Public Path Orders
7 Costs
7.1 If a decision is made following the written representations procedure there is no power to make those who make representations responsible for some or all of the other party's costs.
7.2 Authorities, objectors and anyone else involved with the order are normally expected to cover their own expenses in inquiry cases. However, anyone can ask the Secretary of State to order that one side pays some or all of the other side's costs.
7.3 Before agreeing to this, the Secretary of State will have to be sure that the person applying had to pay unnecessary costs because of the unreasonable behaviour of the other side.
7.4 There is no legal definition of the phrase unreasonable behaviour in this context. Unreasonable here has its ordinary meaning. Either side may have to pay all the costs if the inquiry could reasonably have been avoided. For example, the authority may have to pay everything if the inspector finds a basic defect in the order and rejects it, so that the objectors have wasted money going to the inquiry or hearing.
7.5 An objector may make an objection which is later found not to be relevant to a decision on the order. If we have given the objectors the chance to change an irrelevant objection and they have not done so, they may be treated as having acted 'unreasonably' by taking the irrelevant objection to the inquiry.
7.6 Whether or not an objection to an order is irrelevant will depend on the type of order and the circumstances of the case. As a guide to what the inspector will consider for each type of order, see part 5 of this booklet.
7.7 The Secretary of State may decide that it is necessary to hold an inquiry even though no one else wants one. In these circumstances, objectors do not have to go to the inquiry but should let us know if they cannot or do not want to go. Their choice not to take part in the inquiry will not be treated as 'unreasonable behaviour'.
7.8 If an objector who asks for an inquiry or hearing fails to turn up or be represented without telling us, they may have to pay at least part of the authority's inquiry or hearing costs. To avoid these costs, they would have to show that there is a good reason why they should not pay.
7.9 For orders made under the Town and Country Planning Act 1990, who pays the costs will not depend on the result of the order.
7.10 However, the decision on certain orders made under the Highways Act 1980 may result in the authority automatically having to pay the costs. These types of cases are known as 'analogous' orders and are mentioned in section 7.13 below.
Applying for costs
7.11 If you want to apply for costs, you should tell the inspector after the authority has made its closing statement but before the hearing or local inquiry is officially closed. The inspector will normally remind you of this at the start of the hearing or inquiry. It should then be clear whether you have a case for arguing that someone has acted unreasonably. The inspector will listen to your case for costs and invite the other side to answer. After the hearing or inquiry, the inspector will make a decision on your application for costs. If, however, the inspector proposes modifications to the order in question s/he will make a report on your application for costs to the Secretary of State, who will decide it. When you apply for costs you will not be expected to work out the amount you are claiming straight away. This will be dealt with when a decision has been made on whether you are entitled to costs.
Late application
7.12 We will only accept an application for costs after the inquiry or hearing has closed if you can show you had a good reason for not applying earlier.
To make a late application, please write to:
The Planning Inspectorate
4/10 Eagle Wing
Temple Quay House
2 The Square
Temple Quay
Bristol
BS1 6PN
If your late application is accepted, we will tell you and the other people involved and arrange for both sides to make written representations before the Secretary of State makes a decision.
'Analogous' orders
7.13 An order made under Section 26 of the Highways Act 1980 is considered to be similar, to a compulsory purchase order in that, if it is accepted, the order takes away the landowner's rights to or interest in the land. The landowner then has a right to compensation. This kind of order, where compensation may be paid, is known as 'analogous'. Extinguishment and diversion orders made under sections 118 and 119 of the Act may be analogous depending on the circumstances of the case.
7.14 What this means is that if a person with an interest in land over which a path is to be created, diverted or closed objects at a local inquiry or hearing and is successful, that person's costs will automatically be paid by the authority.
7.15 If costs are awarded for an analogous order, it does not imply that the authority has behaved unreasonably.
7.16 You will find a fuller statement of the Secretary of State's policy on awarding costs in Department of the Environment Circulars 8/93 and 2/93 (Annex A, paragraphs 11 to 16 were revised by a Department for Environment, Food and Rural Affairs’ letter to all local authorities in England dated 2 August 2004). These statements can be viewed on our website.
