news : planning appeals - cost awards
As a result of changes to the planning appeals system, designed to improve its efficiency and effectiveness (see “Planning Appeals Shake-up” on our news page) the Government has issued new circular advice - Circular 03/2009 - entitled ‘Cost Awards in Appeals and Other Planning Proceedings’.
The guidance in the Circular applies to all appeals under the Planning Acts made on or after 6th April 2009 and now includes householder appeals decided by written representations. Amongst other matters the Circular sets out the general principles for awards of costs and updates previous advice and gives examples of circumstances in which an appellant or the Local Planning Authority are most likely to have an award of costs against them. Although the Circular has no statutory status and is for guidance only, it represents current national policy on the awarding of costs and it will be fully taken into account by the Secretary of State and Inspectors where costs are at issue in planning and planning-related proceedings.
An award of costs does not necessarily follow the outcome of an appeal; an unsuccessful appellant is not expected to reimburse the planning authority for its costs incurred in defending the appeal and equally the costs of a successful appellant are not borne by the planning authority.
Costs will normally only be awarded when:
· an application for award of costs is made at the appropriate time;
· it can be demonstrated that the Local Planning Authority or the appellant have acted unreasonably;
· this unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expense in the appeal process.
An application for costs for appeals determined at a public inquiry or an informal hearing should be made to the Inspector before the proceedings close. Early notification of an application, with a written statement or written skeleton argument, is encouraged. At the public inquiry or hearing the party applying for costs will be allowed to expand its submission, in light of events that have taken place.
For householder appeals the appellant normally has to make any application for costs at the same time as lodging the appeal, supported by a full statement of why an award of costs is considered justified. The other party, against whom the costs application has been made, will be able to comment on the case within a set timetable.
The Circular advises that planning authorities are at a risk of an award of costs against them if they prevent or delay development which should clearly be permitted, having regard to the development plan, national policy statements and other material considerations. If a planning authority cannot produce evidence to substantiate a reason for refusal, withdraws a reason for refusal at a late stage, fails to determine a planning application, mishandled the planning application, unreasonably refused to enter into pre-application negotiations or to provide reasonably requested information, then costs can be awarded.
Appellants can have costs awarded against them for pursuing an appeal for a proposal that is contrary to national planning policy or commissioning substantial new evidence which was not available to the planning authority at the time of their consideration of the planning application. Similarly appellants withdrawing an appeal, particularly after time and expense has been incurred by the Local Planning Authority in preparing its case, at a stage too late to cancel the public inquiry or hearing or not attending the inquiry/hearing, can have costs awarded against them.
The Circular also gives advice on costs involving enforcement notice and lawful development appeals. A copy of Circular 03/2009 can be downloaded from www.communities.gov.uk.
JWPC Ltd is happy to advise anyone that has had a planning application or lawful development certificate refused or an enforcement served on them, the likely chance of success on appeal and whether a claim for costs can be made against the Local Planning Authority.
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