You have finally completed what may have been a long frustrating and expensive road to the grant of planning permission for your development. Then news of a judicial review comes. Should you get involved? The case of Easter v Mid-Suffolk District Council  highlights the risks.
The Easter Case
The case of Easter, R (On the Application Of) v Mid-Suffolk District Council & Anor  EWCA Civ 1378 concerned an application for judicial review by Cheryl Easter (“the claimant”) of the planning permission granted by Mid-Suffolk District Council (“the defendant”) to her neighbour, Debenham Antiques Limited (“the interested party”).
The substantive proceedings were ultimately disposed of by way of a consent order approved by the Court which led to the claim for judicial review being allowed. However, the issue of the parties’ costs liability was reserved for determination by the Court on written submissions. On facts to be explained below, the Court determined that the defendant should pay the claimant’s costs up to 5th February 2019 and that the interested party should pay the claimant’s costs incurred after that date. Those costs were summarily assessed in the sum of £19,338.84.
The interested party challenged the judgement on their costs’ liability before the Court of Appeal.
In considering the appeal Lord Justice Singh noted the following key events:
- On 29th November 2018, following the application for judicial review being filed on 8th November 2018, the defendant (ie. the council) had confirmed that it would concede the claim on one ground of challenge. The interested party at this time was not resisting the judicial review;
- On 23rd January 2019, due to delays in agreeing the consent order, the Court meanwhile considered and refused permission to bring the judicial review on the papers. The claimant filed a renewal application for permission by oral hearing on 30th January 2019;
- On the 31st January 2019, embolden by the refusal of permission on the papers, the interested party wrote to the Court to state that permission for judicial review should be refused and that the planning permission should not be quashed unless agreed by all parties, including the interested party, or at a substantive hearing;
- On 5th February 2019, the interested party applied to the Court for permission to file and serve an acknowledgement of service out of time. The claimant filed and served a response to that application on 11th February 2019;
- On 26th February 2019, the claimant was granted permission to proceed with the claim for judicial review at an oral hearing. Importantly, the defendant did not participate in the hearing. The interested party was represented and resisted the grant of permission; and
- On 8th April 2019, the interested party informed the claimant that it had decided not to submit Detailed Grounds of Resistance to the claim. The parties then finalised orders by consent.
The first instance judge had found that the trigger for the costs’ liability of the interested party was their actions on 5th February 2019. As Lord Justice Singh explained in his leading judgement on the appeal at such date:
“the Interested Party made an application (out of time) to file an acknowledgment of service and attached summary grounds of resistance. This was not merely a formal document. It was a substantive document, which took issue with the grounds which the Claimant wished to advance in support of her claim for judicial review. The Judge was perfectly entitled to conclude that, from this point in time, in substance it was the Interested Party which had taken on the burden of defending the claim, since the Defendant never filed an acknowledgement of service and indeed was prepared to concede the case”. [emphasis added]
Accordingly, Lord Justice Singh dismissed the appeal concluding that taking a common sense and realistic view of the situation the first instance judge was entitled to find that the interested party should be liable for the claimant’s legal costs from 5th February 2019 (ie. as assessed at £19,338.84).
Lesson: The key question for an interested party faced with a judicial review of a planning permission is whether you want to take on ‘the burden of defending the claim’. That may be alone or that may be jointly with the local planning authority. If an interested party does at any time take on such burden, and is unsuccessful, then they risk an adverse costs order for all or part of the claimant’s legal costs.
An interested party therefore needs to carefully consider how and to what degree it gets involved in a judicial review. The Planning and Environment Team at Hewitsons LLP will be happy to guide you through such issues.