Where a planning appeal has been made under section 78 of the Town and Country Planning Act 1990, the parties involved normally meet their own expenses. There is, however, a power for costs to be awarded. 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. The general principle is that costs should be awarded by an inspector where they have been sought timeously, where the party against whom the award is sought has acted unreasonably and where the unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expense in the appeals process.
One question faced by the court in Golding v Secretary of State for Communities and Local Government [2012] EWHC 1656 (Admin) went as to the appropriate method of challenge for a costs award made by an inspector following a planning appeal. The claimant had appealed unsuccessfully against the refusal of the local planning authority (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 had made costs awards against the claimant in favour of the LPA and a neighbouring site owner, which had taken part in the appeal as an objector. (The claimant, for instance, had failed to serve ecological evidence and noise reports on time.) The claimant sought to challenge those awards under section 288 of the 1990 Act.
The court held that this was an inappropriate means of challenge, and that the claim should have been brought by means of judicial review. The judge acknowledged that, by virtue of section 284(3) of the 1990 Act, reliance could be placed on section 288 in relation to a decision “on an appeal under section 78”. However, he concluded that the words “on an appeal” restricted its availability to substantive orders alone. In other words “on an appeal” did not mean “arising out of” or “connected with” an appeal. Furthermore, the judicial review route made particular sense in such a case because it involved the very useful first hurdle of permission.
John Martin is a freelance writer
