Should I apply for an award of costs during a planning appeal?

Should I apply for an award of costs during a planning appeal? This is question we’re asked regularly…

So you’ve found yourself in the midst of a planning appeal – but have you considered applying for an award of costs as well? An application for costs is a common tactic used in England’s planning system, but its implications can be complex. In this article, we’ll break down the pros and cons of seeking costs to help you make the best decision.

Should I Apply for Costs? Factors to Consider

Applying for costs can feel like the logical next step if you feel an appeal was unjustified or handled poorly. However, it’s not a step to take lightly.

Consider these key factors:

Merits of your case – Do you have a strong basis that an appeal or behaviour lacked reasonable grounds? Cost applications are less likely to succeed without clear evidence of unreasonable conduct.
Cost of pursuing costs – Pursuing costs could require additional fees that may not be reimbursed if you’re unsuccessful. Weigh whether costs of pursuing costs outweigh potential benefits.
Relations with LPA – Seeking costs can sour your relationship with the local planning authority (LPA). Consider if maintaining productive working ties is also a priority.
Damage to reputation – Applications where costs are refused could undermine your credibility and reputation if seen as frivolous. Tread carefully.
Precedent and future appeals – A refusal may also establish an unfavourable precedent if you’re involved in ongoing or repeat appeals.

Who can apply for an award of costs?

In England, the following parties can make an application for an award of costs in a planning appeal:

The Appellant – This is the person/organisation bringing the appeal, usually because their planning application was refused by the local planning authority. They can apply for costs incurred in bringing the appeal if they believe the LPA acted unreasonably in its decision making or procedures.
The Local Planning Authority (LPA) – This is the body that originally determined the planning application, usually the local council. If an appeal is allowed against their decision, the LPA can apply for costs from the appellant if it believes the appeal lacked planning merit or was handled unreasonably.
Third parties – Any individual or organisation that joined an appeal as an interested party is also entitled to apply for a costs award. This includes parish councils, residents/amenity groups, developers and statutory consultees. They need to have substantively participated in the appeal process.

So in summary – the appellant, LPA or any third party direct participant in an appeal can potentially submit an application for costs to the Planning Inspectorate if they believe unreasonable or improper conduct by another party led to unnecessary expense.

Be aware that if an application for an award of costs is made against you and the application is allowed you will have to pay the relevant party.

Also note that a Planning Inspector can award costs against a party even if an application for costs is not made, although this rarely happens.

When Does a Costs Application Have Merit?

According to the Planning Practice Guidance on awarding costs in planning appeals, the main grounds for making an application are:

Unreasonable behaviour – Such as not providing evidence on time, failing to communicate, not meeting deadlines set down in published timetables without good reason. This caused another party to incur unnecessary or wasted expense.
Unreasonable substance of the appeal/application – Claims must be carefully evidenced and supported by a thorough assessment and understanding of the issues on the appeal.
Failure to follow recommendations from an earlier report – Not addressing complaints or issues raised, resulting in multiple applications, amended plans or iterative appeals.
Providing misleading or inaccurate information – Causing delay, confusion or significant prejudice to the other party or parties due to its effect on the issues.
Changing the case during the appeal – Unless good reason made it necessary, amendments or submitted evidence should have been provided earlier.
Withdrawing an appeal – If withdrawal follows substantial written representations, it may be considered unreasonable.

The guidance notes you must clearly demonstrate a cost was incurred unnecessarily due to another party’s actions.

How to Maximise Your Chances

If moving forward, focus your application tightly on substantiating:

Grounds regarding conduct were clearly unreasonable;
Costs incurred were necessary and directly resulted from unreasonable actions; and
Any sum requested is proportionate to level of unreasonable behaviour. This could mean an application for a partial award of costs.

Here are some tips for demonstrating that a cost was incurred unnecessarily due to another party’s actions in a costs application:

Provide a timeline of communication/submissions and specifically point out where opportunities were missed to resolve issues earlier.
Cite relevant correspondence/evidence that shows the other party was made aware of concerns but failed to address them properly prior to the appeal.
Produce copies of repeated/amended plans, reports or responses that could have been consolidated with earlier cooperation.
Compare your actions/timelines to usual/expected practices and procedures to show where the other side caused delays.
Get written statements from professionals like solicitors, planning consultants outlining additional time billed as a result of the unreasonable behaviour.
Refer to any precedents set by previous appeal decisions in similar cases regarding acceptable conduct.
Highlight how the unreasonable actions directly resulted in you having to undertake additional work/expense.
Demonstrate your attempts to raise issues/resolve them ahead of the appeal through correspondence records.

Clear tracing of direct costs to specific lapses or omissions in process/procedure strengthens the case for unnecessary expense. However always remain respectful and solutions-focused to avoid undermining your legitimate concerns. With preparation and nuance, a costs application can help remedy improper process – when used judiciously.

Who makes the decision?

The Planning Inspector dealing with the planning appeal makes the decision to allow full or partial costs, or to refuse the application. Just because you may have an appeal allowed does not automatically mean your application for costs would be also allowed. Generally both the planning decision and the application for an award of costs will be issued together by the Planning Inspectorate.