Stamford Chamber of Trade & Commerce, R (on the application of) v The Secretary of State for Communities and Local Government & Anor

In this case I propose to order that the claimants shall pay the costs of both the defendants, to be the subject of detailed assessment if not agreed. The claimants have suggested that they should not have to pay the costs of both defendants, at least not in full. They have made the observation that there was some overlap in presentation, both in writing and orally, in relation to the first issue which arose before the court.

I have been reminded by all parties of the leading authority in this context, the House of Lords' decision in Bolton MDC v Secretary of State for the Environment (1995) 3 PLR 37, and in particular the well-known passage in the opinion of Lord Lloyd of Berwick at 51H-52H. I remind myself that Lord Lloyd said at 52F:

I am not persuaded that the general principle which applies to planning appeals is necessarily applicable to this sort of case in any event. That is because in this case the court had before it not only two different defendants, but also two different decisions which were challenged by way of judicial review. It seems to me eminently reasonable that the local planning authority (the second defendant) should come to court to defend its own decision which was directly challenged by the claimants. As I understood it, there was no real resistance to the application by the second defendant that it should recover its costs in full.

So far as the Secretary of State is concerned, she alone made submissions in relation to issues 2 and 3, and again there is no real resistance to that application for costs.

There was some overlap in submissions in relation to issue 1, but it seems to me that, even if the approach set out in Bolton is applicable to this kind of context, this is one of those cases where in the court's exercise of the discretion I should grant both defendants their costs in full. The exact amounts will no doubt have to be assessed if they cannot be agreed. I accept Mr Litton's submissions for the Secretary of State that, as I said in my judgment at paragraph 71, although the first issue did not directly arise against the Secretary of State, it was understandable that the Secretary of State should wish to make submissions upon it. That was for at least two reasons. One is that the second issue, which arose only against the Secretary of State, was entirely dependent upon the first issue. The second is that, although in form the direct challenge on the first issue was to the local planning authority's decision not to make a request to the Secretary of State to save Policy T1, on any practical view of this case the ultimate target was the Secretary of State's decision not to save that policy. I remind myself that only the Secretary of State has power whether or not to save a policy in a local plan under Schedule 2 to the Planning and Compulsory Purchase Act 2004.

Having carefully considered the submissions made to me, and having regard to all the circumstances of this case which I have outlined, in my discretion I consider that the just order as to costs is that the claimants shall pay the costs of both defendants.

In my discretion I refuse permission to appeal in this case. I am not so vain as to believe that I might not be wrong in my judgments but in this case I have come to the view that I have applied well-established principles of administrative law to the facts of this case. If the claimants wish to pursue the matter further, they will have to do so by persuading the Court of Appeal that there is a real prospect of success on any or all of the grounds with which I have dealt. I do not think there is.

I express my thanks to all counsel for the considerable help they have given me.