The costs of planning – and related – appeals are normally borne by the parties that incur them. However, the Secretary of State may make an award of costs where a timely application is lodged, the party against whom the award is sought has acted unreasonably and that unreasonable behaviour has caused the applicant to incur unnecessary or wasted expense in the appeal process. (An award, therefore, does not necessarily follow the outcome of the appeal.) The court has held that the word “unreasonable”, in this context, is used in its ordinary meaning and not in the Wednesbury sense. Detailed guidance is set out in Circular 03/2009: Costs Awards In Appeals And Other Planning Proceedings.
In R (on the application of Shepherd) v Secretary of State for Communities and Local Government [2013] EWHC 359 (Admin) the claimant sought to quash the decision of an inspector to refuse a costs award in his favour. The local planning authority (“LPA”) had issued an enforcement notice against the claimant, requiring the cessation of tipping on land that he occupied. It was unequivocal in its terms, and gave no indication that planning permission might be considered on a conditional basis. The claimant had incurred expense in appealing against the enforcement notice. At a late stage in the appeal, the LPA had granted planning permission, subject to conditions, to a third party for the carrying out of tipping operations on the same land, thereby causing the appeal to collapse. On the facts, the court dismissed the claim, but the case draws attention to the following principles reflected in Part B of the Annex to Circular 03/2009.
(1) Costs are awarded in enforcement appeal cases on much the same basis as for planning appeals (2) Withdrawal of an enforcement notice after an appeal has been made is likely to put a LPA at risk of a costs award (3) Serving an earlier planning contravention notice – requiring provision of relevant information – may assist the LPA later (4) It will generally be considered unreasonable to issue an enforcement notice solely to remedy the absence of a planning permission (5) Where appropriate, the LPA’s stated reasons for withdrawing the enforcement notice during the course of an appeal will be examined in order to assess whether any material change of circumstances has occurred since the date of issue.
John Martin
