Costs applications for procedural unreasonableness at appeal

Appeal costs turn on unreasonable behaviour that caused the other side wasted expense. Not on who won. An appellant can succeed comprehensively and get nothing, and an appellant can lose and still recover the cost of dealing with a reason for refusal the authority abandoned three weeks before the hearing.

Procedural unreasonableness is the more workable ground of the two, because conduct is documented. Emails are dated, directions have deadlines, and a withdrawal has a timestamp. Substantive unreasonableness asks an inspector to find that the authority's planning judgement crossed from wrong into unreasonable, which is a higher bar and a rarer finding.

When costs are available at all

The power to award costs in planning appeals comes through the statutory framework applying the local government costs provisions to appeal proceedings, and the approach is set out in the Planning Practice Guidance on appeals.

Since the arrangements were extended, applications can be made in every appeal procedure, including written representations. Either party can apply. So can a section 106 appeal party or an enforcement appellant.

Three conditions have to be satisfied. The behaviour complained of was unreasonable. It caused the applicant to incur expense. And that expense was unnecessary or wasted. Miss the third and the application fails even where the conduct was plainly poor, because there is nothing to compensate.

That third limb is the one most applications skate over. An authority that files its statement a week late has behaved badly, and if nobody did any extra work in response, there is nothing to award.

Procedural against substantive unreasonableness

Keep them separate in the application, because the evidence differs.

Procedural conduct that the guidance treats as capable of being unreasonable includes failing to comply with a direction or a timetable, introducing evidence so late that the other party cannot respond properly, withdrawing an appeal or a reason for refusal at a point that wastes preparation, failing to provide information the other side reasonably needs, and not attending a hearing or inquiry without explanation.

Substantive conduct is a different argument. It includes preventing development that should clearly have been permitted, refusing on grounds with no supporting evidence, imposing a condition that was plainly unnecessary, or maintaining an objection that the authority's own consultees did not support. Those cases are won on the authority's own documents, and highway safety refusals and the evidence that answers them shows how thin some reasons for refusal turn out to be once the consultee position is read carefully.

Behaviour that has attracted awards

Describing patterns rather than individual decisions is more useful, because every award turns on its own facts and inspectors are careful not to treat previous awards as precedent.

The pattern that recurs most is late abandonment. An authority maintains a reason for refusal through the questionnaire and the statement, the appellant instructs a specialist to answer it, and the reason is withdrawn shortly before the event. The wasted expense is identifiable: that specialist's fee and the time spent on that part of the statement.

A second pattern is reasons for refusal that the authority never supports with evidence. A refusal citing harm to a protected species, with no ecological evidence and against the officer's recommendation, puts the appellant to the cost of a survey that a properly reasoned decision would not have required.

A third is procedural drift: directions ignored, deadlines missed, documents served in the wrong format, questions unanswered until the appellant has chased three times. Individually small, cumulatively expensive, and the reason to keep a chase log from the start.

Awards are also made against appellants. Pursuing an appeal with no reasonable prospect, withdrawing at the last moment, failing to serve evidence in support of a pleaded ground, or appealing a refusal the appellant had already agreed to address by amendment. The route that avoids most of that risk is deciding early whether the application should be revised instead, which is what makes withdrawing an application before refusal a commercial decision rather than an admission.

Timing an application during the process

Timing is where good applications die.

In an inquiry or hearing, make the application orally before the close, and hand up a written version. In written representations, make it in writing by the deadline for final comments. The Inspectorate's procedural guidance for the relevant appeal type sets out the deadlines, and they are applied.

Make it even where you expect to lose the appeal. The two are decided separately, and an application not made cannot be made later.

Where the unreasonable behaviour happens after the deadline, say so and explain why the application could not have been made earlier. That is the narrow route for a late application, and it needs the chronology attached.

Evidence of wasted expense

Quantify. An application asserting that the appellant has been put to considerable additional expense will be treated as a complaint rather than a claim.

Set out four things. What work was done that would not otherwise have been done. Who did it and at what rate. Over what period. And what caused it, tied to a dated document.

Keep it proportionate. You are not producing a detailed bill at this stage, because the decision establishes entitlement and the sum is agreed afterwards or assessed by the court. What you are proving is that identifiable expense was caused by identifiable conduct.

As an illustrative example, where an authority maintains a reason for refusal about noise from a plant enclosure until eleven days before a hearing and then withdraws it, the wasted expense is the acoustician's fee for the appeal report, the time spent on that section of the statement of case, and the acoustician's cancelled attendance. Three invoices and a date. That is a partial award application with a real prospect.

Costs against an appellant

Authorities apply more often than they used to, and the grounds mirror the ones appellants use.

The most common is an appeal pursued without evidence. In enforcement appeals particularly, pleading a ground and then serving nothing to support it puts the authority to the cost of preparing to meet it. Dropping grounds at the hearing door has the same effect.

Withdrawal is the other exposure. Withdrawing an appeal after the authority has produced its statement, arranged witnesses and booked a venue can be unreasonable if the reason for withdrawal was known earlier. Withdraw as soon as the decision is taken, and explain why.

The defensive habit is simple. Plead only what you will evidence, comply with every direction, and tell the other side promptly when something changes. A well prepared case with a properly structured Planning Statement behind it rarely generates costs exposure, because there is nothing late and nothing unsupported in it.

What a partial award looks like

Most awards are partial, and framing the application that way makes it more likely to succeed.

A partial award can be limited by subject, covering only the costs of dealing with one reason for refusal or one ground. It can be limited by date, covering costs incurred after the point at which the behaviour became unreasonable. Or both.

Ask for what you can prove rather than for everything. An application seeking the entire cost of the appeal because one reason for refusal was withdrawn invites refusal of the whole thing, while an application seeking the cost of the specialist report and the associated drafting invites a decision in your favour on exactly that.

And say in one sentence what you are not claiming. It reads as a considered application rather than an opportunistic one, which is how an inspector will treat it either way.

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This is general guidance, not legal advice. Check the position with your local planning authority or 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.