Change of plan

Superficially, the latest Planning Costs Circular 03/2009 appears to introduce few changes since the previous cost circular 8/93. However, if we scratch beneath the surface we can see that there are a number of key principles which will not only change the way in which planning appeals are conducted but the planning system generally.

Paragraph A12 of the circular sets out three conditions that need to be satisfied before costs can normally be awarded. Those conditions are as follows:

'1. a party has made a timely application for an award of costs.

2. the party against whom the award is sought has acted unreasonably; and

3. the unreasonable behaviour has caused the party applying for costs to incur unnecessary or wasted expenses in the appeal process '“ either the whole of the expense because it should not have been necessary for the matter to be determined by the secretary of state or appointed inspector, or part of the expense because of the manner in which a party has behaved in the process.'

Until this point one might think that there is no real change from the previous cost circular. However, it is clear from paragraph A25 of the circular that cost applications may relate to what happened before the appeal was lodged, provided those events are related to the appeal itself.

Target dates and local opposition

The circular will almost certainly trigger further debate on the issue of target dates. Paragraph B11 expressly states that in an appeal against non determination the local planning authority (LPA) should explain its reasons for not reaching a decision within the relevant time period. LPAs may be at risk of an award of costs if it is concluded that there were no substantive reasons to justify delaying the determination and a greater level of communication with the applicant would have enabled the appeal to be avoided all together.

To limit its exposure to costs, LPAs would be well advised to inform the applicant of any delay together with reasons to justify that delay and agree an extension of time with the applicant at the earliest possible opportunity.

Where officers' recommendations are not followed, LPAs will need to show reasonable planning grounds for taking a contrary decision and produce evidence on appeal to support the decision in all respects '“ if they fail to do so, costs may be awarded against them. No real change here then, but the circular goes further: paragraph B21 states that while LPAs are expected to consider the views of local residents when determining a planning application, the extent of local opposition is not, in itself, a reasonable ground for resisting development. Moreover, paragraph B22 warns LPAs that they will be at risk of an award of costs for unsubstantiated objections where they include valid reasons for refusal but rely almost exclusively on local opposition from third parties through representations and attendance at an inquiry or hearing, to support the decision.

Tactics and acting responsibly

Another real concern for LPAs is contained within paragraph A23. This provides that where a party had indicated an intention to apply for costs and has clearly set out the basis for the claim, their case would be strengthened if the opposing party was unable to explain why the relevant facts or matters referred to have not led to a change of stance. While this applies to both parties, applicants could use this as an aggressive tactic to put the LPA on notice of its costs at an early stage of the appeal process to cause the LPA to re-evaluate the strength of its case. These tactics could even be used during the application process if events have taken place, which on appeal would result in costs being unnecessarily and unreasonably incurred.

However, it is not just LPAs that need to tread carefully. Applicants are also required to act responsibly. The circular makes it clear that the appeal system should not be used as a bargaining tactic and should not be entered into without first considering a re-submission.

The circular goes further, requiring applicants to be confident in their case without commissioning substantial new evidence which was not made available to the LPA at the time of their consideration of the planning application. An applicant who acts otherwise will risk an award of costs for unreasonably introducing such evidence if, in dealing with it, the LPA incurs additional expense which would not have been incurred if the evidence was made available at the application stage.

Advising applicants

Those advising applicants will not only need to carry out a full review of the planning merits and their case strategy but also the evidence needed to make the application as robust as possible from the outset.

Also, before submitting an appeal, an applicant will need to consider the strength of the application in the context of the decision that it is appealing against and whether it needs to commission any substantial new evidence.

Although the circular does not change the general principle that costs in planning cases do not follow the event, it does bring more formality to the appeal process by adopting many of the principles set out in the Civil Procedure Rules 1998. Those that are fully up to speed with this circular will not only be able to apply it to the issue of costs but also in the wider context of applications and appeals generally.

(NB For ease of reference 'applicant' also includes an 'appellant'.)