[2024] UKUT 370 (LC)

This decision, determined after written representations, addresses the question of whether the Tribunal has the jurisdiction to award costs in a reference made pursuant to s.204 of the Housing and Planning Act 2016 (2016 Act). This question was first raised by the respondent in correspondence with the Tribunal and was discussed at a case management hearing on 5 September 2024. It was subsequently ordered that the parties should file written submissions on this point and the Tribunal would determine the matter as a preliminary issue.

Section 204 provides for the payment of compensation for interference with an easement or restrictive covenant which has been overridden by section 203, 2016 Act where a local authority has been authorised to undertake development. In this case the claimant, Mr Kitchen, claims that the value of his home has been diminished as a result of the construction of flood lit sports pitches for a new school on land bound by restrictive covenants which could have been relied on to prevent that development had it not been for the effect of section 203.

The claimant’s position is that the Tribunal does have the jurisdiction to make an award of costs, the respondent does not argue one way or the other but notes that the position is uncertain and seeks to identify the relevant matters to assist the Tribunal in coming to a decision. The Tribunal appears not to have considered the matter in any previous litigation to which its current costs rules apply.