It’sa basic cornerstone of our legal system that each party to a Planning Appealbears its own costs and legal expenses. As we all know, however, there are anumber of exceptions to every rule. And one of those is that an application forcosts may be made where one party has behaved or acted unreasonably.
Thefundamental rule is that any application for costs can be made to the PlanningInspector, or potentially to the Secretary of State. Because of immediacy andease of applying, it is more usual that the Planning Inspector is the initialrecipient of any costs application, upon appeal.
Of course, there are certain criteria that must beconsidered, when contemplating any application for costs. Firstly, it shouldnormally be shown that the unreasonable behaviour caused another party to incurunnecessary expense. Otherwise, the costs award would be punitive, rather thancompensatory, which is the general principle. Equally, any determination by theCourt may be for the whole or a part of the costs, the subject of the application.In this regard, the Court may decide on the facts what is allowable and whatshould be rejected.
Moreover, this rule applies to all planning appeals, whether determinedby written submissions, a hearing or an inquiry. Having said that, the casesmost commonly heard are appeals against the refusal of planning permission, orthe issue of an enforcement notice.
In order for the application to succeed, three conditionsmust be satisfied, as follows:
(i) Applicationfor costs must have been made at the appropriate time
(ii) Aparty must have behaved unreasonably
(iii) Theunreasonable behaviour must have caused the applicant for costs to haveincurred or wasted expense unreasonably
This latter condition is the basis upon which the wholeapplication will fail or succeed. Namely, that there must have been aquantifiable loss, suffered by one of the parties.
Of course, one of the questions the parties will doubtlessraise is, “what constitutes unreasonable behaviour”? As such, I have compiled avery much non-exhaustive list of examples and pitfalls to consider:
(i) Failureto attend a hearing or a site visit
(ii) Conductof the proceedings
(iii) Inabilityto produce evidence in support of a refusal of planning permission
(iv) Appellantpursuing an appeal upon grounds which are clearly ‘no hopers’
(v) Withdrawalof one or more reasons without good reason for refusal of planning permissionafter the appeal has been made
(vi) Ifthe Inquiry has had to be adjourned or unreasonably prolonged or cancelled, resultingin unnecessary or wasted expense
In relation to the manner in which the application is made,it must state why it is considered that the other party has acted unreasonably,and furthermore how this has caused unnecessary or wasted expense. Notice mustbe given to the other party, and the case officer provided with an advancedstatement of the grounds of the application, or a written skeleton argument.
It remains good practice to submit the application prior tothe hearing or Inquiry, although the grounds may be amended on the day ifnecessary. It goes without saying that the grounds for a costs applicationshould be made clear by the time of the other party’s statement of case, and atthe very latest by the time written exchanges are completed.
The power to award costs in Planning Appeals is contained ins.250(5) of the Local Government Act 1972, which states:
The Minister causing an Inquiry to be held under this section may makeorders as to the costs of the parties at the Inquiry and as to the parties bywhom the costs are to be paid and every such order may be made a rule of theHigh Court on the application of any party named in the order
As aconsequence, if either party wishes to have the costs assessed by a Costs Judgeor a costs officer, the order must be made an order (rather than a ‘rule’) of theHigh Court. An assessment takes place in the Senior Courts Costs Office, butthe application for the conversion of the Inspector’s order into a High Courtorder is made to the Administrative Court Office of the High Court at RoyalCourts of Justice, Strand, London WC2A 2LL.
Mostimportantly interest on the costs can only run from the date of the High CourtOrder. It must be noted that it does not and cannot run from the date of theInspector’s order, because such an order does not qualify as an order under theJudgments Act 1838 s.17.
As a matterof practice, there is no overriding obligation to have the order for costs madean order of the High Court. Indeed, the parties may be able to agree the costs,but if there is a dispute about the quantum and assessment is required, theorder should be made an Order of the High Court. This tactic would enable aformal assessment to take place in the SCCO, so that interest may then run onthe costs (at 8%) from the date of the High Court Order.
Michael Bacon
Company Founder
A&M Bacon Limited
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About A&M Bacon:
A&MBacon is the UK's leading independent firm of Costs Lawyers. We specialise inall aspects of Civil Litigation Costs. We are regularly instructed by bothpaying and receiving parties. More information at www.aandmbacon.co.uk
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