Costs awards Q & A DCP Section 6.1

As established in R. v Kensington & Chelsea LB 1991, the risk of a costs award after a planning, enforcement or other specialist appeal to the Secretary of State is a material consideration in a planning authority's determination of an application or in its decision on certain other planning actions, such as instigating enforcement proceedings, and this factor has become an important restraint on development management practice. This restraint also extends to the actions of developers and third parties, so increasing the discipline of all who engage in the planning process by penalising 'unreasonable behaviour'. Although costs orders made by the courts following judicial review and statutory challenges are touched on briefly in this section, detailed consideration of these provisions is beyond the scope of this manual.

Q & A    6.1/10

We won a recent enforcement appeal conducted by hearing but had costs awarded against us concerning the ground c) element. The inspector noted that we had no chance of success on this count. We have now been billed for the involvement of a solicitor employed by the council at the rate of £150 per hour. Bearing in mind the Inspectorate's observations that "parties are not normally legally represented" at hearings, and the fact that a competent enforcement officer could have handled the case equally as well, do you think this charge is reasonable?

Details of disputes of this type do not normally come within the public domain.  Do any readers have experience of the issue?

Response

We have had a dispute of this sort in the reverse situation, where the appellant chose to appoint a solicitor in a planning advisor role at an informal hearing. The council referred to para. 12 of Annex 2 to Circular 15/96 arguing that a lawyer was not entitled to any costs as there was no need for a specialist advocate at a hearing. We argued that the lawyer was fulfilling the role of a planning advisor rather than a specialist advocate and that this role accords with the advice in the circular which states that "appellants may present their case through an agent or advisor".

The publication on "Planning Solicitors" issued by the Law Society states that  "The practical experience gained by members of the Panel, together with their detailed knowledge of the law of town and country planning means that they are often called upon by clients to attend hearings as "representatives" – not as advocates, the emphasis in such proceedings being on informality".

Casebook recently reported a case that had been decided following an exchange of written representations where a full award of costs was made to the appellants (DCS No.100-046-933). As my understanding is that written representations appeals do not allow costs to be claimed, please explain.

The decision concerned an appeal against an authority's refusal to issue a lawful development certificate (LDC). Paragraph 10 of Circular 8/93, which deals with costs awarded in planning proceedings, explains that in enforcement notice appeals and some other specialist appeals that are listed in annex 7 of the circular and include those involving LDCs, the Planning (Consequential Provisions) Act 1990 enables costs to be awarded where such a case is determined following the written representations procedure. In Scotland, claims for costs may be made in the case of all appeals decided by the written method, as explained in Scottish Office Circular 6/90.


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