England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/11/2015

Mrs Justice Patterson:


 


Introduction

1. This is an application for judicial review of a decision by the defendant in a decision letter dated 3 December 2013 to refuse the claimant's application for an award of costs against the interested party (IP). The costs relate to the claimant's abortive expenditure in objecting to a Compulsory Purchase Order (CPO) and Side Roads Order (SRO) which the IP had made but subsequently withdrew.
2. Permission to bring judicial review was granted by Singh J on 6 August 2014.
3. The claimant is a land owner of land potentially affected by the CPO and SRO.
4. The defendant is the Secretary of State for Transport. He has filed a position statement with the court and consents to judgment.
5. The IP is the Local Highway Authority which maintains an objection to paying the costs of the claimant.

Background

6. The IP wishes to construct a bypass within its area. On 25 October 2012 it made the Bedford Borough Council (A6 Bedford Western Bypass – Northern Section (A6 Bromham Road/Deep Spinney Roundabout Junction to A6 Paula Radcliffe Way/A6 Clapham Road Roundabout Junction)) Classified Road (Side Roads Order) 2012 ('the SRO') and the Bedford Borough Council (A6 Bedford Western Bypass – Northern Section (A6 Bromham Road/Deep Spinney Roundabout Junction to A6 Paula Radcliffe Way/A6 Clapham Road)) Compulsory Purchase Order 2012 ('the CPO') to enable it to do so.
7. The CPO provided for, amongst other things, the compulsory acquisition of rights over land belonging to the claimant to enable it to construct a junction as part of the new highways scheme. The claimant objected to the CPO and the SRO, and accordingly, the orders were sent to the Secretary of State for confirmation. The Secretary of State announced that an inquiry would be held into the confirmation of the orders.
8. Prior to the inquiry, which was scheduled for 9 July 2013, but after the claimant had incurred substantial costs in preparing to resist the compulsory acquisition of its land the IP, on 25 April 2013, withdrew the orders and the inquiry was cancelled.
9. The claimant applied to the defendant for an order that the IP pay its abortive costs. On 3 December 2013, after receipt of written submissions from the parties, the defendant issued its decision letter. Paragraphs 3 and 4 read:

"3. The criteria under which the Secretary of State may consider an award of costs is set out in the Department for Communities and Local Government Circular 03/2009. The criteria, explained generally, enables an award to be made in relation to a Compulsory Purchase Order (or analogous Order) when:-

(a) a remaining objector has been successful. That is to say their having attended or been represented at the Inquiry, or their having submitted a written representation which was considered as part of the written representation procedure and subsequently had their remaining objection sustained by the Secretary of State's refusal to confirm the Order, or to exclude the whole or part of the objector's property from the Order. The exclusion of only part of the objector's property bringing forward entitlement to a partial award of costs (proportionate to the land are deleted of the whole are which was included in the Order and to which the objection related); or

(b) by reason of having an application based on the unreasonable behaviour of the other party – in this case the Council – upheld.

4. Section 3 of the Growth and Infrastructure Act 2013 has now introduced further legislation covering costs and includes circumstances for compulsory purchase order inquiries costs to be awarded where arrangements are made for a public local inquiry to be held, but where the inquiry does not take place. However, under section 8(1)(a) of SI 2013 No. 1488 The Growth and Infrastructure Act 2013 (Commencement No. 2 and Transitional and Saving Provisions) Order 2013, this section does not apply to a compulsory purchase order made before 25 June 2013. The above CPO was made on the 25 October 2012 and therefore is not covered by this legislation."

10. The decision letter continued at paragraph 13:

"13. Your application and all representations about it have been carefully considered in light of the Department's guidelines cited above.

14. To enable an award of costs to be awarded the Secretary of State has to consider whether or not the criteria at 3a above has been met.

…

16. However, as no inquiry has been held, nor a written representation procedure conducted, in respect of the CPO, the costs application does not meet the full criteria for success as listed in 3a above. Also, in this instance, as referred to at paragraph 4 above, the CPO was made before 25 June 2013 and therefore, the criteria under section 3 of the Growth and Infrastructure Bill 2013 in which costs can be awarded where an inquiry has not been held has not been met.

17. The Secretary of State having considered all the evidence does not consider that there has been any unreasonable behaviour on the part of the Council in the processing of the Orders. However, given that this would have been an eligible costs case had the CPO been made after 25 June 2013, the Secretary of State's view is that the Council should consider making an ex-gratia payment to the Objector to cover their abortive costs. A copy of this letter has been forwarded to the Council for their consideration."

11. By a letter dated 4 February 2014 the IP acknowledged that it would consider making an ex gratia payment but that it would not do so until further matters relating to the proposed bypass scheme had been settled. I was told that revised orders have now been confirmed. No such ex gratia payment has been offered or made by the IP.

The Legal/Policy Framework

12. The powers to make Highway CPOs and SROs are contained in the Highways Act 1980. The procedural provisions (including those relating to the holding of inquiries) are contained within the Acquisition of Land Act 1981 (ALA) and in the Highways Act 1980. The provisions relating to costs at inquiries are contained in the ALA and the Local Government Act 1972 (LGA).
13. At the relevant time section 5 of the ALA read:

"5 Local inquiries.

(1) For the purposes of the execution of his powers and duties under this Act, a Minister may cause to be held such public local inquiries as are directed by this Act and such other public local inquiries as he may think fit.

(2) Subsections (2) and (3) of section 250 of the Local Government Act 1972 (giving of evidence on inquiries) shall apply to a public local inquiry held in pursuance of this Act.

(3) In relation to—

(a) a proposed acquisition of land by an authority other than a Minister, or

(b) the proposed extinction under Part VI of this Act of a right of way over land acquired or proposed to be acquired by an authority other than a Minister,

subsections (4) and (5) of the said section 250 (defraying of costs of inquiries) shall apply to a public local inquiry held in pursuance of this Act."

14. The section has subsequently been amended by the addition of a new subsection (4). That reads:

"(4) In relation to each of the matters mentioned in paragraphs (a) and (b) of subsection (3), section 250(5) of the Local Government Act 1972 also applies—

(a) where arrangements are made for a public local inquiry to be held in England in pursuance of this Act but the inquiry does not take place;

(b) to the costs of a party to a public local inquiry held in England in pursuance of this Act who does not attend the inquiry."

15. Subsection (4) was added by the Growth and Infrastructure Act 2013 section 3 which was brought into force by the Growth and Infrastructure Act 2013 (Commencement No. 2 and Transitional Saving Provisions) Order 2013 1488. By virtue of Article 8 of the Commencement Order the power to award costs under subsection (4) does not apply in respect of:

"(a) a compulsory purchase order subject to section 2(2) of the 1981 Act made before 25th June 2013"

16. It is common ground that Bedford Borough Council (A6 Bedford Western Bypass – Northern Section (A6 Bromham Road/Deep Spinney Roundabout Junction to A6 Paula Radcliffe Way/A6 Clapham Road Roundabout Junction)) Compulsory Purchase Order was made before 25 June 2013.
17. An inquiry was required to be held because of the claimant's unresolved objections to the orders. Section 13(2) of the ALA, as in force at the relevant time, provided:

"(2) If any objection duly made as aforesaid is not withdrawn, the confirming authority shall, before confirming the order, either cause a public local inquiry to be held or afford to any person by whom any objection has been duly made as aforesaid and not withdrawn an opportunity of appearing before and being heard by a person appointed by the confirming authority for the purpose, and, after considering the objection and the report of the person who held the inquiry or the person appointed as aforesaid, may confirm the order either with or without modifications."

18. The statutory power to award costs is to be found in section 250 of the LGA. Sections 250(4) and 250(5) read:

"(4) Where a Minister causes an inquiry to be held under this section, the costs incurred by him in relation to the inquiry shall be paid by such local authority or party to the inquiry as he may direct, and the Minister may cause the amount of the costs so incurred to be certified, and any amount so certified and directed to be paid by any authority or person shall be recoverable from that authority or person by the Minister summarily as a civil debt.

(5) The Minister causing an inquiry to be held under this section may make orders as to the costs of the parties at the inquiry and as to the parties by whom the costs are to be paid, and every such order may be made a rule of the High Court on the application of any party named in the order."

19. Relevant policy guidance is contained in Circular 03/2009 Part E. It is headed 'Costs in respect of Compulsory Purchase and Analogous Orders'. The relevant policy advice is set out in paragraphs E1, E5 and E6:

"E1. There continues to be a distinction between cases where appellants take the initiative, such as in applying for planning permission or undertaking development allegedly without planning permission, and cases where objectors are defending their rights, or protecting their interests, which are the subject of a compulsory purchase order. Such objectors are defined in terms of "remaining objectors". If a remaining objector to such an order is successful, an award of costs will be made in his or her favour unless there are exceptional reasons for not doing so. The award will be made against the authority which made the order: it does not, of itself, imply unreasonable behaviour by the authority.

…

E5. In the light of the provisions inserted by the 2004 Act, the policy criteria for costs awards have been updated. To enable an award to be made on the grounds of a successful objection the following conditions normally have to be met:

• the claimant is a remaining objector who either:

– attended (or was represented at) an inquiry (or, if applicable, a hearing) at which his or her objection was heard or

– submitted a written representation which was considered as part of the written procedure and

• the claimant has had his or her remaining objection sustained by the confirming authority's refusal to confirm the order, or by its decision to exclude from the order the whole or part of his or her property

E6. Exceptionally, an order is not confirmed for technical reasons or because the acquiring authority subsequently decides not to proceed with compulsory purchase and asks for the order to be treated as withdrawn. In such circumstances, provided all the criteria in paragraph E5 above are met, a claimant who has incurred expense in objecting to the order and pursuing that objection will be regarded as a successful objector for the purposes of this circular. The objector will be treated in the same way as if their success were due to their representations."

Submissions

The Claimant

Ground One

20. The claimant accepts that section 250(5) of the LGA as applied by section 5 of the ALA is capable on its face as being interpreted as meaning that the power to award costs only arises when an inquiry is actually held.
21. However, Mr Turney, counsel for the claimants, submits (1) that the relevant provisions are also capable of another meaning; that is that the power to award costs in favour of a party to a CPO inquiry exists whether or not an inquiry is convened and (2) that his submission is to be preferred.
22. The claimant contends that the words are capable of such a meaning because:

a) The relevant provisions apply when an inquiry is caused to be held (section 250(1) LGA; section 5(1) ALA). As a result the starting point for considering a costs claim is that the provision is engaged when the inquiry is caused to be held and not when it is actually held;

b) The reference to an inquiry "held" in section 5(3) (ALA) may be construed as being an inquiry which has caused to be held;

c) An inquiry is not confined to the oral exchange before an inspector. It includes a process of written exchange of statements of case and evidence;

d) The reference in section 250(5) of the LGA to parties at the inquiry need not, as a matter of plain English, connote physical presence at a convened public inquiry. The phrase "the parties at the inquiry" is, in context, capable of meaning the parties to an inquiry which has been caused to be held.

23. If the statute is capable of bearing the meaning contended for it should be given such a meaning. That is because of the following:

a) The statutory context. An inquiry is a process subject to procedural rules rather than a singular event. The starting point in the process is the "causing of the inquiry to be held" and an inquiry exists from the time when it is caused to be held.

b) Similarly "costs" which may be recovered under sections 250(4) and (5) are not limited only to the costs incurred at the inquiry which is physically convened but include the preparatory costs.

c) Parliamentary intention. The claimant submits that it is impossible to conceive of any reason why Parliament would have wished to exclude the possibility of an award of costs in cases such as the present. Indeed, the policy reasons for awarding costs may be greater when the inquiry does not sit. If a local authority is persuaded shortly before an inquiry, and after objectors have expended considerable sums preparing evidence for the inquiry, that its promotion of the CPO is untenable it should be at no lesser risk of an adverse costs award than if it fails to secure confirmation in a marginal case following the completion of the inquiry. The "mischief" at which the statutory provision is directed relates to the promotion of and objection to a CPO.

d) Common Sense/Avoiding Perverse Outcomes. The claimant contends that the IP's interpretation of the provision would mean the Secretary of State could make an order for costs against a local authority which withdrew a CPO one minute after the inquiry opened but not one which withdrew the order one minute before the inquiry opened. That would be a perverse outcome.

e) The Context of Compulsory Acquisition. The claimant submits that the denial of costs in the current circumstances can be broadly equated with a deprivation of property without compensation. The court should favour the construction which least interferes with private property rights (see R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437). Similarly there is a presumption against deprivation of property without compensation (see AG v Horner [1884] 14 QBD 245 at [257]). As a general principle any statute which provides for the expropriation of land should be construed in favour of the party who is to be dispropriated (see Methuen-Campbell v Walters [1979] QB 525 at [542]).

f) Section 3 of the Human Rights Act 1998. The claimant submits that the proposed deprivation of the claimant's property engaged Article 1 Protocol 1 and that, accordingly, it needed to be subject to procedural safeguards to ensure that the deprivation was in accordance with the law and proportionate. One aspect of the safeguard is that the claimant can reasonably expect to recover costs incurred in successfully resisting the CPO. Denial of those costs in an interference with the claimant's property rights under Article 1 Protocol 1.

g) Later Statutory Amendment. The claimant submits that section 5 of the ALA has been amended to clarify the position in respect of costs awards where an inquiry is caused to be held but does not take place. However, that is not determinative of the meaning of the unamended provision.

Ground Two

24. Although the claim originally contained a second ground alleging that the defendant had misapplied his own Circular, 03/2009, this ground was withdrawn at the hearing.

Interested Party's Submissions

Ground One

25. The IP submits that the power to award costs to parties other than the Secretary of State arises under section 250(5) of the LGA in respect of a party "at the inquiry". If there is no inquiry then there is no-one who can claim to have been a party at an inquiry.
26. Equally, section 5(3) of the ALA in applying the provisions of section 250 of the LGA uses the words "shall apply to a public local inquiry held in pursuance of this Act." In other words it does not relate to an inquiry that has been "caused to be held".
27. Had Parliament intended that the power to award inter-party costs should arise whether or not the inquiry was actually held the wording of section 250(5) of the LGA would have equated to section 250(4) and the wording of section 5(3) of the ALA would have equated to section 5(1) and used the expression "cause or causes an inquiry to be held".
28. The amendments brought into force by the Growth and Infrastructure Act 2013 are to rectify the possibility of an anomalous result.

The Secretary of State's Position

29. The Secretary of State accepts that a literal reading of section 250(5) of the LGA is arguable and that the arguments on section 250(5) of the LGA are finely balanced. However, he prefers a more purposive approach. In his position statement he makes the following brief observations:

i) It is impossible to think of any reason why Parliament would have wished to exclude the possibility of a costs award in circumstances such as the present case, where the need for an inquiry falls away shortly before the hearing because the order making authority has a late change of position. Indeed, that would appear to be a paradigm case for a costs award, as instance as an example of unreasonable behaviour justifying a costs award (even outside of compulsory purchase cases) in Circular 03/2009 which provides guidance on the making of costs awards by the Secretary of State).

ii) The wording of section 250(5) is unclear and, read in context, does not point unambiguously to the conclusion that costs awards can only be made when an inquiry actually takes place. It may be noted that parties become subject to the relevant inquiry procedure rules (which impose obligations in relation to preparation of evidence and other matters) long before the inquiry is actually held.

iii) The literal reading proves too much. Reading section 250(5) literally, it would mean that the only costs which could be awarded would be those incurred by parties "at the inquiry" so that preparation costs would be excluded.

Discussion and Conclusions

30. At the heart of this challenge is the correct approach to the interpretation of section 250(5) of the LGA.
31. The claimant accepts that the words used in the statutory provision are capable of meaning that an award of costs can only be made if the claimant was a party at a public inquiry. The IP accepts that if the wording were "caused a public inquiry to be held" or "may cause a public inquiry to be held" that may refer to the decision to convene an inquiry. However, whilst that may be relevant to the Secretary of State recovering his own costs under section 250(4) the relevant section for costs of the parties in s 250(5). Under that provision the IP submits that if no inquiry is held then no-one can claim to have been a party at the inquiry so that no entitlement to costs arises.
32. If one takes a literal interpretation to the statutory provisions it is clear that the IP is correct in its interpretation. However, on any issue of statutory interpretation an enactment is to be interpreted focusing on its purpose and intent and approached by reference to its language, context and background.
33. The language used in section 250(5) gives the Secretary of State a discretionary power to award costs to "the parties at the inquiry". It is to be contrasted with the wording in section 250(4) where the wording is broader and the power to award costs is "in relation to the inquiry". The draftsman appears to have made a deliberate distinction in wording between the two subsections. Had he intended parties involved in the inquiry to have had the ability to recover all of their costs "in relation to the inquiry" which would cover the current circumstances he would have said so. He must, therefore, have intended something different.
34. Section 250 is headed 'Power to Direct Inquiries'. An inquiry in compulsory purchase matters is directed when a relevant objection into the compulsory purchase order is received by the acquiring authority or the Secretary of State and is not withdrawn. Paragraph 7(1) of schedule 1 of the Highways Act 1980 deals with part 1 orders. Where relevant it reads:

"(1) If any objection to the proposed order is received by the Minister –

…

And the objection is not withdrawn, then –

…

(ii) in the case of an order made by a local highway authority and submitted to the Minister, the Minister,

shall … cause a local inquiry to be held."

35. The process then proceeds in accordance with the Compulsory Purchase Order (Inquiries Procedure) Rules 2007 and the Highways (Inquiries Procedure) Rules 1994 which set out the steps leading up to the inquiry. They include requirements for an outline statement of case, a pre-inquiry meeting (if it is appropriate), submission of proofs of evidence, the setting of the date of the inquiry and the giving of public notices as to the taking place of the inquiry. An inquiry is defined in both sets of rules as "a public local inquiry to which the rules apply". After the close of an inquiry the inspector appointed has then to make a report in writing to the Secretary of State. In my judgment it is clear from the words used and the statutory context that "the inquiry" is a public local inquiry which is an event to which the public have access from the date which has been determined in accordance with rule 10 and of which the public are duly notified in accordance with rule 11 of the CPO Procedure Rules 2007. An inquiry is not the whole process prior to that event; that process is pre inquiry procedure to secure the efficient running of the inquiry when it transpires.
36. Section 5(3) of the ALA applies sections 250(4) and (5) of the LGA (defraying of costs of inquiries) "to a public local inquiry held" in pursuance of this Act. At the relevant time in the instant case section 5 of the ALA did not include the amendment brought in by the Growth and Infrastructure Act 2013 which was effective from 25 June 2013. Thus, the plain and ordinary meaning of the words of section 5(3) in force at the relevant time emphasised that so far as the costs of parties were concerned the Secretary of State had a discretionary power to make an order for the payment of costs of the parties at the inquiry. The words used in both the ALA and LGA envisage some physical attendance or representation at a convened public local inquiry.
37. That approach is reflected in Circular 03/2009 where the policy criteria for an award of costs was updated after the Planning and Compulsory Purchase Act 2004. Paragraph E5 is set out in full above but advises that for an award of costs to be made a claimant needs to be a remaining objector who had either attended at or was represented at the public inquiry at which his objection was heard and where the objection was sustained. Paragraph E6 recognises that, exceptionally, an order may not be confirmed because the acquiring authority decides not to proceed with it and asks for the order to be treated as withdrawn. It continues:

"In such circumstances, provided all the criteria in paragraph E5 above are met, a claimant who has incurred expense in objecting to the order and pursuing that objection will be regarded as a successful objector for the purposes of this circular. The objector will be treated in the same way as if their success were due to their representations."

The Circular is thus consistent also with a literal interpretation of the provisions of the ALA and the LGA.

38. The fact that such an interpretation can lead to an anomalous result in cases such as the instant one has been recognised by the legislature with the amendments brought in as a result of section 3 of the Growth and Infrastructure Act 2013. The commencement order provides a very clear cut off date which is that the revised section 5(4) of the ALA does not apply to a CPO made before 25 June 2013. If the legislature had intended to confirm a power to award costs between parties in respect of orders made before that date, such a cut off date would not have been provided. Had the legislature wished to preserve a position that a claim for costs was available to objectors who, for whatever reason, were unable to appear at a public inquiry there would have been no purpose in introducing such a cut off date.
39. Further, looking at the statutory context it is of note that the ALA and the LGA are consistent with each other and demonstrate a consistent Parliamentary intention, namely, that the power to award costs arises in respect of parties "at an inquiry". Whilst there is an inquiry process for which procedures are set out in the relevant rules those govern steps prior to the inquiry which is opened by an appointed inspector on the day which had been notified in accordance with the rules as the formal hearing of objections into the proposed CPO. Until the inquiry is opened there is no inquiry.
40. That position can or could bring unfairness to those such as the claimant who participated in an inquiry process before the commencement date of 25 June 2013 which introduced the amendment to section 5 of the ALA. It meant that such objectors were unable to be heard at an inquiry because it was cancelled before the inquiry was opened and thus were unable to claim costs incurred by them. I quite understand, therefore, why it is that the claimant seeks to argue that the statutory provisions need to be interpreted in a purposive manner and that the words are capable of another meaning. I turn now to consider those submissions.
41. First, it is said that the provisions apply where an inquiry is "caused to be held": section 250(1) LGA and section 5(1) ALA, that the reference to an inquiry "held" under section 5(3) ALA may be construed accordingly i.e. where an inquiry has been "caused to be held", that an inquiry is not confined to an oral exchange before an inspector and includes a process of written exchange of statements of case and evidence, and that the reference in section 250(5) of the LGA to parties "at the inquiry" need not, as a matter of plain English, connote physical presence at a convened inquiry. The language of section 250(5) is unclear.
42. The problem with the claimant's submissions is that in dealing with an award of costs to the parties the relevant provision is section 250(5) of the LGA. That gives the Secretary of State a discretionary power to make orders as to costs of the parties "at the inquiry". It is not a power which arises when the inquiry is "caused to be held". The claimant contends that the wording of section 250(2) is supportive of his interpretation. I cannot accept that submission. The structure of the section is to deal, first, with when a Minister or Secretary of State may cause a local inquiry to be held: section 250(1). Secondly, to make provision for the calling of evidence on oath, if necessary, and the consequences of failing to do so: sections 250(2) and 250(3). Thirdly, to deal with the provision of costs, first, to the Minister: section 250(4) and, second, to the parties: section 250(5), each being triggered by different events, the causing of an inquiry to be held in (4) and at an inquiry in (5). It is inconceivable that if the two were to be interpreted consistently that the same words were not used by the parliamentary draftsman.
43. Mr Turney submits that in section 250(2) the reference to "any matter in question at the inquiry" supports his submission that the threshold does not depend upon the Inquiry opening. I do not accept that submission. First, section 250(2) is dealing with a different matter, namely, the calling or production of evidence relating to "any matter in question at the inquiry". It is providing the appointed person powers to secure the production of relevant evidence. Matters in question at the inquiry will have been identified in advance through the statements of case and pre inquiry representations. That process enables the identification of future issues at the inquiry which will be convened subsequently so that although the same preposition is used, "at", it means different things in different contexts. Read fairly the words used are not capable of meaning the same in section 250(5) as it is in section 250(2); they need to be looked at in their context.
44. Section 5(3) of the ALA does not assist the claimant either as that simply applies section 250(4) and (5) of the LGA to "a public local inquiry held" and thus reinforces the literal meaning of section 250(5) and the fact of its distinctness from section 250(2).
45. As set out an inquiry is opened, evidence heard and then closed. The preceding steps, as the rules make clear, are part of the process leading up to the inquiry but are not part of the inquiry itself. That means that the phrase in section 250(5) "at the inquiry" means what it says: physical presence or representation at a convened public inquiry. That is consistent with the statutory background, context and language in both the ALA and the LGA. To hold otherwise would, in my judgment, distort the ordinary use of the English language.
46. The claimant places some weight upon the position statement on the part of the Secretary of State. I deal with his position now.
47. First, it is right that it is difficult to think of any reason now why Parliament would have wished to exclude the possibility of an award of costs where the need for an inquiry falls away but an award of costs is discretionary for a successful objector to be awarded in the context of the policy on the part of the Secretary of State at the material time. There has to be some event that triggers entitlement to a costs order. Historically that has been the inquiry. Second, it is said that the wording of section 250(5) is unclear. I disagree. As I have set out there is a distinction between the formality of the inquiry hearing which is the public local inquiry and the inquiry process preceding that. Third, it is said by the Secretary of State that the literal reading proves too much as the only costs that could be awarded would be those incurred at the inquiry. I do not accept that position. The discretionary power is to award the "costs of the parties at the inquiry". The "at the inquiry" refers to attendance or representation at the inquiry. There is no restriction on the amount of the award. It is clear from Circular 03/2009 that a claimant who has incurred expense in objecting to the order and pursuing that objection would be entitled to his costs. There is thus no policy reason for restricting the amount claimed in an artificial way simply to costs of attendance at the inquiry. A bill would be submitted in the usual way and taxed accordingly.
48. For those reasons, I am driven to reject the submissions of the claimant.
49. For the sake of completeness though, I deal with the six matters that the claimant contends support his interpretation:

i) Statutory context. The claimant contends that the provisions are concerned with inquiries "caused to be held" and that the costs recoverable are not limited to costs incurred only at the inquiry but extend to preparatory costs. For the reasons that I have set out above I reject the submissions that the relevant provisions extend to inquiries which have been "caused to be held".

ii) Parliamentary intention. The claimant submits it is impossible to conceive of any reason why Parliament would have wished to exclude the possibility of an award of costs in such circumstances. Indeed, the policy reason for awarding costs if an inquiry does not sit may be greater than the "mischief" at which the statutory provision is aimed, namely, that it is related not just to the oral process but to that of promoting and objecting to the CPO. Whilst there is force in those submissions they do not, in my judgment, accord with the statutory scheme. That makes it clear under both the LGA and the ALA that an inquiry is to be "held". Had it been Parliamentary intention to confer a power to award costs in the way contended for by the claimant then it is inconceivable that that section 250(4) and section 250(5) would have been worded differently and that the amendments introduced by section 5(4) of the ALA would have been made using the words used. There would be no need for such amendment if the claimant was correct.

iii) Perverse outcomes. The claimant contends that on the IP's submissions an order for costs could be made against a local authority which withdrew its CPO minutes after the public inquiry opened but not one which withdrew it minutes before the inquiry opened. That is true but, as the IP submits, that would apply to any cut off point. On the claimant's case objectors will have incurred costs in objecting to CPOs before an inquiry has "been caused to be held". Those costs would be irrecoverable. The policy approach has been to enable successful objectors to claim their costs at inquiry but not before. The costs regime which applies to CPO inquiries is not one where costs follow the event.

iv) The context of compulsory acquisition. The claimant contends that the denial of costs of resisting the appropriation of the claimant's land is broadly equivalent to the deprivation of property without compensation. In such circumstances the court should favour the construction which least interferes with the private property rights (see R (Sainsbury's Supermarkets Ltd) v Wolverhampton City Council [2011] 1 AC 437) and take into account a presumption against deprivation of property without compensation (see AG v Horner [1884] 14 QBD 245). However, once an acquiring authority has withdrawn a CPO there is no deprivation of property and so no issues of compensation arise.

v) Section 3 of the Human Rights Act 1998. The fact that there has been no deprivation of property means that Article 1 Protocol 1 is not engaged. To say that the claimant should reasonably expect to recover costs incurred in successfully resisting the CPO is to extend the role of Article 1 Protocol 1 too far. The claimant submits further that the statutory exclusion of costs amounts to an interference with property rights because of the exclusion of safeguards so that the court is obliged to adopt a strained interpretation of section 250(5). It was not an argument that was developed but the same point applies. If the Article 1 Protocol 1 is not engaged there is no need for the court to embark upon a strained approach.

vi) Later statutory amendment. The claimant contends that the Explanatory Note to the Growth and Infrastructure Act 2013 makes it clear that there was concern about the terms of section 250(5) suggesting that successful objectors to a CPO must appear "at the inquiry" in order to be awarded their costs. The Explanatory Notes deal with section 3 of the Growth and Infrastructure Act 2013 under the heading 'Compulsory Purchase Inquiries: Costs'. They read:

"33. This section broadens the powers of the Secretary of State to award costs between the parties at compulsory purchase order inquiries. These inquiries are generally conducted on behalf of the Secretary of State by Inspectors in the Planning Inspectorate. The section adds a new subsection (4) to section 5 of the Acquisition of Land Act 1981. Section 5 applies section 250(5) of the Local Government Act 1972 ("the 1972 Act") to inquiries set up by Ministers to hear objections to the compulsory purchase of land by public authorities. Section 250(5) allows costs to be awarded between the parties at the inquiry.

34. At present, the terms of section 250(5) suggest that successful objectors to a compulsory purchase order must appear "at the inquiry" in order to be awarded their costs. New subsection (4) of section 5 of the 1981 Act provides that where an inquiry is held as referred to in section 5(3)(a) and (b), section 250(5) of the 1972 Act also applies to allow the Secretary of State to award costs where an inquiry is cancelled, or where a party does not appear at an inquiry. These situations may occur when an acquiring authority does not wish to proceed with the compulsory purchase order, or an objector has reached an agreement with the acquiring authority to exclude their land from the order."

It is common ground that Explanatory Notes can be used as an aid to construction for whatever logical value the notes have. The notes here make it clear that the section broadens the powers of the Secretary of State to award costs between parties at a CPO inquiry. They do not suggest that the amended provision was either to clarify or declare the existing law. Indeed, had that been the case there would be no need or purpose in including a cut off date of 24 June 2013.

50. For those reasons I cannot accept the matters put forward by the claimant for favouring its interpretation.

Conclusion

51. With considerable regret, but without hesitation, I dismiss this claim. That is the consequence of the statutory scheme in force at the relevant time. It is reassuring to note that as a result of the statutory amendment to section 5 of the ALA parties are no longer placed in the unfortunate position as that which this claimant found itself in.
52. I invite submissions as to the terms of the final order and costs. If the latter cannot be agreed then the interested party should make its submissions by 10am on 2 November, the claimant by 10am on 4 November and the interested party in reply by 10am on 5 November. Costs will then be determined on the papers.