Costs - Circular 23/93 (Welsh Office)

Award of costs incurred in planning and other (including compulsory purchase Order) Proceedings

Annex 3 Unreasonable Behaviour Relating to the Substance of the Case, including Action Prior to Submission of Appeal

Awards against appellants

Unreasonable appeal

1. The right of appeal is a statutory right, but it should be exercised in a reasonable manner. Where there has been a recent appeal in respect of the same, or substantially the same, site and the same or a very similar development proposal, and the Secretary of State, or a Planning Inspector, has made it plain that the development should not be allowed, an appellant may be at risk of an award of costs against him if he persists with a further appeal, despite the previous decision. This might be a further planning appeal or an appeal, on ground (a) in section 174 (2) of the Town and Country Planning Act 1990(as amended), against a subsequent, related enforcement notice. In circumstances where the planning authority have not exercised their power under section 70A of the Town and Country Planning Act 1990 (inserted by section 17 of the Planning and Compensation Act 1991) to decline to determine a further planning application, the appellant will be at risk of having costs awarded against him if it is found, on appeal, that circumstances have not materially changed in the meantime.

2. Paragraph 25 of PPG 1 explains that where the development plan is material to the development proposal, and must therefore be taken into account, an application or appeal must be determined in accordance with the plan, unless material considerations indicate otherwise.

3. Accordingly, in a case where the development plan is material and there are no other material considerations (paragraph 26 of PPG 1), an appeal may be considered unreasonable where the planning authority can show that their determination of a planning application for a proposed development is in accordance with an operative plan which is up-to-date and consistent with national and regional policies; and they have substantiated this in their reasons for refusing permission and in their written statement on an appeal. As noted in paragraph 31of PPG 1, in these circumstances the applicant will risk an award of the authority's costs against him if he pursues the appeal to an inquiry or hearing, but is unable to produce substantial evidence to support the contention that there are material considerations which would justify an exception to the policies in the development plan.

4. Paragraph 31 of PPG 1 also deals with the case where the planning authority have refused an application on grounds of prematurity at a time when the development plan is being prepared or reviewed. In such a case where the planning authority have indicated clearly how the grant of permission for the development concerned would prejudice the outcome of the development plan process, an applicant who persists with an appeal risks having the planning authority's costs awarded against him if his action is found to be unreasonable. Advice on prematurity, and on the weight to be attached to emerging development plans, is stated in paragraphs 32 to 34of PPG 1.

5. If there are other material considerations, or if the development plan is not relevant to the application or appeal ( paragraphs 27 and 28of PPG 1), an appeal may be considered unreasonable when it must have been obvious from the Government's planning policy guidance or from judicial authority, where material to the particular case, that the appeal had no reasonable prospect of success. This particularly applies to major development proposals. Where an appellant is seeking permission for development in a Green Belt, which would normally be considered inappropriate there, it will not be sufficient to demonstrate, and rely on, a genuine belief that there are very special circumstances and that the proposal is sufficiently exceptional to justify overriding the Green Belt presumption (stated in PPG 2) against the development. In determining such a costs application, what matters is the adequacy of submitted evidence to justify an exception to general Green Belt policy. Another example is an advertisement appeal against a refusal of express consent for a large-scale poster site, where the display would clearly be contrary to the policy guidance on outdoor advertisement control in the Annex to PPG19. In any particular case, an appellant will be at risk of an award of costs against him if it is concluded that it must have been obvious, from the evidence presented, that the appeal had no reasonable prospect of success.

6. In all such cases, the planning authority will strengthen the case for an award of their costs if they can show that they drew the appellant's attention to the relevant facts and to the possible consequences of persisting in an appeal.

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