Introduction
In a judgment handed down in August 2024, Fordham J upheld two decisions ordering Halton Borough Council to pay costs, after its safety expert witness failed to come up to proof at a “called-in” planning inquiry.
The judgment provides valuable guidance on the award of costs planning inquiries and the extent of responsibilities parties have towards the evidence provided by their expert witness.
Background
In September 2017 a developer submitted a planning application to the Council in its role as LPA, seeking permission to construct a number of dwellings on land in the vicinity of a chemical production site. Despite receiving objections from the Health and Safety Executive (HSE) on public safety grounds, the Council resolved to grant the application, asserting inter alia that it was taking advice from specialist consultants.
At the HSE’s request the Secretary of State called-in the planning decision. Rule 6 statements of case were submitted by the Council, the HSE and Viridor, who also objected to the proposal. The developer submitted a position statement explaining that, as the public safety matter was between the Council and the HSE, it would not join the inquiry.
At the inquiry, under cross-examination the Council’s public safety expert agreed that, if he were in the Planning Inspector’s position, he would have to advise the Secretary of State strongly against the grant of planning permission. This admission resulted in an adjournment and the Council’s subsequent acceptance that it could no longer maintain its support for the application. As a result, the developer withdrew the application, bringing the inquiry and thus the involvement of the Planning Inspector, to an end. HSE and Viridor made applications for costs orders to be made against the Council.
In accordance with the Planning Policy Guidance on Appeals (‘the Guidance’), a member of the Costs and Decisions Team at PINS was authorised as Decision-Maker. In reasoning which was also adopted with regard to Viridor’s application, he ordered the Council to pay HSE’s costs, concluding that “the Council’s decision to withdraw their support for the application when they did was unreasonable, with the result that HSE… incurred unnecessary wasted expense in preparing to resist that application.” [§9]
The Council was ordered to pay HSE’s costs from the date on which its rule 6 statement of case was received, setting out “the full precise basis on which they were preparing to resist the planning application following the call-in.” [§10]
The Council challenged the costs orders on 5 grounds:
The Procedural-Only Point
This Ground concerned the Decision-Maker’s understanding and application of the Guidance §034.
Counsel for the Claimant argued that the Guidance only contemplates costs awards for unreasonable behaviour which is “procedural” (i.e. relating to process), and not “substantive” (i.e. relating to merits). He argued that the impugned decisions were based on points of substance which related to merits and, accordingly, the Guidance had been misinterpreted, unreasonably applied, or departed from without justification.
The Court rejected these submissions, finding that there was “no material misdirection, because the Guidance was understood and the decision-maker was locating the shortcomings as being procedural in nature, involving aborting the process by withdrawal without good reason.” [§26]
In coming to this conclusion the Court found:
- That Guidance §034 expressly identifies as falling within the scope of a relevant procedural matter “aborting the process by withdrawing the application without good reason”, which was the conduct that the Decision-Maker found to be unreasonable. [§23]
- The Decision-Maker was necessarily required to consider whether the withdrawal was “without good reason,” which could be informed by matters which touched on substance. Where a point falls within the overlap area of “substantive” and “procedural”, Guidance §034, correctly interpreted and reasonably applied, may be relied upon. [§24]
- A procedural matter can relate to the way in which a case and evidence are handled, without the need to make a finding on its underlying merits. [§25]
The Review-Finding Point
In the impugned decisions, the Decision-Maker reasoned that it was incumbent on the Council “to continue to appraise their position, ensuring that their original grounds for resolving to approve the planning application remained.” [§28]
Counsel for the Council argued that the Decision-Maker based his decision on findings of fact that the Council had failed to continue to appraise their position. It was submitted these findings could not reasonably be made on the evidence.
The Court also rejected these submissions, concluding that no finding of fact had been made. Rather, the Decision-Maker was setting out the key features which combined to support the conclusion that “the decision to withdraw their support for the application when they did was unreasonable.” The Decision-Maker rightly found that the Council had responsibilities with regard to its expert witness and the robustness of the evidence he offered. The collapse of the inquiry occurred following evidence from the Council’s public safety witness, with no material change in the planning circumstances and or evidence.
The Court found that the operative part of the Decision-Maker’s sentence was “ensuring that their original grounds for resolving to approve the planning application remained” (emphasis added). As Fordham J put it “to the Decision-Maker, the proof of the pudding was in the collapse, in light of the [Council’s] responsibilities and the absence of any other change.” [§31]
The Changed-Evidence Point
This issue related to whether the Decision-Maker’s finding that there had been no material change in the planning circumstances or evidence sufficient to justify the Council’s change of position was unreasonable.
Counsel for the Council argued that the evidence had, in fact, changed materially, as their expert witness had said things under cross-examination that he had not said in writing. It also submitted that it was unreasonable to treat the expert’s “volte face” as the Council’s “volte face”. The Council and its witness were distinct.
This point was also rejected by the Court, which found that the Decision-Maker was well aware that the Council’s position arose because the expert’s written evidence “had not proved to be ‘capable of standing up to scrutiny… through cross-examination’”. As the judge put it at §34:
“The point was that there were no other moving parts: in the HSE’s case or evidence; or in relevant
policy; or in other planning circumstances (cf. Guidance paragraph 054). Questions were asked in cross-examination, and the Council’s position collapsed. The Council could not point to anything else to justify its – the Council’s – volte face. Its witness, in respect of which it had the responsibilities, had collapsed with no other change.”
The Scrutiny-Testing Point
The Court was also asked to determine whether (a) it was unreasonable for the Decision-Maker to find and (b) whether there were legally adequate reasons for finding that the Council had acted unreasonably because it should have been satisfied that its expert’s evidence would have been capable of standing up to scrutiny through cross-examination.
The Claimant argued that:
(a) There is no duty to test the evidence of a witness to ensure that it is capable of standing up to scrutiny on cross-examination. Accordingly, it is not unreasonable to fail to take steps to be satisfied that witness evidence will come up to proof;
(b) Indeed, it would have been wrong for the Council’s legal representatives to “coach” or “rehearse” a witness;
(c) As expert evidence is given by reference to professional and ethical standards of independence, it is wrong to equate an expert not coming up to proof with unreasonableness on the part of the party who called that expert;
(d) A party has no duty to interrogate an expert witness who is put forward in good faith.
The Court disagreed. While it accepted it would not be appropriate for a legal representative to coach or rehearse a witness, it did not consider this relevant to the impugned decisions, which were made on the basis of the Council’s unreasonable behaviour, i.e. the withdrawal of support by the Council when it did “without good reason.” The Council had been given the opportunity to provide a good reason but had failed to do so.
There had been, in the Council’s own admission, “multiple conferences… at which the merits of both parties’ positions and their evidence were discussed extensively.” These were, properly, opportunities in which “weaknesses of professional opinion can be established and potential for success evaluated.” The problem in this case was that “when the expert came to give evidence, there was a collapse. This, in the context of identified responsibilities and the absence of anything else changing. And this, in a context where the stated aims of costs include encouraging LPAs to rely on reasons ‘which stand up to scrutiny on the planning merits.’” [§37]
The Insufficient-Time Point
The final issue concerned whether it was reasonable for the Decision-Maker to award costs from the date of the service of the statement of case.
The Council argued that, on the date from which the costs were awarded, none of the things said to be the Council’s responsibility had happened. Neither Council nor HSE’s evidence had been adduced.
The Court found that the Decision-Maker had unimpeachably found that the Council would or
should have been aware of the HSE’s public safety concerns “at [the] planning application stage,” particularly given that it had been receiving advice from the same consultancy which later provided its expert witness. Having examined the HSE statement of case, the Court said “Decision-Maker found that the “basis” on which the HSE was “preparing”… to resist the planning application following call-in was a “full” and “precise” basis. There are no grounds for impugning that characterisation as unreasonable, or as distorted by hindsight.” [§40]
Analysis
Contrary to the general rule in civil litigation that the costs follow the event, costs in planning inquiries are awarded on the basis of “unreasonable conduct.” While Fordham J was careful to emphasise that this case was “a classic situation where what was a called for was the evaluative judgment of the primary decision-maker, in the application of the Guidance,” and that the role of the judge at judicial review is “secondary and supervisory… bound to respect the latitude for primary judgment” [§41], this judgment provides some useful insight into what might constitute unreasonable behaviour in the context of an application for costs in planning inquiries.
First, this case suggests there is not necessarily a clear distinction between “procedural” and “substantive” unreasonable behaviour. In deciding whether the case was withdrawn “without good reason,” it was reasonable for the Decision-Maker to consider matters which touched on substance. Further, determination on a procedural matter might relate to the handling of evidence without necessarily making a finding on the merits of that evidence.
Second, the case emphasises the need for parties to continually review their positions, with the specific objective of ensuring that the original grounds of refusal or approval remain valid. As in this instance, this duty bites as soon as it is possible to identify the other side’s case and continues throughout the course of proceedings.
Finally, this judgment provides valuable guidance on the responsibilities that parties bear for the evidence provided by their expert witnesses. While it remains unacceptable to “coach” or “rehearse” a witness, parties have a responsibility to test their witness evidence thoroughly and reevaluate their case on the strength of that evidence. In the context of such a responsibility, the collapse of expert evidence under cross-examination when the material circumstances remains unchanged, cannot be said to be a “good reason.”
