The High Court has refused to change its provisional costs order following the applicants’ unsuccessful challenge in the first module of proceedings over a planning decision. The court said the applicants would not receive costs for the points they lost, but it did not decide whether the developer would recover any costs from them.
In an earlier judgment on 21 March 2025, Humphreys J dismissed the applicants’ case concerning Module I. The provisional order made no order as to the applicants’ costs of that module and reserved the notice party developer’s costs, with any award subject to a set-off and not to leave the applicants with a prohibitively expensive balance. The final order was to await the conclusion of the proceedings.
At a mention on 31 March, the applicants asked the court to reserve their costs instead. They argued, among other things, that costs should not depend on the decision to split the case into modules, that they might succeed on a separate issue concerning a derogation licence, and that reserving costs could lead to a fairer overall result.
The judge held that modularisation did not entitle the applicants to costs for a point on which they had lost. Any later success on the derogation licence issue would not change the outcome for the grounds decided in Module I, which had been considered on the assumption that the remaining grounds added nothing. The judge said the final costs decision would be made after the remaining issues were resolved.
The applicants also relied on the Aarhus Convention’s requirement for review procedures to be fair and not prohibitively expensive. The judge rejected the argument that this required a winning party to pay the costs of a losing party, including the costs of unsuccessful points. He said the Convention’s costs protection did not create a right to recover costs for a failed point, and that no authority supporting the applicants’ position had been produced.
The court ordered that the provisional costs order stand. It made no order as to the applicants’ costs of their application to vary it, and reserved the developer’s costs of that application, including the 31 March and 7 April listings. The order, like the earlier one, is not to be perfected until the proceedings conclude. The remaining grounds, including the derogation licence issue, were not determined in this judgment.