From expert to expensive – when planning parties pay for poor witness prep

Oliver Bradbear looks at a recent costs ruling in a case where a local planning authority’s safety expert witness failed to come up to proof at a "called-in" planning inquiry.

R (on the application of Halton Borough Council) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 2030 (Admin)

Background

The Health and Safety Executive (‘HSE’) objected to an application for 139 dwellings on safety grounds. Halton Borough Council - the LPA for the application - considered the objection but concluded HSE’s advice did not warrant departure from the adopted development plan. The LPA indicate it would grant the development permission.

The Secretary of State elected to call in the application at HSE’s request, necessitating a full 8 days of inquiry hearings. Given public safety concerns were the principal issue, the developer opted not to provide evidence at the inquiry. Due to national security concerns regarding the principal issue, part of the inquiry was held in private.

Cross-examination & Costs Award

The LPA’s expert witness for public safety matters – Mr Hopwood – was cross-examined by HSE’s advocate on the third day of the private inquiry. Whilst the LPA were effectively advocating for the development, Mr Hopwood agreed that ‘if he were in a Planning Inspector’s position – he would have to advice the Secretary of State strongly against the grant of planning permission’ - a clear reversal of the position stated in his proof of evidence.

Following correspondence between HSE and the LPA, the Council recognised that it could no longer maintain its support for the application, prompting the developer’s agent to withdraw the application.

The inquiry closed and HSE submitted an application for costs against the Council, which was allowed. The Council’s failure to ensure that their expert evidence was robust and capable of withstanding scrutiny was considered unreasonable; this unreasonable behaviour led to the collapse of the inquiry, resulting in wasted expense for the other parties.

The Court’s role in the Planning Costs Regime

Paragraphs 17 and 18 of the judgement are a helpful reminder of the court’s role in this area, including:

• the judicial review court can intervene where the costs decision-maker has materially misdirected themselves (Chichester);
• the court can also intervene where the costs decision is unreasonable in a public law sense (Golding);
• a costs decision must be supported by clear and intelligible reasons, such reasons not to raise a substantial doubt as to whether the decision was lawful (North Norfolk);
• a costs decision must be read straightforwardly and as a whole (Chichester); and
• a costs decision is not unreasonable merely because a different decision maker might have taken a different view, or because there is room for significant disagreement (Golding, Swale).

Distinction between an appeal party and its expert witnesses

In seeking judicial review of the costs orders, the LPA argued that the decision maker had failed to appreciate the distinction between the Council and the independent expert it called as a witness.

The Council acknowledged that in civil litigation, if a witness fails to come up to proof and the case made cannot be substantiated, costs are likely to follow. However, it sought to distinguish that approach from the planning appeal costs regime given that in civil litigation the loser pays the winner’s costs, while in a planning appeal whether a party is liable for costs is determined on the basis of unreasonable behaviour.

The Council argued that legal representatives are not entitled to ‘coach’ or ‘rehearse’ with their witnesses through simulated cross-examination. As it would be quite wrong for an advocate to coach or rehearse with a witness, it can only be considered reasonable that a party might fail to take steps to be satisfied that their witness’s evidence will come up to proof. For a party to confirm a witness will come up to proof by rehearsing the cross-examination, they would have to engage in unethical and unreasonable behaviour which is clearly wrong.

Further, the Council argued that an expert witness is bound by professional and ethical standards. They are not acting for the gain of the party they appear for, rather to aid the inquiry in reaching an appropriate decision. It would be wrong to equate an expert not coming up to proof with unreasonableness on the part of the party who – in good faith – has called that expert. If a witness, in pursuit of their professional and ethical obligation, changes their mind about a subject and does not come up to proof, this should not be considered unreasonable behaviour on behalf of the party they appear for, rather an evolution of the inquiry’s discourse.

Nevertheless, the Court rejected these submissions and upheld the costs orders.

The Court accepted that an advocate cannot coach a witness, however noted the costs decision maker did not indicate they expected this to have occurred. In response to the costs applications, the Council described ‘multiple conferences’ involving Counsel and Mr Hopwood, both before and after the exchange of evidence ‘at which the merits of both parties’ positions and their evidence were discussed extensively’. It follows that the Council had ample opportunity to review the merits of their case prior to cross-examination of its witness and could have withdrawn from proceedings earlier. Given the Council had ample opportunity to conclude its case would not ‘stand up to scrutiny on the planning merits’, it was the eleventh-hour withdrawal from the inquiry, not the change in position at cross-examination, that was unreasonable.

Change in circumstances warranting a change in position

The Council argued that Mr Hopwood’s evidence had changed following cross-examination and that this change was a material change in the planning circumstances (‘or evidence’) sufficient to justify the Council’s change of position. The Council and its witness were distinct; it was therefore unreasonable to treat Mr Hopwood’s ‘volte face’ as the Council’s volte face. 

The Court rejected this argument. The only change in the planning circumstances was that Mr Hopwood’s written submissions had proved not to be ‘capable of standing up to scrutiny … through cross-examination’. The Council’s witness had collapsed with no other change, therefore the Council were unable to justify this as a change that enabled a reasonable reversal of position.

Conclusions

This decision is a timely reminder of the need for parties to an inquiry to confirm their witnesses are capable of standing up to the scrutiny of cross-examination. While a party and its witnesses are distinct to a certain extent, they remain intrinsically linked for the purposes of unreasonable behaviour. When it comes to planning inquiries, one unreliable witness can cost you the whole case – literally.

Oliver Bradbear is a Planning & Highways Lawyer at Cornwall Council Legal Services.