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HOME PAGE | CONTENTS | APPEALS
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.