Where a council raises a preliminary question in Class 1 proceedings that goes to the capacity for approval (whether of pure law or mixed fact and law), the proceedings take on the character of ordinary litigation and costs should follow the event. The Practice Direction requiring 'exceptional circumstances' for costs cannot operate as a rigid fetter on the s 69(2) discretion. There is no relevant distinction between preliminary questions of pure law and those of mixed fact and law for costs purposes.
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1 of the 27 citing cases carry a classified treatment. How each court treated it is available to signed-in members.