Statutory consultees 'to be more liable to appeal costs'

Government agencies that local authorities must consult when considering planning applications will become more liable for costs at appeal under proposed government guidance.

The Department for Communities and Local Government (DCLG) yesterday published a consultation paper, Statutory consultee performance and award of costs, which outlines the planned guidance.

It wants to improve the performance of statutory consultees, which are government agencies that local authorities are legally required to consult when considering planning applications.

They include bodies such as the Highways Agency, Natural England and the Health and Safety Executive that are meant to offer expert advice in their relevant areas.

Their comments, the guidance says, can result in planning conditions being imposed and sometimes even a refusal of permission.

At the moment, guidance outlined in the Award of Costs Circular 03/09, makes a distinction between statutory consultees and "other third parties" that appear at appeals to advise local authorities or applicants.

According to the circular, the latter are "at risk of an award of costs against them for any unreasonable conduct by them relating to procedural matters at the inquiry, which causes unnecessary or wasted expense to other parties".

The consultation document proposes removing this distinction and adding that consultees should take responsibility for their advice on appeal and be liable in a similar way if "their advice has been relevant to the refusal of the application".

Currently, statutory consultees are only at risk of costs at an appeal if they are separately represented with their own legal representatives. The paper said in 2011, there were no awards of costs against statutory consultees.

The paper goes on to say the aim of the move is for "clearer, stronger advice from statutory consultees to local authorities and applicants", resulting in "quicker, more efficient and fully justified decisions".

The DCLG also wants to clarify previous cost guidance by making it clear that councils are not liable if they refuse a planning application that is "clearly contrary" to their development plan and where no material considerations including national policy indicate that permission should have been granted.

It says the new guidance would further remind applicants that they are at risk of costs if they have "relied on evidence that has been shown to be manifestly inaccurate or untrue".

The proposals follows an announcement in the chancellor’s Autumn Statement which required the five key consultees - Environment Agency, Natural England, Highways Agency, English Heritage and Health & Safety Executive – to produce draft plans in the spring showing how they would improve their service in relation to the planning process.

The consultation ends on 11 September.

Statutory consultee performance and award of costs can be read here.