Guidance

Appeals

Advice on planning appeals and the award costs.

Planning practice guidance will, where necessary, be updated in due course to reflect changes to the National Planning Policy Framework (the new version of which was published in July 2018). Where any hyperlinks direct users to the previous National Planning Policy Framework (2012), please disregard these. If you’d like an email alert when changes are made to planning guidance please subscribe.

Where plans are being prepared under the transitional arrangements set out in Annex 1 to the revised National Planning Policy Framework, the policies in the previous version of the framework published in 2012 will continue to apply, as will any previous guidance which has been superseded since the new framework was published in July 2018.

Planning appeals – general

Is there a right of appeal against decisions on planning permission and other planning decisions?

There is a right of appeal against most local authority decisions on planning permission and other planning decisions, such as advertisement consent, listed building consent, prior approval of permitted development rights, and enforcement.

Further information on appeals against decisions on planning permission can be found in section 2.

Further information on appeals against other planning decisions can be found in section 3.

Before making any appeal the party seeking permission should first consider re-engaging with the local planning authority to discuss whether any changes to the proposal would make it more acceptable and likely to gain permission. It is possible that a further planning application may be submitted without charge. However, this will depend on the circumstances of each case, so parties should ask the local planning authority for further details.

Applicants should give consideration to the merits of the case, and whether there are strong grounds to contest the reasons for refusal of permission, or the conditions attached to a permission, before submitting an appeal. Parties who pursue an appeal unreasonably without sound grounds for appeal may have an award of costs made against them; see section 4 for more information.

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Is there a right of appeal if the local planning authority does not make a decision within the statutory time period?

Yes, applicants may appeal if the local planning authority does not make a decision on the application within the deadline. Different deadlines apply, depending on the type of planning decision.

Further information on appeals against decisions about planning permission under section 78 of the Town and Country Planning Act 1990 can be found in section 2.

Further information on appeals against other planning decisions can be found in section 3.

However, applicants should first consider engaging with the local planning authority to establish when an application might be decided, before deciding whether to appeal against non-determination.

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What is the deadline for submitting an appeal against refusal of permission or unacceptable conditions?

Different deadlines apply to the various types of appeal. Further information on appeals against decisions about planning permission can be found in section 2.

Further information on appeals against other planning decisions can be found in section 3.

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Who decides the appeal?

Most appeals are determined by Planning Inspectors on behalf of the Secretary of State. However, the Secretary of State has the power to make the decision on an appeal rather than it being made by a Planning Inspector – this is referred to as a ‘recovered appeal’.

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When might an appeal be recovered?

Recovery can occur at any stage of the appeal, even after the site visit, a hearing or an inquiry has taken place. In recovered cases, a report will be passed to the Secretary of State to make the final decision, taking into account the Inspector’s recommendation. Guidance on propriety in Ministerial decision taking on planning matters has been published separately.

The Secretary of State will consider recovery in line with the criteria below, set out in a Parliamentary Statement on 30 June 2008. There may be other cases which merit recovery because of the particular circumstances:

  • Proposals for development of major importance having more than local significance.
  • Proposals giving rise to substantial regional or national controversy.
  • Proposals which raise important or novel issues of development control, and/or legal difficulties.
  • Proposals against which another government department has raised major objections or has a major interest.
  • Proposals of major significance for the delivery of the government’s climate change programme and energy policies.
  • Proposals for residential development of over 150 units or on sites of over 5 hectares, which would significantly impact on the government’s objective to secure a better balance between housing demand and supply and create high quality, sustainable, mixed and inclusive communities.
  • Proposals which involve any main town centre use or uses where that use or uses comprise(s) over 9,000 square metres gross floorspace (either as a single proposal or as part of or in combination with other current proposals) and which are proposed on a site in an edge of centre or out of centre location that is not in accordance with an up-to-date development plan document.
  • Proposals for significant development in the Green Belt. Major proposals involving the winning and working of minerals.
  • Proposals which would have an adverse impact on the outstanding universal value, integrity, authenticity and significance of a World Heritage Site.
  • Proposals involving traveller sites in the Green Belt, as set out in a statement to Parliament on 17 January 2014.
  • Proposals for residential development of over 25 units in areas where a qualifying body has submitted a neighbourhood plan proposal to the local planning authority, but where the relevant plan has not been made, as set out in a statement to Parliament on 7 July 2016.
  • Proposals for exploring and developing shale gas, as set out in a statement to Parliament on 16 September 2015.

A recovered appeal will be determined via written representations, a hearing or an inquiry in the same way as other planning appeals. Where an appeal case has been recovered, the Inspector will not make the decision but instead will write a report and include a recommendation to the Secretary of State who will make the decision.

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How are appeals determined?

In general, appeals are determined on the same basis as the original application. The decision will be made taking into account national and local policies, and the broader circumstances in place at the time of the decision. Where any change between the original planning decision and the appeal has the potential to affect the outcome, all parties will have an opportunity to comment on the new material.

The appeal will be determined as if the application for permission had been made to the Secretary of State in the first instance. This means that the Inspector (or the Secretary of State) will come to their own view on the merits of the application. The Inspector (or the Secretary of State) will consider the weight to be given to the relevant planning considerations and come to a decision to allow or refuse the appeal. As Inspectors (or the Secretary of State) are making the decision as if for the first time, they may refuse the permission on different grounds to the local planning authority. Where an appeal is made against the grant of permission with conditions, the Inspector (or the Secretary of State) will make a decision in regard to both the granting of the permission and the imposition of conditions.

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What procedure will the appeal follow?

The procedure to be followed at the appeal will depend on the complexity of the planning matters to be considered:

Appellants will be asked to indicate their view of the most appropriate procedure for their case, following the criteria laid down by the Secretary of State (see Annex K of the Planning Inspectorate Procedural Guide). However, in most appeals, the Planning Inspectorate has the power to determine that a different procedure be used.

All parties are expected to behave reasonably at all stages of the planning and appeal process, and ensure that they provide all the required information by due deadlines. Failure to behave reasonably may give rise to an award of costs; see section 4 for more information.

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Is there a right of appeal against permission granted to someone else?

Once the local planning authority has granted planning permission, there is no right of appeal to the Secretary of State against the decision, except by the original applicant where they are appealing against a condition.

A decision by the local planning authority can only be challenged in the courts on a point of law; for example, the way in which the decision has been made and whether the correct procedures have been followed. A challenge in the courts has to be brought within 6 weeks. Further information about applying for judicial review is provided by the Ministry of Justice.

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Can an appeal decision be challenged?

An appeal decision may only be challenged through the courts on certain statutory grounds. Proceedings to quash an appeal decision relating to the grant of planning permission must be brought within 6 weeks.

Further information about applications under section 288 of the Town and Country Planning Act 1990 can be found in the Administrative Court judicial review guide 2016.

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Is there an opportunity for interested parties to submit comments or objections regarding a proposal at appeal?

People who are interested in the outcome of an appeal have an important role to play in the planning process. Their representations indicating support for, or opposition to, a proposed scheme are taken into account by the Inspector along with other material considerations.

There are opportunities for interested parties, such as neighbours, to make comments on the majority of types of appeals. The local planning authority will normally advise interested parties of the appeal start date, and the date by which any representations should be made where applicable.

Further information on appeals against decisions on planning permission under section 78 of the Town and Country Planning Act 1990 can be found in section 2.

Further information on appeals against other planning decisions can be found in section 3.

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Appeals against refusal of planning permission

Is there a right of appeal against decisions on planning applications?

If an application for planning permission is refused by the local planning authority, or if it is granted with conditions, an appeal can be made to the Secretary of State against the decision, or the conditions, under section 78 of the Town and Country Planning Act 1990.

Before making any appeal the applicant should first consider re-engaging with the local planning authority to discuss whether any changes to the proposal would make it more acceptable and likely to gain planning permission. A revised planning application could then be submitted.

Applicants should give consideration to the merits of the case, and whether there are strong grounds to contest the conditions or reasons for refusal of planning permission before submitting an appeal. Parties who pursue an appeal unreasonably without sound grounds for appeal may have an award of costs made against them; see section 4 for more information.

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Is there a right of appeal if the local planning authority does not make a decision within the statutory time period?

Applicants for planning permission may appeal if the local planning authority does not make a decision on the application within the deadline (8 weeks for non-major applications, 13 weeks for major applications or 16 weeks for applications subject to an environmental impact assessment), in the absence of the written agreement of the parties to extend the decision-making period.

However, applicants should first consider engaging with the local planning authority to establish when an application might be decided, before deciding whether to appeal against non-determination.

For details on appeals against non-validation of the planning application see the guidance on delay in the validation of a planning application.

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What is the deadline for submitting an appeal against refusal of planning permission or permission with conditions?

Most planning appeals must be received within 6 months of the date on the decision notice. Where the appeal relates to an application for householder planning consent, and is to be determined via the fast track Householder Appeals Service, there are only 12 weeks to make the appeal (see Annex C of the Planning Inspectorate Procedural Guide).

There are different deadlines by which to submit an appeal under the Commercial Appeals Service:

  • appeals related to shop fronts must be submitted within 12 weeks
  • advertisement consent appeals must be submitted within 8 weeks.

For more detail see Annex C of the Planning Inspectorate Procedural Guide.

If an appeal on an application for planning permission is linked to enforcement action, there are only 28 days to make the appeal.

All appeals must be accompanied by the relevant application documents, including the full statement of case. For further information see the Planning Inspectorate Procedural Guide.

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How long will it take to receive a decision?

The Planning Inspectorate will endeavor to determine every appeal as efficiently as possible, and will aim to do so in line with performance targets.

Prodecure Time to determine
Householder Appeals Service 80% within 8 weeks
Commercial Appeals Service 80% within 8 weeks
Written Representations 80% within 14 weeks
Hearings 80% within 14 weeks
Inquiries (non-bespoke) 80% within 22 weeks

All parties must provide the evidence required and meet the procedural deadlines for these decision timescales to be achieved. Full details of the information required and the deadlines are in the Planning Inspectorate Procedural Guide.

Is there an opportunity for interested parties to submit comments or objections regarding a planning application, once at appeal?

There are opportunities for interested parties, such as neighbours, to make comments on the majority of planning appeals. The local planning authority will normally advise interested parties of the appeal start date and the opportunity to make comment.

For appeals determined via written representations and hearings such written representations must be made before the end of the fifth week after the start date of the appeal.

Certain parties have the right to appear at a hearing or inquiry under rule 11 of the Town and Country Planning (Inquiries Procedure) (England) Rules 2000, rule 11 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 and rule 9 of the Town and Country Planning (Hearings Procedure) (England) Rules 2000. The Inspector may also allow other interested parties to speak at a hearing or inquiry. Interested parties may occasionally want to take a more substantive role in an inquiry by submitting a statement of case. They would then be entitled to appear at the inquiry, call their own witnesses and in turn would be open to cross-examination. Further information can be found in the Planning Inspectorate’s Guide to rule 6 for interested parties involved at an inquiry, and Annex F of the Planning Inspectorate’s Procedural Guide.

In the case of householder, advertisement consent and minor commercial appeals, representations from interested parties made at the application stage will be provided to the Inspector by the local planning authority, but no new representations will be considered. Further information can be found in Annex C of the Planning Inspectorate’s Procedural Guide.

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Appeals against other planning decisions

It is possible to appeal against other planning decisions, including those listed below, but they may involve different grounds for appeal and deadlines.

In relation to advertisement consents an applicant may appeal under section 78 of the Town and Country Planning Act 1990, as modified by the Town and Country Planning (Control of Advertisements) (England) Regulations 2007, where the local planning authority:

  • refuses consent;
  • grants consent subject to unacceptable conditions;
  • serves a notice requiring the discontinuance of the advertising;
  • fails to give notice of its decision within 8 weeks of the application for consent.

Appeals against refusal of advertisement consent will generally be dealt with under the expedited Commercial Appeals Service, which allows for faster determination of less complex cases using a simplified written representations procedure. For more detail see Annex C of the Planning Inspectorate Procedural Guide.

Advertisement consent appeals will be dealt with under the standard written representations procedure or by a hearing or inquiry (for more detail see Annex R of the Planning Inspectorate Procedural Guide) where the local planning authority:

  • refuses consent in complex cases considered by the Secretary of State or the Inspector to be unsuitable for the expedited Commercial Appeals Service;
  • grants consent subject to unacceptable conditions;
  • serves a notice requiring the discontinuance of the advertising;
  • fails to give notice of its decision within 8 weeks of the application for consent.

Advertisement consent appeals must be submitted within 8 weeks of receipt of the decision notice, or in non-determination cases within 8 weeks of the date on which the local planning authority should have given its decision. Where a party is appealing against a discontinuance notice, the appeal must be submitted before the notice is due to take effect.

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Appeals in relation to the Community Infrastructure Levy

There is no right of appeal against the principle of liability to pay the levy; all qualifying development is liable for the appropriate charge. There is however a right of appeal, with time-limits, against some aspects of the levy process. More information can be found in the guide to the Community Infrastructure Levy.

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Appeals against an enforcement notice

There is a right of appeal for anyone who has an interest in the land to which the enforcement notice relates, or who is a relevant occupier, whether or not they have been served with a copy of the notice. Anyone occupying the land by virtue of a licence is a relevant occupier.

An appeal must be received before the enforcement notice comes into effect. This date will be on the enforcement notice, and should be at least 28 days from the date of issue of the enforcement notice which should also be shown on the notice.

Under section 174(2) of the Town and Country Planning Act 1990, an appeal may be made on one or more of the following grounds:

a. planning permission ought to be granted or the condition or limitation concerned ought to be discharged;

b. the matters stated in the enforcement notice have not occurred;

c. the matters stated in the enforcement notice (if they occurred) do not constitute a breach of planning control;

d. at the date when the notice was issued, no enforcement action could be taken;

e. copies of the enforcement notice were not served in accordance with the relevant statutory requirements;

f. the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary either to remedy any breach of a planning control or to remedy any injury to amenity which has been caused by any such breach; and/or

g. any period specified in the notice falls short of what should reasonably be allowed.

An appeal on ground (a) is not possible where a related application for planning permission has been made and the local planning authority issued an enforcement notice before the time for determining the application has expired.

A ground of appeal that is cited unreasonably, even if later withdrawn, may be subject to a claims for costs where it has caused unnecessary expense for the local planning authority; see section 4 for more information.

See the guidance for further details.

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An appeal against the decision on an application for hazardous substances consent can be made to the Secretary of State if the hazardous substances authority:

  • refuses to grant consent;
  • refuses an application for a continuation of consent upon change in ownership of part of the land;
  • refuses to grant any consent, agreement or approval required by a condition imposed on a consent;
  • refuses an application to vary or remove conditions attached to a previous grant of consent;
  • grants consent but imposes conditions which are unacceptable to the appellant; or
  • fails to reach a decision within the statutory time limit of 8 weeks, or any longer period which the appellant and the authority have agreed.

Appeals may be made at any time within 6 months of the decision or, if no decision has been made, within 6 months from when a decision should have been given. This gives the applicant time to discuss matters with the hazardous substances authority to see if there is any possibility of finding a way of overcoming its objections bearing in mind that an appeal is intended to be a last resort.

Further information about hazardous substances consent appeals.

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Appeals against refusal of a lawful development certificate

An appeal can be made to the Secretary of State under section 195 of the Town and Country Planning Act 1990 if an application for a lawful development certificate is:

wholly or partly refused (including cases where the local planning authority issues a certificate in a different form); or not determined within the statutory 8 week period unless an extension has been agreed upon in writing. There is no time limit in which to appeal.

See the guidance for further details

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An appeal can be made to the Secretary of State under section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990 where:

  • an application for listed building consent is refused or granted subject to conditions;
  • an application for the variation or discharge of conditions imposed on a grant of consent is refused or granted subject to new conditions;
  • an application for approval required by a condition imposed on the granting of consent with respect to details of works is refused or granted subject to conditions; and/or
  • the local planning authority has failed to determine the application within the prescribed time period of 8 weeks or such longer period as may have been agreed.

Such appeals must be submitted within 6 months of the date of the decision notice or expiry of the determination period.

See the guidance for further details.

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Appeals against a listed building enforcement notice

A person having an interest in the building to which the enforcement notice relates or a relevant occupier may appeal to the Secretary of State. A relevant occupier is anyone occupying the building to which the notice relates by virtue of a licence. Appeals may be made under section 39 of the Planning and Listed Buildings Act 1990 on any of the following grounds:

  • the building referred to in the listed building enforcement notice is not of special architectural or historic interest;
  • the matters alleged in the enforcement notice have not taken place or do not constitute a contravention;
  • that the following criteria are all satisfied:
    • the works were urgently necessary in the interests of safety, health or the preservation of the building;
    • it was not practicable to secure safety, health or the preservation of the building through works of repair or works affording temporary support or shelter; and
    • the works undertaken were the minimum measures immediately necessary;
  • consent ought to be granted or any relevant condition imposed on the grant of consent ought to be discharged or different conditions substituted;
  • copies of the notice were not properly served; and/or
  • certain grounds relating to excessive requirements of the enforcement notice are excessive eg period for compliance is unreasonable.

Such appeals must be made before the date on which the enforcement notice comes into effect. This date will be specified in the enforcement notice.

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Appeals on modification and discharge of planning obligations and affordable housing requirements

For further information see the guidance on planning obligations, and the guidance on affordable housing requirements.

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Prior approval appeals, including the neighbours’ consultation scheme

Applicants may appeal under section 78 of the Town and Country Planning Act 1990 against a local planning authority’s refusal or non-determination of an application for prior approval for development permitted by the Town and Country Planning (General Permitted Development) (England) Order 2015.

Prior approval appeals generally follow the same procedures and timetables as appeals relating to ordinary planning permissions. Appeals against refusal of prior approvals relating to dwellinghouses, including the neighbours’ consultation scheme for larger home extensions under Class A of Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, will be made under the householder appeals process (see Annex C of the Planning Inspectorate Procedural Guide). Such appeals must be submitted within 12 weeks.

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Appeals against decisions in relation to Tree Preservation Orders

Following an application for consent to cut down or carry out work on a tree subject to a Tree Preservation Order, applicants can appeal to the Secretary of State under section 208 of the Town and Country Planning Act 1990 and regulation 19 of the Town and Country Planning (Tree Preservation) (England) Regulations 2012. An appeal may be made if the authority:

a. refuses consent;

b. grants consent subject to a conditions;

c. refuses an application for any consent, agreement or approval required under the terms of a condition of consent, or grants it subject to conditions;

d. fails to determine the application for consent within 8 weeks from the day after they received the application; or

e. serves a tree replacement notice

The appeal must be received by the Planning Inspectorate within 28 days of the date of notification of the authority’s decision, or such later date as may be allowed, except:

  • in relation to (d) above, where following the 8 weeks an appeal can be made at any time until the applicant is notified of the authority’s decision, when the 28 day limit applies
  • in relation to (e) above, where the appeal must be made before the tree replacement notice takes effect

Detailed guidance on the procedures for appeals made to the Secretary of State under regulation 19 of the 2012 Regulations are on the appeal a decision about a tree preservation order pages.

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Appeals against the non-validation of an application

For further information see the guidance on delay in the validation of an application.

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The award of costs – general

What is an award of costs?

An award of costs is an order which states that one party shall pay to another party the costs, which may be in full or in part, which have been incurred by the receiving party during the process by which the Secretary of State’s or Inspector’s decision is reached. The costs order states the broad extent of the expense the party can recover from the party against whom the award is made. It does not determine the actual amount.

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Why do we have an award of costs?

Parties in planning appeals and other planning proceedings normally meet their own expenses. All parties are expected to behave reasonably to support an efficient and timely process, for example in providing all the required evidence and ensuring that timetables are met. Where a party has behaved unreasonably, and this has directly caused another party to incur unnecessary or wasted expense in the appeal process, they may be subject to an award of costs.

The aim of the costs regime is to:

  • encourage all those involved in the appeal process to behave in a reasonable way and follow good practice, both in terms of timeliness and in the presentation of full and detailed evidence to support their case
  • encourage local planning authorities to properly exercise their development management responsibilities, to rely only on reasons for refusal which stand up to scrutiny on the planning merits of the case, not to add to development costs through avoidable delay,
  • discourage unnecessary appeals by encouraging all parties to consider a revised planning application which meets reasonable local objections.

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Who can apply for an award of costs and who can have costs awarded against them?

Local planning authorities, appellants and interested parties who have taken part in the process, including statutory consultees, may apply for costs, or have costs awarded against them. A party applying for costs may have costs awarded against them, if they themselves have behaved unreasonably.

An Inspector or the Secretary of State may, on their own initiative, make an award of costs, in full or in part, in regard to appeals and other proceedings under the Planning Acts if they consider that a party has behaved unreasonably resulting in unnecessary expense and another party has not made an application for costs against that party.

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In what circumstances may costs be awarded?

Costs may be awarded where:

  • a party has behaved unreasonably; and
  • the unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense in the appeal process.

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What does “unreasonable” mean?

The word “unreasonable” is used in its ordinary meaning, as established by the courts in Manchester City Council v SSE & Mercury Communications Limited [1988] JPL 774.

Unreasonable behaviour in the context of an application for an award of costs may be either:

  • procedural – relating to the process; or
  • substantive – relating to the issues arising from the merits of the appeal.

The Inspector has discretion when deciding an award, enabling extenuating circumstances to be taken into account.

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What counts as unnecessary or wasted expense?

An application for costs will need to clearly demonstrate how any alleged unreasonable behaviour has resulted in unnecessary or wasted expense. This could be the expense of the entire appeal or other proceeding or only for part of the process.

Costs may include, for example, the time spent by appellants and their representatives, or by local authority staff, in preparing for an appeal and attending the appeal event, including the use of consultants to provide detailed technical advice, and expert and other witnesses.

Costs applications may relate to events before the appeal or other proceeding was brought, but costs that are unrelated to the appeal or other proceeding are ineligible. Awards cannot extend to compensation for indirect losses, such as those which may result from alleged delay in obtaining planning permission.

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Can costs be claimed for the period during the determination of the planning application?

No, but all parties are expected to behave reasonably throughout the planning process. Although costs can only be awarded in relation to unnecessary or wasted expense at the appeal or other proceeding, behaviour and actions at the time of the planning application can be taken into account in the Inspector’s consideration of whether or not costs should be awarded.

Applicants for planning permission should not attempt to delay a decision on their application, simply to obtain a fee refund. A local planning authority will be justified in refusing permission where an applicant causes deliberate delay and has been unwilling to agree an extension of time; such behaviour will be taken into account in determining any claim for costs if the applicant then makes an appeal.

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How does the award of costs apply to called-in planning applications?

When a planning application is “called-in”, it is determined by the Secretary of State rather than by the local planning authority. This places the parties at a called-in proceeding in a different position from that in a planning appeal. The local planning authority is not defending a decision to refuse planning permission, or a failure to determine the application within the prescribed period.

In these circumstances, it is not envisaged that a party would be at risk of an award of costs for unreasonable behaviour relating to the substance of the case or action taken prior to the call-in decision. However, a party’s failure to comply with the normal procedural requirements of inquiries, including aborting the process by withdrawing the application without good reason, risks an award of costs for unreasonable behaviour.

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How to make an application for an award of costs

How does a party make an application for costs?

Applications for costs should be made as soon as possible, and no later than the deadlines below:

  • In the case of appeals determined via the Householder Appeals Service, Commercial Appeals Service, appeals against the refusal of advertisement consent and appeals against tree preservation orders the costs application must be made in writing when the appeal is submitted, if the application is made by the appellant, or within 14 days of the date of the ‘start date’ letter for the appeal if the application is made by the local authority.
  • In the case of appeals determined via written representations, the costs application must be made in writing by any party no later than the final comments stage. The Planning Inspectorate has the flexibility to set an alternative deadline, which would be notified to all parties. Where the costs application concerns conduct relating to the site visit itself, applications should be received no later than 7 days after the date of the site visit.
  • In the case of hearings and inquiries:
    • All costs applications must be formally made to the Inspector before the hearing or inquiry is closed, but as a matter of good practice, and where circumstances allow, costs applications should be made in writing before the hearing or inquiry. Any such application must be brought to the Inspector’s attention at the hearing or inquiry, and can be added to or amended as necessary in oral submissions.
    • If the application relates to behaviour at a hearing or inquiry, the applicant should tell the Inspector before the hearing is adjourned to the site, or before the inquiry is closed, that they are going to make a costs application. The Inspector will then hear the application, the response by the other party, and the applicant will have the final word. The decision on the award of costs will be made after the hearing or inquiry.
  • For all procedures, no later than 4 weeks after receiving notification from the Planning Inspectorate of the withdrawal of the appeal or enforcement notice or other planning matter which is the subject of the proceedings, irrespective of procedure . An application for costs can be made by letter, or by using the Planning Inspectorate’s application form.

Anyone making a late application for an award of costs outside of these timings will need to show good reason for having made the application late, if it is to be accepted by the Secretary of State for consideration.

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Revision date: 10 12 2016 See previous version

When may Inspectors initiate an award of costs?

The award of costs supports an effective and timely planning system in which all parties are required to behave reasonably. In order to support this aim further, Inspectors may use their existing legal powers to make an award of costs where they have found unreasonable behaviour, including in cases where no application has been made by another party. Inspectors, or the Secretary of State, will apply the same guidance when deciding an application for an award of costs, or making an award at their own initiative.

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Can I apply for costs in other types of appeals or planning proceedings?

It may be possible to apply for an award of costs in regard to appeals under legislation made by other government departments. See the full list of appeals where costs may be sought. Information on the award of costs as it relates to major infrastructure.

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Is there an opportunity for the party against which the application of costs is made to provide comment?

Yes. A written application for costs will be disclosed to the party against whom the application is made, so that they can respond in writing. Where a party has made a written application for costs, clearly setting out the basis for the claim in advance, their case will be strengthened if the opposing party is unable to, or does not offer evidence to counter the case. The applicant then has the opportunity to make a final reply in writing.

For hearings and inquiries, the party against whom an application is made will have the opportunity to reply, either at the event or in writing. Similarly, a party will be given an opportunity to comment, where an Inspector is considering initiating an award of costs against them.

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Who makes the decision about the award of costs?

Most cost applications are determined by Inspectors. However, the Planning Inspectorate’s Costs and Decisions Team may deal with some cases. This includes applications arising from withdrawal of an appeal or enforcement notice. The Team also decides on the admissibility of late applications for costs.

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What is a full award of costs?

A full award of appeal costs means the party’s whole costs for the statutory process, including the preparation of the appeal statement and supporting documentation. It also includes the expense of making the costs application.

Where the process concerns a called-in planning application, the eligible costs start from the date of the letter notifying the applicant of the decision to call-in the application.

In other non-appeal cases, the eligible costs start from the date of the notification or statutory publication of, for example, the relevant order. This is the point at which the applicant for costs begins to incur expense in the ensuing statutory process.

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What is a partial award of costs?

Some cases do not justify a full award of costs, for example where the appeal is one of several joint appeals with evidence in common. Where the application for costs relates to one or some of the grounds of refusal but not all of them, an award might relate to the attendance of only particular witnesses. In these circumstances, a partial award may be made. The partial award may also be limited to a part of the appeal process. For example, where an unnecessary adjournment is caused by the unreasonable conduct of one of the parties, the award of costs may be limited to the abortive costs of attending the event on the day of the adjournment. A partial award may result from an application for either a full or a partial award.

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What happens if the appeal or an enforcement notice is withdrawn and the appeal is not decided?

If the appeal or enforcement notice is withdrawn without sound reason, or with avoidable delay, giving rise to unnecessary or wasted expense for another party, an application for costs can be made. Such applications should be made in writing to the Planning Inspectorate’s Costs and Decisions Team no later than 4 weeks after receiving confirmation from the Planning Inspectorate or the local planning authority (in the case of an interested party) that no further action is being taken.

In such cases the decision on the award of costs will be taken by an officer in the Planning Inspectorate’s Costs and Decisions Team, on behalf of the Secretary of State, following an exchange of written comments from the parties.

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Revision date: 10 12 2016 see previous version

Can a claim for an award of costs be withdrawn?

Yes, if the party who applied for an award of costs formally notifies the Planning Inspectorate of the withdrawal. This does not prevent another party from seeking costs, nor the potential for an Inspector to initiate an award against either party.

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How is the amount settled where an award is made?

The Inspector or Secretary of State can only address the principle of whether costs should be awarded in full or in part, and not the amount – this is settled subsequently between the parties.

Where a costs order is made, the party awarded should first send details of their costs to the other party, with a view to reaching agreement on the amount. Where costs are awarded against a party and the parties cannot agree on a sum, the successful party can apply to the Senior Courts Costs Office.

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What if the party does not pay?

Once the Planning Inspectorate has made an award of costs, it has no further role and it is for the parties to negotiate the amount and to agree on the arrangements for payment. Failure to settle an award of costs is enforceable through the Courts as a civil debt. If a party has any doubt about how to proceed in a particular case, they should seek legal advice.

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Behaviour that may lead to an award of costs against appeal parties

Local planning authorities

When might an award of costs be made against a local planning authority?

Awards against a local planning authority may be either procedural, relating to the appeal process or substantive, relating to the planning merits of the appeal. The examples below relate mainly to planning appeals and are not exhaustive. The Planning Inspectorate will take all evidence into account, alongside any extenuating circumstances.

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What type of behaviour may give rise to a procedural award against a local planning authority?

Local planning authorities are required to behave reasonably in relation to procedural matters at the appeal, for example by complying with the requirements and deadlines of the process. Examples of unreasonable behaviour which may result in an award of costs include:

  • lack of co-operation with the other party or parties
  • delay in providing information or other failure to adhere to deadlines
  • only supplying relevant information at appeal when it was previously requested, but not provided, at application stage
  • not agreeing a statement of common ground in a timely manner or not agreeing factual matters common to witnesses of both principal parties
  • introducing fresh and substantial evidence at a late stage necessitating an adjournment, or extra expense for preparatory work that would not otherwise have arisen
  • prolonging the proceedings by introducing a new reason for refusal
  • withdrawal of any reason for refusal or reason for issuing an enforcement notice
  • failing to provide relevant information within statutory time limits, resulting in an enforcement notice being quashed without the issues on appeal being determined
  • failing to attend or to be represented at a site visit, hearing or inquiry without good reason
  • withdrawing an enforcement notice without good reason
  • providing information that is shown to be manifestly inaccurate or untrue
  • deliberately concealing relevant evidence at planning application stage or at subsequent appeal
  • failing to notify the public of an inquiry or hearing, where this leads to the need for an adjournment

(This list is not exhaustive.)

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When might a local planning authority’s handling of the planning application or enforcement notice prior to the appeal lead to an award of costs?

If it is clear that the local planning authority will fail to determine an application within the time limits, it should give the applicant a proper explanation. In any appeal against non-determination, the local planning authority should explain their reasons for not reaching a decision within the relevant time limit, and why permission would not have been granted had the application been determined within the relevant period.

If an appeal in such cases is allowed, the local planning authority may be at risk of an award of costs, if the Inspector or Secretary of State concludes that there were no substantive reasons to justify delaying the determination and better communication with the applicant would have enabled the appeal to be avoided altogether. Such a decision would take into account any unreasonable behaviour on the part of the appellant in causing or adding to the delay.

For enforcement action, local planning authorities must carry out adequate prior investigation. They are at risk of an award of costs if it is concluded that an appeal could have been avoided by more diligent investigation that would have either avoided the need to serve the notice in the first place, or ensured that it was accurate.

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What type of behaviour may give rise to a substantive award against a local planning authority?

Local planning authorities are at risk of an award of costs if they behave unreasonably with respect to the substance of the matter under appeal, for example, by unreasonably refusing or failing to determine planning applications, or by unreasonably defending appeals. Examples of this include:

  • preventing or delaying development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations.
  • failure to produce evidence to substantiate each reason for refusal on appeal
  • vague, generalised or inaccurate assertions about a proposal’s impact, which are unsupported by any objective analysis.
  • refusing planning permission on a planning ground capable of being dealt with by conditions risks an award of costs, where it is concluded that suitable conditions would enable the proposed development to go ahead
  • acting contrary to, or not following, well-established case law
  • persisting in objections to a scheme or elements of a scheme which the Secretary of State or an Inspector has previously indicated to be acceptable
  • not determining similar cases in a consistent manner
  • failing to grant a further planning permission for a scheme that is the subject of an extant or recently expired permission where there has been no material change in circumstances
  • refusing to approve reserved matters when the objections relate to issues that should already have been considered at the outline stage
  • imposing a condition that is not necessary, relevant to planning and to the development to be permitted, enforceable, precise and reasonable in all other respects, and thus does not comply with the guidance in the National Planning Policy Framework on planning conditions and obligations
  • requiring that the appellant enter into a planning obligation which does not accord with the law or relevant national policy in the National Planning Policy Framework, on planning conditions and obligations
  • refusing to enter into pre-application discussions, or to provide reasonably requested information, when a more helpful approach would probably have resulted in either the appeal being avoided altogether, or the issues to be considered being narrowed, thus reducing the expense associated with the appeal
  • not reviewing their case promptly following the lodging of an appeal against refusal of planning permission (or non-determination), or an application to remove or vary one or more conditions, as part of sensible on-going case management.
  • if the local planning authority grants planning permission on an identical application where the evidence base is unchanged and the scheme has not been amended in any way, they run the risk of a full award of costs for an abortive appeal which is subsequently withdrawn

(This list is not exhaustive.)

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When might an award of costs not be made against a local planning authority?

Where local planning authorities have exercised their duty to determine planning applications in a reasonable manner, they should not be liable for an award of costs.

Where a local planning authority has refused a planning application for a proposal that is not in accordance with the development plan policy, and no material considerations including national policy indicate that planning permission should have been granted, there should generally be no grounds for an award of costs against the local planning authority for unreasonable refusal of an application.

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Appellants

When might an award of costs be made against an appellant?

Awards against appellants may be either procedural in regard to behaviour in relation to completing the appeal process or substantive which relates to the planning merits of the appeal. The examples below are not exhaustive. The Planning Inspectorate will take all evidence into account, alongside any extenuating circumstances.

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What type of behaviour may give rise to a procedural award against an appellant?

Appellants are required to behave reasonably in relation to procedural matters on the appeal, for example by complying with the requirements and deadlines of the appeals process. Examples of unreasonable behaviour which may result in an award of costs include:

  • resistance to, or lack of co-operation with the other party or parties in providing information, discussing the application or appeal, or in responding to a planning contravention notice
  • delay in providing information or other failure to adhere to deadlines
  • only supplying relevant information at appeal when it was requested, but not provided, at application stage
  • introducing fresh and substantial evidence at a late stage necessitating an adjournment, or extra expense for preparatory work that would not otherwise have arisen
  • prolonging the proceedings by introducing a new ground of appeal or issue
  • not completing a timely statement of common ground or not agreeing factual matters common to witnesses of both principal parties
  • failing to attend or to be represented at a site visit, hearing or inquiry without good reason
  • providing information that is shown to be manifestly inaccurate or untrue
  • deliberately concealing relevant evidence at planning application stage or at a subsequent appeal.
  • withdrawal of an appeal without good reason

(This list is not exhaustive.)

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What type of behaviour may give rise to a substantive award against an appellant?

The right of appeal should be exercised in a reasonable manner. An appellant is at risk of an award of costs being made against them if the appeal or ground of appeal had no reasonable prospect of succeeding. This may occur when:

  • the development is clearly not in accordance with the development plan, and no other material considerations such as national planning policy are advanced that indicate the decision should have been made otherwise, or where other material considerations are advanced, there is inadequate supporting evidence
  • the appeal follows a recent appeal decision in respect of the same, or a very similar, development on the same, or substantially the same site where the Secretary of State or an Inspector decided that the proposal was unacceptable and circumstances have not materially changed in the intervening period
  • in enforcement and lawful development certificate appeals, the onus of proof on matters of fact is on the appellant. Sometimes it is made plain by a recent appeal decision relating to the same, or a very similar development on the same, or substantially the same site, that development should not be allowed. The appellant is at risk of an award of costs, if they persist with an appeal against an enforcement notice on the ground that planning permission ought to be granted for the development in question
  • lack of co-operation on any planning obligation

(This list is not exhaustive.)

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Can an award of costs be made if the appellant withdraws an appeal?

Yes, if the appeal is withdrawn without good reason. Appellants are encouraged to withdraw their appeal at the earliest opportunity if there is good reason to do so.

If an appeal is withdrawn without any material change in the planning authority’s case, or any other material change in circumstances relevant to the planning issues arising on the appeal, an award of costs may be made against the appellant if the claiming party can clearly show that they have incurred wasted expense as a result.

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Revision date: 10 12 2016 See previous version

Statutory consultees

When might an award of costs be made against a statutory consultee?

Statutory consultees play an important role in the planning system: local authorities often give significant weight to the technical advice of the key statutory consultees. Where a local planning authority has relied on the advice of the statutory consultee in refusing an application, there is a clear expectation that the consultee in question will substantiate its advice at any appeal.

Where the statutory consultee is a party to the appeal, they may be liable to an award of costs to or against them.

Where a local planning authority has placed significant weight on the view of the statutory consultee in its reasons for refusal, the local planning authority may wish to request the statutory consultee attends the inquiry or hearing, or makes written representations, to defend its position as an interested party.

Where it is considered that the evidence of the statutory consultee is relevant to the determination of the appeal, the Inspector may use powers under section 250(2) and (3) of the Local Government Act 1972 to summon the statutory consultee to an appeal held as an inquiry, which may make them a party at the inquiry.

Where the Mayor of London or any other statutory consultee exercises a power to direct a planning authority to refuse planning permission, this party will be treated as a principal party at the appeal, and may be liable for an award of costs if they behave unreasonably or have an award of costs made to them.

Any allegations of unreasonable behaviour directed at a statutory consultee should be drawn to their attention at an early stage.

Statutory consultees must, at the earliest opportunity, notify the planning authority if their evidence or advice changes from that provided during the determination of the application to which the appeal relates.

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Interested parties

When might an award of costs be made against an interested party?

Interested parties who choose to be recognised as Rule 6 parties under the inquiry procedure rules, may be liable to an award of costs if they behave unreasonably. They may also have an award of costs made to them. See the Planning Inspectorate guide on Rule 6 for more detail.

It is not anticipated that awards of costs will be made in favour of, or against, other interested parties, other than in exceptional circumstances. An award will not be made in favour of, or against interested parties, where a finding of unreasonable behaviour by one of the principal parties relates to the merits of the appeal. However an award may be made in favour of, or against, an interested party on procedural grounds, for example where an appeal has been withdrawn without good reason or where an unnecessary adjournment of a hearing or inquiry is caused by unreasonable conduct. In cases dealt with by written representations, it is not envisaged that awards of costs involving interested parties will arise.

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Revision date: 10 12 2016 See previous version

The award of costs and compulsory purchase and analogous orders

How does the award of costs apply in the case of compulsory purchase and analogous orders?

Compulsory purchase and analogous orders seek to take away a party’s rights or interest in land. Further information on compulsory purchase orders can be found in the Guidance on compulsory purchase process and the Crichel Down Rules for the disposal of surplus land acquired by, or under the threat of, compulsion. Where objectors are defending their rights, or protecting their interests, which are the subject of a compulsory purchase or analogous order, they may have costs awarded in their favour if the order does not proceed or is not confirmed.

For the purposes of this Part, “remaining objector” means a person who is defending their rights, or protecting their interests, which are the subject of a compulsory purchase or analogous order, and who has made a “remaining objection” within the meaning of section 13A(1) of the Acquisition of Land Act 1981.

Costs will be awarded in favour of a successful remaining objector unless there are exceptional reasons for not making an award. The award will be made by the Secretary of State against the authority which made the order.

Normally, the following conditions must be met for an award to be made on the basis of a successful objection:

(a) the claimant must have made a remaining objection and have either:

  • attended (or been represented at) an inquiry (or, if applicable, a hearing at which the objection was heard); or
  • submitted a written representation which was considered as part of the written procedure; and

(b) the objection must have been sustained by the confirming authority’s refusal to confirm the order or by its decision to exclude the whole or part of the claimant’s property from the order.

In addition, a remaining objection will be successful and an award of costs may be made in the claimant’s favour if an inquiry is cancelled because the acquiring authority have decided not to proceed with the order, or a claimant has not appeared at an inquiry having made an arrangement for their land to be excluded from the order. For more detail see section 5(4) of the Acquisition of Land Act 1981 as inserted by section 3 of the Growth and Infrastructure Act 2013.

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How are objectors notified of the award of costs?

When notifying successful objectors of the decision on the order under the appropriate rules or regulations, the confirming authority, usually the Secretary of State, will tell them that they may be entitled to claim costs and invite them to submit an application for an award of costs on the basis of their successful objection. The details of the level of costs are then a matter for negotiation between parties.

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Can an award be made for unreasonable behaviour?

An award of costs cannot be made both on grounds of success and unreasonable behaviour in such cases; but an award to a successful objector may be reduced if they have acted unreasonably and caused unnecessary expense in the proceedings – as, for example, where their conduct leads to an adjournment which ought not to have been necessary

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Can an award of costs be made to an unsuccessful objector?

Yes, an award of costs may be made to an unsuccessful remaining objector or to an order-making authority aecause of unreasonable behaviour by the other party. In practice, such an award is likely to relate to procedural matters, such as failing to submit grounds of objection or serve a statement of case, resulting in unnecessary expense – for example, because the inquiry has to be adjourned or is unnecessarily prolonged.

An application for costs (on the grounds of unreasonable behaviour) should be made to the Inspector at the inquiry or hearing, or in writing if appropriate. The Inspector may also initiate an award of costs if they consider a party has behaved unreasonably and an application is not made. The Inspector will provide a recommendation to the confirming authority, usually the Secretary of State, for a decision on whether to award costs.

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Can an award of costs be made against interested parties?

Yes. Interested parties may attend the inquiry and may be allowed to be heard. If they behave unreasonably at the event, they may have an award of costs made against them.

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What if the objection is partly successful?

Where a remaining objector is partly successful in opposing a compulsory purchase order, the confirming authority will normally make a partial award of costs. Such cases arise, for example, where the authority, in confirming an order, excludes part of the objector’s land.

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What if the compulsory purchase or analogous order is linked to another application?

Sometimes joint inquiries or hearings are held into 2 or more proposals, only one of which is a compulsory purchase (or analogous) order, for example an application for planning permission and an order for the compulsory acquisition of land included in the application. Where a remaining objector, who also makes representations about a related application, appears at such inquiries or hearings and is successful in objecting to the compulsory purchase order, the objector will be entitled to an award in respect of the compulsory purchase or analogous order only.

An objector is not, however, precluded from applying for the costs relating to the other matter on the grounds that the authority has acted unreasonably.

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What orders are analogous to compulsory purchase orders?

In general an order or proposal will be considered to be analogous to a compulsory purchase order if its making, or confirmation, takes away from the objector some right or interest in land for which the statute gives them a right to compensation. The analogous orders are:

A petition under section 125 of the Local Government Act 1972 as substituted by section 43 of the Housing and Planning Act 1986 relating to compulsory acquisition of land on behalf of parish or community councils.

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Published 3 March 2014