Louise Humphreys has continued to act for Chiltern District Council (CDC) in the criminal proceedings relating to the failure by Lombard Hotels Ltd and Asrar Ahmed to comply with an enforcement notice. Details of the prosecution and the facts can be found here
Asrar Ahmed was sentenced today (18 January 2019) at Aylesbury Crown Court by the Honourable Recorder for Aylesbury and ordered to pay a fine of £21,170 (including victim surcharge). In addition a confiscation order under the Proceeds of Crime Act (POCA) was made in the sum of £17,000. Mr Ahmed was also ordered to pay CDC’s costs in bringing the proceedings in the sum of £23,293.04.
No separate penalty was given against Lombard Hotels Limited of whom Mr Ahmed was the sole Director and Company Secretary.
It is understood that the breach of planning control has now been resolved and that the site operatives are operating in accordance with their planning permission.
The Civil Procedure (Amendment) Rules 2018 (SI 2018/239), made on 23 February 2018, will come into force on 6 April 2018.
They are intended to clarify the Civil Procedure Rules (CPR) in relation to Aarhus Costs Protection following the September 2017 judgment in R (The Royal Society for the Protection of Birds, Friends of the Earth Ltd and another v Secretary of State for Justice and another  EWHC 2309 (Admin), in which a number of NGOs challenged the February 2017 amendments to the CPR for Aarhus Convention claims.
Rule 45.42(1)(b), which describes the financial information a claimant is required to provide if seeking the benefit of the costs protection provisions, is removed and replaced with a provision that mirrors the requirements for applications for costs capping orders in judicial review claims which are not Aarhus Convention claims.
As a consequence, a claimant will now need to file and serve with the claim form, a schedule of their financial resources, verified with a statement of truth, which provides details of—
- the claimant’s significant assets, liabilities, income and expenditure; and
- in relation to any financial support which any person has provided or is likely to provide to the claimant, the aggregate amount which has been provided and which is likely to be provided.
A provision is introduced into rule 45.22(2) that confirms that the court may only vary the costs cap (or remove altogether the limits on liability) on an application by a claimant or defendant.
Finally, at the end of rule 45.44 a provision is inserted to make it clear that an application to vary such a costs cap (or remove a limit) must be made at the outset and determined by the court at the earliest opportunity; and that an application may only be made at a later stage in the process if there has been significant change in circumstances.
A Planning Inspector has roundly criticised Bath and North East Somerset Council for applying for costs in connection with an enforcement notice appeal in Bath.
The Council’s application, in totality, was expressed as follows:
The LPA considers that the appellant has acted unreasonably in submitting this appeal and as such submits an application award for costs to the Planning Inspectorate in accordance with the guidance set out at paras 027-034 of the National Planning Practice Guidance [sic]
In his decision letter, the Inspector noted:
In fifteen years as a Planning Inspector this is the most pathetic application for costs I have ever had the misfortune to have to adjudicate on …
It is clear that the Council has failed to heed the advice that it has referred to. It has not offered any reason why the mere act of submitting this appeal might be said to constitute unreasonably behaviour. In the context of a statutory right of appeal it would be quite extraordinary for me to make an award of costs against an Appellant merely because they had exercised their right of appeal against such a notice. In the particular circumstances of this case, in the complete absence of any attempt to demonstrate unreasonable behaviour, having regard to the fact that the pertinent advice is in fact in paragraphs 051-054 to which I have not even been referred, this application must fail.
The Inspector went on to consider whether he should make an award of costs against the Council, even though no application had been made by the Appellant, because the Council failed to attend or be represented at the site visit; introduced new policies what were not quoted on the face of the notice; assessed the development against the wrong paragraph of the NPPF. Luckily for the Council, the Inspector exercised his discretion not to initiate an application for costs in this case.