Trago Mills Ltd, R (on the application of) v The Secretary of State for Communities and Local Government & Anor

The Claimant challenges the decision of the Examining Authority on behalf of the Defendant Secretary of State to refuse the Claimant’s application for an award of costs in securing the exclusion of part of its land from compulsory acquisition under the Cornwall Council (A30 Temple to Higher Carblake Improvement) Order 2015. The Examining Authority accepted – and it is now common ground – that the Claimant was a “successful objector” in this respect, which is normally sufficient for a costs order to be made; but he refused to award costs on the basis that the application for costs was made later than the Secretary of State’s guidance required and there were no good grounds to exercise his discretion to extend that time.

Before me, Miss Heather Sargent appeared for the Claimant, and Miss Emma Dring for the Secretary of State. At the outset, I thank them for their helpful submissions.

The planning regime governing major development projects is found in the Planning Act 2008. In this judgment, statutory references are to that Act, unless otherwise appears.

By section 31 of the 2008 Act, consent in the form of a Development Consent Order (“DCO”) is required to the extent that development is or forms part of a nationally significant infrastructure project, defined to include certain highway projects.

DCO applications are determined in accordance with the procedure contained in Part 6 of the 2008 Act. An application is made to the Secretary of State who appoints an Examining Authority, in the form of a single person or panel, to examine the application and report to him (section 83). In practice, the persons appointed are drawn from inspectors of the Planning Inspectorate. The Examining Authority has a wide discretion as to the conduct of the examination, subject to the Infrastructure Planning (Examination Procedure) Rules 2010 (SI 2010 No 103) (“the 2010 Procedure Rules”) (section 87). Once the Examining Authority has reported, the Secretary of State then determines the application by either making a DCO or refusing development consent (section 114).

By section 120, a DCO may make provision for matters related or ancillary to the development, including “the acquisition of land, compulsorily or by agreement” (paragraph 1 of Part 1 of Schedule 5). Where an application for a DCO includes a request for the order to include provisions authorising compulsory acquisition, that is known as a “compulsory acquisition request” (“CAR”) (see, e.g., sections 59 and 92(1); and paragraph 2(1) of the 2010 Procedure Rules). By regulation 5(2) of the Infrastructure Planning (Applications: Prescribed Forms and Procedure) Regulations 2009 (SI 2009 No 2264), where there is a CAR, the DCO application must be accompanied by:

Where there is a CAR, unless all affected parties consent to compulsory acquisition being authorised in the terms sought, there must be a “compulsory acquisition hearing” before the Examining Authority, at which the applicant and any affected person may make oral submissions (section 92).

There is no express reference in the primary legislation to amendments; but, looking at the scheme as a whole, it is clear that an application for a DCO can be amended after it has been submitted. For example, paragraph 2(1) of the 2010 Procedure Rules defines “application” to include, not only “part of an application” and “any accompanying documents and further representations made by the applicant”, but also “any amendments made to the application”.

Furthermore, paragraphs 109 and following of guidance issued by the Secretary of State for Communities and Local Government, namely “Planning Act 2008: Guidance for the examination of applications for development consent” (April 2013, amended March 2015) (“the Examination Guidance”), states that “the Government recognises that there are occasions when applicants may need to make material changes to a proposal after an application has been accepted for examination”, and sets out how applications for such amendments should be dealt with. It stresses (at paragraph 111) that it is for the DCO applicant to decide whether or not to propose a change to the proposal during the examination. Citing Bernard Wheatcroft Limited v Secretary of State for the Environment (1982) 43 P&CR 233, it emphasises that, in considering a request for a material change to an application, an Examining Authority will need to ensure that it is able to proceed fairly on the basis of the changed application, and that will include giving anyone affected by amended proposals a proper opportunity to have their views heard and taken into account before the amendment is accepted.

The Examination Guidance is supplemented by Planning Inspectorate Advice Note 16, “How to request a change which might be material” (July 2015) (“Advice Note 16”), which sets out five steps required for a material change to an application once submitted. These include not only informing the Examining Authority and conducting any appropriate consultation, but, importantly for the purposes of this claim, (i) the applicant making a formal request to the Examining Authority to examine the changed application, and (ii) as the last step, the Examining Authority making “a procedural decision on whether or not to examine the changed application and how it should be examined”. In making that decision, emphasising a similar message in paragraph 113 of the Examination Guidance, Advice Note 16 understandably provides (at paragraph 5.2):

“The [Examining Authority] must ensure that the rights of interested parties and anyone else that could be affected by a proposed change are protected. The principles of fairness and reasonableness, as established by relevant case law, will guide the [Examining Authority] in their consideration of a material change request.”

Before me, it is common ground that a DCO applicant can amend its application as it runs its course; and, although the amended Examination Guidance and Advice Note 16 post-date the relevant events, they set out how a proposer might (and, now, should) go about pursuing a request for a material change to a DCO application. Once the change/amendment is accepted by the Examining Authority then the examination proceeds on the basis of the amended application.

Following the examination, the Secretary of State need not make a DCO in precisely the form put to him, as recommended by the Examining Authority. However, where the application includes a CAR, the Secretary of State’s power to authorise such acquisition is restricted. Under the chapter heading “Content of orders: Compulsory acquisition”, there are two relevant provisions.

First, section 122 provides (so far as relevant to this claim) that a DCO may authorise the compulsory acquisition of land only if the Secretary of State is satisfied that the land “is required for the development to which the development consent relates…”.

Second, under the section heading “Land to which authorisation of compulsory acquisition can relate”, section 123 provides:

“(1)

An order granting development consent may include provision authorising the compulsory acquisition of land only if the Secretary of State is satisfied that one of the conditions in subsections (2) to (4) is met.

(2)

The condition is that the application for the order included a request for compulsory acquisition of the land to be authorised.

(3)

The condition is that all persons with an interest on the land consent to the inclusion of the provision.

(4)

The condition is that the prescribed procedure has been followed in relation to the land.”

Regulations 5-19 of the Infrastructure Planning (Compulsory Acquisition) Regulations 2010 (SI 2010 No 104) (“the 2010 CA Regulations”) prescribe the procedure for the purposes of the condition in section 123(4), and apply where:

“… (a) it is proposed to include in [a DCO] a provision authorising the compulsory acquisition of additional land; and

(b)

a person with an interest in the additional land does not consent to the inclusion of the provision” (regulation 4)

“Additional land” is defined as “… land which it is proposed shall be subject to compulsory acquisition and which is not identified in the book of reference submitted with the application as land”. Regulations 5-19 set out a detailed procedure which includes the applicant giving notice of the proposed increase in acquired land to potentially affected persons, consultation, representations, and a compulsory acquisition hearing before the Examining Authority. These steps are clearly designed to ensure that affected parties have a proper procedural opportunity to make representations and be heard on the Secretary of State’s proposal to increase the land to be acquired.

In terms of costs as between the examination parties, section 95(4) imports section 250 of the Local Government Act 1972 into the scheme of the 2008 Act by applying that section to the examination of a DCO application, with the Examining Authority replacing references to the Minister of State. The section thus provides:

“The [Examining Authority] may make orders as to costs of the parties at the inquiry and as to parties by whom the costs are to be paid, and every such order may be made a rule of the High Court on the application of any party named in the order.”

On the face of it, that discretion is open. However, the Secretary of State has published non-statutory guidance on such costs awards, namely “Awards of costs: Examination of applications for development consent orders: Guidance” (July 2013) (“the Costs Guidance”).

Overarching principles are found in Part B of the Costs Guidance, the general costs rule being that, in line with the “well-established principle of the costs regime under the Town and Country Planning Act 1990” (see paragraph B10), “all parties will normally be expected to meet their own costs” (paragraph B6), the exception being where one party has acted unreasonably (paragraph B11). However, it is said that “some additional and different considerations apply to compulsory acquisition requests…” (paragraph B13).

In relation to late costs applications, paragraph B31 of the Costs Guidance – in the section on general principles – is also relevant. It says:

“The Examining Authority will notify interested parties when it has completed the examination. An application for costs must be received by the Inspectorate… within 28 days of the date of the notification. Late applications for an award of costs will only be accepted if the party making the application for an award of costs shows good reason for not having complied with the time limit for submission.”

Therefore, the general rule is that an application for costs has to be made within 28 days of the parties being notified by the Examining Authority that it has completed the examination. Although the guidance that late applications will only be accepted if the party seeking an award of costs shows good reason for not having complied with the time limit for submission is given in the particular context of the general principle that a costs application has to be made within 28 days of the completion of an examination, it appears to be of general application.

Part D deals with costs applications where a CAR has been defeated. Paragraph D2 sets out the general principle in that event:

“2.

Where the objections to a compulsory acquisition request have neither been disregarded by the Examining Authority nor withdrawn before the decision of the Secretary of State on a development consent application and the objectors have been successful in objecting to the compulsory acquisition request, an award of costs will normally be made against the applicant for the development consent and in favour of the objectors. An award of costs in such a case does not, of itself, imply unreasonable behaviour by the applicant for development consent.”

More detailed guidance is given in the paragraphs that follow:

“What conditions would normally have to be met for an award of costs to be made in an application involving compulsory acquisition?

3.

The general principles are stated above. To enable an award of costs to be made to a successful objector, they will need to have objected to the compulsory acquisition request and have:

•

maintained their objection at all times before the decision of the Secretary of State on the development consent application;

•

participated in (or have been represented during) the examination by the submission of relevant and/or written representation; and

•

had their objection sustained by the Secretary of State.

4.

For the purposes of this Part of this guidance, an objection will be taken to have been sustained if:

•

the Secretary of State refuses development consent; or

•

the Secretary of State makes a development consent order but does not include provisions authorising compulsory acquisition of the whole or part of the objector’s property.

What happens if the applicant decides not to proceed with the compulsory acquisition?

5.

Exceptionally, an applicant may decide not to proceed with compulsory acquisition, either entirely or in part. In this case, the applicant would either want a compulsory acquisition request treated as withdrawn or ask for land to be excluded from the compulsory acquisition request. Alternatively, the applicant may choose to withdraw the application for development consent. If any of these things occur, provided an objector has objected to the compulsory acquisition request and has:

•

participated in (or has been represented during) the examination by the submission of relevant and/or written representation; and

•

maintained their objection until the compulsory acquisition request in respect of their property or the application for development consent was withdrawn

they will be regarded as a successful objector and be treated as if their success was due to their representations.

When should an application for costs be submitted by a successful objector?

6.

An application for an award of costs on the ground of having successfully opposed a compulsory acquisition request cannot be made until it is known whether or not an order will be made authorising the compulsory acquisition of the objector’s property. Therefore an application should be submitted within 28 days of notification of the Secretary of State’s decision on the development consent order or, if applicable, within 28 days of notification of the withdrawal of the application for development consent or the withdrawal of the compulsory acquisition request.

…

Can compulsory acquisition objectors be partly successful?

9.

Where an objector is partly successful in opposing a compulsory acquisition request, the Examining Authority will normally make a partial award of costs. Such cases arise, for example, where the Secretary of State in making an order excludes part of the objector’s land from the land subject to compulsory acquisition powers.”

Two points are worthy of note at this stage.

Although the Council was ambivalent in its summary grounds, it is, rightly, common ground between the Claimant and the Secretary of State that interpretation of the Costs Guidance is a matter of law for the court to determine (Tesco Stores v Dundee City Council [2012] UKSC 13).

The A30 is a major trunk road that runs south west from the end of the M5 near Exeter, into Cornwall. For most of its length, it is a dual carriageway but there are sections which remain single carriageway.

On 15 August 2013, Cornwall Council (“the Council”) applied to the Secretary of State for development consent pursuant to the Planning Act 2008 to improve a 2.8 mile single carriageway section of the road between Temple and Carblake near Bodmin, by making it dual. This was a nationally significant infrastructure project as defined in section 31. It was certainly a major project, valued in tens of millions of pounds.

Attenuation ponds were required to deal with the increased water run-off from the improved sections. During the pre-application consultation stages, the Council discussed location and size of one of the proposed attenuation ponds with the Claimant, who owned land adjacent to the project which, it was proposed, would be the subject of compulsory acquisition to facilitate that pond. The precise size of the attenuation pond was not known at that stage, because the Council was waiting to agree drainage outfall rates with the Environment Agency; but the application included a CAR, accompanied by a book of reference and land plan identifying a 10,239m² plot of the Claimant’s land for acquisition (i.e. plot 02/08). Formally, article 19 of the draft DCO provided for the compulsory acquisition of “so much of the Order land as is required…”, “Order land” being defined in article 2 as “the land shown on the land plan which is land or rights to be acquired or used and described in the book of reference”. “The land plan” and “the book of reference” are defined as being the documents “certified… by the Secretary of State for the purposes of this Order”.

The Claimant objected to the compulsory acquisition of any of its land on principle, unless the Council agreed to include a link road at Higher Carblake, to which the Council was intractably opposed. The Claimant also objected in any event to the extent of the proposed acquisition, as identified in the application documents, arguing in essence that the relevant attenuation pond need not be as large as that identified in the application.

As the Examining Authority, the Secretary of State appointed a single inspector (Alan T Gray MRICS DipTR MRTPI) (“the ExA”) to examine the proposal and make recommendations.

During the course of the examination process, the attenuation pond proposed to be on the Claimant’s land was the subject of considerable discussion between the Council and the Environment Agency on the one hand, and the Council and Claimant on the other. In mid-June 2014, apparent agreement was reached, the Council conceding that it was not necessary compulsorily to acquire the whole of plot 02/08. On 18 June 2014, the Council emailed the Claimant with draft revisions to the book of reference and land plans reflecting that agreement. It sought confirmation from the Claimant, quickly, because a compulsory acquisition hearing was imminent.

On 17 July 2014, the Council submitted an amended book of reference and land plans to the Examining Authority, showing plot 02/08 reduced in size to 4,373m². The remainder of that plot (“the Excess Land”) was relabelled plot 02/54, and was identified as being, not for compulsory acquisition, but for temporary possession only while the works were being performed. The amended book of reference and land plan also had a number of other revisions, which are not material to this claim. The amended documents were accepted into the examination process on 18 July.

On 22 July 2014, there was a hearing before the Examining Authority, dedicated to compulsory acquisition and highway design issues. From the note of the Council’s submissions to the hearing, it seems that, whilst the amended land plans etc were used at the hearing (and the Council confirmed that a revised draft DCO on the basis of those documents would be submitted on 29 July 2014), the attenuation pond was not a focus, the compulsory acquisition issue affecting the Claimant that was discussed being the Higher Carblake link road. However, the Claimant clearly agreed the new proposal in terms of size and location of the land to be compulsorily acquired for the attenuation pond – indeed, paragraph 13 of the Claimant’s costs application states that it confirmed its agreement on 22 July (see paragraph 39 below) – although some other affected parties had concerns about it. For example, two local residents were concerned about the capacity of the reduced attenuation basin. The Claimant continued to object to the proposal on other grounds, notably the absence of a Higher Carblake link road.

On 25 July 2014, the ExA wrote to all parties inviting representations on the request of the Council as applicant to change its application, made in the form of submissions made on 17 and 18 July 2014. He asked in particular for representations on matters other than the attenuation pond; but he made abundantly clear (in an emboldened paragraph) that he had not at that stage made any decision on whether to accept the Council’s proposed changes and therefore to consider the application as amended; which decision, he said, would be informed by the documents lodged by the Council and any representations received on them.

On 29 July, as promised, the Council submitted a revised version of the draft DCO, with an amendment to schedule 7 which showed the Excess Land as not for compulsory acquisition but for temporary possession only.

On 4 August, the ExA wrote to “all interested parties”, including the Claimant, to the effect that he had accepted the changes to the book of reference and land plans proposed by the Claimant, and had agreed that the draft DCO originally submitted should be amended accordingly. Although his letter focused upon proposed changes to common land, he said:

“Following my decision to change the application, the draft DCO as submitted with the application on 15 August 2013 is superceded. The draft DCO submitted to the deadline of 29 July 2014 (Deadline VII) or any subsequent versioning, as amended by the change, will now be the subject of my report and recommendation to the Secretary of State…. The amended DCO is available to view on the National Infrastructure pages of the Planning Portal by this following this link…”;

and the relevant hyperlink was then set out. It is clear that, by this letter, the ExA was accepting the material changes to the application proposed by the Council, including the changes to the attenuation pond and, with it, the restriction on the land it was proposed to acquire from the Claimant by way of a CAR. The examination proceeded, not on the basis of the original application, but upon the application as so amended.

On 6 November 2014, following his examination, the ExA published his report. He recorded (at paragraph 5.47) that:

“There was no longer an issue about the attenuation basin, which can be relocated to the [Claimant’s] satisfaction. Updated work plans, land plans and an updated [book of reference] reflect the associated changes, including reduction in the extent of associated [compulsory acquisition].”

Having set out the continuing concerns about the reduction of the attenuation pond (paragraph 5.53), and the Council’s response (paragraph 5.55), he concluded (at paragraph 5.56):

“In relation to the relocation of the attenuation basin and the reduction in its capacity, all works would be undertaken within the existing Order limits and I am satisfied that its impact has been adequately assessed. Additional planting should contain its visual impact. I am therefore satisfied that the new arrangement is lawful and has no unassessed environmental impacts.”

The ExA found that there was a compelling case in the public interest for the land identified in the amended DCO, book of reference and plan to be compulsorily acquired for the purposes of the development (paragraphs 5.94 and 5.97). He recommended that the DCO be made.

On 5 February 2015, the Secretary of State determined to make the DCO, including the compulsory acquisition of the Claimant’s land as identified in the amended application.

On 2 March 2015, the Claimant applied to the ExA for a costs order, on several grounds, including (i) that it was a “successful objector” in relation to the reduction in the size of the land to be compulsorily acquired for the attenuation pond, and (ii) the Council had acted unreasonably in relation to an adjourned hearing.

The Claimant put forward its case for costs in relation to the former in paragraphs 6-14 of its application. Having set out the history of the discussions concerning the size and location of the pond, the application continued as follows:

“13.

… On 18 June 2014… Mr Tim Walmsley of [the Council] sent an email to [the Claimant’s solicitors] in which he stated that, following agreement of the layout of the attenuation pond, there had been revisions to the Land Plans and Book of Reference, copies of which he sent, and in which he asked for approval of such revisions at the earliest opportunity in preparation for the Compulsory Acquisition Hearing which at the time the parties thought would be held on 26 June 2014. This confirmation was ultimately given at the Hearing on 22 July 2014.

14.

Costs of the negotiations with [the Council] in relation to the attenuation pond up to the hearing on 22 July 2014 are requested to be awarded to the [Claimant].”

In paragraph 20, the Claimant sought “a partial award of costs pursuant to paragraph 9 of Part D of the Guidance”; but that seems not to have added to the submission that, in respect of the exclusion of the Excess Land, it was entitled to all of its costs.

The ExA’s Case Manager (Richard Price) responded to the application by letter dated 19 May 2015, saying:

“The ExA has considered the application and has concluded that the award sought for negotiations with [the] Council concerning the attenuation pond up to the hearing on 22 July appears to be valid insofar as the compulsory acquisition powers sought were modified by the Council (i.e. the [Claimant] was ‘successful’) and the application is timely, having regard to paragraphs 3, 4 and 6 of Part D of the published Guidance. The ExA has therefore agreed to consider the application to this extent.”

This letter, although written by the Case Manager, was written on behalf of the ExA. It is to be noted that, in coming to his provisional view that the costs application was in time, there is no reference to the ExA having considered paragraph D5 of the Costs Guidance.

In respect of the Claimant’s claim for costs on the grounds of unreasonable conduct by the Council, Mr Price said that Part B (i.e. paragraph B31, quoted at paragraph 19 above) required any such claim to be made within 28 days of the closing of the examination, i.e. 4 September 2014; and the ExA could find nothing in the application demonstrating good reason for the failure to comply with that time limit. He asked for any such reasons to be lodged by 9 June 2015.

On 1 June 2015, the Claimant’s solicitors responded to that request, making further representations as to the timing of the costs application on the basis of unreasonableness:

“Our clients were objectors to the compulsory acquisition of their property and consequently would have claimed their costs in their entirely under Part D if the order was not made or their entire landholding was excluded from the order, whether because of their representations or otherwise. It would have been unnecessary additional expenditure of time and money on all sides to have made a costs application on the basis of unreasonable behaviour in respect of costs which might have been recovered in a more straightforward and economical manner.

In terms of the land now excluded from the order that has proved to be the case. If a costs application had been made last year in respect of unreasonable behaviour on that issue then the expense incurred on all sides would have been unnecessary. Whether the present order was to be made at all was unknown at the close of the examination, not least if our clients’ access concerns were made out but could not be addressed in the current application.

It was also, at the close of the examination, uncertain as to what matters would be the subject of an unreasonableness application in the event of the objection not being successful in those respects. There was an outstanding Freedom of Information request to [the] Council….

It would therefore have involved unnecessary additional time and expense to make three potentially overlapping costs applications (following the close of the examination; following receipt of the FOI response and during Ministerial consideration of the application; and following the Ministerial decision).

For these reasons a single costs application was made when the scope of the costs following the event and unreasonableness claims was known.

Whilst part B, paragraph 31 of the [Costs Guidance] says that application for an award of costs must be received within 28 days of notification of the completion of the examination neither that time period nor the guidance as a whole has any statutory basis. It is not within any of the statutory rules nor within statutory guidance (although the Planning Act 2008 does provide for statutory guidance on certain other matters). It is not therefore a justification for not considering the merits of a costs application, particularly where a costs application has to be addressed by the promoter and the [ExA] at this stage in any event.”

In short, the Claimant considered that it would be more efficient to make a single costs application after the Secretary of State’s determination of the DCO application; and, whatever the time limits for such matters in (e.g.) paragraph D31, had decided to make that single application.

The Case Manager notified the Council of the costs application on 8 June, and the Council responded by letter dated 26 June 2015. It submitted:

The Claimant responded by letter dated 19 July 2015. In respect of timing, having quoted paragraph D6 of the Costs Guidance, it said:

“At no point was the application for development consent withdrawn, at no point was the [Claimant] formally notified that the compulsory acquisition request in respect of the [Claimant’s] land was withdrawn.

In addition, we also repeat the points made on timing of the application in our letter of 1 June 2015 and therefore do not set out those points again within this letter of response.

It cannot be the requirement of the Guidance that each and every time there is an amendment to the Book of Reference a claim for costs must be made, such a position would place the [Claimant], Council and ExA under an unbearable administrative burden.”

It is to be noted that the middle paragraph quoted imports the Claimant’s submission from its letter of 1 June 2015, i.e. whatever the time limits for such matters, it had decided to make a single application for costs after the Secretary of State’s decision on the DCO application.

Thus, these paragraphs can be construed as submitting the following. Under the Costs Guidance, the Claimant was not required to make a costs application in respect of its success in having the CAR restricted to exclude the Excess Land until a date 28 days after the Secretary of State’s determination on its DCO application; but, in any event, the Claimant had decided to make a single costs application after the Secretary of State’s determination on its DCO application, on grounds that that would avoid the unnecessary additional time and expense of making several, potentially overlapping costs applications.

The ExA determined the costs application by a decision dated 13 November 2015. He refused it.

In respect of the application based upon the Council’s conduct, the ExA found that the Council had not acted unreasonably (paragraphs 17-21).

In respect of the claim for the costs of the attenuation pond issue – the only relevant claim for the purposes of these proceedings – in a decision addressed to the Claimant’s solicitors, he said this:

“8.

The extent of land to be acquired for construction of the proposed attenuation pond was reduced during the examination and your case is that your clients should be treated as ‘successful objectors’ entitled to reimbursement of the costs of opposing compulsory acquisition of their land, to the extent that it was unnecessarily extensive for construction of an overly large pond.

9.

The Council modified the application for powers of compulsory acquisition as soon as it reached agreement with the Environment Agency about the determinants of the size of the pond. The Book of Reference was amended and the reduced extent was agreed at a compulsory acquisition hearing on 22 July 2014. It had always been apparent in the Council’s dealings with your clients, before the powers were sought and subsequently, that the final extent of the pond remained to be determined; and the Council gave repeated assurances that it would only seek to acquire such land as was necessary to satisfy Environment Agency requirements.

10.

The fact that your clients objected to compulsory acquisition, the extent of which remained to be determined, is to be expected. Landowners would wish to protect their position, notwithstanding assurances from the acquiring authority. The Council could have refrained from seeking powers of compulsory acquisition until the need was clear. Instead it proceeded on an uncertain footing and modified the extent of land to be compulsorily acquired when clarity was achieved. Your clients could thus be treated as ‘successful objectors’ having regard to paragraph D5 of the… [Costs] Guidance.

11.

That status was recognised in the Inspectorate’s letter of 19 May 2015, which concluded that the application was timely. However, my reading of paragraph D6 of the… [Costs] Guidance convinces me that the application for an award of costs on this ground was actually out of time. It should have been made within 28 days of the Council’s modification of the extent of compulsory acquisition at the hearing on 22 July 2014 i.e. by 19 August 2014 rather than on 2 March 2015 following the Secretary of State’s decision on the DCO, more than six months later.

12.

I acknowledge your decision to combine costs applications and ignore the published guidance in the interests of expense and efficiency. Had you informed the Inspectorate of that intention, or sought support for that approach it might have been possible to interpret the… [Costs] Guidance on timeliness more flexibly, but you did not. The implications of the Human Rights Act for the compulsory acquisition process, including the costs of opposing interference with the right to enjoyment of property, would suggest that it could be inappropriate to have an overly rigid approach to timeliness. Nevertheless, being too flexible would frustrate the administrative process and could expose acquiring authorities to applications for awards of costs long after the appropriate event, constraining the proper exercise of their function.

13.

As professionally represented active participants in the examination, your clients were well aware of the modification, were present at the hearing and agreed to the pond changes. They should have been aware of the… [Costs] Guidance and if your clients were minded to ignore it for reasons relating to uncertainty, scope or time and expense, they might reasonably have been expected to forewarn the Council and the [ExA] of a pending costs application, as is customary in the wider planning regime. The infrastructure planning regime is largely shaped by administrative guidance and the fact that it does not have statutory force is no good reason for ignoring it.

14.

I have also considered making a partial award of costs for reasons of flexibility but can find no good reason why the Council should be required to compensate your clients for the lateness of the application. You have offered no credible reason why your clients should not have applied in a more timely fashion and the application fails on this count.”

In short, the application for costs in respect of the “success” enjoyed by the Claimant – in reducing the scope of its land to be the subject of compulsory acquisition – was refused on the basis that it was late; and, the ExA being unimpressed by the argument that to make a costs application in mid-examination would be potentially cost/time inefficient and thus there being no good reason for the lateness, the ExA was not prepared to exercise his discretion to extend time and accept the application. In line with the Claimant’s submission, in the ExA’s view, paragraph D9 did not add anything. The ExA did not therefore specifically rule on the merits of the application, although he indicated that, under the Costs Guidance, the application appeared to have some considerable force.

It is of course that decision to refuse to accept the Claimant’s costs application in respect of that success that the Claimant seeks to challenge in this claim, which it brings with permission to proceed which I granted on 16 March 2016.

In its claim form, the Claimant indicated that it considered this claim to be an Aarhus Convention claim. In their respective Acknowledgments of Service, the Council agreed, but the Secretary of State denied, that it was. The issue not having been determined earlier – as it should have been (see CPR rule 45.44(2)) – I heard brief submissions on the point at the hearing.

CPR Part 45 caps the costs for which a party will be liable in an “Aarhus Convention claim”, which is defined as:

“… a claim for judicial review of a decision, act or omission all or part of which is subject to the provisions of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done in Aarhus, Denmark on 25 June 1998 [“the Aarhus Convention”], including a claim which proceeds on the basis that the decision, act or omission, or part of it, is so subject.”

That rule is made in implementation of article 9(3) of the Aarhus Convention which, so far as relevant, provides:

“… [Each] Party shall ensure that, where they meet the criteria, if any, laid down by its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.”

Miss Dring conceded that the judicial review of a substantive decision on the DCO would be an Aarhus Convention claim; but she submitted that, in this case, the claim relates solely to the issue of legal costs incurred in dealing with the compulsory acquisition elements of the DCO application. The power to award costs is found in section 250 of the Local Government Act 1972, which is not a “provision of national law relating to the environment”. Section 250 does not relate to any element of the environment as set out in article 2(3) of the Convention, which describes “environmental information”. The claim is therefore not an Aarhus Convention claim.

Whilst I do not find the issue entirely straightforward – and Counsel’s researches have not found any authority on this point – after careful consideration, I am unpersuaded by that argument.

Although section 250 of the 1972 Act is the vehicle for making costs orders where there is a successful objection to a DCO application, the way in which it is used is by its effective importation into the scheme of the 2008 Act by section 95(4) of that Act. The Costs Guidance (made under the 2008 Act) makes clear that the costs regime is part of the planning scheme: the fact that this law is found in a policy document does not detract from the fact that the Costs Guidance is part of the framework of the national planning legislation (see Secretary of State for Communities and Local Government v Venn [2014] EWCA Civ 1539 at [17] per Sullivan LJ).

As Sullivan LJ emphasised in Venn, the scope of the Convention is wide. I do not accept Miss Dring’s categorisation of the power to award costs as something extraneous to that scheme. In my view, costs issues relating to the authorisation of the compulsory acquisition of land as part of a DCO are essentially a planning matter; they derive from the national framework of planning legislation; and, where a decision of the Secretary of State (or of the Examining Authority in his shoes) in relation to such costs is challenged by way of judicial review, that falls within the scope of the Aarhus Convention and is an “Aarhus Convention claim” as defined in CPR Part 45.

For those reasons, I consider that this is an Aarhus Convention claim for the purposes of CPR Part 45; and, thus, the costs capping provisions in CPR PD 45 apply.

Miss Sargent’s primary submission was that the ExA erred in his interpretation of the Costs Guidance with regard to the time within which the application for costs had to be made in the circumstances of this case; and, had the ExA interpreted the Costs Guidance correctly, he would have found the application to have been in time. However, she submitted that, if, contrary to that contention, the application was out of time, the ExA erred in the exercise of his discretion to extend time and accept the application.

As her primary ground, Miss Sargent submitted that the ExA erred, in law, in misinterpreting the Costs Guidance in three respects. The ExA found that the Claimant was effectively notified of the Council’s withdrawal of the Excess Land from its CAR on 22 July 2014; so that, under paragraph D6 of the Costs Guidance, the Claimant was required to submit its costs application within 28 days of that date. However, Miss Sargent submitted that, on the proper construction of the Costs Guidance:

I will deal with those submissions in turn.

Miss Sargent submitted that, although the Claimant agreed to the Council’s proposed amendments to the layout of the attenuation pond, there were objections to the modified layout from other parties, including on the ground that the modified attenuation pond was too small (see paragraph 31 above), which, if upheld, would or might have required some of the Excess Land to be compulsorily acquired after all. In any event, even after July 2014, the Excess Land was not properly excluded or withdrawn from the CAR and was still in play through to the Secretary of State’s determination of the DCO application, in the sense that it remained open to the Secretary of State to determine that, despite the agreement of the parties and the recommendation of the ExA, some of the Excess Land was required for an appropriate attenuation pond to facilitate the development; and, in those circumstances, he could authorise the compulsory acquisition of the land he considered necessary for such an attenuation pond.

Miss Sargent submitted that section 123(2) of the 2008 Act (which provides that the Secretary of State can only make an order for the compulsory acquisition of land where “the application for the order included a request for compulsory acquisition of the land to be authorised”: see paragraph 14 above) did not prevent him from doing so. The condition in section 123(2) merely proscribes the inclusion of land that did not fall within the original application. The use of the past tense – where the present tense is used in other subsections of section 123 – makes that clear. The Excess Land was within the scope of the original application.

During my consideration of this case, section 123(2) caused me some concern. It was the subject of helpful specific written submissions from Miss Sargent and Miss Dring following the hearing. Furthermore, although Miss Sargent did not specifically rely upon the point, it seems to me that it could be argued that the different default position in paragraph D6 in respect of successful objections to a CAR (i.e. that a costs application should be submitted, not within 28 days of the conclusion of the examination set by paragraph B31, but within 28 days of the Secretary of State’s decision on the DCO application) is supportive of her submission. However, in the event, I have concluded that this ground is not proved, for the following reasons.

By its submission to the ExA on 17 July 2014, as it was entitled to do, the Council sought a material change to its DCO application in respect of the attenuation pond, including a change so that the land covered by the CAR excluded the Excess Land. The ExA agreed to that change in his letter of 4 August 2014. Certainly from that date – and, in practice, from 22 July 2014, when the Claimant and Council agreed the reduction in the land to be acquired for the pond – the examination excluded any consideration of the Excess Land.

It is true that some third parties continued to raise passing concerns about the reduction in size of the pond, but the Council (and, in his turn, the ExA) was convinced that the amended proposal was all that was required by way of attenuation pond.

Of course, the Excess Land (or part of it) might have come back into play if, for example, the Council had been persuaded later that, despite its view in July 2014, a larger attenuation pond than that in the amended application was in fact necessary. However, in those circumstances, the Council would have been required to apply to re-amend its application to restore the relevant part of the Excess Land. In that regard, the Excess Land was in exactly the same position as any other land falling outside the scope of a CAR. It is always possible that, during the course of an examination, an applicant might realise that more land is required than that which is sought in the original application, and is able to seek an amendment of its application. The position would have been no different had this been by way of re-amendment. The Council would then have had to apply to the ExA for another material change, to include the relevant part of the Excess Land, which the ExA would have had to consider in the light of the requirement to be procedurally fair to all affected parties. The re-amendment would only have been allowed if the ExA had been convinced that the rights and interests of the affected persons had been the subject of adequate procedural protection.

Given the constraints of section 122(2)(a) (see paragraph 13 above), it would have been extraordinary if the Secretary of State had decided that, as a technical matter, an attenuation pond was required larger than that proposed in the (amended) application, agreed by the Claimant and recommended by the ExA after a full examination. However, as I have described, it is open to the Secretary of State to amend a DCO to increase the extent of land for compulsory acquisition, by the procedure set out in section 124(4) and the 2010 CA Regulations (see paragraphs 14-15 above).

There was a substantial debate before me as to whether the Secretary of State would be bound to trigger that statutory procedure if he wished to include land in the compulsory acquisition provisions of a DCO that fell outside the land identified in an amended book of reference and land plan, but within those documents as originally submitted. Miss Sargent submitted that he would not because, in those circumstances, the alternative condition in section 123(2) would be satisfied.

I found that argument unpersuasive; and, if I were required to decide the point, despite the use of the past tense in section 123(2), I would hold that the condition in that sub-section was satisfied only when the application as amended included a CAR for the land to be authorised for compulsory acquisition. It is noteworthy that paragraph 2(1) of the 2010 Procedure Rules defines “application” to include “any amendments made to the application” (see paragraph 8 above). It is the application as amended that goes forward for examination, and the application as originally made is no longer of any effect or moment: it is as if the application in amended form had been made from the outset.

However, it is not necessary for me formally to determine that issue, because it is clear that section 123 reflects the requirements of procedural fairness seen and emphasised throughout the scheme: indeed, as Miss Dring submitted, the whole purpose of section 123 is to ensure that procedural fairness is maintained. Even if, contrary to my firm view, in these circumstances the Secretary of State is not required to invoke the precise procedure of section 124(4) and the 2010 CA Regulations, it is clear that he could not add to the land authorised for compulsory acquisition in the amended application unless he adopted a procedure which protected the rights of the affected parties – primarily, of course, the property rights of the owner of the land proposed to be added. Necessarily, that land will not have formed part of the examination, and the land owner will therefore not have had the benefit of the procedural safeguards that examination brings. The Secretary of State could not add to the land without giving the owner (and any other potentially affected person) a proper opportunity to respond to his proposal, and it is difficult to see how the Secretary of State could do so without referring the matter back to the ExA for reconsideration/re-examination. In my view, those procedural safeguards would be ensured because the procedure in section 124(4) and the 2010 CA Regulations would be triggered: but, if I am wrong in that, procedural fairness would in any event require the Secretary of State to adopt a procedure at least akin to that.

There is arguably some overlap between this ground and the Trigger Ground, with which I deal in paragraphs 79 and following below: but, in the narrow sense that is the focus of this ground, for those reasons, in my judgment the ExA did not err. Once the DCO application had been amended, the Excess Land was not the subject of the examination and was in the same position as any other land that was not within the scope of the book of reference and land plan, or DCO application/CAR otherwise. It was not open to the Secretary of State nevertheless to have authorised the compulsory acquisition of the Excess Land or any part of it, without complying with the procedure required by section 124(4) and the 2010 CA Regulations (or, at least, a procedure akin to it). For the purposes of Part D of the Costs Guidance, the amendment to the DCO application thus resulted in the effective exclusion or withdrawal of the Excess Land from the CAR.

Consequently, I do not find the first ground to have been made good.

Second, Miss Sargent submitted that, even if there was an effective withdrawal of the Excess Land from the CAR, there was no proper notification of it to the Claimant, as the Costs Guidance requires. However, I am again unpersuaded.

As Miss Dring submitted, the Costs Guidance does not prescribe any particular form of notification: whether an affected party has been “notified” is largely a matter of fact for the Examining Authority to determine.

In this case, on 18 June 2014 (when the Claimant was sent the relevant amendments to the book of reference and land plan by email), the Claimant had been told of the relevant change to the compulsory acquisition request; and, on 22 July 2014, the ExA having been sent the proposed amendment to the DCO application, the Claimant confirmed its agreement to the amendment so far as the scope of the pond (and, therefore, the CAR) was concerned. It is noteworthy that the Claimant seeks its costs in respect of its objection to the Excess Land forming part of the land authorised to be acquired only to 22 July 2014: as from that date, it appears to accept that it well-understood that the Excess Land was not in issue and would not form part of the continuing examination. In any event, that change was formally approved by the ExA in his letter of 4 August 2014, in the sense that he then confirmed that, from that date, he would consider (and subject to examination) the amended application and only the amended application.

I accept that, as the Costs Guidance does not prescribe how “notification” of withdrawal can take place, there may be cases in which it is difficult to determine whether or not there has been appropriate notification. But I do not consider this to be one of them. The ExA was fully entitled to find, as he did, that, for the purposes of the Costs Guidance, the Claimant was notified of the exclusion or withdrawal of the Excess Land from the CAR on 22 July 2014.

This ground too fails.

Whilst Miss Sargent pressed both the Excess Land Withdrawal Ground and the Notification Ground, both she and Miss Dring rightly considered this to be the primary issue in this claim. Where there is a properly notified exclusion or withdrawal of land from a CAR, but leaving some land still the subject of that CAR, under paragraph D6 of the Costs Guidance does the 28 day time limit for an application for costs begin to run from that exclusion (as Miss Dring contends), or only from the Secretary of State’s decision on the DCO application (as Miss Sargent contends)? The issue turns upon the proper construction of paragraph D6.

Miss Sargent submitted that the default position in that paragraph is that a costs application has to be made within 28 days of the Secretary of State’s decision on the DCO application. Paragraph D6, which (she submitted) is clear on its face, deals with specific circumstances in which that default does not apply, namely where there has been “notification of the withdrawal of the application for development consent or the withdrawal of the compulsory acquisition request”. In the circumstances of this case, there has been neither. There was clearly no withdrawal of the DCO application. Nor was the CAR withdrawn: in July 2014, it was simply restricted in its scope to exclude the Excess Land. In the circumstances, the default applies, and the 28 day period for a costs application did not start to run until the Secretary of State’s decision. The 2 March 2015 application was thus in time.

However, paragraph D6 cannot be construed in isolation. Although paragraph D5 concerns the definition of “successful objector” and paragraph D6 deals with the different question of when a costs application should be made, Miss Dring submitted, with force, that paragraph D6 can only be properly construed in the context of its immediate predecessor.

She submitted as follows.

No one could suggest that the Costs Guidance is drafted felicitously or well. For example, as I have indicated, the trigger for “success” in paragraph D5 is said to be where the applicant “asks for land to be excluded from the [CAR]” (emphasis added); whereas it must correctly be, not the request, but the acceptance of the Examining Authority of the material change proposed (paragraph 22(ii) above). Furthermore, Miss Dring’s submission is based upon the proposition that, in paragraph D5 itself, “withdrawal of a CAR” is used in two distinct conceptual ways: first it is used in contradistinction from exclusion of land from the scope of the CAR (“… the applicant would want a [CAR] to be treated as withdrawn or ask for land to be excluded from the [CAR]…”), and later it is used to include such exclusion.

However, after considerable thought, I am persuaded by her submission. In order not to rob the major premise (i.e. an objector is “successful” for costs purposes where he has objected to land being included in a CAR and, after the application has been made, the applicant excludes that land from the CAR) of all substance, the condition that the objector has maintained his objection “until the [CAR] in respect of their property… has been withdrawn” must include circumstances in which the objector has maintained his objection until the relevant land has been effectively excluded from the CAR. When paragraph D6, immediately following, refers to “within 28 days of notification of… the withdrawal of the [CAR]”, on an objective reading, that must be a reference to the same concept, and to include circumstances in which the applicant has excluded land from the CAR as well as totally abandoned the CAR.

Similarly, as Miss Dring submitted, “the objector’s property” in paragraph D6 must be a reference to any part of the objector’s land, rather than only the full extent of the land included in the original application.

For those reasons, I do not consider that, in his costs decision letter of 13 November 2015, the ExA did err in his construction of the trigger for the running of time for a costs application after land has been excluded from a CAR, as it was in this case. The fact that the ExA initially considered that it did not run until the Secretary of State’s decision is not to the point: the proper construction of the Costs Guidance is a matter of law for the court.

I accept that the construction I prefer is not entirely happy, not only because it (e.g.) requires withdrawal of a CAR to be construed in two different ways within a single paragraph (i.e. paragraph D5) of the Costs Guidance, but also because, as Miss Sargent submitted, it may not be convenient for a costs application to be made where an objection to a CAR is successful in part during the course of the examination. However, apparent potential inconvenience cannot, of course, be relevant to the true construction of the Costs Guidance; and, in any event, it would be open to the Examining Authority to give directions in relation to the application if he considered that it could more efficiently be dealt with at the end of the examination.

Thus, each element of the Claimant’s primary ground fails: in my view, the ExA correctly interpreted the Costs Guidance, and the application for costs was late. However, he still had a discretion to accept the costs application out of time.

Miss Sargent submitted, finally, that his failure to exercise that discretion in the Claimant’s favour was irrational in the Wednesbury sense. She relied upon three particular factors.

Given the lack of clarity in the Costs Guidance, I have some sympathy with the Claimant; but, despite her best and able efforts, Miss Sargent has failed to persuade me that the ExA’s costs determination was irrational. In coming to that view, I have taken into account in particular the following.

This ground too consequently fails.

For those reasons, this application is refused.