Halton Borough Council, R (On the Application Of) v Health & Safety Executive & Anor

Factual and Procedural Background

These judicial review proceedings follow the judgment of a Deputy High Court Judge in an earlier case concerning the Council's planning application (reference 17/00468/FUL). The Council resolved on 5 October 2020 to grant planning permission despite advice from the Health and Safety Executive (HSE) opposing it. The Secretary of State "called in" the decision on 7 May 2021 at the HSE's request. During a closed inquiry hearing on 13 January 2022, the Council's expert witness, Mr Hopwood, conceded under cross-examination that he would advise against planning permission if acting as a planning inspector. Following this, the Council acknowledged it could no longer support the application, which was subsequently withdrawn by the developer. The HSE and Viridor then applied for the Council to pay their costs. The Secretary of State issued decisions on 27 July 2022 ordering the Council to pay the costs of both the HSE and Viridor, citing the Council's "unreasonable" conduct in withdrawing support "when they did" and without "good reason," despite no changes in the HSE's position or evidence. This judicial review challenges those decisions and the related costs orders, with some grounds granted permission to proceed and others still under consideration.

Legal Issues Presented

1. Whether it was unreasonable for the Secretary of State to set the Council's costs liability as arising from 23 June 2021, given the timing of the HSE's crystallised position.
2. Whether the Council's withdrawal of support based on expert concessions under cross-examination relates to the "substance" of the case or is a "procedural" matter under the Planning Practice Guidance (§34).
3. The interpretation and application of the Planning Practice Guidance regarding costs for unreasonable behaviour, particularly distinguishing between procedural and substantive conduct.
4. The public law reasonableness of the Secretary of State's adverse "due diligence" conclusion regarding the Council's expert evidence and whether this meets the threshold of "unreasonable conduct."
5. The legal adequacy of the Secretary of State's reasoning in the decision letters ordering costs against the Council.

Arguments of the Parties

Appellant's Arguments

• The Council contends that their expert witness, Mr Hopwood, did not "come up to proof" during cross-examination, making concessions inconsistent with his prior written evidence.
• The Council argues there was good reason for withdrawing support at the time they did, which saved ongoing costs.
• The Council challenges the Secretary of State’s characterization of their conduct as "unreasonable" and questions the timing of the costs liability starting point.

Respondent's Arguments

• The Secretary of State maintains that the Council’s withdrawal was a "volte face" without good reason, occurring after appointing an expert whose evidence was not capable of standing up to scrutiny.
• The Secretary of State argues that the Council’s conduct justified costs orders, emphasizing the lack of any change in the HSE’s position or evidence and the timing of the withdrawal.
• The Secretary of State presents an arguable defence against the judicial review grounds but does not contend that the claim should be dismissed outright at this stage.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully examined the interplay between procedural and substantive aspects of the Council’s withdrawal of support for the planning application, focusing on the Planning Practice Guidance (§34). It highlighted the complexity in categorising withdrawal based on expert concessions as either procedural or substantive, noting policy considerations about incentivising parties to maintain merit positions versus procedural withdrawal. The court considered the concept of "due diligence" in expert evidence preparation, referencing established case law to assess whether the Council’s expert evidence was reasonably scrutinised and whether the Secretary of State’s adverse conclusions were lawful and proportionate. The court found the grounds for judicial review to be arguable and interconnected, warranting a substantive hearing to evaluate the case "in the round." The court acknowledged that the Secretary of State had an arguable defence but had not conclusively defeated the claim at this stage. It also addressed case management issues for the forthcoming hearing, including procedural directions to promote efficiency and clarity.

Holding and Implications

The court granted permission for judicial review on multiple grounds, finding the appellant's case to be arguable but not definitively resolved at this stage. The court ordered a one-day substantive hearing scheduled for 23 July 2024, with detailed procedural directions to manage the case effectively. The core ruling is that the claim will proceed to substantive hearing for full consideration, preserving all grounds advanced by the appellant.

Implications: The decision allows the appellant to challenge the Secretary of State's costs orders and the reasoning behind them, ensuring a thorough judicial examination. No new precedent was established by this permission decision; rather, it facilitates a full hearing of the contested issues.