COSTS AWARDS IN PLANNING APPEAL CASES
All parties to an appeal normally meet their own expenses. However, the costs awards regime seeks to increase the discipline of parties when taking action within the planning system. One party to an appeal may possibly have to pay another party’s costs. This applies where a party has behaved unreasonably and caused another unnecessary or wasted expense in the process.
From 6 April 2009 the opportunity to apply for an award of costs applies to all appeals under the Planning Acts, including householder appeals which are determined by written representations. Costs do not necessarily follow the appeal outcome.
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
Advertisement consent appeals (at a hearing)
Either party to an appeal 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; another might be making an appeal in circumstances where there is no likelihood of the decision being altered – e.g. inappropriate development in the Green Belt.
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.