Key points
• Costs in planning appeals do not follow the event
• But an award may be made where unreasonable behaviour occurs
• The means of challenging such an award is by judicial review
Once more we return to the topic of planning appeals. Costs do not follow the event, where a planning appeal has been made under section 78 of the Town and Country Planning Act 1990 (the 1990 Act). The parties involved normally meet their own expenses. That said, there is a power for costs to be awarded where there has been “unreasonable behaviour” by the party claimed against.
Those entitled to apply for an award are the appellant, the local planning authority (LPA) and any interested third party. Awards may be full or partial. The fact that a costs application has been made will in no way affect the actual appeal decision.
Awards can be made irrespective of whether the planning appeal is dealt with by written representations, a hearing or an inquiry. However, an award is entirely at the discretion of the inspector or the Secretary of State, as the case may be. He or she will normally make an award if: (a) a party has made a timely application for an award; (b) the party against whom the award is sought has acted unreasonably; and (c) the unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expense in the appeal process.
Unreasonable behaviour
The courts have held that, for the purpose of costs awards, the word “unreasonable” is used in its ordinary meaning. Accordingly, “unreasonable behaviour” is capable of encompassing a multitude of planning sins. This can extend from an appellant pursuing an appeal that plainly has no reasonable prospect of success, or an LPA failing to produce evidence to support its reasons for refusing planning permission, to purely procedural matters. The latter might include failure to attend, or be represented at, a hearing or inquiry without good reason, or late submission of statements or proofs of evidence. Causing a hearing or inquiry to be adjourned, or unnecessarily prolonged, may also qualify.
The governing statutory provisions are section 250(5) of the Local Government Act 1972 and section 320(2) and Schedule 6 of the 1990 Act. Central government guidance is set out in Circular 03/2009 – Costs Awards in Appeals and Other Planning Proceedings.
Challenging a costs award
The decision in Golding v Secretary of State for Communities and Local Government [2012] EWHC 1656 (Admin) both illustrates typical circumstances in which an award of costs is likely to be made and also deals with the appropriate method of challenge to a costs award. There, the claimant had appealed unsuccessfully against the refusal of the LPA to grant her planning permission to convert a holiday caravan site to one for permanent use by caravans on 11 pitches for occupation by gypsies or travellers.
At the conclusion of the inquiry, the inspector made costs awards against the claimant in favour of the LPA and a neighbouring site owner (as an interested party). He took the view that the claimant had behaved unreasonably in a number of ways. Costs had been wasted unnecessarily on the first day of the inquiry when the claimant’s counsel had been unable to attend because of a court commitment. (The claimant did not attempt to instruct alternative counsel.) Additionally, the claimant had been late in submitting an ecology report, resulting in wasted costs. There had then been a similar problem with submission of her noise report.
The claimant sought to challenge those awards under section 288 of the 1990 Act. The court acknowledged that section 288 applied to any action on the part of the Secretary of State as is mentioned in section 284(3) and that includes “any decision on an appeal under section 78”. However, it held that this was an inappropriate means of challenge to an associated costs award. The claim should have been brought by means of judicial review. The words “on an appeal” restricted the availability of an application under section 288 to substantive orders only on the appeal. In other words “on an appeal” did not mean “arising out of” or “connected with” an appeal.
The judge pointed out that this view was supported both by earlier authority and the commentary in the Encyclopedia of Planning Law and Practice. Finally, he said that the judicial review route made particular sense in such a case, because it involved the very useful first hurdle of permission, which any party seeking to challenge a costs award would need to surmount before it could take matters any further.
Notwithstanding this, having made his ruling on the applicability of section 288, the judge, at the request of both parties, treated the application as an application for judicial review. Having formally granted permission, he was then able to determine the claim as a matter of substance, and he dismissed it.
Martin Edwards is a specialist planning barrister in 39 Essex Street Chambers and John Martin is a freelance writer
