Costs at appeal: what unreasonable behaviour means

An award of costs at appeal requires two things together: unreasonable behaviour by a party, and expense incurred by another party as a result of it. Neither on its own is enough. A council can be wrong about a scheme without being unreasonable, and a party can behave badly without costing anybody anything. National guidance on the award of costs sets out both limbs, and inspectors apply them narrowly, which is why most costs applications fail and the ones that succeed tend to be obvious.

When an award can be made

The power sits in section 250(5) of the Local Government Act 1972, applied to planning appeals through the Town and Country Planning Act 1990. Awards are discretionary, they are made on application by a party rather than on the inspector's own initiative in most cases, and they are the exception rather than the norm.

Costs run between the parties to the appeal. An appellant can apply against the local planning authority, the authority can apply against the appellant, and in inquiry cases a Rule 6 party can be involved as well. Third parties who make representations without becoming a party are not exposed to an award and cannot obtain one.

The starting point is that each party bears its own costs. The application is asking the inspector to depart from that, so it needs to identify the behaviour, identify the expense, and connect the two.

Substantive and procedural unreasonableness

Guidance draws the distinction because the two behave differently in practice.

Substantive unreasonableness concerns the planning merits. It covers refusing an application without evidence to support the reason given, maintaining an objection after the evidence has answered it, and relying on assertions about harm that no analysis supports.

Procedural unreasonableness concerns the conduct of the appeal. Late submission of material, failing to provide a statement of common ground, causing an adjournment, not turning up, or introducing an entirely new case at the last moment.

Procedural applications are easier to prove, because the tribunal has seen the behaviour itself. Substantive applications require the inspector to conclude that a party was wrong and, beyond that, that its position was one no reasonable party could have taken on the material available.

Common grounds against an authority

The pattern in successful applications is consistent.

• A reason for refusal supported by no evidence at all, particularly on technical topics such as highway safety, daylight or noise, where objective analysis is available and none was produced.
• Vague assertions of harm to character and appearance with no reference to the development plan, the site context or any assessment.
• Failure to review the case before the appeal, so that a reason for refusal is maintained after the appellant has supplied the very information originally said to be missing.
• Withdrawing a reason for refusal so late that the appellant has already paid for evidence to meet it.
• Imposing conditions that fail the tests in national guidance, then defending them.
• Departing from a recent appeal decision on the same site or a directly comparable one without explaining why.

The committee point deserves care. A planning committee is entitled to disagree with its officer's recommendation. What it cannot do is refuse without reasons capable of being defended on appeal, and where members refuse against advice on grounds nobody then evidences, the authority is exposed. That is a common route to an award, and it is why authorities take their own legal advice before defending such appeals.

Common grounds against an appellant

The traffic runs both ways, and applicants sometimes forget it.

An appeal pursued with no reasonable prospect of success, particularly where the same or a substantially similar scheme has recently been dismissed and nothing material has changed, is the clearest ground. So is submitting an appeal on the basis of a scheme the appellant then seeks to alter through the appeal process.

Procedurally, the risks are late evidence, failure to attend a hearing or inquiry, failing to provide documents the timetable requires, and requesting a postponement for reasons within the appellant's control.

There is also the case of an appeal that could have been avoided. Where an authority asked for a technical report during the application, the applicant declined to provide it, and the same report is then produced with the appeal, the authority may reasonably say the appeal was unnecessary. That is a real and avoidable exposure, and it argues for submitting the report types a council asks for rather than testing whether it will insist.

Making and resisting an application

Timing is fixed by the procedure and missing it is fatal.

1. In written representations, make the application within the appeal timetable, normally with your statement or with final comments.
2. At a hearing or inquiry, make it orally before the close, having given notice, and follow with the written application if directed.
3. Identify the specific behaviour, with dates and documents.
4. Identify the expense caused by that behaviour, distinguishing it from costs you would have incurred anyway.
5. Confine the application to what you can prove, because a scattergun application weakens the strong ground inside it.
6. Where you are resisting, answer the two limbs separately: explain why the behaviour was reasonable, and if it was not, explain why it caused no additional expense.

Costs applications are handled differently in the fast-track householder appeals service, so check the current guidance before assuming one is available on a small case.

Keep the tone measured. An application that reads as annoyance rather than analysis rarely succeeds, and it colours how the inspector reads the rest of your case. Set the argument out in the same register as the Planning Statement and let the facts do the work.

What an award is worth in practice

An award is a decision that costs are payable, not a cheque. The amount is agreed between the parties afterwards, or, failing agreement, determined by detailed assessment.

Awards are frequently partial. Where an authority is found unreasonable on one of three reasons for refusal, the award covers the costs attributable to that one issue, which may be a specialist's fee and a portion of the professional time rather than the whole appeal.

That partial character is worth explaining to a client before the application is made. A full award against an authority on a substantial inquiry is a serious sum. A partial award on a written representations appeal may be less than the cost of pursuing it.

The other value is behavioural. Authorities that have had costs awarded against them review their appeal cases more carefully, and the prospect of an application is sometimes enough to prompt a reason for refusal being withdrawn before the timetable starts. Raising the possibility early, in correspondence and without threat, is legitimate and often effective.

One honest limitation: an award does not affect the appeal outcome. Costs and merits are decided separately, and a party can win the appeal and lose the costs application, or the reverse.

This is general guidance, not legal advice. Costs at appeal turn on the facts of each case, so take advice from a qualified professional before making or resisting an application.

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 supporting documents an application is likely to need before a refusal turns into an appeal.