, Manchester. The site was in an urban development area for which the local planning authority, Trafford Park Development Corporation (TPDC), were responsible. TPDC were in favour of granting permission, but eight nearby local authorities (the applicants) were against. They applied to quash the decision letter granting permission for the development. The High Court refused the application: see [1993] EGCS 170. The Court of Appeal allowed the applicants’ appeal: see [1994] 2 PLR 42. The Secretary of State appealed successfully to the House of Lords: see [1995] EGCS 94. At the conclusion of the hearing counsel were invited to submit written representations on the question of costs where there was multiple representation in planning appeals. Held Two sets of costs were justified. 1. In the past there had been a practice in the lower courts to award two sets of costs in certain types of planning appeal under section 288 of the Town and Country Planning Act 1990 and its predecessors: see Waverley Borough Council v Secretary of State for the Environment [1988] 3 PLR 101. 2. The Court of Appeal had cast doubt on that practice: see Wychavon District Council v Secretary of State for the Environment [1994] 3 PLR 42. 3. Costs were always at the discretion of the court and a practice, however widespread and long standing, must never be allowed to harden into a rule. 4. The Secretary of State, when successfully defending his decision, would normally be entitled to the whole of his costs. He should not be required to share his award of costs by appointment. 5. The developer would not normally be entitled to its costs unless it could show that there was likely to be a separate issue on which it was entitled to be heard. The mere fact that it was the developer would not of itself justify a second set of costs in every case. 6. A second set of costs was more likely to be awarded at first instance than in the higher courts, by which time the issues should have crystallised, and the separate interests clarified. An award of a third set of costs would rarely be justified, even if there were in theory three or more separate interests. 7. In this case the Secretary of State was clearly entitled to the whole of his costs, as were the developers. 8. This case raised difficult questions of principle arising out of government policy towards out of town shopping centres between the date of application and the final decision. The Secretary of State was concerned to defend his wider policy, the developers were concerned only with the outcome of this appeal. They had a sufficiently independent interest requiring protection which justified separate representation. 9. The scale of the development, and the importance of the outcome for the developers, were of exceptional size and weight. 10. However, TPDC were not entitled to any costs. The interest of the developers and TPDC were identical. Robin Purchas QC and Meyric Lewis (instructed by Sharpe Pritchard, London agents for Tameside MBC) appeared for Bolton MDC and the other local authorities; Duncan Ouseley QC and Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State; Brian Ash QC and Paul Stinchcombe (instructed by Stephenson Harwood) appeared for Manchester Ship Canal Co; Susan Hamilton QC and Sebastian Head (instructed by Nabarro Nathanson) appeared for TPDC.