Costs award or judicial review after a decision

A costs award gets you money. A legal challenge gets the decision quashed. Neither gets you planning permission, and confusing the two wastes a great deal of time at the point when time is shortest, because the deadline for a challenge is six weeks and the window for a costs application closes at the end of the appeal proceedings.

Deciding between them is really two separate questions. Did the other party behave unreasonably and cost you money. And did the decision maker get the law wrong.

What a costs award addresses

Costs awards are made in appeal and called-in proceedings, by the Planning Inspectorate or the Secretary of State, where one party has behaved unreasonably and that behaviour has caused another party to incur expense it should not have had to.

Either side can apply. An appellant can seek costs against an authority that defended a reason for refusal it then withdrew, produced no evidence for an allegation, or failed to determine an application without explanation. An authority can seek costs against an appellant who pursued a hopeless appeal, or who introduced new material so late that the event had to be adjourned.

The award is about conduct. It is not a prize for winning. An appellant who succeeds on the planning merits, against an authority that argued its case properly, gets the permission and nothing else.

What a legal challenge addresses

A challenge is about legality, not about whether the decision was right.

For an appeal decision made by an inspector or the Secretary of State, the route is a statutory challenge under section 288 of the Town and Country Planning Act 1990, brought in the Planning Court. For a grant of permission by a local planning authority, the route is judicial review. Both need the court's permission to proceed, and both carry a six week limit for planning decisions.

The grounds are errors of law: failing to take into account a material consideration, taking into account an immaterial one, misinterpreting a policy, giving reasons so inadequate that the parties cannot understand why they lost, procedural unfairness, or a conclusion no reasonable decision maker could reach.

Disagreeing with the planning judgement is not a ground. Courts repeat this often, because it is the most common reason challenges fail at the permission stage.

Unreasonable behaviour and what it means

The guidance on costs distinguishes procedural and substantive unreasonable behaviour.

Procedural behaviour covers how a party conducted the proceedings: failing to submit evidence on time, not attending, introducing new grounds late, or forcing an adjournment. Substantive behaviour covers the merits of the case a party ran: pursuing a reason for refusal unsupported by any evidence, ignoring relevant policy, or failing to have regard to a recent appeal decision on the same issue.

The bar is behaviour that is unreasonable, not behaviour that turned out to be wrong. An authority that loses an appeal having argued a genuine planning issue on evidence has not behaved unreasonably.

Applications should be made in writing within the proceedings rather than afterwards, and the timing rules differ by procedure, so check the current guidance for the procedure you are in.

Time limits, and why one of them is fatal

The six week limit for a statutory challenge or a judicial review of a planning decision runs from the date of the decision, and it is not extended for correspondence, for waiting on advice or for the holidays.

Six weeks is short. Instructing counsel, obtaining the decision file, drafting grounds and issuing takes most of it. Where a decision letter looks wrong, take advice in the first week, not the fourth.

A costs application has its own timing within the appeal, and missing it is recoverable only in narrow circumstances. Where an error in a decision letter is clerical rather than legal, there is a separate and much simpler route, which our note on correcting an error in an appeal decision letter covers.

One practical note on evidence. A costs application is much stronger when the unreasonable conduct was flagged at the time. A letter sent during the proceedings, recording that a reason for refusal appeared unevidenced and inviting the authority to withdraw it, becomes the centrepiece of the application if the authority presses on and then abandons the point at the event.

Remedies available

This is where expectations most often need managing.

A successful challenge quashes the decision and sends it back to be taken again, usually by a different inspector. The court does not substitute its own decision and it does not grant permission. Redetermination can reach the same outcome by a lawful route, and often does.

A successful costs application produces an award, which is then quantified separately between the parties. It does not affect the planning decision at all.

So a developer whose appeal was dismissed unlawfully gets a second determination, not a permission. A developer whose appeal was dismissed after the authority ran an unevidenced reason for refusal gets money and still no permission. Those are different problems with different answers.

Cost and risk of each route

A costs application inside an appeal costs relatively little to make, because the material is already in front of the inspector. The risk is limited to the time spent and to any adverse impression created if the application is weak.

Litigation is different. The losing party normally pays the other side's costs, and in the Planning Court those figures are substantial. Environmental claims within the Aarhus Convention rules attract cost caps, and the current figures are set out in the Civil Procedure Rules, so check them rather than assuming a number.

Take the permission stage seriously in the risk assessment. A refusal of permission still carries a costs consequence, and refusal is common where the grounds shade into disagreement with planning judgement.

Deciding between them

Work through it in this order.

1. Read the decision and identify whether the complaint is about the reasoning in law or about the conduct of the other party.
2. If it is conduct, and the proceedings are still open, prepare a costs application with specific examples and the expense each one caused.
3. If it is law, take advice within days and diary the six week date immediately.
4. Ask what outcome you actually want. If the answer is permission, consider whether a revised application is faster than a redetermination.
5. Consider both where both apply, since a costs award and a challenge are not alternatives.

Point four is the one commercial clients underrate. Quashing a decision buys a fresh determination months later on the same scheme. A revised application addressing the reason for refusal, supported by a properly evidenced Planning Statement, frequently arrives at a permission sooner and with less risk.

Where the challenge route is the right one, the mechanics are set out in our notes on challenging an appeal decision in the High Court and on judicial review of a planning decision, grounds and timing.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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