Court of Appeal allows appeal by council over costs award made after planning inquiry

It took the case against the Secretary of State for Housing, Communities and Local Government, who had appointed an inspector to conduct an inquiry into a proposed residential development in Runcorn.

Lord Justice Lewison explained in the judgment that costs were awarded against Halton, which had originally supported developer MJ Gleeson’s application for planning permission but withdrew this after its safety expert witness was cross-examined in closed session.

A member of the Costs & Decisions Team at the Planning Inspectorate, Mr Parsons, decided Halton’s actions amounted to unreasonable conduct. A challenge to that decision failed before Fordham J.

Gleeson sought permission for 139 homes on a site near to the Runcorn Chemicals Complex.

The Health and Safety Executive (HSE) objected on safety grounds but Halton judged the proposals in line with its adopted development plan; and felt the HSE's objections did not justify a departure from it.

Both Halton and the HSE submitted statements and those of the council used the expert evidence of a Mr Hopwood of the DNV consultancy on public safety matters.

The public inquiry opened on 11 January 2022 and went into closed session two days later to consider the public safety issues deemed confidential due to national security concerns.

During this, Mr Hopwood was cross-examined and accepted that the policy on which Halton relied failed to follow the principles in the National Planning Policy Guidance.

When those principles were followed the outcome was to advise strongly against the grant of planning permission.

Lewison LJ noted: “Thus, Mr Hopwood accepted that if he were in the inspector's position he would advise the Secretary of State strongly against the grant of planning permission.

“These were answers which, according to the council, were inconsistent with the advice that he had previously given.”

The HSE told Halton: “In view of the evidence provided by Mr Hopwood, HSE sees no basis on which the council's objections can be maintained in respect of the public safety matters.”

Halton decided it no longer supported the application, which Gleeson then withdrew “and the inquiry came to an abrupt halt”, Lewison LJ said. HSE and Viridor were given partial awards by Mr Parsons.

Lewison LJ said there were two grounds of appeal against Fordham J’s decision.

These were that Mr Parsons' reasons for finding Halton responsible for the situation after Mr Hopwood gave evidence were demonstrably flawed and unsound and that Mr Parsons gave inadequate reasons to explain why he concluded Halton was responsible.

Lewison LJ said: “His reasoning, then, appears to be that the council should have tested Mr Hopwood's evidence and satisfied themselves that it could withstand cross-examination. The carrying out such an exercise was a normal procedural requirement and a failure to do so was unreasonable.

“In my judgment this sets the bar too high. In any case in which there is a difference of expert opinion, the decision-maker is likely to resolve the difference in favour of one expert rather than another, especially where the experts have been cross-examined.

“In that sense the expert evidence called on behalf of the losing party will not have stood up to scrutiny following cross-examination. But that of itself cannot rationally be regarded as unreasonable behaviour.”

The judge said there was no suggestion that any party should test its own expert’s evidence to see if it would withstand cross-examination.

He said this could not be described as a normal procedural requirement even if it was a permissible procedural option. An instructing party could not be expected to second guess tits expert as a matter of routine.

Lewison LJ said Halton “cannot tell from Mr Parsons' decisions what it did wrong or when its case changed from being ‘respectable’ to ‘unreasonable’”.

If it was unreasonable conduct for Halton to continue to rely on Mr Hopwood's expert evidence, “it would not have mattered whether the council withdrew its support for the development or soldiered on to the bitter end.

“So the link between the withdrawal of the council's support and the finding of unreasonable conduct is tenuous, to say the least.”

He said it was clear the matters on which Mr Hopwood made the crucial concession were not ones of public safety - on which he was put forward as the expert - but on the validity of the local policy Halton relied upon.

Allowing the appeal, Lewison LJ said: “I cannot see how it could reasonably have been anticipated that questions about the validity of the policy were to be put to the expert on public safety.

“If Mr Parsons regarded the council's withdrawal of support for the proposed development following the change in Mr Hopwood's evidence as being ‘without good reason’ I consider that his conclusion in that regard is untenable.

“If he meant to suggest that it is a 'normal procedural requirement’ to go beyond the council's extensive discussion of the parties' positions before Mr Hopwood's cross-examination, I can see no rational basis for that conclusion.”

Lady Justice Asplin and Lord Justice Coulson both agreed.

Mark Smulian