Hatfield Aerodrome quarry applicants request court costs

Hertfordshire County Council turned down Brett Aggregates’ application to extract up to eight million tonnes of sand and gravel from the site over a 32 year period earlier this year.

In doing so, they listed eight reasons for refusal relating to the Green Belt, heritage, residential amenity, landscape character, biodiversity, public access, the highway and groundwater.

But Brett appealed against the council’s decision, triggering a two-week Planning Inquiry that ended on Friday (November 29).

The council did not formally defend the refusal at the inquiry, having withdrawn their reasons for refusal two months before the start of the hearing.

On the first day of the hearing, representatives of the council even said that the appeal should be allowed, “subject to the imposition of suitable conditions”.

Nevertheless, applicants Brett Aggregates have submitted a formal application for their costs relating to the appeal process to be met by the county council.

The claim does not mention an amount, however the application suggests “a full award of costs is amply justified”.

The application – submitted during the Planning Inquiry – will now be considered by Planning Inspector Melvyn Middleton, alongside the planning application.

He will then make a recommendation to the Secretary of State, who will determine both the outcome of the Planning Inquiry and the application for costs.

According to documents submitted to the inquiry, the claim for costs has been submitted on the basis that the refusal of planning permission was “unreasonable”.

It is argued that the county council has put itself, the appellant, the inspector and the appeal system in a position were an application – that the council now agrees should have planning permission – has had to be dealt with on appeal.

The application points to the council’s inability to find witnesses to support its reasons for refusal and says the council had refused planning permission for reasons that were “not supportable”.

It also says that having refused the application “unreasonably”, the council did nothing to correct that until the first case management conference.

By that point, says the application, the company had already prepared to address the reasons for refusal, appointed witnesses, drafted common ground, settled draft proofs, instructed solicitors and counsel and booked accommodation for three weeks.

“The situation in which HCC now finds itself is inexplicable,” says the application submitted on behalf of Brett.

“HCC can provide no proper answer to the application and a full award of costs should be made.”

In a response to the claim, also submitted to the inquiry, the county council says it does not resist “a partial award of costs” – limited to the evidence required to meet the council’s own ‘reason for refusal’.

But it says the evidence at the inquiry had gone “a long way beyond” that.

It points to evidence focusing on flood risk and drainage, air quality, noise beyond Popefield Farm, the need for minerals and infill capacity and the availability of inert material to restore the site.

It says these were issues raised by the Colney Heath Group or other interested parties.

“At the inquiry, the appellant’s oral evidence and attendance has focused on responding to third parties and to the Colney Heath Group,” says the response made on behalf of the county council.

“This has taken up the vast majority of the time required.

“To the extent that the appellant’s evidence or attendance at the inquiry concerns such wider issues, or results from the need to respond to the evidence of Colney Heath Group or other third parties, HCC resists the costs application.”

But a further reply to the council’s costs rebuttal, submitted on Brett’s behalf, questions whether the inquiry has been occupied with issues that it did not raise.

In addressing the question of ‘who should pay?’ it suggests that “none of the costs of the appeal would have been incurred but for the council’s decision”.

Commenting on the application following the end of the inquiry, a spokesperson for the county council told the Local Democracy Reporting Service: “Due to the council having been unable to secure expert witnesses to represent them at the appeal, the development control committee reluctantly decided to withdraw the reasons for refusal and the matter went before the Planning Inspectorate for the inspector to decide whether or not to grant planning permission.

“It will be for the Planning Inspector to determine whether the county council will be liable for Brett’s costs and the county council will continue to work with Brett to mitigate the extent of their costs where possible.”