Costs award in planning appeals – how much can I actually claim?

It is commonplace that if someone involved in your planning appeal behaves unreasonably then you are able to make a claim for an award of costs to the Planning Inspectorate (whatever the vehicle for the appeal – be it written representations, a hearing or an inquiry).  However, how far does that costs award go? Does it just include the costs from the date of the appeal, before the appeal or just for a period of time defined by the Planning Inspectorate as part of the award? The recent High Court case of Harlow District Council v Powerrapid Limited [2023] EWHC 586 (KB) may assist with potentially addressing these questions.

Currently the Government guidance on claims for costs in planning appeals states:

‘You may be able to claim costs if someone involved in your appeal behaves unreasonably and costs you money. This includes if they:

•              fail to co-operate with you or others

•              miss deadlines

•              fail to turn up to a site visit, hearing or inquiry

•              gave information that was wrong or declared after the deadline.’

What costs you can claim

‘You can claim for costs directly related to your appeal, for example:

•              time preparing for an appeal

•              attending a hearing or inquiry

•              the use of consultants to provide detailed technical advice

•              witnesses if you need to pay them.

You can’t claim for costs relating to your original planning application.’

In Harlow v Powerrapid (which concerned a Compulsory Purchase Order Inquiry in which the Planning Inspector awarded costs ‘of the inquiry’) the court addressed the question of do the ‘costs of’ the inquiry also extend to costs incidental to the inquiry (including negotiations before the Compulsory Purchase Order being issued)?

The court found that the costs of the inquiry included costs incurred before the proceedings before the Compulsory Purchase Order was issued.

Can we now apply this judgement to a planning appeal? The judgement in Harlow v Powerrapid seems to suggest that it can and that a costs order can extend before the appeal was even lodged. The NPPG (National Planning Policy Guidance) is just guidance and the court in the case noted at paragraph 50 of the judgment that: “50. The effect of the Guidance is not, therefore, to impose a blanket mandatory restriction on the recovery of pre-action costs or of costs incidental to the proceedings.”

How does this impact an application for costs in a planning appeal? If the unreasonable behaviour that led to the award of costs commenced before the appeal was submitted, then there is an argument that this can be included in the period of the costs application, but it would be wise to be specific in your application for costs quoting this High Court decision.

It is worth noting that even a successful award of costs doesn’t usually cover all costs incurred, but this case now opens the door to a greater proportion of costs being recovered and will have implications to all parties involved in an appeal and should be a consideration throughout the planning process to avoid being penalised for unreasonable behaviour. Could this be the magic bullet to speed up the planning system? Only time will tell but the next few months’ decisions on costs will be very interesting to follow.