The recent High Court judgment in Harlow District Council v Powerrapid Limited [2023] EWHC 586 (KB), an appeal from Costs Judge Leonard in the Senior Courts Costs Office, is worth noting by those involved in CPO proceedings. 

Harlow District Council (“the Council”) made a CPO in 2018 and landowner Powerrapid Ltd lodged an objection. The Inspector overturned the CPO in June 2019 and held that the CPO was "premature" on the basis that there was a significant amount of available undeveloped land held in reserve by the Council and that it had not made a compelling case. It ordered the Council to pay Powerrapid's legal costs. The Council disputed points of principle as to how the costs of the proceedings should be calculated.

The High Court held that where an award of costs has been made under the Local Government Act 1972 s.250(5) in favour of a party who had successfully resisted a compulsory purchase order at a public inquiry, the position as to costs was the same as that in ordinary civil litigation, namely that an order for the costs "of" the proceedings included costs “of an incidental to” even if not expressly specified. This included costs incurred after the Council delegated authority to its officer to make the CPO but before the issue of the CPO, relating to advice and representation on an overage clause and associated with a conversion of costs award. The Council had advocated for a more restrictive approach set out in paragraph 40 of the Planning Practice Guidance which sets out that eligible costs in non-appeal cases start from the date of the notification of the relevant order. Choudhury J noted that this related to planning appeals rather than CPO proceedings, and offered up the comment captured below.  

Although the amount of costs due to Powerrapid has yet to be finally assessed, the company is claiming approximately £489,000. The assessment will be carried out on the basis of the hourly rates awarded by the costs Judge Leonard which were in excess of the London Band 1 guideline hourly rates. The High Court did not interfere with these on the basis that the amount at stake was substantial, the dispute was important for both parties, the case was factually complex, and the guideline rates were not a particularly useful starting point given the work was specific, quite difficult and specialised.