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HOME PAGE | CONTENTS | APPEALS
COSTS AWARDS IN PLANNING APPEAL CASES
An
application for costs may arise in a variety of instances, but primarily in
connection with the following types of appeal:-
Appeals
against the refusal of planning permission
Appeals
against the issue of an enforcement notice
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consent appeals (at a hearing)
In
most cases the possibility of applying for costs only arises where the appeal
is conducted by way of a public inquiry or hearing, although enforcement notice
and lawful development appeals by way of written representations may also
involve applications for costs.
Parties
to an appeal are usually required to meet their own costs. However, either side
may make an application if they consider that the other party has acted
"unreasonably"; ie by causing unnecessary expense to be incurred. A
late cancellation by either side is one such example.
Costs
are not dependent upon winning or losing. There could be a claim sustained
against the party who win the appeal, if the loser can show that they were
involved in unnecessary additional expense in defending their position.
'Third
parties' to an appeal (ie interested persons who are involved in the appeal)
may also apply for costs as a result of a cancelled inquiry or hearing, if they
can show that the cancellation resulted from the unreasonable behaviour of the
appellant or the Council.
Unreasonable
Behaviour This may
arise in many ways but the main reasons for costs awards tend to result from
the following:-
Causing an unnecessary appeal to be heard
Cancelling or delaying an appeal without good reason
Failure to produce proper (or any) evidence to support or
defend the appeal
Improper conduct during the inquiry or hearing
Failure to attend or be represented without good reason
You
are likely to risk a costs award against you if you have made an appeal against
a refusal of planning permission which was merely a repetition of a previous
appeal for a similar proposal that was dismissed. You would need to show there
had been a significant change in circumstances to avoid a costs award.
Similarly,
going to appeal against a refusal of planning permission for a development that
is clearly contrary to national planning policies will risk a costs
application; particularly if the Council can show that they warned you of the
likelihood of costs if you persisted with the appeal.
Withdrawal
of an appeal once the formal notifications of the inquiry or hearing date have
been issued may also result in a costs award unless good reasons are given. If
you intend withdrawing your appeal you should notify the Department immediately
by letter of fax to the case officer, quoting the appeal reference number.
The withdrawal at any time of an enforcement notice appeal
being conducted by way of the written representation procedure may incur a
costs award if done so without good reason.
It
is never appropriate to try and use the appeal system just as a delaying
tactic, or to wilfully try and cause the Council additional work.
Failure
to provide the proper paperwork when requested, or refusing to discuss the
appeal with the planning authority before the inquiry, when invited to do so,
can attract a costs application. Lack of professional representation could
therefore be a false economy!
The
decision on a costs application will not affect the outcome of an appeal. It is
an entirely separate matter.
An
application for costs must be made to the Inquiry Inspector at the inquiry or
hearing, normally before the end of the proceedings. In the case of a cancelled
inquiry or hearing an application should normally be made within 4 weeks of the
notification of the cancellation. An application after the appeal has finished,
or beyond the 4 week period, would generally require a proper justification as
to why an application was not made sooner.
There
is no formal method of making an application, although normally the Inspector
will ask the applying party (or parties) to set out their grounds for any claim
for his consideration. This will either be verbally to the Inspector at the
inquiry or in an exchange of written statements. Of course, the other party can
defend their actions and may even counter claim if they consider they have good
reason.
The
amount of the costs is not the total of all your inquiry costs- only that which
is considered to be over and above what was necessary to conduct the appeal had
it not been for the unreasonable behaviour of the other party.
The
costs decision is usually issued in a separate letter by the Inspector at the
same time as the appeal decision. This letter will not set the amount of the
costs award, which must be agreed between the parties; or failing that by the
Master of the Supreme Court Taxing Office.
A
decision on costs may be challenged in the courts on grounds of being legally
defective or not in accordance with the requirements of natural justice. Leave
to have the decision reviewed in the High Court should normally be made within
3 months, but do not leave it to the last minute.
In any potential costs situation you should seek legal
advice.
Further information is contained in Circular 8/93 [Welsh
Office 23/93] on Award of costs Incurred in Planning and Other (Including
Compulsory Purchase Order) Proceedings: March 1993.