If you are refused planning permission or are served with an enforcement notice, you have a right of appeal to the planning inspectorate.
Appeals themselves are free, but both sides will incur some costs in preparing their appeals. You might hire a planning consultant to write an appeal statement and to represent you in the appeal, or you may need to pay for some plans from an architect or reports from a specialist.
The appeal inspector (the person deciding your appeal) has the power to require one party to reimburse the other side for the costs associated with the appeal. Costs awards are relatively rare – the general principle is that the parties to an appeal must cover their own costs. However, either party can apply for a costs award if they believe the other side has behaved unreasonably, as long as they can show that this behaviour has led to wasted expense. The decision on a costs application is made by the same inspector who decides the appeal itself.
Winning Your Appeal Does Not Guarantee a Costs Award
This is a fundamental point: the fact that you, as the appellant, win your planning appeal and are granted planning permission does not automatically entitle you to recover your costs. Councils can reasonably refuse applications that are ultimately allowed on appeal, provided their reasons for refusal were based on legitimate planning concerns.
Costs awards are based on unreasonable behaviour, not simply on the merits of the planning case or who ultimately wins. An inspector may decide that planning permission should be granted but not conclude that the council acted unreasonably in refusing it in the first place.
What Kind of Behaviour is Considered Unreasonable?
Unreasonable behaviour can come from either the council or the appellant. Councils behave unreasonably when they reach a decision that is clearly unreasonable, that is they take a position that no reasonable person would take.
They are also liable to costs if they do not follow the correct appeal procedure, if they fail to provide information to the inspector on time, for example, or they fail to turn up for the site visit.
They are vulnerable to a costs award if they make elementary mistakes in their assessment of the application (I have known case officers to confuse one neighbour for another or suggest that an extension will cause a loss of light to a neighbour’s conservatory when none of the neighbours have a conservatory).
Costs are also sometimes awarded when decisions are not consistent; if a council refuses an application having granted permission to one of the neighbours for the same kind of development, or they refuse permission on grounds that were not part of their refusal of an earlier application for more or less the same development on the same site.
While councils may sometimes refuse applications that they expect to be approved on appeal, a practice referred to as ‘planning by appeal’, this alone doesn’t automatically make their initial refusal unreasonable for the purpose of a costs award. The key is whether their reasons for refusal were based on legitimate planning grounds.
The Person Appealing Can Also Be Held Liable for Costs
Appellants can also behave unreasonably and potentially be liable for the council’s costs. Examples include pursuing hopeless appeals where there are clear, obvious reasons why planning permission should be refused. This is particularly true where the proposal involves clear breaches of adopted policy without compelling justification.
You can also be held liable for the council’s costs if you submit an appeal for the exact same development that had already been considered and refused through a previous appeal.
Costs awards are also common where appellants make procedural mistakes, such as changing the case significantly during the appeal process, introducing new evidence during the appeal that could have been provided earlier or failing to turn up for the site visit.
What Costs Can You Recover?
If a costs award is made in your favour, it will generally cover the direct costs of appealing only. The award is intended to help you recover your genuine additional expenses incurred due to the unreasonable behaviour.
Costs awards do not typically include compensation for lost income as a result of any delays caused by the council or the cost of the original planning application fee. Most of my clients just recover my fees when costs are awarded.
Remember, the focus is on recovering the expenses directly attributable to the appeal process and the unreasonable behaviour, not compensating for broader losses or initial application costs.
Don’t Seek Costs Unless You Have a Good Case
Many of my clients are so angry at the way the council behaved during the application process, and particularly at their final decision to refuse the application, that they are very keen to seek costs.
However, applying for costs where they are not likely to be awarded to you is counterproductive.
Applying for a costs award might actually incentivise the case officer to work much harder to justify the initial refusal of planning permission rather than risk the council having to pay out. Case officers might otherwise put less effort into fighting an appeal.
Applying for costs where you do not have a strong case can also irritate the appeal inspector. Requiring them to assess a costs award mean you are placing an extra burden on them, and making weak arguments could make the inspector doubt your arguments in the appeal itself.
For most appellants, the priority is winning the appeal and getting planning permission. The matter of costs (which might only amount to your planning consultant’s fee for preparing the appeal) is often a secondary concern.
Seek Professional Advice
Given the complexities of planning appeals and the specific requirements for costs applications, it is best to seek professional advice.
A qualified planning consultant, especially one with experience in handling appeals and costs awards, can provide invaluable assistance. They understand how planning departments operate, how decisions are made, and can assess whether your application or the council’s refusal was sound.
A good planning consultant can help you assess whether there is a realistic chance of winning a costs award and guide you through the process of identifying unreasonable behaviour, documenting it, and preparing the formal written application.
Attempting a costs application without professional representation can be difficult and you may be poorly served if you fail to present a convincing case backed by sufficient evidence.
Recent Successes
I have had some successes winning costs awards for clients. For example, in a case in Newham, an inspector found the council “failed to clearly show why the development should not proceed and has not substantiated the reason for refusal” and awarded full costs to the appellant.
Similarly, in an appeal case for a HMO in Leeds, the council’s refusal was so poorly justified that they had to pay the appellant’s costs for the entire appeal process.
For more information on how and when costs are awarded, check out the government’s Planning Practice Guidance.