Costs awards on planning appeals for unreasonable behaviour

A costs award on a planning appeal turns on one question: did a party behave unreasonably, and did that behaviour cause someone else to spend money they should not have had to spend. Merit is irrelevant. An appellant can win the appeal outright and still get nothing, because losing badly is not the same as behaving badly, and inspectors say so in almost every refused costs decision.

The jurisdiction sits in section 250(5) of the Local Government Act 1972, applied to planning appeals through the Town and Country Planning Act 1990, with section 322C extending it to appeals dealt with by written representations. The Planning Practice Guidance on appeals sets out how the discretion is exercised.

Where the power comes from and who can use it

Any party to an appeal can apply for costs against any other party, and that includes interested persons who have taken part. A council can apply against an appellant. A neighbour who appeared at an inquiry can apply against either. Awards against third parties are rare but the power exists.

The inspector, or the Secretary of State in a recovered case, decides whether costs should be awarded and on what basis. Nobody at the Planning Inspectorate decides how much. That comes later.

The discretion is real. There is no automatic entitlement, and an inspector who finds unreasonable behaviour may still decline an award if no wasted expense followed from it.

Unreasonable behaviour as the whole test

The guidance frames it as two conditions that both have to be met. The party has behaved unreasonably, and that unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process.

The causal link is where most applications fail. A council that produced a thin committee report but then defended the appeal competently has not caused the appellant any extra cost. An objector who wrote an intemperate letter has not caused anyone to instruct a second expert. Set out the expense and trace it to the behaviour, item by item, or the application reads as annoyance rather than argument.

Unreasonable is measured against what a reasonable authority or appellant would have done in the circumstances, with the guidance as the reference point.

Substantive unreasonable behaviour

Substantive unreasonableness is about the planning merits of the position taken. The guidance gives a settled list of examples, and inspectors quote it directly:

• failing to produce evidence to substantiate each reason for refusal
• making vague or generalised assertions about an impact that are unsupported by objective analysis
• refusing permission on a ground that could have been dealt with by a condition
• persisting in an objection to something that has already been permitted, or that an inspector has previously found acceptable
• not determining similar cases consistently
• acting contrary to well established case law
• failing to review the case promptly once an appeal has been lodged

The commonest of these in practice is the first. A reason for refusal citing harm to character and appearance, with no analysis of the street scene, no assessment of the existing pattern of development and no policy applied to any of it, is a reason without evidence. Where a council has refused against officer recommendation and then produced no substantive evidence at appeal, that is the strongest costs case an appellant is likely to get.

The condition point is worth holding onto. If the council's objection is about hours of operation, or about materials, or about a detail that a standard condition would control, ask in writing before the appeal whether a condition would resolve it, and keep the reply.

Procedural unreasonable behaviour

Procedural failings are easier to prove because they are documented. Missing a deadline for a statement of case, introducing evidence so late that the other side has to respond out of sequence, failing to attend a site visit, not providing information reasonably requested, or withdrawing a reason for refusal on the morning of the inquiry after the appellant has paid for an expert to deal with it.

The late withdrawal example is the classic partial award. The council abandons the highways reason two weeks before the hearing, the appellant has already commissioned and paid for a transport report, and the inspector awards the cost of that report and nothing else.

Appellants are not immune here. Submitting an appeal without the documents, amending the scheme after the appeal has started, or failing to comply with directions all attract the same treatment.

Timing and how to make the application

Make the application in writing, and make it in time. For an inquiry or a hearing, the application should be made before the event closes, normally orally with a written note handed up, and the other party must have the chance to respond. For written representations, it goes in with the final comments.

A late application can still be entertained where there is a good reason, but you are asking for an indulgence rather than exercising a right. The safer approach is to warn the other side early. A letter putting a council on notice that its reason for refusal is unsupported, sent when the appeal is lodged, does two useful things: it sometimes produces a withdrawal of the reason, and it makes the eventual costs application much harder to resist.

Set the application out as a short document with the behaviour, the guidance paragraph it engages, the expense caused, and the evidence for both. Attach the correspondence.

Partial awards and how the money is worked out

Full awards cover the whole cost of the appeal. Partial awards cover a defined part, usually identified by issue or by date, and they are more common than full awards because unreasonable behaviour is usually confined to one strand of a case.

The decision says whether costs are awarded and in what terms. Quantification is a separate exercise between the parties, and if they cannot agree, the receiving party can apply for a detailed assessment through the Senior Courts Costs Office. That process has its own cost, which is a reason most parties settle.

Keep time records contemporaneously. A costs award against a council is worth little if the schedule that follows cannot be evidenced, and reconstructing six months of work from memory produces a figure the other side will challenge line by line.

Applications against appellants

Councils apply for costs too, and inspectors grant them. The usual grounds are an appeal with no reasonable prospect of success on the evidence submitted, an appeal pursued on a ground the appellant knew was unarguable, late withdrawal after the authority has prepared its case, or a failure to comply with the procedural timetable.

An appeal that is simply weak is not unreasonable. An appeal that ignores a recent appeal decision on the same site, or that relies on a planning history the appellant knows to be wrong, is a different matter.

Where the choice is between appealing a refusal and resubmitting, the costs exposure runs both ways, and that calculation belongs in the advice you give at the outset rather than after the appeal is lodged. Our note on choosing between resubmission and appeal covers the commercial side of that decision, and where the dispute is about a condition rather than the principle, the narrower question in section 73 refusals is often the better route.

A costs award is not a windfall. It is a remedy for money that should never have been spent, and it is granted on that basis. Build the case in the appeal file from the day the refusal arrives, and put the supporting analysis into the Planning Statement so the evidence gap on the council's side is visible on the face of the documents.

This is general guidance, not legal advice. Check the position with a qualified professional before relying on it. If a resubmission is the better route and you need the supporting documents drafted, enter your postcode on PlanScope to see what the scheme needs. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.