Costs awards at appeal and how they are claimed

Costs at appeal follow behaviour, never outcome. An appeal costs award in planning is available where a party has behaved unreasonably and that behaviour has caused another party to incur unnecessary or wasted expense. Losing the appeal is not unreasonable behaviour. Winning it does not entitle you to anything. The power comes from section 250(5) of the Local Government Act 1972 as applied to planning appeals, and the Planning Practice Guidance sets out how the Inspectorate applies it.

The behaviour that founds an award

Three elements have to be present. Unreasonable behaviour by a party. Wasted or unnecessary expense caused to another party. And a claim made properly and in time.

All three matter. An authority that behaves badly but causes no additional expense produces no award. An appellant who spends a fortune on expert evidence that was always going to be needed cannot recover it because the council was slow to respond to an email.

The guidance treats the parties even-handedly in principle. In practice most awards run against local planning authorities, because authorities carry the burden of substantiating their reasons for refusal and are the party most often unable to do it.

Substantive unreasonableness

Substantive failures go to the merits of the case. The recurring examples are worth knowing precisely, because a costs application drafted against a named category is far stronger than one alleging general incompetence.

A reason for refusal unsupported by any evidence is the classic. Where a council refuses on grounds of highway safety and then produces no highway evidence at appeal, or refuses on heritage grounds without any assessment of the significance of the asset, it is vulnerable.

Vague or generalised assertions of harm come next. Reasons for refusal that recite policy numbers and the phrase "harmful to the character and appearance of the area" without explaining what the harm is, and without any analysis to support it, are routinely criticised in costs decisions.

Failing to review the position at appeal stage is a third. Circumstances change. A new appeal decision on a comparable site, an updated housing land supply position, or the withdrawal of a consultee objection can undermine a reason for refusal, and an authority that presses on regardless can be exposed.

Departing from the officer recommendation without proper reasons is the fourth and the most common committee-level risk. Members are entitled to disagree with their officers. What they cannot do is refuse without articulating planning reasons capable of being substantiated, and a minute recording "members considered the scheme overbearing" without more is thin material to defend.

Procedural unreasonableness

Procedural failures are about how the appeal was conducted rather than whether the case was any good. They are often easier to prove because the record is documentary.

Late withdrawal of a reason for refusal, after the appellant has paid for evidence to address it. Missing the Inspectorate's deadlines for the questionnaire or the statement. Introducing new material late, so that the other side has to respond at short notice. Failing to attend or being unrepresented at an event the party insisted upon. Requiring an inquiry where the issues plainly did not need cross-examination. Failing to comply with a direction or a pre-inquiry timetable.

Delay in issuing a decision, on its own, does not usually found an award, because the remedy for non-determination is an appeal. Delay coupled with a failure to explain the position, after the appellant has repeatedly asked, is different.

Making the claim, and when

Timing is where good claims die. A costs application should be made in writing and at the right point in the procedure. At an inquiry or a hearing, that means before the event closes, so that the other party can respond and the inspector can deal with it there. In written representations, it goes in with the final representations at the stage the Inspectorate's timetable allows.

An application made after the event has closed will normally be refused as out of time, whatever its merits. Diarise it from the day the procedure is confirmed.

The document itself should do four things. Identify the party and the specific behaviour complained of. Match it to a category in the guidance. Show the causal link to expense that would otherwise not have been incurred, with reference to what you actually had to commission. And confirm what you seek, which is normally an award of the whole or part of the costs.

Attach the evidence. Correspondence showing the point was raised and ignored, the committee minutes, the officer report, and the invoices or scope of works for the additional evidence. A claim in the abstract is easy to resist.

An award is a decision in principle. The amount is agreed between the parties afterwards or, failing agreement, assessed by the court's costs office, which is a separate and slow process. Partial awards, limited to the wasted element, are common.

Claims against appellants

Awards run both ways, and the categories are narrower but real. Pursuing an appeal with no reasonable prospect of success, particularly where a recent appeal decision on the same site has already dealt with the point. Failing to comply with procedural requirements. Withdrawing an appeal late, after the authority has prepared its evidence. Introducing at appeal a scheme materially different from the one refused. Failing to provide information the authority requested at application stage, so that the reason for refusal was inevitable.

The last of those deserves attention from agents. Where a council refuses because the applicant never supplied the daylight study, the ecology survey or the transport information it asked for, and the appellant then produces it at appeal, an award against the appellant is a live risk. Submitting the supporting documents the validation list required, at the point they were requested, removes that exposure entirely.

Building the record while the appeal runs

Costs applications are won on contemporaneous paper. Three habits make the difference.

Write to the authority early, setting out precisely why you say each reason for refusal cannot be substantiated, and invite it to withdraw the reason. Give a date. If it withdraws at week eight instead, you have your evidence of wasted expense. If it does not withdraw and then produces nothing at appeal, you have your evidence of unreasonableness.

Keep the scope of every commission separable. Where a specialist report was commissioned solely to answer a reason for refusal that was later withdrawn, an invoice tied to that scope is worth more than a lump sum fee for the appeal as a whole.

Record what the council said and when. Officer emails conceding a point, a consultee withdrawing an objection, the date a comparable appeal decision was drawn to the authority's attention. A Planning Statement at application stage that put the policy case clearly on the record also helps here, because it is hard for an authority to argue it was not on notice of an argument it received in writing months earlier.

For agents budgeting appeal work, the realistic position is that costs awards recover part of an unnecessary expense rather than funding the case. Treat them as a discipline on the other side rather than a revenue line, and price the appeal on the assumption that nothing comes back. PlanScope pricing covers the drafting side at £50 per report or £150 per month on the Professional tier for architects, agents and consultants.

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. Enter your postcode on PlanScope to see which documents an application needs before a refusal becomes likely.