Anthony Musker writes to Mr Nick Clegg,
Deputy Prime Minister, House of Commons
Regarding Decisions for : FPS/X2600/7/101 and FPS/Q1770/7/70R
A public right of way in North Norfolk
- I am the first person to have a cost decision made against them following an initial public inquiry.
- I believe the awarding of costs against someone is entirely unfair when someone is working on a voluntary basis, for something which is ultimately for the public benefit, and has agreed to take the lead for around 50 to 60 other named supporters of the Order.
- The costs awarded against me is for a very large sum of money, which I cannot afford. I find now that I can only dispute the Inspector’s decision to award costs against me through a Judicial Review, which I also cannot afford.
Says Anthony Musker
I am writing to you following an exchange of correspondence with Mrs Comber, of Bordon, Hants, as I am currently looking into what I can do to rectify circumstances I find myself in. I applied to register a public right of way in North Norfolk, and supported the Order through a Local Public Inquiry. This was done in a voluntary capacity, to bring about a public benefit. At a Local Public Inquiry the Inspector made decisions on behalf of the Secretary of State that the Order should not be confirmed, and awarded partial costs against me.
Since the rules about the award of costs were set in 2009, I believe that in my case FPS/X2600/7/101, I am the first person to have a cost decision made against them following an initial public inquiry. In Mrs Comber’s case costs were awarded against her recently in FPS/Q1770/7/70R, although there were more stages involved in those decisions and were more complex. I believe that these are the only two cases where supporters have had costs awarded against them, and as this is only a recent development in interpretation of the criteria by Inspectors, I believe that this practice needs some consideration and action taken to ensure the system is working fairly, and is not working against people who are trying to register public rights of way, as volunteers, for public benefit. In my case the Inspector has listed a number of reasons, including one which is contrary to the Planning Inspectorate rules.
It appears that my experience of the system is similar to Mrs Comber’s, and I would like to request that the system is changed to a fairer one. It seems that in both these cases, the supporter has been an untrained unrepresented person who has had to face an objector’s QC or barrister, and costs have been sought by the QC or barrister as if it had been a court situation. The barrister or QC knows all the tricks and methods to make an opponent, an unrepresented and untrained person, seem as though they should have costs awarded against them, and so it is unfair.
A related issue is that by allowing an Inspector to award costs against unrepresented people, it may put people off from coming forward to register a public right of way. I note that these recent developments are occurring at a time when people are currently being asked to come forward to register Rights of Way before a set deadline, and I am sure that these recent developments will have an effect on people’s willingness to do so.
Seeking to register a public right of way is not an easy task for untrained people, and involves carrying out research, gathering evidence, obtaining documents, presenting evidence and documents and ensuring that administrative requirements are met. There are enormous amounts of time and considerable costs spent, entirely as a volunteer. There is a belief that one is doing something which is right, and for which there is a public benefit; nothing is done for a personal benefit. The effort has to be maintained over many years. It is devastating when all the work over the years has been for nothing as a result of a clever QC, who also wins costs for the objector against the supporter. I believe the awarding of costs against someone is entirely unfair when someone is working on a voluntary basis, for something which is ultimately for the public benefit, and has agreed to take the lead for around 50 to 60 other named supporters of the Order.
As I was aware that the process ‘post’ Order, (after the Order was made), might involve considerations of costs against me, I made enquiries about this possibility from many sources, including The Planning Inspectorate at the Department for Communities and Local Government (DCLG). Everyone told me, including The Planning Inspectorate, that is was highly unlikely that costs would be awarded against me, as this was not the practice, and I would have had to behave ‘manifestly unreasonably’ for that to happen. I was reassured as I had no intention of behaving unreasonably.
The costs awarded against me is for a very large sum of money, which I cannot afford. I find now that I can only dispute the Inspector’s decision to award costs against me through a Judicial Review, which I also cannot afford. I am hoping to obtain Pro Bono help but this is uncertain at the present time and time is running out. If I am able to take the matter to Judicial Review it would not be right for me to set out in this letter the details of the case for discussion, but there are some general principles which I would like you to consider regarding the process, with a view to bringing about improvements.
There are various stages involved in the making of an Order, followed by a stage to consider the confirmation, or not, of that Order. The process prior to the making of an Order does not involve the consideration of costs or liability for costs. I understand that it is only after an Order has been made that the issue of costs being awarded to a party is a matter that can be considered. It seems odd to me that the issue of costs only comes into effect partway through a process.
In my case, during the process prior to the making of the Order, objectors were invited to present their case for consideration, which they did. I was unrepresented and they had representation. The case that objectors put forward was considered and they lost. It was only after the objectors lost that they decided to spend a lot more money and hired a QC and a team of experts to make objection to the Order that had been made so that they could have a Public Inquiry, so they could try again. Having won the early process prior to the Order I naturally supported the Order, and was unrepresented for the Public inquiry. However, the objectors won the Public Inquiry and, on request at this stage, won partial costs against me.
> Would it be possible to change the process so that the principle of no consideration of costs extended to cover a first valid public inquiry in the ‘post’ Order period? (The issue of awarding costs to parties does not make any difference to the costs of the Inquiry paid for from the public purse – it only affects the parties involved).
> Would it be possible to give the Inspector a duty to ensure that there is due regard given to unrepresented parties when facing professional opponents, to ensure that there is a fair balance between parties?
The Inspector was appointed by a government department DEFRA. From comments made by the Inspector during my FPS/X2600/7/101 Inquiry, it was clear that the Inspector had personal views about the rules and procedures set out by the Planning Inspectorate (government department DCLG), but which were based on legislation. However those rules set out by a different department were ignored. In exercising discretion in the proceedings, it appeared that the Inspector felt that she had discretion to ignore Planning Inspectorate rules.
> Can steps be taken to ensure that all Inspectors take note of the Planning Inspectorate (government department DCLG) rules, and procedures and do not pass independent judgements in public on the merit of those rules. It is important that Inspectors are aware of the rules and that Inspectors comply with them.
The process to register a public right of way seems slanted to favour objectors. As in my case, during the early process prior to the Order, the objectors were able to present their case of objection, without any thought of having costs awarded against them, and with the knowledge that if they lost at that stage, they could simply object to the Order and the whole process would be gone through again and they would have a second chance in the post Order stage. As a result of the objector being given this further chance post the Order, I am now faced with costs awarded against me, for something which I was doing for the public benefit, at no personal gain to myself, and on a matter on which the Secretary of State had previously ruled in my favour to make the Order. The only way I can do anything about the current decisions by the Inspector for the Secretary of State, particularly the cost decision, is through a Judicial Review. A Judicial Review is beyond the means of an ordinary person. In my case I am a pensioner on a low income.
> Can steps be taken to ensure that the Judicial Review process for review of Right of Way decisions, which are in the public interest, and benefit for the public, is a process which is accessible by ordinary members of the public like myself, if necessary to ensure the process is properly democratic.
> Alternatively, a means should be found whereby these decisions on a Right of Way do not come within the Judicial Review system and there is an alternative system, such as a type of Ombudsman, which is accessible to ordinary people.
I would be interested in hearing your comments about what can be done to ensure the system is fair to unrepresented applicants, and any plans that there may be for bringing this about. I would also welcome any suggestions you may have to help me deal with this current difficult situation I find myself in.