Legal

PP 2009/127

Legal

Estates Gazette

18 December 2009

Practice points

Appeals, Costs, Planning

In April 2009, Communities and Local Government issued Circular 3/2009, Costs Awards in Appeals and other Planning Proceedings, which contained updated guidance on the award of costs in England in proceedings under the Planning Acts. For instance, costs awards are now available in respect of planning appeals irrespective of whether the appeal is intended to proceed by means of an inquiry, a hearing or written representations. The basis for a costs award is unreasonable behaviour causing the party applying for costs to incur unnecessary or wasted expense in the appeal process. (An award of costs, therefore, does not necessarily follow the outcome of the appeal.) The behaviour in question may be of a procedural or a substantive nature. The former relates to the process; the latter to the issues arising on the appeal.

Part B of the circular focuses on the most common types of case eligible for costs awards, with examples to illustrate circumstances in which an award is most likely to be made. In terms of awards against appellants where the unreasonable behaviour alleged is substantive, unreasonable pursuit of the appeal is common. This may occur, for example, where the proposal is clearly contrary to or flies in the face of national planning policy and no or very limited other material circumstances are advanced with supporting evidence. The appellant is also warned against commissioning substantial new evidence that was not made available at the time the planning application was made.

In a recent planning appeal (APP/G2245/A/09/2108624) that was dealt with by means of a hearing, the local planning authority successfully applied for costs, relying particularly on the guidance set out part B of the circular. The appellant had applied unsuccessfully to the authority for planning permission to erect 48 houses on a site within the green belt. There was no dispute between the parties that the proposal amounted to inappropriate development for the purposes of PPG 2: Green belts. The main issue was whether very special circumstances justified the development. The inspector concluded that no special circumstances outweighing the totality of the harm to the green belt had been clearly identified, and dismissed the appeal.

In applying for costs, the authority argued that the appellant had acted unreasonably in pursuing an appeal that had no reasonable prospect of success and also in introducing new evidence at a late stage in the appeal process. The inspector accepted those arguments, acknowledging specifically that this was a case where the proposal clearly flew in the face of national policy. He awarded the authority its costs.

John Martin is a freelance writer

In April 2009, Communities and Local Government issued Circular 3/2009, Costs Awards in Appeals and other Planning Proceedings, which contained updated guidance on the award of costs in England in proceedings under the Planning Acts. For instance, costs awards are now available in respect of planning appeals irrespective of whether the appeal is intended to proceed by means of an inquiry, a hearing or written representations. The basis for a costs award is unreasonable behaviour causing the party applying for costs to incur unnecessary or wasted expense in the appeal process. (An award of costs, therefore, does not necessarily follow the outcome of the appeal.) The behaviour in question may be of a procedural or a substantive nature. The former relates to the process; the latter to the issues arising on the appeal. Part B of the circular focuses on the most common types of case eligible for costs awards, with examples to illustrate circumstances in which an award is most likely to be made. In terms of awards against appellants where the unreasonable behaviour alleged is substantive, unreasonable pursuit of the appeal is common. This may occur, for example, where the proposal is clearly contrary to or flies in the face of national planning policy and no or very limited other material circumstances are advanced with supporting evidence. The appellant is also warned against commissioning substantial new evidence that was not made available at the time the planning application was made. In a recent planning appeal (APP/G2245/A/09/2108624) that was dealt with by means of a hearing, the local planning authority successfully applied for costs, relying particularly on the guidance set out part B of the circular. The appellant had applied unsuccessfully to the authority for planning permission to erect 48 houses on a site within the green belt. There was no dispute between the parties that the proposal amounted to inappropriate development for the purposes of PPG 2: Green belts. The main issue was whether very special circumstances justified the development. The inspector concluded that no special circumstances outweighing the totality of the harm to the green belt had been clearly identified, and dismissed the appeal. In applying for costs, the authority argued that the appellant had acted unreasonably in pursuing an appeal that had no reasonable prospect of success and also in introducing new evidence at a late stage in the appeal process. The inspector accepted those arguments, acknowledging specifically that this was a case where the proposal clearly flew in the face of national policy. He awarded the authority its costs. John Martin is a freelance writer