The interpretation of the Costs Guidance in determining whether a costs order is made

In R (o.a.o Trago Mills Ltd) v Secretary of State for Communities and Local Government [2016] EWHC 1792 (Admin) Trago Mills Ltd (“Trago”) appealed the examining authority’s (“ExA”) refusal of its application as a “successful objector” to a compulsory acquisition request (“CAR”) for a costs award. Cornwall Council applied for development consent to convert a single carriageway section of the A30 into a dual carriageway. It submitted that land owned by Trago would be the subject of a CAR. Trago objected and an ExA inspector was appointed. The inspector concluded only part of the land was required and the CAR documents were amended and accepted into the examination process. Although Trago continued to object to the proposal on other grounds, it agreed with the new proposal in terms of size and location of the land to be compulsory acquired. The secretary of state determined to make the development consent order (“DCO”). Trago applied for a costs award as a successful objector to the reduction in the size of the acquired land. Under the general Costs Guidance, a successful CAR objector should submit its application within 28 days of notification of the DCO application decision. The ExA acknowledged that the claim was valid as the CAR had been modified but said the application did not demonstrate a good reason for the failure to lodge it within the time limit. Trago said they had made a single application once the scope of costs was known to avoid the additional time and expense in preparing three potentially overlapping applications. It appealed to the High Court on the basis that the ExA had misinterpreted the time an application had to be made under the Costs Guidance. As there had not been a withdrawal of the CAR the relevant trigger for the 28 days had not started. The High Court held that the trigger was the acceptance by the ExA of the amendment to the application, which Trago had been notified of. It acknowledged that there was a lack of clarity in the Costs Guidance however it did not agree that the ExA’s costs determination was irrational for reasons including that the application was six months late. It concluded that the ExA was fully entitled to give great weight to the need for promptness inherent in the Costs Guidance and the absence of any good reason for delay. The application was refused. Martha Grekos is a partner and head of planning at Howard Kennedy LLP