Planning Appeal Costs Application

In the complex environment of UK property development, a refusal of planning permission by a Local Planning Authority (LPA) is not necessarily the final word on a project. While an appeal to the Planning Inspectorate offers a formal mechanism for redress, the financial implications of such proceedings extend beyond simple professional fees. A planning appeal costs application represents a specific legal procedure where one party seeks to recover their appeal-related expenses from the other, based on the principle that “unreasonable behaviour” has caused unnecessary or wasted expense.

For developers and homeowners alike, understanding the threshold for an award of costs is essential. The standard rule in planning appeals differs significantly from civil litigation; in planning, the parties usually meet their own expenses. However, the Secretary of State has the power to award costs if a party has behaved unreasonably and that behaviour has directly resulted in another party incurring costs that would not otherwise have been necessary. Navigating this process requires technical precision and a strategic understanding of the National Planning Practice Guidance (NPPG).

Key Takeaways

• Costs do not follow the event: Unlike court cases, the winning party in a planning appeal is not automatically entitled to their costs.
• Unreasonable behaviour is the trigger: An award depends entirely on demonstrating that a party acted unreasonably, causing unnecessary expenditure.
• Strict Deadlines: For written representations, the planning appeal costs application must be submitted at the same time as the appeal itself or the initial statement.
• Partial Awards: It is possible to receive a partial award of costs if only one specific aspect of the appeal was handled unreasonably.
• Professional Representation: Given the technical nature of “unreasonable behaviour” definitions, expert planning consultancy is vital to substantiating a claim.

Defining the Planning Appeal Costs Application

A planning appeal costs application is a formal request made to the Planning Inspectorate (or the Secretary of State) for an order requiring another party to pay all or part of the applicant’s costs. These costs typically include professional fees for planning consultants, architects, and legal counsel, as well as any specialist report fees (such as heritage or transport assessments) specifically commissioned for the appeal.

The criteria for a successful application are strictly defined by three conditions:

1. A party has behaved unreasonably.

2. This behaviour has caused another party to incur unnecessary or wasted expense.

3. The expense is directly related to the appeal process itself.

Summary of Cost Categories and Eligibility

Category	Description	Likelihood of Award
Substantive Unreasonableness	Lack of evidence for refusal, ignoring clear policy, or stalling development.	Moderate to High
Procedural Unreasonableness	Missing deadlines, failing to attend site visits, or late withdrawal of reasons for refusal.	High
Full Award	Covers the entirety of the appeal costs because the appeal should never have happened.	Lower Frequency
Partial Award	Covers specific costs related to one or two flawed reasons for refusal.	Common

The Concept of Unreasonable Behaviour

The foundation of any successful planning appeal costs application is the identification of “unreasonable behaviour.” This is not merely a disagreement over planning judgment; it is a failure to act within the procedural and policy-based boundaries expected of a professional participant in the planning system. We categorise these behaviours into substantive and procedural failures.

Substantive Unreasonable Behaviour

Substantive failures relate to the actual merits of the planning case. For a Local Planning Authority, this often involves refusing an application that clearly accords with the development plan without providing evidence-based material considerations to justify the departure. If an LPA refuses permission on “character and appearance” grounds but fails to cite specific design policies or produce visual evidence to support their claim, they may be vulnerable to a costs claim.

Other examples include:

• Failing to take into account relevant judicial authorities or previous appeal decisions.
• Persisting in objections that were clearly dismissed in a previous appeal on the same site for a similar scheme.
• Refusing permission based on a factor that is clearly covered by permitted development rights or prior approval regulations.
• Imposing conditions that are obviously unnecessary, unenforceable, or illegal.

Procedural Unreasonable Behaviour

Procedural failures are often easier to quantify as they relate to the mechanics of the appeal. If a party fails to adhere to the strict timetable set by the Planning Inspectorate, causing delays and additional work for others, this is deemed unreasonable. A common scenario involves an LPA withdrawing one or more reasons for refusal shortly before a hearing or inquiry, forcing the appellant to pay for expert witnesses who are no longer needed.

We often see procedural awards when an LPA:

• Fails to provide a statement of case or required documents on time.
• Provides inaccurate information that misleads the Inspector and other parties.
• Refuses to enter into a Statement of Common Ground, leading to unnecessary debate on settled facts.
• Forces a case to a Public Inquiry when it could have been handled via Written Representations.

The Application Process and Timelines

The procedure for a planning appeal costs application varies depending on the format of the appeal. Precision in timing is critical; missing a deadline for a costs application is usually fatal to the claim, as the Planning Inspectorate has limited discretion to accept late submissions.

Written Representations

In the majority of householder and minor commercial appeals, the process follows “written reps.” In these cases, the costs application must be submitted at the same time as the initial appeal or the appellant’s first statement of case. This allows the LPA to respond to the costs claim as part of their own submission, ensuring procedural fairness. We advise clients that the application should be a standalone document, clearly cross-referenced to the grounds of appeal.

Hearings and Inquiries

For more complex developments requiring a hearing or a Public Inquiry, the costs application is typically made orally or in writing before the close of the proceedings. The Inspector will usually set aside time at the end of the event to hear arguments regarding costs. It is standard practice to submit a written summary of the costs claim to the Inspector and the other party 24 hours before the hearing begins to prevent claims of surprise.

The Role of the Planning Inspector

The Inspector who decides the planning appeal is usually the same individual who decides the costs application. However, these are two distinct decisions. You can win your planning appeal and lose your costs application, or vice versa. The Inspector will issue a separate “Costs Decision” alongside the main “Appeal Decision.” If the application is successful, the Inspector will issue an “Order of Costs,” which mandates the payment.

Quantifying the Costs

It is important to note that the Planning Inspector does not determine the exact pound-and-pence amount of the award. The Inspector’s role is to decide if an award is justified and whether it should be “full” or “partial.” Once an Order of Costs is issued, the two parties are expected to negotiate the final sum between themselves.

The costs claimed must be reasonable and proportionate. They typically include:

• Professional Planning Consultancy: Fees for preparing the grounds of appeal and managing the case.
• Technical Reports: Costs for updated ecology, noise, or traffic surveys required to rebut an unreasonable refusal reason.
• Legal Fees: Instruction of solicitors or barristers for inquiries.
• Internal Expenses: In some cases, the time of staff members within a development company, though this is harder to recover than external consultant fees.

If the parties cannot agree on the final amount, the matter is referred to the Senior Courts Costs Office for “detailed assessment.” This is a separate legal process, similar to how costs are settled in a civil court, and it can add further delay and expense. Therefore, we always aim to reach a settled agreement through transparent communication of fee invoices and time logs.

Strategic Considerations for Developers

A planning appeal costs application should be viewed as a strategic tool rather than a retributive measure. The threat of a costs application can sometimes encourage an LPA to be more pragmatic during the pre-appeal stage or to settle via a site feasibility review. However, the Planning Inspectorate discourages using costs applications as a “tactical weapon” to pressure local authorities.

Assessing the Risk of Counter-Claims

Clients must be aware that the LPA can also apply for costs against the appellant. If a developer pursues an appeal that has no reasonable prospect of success, or if they behave unreasonably during the process—such as introducing new evidence at the last minute or failing to attend a site visit—they may be ordered to pay the council’s costs. We conduct a rigorous risk assessment before every appeal to ensure our clients are protected from such counter-claims.

The Importance of the Statement of Common Ground

One of the most effective ways to mitigate cost risks and build a case for an award is through a robust Statement of Common Ground (SoCG). By narrowing the issues in dispute, we demonstrate a willingness to cooperate. If the LPA refuses to agree on facts that are self-evidently true, their refusal becomes a primary piece of evidence for a planning appeal costs application based on procedural unreasonableness.

Case Scenarios: When to Apply for Costs

To illustrate the practical application of these rules, consider the following scenarios where an award of costs is frequently sought and granted.

Scenario 1: Lack of Evidence for Refusal

An LPA refuses a scheme for five new dwellings, citing “harm to the setting of a Grade II listed building.” However, the council’s own Conservation Officer had previously written a report stating the impact was “neutral.” During the appeal, the LPA fails to produce a heritage expert to defend the point. In this instance, a planning appeal costs application for a partial award (covering the heritage-related costs) would have a high probability of success.

Scenario 2: Ignoring Permitted Development Rights

A homeowner applies for a certificate of lawfulness for an extension under permitted development rights. The LPA refuses it, claiming it requires full planning permission. The Inspector finds that the development was clearly within the limitations of the General Permitted Development Order. Since the LPA failed to apply the law correctly, a full award of costs is often appropriate because the appeal was entirely avoidable.

Scenario 3: Late Withdrawal of Objections

A developer prepares for a four-day Public Inquiry regarding a large-scale commercial change of use. Two days before the inquiry, the LPA informs the Inspector that they are no longer contesting the “highway safety” reason for refusal. The developer has already paid for a specialist transport consultant to attend the inquiry. A partial award of costs would be sought to recover the consultant’s fees and the legal preparation time associated with that specific issue.

Advanced Insights: Costs in Enforcement Appeals

Appeals against Enforcement Notices carry a higher level of complexity. In these cases, the appellant is fighting to prevent the demolition or cessation of a use already in place. If the LPA issues an Enforcement Notice without first checking if the development was immune from action (due to the 4-year or 10-year rules), they are highly susceptible to a costs claim. Conversely, if an appellant uses the appeal simply to stall for time without a valid legal ground, the Inspector will not hesitate to award costs against them.

How We Support Your Costs Application

At Approved Planning, we do not view the costs application as an afterthought. It is an integral part of our appeal strategy. Our approach is built on technical precision and an intimate knowledge of the Planning Inspectorate’s manual. We ensure that every claim is substantiated with a clear audit trail of unreasonable behaviour and its financial impact.

Our methodology includes:

• Early Warning Systems: We identify potential “unreasonable behaviour” by the LPA during the application stage, creating a paper trail of warnings before the appeal even begins.
• Evidence Collation: We maintain meticulous records of all professional time spent rebutting specific, unjustified reasons for refusal.
• Drafting Precision: We craft costs applications that use the specific language of the NPPG, making it difficult for Inspectors to dismiss the claim.
• Negotiation Expertise: Once an order is secured, we handle the settlement negotiations to ensure you receive the maximum possible recovery without further litigation.

Common Pitfalls in Costs Applications

Many self-represented appellants or less experienced firms fail to secure costs because they focus on the “unfairness” of the situation rather than the “unreasonableness” of the behaviour. Planning is a matter of judgment, and an Inspector will not award costs simply because they disagreed with the LPA’s decision. The error must be procedural or a clear failure to follow policy.

Avoid these common mistakes:

• Emotional Arguments: Using the application to complain about the council’s “attitude” rather than their technical failures.
• Vague Claims: Failing to specify whether a full or partial award is sought and which specific costs relate to which failure.
• Late Submissions: Failing to adhere to the strict timelines for written representation appeals.
• Over-claiming: Requesting costs that were not actually caused by the unreasonable behaviour (e.g., standard application fees).

Frequently Asked Questions

Can I apply for costs if I lose my planning appeal?

Yes. It is entirely possible to lose the appeal but still win an award of costs. For example, if the Inspector agrees that the development should be refused but finds that the LPA behaved unreasonably in how they handled one of the four reasons for refusal, you may receive a partial award for the wasted work on that specific point.

How long does it take to get the money after an award is made?

There is no statutory timeframe. Once the Inspector issues the Order of Costs, you must send a breakdown of your expenses to the other party. If they agree to the amount, payment is usually made within 28 days. If they dispute it, the process can take several months if it moves to a “detailed assessment” by the court.

Are my own time and stress covered by a costs award?

Generally, no. A planning appeal costs application covers “wasted expense,” which is typically interpreted as out-of-pocket professional fees. While a “litigant in person” can claim for their own time, it is calculated at a standard, relatively low hourly rate. Compensation for stress or general inconvenience is not available through the planning appeal system.

What happens if the LPA cannot afford to pay the award?

A costs award is a legally binding order. Local authorities are public bodies with statutory obligations to settle such debts. If an LPA fails to pay, the order can be enforced in the High Court or County Court like any other civil debt. In practice, local authorities almost always pay once a figure is agreed upon or assessed.

Does the Planning Inspectorate charge a fee for a costs application?

No, there is no additional fee payable to the Planning Inspectorate for making a planning appeal costs application. The costs involved are those you incur from your planning consultants or legal team to prepare and argue the claim.

Can third parties (objectors) be involved in costs awards?

Yes, though it is rare. If a third party (such as a local residents’ group) is granted “Rule 6” status at an inquiry and behaves unreasonably—for example, by causing a significant adjournment—costs can be awarded against them. Equally, they can apply for costs against the developer or the LPA if those parties behave unreasonably.

The Value of Technical Expertise

The distinction between a legitimate planning disagreement and “unreasonable behaviour” is often subtle. Successfully navigating a planning appeal costs application requires an expert eye that can distinguish between a difference in design preference and a failure to apply the National Planning Policy Framework correctly. We provide that expertise, ensuring that your appeal is not just a search for permission, but a robust defence of your financial interests.

By positioning your project correctly from the outset—ensuring site feasibility is established and all material considerations are addressed—we minimize the grounds for an LPA to act unreasonably. When they do, we are prepared to hold them to account. A well-executed costs application can significantly offset the financial burden of an appeal, making the pursuit of justice both a planning and a financial success.

Whether you are a homeowner facing an inexplicable refusal for a domestic extension or a commercial developer dealing with shifting reasons for refusal on a major site, our team offers the strategic intelligence required to navigate these waters. We act as the bridge between your architectural vision and the rigid, often unpredictable, realities of local authority approval.