Costs claims against a council for a vague refusal reason

An award of costs against a local planning authority on a section 78 appeal turns on unreasonable behaviour that caused you wasted expense. One of the recognised categories is the authority relying on vague, generalised or inaccurate assertions about a proposal's impact, unsupported by any objective analysis. A refusal reason that says the development would harm the character and appearance of the area, with nothing behind it, is exactly that category, and inspectors do award costs on it.

What they will not do is award costs because the authority was wrong. Being wrong on the planning merits is not unreasonable behaviour. The claim has to be built on the absence of evidence, not on the presence of a different view.

What makes a reason for refusal unsubstantiated

The guidance distinguishes between a reason that is arguable and a reason that is empty. An arguable reason identifies a policy, applies it to the proposal, and says what the harm is in terms capable of being tested. An empty reason recites policy numbers and asserts harm.

Three features show up in the reasons that attract costs awards:

• assertion without analysis. Harm to character and appearance with no reference to the prevailing building line, plot widths, materials or the conservation area appraisal.
• a factual claim that is wrong and could have been checked. A refusal on highway safety grounds where the visibility splay achieved is the one the highway authority asked for, and the highway authority did not object.
• a reason the authority then fails to evidence at appeal, so the statement of case repeats the refusal wording without any witness, study or document behind it.

The third is the one that converts a weak reason into a costs award, because the failure to produce evidence to substantiate each reason for refusal is itself identified as unreasonable behaviour.

The authority's duty to support its own case

The authority has to be able to defend each reason it has given. That is not a high bar, and on most refusals it is met by the officer's report, the consultee responses and the policy framework.

Where it bites is on a committee decision taken against the officer recommendation. Members are entitled to disagree with their officers, and plenty of good refusals start that way. But the decision still needs reasonable planning grounds, and the authority still has to produce evidence for them at appeal. If the officer's report recommended approval and the authority then calls no evidence of its own, the appeal statement is often the officer's report with a different conclusion bolted on, and an inspector will notice.

That scenario is where most successful costs applications against authorities come from in practice. Not malice, and not incompetence, but a refusal that nobody in the authority was ever going to be able to stand behind.

Reasons withdrawn before the hearing

Withdrawal is not a safe harbour. An authority that drops a reason for refusal shortly before the event has caused you to prepare evidence that is now worthless, and the costs of that preparation are the classic case of costs thrown away.

Two points of practice follow. Put the authority on notice early, in writing, that a particular reason appears unsupported and that you reserve the right to apply for costs if it is maintained or withdrawn late. That letter does a lot of work, because it both encourages withdrawal at a point when it saves money and establishes that you flagged the problem.

Then keep your time records by issue, not just by appeal. An award limited to one reason for refusal is only worth what you can evidence, and a bundle of undifferentiated fee notes makes quantification a fight. Authorities also sometimes reformulate rather than withdraw, which raises a different set of problems, and what happens when the council changes its case sets those out.

Contradicting the officer recommendation without evidence

The sequence to document is simple and it is persuasive when set out in order.

1. The officer's report, with the recommendation and the assessment of the issue that became the refusal reason.
2. The committee minutes, showing what was said and whether any evidence was identified.
3. The decision notice, with the reason as issued.
4. The authority's appeal statement, and what evidence it does or does not contain on that reason.
5. Your own costs, attributable to that reason.

Where steps one to four show a reason that appeared at committee, was never supported, and remained unsupported at appeal, you have the strongest version of this claim.

Be fair about the limits. A committee that identifies a genuine design concern, asks for a site visit, and then refuses on a reason the officer had assessed differently is behaving properly even if the inspector disagrees. The question is whether anything beyond assertion was ever put forward.

Preparing the costs application

Timing is procedural and unforgiving. An application made at a hearing or inquiry has to be made before the event closes, and in a written representations appeal it has to be in writing within the timetable the Inspectorate sets. Check the procedural guidance for the appeal type you are in, because the point at which the window closes differs, and a late application will not be entertained however good it is.

Structure the application in four parts. The behaviour complained of, described factually with dates. Which recognised category of unreasonable behaviour it falls into. The causal link to expense you would not otherwise have incurred. And the scope of the award sought, whether full or limited to an issue or a period.

Keep it short and keep it unemotional. Applications that read as a complaint about the authority's attitude do worse than applications that read as a chronology. The underlying planning case is a separate document, and the quality of the submitted Planning Statement matters to the appeal rather than to the costs claim, although a submission that addressed the issue squarely makes the authority's silence on it more obvious.

Quantifying wasted costs

An award establishes liability. The amount is then agreed between the parties, or, failing agreement, determined by detailed assessment, which is a separate process with its own cost.

Recoverable items are the ones you would not have incurred but for the behaviour. Specialist reports commissioned solely to answer an unsupported reason. Counsel's fees on an issue that was withdrawn. Consultant time on a proof of evidence dealing with the reason concerned. Hearing attendance where the only remaining issue was that reason.

Items that are harder to recover include work you would have done anyway as part of the application, internal staff time without a chargeable rate, and the cost of preparing the appeal itself where other reasons for refusal were properly maintained. Allocate your time by issue from the start of the appeal, because reconstructing it afterwards reduces what you can justify.

Partial awards and how they are expressed

Most awards against authorities on this ground are partial, and the wording matters when you come to negotiate the sum.

An inspector may limit the award to the costs of dealing with a numbered reason for refusal, or to costs incurred after a specified date, or to costs thrown away by a withdrawal. Read the decision carefully and extract the exact formulation before you send a schedule, because a schedule that goes wider than the award invites a dispute that delays the whole payment.

The same decision will usually explain why the inspector accepted or rejected each limb, and that reasoning is worth collecting over time. Patterns emerge in how inspectors treat character and appearance reasons in particular, and how to read an appeal decision letter sets out where the costs reasoning sits in the document.

One honest caveat. Costs awards against authorities remain the exception rather than the norm, and an application that fails costs you the time spent making it and nothing else, which is why the cost-benefit usually favours making the application where the category is clearly met and not otherwise.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. This article is general guidance, not legal advice, and costs procedure changes, so check the current appeals guidance and consider instructing a solicitor on a substantial claim. Enter your postcode on PlanScope to see which reports a resubmission or appeal is likely to need.