Archive for May, 2009

Appeal Costs

Welcome to Prism’s first attempt at a planning ‘blog’. I know that it’s probably not as exciting as learning what David Cameron has just had for breakfast but there are things happening out there in the planning world which affect the way in which we all do business. We thought we would start off by looking at the new changes to the appeal system, in particular the new abilities to claim costs across the board. If this might be of interest to you, read on…… If not, either go back to Mr Cameron’s breakfast for the day or tell me what else you would find interesting! When fighting a planning appeal, both sides are responsible for their own costs, regardless of who wins or loses. The only time this script is departed from is when one party behaves unreasonably. Even then, the aggrieved party can only apply for costs if the appeal is being heard at either a public inquiry or an informal hearing. These formats account for only a very small proportion of appeals –less than 10%. The alternative format of appeal, the written representation, is the cheapest and quickest but couldn’t be used to claim costs back except in specialist enforcement cases.That’s all changed now under new rules that came into effect on 6th April. From now on, any appeal started after that date, regardless of whether its written representations, informal hearing or public inquiry can be used to claim costs where a party has behaved unreasonably. Usually it’s the appellant aggrieved with the LPA which wants their costs but potential appellants need to understand it works both ways. Lodging any form of frivolous appeal can work against you but in my experience this rarely happens. The new guidance goes on to give examples of what the government will consider to amount to unreasonable behaviour and it throws up some interesting new areas for you all to be aware of. I thought I would draw your attention to a few of these in this note –some of them might cause your eyebrows to raise! 1) It is expected that applicants and LPA will have constructive pre-application discussions with each other. Where the LPA refuse or fail to provide reasonably requested information this can be valid grounds for an award. 2) Determining applications in an inconsistent manner! 3) Imposing conditions that fail the key tests set out in Circular 11/95 4) Refusing an application for a reason that could be overcome through the imposition of a condition instead. 5) Requiring the applicant to enter into a S106 agreement, the terms of which exceed current government guidance. 6) Relying on third parties to substantiate reasons for refusal 7) Withdrawal of grounds of refusal. 8) Not providing or agreeing a ‘Statement of Common Ground’ where relevant for an inquiry. One area I thought I would bring to you specific attention concerns those times when you have a problem and are negotiating on a solution and then the Council decide, for reasons of their own performance that they are going to refuse your proposals. I know we have all faced such frustrating scenarios. The new guidance does not deal with this head on but there is a reference to an oblique situation which may be of interest. Where you are negotiating with the Highways Agency and are close to reaching a solution, the guidance does tell you that if the LPA refuse the proposal without waiting for the solution to emerge, they may be considered unreasonable because their actions have resulted in an unnecessary appeal. The principles established by this will be interesting to say the least. We need a few ‘test cases’ to emerge and clarify just how far the Inspectorate have been told to go. What is clear is that LPA’s are far more exposed to costs than was previously the case and the scope for what is considered unreasonable has become much wider. Like everything in the planning world, there is an enormous paper chase surrounding how all of this is to be administered and great deal of bureaucracy. However it’s all familiar to us at Prism so give us a shout if any of this strikes a chord with you.