Claimant argued for planning appeal costs based on unreasonableness

On average applications for costs occur in just 4% of planning appeals handled by written representation. The overall rate of success is about 40% for those applications.

Costs Circular 03/2009 sets out the policy framework for costs issues.

The main principles of the Circular are in paragraph A3.

The emphasis is on good behaviour and good practice.

The conditions are in paragraph A12 of the Circular:

Costs will normally be awarded if:

– a party has made a timely application for an award of costs;

– the party against whom the award is sought has acted unreasonably; and

– the unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expense in the appeal process.

That unnecessary or wasted expense may be either:

– the whole of the expense because it should not have been necessary for the case to be determined by the Secretary of State or his appointed Planning Inspector, or

– part of the expense because of the manner in which the relevant party behaved during the procedures

Paragraph A22 gives a general sense as to what “unreasonable” means:

The most common examples involve failure to comply with procedural requirements or failure by the planning authority to substantiate a reason given for refusing planning permission.

The Court of Appeal case of Lochailort Investments Ltd v Secretary of State [2014] concerned the costs of a planning appeal to the Secretary of State determined by written representations.

The appeal followed from a planning application to demolish an existing dwelling in a village near Bath and to replace it with three new residences.

The narrow majority decision of the local planning authority to refuse the application ran against the recommendations of its planning officers.

That happens quite a lot nationally.

On appeal, the planning inspector was not satisfied that the local planning authority’s grounds for refusal were sustainable. So the appeal was allowed and the Secretary of State granted planning permission, subject to conditions.

The Claimant’s planning consultants said the reasons for refusal had relied on general, vague and “very sparse” evidence. The appeal site was visible from inside the local conservation area, though not significantly, and the issue had not been such that the local planning authority’s own conservation officer had objected. There had been no substantial evidence that the new development would have a harmful visual impact. There had been no analysis of the degree and nature of the new properties overlooking the Old Vicarage. The consultants also picked up on the local planning authority’s mistaken evidence that The Old Vicarage was a Grade II listed building. And in fact the highway authority had found that there was no evidence to contradict their view that there would be no significant increase in vehicular traffic along the lane.

The planning inspector found that appellant’s application for an award of costs relied substantially on the Council Committee’s failure to accept the recommendations of its planning officers to grant permission. The planning inspector then gave four short paragraphs of grounds on which that non acceptance might have been reasonable. The Court of Appeal found this explanation of the planning inspector’s decision not to award the claimant costs marginally insufficient to explain it to a developer and quashed the inspector’s decision not to award the claimant costs remitting the issue back to the Secretary of State.

This blog has been posted out of general interest. It does not replace the need to get bespoke legal advice in individual cases.