Costs awards at appeal and how unreasonable behaviour is judged

A planning appeal costs award is not a prize for winning. It compensates a party for expense that the other side's unreasonable behaviour made it incur unnecessarily, and the two limbs of that test are cumulative. Unreasonable behaviour with no wasted expense earns nothing. Wasted expense with no unreasonable behaviour earns nothing either.

Practitioners underuse the remedy against councils and overestimate their exposure to it as appellants. Both errors come from not reading the guidance carefully.

Where the power comes from and what it asks

The power to award costs in planning appeals derives from section 250(5) of the Local Government Act 1972, applied to planning proceedings by section 322 of the Town and Country Planning Act 1990, with parallel provision for appeals decided without an inquiry or a hearing. The operative rules, though, are in Planning Practice Guidance rather than in the statute.

The guidance frames a single question in two parts. Has the party behaved unreasonably, and has that behaviour directly caused another party to incur unnecessary or wasted expense. Both must be answered yes.

Two consequences follow immediately. First, an appellant who wins an appeal against a council that argued a bad case competently gets no award, because there was no unreasonable behaviour. Second, a party who identifies unreasonable behaviour but cannot point to work that was wasted because of it gets no award either. Quantify the wasted work in the application. Assertions about how badly the council conducted itself, without a line linking the conduct to specific expenditure, fail.

Substantive unreasonable behaviour

Substantive behaviour concerns the merits of the case. It is the harder category to establish and the more valuable one to win.

The recurring examples on the authority's side are familiar to anyone who runs appeals regularly. Reasons for refusal that are not supported by any evidence at the appeal. Vague or generalised assertions about harm, unaccompanied by analysis. Refusing on a ground that could plainly have been dealt with by a condition. Failing to review the case after a change in policy or a directly relevant appeal decision, and pressing on with a reason that has become untenable. Refusing contrary to the officer's recommendation without reasonable planning grounds for departing from it.

That last one is not automatic. Members are entitled to disagree with their officers. What they are not entitled to do is disagree without a planning reason, and then leave the council to defend a position nobody can evidence at appeal.

Withdrawing a reason for refusal shortly before the event is a common trigger. The reason was defended long enough to make the appellant prepare evidence on it, then abandoned. That is precisely the situation the wasted expense limb was written for, and a partial award covering the evidence prepared on the withdrawn reason is a realistic outcome.

Procedural unreasonable behaviour

Procedural behaviour concerns the running of the appeal rather than the planning merits, and it is more evenly distributed between the parties.

Missing deadlines set by the Inspectorate. Producing evidence so late that the other party has to respond in a rush or ask for an adjournment. Failing to provide information promised at a case management conference. Not attending an event, or sending someone who cannot speak to the evidence. Introducing a wholly new argument at a stage where the other side cannot answer it properly.

Delay is the one that generates the largest sums, because an adjourned inquiry wastes counsel's brief fee and a room full of expert witnesses' time in a single afternoon.

What appellants get caught by

Appellants are not exempt, and three patterns account for most awards against them.

1. Appealing a scheme that had no reasonable prospect of success against an up-to-date development plan, with no new argument or evidence to justify the attempt.
2. Introducing a materially different proposal at appeal, so the council has to assess something it never determined. Inspectors are constrained by the Wheatcroft principles on how far a scheme can change, and an appellant who tries to redesign at appeal invites both a procedural problem and a costs application.
3. Abandoning the appeal late, after the council has prepared its statement and instructed witnesses.

The defensive move is unglamorous. Put the policy case properly in the Planning Statement at application stage, so the appeal argues the same scheme on the same grounds, and the council cannot say it was ambushed.

Making the application at the right moment

Timing is a formal requirement, not a courtesy.

In an inquiry or a hearing, the costs application is made orally or in writing before the event closes, and the other party gets a chance to respond there and then. In written representations, it goes in with the final round of submissions. Late applications are entertained only exceptionally, and an inspector who has already closed an inquiry has limited scope to reopen it for a costs argument somebody forgot to make.

Put the application in writing even when making it orally, and structure it in three parts: what the behaviour was, why it was unreasonable by reference to the guidance, and what expense it caused that would otherwise not have been incurred. Attach the correspondence trail. Costs applications that read as a list of grievances rarely succeed, and a two-page application built round a documented sequence of events frequently does.

Warn the other side first. A letter putting a council on notice that a reason for refusal is unsupported, and that costs will be sought if it is maintained, does two useful things: it sometimes gets the reason withdrawn early, and if it does not, it becomes the strongest exhibit in the eventual application.

Partial awards and settling the sum

An award determines liability, not amount. That surprises people the first time.

Partial awards are common and often the sensible outcome, covering only the specific work wasted by the specific unreasonable conduct rather than the whole appeal. Once an award is made, the parties are expected to agree the figure between them. Where they cannot, the sum is settled by detailed assessment through the Senior Courts Costs Office, which is a separate process with its own cost and delay.

That last point governs whether pursuing an award is worthwhile. On a small appeal the assessment machinery can consume much of what is recovered. On an inquiry with several sitting days lost to an adjournment, it is worth every hour.

Deciding whether to bother

Three practical filters. Is the behaviour documented in correspondence the inspector will see. Can you identify the wasted work with enough precision to attach a figure. And is the sum large enough to justify the negotiation that follows the award.

If all three are yes, apply. If only the first is, a well-argued appeal is the better use of the effort, and the professional cost of the appeal itself is the number worth planning for. See what a report costs on PlanScope if you are budgeting the drafting side, browse the report types to work out the evidence base a resubmission would need, or enter the site postcode to see what the constraints suggest.

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.