11. The parties at hearings and inquiries relating to public rights of way orders made by local authorities are normally expected to meet their own expenses irrespective of the outcome. Subject to the exceptions outlined at paragraph 14 below, costs are awarded only on grounds of “unreasonable “ behaviour. An award of costs does not therefore follow the event of the decision on merits. Applications for costs on grounds of unreasonable behaviour should be made to the inspector at the hearing orinquiry. Examples of unreasonable behaviour, by reference to what is expected generally of parties in appeals and other planning proceedings, and general procedural guidance are contained in Circular 8/93, “Awards of costs incurred in planning and other (including compulsory purchase order) proceedings”.

12. In general, and consistent with the statutory and policy framework for rights of way explained in this Circular and Annexes, the principal parties (that is, the local authority or a statutory objector) will not be at risk of an award of costs made against them unless the proceedings could reasonably have been avoided – for example where there is a fundamental defect in the order which renders it incapable of confirmation, or where there is a failure to comply with the normal procedural requirements of hearings and inquiries – and as a consequence this results in unnecessary, additional expense to the party applying. Similarly, objectors who exercise their right to be heard but subsequently fail to appear at the hearing or inquiry will be at risk of an award of costs against them for unreasonable behaviour.

13. The right of objection to an order is a statutory right but it should be exercised in a reasonable manner. Objectors who have been given the opportunity (in accordance with paragraph 9 above) to modify grounds of objection, which are not legally relevant, but have declined to do so, will be at risk of an award of the authority’s costs being made against them (under section 250(5) of the Local Government Act 1972, as applied by para 9 of Schedule 15 to the 1981 Act) if they pursue the objection, unmodified to a hearing or inquiry, but it must have been obvious that the objection, so pursued, had no reasonable prospect of success.

“Analogous” orders

14. Public path creation orders made under section 26 of the Highways Act 1980 are considered to be analogous to compulsory purchase orders, in that the making or confirmation of the order would take away from an objector some right or interest in land for which the statute gives a right to compensation. Extinguishment and diversion orders made under sections 118-119A of the 12980 Act may also be analogous, depending on the particular circumstances. The other types of order listed at paragraph 3 above are not considered to be analogous.

15. Therefore if a person with an interest in the land over which a path is to be created, extinguished or diverted successfully objects to such an order – that is the person attends, or is represented at, a hearing or inquiry and is heard as a statutory objector, and the order is not confirmed – an award of costs will be made in the person’s favour unless there are exceptional reasons for not doing so. No application for costs need be made at the hearing or inquiry by such an objector as the Secretary of State will write to the parties concerned. The award would be made against the authority making the order, although this would not, of itself, imply unreasonable behaviour by the authority.

16. General guidance on the award of costs in respect of compulsory purchase and analogous order procedure is provided in the separate guidance in Circular 8/93. Circular 8/93 is also amended as follows:

Sub paragraphs (1) [definitive map modification and reclassification orders] and (2) [public path and rail crossing orders] of paragraph 9 no longer apply; and
Annex 6 (costs in respect of compulsory purchase and analogous orders) applies to any orders of the kind listed at (6) [orders under section 26 of the Highways Act 1980] and (7) [orders made under sections 119 to 119A of the Highways Act 1980] of the Appendix to Annex 6 in which a hearing or an inquiry is held.

Defra

July 2004