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The parties’ positions
The parties’ positions
For Newham, Mr Cameron KC and Mr Grant submit that overall, it has been the successful party to the appeal. It claims its costs of the appeal, under three broad heads of claim:
All costs incurred by Newham from 16 November 2023, being the date it amended its statement of case to allow for some AAD – to which we referred [para 34] in the substantive decision as ‘Newham’s version’.
In the alternative, Newham claims its costs, again from 16 November 2023, incurred contesting the issues of land use, tall building, height and scale, harm to heritage assets, enhancement to the local environment and landscape, planning balance, and s.106 contributions.
Thirdly, and in any event, Newham seeks its costs arising from dealing with the tallest tower element of 58m above ground where Mr Bashir had decided to reduce that height but had not clearly told Newham.
Mr Bashir’s position is that the Tribunal should make no order for the Respondent’s costs, and that his costs should be addressed in due course under s.17(10) of the 1961 Act.
Mr Pereira KC and Mr O’Brien O’Reilly submit that there is a general caution against issues-based awards of costs, which are far from routine, and there is a need to step back and consider the justice of the situation. There is an important distinction to be drawn between an order that deprives a party of its costs on an issue, and an order that goes further and requires that party to pay the other side’s costs of the issue.
They submit that while we must have regard to the case law on costs discretion generally, regard must be had the context of these proceedings, which is that the claimant has been put to expense by his land being compulsorily acquired, and by a negative CAAD being issued. Parliament has conferred a right upon a landowner to claim costs as disturbance expenses under s.17(10). Different principles apply to disturbance expenses to those applicable to inter-partes general litigation costs.
Landowners, they submit, are not blessed with a foresight that enables them to predict the Tribunal’s decision. Planning issues are notoriously judgment-laden and prone to disagreement. That is particularly so in cases such as these where the cancellation assumption and the need for judgments to be pinned to a past valuation date makes assessment even more challenging and prone to uncertainty. And while claimants for compensation are entitled as a matter of principle to press for the full market value of their land, they undertake huge cost risk in simply meeting their own expenses of doing so while acting against a public authority of superior resources which in many cases (and this is one) will have the additional security of an agreement with the developer of the scheme which underwrites the authority’s expenses.
They submit that our approach to costs should acknowledge these points, and that we should be slow to make costs decisions which could have a chilling effect on a claimant’s ability to seek full compensation. Claimants, they submit, face considerable resource imbalance and cost hurdles already.