Costs awards at appeal: when they are actually made
An award of costs at appeal needs two things: unreasonable behaviour and expense it caused. Here is what inspectors treat as unreasonable and how to apply.
Costs at planning appeals are awarded rarely, and only where two things are both true: a party has behaved unreasonably, and that behaviour caused the other party to incur expense it should not have had to. Neither limb is enough on its own. Losing an appeal is not unreasonable. Being wrong is not unreasonable. The Planning Inspectorate's own guidance is explicit that parties normally meet their own expenses, and the award is the exception.
That framing explains most of the outcomes. A council refusing permission against officer advice, with no evidence for its reasons, is exposed. A council refusing on properly evidenced grounds and losing is not.
The basis for an award
The power comes from the Local Government Act 1972 as applied to planning appeals by the Town and Country Planning Act 1990, and section 322A of the 1990 Act extends the power to appeals decided by written representations. Awards are available in all three procedures.
The test applied is set out in the Planning Practice Guidance. A party must have behaved unreasonably, and the behaviour must have caused the applicant for costs to incur unnecessary or wasted expense. An inspector who finds unreasonable behaviour but no consequent expense will refuse the application.
Awards are made against councils and against appellants, and both happen. The reported pattern is that authorities face more applications, because refusing an application is a decision that has to be justified with evidence, while appealing is not.
Procedural against substantive unreasonableness
Procedural unreasonableness is about the conduct of the appeal itself.
- Missing deadlines in the Inspectorate's timetable
- Introducing new evidence or a new reason for refusal late in the process
- Failing to attend a hearing or inquiry, or arriving without a witness who was expected
- Withdrawing a case at the last moment after the other side has prepared for it
- Failing to produce a statement of common ground where one was required
Substantive unreasonableness is about the planning position itself, and this is where councils are most exposed. Refusing an application on grounds that are vague or generalised. Failing to produce evidence to substantiate a reason for refusal. Relying on policies that do not apply or have been superseded. Ignoring a recent appeal decision on materially the same issue. Imposing conditions that are unnecessary or unreasonable. And refusing against an officer recommendation without an evidenced planning reason for doing so.
That last one attracts the most attention and is less simple than it appears. A committee is entitled to disagree with its officers. What it is not entitled to do is disagree without a planning reason it can then defend, and then leave the officer to construct one afterwards.
What gets appellants an award against them
Appellants are not immune, and the grounds are mirrored.
Pursuing an appeal with no reasonable prospect of success, on a scheme that plainly conflicts with an up-to-date development plan. Introducing a substantially different scheme at appeal, so that the council has to assess something it never determined. Failing to provide information the Inspectorate or the council reasonably requested. Not pursuing the appeal after the council has prepared its case. Or appealing a refusal on grounds already settled against the same appellant on the same site.
The revised scheme point catches people out. An appeal is a review of the decision the council made, not an opportunity to submit a better proposal. Where the drawings at appeal differ from those refused, expect a costs application and expect it to have some force.
Making the application, and when
Timing differs by procedure and it is unforgiving.
| Procedure | When to apply |
|---|---|
| Written representations | By the deadline for final comments, in writing |
| Hearing | In writing before the event, or orally at the hearing before it closes |
| Inquiry | Orally before the inquiry closes, having given notice |
An application made after the event has closed is normally refused as out of time, however strong the merits. Put the application in writing, set out the unreasonable behaviour with dates and document references, and state what expense it caused. Applications that assert unreasonableness without identifying the wasted work usually fail on the second limb.
Respond properly if one is made against you. A short reply explaining the reasoning behind the decision, with the evidence that supported it, is often enough. Silence is not.
Partial awards and quantifying them
Inspectors frequently make partial awards, covering only the costs attributable to the unreasonable behaviour rather than the whole appeal. An award limited to the cost of preparing evidence on one reason for refusal that was later withdrawn is a common shape.
The decision on costs settles the principle. The amount is then agreed between the parties, and where it cannot be agreed it is determined through detailed assessment in the courts. That second stage costs money in itself, which is why most awards are settled by negotiation at a figure below the claimed total.
Keep the records that make quantification possible. Time sheets, invoices from technical consultants, and a note of what work was done in response to which point are what a costs claim is built from. The cost of assembling that evidence base in the first place is real, as any scheme with several specialist reports will recognise, and the wider budgeting picture is covered in budgeting an acoustic evidence base for a noisy site.
Preparing so the question does not arise
Most costs exposure is created before the appeal starts, in the way the decision was taken and the way the appeal was prepared.
For a council, that means writing reasons for refusal that name the policy, state the harm and point to the evidence. A reason for refusal reading only that the proposal is out of keeping with the character of the area, with no character appraisal or design policy behind it, is the classic exposed position. Reviewing the reasons when the appeal is lodged, and withdrawing any that cannot be supported, removes the risk at the cost of some embarrassment.
For an appellant, it means appealing the scheme that was refused rather than an improved one, answering requests for information, and keeping to the timetable. Where the design has moved on, submit a fresh application instead.
For both, it means putting the technical evidence in at application stage rather than at appeal. An appeal where the flood risk or noise evidence appears for the first time in the appellant's statement leaves the council arguing that it was never given the chance to assess it, which is a costs argument in both directions. Getting the 66 report types by category right at submission is the least costly insurance available.
Recovering an award and what it is worth
An award of costs is recoverable as a civil debt if it is not paid. In practice councils pay, and appellants ordered to pay usually do.
Be realistic about what an award achieves. It reimburses expense. It does not compensate for the delay, the holding costs or the lost opportunity, and those are usually larger than the legal and consultancy fees. An appeal won with costs is still an appeal, with the months it took.
The better use of the costs regime is preventative. Councils that know a reason for refusal is unevidenced tend to revisit it before the appeal starts, and a well-drafted costs warning sent with the appeal statement sometimes produces exactly that. Keep it factual and specific, naming the reason for refusal and the evidence missing behind it. A generic threat of costs sent with every appeal is ignored, and it may be held against the sender.
Where the underlying problem is a condition rather than a refusal, the less costly route is usually negotiation before the decision is issued rather than an appeal afterwards, as set out in the cost of a planning condition you did not negotiate.
Read the published costs decisions for the authority you are dealing with before you decide. They are on the Inspectorate's casework portal alongside the appeal decisions, and they show how inspectors have handled the same arguments.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
Frequently asked questions
When can costs be awarded at a planning appeal?
Only where a party has behaved unreasonably and that behaviour caused the other party to incur unnecessary or wasted expense. Both limbs must be satisfied. Losing an appeal is not unreasonable behaviour, and an inspector who finds unreasonable conduct but no resulting expense will refuse the application for costs.
What counts as substantive unreasonableness by a council?
Vague or generalised reasons for refusal, failing to produce evidence to substantiate a reason, relying on superseded or inapplicable policies, ignoring a recent appeal decision on the same issue, imposing unnecessary conditions, and refusing against officer recommendation without an evidenced planning reason that can then be defended.
Can costs be awarded against an appellant?
Yes. Pursuing an appeal with no reasonable prospect against an up-to-date plan, introducing a substantially different scheme at appeal, failing to provide reasonably requested information, and abandoning the appeal after the council has prepared its case all attract applications. The revised scheme point is the most common.
When do I have to make the application?
For written representations, in writing by the deadline for final comments. At a hearing, in writing beforehand or orally before the event closes. At an inquiry, orally before the inquiry closes, having given notice. Applications made after the event has closed are normally refused as out of time however strong the merits.
How much does an award actually recover?
Often less than claimed. Inspectors frequently make partial awards limited to the costs attributable to the unreasonable behaviour. The decision settles the principle, and the amount is then agreed between the parties or determined through detailed assessment. Most awards are settled by negotiation below the claimed total to avoid that second stage.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.