Applying for an award of costs at appeal

An award of costs at appeal turns on behaviour, not on who wins. A successful appellant with a well-argued case gets no costs if the authority defended its refusal properly, and an appellant who loses can still recover costs where the council behaved unreasonably on a discrete issue. For anyone preparing a costs application in a planning appeal, that distinction is the whole discipline: you are building a case about conduct and wasted expense, running alongside the case about planning merits.

What an award of costs covers

An award requires the losing party on the costs question to pay some or all of the other party's costs of the appeal process. It covers professional fees, the preparation of evidence and attendance, so far as those costs were unnecessarily incurred because of the behaviour complained of.

It does not cover the application fee you paid to the council, which is a different matter calculated on floorspace and site area, and it does not cover the cost of the original application work. Nor does it compensate for delay, lost development value or financing cost. The award is about the appeal.

The statutory basis sits in two places. For inquiries and hearings, section 250(5) of the Local Government Act 1972 applies through section 322 of the Town and Country Planning Act 1990. For appeals decided without an inquiry or hearing, section 322C of the 1990 Act supplies the power, which is why written representations appeals can also produce an award.

Unreasonable behaviour as the test

The Planning Practice Guidance on appeals sets the test in two limbs. There must be unreasonable behaviour, and that behaviour must have caused the party applying to incur unnecessary or wasted expense.

Both limbs need evidence. An application that establishes the first without the second fails, because there is nothing to compensate. An application that shows wasted expense arising from an honest disagreement also fails, because disagreement is not unreasonable behaviour.

The guidance divides unreasonable behaviour into procedural and substantive. Procedural conduct concerns the running of the appeal. Substantive conduct concerns the planning merits of the position a party took and maintained.

Examples the guidance treats as unreasonable

For a local planning authority, the recurring categories are recognisable to anyone who has run appeals.

• Failing to produce evidence to substantiate a reason for refusal
• Making vague or generalised assertions about the effect of a proposal without evidence
• Refusing a scheme that plainly accords with the development plan where no material considerations indicate otherwise
• Failing to review the case promptly after a relevant change, such as a new appeal decision on a comparable site or the adoption of a new policy
• Determining a case differently from a materially similar one without explanation
• Adding a reason for refusal late, or withdrawing one so late that the appellant has already paid for the evidence to answer it

The last two are where most successful applications live. A reason for refusal withdrawn in the authority's appeal statement, after the appellant has commissioned a noise survey or a daylight assessment to answer it, is the clearest case of wasted expense there is. Keep the invoice.

Where a reason for refusal was added by members against officer advice and the authority then produces no evidence for it, that too falls squarely in the guidance. The committee minute and the officer report are your evidence, and a well-prepared Planning Statement submitted with the original application helps because it shows the policy case was before the authority all along.

Timing of the application during the appeal

Make the application at the right point and in writing, because a late application is usually refused on that ground alone.

1. At an inquiry or hearing, make the application orally before the close, and hand in a written note setting out the grounds.
2. In written representations, make it in writing within the appeal timetable, by the final comments stage at the latest and before the decision is issued.
3. Set out which behaviour you rely on, which limb of the guidance it falls under, and what expense it caused.
4. Quantify the expense in outline, by reference to invoices or fee quotes, even if the exact sum is left to assessment.
5. Serve a copy on the other party so they can respond, since they are entitled to do so.

The inspector deals with costs either in the appeal decision or in a separate costs decision issued alongside it. There is no appeal against a costs decision. Judicial review is the only challenge, and it is rarely proportionate.

Partial awards and how they are assessed

Partial awards are common and are often the realistic objective. Where only part of a party's conduct was unreasonable, the inspector can award the costs attributable to that part, described in the decision as the costs thrown away by the withdrawn reason or the postponed hearing.

The decision establishes entitlement. It does not fix the figure. The parties are expected to agree quantum between themselves, and where they cannot, the costs are referred for detailed assessment in the Senior Courts Costs Office. That process has its own cost, so a pragmatic settlement at eighty per cent of a modest sum usually beats an assessment.

Keep the records that make agreement possible. Time records by issue rather than by week, specialist invoices tied to specific refusal reasons, and a short schedule showing what would not have been spent had the authority behaved differently.

Costs against an appellant

The regime runs both ways, and consultants advising on a weak appeal should say so in writing.

The guidance treats as unreasonable, among other things, pursuing an appeal with no reasonable prospect of success, failing to provide information the Inspectorate has asked for, failing to attend a site visit or hearing, introducing new grounds late, and appealing against conditions that are plainly necessary and reasonable. Vexatious or repetitive appeals fall into the same territory.

The practical risk is concentrated in two situations. An appeal lodged to buy time on a site facing enforcement, and an appeal against a refusal that the appellant knows is unanswerable on the development plan. Both attract applications from authorities, and inspectors do grant them.

Interested parties can also apply for costs, and in limited circumstances can have costs awarded against them, though this is uncommon in practice.

Evidence needed to support the application

Treat the costs application as a separate evidential exercise from the appeal. The documents that win it are rarely the documents that win the appeal.

What tends to persuade: the decision notice and the officer report, showing what the authority relied on and when. The committee minute where members departed from the recommendation. Correspondence in which you asked the authority to substantiate a reason and it did not. The appeal statement where a reason was withdrawn, with the date. Invoices and fee notes for the evidence rendered unnecessary. And a one-page chronology tying each item to a date.

What tends not to persuade: assertions that the council was obstructive, complaints about officer conduct unconnected to the appeal, and arguments that the refusal was simply wrong. Being wrong is not unreasonable. Maintaining a position with no evidence is.

One honest uncertainty. Inspectors vary in how readily they find substantive unreasonableness, and the same facts can produce different outcomes, so treat a costs application as worth making on strong facts rather than as a reliable part of the appeal budget.

If you are putting the evidence base together for the appeal itself, check which reports the case is likely to need and see PlanScope pricing before you commission the specialists.

This is general guidance, not legal advice. Check the position with a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.