Summary of the Opinion (Anonymised)

Factual and Procedural Background

This appeal concerns a decision by the Secretary of State, taken by Attorney Parsons, to make a partial award of costs against the Local Planning Authority (LPA) following the premature termination of a called-in planning inquiry. A developer (Company A) had submitted an application for residential development on a site near an industrial complex in The City. Entity A had objected on public safety grounds. The LPA resolved to grant permission despite those objections. The Secretary of State called the application in and appointed Inspector Simms to hold a public inquiry under the Town and Country Planning (Inquiries Procedure) (England) Rules 2000.

The LPA submitted expert evidence (Expert Hopwood, instructed via a consultant firm) in support of its stance. A direction under section 321(3) was made to hear part of the inquiry in closed session due to national security/public safety concerns. During the closed session Expert Hopwood was cross-examined by Counsel Kimblin on behalf of Entity A and gave answers that the LPA considered inconsistent with previous advice; in particular, he accepted that, if acting as the inspector, he would advise refusal. The LPA then withdrew its support for the development. Company A, having indicated it relied on the LPA's support, withdrew the planning application and the inquiry ended.

Entity A and Company B (an interested party) applied for costs. Attorney Parsons determined both applications in favour of the applicants and made partial awards of costs against the LPA. The LPA challenged those decisions in judicial review proceedings. The judge below dismissed the challenge. This appeal follows that dismissal.

Legal Issues Presented

1. Whether Attorney Parsons lawfully and rationally concluded that the LPA's withdrawal of support during the called-in inquiry amounted to unreasonable conduct justifying a partial award of costs under the Secretary of State's Guidance and the Secretary of State's statutory power to award costs.
2. Whether Attorney Parsons provided adequate and intelligible reasons for finding that the LPA was responsible for aborting the inquiry and that its conduct was unreasonable, including whether he misapplied or departed from the Guidance without adequate explanation.

Arguments of the Parties

Local Planning Authority (LPA) — Arguments

• The LPA argued that its withdrawal of support followed directly from Expert Hopwood's answers in closed session, answers it regarded as inconsistent with the prior advice and sufficiently damaging to render continued support untenable.
• The LPA said it had engaged in multiple conferences with counsel and its witnesses (including Expert Hopwood and Officer Gibbs) both before and after exchange of evidence and had complied with normal procedural requirements for the inquiry.
• The LPA contended it was not unreasonable to withdraw support once its principal expert could no longer support the case.

Entity A (original objector) and Company B (interested party) — Arguments

• Entity A and Company B sought costs on the basis that the LPA's late withdrawal of support aborted the inquiry and caused unnecessary or wasted expense to other parties.
• They maintained that the LPA's conduct was unreasonable in the relevant ordinary sense and that the Guidance permits awards of costs against a party who aborts the inquiry by withdrawing without good reason.

Attorney Parsons (Decision-maker) — Rationale as presented to the court

• Attorney Parsons relied on the Secretary of State's published Guidance (the PPG) and concluded that while substantive pre-call-in conduct ordinarily does not attract an award of costs, procedural failures that abort an inquiry can.
• He concluded that the LPA had not explained in clear and precise terms the specific answers that caused it to change position and that the LPA should have been satisfied that the expert evidence it relied upon could withstand cross-examination; therefore the LPA had acted unreasonably in withdrawing support when it did.
• Attorney Parsons temporally limited any award so as to run from the date of Entity A's rule 6 statement onwards.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by setting out the statutory basis for costs (section 250(4) Local Government Act 1972 as applied by section 322 of the Town and Country Planning Act 1990) and the Secretary of State's published Guidance (the PPG). The PPG distinguishes between substantive pre-call-in conduct (ordinarily not attracting costs in a called-in case) and procedural failures during an inquiry (which can attract costs if they abort or disrupt the process).

Attorney Parsons relied on that Guidance and concluded that the LPA's withdrawal of support when it occurred constituted unreasonable procedural conduct because (a) the LPA had not explained in clear and precise terms the specific answers that caused the change of stance; and (b) the LPA should have been satisfied that its expert evidence would withstand cross-examination and thus should have tested it more robustly before the inquiry.

The court (Judge Lewison writing) examined the decision for legal error and for irrationality in reasoning. Key analytical points the court made were:

• There was an explicit factual finding that Expert Hopwood gave answers in cross-examination that were new and damaging and that those answers prompted the LPA to withdraw support. Attorney Parsons recognized this in paragraph 17 of his decision.
• Attorney Parsons nevertheless stated (paragraph 20) that there had been no material change in the evidence sufficient to justify the LPA's volte face. The court found this internally inconsistent with his acknowledgement that new, damaging answers were given and that those answers caused the LPA to withdraw support. That inconsistency amounts to a demonstrable flaw in the reasoning (a leap from paragraph 17 to paragraph 20).
• The court analysed the role and duties of expert witnesses (citing procedural guidance and Guntrip) and reiterated that an expert who can no longer support the instructing party must say so. The court observed that Expert Hopwood's acceptance that he would advise refusal if acting as inspector was precisely the kind of answer that justifies withdrawal of support.
• Attorney Parsons' central contention that the LPA should have satisfied itself before the inquiry that Expert Hopwood's evidence would withstand cross-examination set an unreasonably high bar. The court held there is no general procedural requirement that a party must test its own expert to the point of determining how the expert would fare in cross-examination; instructing an expert is to obtain expertise the instructing party does not possess (citing Aylesbury and related reasoning).
• The court further noted that Attorney Parsons did not identify any specific moment prior to the cross-examination when the LPA should have appreciated its expert was untenable, nor any obvious flaw in the proof that would have triggered a duty to withdraw earlier.
• On the point of temporal reasonableness (whether the withdrawal was belated), the court accepted the judge below's elaboration: withdrawal can be reasonable if prompted by a material change in another party's case or in circumstances, but the key temporal question is whether the late withdrawal should have occurred earlier. Attorney Parsons did not identify any such earlier trigger.

In short, the appellate court concluded that Attorney Parsons' reasoning contained a demonstrable flaw: he recognised the new and material nature of Expert Hopwood's answers yet nonetheless treated them as not amounting to a material change; and he imposed a general requirement on the LPA to have satisfied itself in advance that the expert's evidence would withstand cross-examination. Those features rendered the decision irrational in process and inadequately reasoned.

Holding and Implications

Holding: The appeal was ALLOWED. The appellate court concluded that Attorney Parsons' decision to make partial awards of costs against the LPA was legally flawed for the reasons set out above and allowed the appeal.

Implications:

• Direct effect: The decision awarding partial costs against the Local Planning Authority was set aside and the appeal was allowed. (The opinion does not set out any further orders or detailed consequential directions in this text.)
• Broader principle: The court emphasised that a decision-maker applying the Secretary of State's Guidance must give clear, intelligible reasons and must not impose a general obligation on parties to pre-emptively test their own experts' resilience to cross-examination. The opinion does not purport to create a novel precedent beyond applying established standards of rationality and adequacy of reasons; it underlines that an expert's concession in cross-examination can legitimately justify withdrawal and that such a response is not necessarily unreasonable or blameworthy.
• No new wide-ranging principle was announced; the court confined its decision to the facts and reasoning errors in the decision under challenge. The direct consequence is that the costs awards in favour of Entity A and Company B, to the extent they were imposed on the LPA on the basis explained by Attorney Parsons, cannot stand.

Panel: Judge Lewison, Judge Asplin, Judge Coulson.

Decision date and citation (from the provided text): [2024] EWHC 2030 (Admin); [2024] Costs LR 1709 (as cited in the provided opinion).