DEPARTMENT OF THE ENVIRONMENT CIRCULAR 8/93


(dated 29 March 1993)

WELSH OFFICE CIRCULAR 23/93


(dated 29 March 1993)

AWARDS OF COSTS INCURRED IN PLANNING AND OTHER (INCLUDING COMPULSORY PURCHASE ORDER) PROCEEDINGS

Introduction

1 This Circular updates and consolidates the policy guidance on awards of costs in certain planning and other proceedings. It follows public consultation and a careful review of the current guidance in DOE Circular 2187 (Welsh Office Circular 5187), in the light of practical experience of it since Apri, 1 1987. Except for paragraph 23, that guidance has applied where the Secretary of State may order one party to proceedings to meet the costs of another party.

2 Interim guidance, in DOE Circular 23191 (Welsh Office 77191), on 'Awards of Costs in Planning Proceedings, Following Late Cancellation of an Inquiry or Hearing', was issued on 16 December 1991. This explained (in Annex 1) how it was proposed to exercise the new discretionary power, in section 322A of the Town and Country Planning Act 1990 (inserted by section 30 of the Planning and Compensation Act 199 1), which came into force on 2 January 1992, to award appeal costs following the late cancellation of an inquiry or hearing by either principal party. The interim Circular also explained the introduction of costs awards in hearing cases from 2 January 1992.

3 Annexes 1 to 7 to this Circular now provide revised guidance, including legislative developments arising from the Planning and Compensation Act 1991, as follows:

(1) Annex 1: general principles for awards of costs for unreasonable behaviour
(2) Annex 2: general procedural requirements of appeals: unreasonable behaviour
(3) Annex 3: unreasonable behaviour relating to the substance of the case, including action prior to submission of appeal '
(4) Annex 4: application of costs policy to third parties in proceedings
(5) Annex 5: the costs application
(6) Annex 6: costs in respect of compulsory purchase and analogous orders (including a list of examples of analogous orders)
(7) Annex 7: list of proceedings in which costs may be awarded where an inquiry or hearing is held.

A brief summary of the criteria for awards of costs on grounds of unreasonable behaviour is in the Appendix to this Circular.

Explanatory pamphlet

4 A revised explanatory pamphlet ('Costs Awards in Planning Appeals - A Guide for Appellants'), is obtainable from the following addresses:-

In England: Department of the Environment (PDC2), Room TX 103, Tollgate House, Houlton Street, Bristol BS2 9DJ; tel 0272 218594.

In Wales: Welsh Office (Planning Division), Cathays Park, Cardiff CFI 3NQ; tel 0222 825426.

Scope of revised arrangements


5 The new guidance in Annexes 1 to 6 will apply to all appeals made, or other
proceedings begun, on or after the date of this Circular, as follows:-

(1) all the categories of inquiry and hearing proceedings listed in Annex 7, except
for those specified in paragraph 8 below; and
(2) the inquiry proceedings mentioned in paragraph 9 below.

The power to award costs


6 Section 250(5) of the Local Government Act 1972 enables the Secretary of State
to make an order as to the costs of the parties at an inquiry. This power is applied to
various planning proceedings by section 320 of, and Schedule 6 to, the Town and
Country Planning Act 1990; by section 89 of the Planning (Listed Buildings and
Conservation Areas) Act 1990; and by section 37 of the Planning (Hazardous
Substances) Act 1990. In the case of hearings, the provisions of section 322 of, and
paragraph 6(5) of Schedule 6 to, the Town and Country Planning Act 1990 were
commenced on 2 January 1992 in respect of the award of costs to, or against, a party
in planning and listed building consent appeals, and other cases dealt with by way of
a healing, where the appeal is made, or other proceedings are begun, under the
Planning Acts, on or after that date. Thus, except in proceedings not under the
Planning Acts, examples of which are identified in paragraph 9 below, legislation no
longer distinguishes between inquiry and hearing cases for costs purposes.

7 Section 322A of the Town and Country Planning Act 1990 (inserted by section 30
of the Planning and Compensation Act 1991), which came into force on 2 January
1992, enables costs to be awarded against any party in proceedings under the
Planning Acts whose 'unreasonable' behaviour directly results in the late cancellation
of an inquiry or hearin-, so that expense incurred by any of the other parties is
wasted. These provisions apply to all categories of proceedings listed in Annex 7 in
which an inquiry or hearing is arranged under the Planning Acts, as provided for in
paragraph 8 below. They apply to all such appeals made, or other proceedings begun,
on or after 2 January 1992, in which an inquiry or hearing is subsequently arranged.

Proceed ngs in which costs may be awarded where an inquiry or hearing is held or cancelled

8 The power to award costs, including the new power in section 322A of the Town
and Country Planning Act 1990, is available for all categories of proceedings under
Town and Country Planning legislation listed in Annex 7. The policy guidance in
paragraphs 13 and 14 of Annex 1, and paragraphs 6 to 17 of Annex 2, concerning
late cancellation of an inquiry or hearing, applies to those cases, with the exception
of the various orders listed in sub-paragraphs (25) to (30) in Annex 7. These include
(sub-paragraph (25)) orders under sections 247, 248, 249 and 251 of the 1990 Act
relating to highways orders, and sections 257 and 258 of the 1990 Act relating to
public rights of way orders. The cormnencement of the new power, stated in
paragraph 7 above, does note apply to these cases. Subject to this, the guidance in
Annexes 1 to 6 will apply to all the categories of proceedings listed in Annex 7 in
which a hearing is held, as stated in paragraph 5 above.

Proceedings in which costs may be awarded where an inquiry (but not a hearing) is held

9 Proceedings held under non-Town and Country Planning legislation in which an
inquiry (but not a hearing) is held, and the Secretary of State or Planning Inspectors
are empowered to award costs by virtue of section 250(5) of the Local Government
Act 1972, but not under section 322A of the Town and Country Planning Act 1990
(paragraph 7 above), include:-

(I)* opposed definitive map orders under sections 53 and 54 of the Wildlife and
Countryside Act 1981 relating to public rights of way (definitive map modification
and reclassification orders);
(2)* opposed public path and rail crossing orders under sections 26, 118 and 1 19 of
the Highways Act 1980, and sections 1 1 8A and 1 19A of the Act (as inserted by
the Transport and Works Act 1992). (NOTE: section 26 (public path creation)
orders are regarded as falling into category (5) below; extinguishment and
diversion orders undersections 118 to 1]9A may be regardedas such, depending
on the particular circumstances of an objector's interest in the land (see
paragraph 5 ofannex 6);
(3) limestone pavement orders under section 34 of the Wildlife and Countryside Act.
1981;
(4) appeals under section 18 of the Land Compensation Act 1961; and
(5) opposed compulsory purchase orders, and certain orders (described as analogous)
which are not made under Town and Country Planning legislation. Examples are
listed at sub-paragraphs (6) to (9) in the Appendix to Annex 6.

NOTE: paragraph 8 above applies to public rights of way orders under the Town and Country Planning
Act 1990.

Proceedings in which costs may be awarded where no inquiry or hearing is arranged or held


10 In enforcement notice appeals and some other specialist appeals, which are listed
in sub-paragraphs (3), (6), (12), (14), (19) and (24) in Annex 7, provisions in
Schedule 4 to the Planning (Consequential Provisions) Act 1990 enable costs to be
awarded where such a case:
(1) does not proceed by an inquiry or hearing, but is determined by written
representations and a site-inspection;
(2 is proceeding by written representations and a site-inspection, but is not
determined because of withdrawal by one of the principal parties at any stage
during the proceedings; and
is proceeding by an inquiry or hearina, but one of the principal parties withdraws
before arrangements have been formally notified by the Department.
These provisions enable costs to be awarded in relation to any such proceedings in sub-paragraphs (1) to (3) as if those proceedings were an inquiry. (Where an inquiry or hearing has been arranged in such a case, but is then cancelled as a result of withdrawal by one of the principal parties, the provisions in section 322A of the Town and Country Planning Act apply, as stated in paragraph 7 above). Policy guidance specific to the cases in sub-paragraphs (1) to (3) above is in paragraph 17 of Annex 2.

Awards of costs in written representations planning appeals

11 The Government has decided to defer, for the time being, any further extension
of awards of costs to written representations appeals. The matter will be reviewed in
due course.

Financial and public service manpower implications

12 This Circular is not expected to have any significant financial or manpower
implications for local planning authorities generally. To the extent that the revised
policies succeed in discouraging 'unreasonable' behaviour, the overall result should
be a reduction in aggregate costs of the parties to planning appeals which are
considered at public inquiries and hearings.

Cancellation of guidance


13 DOE Circulars 2/87 (WO 5/87) and 23/91 (WO 77/91) are hereby cancelled.

The Chief Executive
County Councils England and Wales
District Councils England and Wales
London Borough Councils
Urban Development Corporations
Council of the Isles of Scilly
The Town Clerk, City of London
The National Park Officer
Lake District Special Planning Board
Peak Park Joint Planning Board
The Chief Executive, The Broads Authority

APPENDIX TO CIRCULAR: UNREASONABLE BEHAVIOUR:
A SUMMARY OF THE CRITERIA

*

Appellants are at risk of an award of costs against them if, for example, they:
(1) fail to comply with normal procedural requirements for inquiries or hearings; do not
provide a pre-inquiry statement when asked to do so, if the proceedings have to be adjourned
or are unnecessarily prolonged; or are deliberately or wilfully uncooperative, such as refusing
to discuss the appeal or provide requested, necessary information (paragraph 3 of Annex 2,
and Annex 4);
(2) fail to pursue an appeal or attend an inquiry or hearing (paragraph 5 of Annex 2);
(3) introduce new grounds of appeal, or new issues, late in the proceedings (paragraph 3 of
Annex 2);
(4) withdraw the appeal, or legal grounds in an enforcement appeal, after being notified of
inquiry or hearing arrangements, without any material change in circumstances (paragraph 13
of Annex 1, paragraphs 6 to 11 of Annex 2 and paragraphs 4 to 5 of Annex 4);
(5) pursue an appeal which obviously had no reasonable prospect of success, including one which clearly 'flies in the face' of national planning policies (paragraph 11 of Annex 1 and
paragraphs 1 to 6 of Annex 3).

Planning authorities are at risk of an award of costs against them, on appeal, if, for
example, they:
(1) fail to comply with normal procedural requirements for inquiries or hearings, including
compliance with relevant Regulations (paragraph 4 of Annex 2, and Annex 4);
(2) fail to provide evidence, on planning grounds, to substantiate each of their reasons for
refusing planning permission, including reasons relying on advice of statutory consultees
(paragraphs 8 to 20 of Annex 3); or to demonstrate that they had reasonable grounds for
considering it expedient to issue an enforcement notice (paragraphs 23 and 24 of Annex 3);
(3) fail to take into account relevant policy statements in Departmental guidance or relevant
judicial authority (paragraphs 10 and 11 of Annex 1 and paragraphs 8 and 22 of Annex 3);
(4) refuse to discuss a planning application or provide requested information, or seek additional
information, as appropriate (paragraphs 26 to 28 of Annex 3);
(5) refuse permission for a modified scheme when an earlier appeal decision indicated this
would be acceptable, and circumstances have not materially changed (paragraph 16 of Annex
3);
(6) fail to carry out reasonable investigations of fact, or to exercise sufficient care, before
issuing an enforcement notice (paragraphs 22 and 28 of Annex 3);
(7) at a late stage, introduce an additional reason for refusal, or abandon a reason for refusal,
or withdraw an enforcement notice unjustifiably (paragraphs 4 and 12 to 16 of Annex 2, and
paragraph 22 of Annex 3);
(8) impose conditions which are unnecessary, unreasonable, unenforceable, imprecise or
irrelevant (paragraph 20 of Annex 3);
(9) pursue unreasonable demands or obligations in connection with a grant of permission
(paragraphs 16 and 17 of Annex 1 and paragraphs 11 and 18 of Annex 3);
(10) fail to renew an extant or recently expired planning permission, without good reason
(paragraph 19 of Annex 3);
(1 1) unreasonably refuse to grant permission for reserved matters or pursue issues settled at
outline stage (parag@aph 17 of Annex 3).
This brief summary is based on the full statement of policy in Annexes 1 to 4. It is illustrative and not comprehensive.

CONTENTS OF ANNEXES 1 TO 7 TO DOE CIRCULAR 8/93 (WO 23/93)

ANNEX 1: GENERAL PRINCIPLES FOR AWARDS OF COSTS FOR UNREASONABLE BEHAVIOUR

ANNEX 1: GENERAL PRINCIPLES FOR AWARDS OF COSTS FOR
UNREASONABLE BEHAVIOUR IN APPEALS AND OTHER PLANNING
PROCEEDINGS


Introduction


1 In planning and other proceedings to which this guidance applies, the parties normally meet
their own expenses. Except for compulsory purchase and analogous orders (which are dealt
with in Annex 6), costs are awarded only when what is termed 'unreasonable' behaviour is
held to have occurred. Annexes 1 to 4 give examples of 'unreasonable' behaviour, either
directly or indirectly by reference to what is expected of parties in planning proceedings. The
word 'unreasonable' is used in its ordinary meaning, as reflected in the High Court's
judgement in the case of Manchester City Council v Secretary of State for the Environment
and Mercury Communications Limited [19881 JPL 774.

2 The principle that the parties normally meet their own expenses means that, in proceedings
to which this guidance (except Annex 6) applies, awards of costs do not necessarily 'follow
the event'. A decision on a costs application, when made, does not follow directly from the
result of the appeal itself. An appellant is not awarded costs simply because the appeal
succeeds. Nor are the planning authority awarded their costs simply because the appeal fails.
An award against a successful party may very occasionally be justified. (For example, a partial
award may be made against a successful appellant for behaviour resulting in procedural delay).
3 Examples of unreasonable behaviour, and more detailed guidance on the circumstances in
which parties may be at risk of an award of costs, are stated in Annexes 2 to 4. A summary is
in the Appendix to the Circular. Guidance on seeking an award of costs is in Annex 5.

Disciplining effect of costs regime


4 The availability of costs awards, on specific application, is intended to bring a greater sense
of discipline to all parties involved in planning proceed ings. A decision to award costs against
one of the principal parties in an appeal is not punitive. The great majority of planning appeals
do not result in a costs application. Awards of costs are only made in 30 per cent of costs
applications, on average.
5 This discipline is not intended to deter people from exercising their statutory right of appeal,
but rather to ensure that other parties, notably the planning authority (and, indirectly, the local
taxpayer) are not put to unnecessary expense as a result of unreasonable use of the right of
appeal. Where complex or technical issues of legal precedent or procedure arise, the Secretary
of State, in deciding whether behaviour is unreasonable, will take into account the extent to
which an appellant obtained professional advice. Where the planning authority drew the
appellant's attention to relevant facts (see paragraph 6 of Annex 3), the Secretary of State will
also take that into account. The guidance is intended both to support planning authorities in
the proper exercise of their statutory responsibilities and to reflect the principle that the
planning system should not prevent, inhibit or delay development which could reasonably be
permitted, in the light of the development plan, so far as it is material to the application, and
of any other material considerations.

General conditions for an award


6 Before an award of costs* is made, the following conditions will normally need to be met:-
(1) one of the parties has sough -an-award at the appropriate stage of the proceedings (as
explained in Annex 5);
(2) the party against whom costs are sought has behaved unreasonably; and
(3) this unreasonable conduct has caused the party seeking costs to incur or waste expense
unnecessarily, either because it should not have been necessary for the matter to be
determined by the Secretary of State, or because of the manner in which another party has
behaved in the proceedings (for example, because the arranged inquiry or hearing had to
be cancelled or extended, resulting in wasted preparatory work or unnecessary additional
expense).
Note: The Secretary of State and Planning Inspectors determine only the extent of any costs payable, not the actual amount (see paragraph 5 of Annex 5).

Separate appeal and costs jurisdiction

7 The appeal decision itself will not be affected in any way by the fact that an application for
costs has been made. The determination of a costs application is a separate jurisdiction. A
decision whether to award costs is usually taken by the Planning Inspector, or Secretary of
State, after the end of the appeal process.

Application of guidance to different categories of proceedings, including called-in planning applications


8 The guidance in these Annexes (except Annex 6) applies equally to the principal parties in
different categories of proceedings (for example, the person who has served a purchase notice
in proceedings under Part VI of the 1990 Act), although it refers to the principal parties as
appellant' and 'planning authority' for convenience. The guidance is applicable, by analogy,
to the principal parties in non-Planning Act proceedings - for example, statutory objectors,
the 'surveying authority' (County Council) and persons making statutory representations in
support of an order, in the case of opposed orders under sections 53 and 54 of the Wildlife
and Countryside Act 198 1. Separate guidance on these latter cases, consistent with the general
principles stated in this Annex, is in DOE Circular 2/93 (WO 5193).
9 In the case of 'called-in' planning applications, referred to the Secretary of State under
section 77 of the Town and Country Planning Act 1990, and other referred applications (as
specified in sub-paragraphs (2), (5), (7) and (22) of Annex 7), the decision by the Secretary of
State to call-in an application for his own determination places the parties in subsequent
inquiry proceedings in a different position from that in a planning appeal. In call-in
proceedings the participation of the parties is primarily to assist the Secretary of State in the
process of reaching his decision on the planning issues identified in his statement under Rule
6 of the relevant Inquiries Procedure Rules. Unlike the situation in a planning appeal, the
planning authority are not defending their formal decision to refuse planning permission, or
their failure to determine the application within the prescribed period. The applicant has a
right to apply for planning permission. In these circumstances, it is not envisaged that a party
may 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 (Annex 3). However, a party's failure to
comply with the normal procedural requirements of inquiries risks a partial award of costs for
unreasonable behaviour (Annex 2) in a called-in case.

National planning policy guidance

10 Planning Policy Guidance Notes (PPGs), Regional Planning Guidance Notes (RPGS) and
Minerals Planning Guidance Notes XMPGS) obtainable from HMSO Bookshops, provide
guidance on national planning policie@s\relevant to appeals. For example, comprehensive
guidance on how planning applications should be considered in accordance with sections
70(2) and 54A of the Town and Country Planning Act 1990 (the latter inserted by section 26
of the Planning and Compensation Act 1991). is in paragraphs 25 to 31 of PPG 1 (revised
March 1992). Guidance on 'other material considerations' is in paragraphs 23 to 24 of PPG 1.
A published index of all extant DOE and WO Circulars (or parts of Circulars) and other advice
is also available from HMSO Bookshops.
11 Appeals which clearly 'fly in the face' of such policies, and obviously had no reasonable
prospect of success (see paragraphs 1 to 6 of Annex 3) will run the risk of an award of costs
against those pursuing them, depending on the circumstances. Similarly, a planning authority
may be held to have acted unreasonably if they fail to take into account reported judicial
authority, or well-publicised appeal decisions relevant to their reasons for refusal, or relevant
policy statements in Government White Papers, DOE and WO Circulars or Planning Policy
Guidance Notes (PPGS, RPGs and MPGS).

Third parties

12 In this guidance, the tertn 'principal party' refers to the relevant planning authority and the
appellant. All other interested parties are defined, for the purposes of this guidance, as third
parties. Awards of costs either in favour of or against third parties will be made only in
exceptional circumstances, as explained in Annex 4.

Award of a party's costs in appeals and other planning proceedings as
a result of the late cancellation of an inquiry or hearing: section 322A of
the Town and Country Planning Act 1990

13 Significant costs may be wasted by appeal parties in preparing for an inquiry or hearing
which then has to be cancelled because of a withdrawal by the appellant or planning authority.
In accordance with section 322A of the Town and Country Planning Act 1990, an award of
costs may be made, on specific application, against one party to enable other parties, including
third parties, to recover their 'wasted' costs caused by the late cancellation of the inquiry or
hearing. Examples are where the appellant withdraws his appeal entirely, or the local planning
authority withdraw one or more of their original reasons for refusing the planning application,
resulting in cancellation of the inquiry or hearing, so that other appeal parties have wasted
their preparatory work. Detailed guidance is in paragraphs 6 to 17 of Annex 2. (NOTE: this
guidance does not apply to the exceptional cases mentioned in paragraph 8 of the Circular.)

14 The availability of costs awards in such circumstances is not intended to deter a principal
party from withdrawing, even at a late stage, rather than proceeding to an anticipated
unfavourable decision. A withdrawal may be partly excusable in the interests of minimising
the period for a possible award of costs if the inquiry, or hearing, is cancelled and attendance
costs are thereby avoided. Or a withdrawal may arise from an agreement between the principal
parties, as envisaged in paragraph 16 of Annex 2. Either principal party may decide that it is
preferable to withdraw, rather than incur further expense in proceeding to an arranged inquiry
or hearing, if their interest in, or expectation of, the outcome of the appeal has significantly
changed, notwithstanding the risk of a partial award of costs against them.

Costs in hearing cases

15 Hearings are informal, unlike inquiries. They proceed in accordance with the 'Code of
Practice for Hearings', a copy of which is sent to the parties with notification of the
arrangements. A hearing lasts, on average, about half a day. It is unusual for either party to be
legally represented. The introduction of costs awards 'In such cases (as stated in paragraph 5
of the introductory Circular) should not affect the procedure at hearings. The principles for
awards of costs in these cases are exactly the same as for inquiry cases.

The practice of 'twin-tracking'

16 'Twin-tracking' is the practice whereby an applicant submits two identical applications to
the planning authority, with the intention of lodging an appeal on one application as soon as
the statutory determination period has expired, leaving the other application for continuing
discussion and determination by the planning authority. If the planning authority decide to
grant permission on the application remaining with them, after an appeal has been made on
the parallel application, so that the planning issues arising on the appeal are satisfactorily
resolved at an early stage in the proceedings, the Departments take the view that the Secretary
of State need not determine the appeal (if it is not withdrawn), or take any further action on it
unless the appellant satisfies him that there are outstanding planning issues which justify
pursuing the appeal to a determination. Examples are where the appellant is dissatisfied with
a conditional grant of perrriission, or a planning authority's offer to grant permission subject
to the appellant's entering into a planning obligation under section 106 of the Town and
Country Planning Act 1990; and he wishes to see whether he can obtain a pern-iission, on
appeal, without conditions or with less onerous ones, or a permission without the need to enter
into an associated planning obligation. In these circumstances, an award of costs maybe made
in favour of the appellant if the planning authority fail to provide sufficient evidence, on
appeal, to support their imposition of the condition, or fail to show that their demand, in.terms
of a planning obligation, is consistent with the policy guidance in DOE Circular 16/91; and
the condition is discharged, or permission granted on appeal without reference to such an
obligation.
1.7 Where the appellant chose to sign an agreement before the inquiry or hearing, at the
authority's invitation, this will be taken into account in determining any costs application. It
does not necessarily follow that such an agreement will resolve any planning objections to the
planning application, and the Inspector may find it appropriate to hear evidence in this respect.
In reaching a view on whether the agreement is a material consideration in determining the
application, he will have regard to the policy guidance in DOE Circular 16191 (WO 53191).
(Further guidance is given in paragraph 18 of Annex 3.) If the Inspector, or Secretary of State,
is not so satisfied, the authority may be at risk of a partial award of costs against them if the
appellant can show that he incurred unnecessary costs in responding to an unreasonable and
unnecessary demand, on the part of the authority. However, if the Secretary of State, or
Planning Inspector, concluded that the appeal decision to discharge a condition, or grant
permission without reference to a planning obligation, had been finely balanced, an award of
costs against the authority would be unlikely.

ANNEX 2: GENERAL PROCEDURAL REQUIREMENTS IN APPEAL
PROCEEDINGS - UNREASONABLE BEHAVIOUR: AWARDS AGAINST
APPELLANTS AND PLANNING AUTHORITIES

Request for an oral hearing

1 Costs will not be awarded simply because one of the principal parties to an appeal has
asked to be 'heard'. Each principal party has a statutory right to ask for an opportunity to
appear before and be heard by a person appointed by the Secretary of State. The exercise of
that right will not, in itself, be re-arded as unreasonable, even if the appeal could have been
adequately dealt with by written representations and a site-inspection. However, once an
inquiry or hearing has been formally notified, the principal parties will be at risk of an award
of costs if their conduct in the proceedings is unreasonable.

Procedural conduct in inquir cases

2 Both appellant and planning authrity are expected to comply not only with the normal
statutory procedural requirements for inquiries, specified in the Inquiries Procedure Rules, but
also, where applicable, with the non statutory code of practice for hearings (to which the
Inquiries Procedure Rules do not apply) However, a failure to comply with the Inquiries
Procedure Rules, or the hearings code, may occasi ally be excusable, and not amount to
unreasonable behaviour such as could lead to an award\,of costs. A precondition for an award
of costs is that a party has incurred unnecessary expense in the proceedings.
3 In the case of an appellant, the following are examples of what may be regarded as
unreasonable behaviour in inquiry or hearing cases, resulting in an award of costs if
unnecessary expense is incurred:-

(1) failing to provide an adequate pre-inquiry, or pre-hearing statement of case - for example,
unclear presentation of facts or arguments. This might cause another party to undertake
identifiable, abortive work in preparing for the inquiry or hearing; or it might lead to an
adjournment (see (4) below);
(2) failing to provide the required information in support of an appeal, or ground of appeal;
or refusing to discuss the appeal, or failing to respond to a planning contravention notice
if this causes the planning authority to incur unnecessary expense in resisting a subsequent
appeal;
(3) introducing a new ground of appeal, or issue, when it is too late to postpone the start of
the inquiry or hearing;
(4) causing an inquiry or hearing to be adjourned or unnecessarily prolonged by the
unreasonably late submission of a statement of case, or by an amendment or addition to a
statement of case, or proof of evidence; or by unreasonable failure to provide any required
summary of a proof of evidence so that the whole proof has to be read at the proceedings;
and
(5) causing a party to call a professional witness to attend unnecessarily - for example, where
legal grounds in an enforcement notice appeal are withdrawn shortly before, or during, an
inquiry or hearing; or where a technical issue could have been resolved satisfactorily by
prior discussion.

Deliberately uncooperative behaviour by an appellant.. whether or not professionally
represented, may be a ground for an award of costs. However, where complex or technical
issues of precedent or procedure arise-for example, in an enforcement notice appeal on legal
grounds - the Secretary of State, in deciding whether behaviour is unreasonable, will take into
account the extent to which an appellant obtained professional advice. Where the planning
authority drew the appellant's attention to relevant facts (see paragraph 6 of Annex 3), the
Secretary of State will also take that into account.
4 Similarly, a planning authority may be considered to have acted unreasonably in the
situations described at paragraph 3(1), (4) and (51) above and in the following situations:

(1) introducing, without sufficient reason, a new reason for refusal at a late stage in the
proceedings; or abandoning a reason for refusal; or withdrawing an enforcement notice,
in the course of the proceedings (see also paragraphs 12 to 16 below);
(2) failing to supply relevant information, within the time-limit specified in accordance with
the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1991,
with the result that the Secretary of State quashes the enforcement notice; and
(3) refusing to co-operate in settlin. agreed facts, or supplying relevant information, so that
the proceedings are adjourned or prolonged unnecessarily.

Conduct involving an appellant in the risk of an award against him

Failure to pursue an appeal or to attend an inquiry or hearing

5 A warning to the planning authority of an intention to withdraw an appeal is not regarded
as a formal decision that the appeal is withdrawn. Until the Department has received formal
notice in writing (including a faxed letter), of withdrawal, the appeal is still extant and the
planning authority and other parties must assume that they will need to attend any proceedings.
Where an inquiry or hearing has not been cancelled, an appellant's failure to attend, or be
represented at. an arranged inquiry or hearing is likely to result in an award of costs against
him, unless it can be demonstrated, in any particular case, that there is good reason for not
making one. This applies whether the appellant has expressed a wish 'to be heard', or the
Department has decided that an inquiry (or hearing) is necessary. In these circumstances. a
partial award of costs may be made against the appellant in respect of costs, incurred after
formal notification of the inquiry or hearing arrangetnents, of preparatory work and attendance
of the planning authority and of any other parties who have notified the appellant of their
intention to be present.

Withdrawal of an appeal resulting in late cancellation of an inquiry or
hearing: section 322A of the Town and Country Planning Act 1990

6 An award of costs may be made, in accordance with section 322A of the 1990 Act, against
an appellant who withdraws his appeal at a time which results in the Department's late
cancellation of an inquiry or hearing. However, this is not intended to dissuade appellants
from pursuing, with the planning authority, a timely solution to the planning issues the appeal
turns on.
7 When the principal parties (the appellant and the plannin. authority) are initially notified
that an appeal is to be dealt with by way of an inquiry, or hearing, they may wish jointly to
ask that the appeal be held 'in abeyance', while discussions take place, and before formal
arrangements are made for an inquiry date and venue. The Department may agree to this, and
is likely to do so in an enforcement notice appeal, if a mutually acceptable outcome is
anticipated.
8 The principal parties may also jointly seek a postponement of an arranged inquiry (or
hearing), to a later date, after the Department has formally notified them, and the planning
authority have notified any other interested parties, about the arrangements. The principal
parties may agree to pursue further discussions, notwithstanding the risk of a successful
application against either of them for an award of costs under section 322A of the 1990 Act.
(It is clearly preferable that the principal parties should discuss, if they wish, before such
arrangements are formally made.) Exceptionally, the Department may agree to a joint request
for a postponement after the inquiry (or hearing) arrangements have been made, depending
on the particular circumstances. Where the parties can show that they co-operated in holdin.
constructive discussions, it is not intended that the possibility of an award of costs, under
section 322A of the 1990 Act, should arise at a later stage, if the discussions are ultimately
unsuccessful and the formal appeal proceedings have to be resumed.
9 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 plannin. issues arising on the
appeal, after the date on which the Secretary of State is subsequently satisfied that the principal
parties had received formal notification of the arrangements for an inquiry or hearing, an
award of costs may be made against the appellant, in accordance with section 322A of the
1990 Act. The date of receipt of the foitnal notification of the inquiry or hearing, after which
the appellant will be at risk of an award of costs, will be taken as three working days after the
date of posting of the Departtnent's notification letter (to allow for first class postal delivery
and receipt), unless it is subsequently shown that the notification was not received in that time.
Any award would relate only to 'wasted' expenses incurred by the planning authority, and
any interested third parties, in preparing for the abortive inquiry or hearing. An example of a
material change in circumstances which would be regarded as justifying an appellant's late
withdrawal of an appeal is an agreed alteration to the proposed development, resulting from
discussions early in the proceedings, which removes the authority's objections to the proposal,
so that planning permission is granted for substantially the same development, whether
conditionally or not. In any costs application, the planning authority will strengthen their case
if they can show that they issued their statement or proofs of evidence promptly, and the
substantive statement of their case was fully communicated to the appellant well before the
appeal was withdrawn.
10 When an appeal is to be dealt with by way of an inquiry or hearing, the Department's
practice is to forewarn appellants that, if they subsequently decide to withdraw their appeal,
eg as a result of successful discussions with the planning authority, they should do so without
delay, and if possible before arrangements are settled for the inquiry or hearing. Otherwise,
they run the risk of a possible award of costs if they cannot show that a later withdrawal of the
appeal was reasonable in the particular circumstances.

Withdrawal of an appeal too late for inquiry or hearing to be cancelled

11 When an appeal is to be dealt with by an inquiry or hearing, the Department's practice is
to forewarn appellants that they should notify the Department of any withdrawal soon enough
for the inquiry or hearing to be cancelled and for the planning authority to be contacted, and
the cancellation publicised locally. Appellants will be expected to ensure that notification of
any withdrawal is received by the Department no later than three working days before the
inquiry or hearing is due to start, which should be sufficient for the Department to respond
by cancelling the arrangements. If the appellant fails to notify the Department of withdrawal
before this time-limit, with the result either that the inquiry or hearing is opened; or that the
planning authority, and any other parties, are present at the venue in anticipation that it will
open, the appellant will run the risk of an award, against him, of the preparation and attendance
costs of the planning authority, and of any other parties who have notified the appellant of
their intention to be present. Such an award is likely to be made, unless it can be demonstrated,
in any particular case, that there is -ood reason for not making one.

Conduct involving the planning authority in the risk of an award
against them

Withdrawal of planning authority's reason(s) for refusal of planning
permission, resulting in late cancellation of an inquiry or hearing:
section 322A of the Town and Country Planning Act 1990

12 If the plannina authority withdraw one or more reasons for refusing (or for resolving that
they would have-refused) planning permission, or if they withdraw the basis of their case in
other proceedings (for example, an enforcement notice), after the date on which the Secretary
of State is subsequently satisfied that the principal parties had received formal notification of
the inquiry or hearing arrangements. and this results in cancelling the inquiry or hearing, an
award of costs may be made against the planning authority. In any particular case, the date of
receipt of the formal notification of the inquiry or hearing, after which the authority will be at
risk of an award of costs, will be taken as three working days after the date of posting of the
Department's notification letter (to allow for first class postal delivery and receipt), unless it
is subsequently shown that the notification was not received in that time. No award will be
made unless it is concluded that, for example, the party. or parties, claiming costs. were
unreasonably put to 'wasted' expense in pursuing an appeal arising from an application which
the planning authority had failed to consider properly, in the light of all the evidence available
at the time of the initial application.
13 An award is unlikely to be made when it is shown that the planning authority's withdrawal
of one or more reasons for refusal resulted from a material change of circumstances relevant
to the planning issues arising on the appeal, which enabled the authority's previous objections
to the proposal to be resolved by discussions begun early in the appeal proceedings; and their
original decision had been justified. An example of a material change of circumstances is
when the planning authority have invited the appellant, before the formal arrangements for an
inquiry date and venue are made, to substitute amended plans which overcome the authority's
objections to the appeal proposal, without any substantial change to the proposed development;
and the appellant agrees to this course. Another example is when the appellant initiates
discussion with a statutory consultee (such is the National Rivers Authority, or a County
Council as highway authority) which results in slight changes to the appeal proposal,
corresponding to the statutory consultee's view on which the planning authority had based
their original objections; and the authority consequently withdraw one or more of the
objections on which their refusal was based.
14 During the early stages of an appeal, the planning authority may decide to re-open
discussion of a statutory consultee's objections, either because they are unclear about advice
received on a development proposal or because they consider that the reasons for refusal,
based on the consultee's advice, may be overcome in advance of the inquiry (or hearing). If
so, they will normally be expected to have resolved the matter before formal arrangements for
the date and venue are notified. It is for the planning authority to decide whether to accept
advice from a statutory consultee and, if they rely on it, to maintain contact with the consultee
during appeal proceedings about the production of supporting evidence; and to provide
adequate reasons for any subsequent material change of their case. If, in the event, the stated
position of a statutory consultee appears to have changed after the formal arrangements for an
inquiry (or hearing), with the result that their known intention is not to offer any substantial
evidence in support of their original advice, the planning authority will minimise the risk of
an award of costs against them if they can show that they promptly withdrew the relevant
reason for refusal at the earliest opportunity. If, nevertheless, the authority choose to maintain
the reason for refusal in such circumstances, they will be expected to provide evidence to
substantiate their maintained position.
15 The planning authority can minimise the risk of an award of costs against them in an
appeal, or the extent of any award of costs, by notifying the Department and the appellant
immediately if they conclude, on re-examination of their case, that any of their reasons for
refusal, or conditions for an approval, cannot, in the circumstances, be supported by substantial
evidence; and they confirm that they will not be contesting the appeal in those respects. In the
event that the planning authority are found to have behaved unreasonably - for example, by
not acting sooner (before formal notification of the inquiry or hearing arrangements) - the
appellant would not then be able to show that he had incurred unnecessary expense, in
preparing to contest such reasons or conditions, after he had been notified of the planning
authority's change of stance.
16 If the appeal is withdrawn as a clear result of an agreement between the principal parties,
and neither principal party applies for an award of costs, an award is unlikely to be made in
favour of any third party in the proceedings, as explained in paragraph 5 of Annex 4. If the
planning authority's withdrawal of one or more reasons for refusal causes an inquiry or
hearing to be cancelled, but the appeal proceedings continue by written representations, a
partial award of costs may be made against the planning authority, limited to any 'wasted'
extra costs incurred by other parties in preparation for the inquiry or hearing. Any such award
would be without prejudice to consideration of any other application for costs on the grounds
of unreasonable behaviour mentioned elsewhere in this guidance.

Awards against appellants and planning authorities in written repre-
sentations enforcement notice (and some other specialist) appeals, as
a result of a withdrawal by either party

17 The availability of costs awards in these cases is explained in paragraph 10 of the Circular'
This guidance applies if an enforcement or other specialist appeal, or ground of appeal, is
withdrawn:

(1) at aiiy stage of such an appeal which is proceeding by written representations; or
(2) before an inquiry or hearing date has been formally notified by the Department in such a
case where the parties are being 'heard'.

In this event, unless there has been a material change in the planning authority's case, or any other material change in circumstances, relevant to the planning issues arising on appeal, an
award of costs may be made against the appellant, in accordance with Schedule 4 to the
Planning (Consequential Provisions) Act 1990, if it is concluded that the authority was
unreasonably put to 'wasted' expense. Similarly, if the planning authority withdraw the
enforcement notice (or the basis for their case in other specified proceedings) at aizv time after an appeal is made, an award of costs may be made against the planning authority, if it is
concluded that the appellant was unreasonably put to 'wasted' expense. Consistently, this
guidance also applies to such cases proceeding by an inquiry or hearing, where one of the
principal parties withdraws before the date has been formally notified by the Department.

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 iiot 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 31 of 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 34 of 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 28 of 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 PPG 19. 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.

Awards against planning authorities
Unreasonable refusal of planning permission
7 A planning authority should not prevent, inhibit or delay development which could
reasonably be permitted, in the light of the development plan, so far as it is material to the
application, and of any other material considerations.
8 Reasons for refusal should be complete, precise, specific and relevant to the application. In
any appeal proceedings, the authority will be expected to produce evidence to substantiate
each reason for refusal, by reference to the development plan and all other material
considerations. If they cannot do so, costs may be awarded against them. This is the ground
on which costs are most commonly awarded against a planning authority. Each reason for
refusal will be examined for evidence that the provisions of the development plan, and relevant
advice in Departmental planning guidance in PPGS, RPGS, MPGs or Circulars, and any
relevant judicial authority, were properly taken into account; and that the application was
properly considered in the light of these and other material considerations. In any such
proceedings, authorities will be expected to produce evidence to show clearly why the
development cannot be permitted. If one reason for refusal is not properly supported, but
substantial evidence has been produced in support of the others, a partial award may be made,
against the authority, of the appellant's costs incurred in opposing that reason. In cases where
planning issues are clearly shown to be finely balanced, an award of costs relating to
substantive, as distinct from procedural, matters is unlikely to be made against the planning
authority.
9 Planning authorities are not bound to adopt, or include as part of their case, the professional
or technical advice given by their own officers, or received from statutory bodies or consultees.
But they will be expected to show that they had reasonable planning grounds for taking a
decision contrary to such advice; and they were able to produce relevant evidence to support
their decision in all respects. If they fail to do so, costs may be awarded against the authority.
It follows that planning authorities are expected thoroughly to consider relevant advice from
a statutory consultee (such as the National Rivers Authority or English Heritage), or frorn
another Council (for example, a County Council as highway authority), or from a Government
Department, before determining a planning application. Nevertheless, it is always the planning
authority's sole responsibility to ensure that, if they adopt such advice, their decision is based
on a complete understanding of the consultee's advice or opinion. If the planning authority do
not accept or adopt any such advice, they should say so and explain why. In some cases the
planning authority may be specifically directed (under the Town and Country Planning
General Development Order) to refuse, or restrict the grant of, planning permission or to
impose conditions) on any permission they may grant.
10 In general, planning authorities will be expected, in any appeal proceedings, to produce,
or co-ordinate the provision of, evidence in support of advice on which the authority is
relying. They would be well-advised therefore to discuss their case with the consultee, at an
early stage. This extends to keeping the relevant Government Department informed where a
direction has been made. If they see any risk of a later n-iisunderstanding of their reasons for
accepting, or rejecting, advice received, they would be well-advised to amend their reasons,
or their case. If the planning authority are asked during the appeal proceedings about a
consultee's previous advice on which they are not relying in their reasons for refusal, or about
the consultee's intentions in the proceedings (for example, whether they wish to be represented
at an inquiry (or hearing) as a separate party and submit a statement), the authority should
always discuss the matter promptly with the consultee and, where appropriate, forward
relevant correspondence for the consultee's urgent attention. What matters in any subsequent
costs application is the relevance of the reasoning which prompted the authority to accept, or
reject, the consultee's advice, and whether the appellant was given a fair opportunity to
examine and comment on it, as appropriate, during the appeal proceedings.
11 Whenever appropriate, planning authorities will be expected to show that they have
considered the possibility of imposing relevant planning conditions on a grant of permission
which would allow proposed development to proceed; and they have considered any conditions
proposed to them before refusing permission. Where an applicant offers to enter into a
planning obligation which is relevant to his application, this will be a material consideration
which the authority should take into account. However, if there is a choice between imposing
conditions and entering into a planning obligation, the imposition of a condition is preferable
because it enables the applicant to exercise the right of appeal to the Secretary of State.

Examples of unreasonable refusal

12 General advice on the relevance of national planning guidance (in PPGS, RPGS, MPGs
and Circulars) is given in paragraphs 10 and 11 of Annex 1 to this Circular. In the light of the
guidance in paragraphs 25 to 31 of PPG 1 (revised March 1992), which is cited in paragraphs
2 to 5 of this Annex, a planning authority will be at risk of an award of costs against them if
they refuse an application which accords with material policies or proposals in the development
plan, and they are unable to show that there are any other material considerations supporting
such a refusal. Where there are 'other material considerations', on which guidance is given in
paragraphs 23 to 24 of PPG 1, the planning authority are likely to be held to have acted
,unreasonably', in refusing an application, if they cannot provide substantial evidence, on
appeal, in support of that decision, consistent with the guidance in paragraphs 27 to 31 of PPG
1. Paragraphs 32 to 34 of PPG 1 refer to questions of prematurity. Where planning permission
is refused on such grounds, at a time when the development plan is being prepared or reviewed, the planning authority will be expected to provide substantial evidence, on appeal, to show
how the grant of permission would prejudice the outcome of the development plan process. If
they fail to do so, costs may be awarded against them.
13 The new significance of the development plan in planning decisions, following the
implementation of section 54A of the 1990 Act, makes it all the more important that planning
authorities should take all reasonable steps to achieve up-to-date area-wide plans, and ensure
that those plans are kept up-to-date. In cases where a planning authority refuse an application
on the basis that it does not accord with the development plan, and the plan is then shown to
be clearly out-of-date in that respect, the authority will risk an award of costs against them,
unless they can show that they are taking all reasonable steps to bring the relevant plan up-
to-date.
14 When detemiining planning applications, planning authorities are expected to consider the
inipact of development on existing buildings and the landscape or town-scape. Particular
weight should be given to the impact of development on environmentally sensitive areas (such
as National Parks, Areas of Outstanding Natural Beauty and Conservation Areas). But
audiorities should not seek to control the detailed design of buildings unless the sensitive
character of the settin g for the development justifies it. Guidance on design control is stated
in Annex A to PPd 1. If the degree of control, goes beyond what is appropriate for the
circumstances of the location concerned, the authority's action may be regarded as
unreasonable. Where there are other sustainable planning objections to a proposal, a partial
award of costs may be made if design considerations have also been stated without very good
reasons, as a ground for reflising planning permission.
15 Planning audiorities are expected to consider the views of local re sidents when determining
a planning application. Nevertheless, local opposition to a proposal is not, by itself, a
reasonable ground for the refusal of a planning application, unless that opposition is founded
on valid planning reasons which are supported by substantial evidence. While,the planning
authority will need to consider the substance of any local opposition to the proposal, their
duty is to decide a case on its planning merits.
16 A planning authority are likely to be regarded as having acted unreasonably, in the event
of a successful appeal against their refusal of planning permission, if it is clear from a relevant
earlier appeal decision that the Secretary of State or a Planning Inspector would have no
objection to a revised application in the form which was ultimately allowed, and circumstances
have not changed materially meantime.
17 A planning authority are also likely to be regarded as having acted unreasonably if they
refuse permission on reserved matters, raising objections more appropriate to outline stage,
and are unable to show good reason, on appeal, for their stance taken.
18 As stated in PPG 12 (February 1992), paragraph 5.23, and PPG 12 (Wales), paragraph
5.22, the adequacy of infrastructure can be a material consideration in deciding whedier
permission should be granted on an individual planning application. However, a planning
audiority may be regarded as having acted unreasonably if they cite inadequate infrastructure
as a reason for refusal, and there is a statutory duty to remedy the inadequacy within a given
dmescale - for example, in the case of a water company's supply of water for domestic
purposes under the Water Industry Act 1991; or the provision of associated infrastructure for
sewerage or sewage disposal. Annex B to Circular 16191 (WO 53191), provides guidance on
the proper use of planning obligations made under section 106 of the Town and Country
Planning Act 1990 (as substituted by section 12 of the Planning and Compensation Act 1991),
in connection with a grant of planning permission. Where an appeal has arisen, or is pursued,
because of what seems to the Secretary of State to be an unreasonable demand on the part of
the planning authority, he will consider sympathetically an application made to him for an
award of costs, subject to the procedural guidance in Annex 5. (In the case of 'twin-tracking'
situations, guidance is given in paragraphs 16 and: 17 of Annex l.)
19 A further example of unreasonable behaviour is when a planning authority cannot show
good reason - such as a material change in planning circumstances - for failing to renew an
extant or a recently expired planning permission. The advice in paragraph 48 of the Annex to
Circular 1/85 is relevant in this respect. Such a permission is a material factor which must be
taken into account when a planning authority consider a subsequent application for the same
development. In applications for renewal of planning pennissions for mineral workings, the
advice in MPG 2 is relevant. It will normally be considered unreasonable for a mineral
planning authority to refuse to renew an extant, or recently expired, planning permission to
extract minerals, where a condition of that permission stipulated a date by which operations
niust cease and that date has been reached, if workable deposits remain and there has been no
material change of circumstances since the expiring permission was granted. MPG 8 gives
advice on the statutory provisions and procedures for applications for registration of an interim
development order (IDO) or old mining permission, or for determination of operating and
restoration conditions. A mineral planning authority will be expected to show good reason, on
appeal, for refusing an application to register an IDO, or for determining an area of land or
conditions which differ from those set out in the application. Failure to do so is likely to be
regarded as unreasonable.

Conditions
20 Circular 1185 and MPGs 2 and 7 (in the case of mineral developments) give detailed
guidance on the use of conditions, as stated in PPG 1. (MPG 9 gives guidance in the case of
interim development order pemiissions, to which similar considerations apply.) Conditions
should be imposed only when they are both necessary and reasonable. They should be
enforceable, precise, and relevant, both in planning terms and to the proposed development.
The imposition of conditions which clearly fail to meet-these criteria may lead to an award of
costs against the planning authority. In outdoor advertisement applications, the planning
authority should not impose a condition requiring the removal of the advertisement at the
expiry of the period of express consent solely to have the opportunity to review the consent.
They will need to show that any such condition is justified by reference to an actual or
anticipated change in the relevant local circumstances.

Unreasonable issue of enforcement notice

21 Decisions to award costs in enforcement appeal proceedings are based on substantially the
same principles as for planning appeals. This is because enforcement action is within the
planning authority's discretion, and there is a right of appeal to the Secretary of State.
However, the availability of awards of costs, in appropriate circumstances, is not intended to
inhibit planning authorities' readiness to take effective enforcement action, when it is clearly
essential in the public interest. Guidance on planning authorities' use of their new and
improved enforcement powers under the Planning and Compensation Act 1991 (with effec
from 2 January and 27 July 1992) is given in DOE Circulars 21191 and 17192 (WO 76/91 an
38192) and PPG 18.
22 When using their discretionary enforcement powers, planning authorities will be expecte
to exercise care to ensure that their decision to issue an enforcement notice takes full accou
of relevant judicial authority, the Government's Guidance in PPG 18 and well-publicise
appeal decisions. Even where there is no relevant judicial authority applicable to a
enforcement notice or appeal, or the weight of judicial authority is uncertain in a particul
case, a planning authority are likely to be at risk of an award of costs if they feel compelled t
withdraw an enforcement notice. In that event, it may be concluded that, by withdrawing th
notice, the authority were effectively conceding that it was not expedient to have issued it
the outset. An example is where the notice has been so incorrectly drafted, or is so technicall
defective, that, in the authority's view, it could not be corrected or varied by the Secretary o
State, on appeal, in accordance with section 176(1) of the Town and Country Planning Ac
1990 (as substituted by paragraph 23 of Schedule 7 to the Planning and Compensation Ae
1991), with the result that an appeal and the expense involved have been unnecessari
incurred up to the date of withdrawal. The same applies if such a notice is not withdrawn, bu
is subsequently quashed on appeal for similar reasons, after expense has been incurred over
greater period. A serious misunderstanding of clearly established principles of law is likely
be regarded as unreasonable conduct. However, it does not follow that, in any particular case
an authority's reliance on a legal interpretation which is not, in the event, supported by th
reasons for an appeal decision will necessarily be regarded as unreasonable. Plannin
authorities may wish to exercise their new power under section 173A(1)(b) of the 1990 Ae
(introduced by section 5 of the Planning and Compensation Act 1991) to waive or relax an
requirement of an enforcement notice. If they do so after an appeal has been made - fo
example, in the light of subsequent discussion with the appellant - authorities will not be
risk of a partial award of the appellant's costs of pursuing grounds (f) and (g), in sectio
174(2) of the 1990 Act (as amended), if applicable.

23 Circular 21/91, Annex 1, on the new power in section 17IC(7) of the 1990 Act, states
clearly that the service of a planning contravention notice (requiring the provision of relevant
dormation) prior to any enforcement action is entirely optional. It is not intended that an
authority's enforcement decision, when reasonably taken in the circumstances, should put
Teem at risk of an award of appeals costs because they decided not to serve a planning
contravention notice. However, in enforcement cases the Secretary of State, or Planning
Inspector, will need to consider whether the planning authority had reasonable grounds for
concluding that there had been a breach of control; and the adequacy of their stated reasons
(as required by Regulation 3 of the Town and Country Planning (Enforcement Notices and
Appeals)Regulations 1991, S.I. 199112804)whyenforcementactionwasconsideredexpedient
1 the particular circumstances.
24 It will generally be regarded as unreasonable for a planning authority to issue an
enforcement notice solely to remedy the absence of a valid planning permission, if it is
concluded, on an enforcement appeal to the Secretary of State, that there is no significant
planning objection to the breach of control alleged in the enforcement notice. Accordingly,
planning authorities who issue a notice in these circumstances will remain at risk of an award
against them of the appellant's costs in the enforcement appeal. For example, an unconditional
grant of permission on the 'deemed application' in the enforcement appeal n-tight be regarded
as an indication that the alleged breach of control was so trivial or technical as not to justify
enforcement action. The Secretary of State, or Planning Inspector, will consider, in the light
of paragraphs 5 to 22 of PPG 18, whether the planning authority had behaved reasonably in
exercising their discretion to take enforcement action. Authorities should be able to show, on
appeal, that they had reasonable grounds for concluding that the breach of control would
unacceptably affect public amenity, or the existing use of land and buildings meriting
protection in the public.interest; and it was expedient to issue the enforcement notice in the
particular case.
25 Discussions between the parties to an enforcement appeal often continue while the appeal
is in progress. A mutually acceptable compromise may result in withdrawal of an enforcement
notice or appeal, thus avoiding further costs in the proceedings. New section 173A of the 1990
Act enables the planning authority to waive or relax any of the notice's requirements, and to
extend any period specified for compliance with it. In any relevant case, the planning
authority's stated reasons for withdrawing the enforcement notice will be examined in order
to assess whether any material change of circumstances has occurred since the date of issue -
for example, the availability of new information or the willingness of the appellant to apply
for a conditional planning permission - and whether the enforcement notice was withdrawn
promptly. If no good reason can be shown for any protracted delay since the decision to
withdraw was taken, a partial award of costs may be made in respect of costs incurred during
that period.

The handling of the planning application or enforcement notice

26 If a planning authority fail to determine an application within the statutory period, or any
extended period to which the applicant agrees, the applicant may appeal to the Secretary of
State. Paragraph 7 of Circular 22/80 (WO 40/80) advises that, if a decision will be unavoidably
delayed, the applicant ought to be given a proper explanation, including information about
any consultation with other bodies and some indication when a decision is likely to be given.
In any appeal under section 78(2) of the 1990 Act, the planning authority will be expected to
show that they had specific and adequate reasons for not reaching a decision within the time-
litnit. An example is where they were discussing relevant issues with the appellant and had
requested an extended period, or required further information which was requested but not
received from the appellant soon enough to enable a timely decision to be made. An award of
costs may be made against the planning authority if, in the appeal proceedings, they cannot
show that they had specific and adequate reasons for failing to make a decision; or if they
cannot produce evidence to substantiate each of their stated reasons why they would have
refused planning permission (if they had determined the application within the prescribed
period).

27 If the planning authority have refused the appellant's request to discuss the planning
application, or the possibility of granting planning permission (including a conditional
permission) for the development alleged in the enforcement notice, or if they have refused to
provide reasonably requested information, an award of costs may be made against them if it
is concluded that a more helpful approach would have enabled the appeal to be avoided.
28 A planning authority will be expected to have sought further details of an application if
they are unclear about the applicant's intentions from the detail supplied. A planning authority
who have not sought such further details may be regarded as having acted unreasonably in
refusing planning permission on the ground that insufficient detail has been supplied.
Similarly, before issuing an enforcement notice, a planning authority should undertake
reasonable investigations to establish whether there has been a breach of planning control by,
for example, making enquiries and discussing the position with the owner or occupier, and
examining their own records for information about any previous planning consents; or using
their improved investigatory powers provided by the Planning and Compensation Act, which
are explained in PPG 18 and DOE Circular 21/91 (WO 7619 1). These include power to serve
a planning contravention notice and to enter on to land to obtain relevant information from
the owner or occupier of the land and premises. Failure to undertake adequate investigation
may be a ground for an award of costs if it results in an enforcement appeal to the Secretary
of State which, it is concluded, could probably have been avoided if the planning authority
had been more diligent.

ANNEX 4: APPLICATION OF COSTS POLICY TO THIRD PARTIES IN
PROCEEDINGS

General policy on awards of costs to, or against, third parties

1 As explained in paragraph 8 of Annex 1, the term 'principal party' refers (for appeal
proceedings) to the relevant planning authority and the appellant. All other interested parties,
including statutory consultees, whether or not they are 'entitled to appear at an inquiry' under
the appropriate Inquiries Procedure Rules, are defined, for the purposes of this guidance, as
third parties. In the case of hearings, the Inquiries Procedure Rules do not apply, although
similar considerations relating to the procedural conduct of the parties do apply.
2 Awards of costs either in favour of or against third parties, including statutory consultees,
will be made only in exceptional circumstances. In general, third parties will not have costs
awarded to, or against, them where unreasonable behaviour by one of the principal parties
relates to the substance of the case (ie the appeal, or the refusal or perriiission, is considered
unreasonable). But, where unreasonable conduct relating to procedural matters at the inquiry,
or hearing, causes unnecessary expense, third parties may be awarded costs, or have costs
awarded against them. An example would be an unnecessary adjournment caused by
unreasonable conduct, whether of a third party or of another party.
3 The statutory provisions for awards of costs (and the procedures under which they are
made) do not apply to the Crown, including Government Departments which may be
represented, as third parties, in planning proceedings. These provisions remain Crown exempt.
If any party considers that they have incurred 'wasted' or unnecessary costs directly as a result
of unreasonable conduct by a Government Department, it is open to the party to approach
them directly. Under the Citizen's Charter, all public bodies should have well-publicised and
easy to use complaints procedures.

Late cancellation of an inquiry or hearing

4 Where unreasonable conduct causes the cancellation of an inquiry (or hearing), for example,
as a result of unreasonable withdrawal of the appeal (paragraphs 6 to 10 in Annex 2), or where
an appellant withdraws the appeal too late for the inquiry or hearing to be cancelled (paragraph
11 in Annex 2), or fails to attend an inquiry or hearing (paragraph 5 in Annex 2), third parties
may be awarded costs in their favour. For an award of costs to be entertained, third pardes
will need to demonstrate that they had forewarned the appellant and the planning authority of
their intention to appear at an inquiry (or hearing), before incurring expense in preparatory
work for their appearance.
5 Consistently with paragraph 16 of Annex 2, an award of costs in favour of a third party is
unlikely to be made, after the Department's cancellation of an inquiry (or hearing), in
circumstances where discussions between the appellant and the planning authority have
resulted in a mutually acceptable solution to the planning issues on which the appeal turns. If
third parties choose to participate in appeal proceedings, and to incur expense in preparatory
work for an inquiry (or hearing), in which they intend to appear - for example, in support of
the planning authority's refusal of planning peitnission - they do so on their own initiative. In
any costs application relating to a cancellation of an inquiry (or hearing), third parties will be
expected to demonstrate that:

(1) before incurring any expense which is ultimately 'wasted', they first enquired of the
planning authority (and kept in close touch with them) about any discussions between the
principal parties which would have forewarned them that the arranged inquiry (or hearing)
might not proceed on the date first notified; and
(2) the party against whom costs are sought has behaved unreasonably in causing the
cancellation of the inquiry (or hearing).

ANNEX 5: THE COSTS APPLICATION

Inquiry or hearing cases

1 Any application for costs should normally be made to the Planning Inspector at the inquiry
or hearing. Because costs are awarded on the basis of unreasonable conduct, it is usually clear
by this stage whedier there are grounds for such an allegation. An application made before the
end of the proceedings enables the Inspector to consider the parties' submissions. It can
usually be dealt with simply and speedily. The Inspector's appeal decision will not be affected
its any way by the fact that an application for costs has been made. Both parties' representations
on any costs application will noitnally be made immediately after an inquiry or hearing. If
necessary, a short adjournment may be allowed, at the Inspector's discretion, before the
application is heard. If the appeal has been transferred to the Inspector for decision, he will
normally also determine the costs application. If the Secretary of State is to decide the appeal,
the Inspector will report the application and usually make a recommendation, which will be
considered when deciding whether to make any award.

Cases where no inquiry or hearing is held because of a late cancellation

2 If an aitanged inquiry or hearing is cancelled as a direct result of an appellant's withdrawal
of the appeal, or the planning authority's withdrawal of their reasons for refusal or of their
enforcement notice, or of any other basis for the proceedings, an application for costs should
be made in writing immediately to the Department. If some delay is unavoidable, the
application should be made no later than four weeks after receiving confirmation from the
Department (or, in the case of any third parties, from the planning authority) that the inquiry
or hearing has been cancelled. This is already the practice in enforcement notice appeals (and
some specialist appeals cited in paragraph 10 of the Circular), which proceeded by written
representations but were not detem-iined because of the withdrawal by one of the principal
parties. In the case of other proceedings under the Planning Acts, the Secretary of State does
not intend to consider using the discretionary power, in section 322A of the 1990 Act, unless,
as in the case of enforcement notice appeals, a specific application for costs is accepted for
consideration, which is made by one of the principal parties against the other principal party,
or by one, or more, third parties against a principal party. The decision whether the action
which caused the cancellation of the inquiry or hearing was unreasonable will then be taken
on the basis of an exchange of written submissions. Particular attention will be paid to the
circumstances and timing of the action and to the stated justification. The decision on costs will therefore be made solely on the basis of material information which will have been made
available to the relevant parties for prior conunent.

Cases determined by written representations and a site-inspection

3 As stated in paragraph 10 of the introductory Circular, costs may be awarded in the case of
enforcement notice appeals (and some other specified appeals) dealt with by written
representations. Additionally, paragraph 16 of Annex 2 refers to the possibility that, in
planning appeals and other proceedings, an inquiry or hearing may be cancelled after a
planning authority's late withdrawal of one or more reasons for refusal, but the appeal
nevertheless proceeds to a determination by written representations and a site-inspection. In
this situation, the Secretary of State may, on application to him, use the discretionary power
in section 322A of the 1990 Act to make a partial award of costs, on the basis stated in
paragraph 16 of Annex 2. In all such cases, an application for costs should be made to the
Department, in writing, before the Planning Inspector's site-inspection. At this stage, when it
is expected that the parties' statements will have been exchanged, it should normally be clear
whether there is any basis for an application for costs on grounds of unreasonable behaviour.

Late applications for costs
4 An application for costs made after the inquiry or hearing, or later than four weeks after its
cancellation, will be accepted only if the party applying for costs can show good reason for
not having applied earlier; and likewise if an application is made later than four weeks after
issue of the decision, or the Department's notification of an appellant's or planning authority's
withdrawal, in a written representations case. If such an application is accepted, it will be
determined by the Secretary of State on the basis of the appeal papers and an exchange of
written submissions, and normally without seeking any advice from the Inspector who held
the inquiry or hearing. A party wishing to apply for costs after completion of the proceedings
should do so at the earliest opportunity. If the Secretary of State accepts the application, the
parties involved should be as concise and sparing as reasonably possible in their exchange of
submissions, and observe the time-limits set by the Secretary of State. If this is not done, the
application may be determined on the basis of the submissions already available, without
further delay.

Amount of award
5 Section 250(5) of the 1972 Act empowers the Secretary of State to make 'orders as to the
costs of the parties at the inquiry.' He interprets this as enabling him to award to a party the
costs necessarily and reasonably incurred in relation to the proceedings before him. The
power, which has been applied so as to enable Planning Inspectors to award costs, does not
extend to awards of compensation for indirect losses, such as those which may result from
delay in obtaining planning permission via the appeal process. The Secretary of State and
Inspectors do not determine the amount of costs payable. The party awarded costs should in
the first instance submit details of their costs to the other party, with a view to reaching
agreement on the amount. If they are unable to agree, the party awarded costs can refer the
case to a Taxing Officer of the Supreme Court for determination. When an award of costs is
made, the parties will also be sent a guidance note on taxation procedure.

Full awards
6 A full award of costs relates to costs incurred during the period starting on the date when
the Secretary of State receives notice of an appeal and ending on the date when the appeal is
concluded, normally by its determination or withdrawal.

Partial awards

7 Some cases do not justify a full award of costs. In these circumstances, a partial award may
be made. An example is where a planning authority have failed to provide evidence to
substantiate only one of several reasons for refusing a planning application; in this case an
award would be limited to the costs of appealing against that reason. Similarly, where an
unnecessary adjournment is caused by the unreasonable conduct of one of the parties, the
award of costs would be limited to the extra expense caused by the adjournment - that is, over
a limited period.

ANNEX 6: COSTS IN RESPECT OF COMPULSORY PURCHASE AND
ANALOGOUS ORDERS

General principles

1 There is a distinction between cases where appellants take the initiative, such as in applying
for planning permission or undertaking development allegedly without planning permission,
and cases where objectors are defending their rights, or protecting their interests, which are
the subject of a compulsory purchase order. If a statutory objector to such an order is
successful, an award of costs will be made in his favour unless there are exceptional reasons
for not doing so. The award will be made against the authority who made the order: it does
not, of itself, imply unreasonable behaviour by the authority.
2 To enable an award to be made on grounds of success the claimant must have made a
formal objection to the order; the order must have been the subject of a local inquiry which
the claimant must have attended (or been represented at); and the claimant must have been
heard as a statutory objector. In addition, the claimant must have had the objection sustained
by the Secretary of State's refusal to confirm the order, or by his decision to exclude from the
order the whole or part of the objector's property.
3 No application for costs need be made at the inquiry by a successful statutory objector; the
Secretary of State will write to the parties concerned. There are some circumstances in which
an award of costs may be made to an unsuccessful objector or to an order-making authority
because 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. In these cases an application for costs should be
made to the Secretary of State immediately after the inquiry. 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 he has acted unreasonably and caused unnecessary
expense in the proceedings - as, for example, where his conduct leads to an adjournment
which ought not to have been necessary.

Partly successful objectors

4 Where a statutory objector is partly successful in opposing a compulsory purchase order,

the Secretary of State will normally make a partial award of costs. Such cases arise, for
example, where the Secretary of State, in confirming an order, excludes part of the objector's
land. Vv'here a compulsory purchase order has been made under section 290 of the Housing
Act 1985, after 31 March 1990, an objector will not be regarded as partly successful if the
order is confirmed with a modification re-classifying his property as 'added' lands. Following
the enhanced compensation provisions introduced by the Local Government and Housing Act
1989, such a notification would not affect the compensation payable.

Analogous orders and proposals

5 The Secretary of State normally awards costs to successful objectors to orders and proposals
which he regards as analogous to compulsory purchase orders. In general he will consider an
order or proposal to be analogous to a compulsory purchase order if its making or conflitnaddi
takes away from the objector some right or interest in land for which the statute gives him a
right to compensation. Some examples -of orders and proposals which are considered t6 be
analogous to compulsory purchase orders, or may be in certain cases (depending oh the
particular circumstances of an objector's interest in the land), are set out in the Appendix to
this Annex, although the list is not intended to be exhaustive.
6 Paragraph 8 of the Circular explains that the power,in section 322A of the Town and
Country Planning Act 1990 (inserted by section 30 of the Planning and Compensation Act
1991) has been commenced so as not to apply to certain categories of proceedings under @b
Planning Acts. These proceedings include 'analogous' orders made under the Planning Acts,
which are listed both in Annex 7 and in the Appendix to this Annex. The provisions do not
apply to any compulsory purchase order or analogous order proceedings.

Plural objections

7 Sometimes joint inquiries are held into two 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
statutory objector, who also makes representations about a related application, appears at such inquiries and is successful in objecting to the compulsory purchase order, the objector will be
entitled to an award in respect of the compulsory purchase 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.

APPENDIX TO ANNEX 6: ORDERS ANALOGOUS TO COMPULSORY
PURCHASE ORDERS

(1) orders under sections 97 and 98 of the Town and Country Planning Act 1990, revoking or
modifying a planning permission;
(2) orders under sections 23 and 24 of the Planning (Listed Buildings and Conservation Areas)
Act 1990, revoking or modifying listed building consent;
(3) orders under section 220 of the Town and Country Planning Act 1990 and Control of
Advertisements Regulations, revoking or modifying a grant of advertisement consent;
(4) orders under sections 102 and 103 of, and Schedule 9 to, the Town and Country Planning
Act 1990-

(a) requiring discontinuance of a use of land (including the winning and working of minerals),
or imposing conditions on the continuance of a use of land; or
(b) requiring the removal or alteration of buildings or works; or
(c) requiring the removal or alteration of plant or machinery used for winning or working of
minerals; or
(d) prohibiting the resumption of winning or working of minerals; or
(e) requiring steps to be taken for the protection of the environment, after suspension of
winning and working of minerals;

(5) orders under sections 14 and 15 of the Planning (Hazardous Substances) Act 1990,
revoking or modifying a hazardous substances consent, or refusal of an application under
section 17(1) of the Act for continuation of a consent, on change of control of land;
(6) orders under section 26 of the Highways Act 1980, creating a footpath or bridleway over
land;
(7) 'orders under sections 118 to 119A of the Highways Act 1980 (as amended by the
Transport and Wor