Costs & Decisions Team 3/24 Hawk Wing Temple
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Costs & Decisions Team Direct Line: 0303 444 5439 3/24 Hawk Wing Customer Services: 0303 444 5000 Temple Quay House 2 The Square Bristol, BS1 6PN Mr Christopher Kendall Your Ref: 61 Langdale Road Market Weighton Our Ref: APP/E2001/X/12/2186929 York YO43 3DG Date: 11 July 2013 Dear Sir LOCAL GOVERNMENT ACT 1972 - SECTION 250(5) TOWN AND COUNTRY PLANNING ACT 1990 - SECTIONS 195 AND 322 LAND AT COWICK FARM, THORNE ROAD, EAST COWICK, GOOLE, NORTH HUMBERSIDE, DN14 8SY APPEAL BY MR & MRS A MCINNES: APPLICATION FOR COSTS 1. I am directed by the Secretary of State for Communities and Local Government to refer to the Planning Inspector’s letter of 18 April 2013. This allowed the appeal by Mr & Mrs A McInnes against East Riding of Yorkshire Council’s refusal dated 1 November 2012 of a Lawful Development Certificate (LDC) for the use of the above-mentioned land as a caravan site. 2. This letter deals with your application, on behalf of your clients, for a full award of costs against the Council. The application was made in costs correspondence dated 27 April and 3 June 2013. The Council responded on 9 May 2013. As these representations have been copied to the parties it is not proposed to summarise them. They have been carefully considered. Summary of decision 3. The formal decision and costs order are set out in paragraphs 11 and 12 below. The application succeeds and a full award of costs is being made. Basis for determining the costs application 4. In lawful development certificate appeals, as for planning and enforcement appeals, the parties are normally expected to meet their own expenses, irrespective of the outcome of the appeal. Costs are awarded only on grounds of “unreasonable” behaviour resulting in unnecessary or wasted expense. Published policy guidance for such cases, is in CLG Circular 3/09 (referred to below as the “Costs Circular”). The application for costs has been considered by reference to the Costs Circular, the costs correspondence, the Inspector’s appeal decision dated 18 April 2013, the appeal papers, and all the relevant circumstances. www.planningportal.gov.uk/planninginspectorate Conclusions 5. The Secretary of State notes that in this case your clients’ application for costs was made after the Inspector issued his appeal decision and you have cited the outcome of the appeal in support of your costs application. Although a decision on a costs application does not follow directly from the result of the appeal itself, the Secretary of State has taken into account as a material consideration the basis on which the LDC appeal was allowed, in this case. 6. The Secretary of State notes that the appeal Inspector treated your clients’ appeal as seeking a LDC in respect of use of the land for the stationing of a caravan for the purposes of human habitation. It is evident from his appeal decision that the Inspector agreed with your argument that the use of land as a site for a caravan has the same meaning as the use of the land as a caravan site. The Inspector identified that the expression ‘caravan site’ is defined in the Town & Country Planning Act 1990 as having the meaning given in section 1(4) of the Caravan Sites and Control of Development Act 1960. This advises that it means land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed. 7. Paragraph 6 of the Inspector’s appeal decision letter stated: “In an e-mail dated 8 April 2013 the Inspectorate invited the Council to comment on my preliminary view that ‘site for a caravan’ has the same meaning as ‘caravan site’, although in relation to a single caravan only and that consequently, having regard to the statutory definitions cited above, the May 2012 LDC must be read as if it were for use of the land for the stationing of a caravan for the purposes of human habitation. On 11 April 2013 the Council accepted that the LDC ‘permits residential occupation of the caravan’ and agreed that because of this the appeal must succeed.” 8. In the light of the statutory definition of ‘caravan site’ referred to above, and the Inspector’s findings in paragraph 6 of his appeal decision letter, the Secretary of State concludes that the Council had no sustainable case on appeal. Paragraph B37 of the Costs Circular makes it clear that: “A serious misunderstanding of clearly established principles of law is likely to be considered unreasonable.” 9. The Secretary of State has also considered the Council’s argument that if the appellants had notified them earlier that the caravan had been occupied for a short period of time when it was first brought onto the site it was likely that they would have made a different decision on the LDC application. However, paragraph 7 of the Inspector’s appeal decision makes clear that when allowing the appeal it was not necessary or appropriate for the Inspector to consider argument or evidence in relation to what occurred on the land prior to 11 May 2012. This was because from that date the use of the land for the stationing of a caravan for the purposes of human habitation was lawful as a result of the 2012 LDC granted by the Council. The Secretary of State therefore considers that the Council’s argument regarding the historical use of the caravan is unfounded and not relevant to the appealed LDC. 10. In the circumstances described the Secretary of State concludes that the Council acted unreasonably in refusing the LDC application and that this resulted in the appellants incurring wasted expense in the appeal proceedings. FORMAL DECISION 11. For the reasons given above, the Secretary of State has decided that a full award of costs, on the grounds of “unreasonable behaviour” resulting in unnecessary or wasted expense, is justified in the particular circumstances. COSTS ORDER 12. Accordingly, the Secretary of State for Communities and Local Government, in exercise of his powers under section 250(5) of the Local Government Act 1972, and sections 195 and 322 of the Town and Country Planning Act 1990 (as amended), and all other powers enabling him in that behalf, HEREBY ORDERS that East Riding of Yorkshire Council shall pay to Mr & Mrs McInnes their costs of the appeal proceedings before the Secretary of State, such costs to be assessed in the Senior Courts Costs Office if not agreed. The proceedings concerned an appeal by Mr & Mrs McInnes more particularly described in paragraph 1 of this letter. 13. You are now invited to submit to Chris Hodgson, Development Management Team Leader at East Riding of Yorkshire Council, details of those costs with a view to reaching agreement on the amount. A copy of this letter has been sent to him. In the event that the parties cannot agree on the amount, a copy of the guidance note on how to apply for a detailed assessment by the Senior Courts Costs Office is enclosed. 14. There is no statutory provision for a challenge to a decision on an application for an award of costs. The procedure is to make an application for judicial review. This must be done promptly. Yours faithfully S Parsons STEVE PARSONS Authorised by the Secretary of State to sign in that behalf .