Award of costs in planning appeals: when they are made

An award of costs in a planning appeal is not a reward for winning. The Planning Inspectorate awards costs only where a party has behaved unreasonably and that behaviour has put another party to unnecessary or wasted expense. Both limbs have to be satisfied. A council can refuse an application, lose the appeal on the planning merits and still face no costs liability, provided it defended the decision properly and on time.

The power sits in two places. For inquiries and hearings it comes from section 250(5) of the Local Government Act 1972, applied by Schedule 6 to the Town and Country Planning Act 1990. For written representations it comes from section 322C of the 1990 Act. The Planning Practice Guidance on appeals sets out how inspectors use that power, and its wording is what you will see quoted back at you in a costs decision.

When costs can be awarded

Costs applications can be made in section 78 appeals, enforcement appeals, listed building consent appeals, lawful development certificate appeals and called-in applications. An appellant can apply against the local planning authority. The authority can apply against the appellant. A third party who has been put to expense, typically a rule 6 party at an inquiry, can also apply and can have an application made against them.

What is recoverable is the expense of the appeal itself. Not the cost of preparing the original application, not abortive design fees, not the value of the delay to the scheme. An inspector who agrees that a council handled the application badly will still refuse costs if the badly handled part did not add to the appeal bill.

The starting position is that each party pays its own costs. An award is the exception, and the applicant has to show why this case falls outside the norm.

What unreasonable behaviour means

The guidance uses unreasonable in its ordinary sense rather than the narrower public law sense. You do not have to show that a decision was perverse. You have to show that a competent authority, or a competent appellant, would not have acted as this one did.

Disagreeing with the inspector is not unreasonable. Losing on a matter of planning judgement is not unreasonable. Refusing an application against officer advice is not unreasonable either, so long as the members' reasons were properly articulated and then defended with evidence at appeal. What turns a defensible position into an unreasonable one is usually the absence of anything behind it.

And the causal link matters as much as the behaviour. If a council drops a reason for refusal the week before an inquiry, the wasted expense is the cost of the evidence prepared to meet that reason, not the cost of the whole appeal.

Substantive and procedural grounds

The guidance splits unreasonable behaviour into two families. Substantive grounds go to the planning case a party ran. Procedural grounds go to how they ran it.

The most common substantive award against a council is the one where a reason for refusal asserts harm to character and appearance, or to highway safety, and the appeal statement then produces nothing beyond a restatement of the same assertion. Officers sometimes forget that a reason for refusal has to be tied to a policy and then evidenced. If the development plan policy is cited but its test is never applied to the scheme, the council is exposed. The same applies where a council relies on a policy the appeal shows to be out of date, or on a neighbourhood plan whose weight has been misjudged. The weight a plan carries is itself a matter that has to be reasoned, and our note on how much weight a neighbourhood plan carries covers the tests inspectors apply.

Procedural awards are more even-handed. Appellants lose costs for late-submitted drawings that force an adjournment as readily as councils lose them for missed deadlines.

Making the application and the deadline

A costs application has to be made in writing, has to say which behaviour is complained of, and has to explain what expense that behaviour caused. Generalised complaints about the council's attitude do not survive.

1. For an inquiry or hearing, make the application in writing in advance where you can, and confirm it orally before the event closes. Applications made after the close are entertained only in exceptional circumstances.
2. For a written representations appeal, make it within the appeal timetable and no later than the deadline for final comments.
3. Serve it on the other party, who then has an opportunity to respond.
4. Expect the costs decision to be issued alongside, or shortly after, the appeal decision, as a separate document.

Keep the application short and evidenced. Attach the correspondence that shows the deadline, the withdrawal or the absence of evidence. An inspector reading twenty pages of grievance will find the one sustainable point harder to see than one reading two pages with three exhibits.

Partial awards and how the amount is settled

Partial awards are common and are often the realistic target. If a council ran three reasons for refusal and only one of them collapsed for want of evidence, the inspector can award the costs attributable to that reason alone. Ask for a partial award in the alternative rather than betting everything on a full one.

The costs decision settles liability in principle. It does not fix a figure. The parties then agree the sum between themselves, working from the applicant's schedule of costs. Where agreement fails, the amount goes to detailed assessment by the Senior Courts Costs Office, which is a slow and expensive route that neither side usually wants.

This is why contemporaneous time recording matters. A schedule built from memory six weeks after an inquiry invites argument about every line.

Costs in written representations and householder appeals

Costs have been available in written representations appeals since 2013, and the same behavioural test applies. What differs is the evidence base. There is no inquiry transcript, so the paper trail is everything: the appeal statement, the questionnaire, the officer report and the correspondence.

Householder appeals run on an expedited written timetable in which neither side may introduce evidence that was not before the council. That restriction cuts both ways. It removes the usual late-evidence ground, and it makes a council's failure to defend a reason for refusal more visible, because there is nothing new to hide behind.

Reducing your own exposure

For agents, the discipline is to keep the appeal statement tethered to the reasons for refusal and to the development plan. Address each reason, cite the policy, apply its test. If a ground of appeal has become unarguable, withdraw it in writing and early. A withdrawal four months out costs nothing. The same withdrawal four days out is a costs application waiting to be written.

For authorities, the discipline is evidential. Every reason for refusal should be capable of being supported by a named policy, an objective analysis and, where the harm is technical, a consultee response or a report. Where members refuse against officer advice, the committee minute should record reasoning that can be defended, and someone should review the case again once the appeal statement is due.

Both sides benefit from getting the material considerations straight at application stage rather than at appeal, and our explainer on material considerations and what the law allows sets out which matters can properly carry weight. The same goes for the statutory starting point in section 38(6) and the development plan, which is where most substantive costs awards ultimately bite.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. If you are assembling the evidence base for an application and want the policy citations in place before a refusal ever arises, enter your postcode on PlanScope to see which reports your site is likely to need.

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