When can you win costs in a planning appeal?

When can you win costs in a planning appeal?

Most people assume that if they win a planning appeal, the council will be required to pay their costs.

That is not how the system works. The general principle is that each party bears its own costs, and the fact that an appeal is successful does not, in itself, justify an award.

However, the inspector does have the power to award costs where one party has behaved unreasonably and, as a result, caused the other to incur unnecessary expense.

What is an award of costs?

Planning appeals are intended to provide an independent review of planning decisions. Government guidance recognises that it is unreasonable for applicants to incur the time and expense of pursuing an appeal where a refusal is not supported by proper planning judgement.

For that reason, an appellant is entitled to apply for an award of costs. These are not awarded simply because the council was wrong, but because it acted unreasonably in the way it reached or defended its decision.

Costs awards are relatively uncommon. Inspectors apply a high threshold and will only make an award where there is clear evidence of unreasonable behaviour.

Where costs are awarded to an appellant, it is usually because the council has behaved in a way that lacks any sound planning basis. This might include failing to properly assess a proposal against policy, relying on vague or generalised assertions about harm, or refusing permission in circumstances where similar development has already been accepted.

It is also important to understand the scope of a costs award. It will cover the direct costs of preparing and pursuing the appeal, but it does not extend to compensation for delay, loss of income, or the cost of submitting the original planning application.

A recent example: full costs awarded against Kingston Council

We recently secured a full award of costs in an appeal relating to a two-storey rear extension in Chessington.

In that case, the council refused planning permission on the basis of design and alleged harm to neighbouring living conditions. The inspector disagreed and granted permission.

More importantly, she found that the council’s decision-making had been unreasonable. In her costs decision, she noted that the council had relied on vague and generalised assertions about harm which were unsupported by objective analysis.  

She also identified that there had been no meaningful assessment of the actual impact on neighbouring properties and that the existing pattern of development had not been properly taken into account. In addition, the council had taken a different position to an earlier application at the same site without providing any explanation.

In those circumstances, the inspector concluded that the refusal had not been properly justified and that the appellant had been put to unnecessary expense in pursuing the appeal. A full award of costs was therefore made.

Another example: Newham Council

We have seen similar issues arise in other cases, including in this appeal against the London Borough of Newham.

In that case, the proposed extension closely reflected other development along the same street, including at neighbouring properties. The council nevertheless refused permission, raising concerns about design and impact on neighbours.

The inspector rejected those concerns, finding that the proposal would sit comfortably within the established pattern of development and would not give rise to any material harm. He also concluded that the council had failed to properly substantiate its reasons for refusal and had prevented development that should clearly have been permitted.

Costs were awarded on that basis.

Costs are not automatic

It is important to approach costs applications realistically. A successful appeal does not, in itself, justify an award of costs, and many appeals are allowed without any costs being awarded.

It is also worth noting that costs can be awarded against an appellant. This may occur where an appeal is pursued with no realistic prospect of success, or where a proposal is materially identical to one that has already been dismissed.

For that reason, it is important to take a considered view at the outset as to whether a costs application is likely to succeed.

A note of caution

It is not always in a client’s best interests to pursue a costs application, even where there is a reasonable argument that the council has behaved unreasonably.

In many appeals, councils do not devote significant resources to defending their decisions. This can work in the appellant’s favour. However, where a costs application is made, the council may feel under pressure to justify its position more fully in order to avoid a financial penalty.

In practice, this can result in a more detailed and robust defence of the refusal than might otherwise have been the case.

For most clients, the primary objective is to secure planning permission. The question of costs is usually secondary and should be considered carefully in light of the overall strategy.

Should you apply for costs?

Whether to apply for costs will depend on the particular circumstances of the case.

Where a refusal is clearly unsupported by evidence or policy, and has resulted in unnecessary expense, a costs application may well be justified. However, it should always be approached with a degree of caution.

As part of our work on planning appeals, we advise clients not only on their prospects of success, but also on whether a costs application is appropriate and tactically sensible.

If you have had planning permission refused and are considering an appeal, we can review the decision and provide clear, practical advice on the best way forward.