Planning Inspectorate Newsletter - Issue 7
Concise Costs Decisions - Simpler Processes
Background
1. The White Paper Appeals Consultation document flags up possible future changes to the costs regime to reinforce simpler and quicker processes, but in the meantime this note looks at what is practical now to aid writing costs decisions.
2. The longstanding procedure in the current Costs Circular (8/93) is that any application for costs should be made to the Inspector at the Hearing or Inquiry (in practice, before the close/moving on to the site visit) Submissions are made orally in a now familiar way, but this is not a requirement The grounds for a costs application could be made in advance in writing to save time dealing with applications and responses orally at the end of the proceedings. Written costs submissions are currently experienced only for Section 174 and LDC (w/reps) appeals and the casework handled by the Costs and Decisions Team
Action
3. Now seems a good time to offer a different way of handling costs applications Procedure Teams are being asked to enclose a flyer with the standard letters 1 which refer to the costs regime. This flyer picks up on Q15 of the Department’s Costs Guide (a copy of which is sent to appellants) and seeks to encourage the principal parties (1) to submit any costs applications in writing before the hearing/inquiry if they already know the grounds on which they wish to rely and (2) alert the other party of their intention to do so well in advance.
4. Against this background, when referring to costs in general terms in the opening announcement, Inspectors should note whether an advance written application for costs has been made and, if so, invite the defending party to respond in writing by the end of the appeal submissions if they have not already done so.
5. The nature of costs applications may lead applicants to prefer to wait until after the planning evidence has been heard to decide whether to pursue costs In this case it will be necessary to take oral submissions. However, to help reduce the uncertainty and delay which deferred costs applications create it may help to advise parties at the outset that if they are thinking they might make an application for costs they should at the very least provide a skeleton in writing quoting the relevant parts of the circular and share this with the opposition as early in the Inquiry or Hearing as possible. There is no good reason why the costs process should be reliant on using surprise as a tactic. The process should be approached with a similar degree of openness as the planning case where parties are expected to declare their hand in advance.
6. Where submissions on costs are made in writing and disclosed to each party before the Inspector receives them, they can simply be taken as read and appended to the file. However, the parties should be asked to confirm that the submissions have been fully exchanged and therefore can be taken as read. If a written application or submission has not been disclosed to the other party, action is needed to ensure this is done before accepting it as part of the costs process if necessary, allowing a short adjournment.
7. If both parties are content to rely on written submissions either circulated in advance or during the Inquiry or Hearing without adding anything orally, the submissions can be taken as read and will not need to be reproduced in the costs decision. If there are oral submissions, these will need to be summarised and recorded in the costs decision and any significant departure from the written submissions noted.
8. If there are written submissions which have been taken into account by both parties to the costs application, there will be no need to summarise the parties’ cases following the banner headings, except to note the gist of any additional oral submissions, as appropriate. The reasoning in the decision should always focus on the key issue of whether unreasonable behaviour has occurred leading to unnecessary or wasted expense. The standard headings required for a concise costs decision are: “Decision” and “Reasons”.The costs template will be revised in due course.
9. For Ministerial casework, in addition to recording the gist of oral submissions as above, the costs report should also record any written submissions in the list of inquiry documents appended to the main report. The written submissions should be cited and cross-referenced at the start of the costs report, so that the Decision Branch’s attention is drawn to the procedural circumstances. This is in addition to appending the documents to the file as for costs decisions.
Leonora Rozee
Director of Policy
1. For all s78, 174 and LDC appeals going to a hearing or inquiry
