The basic principle is that parties involved in planning appeals normally meet their own costs. However, the provisions of section 250(5) of the Local Government Act 1972, applied by sections 320, 322 and 322A of, and Schedule 6 to, the Town and Country Planning Act 1990 establish a regime for the making of costs awards in, inter alia, planning appeals. Unlike civil litigation, this is not a regime where costs follow the outcome. An award is made only where it has been established that (a) the party against whom it is made has acted unreasonably and (b) as a result of that unreasonable behaviour the party in whose favour the award is made has incurred unnecessary or wasted expense. The term “unreasonable” in this context is used in its ordinary meaning and not, for instance, in the sense of “Wednesbury unreasonable”. Central government guidance is now set out in Planning Policy Guidance. Where an application is made, challenge to the inspector’s decision lies by way of a claim for judicial review.
In R (on the application of Lochaillort Investments Ltd) v Secretary of State for Communities and Local Government [2014] EWHC 3358 (Admin), guidance on costs awards at the relevant time was contained in Circular 03/09: Costs Awards in Appeals and other Planning Proceedings. Nothing, however, hangs upon that fact. The claimant had successfully appealed against the refusal of the local planning authority (“LPA”) to grant planning permission for the demolition of an existing dwelling, and the erection on the site of three new dwellings. (The LPA’s planning committee had refused to accept the recommendations of its officers, and the inspector was not satisfied that the LPA’s grounds for refusal could be sustained.)
The claimant applied for an award of costs, but the inspector refused to make the order sought. She concluded that the LPA had adequately addressed the matters in question, and that unreasonable behaviour had not been demonstrated. The claimant then sought judicial review of her decision, submitting essentially that the way in which the inspector articulated her reasons left uncertainty as to whether she had applied the right principles, and had engaged with the process required by Circular 03/09.
The court recognised that the claimant’s challenge was, in substance, a “reasons challenge”. Accordingly, it applied the approach set out in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, and on that basis held that the inspector’s decision letter did fall short of acceptability. It quashed the decision to refuse a costs award, and remitted the matter to the inspector for further consideration.
John Martin is a planning law consultant
