What is the process for awarding costs to an objector following a withdrawn revocation order by the LPA before a hearing/inquiry? Is this covered in any legislation?

Introduction

1.1. The Town and Country Planning Act 1990 (TCPA 1990) provides a procedure for the revocation or modification of a planning permission by a local planning authority (LPA) (section 97, TCPA 1990); and provides that when such an order is opposed that it is to be submitted to the Secretary of State for confirmation, who is to give a person served with notice of the order an opportunity to appear before and be heard by a person appointed by the Secretary of State (section 98). Provision is also made for compensation to be payable where planning permission is revoked or modified (section 107).

1.2. Opposed ROs will be heard by a Planning Inspector appointed by the Secretary of State, by way or either a hearing or an inquiry. The Secretary of State has a statutory power to award costs to “the parties at the inquiry” (section 250(5) Local Government Act 1972). This power extends to costs incurred in the contemplation of an inquiry (Powerrapid Ltd v Harlow DC [2021 12 WLUK 141). Section 322(1) TCPA90 advises that the section applies to “proceedings under this Act where the Secretary of State is required, before reaching a decision, to give any person an opportunity of appearing before and being heard by a person appointed by him.” This would include proceedings under section 98 TCPA 1990. Section 322(2) goes on to state that “The Secretary of State has the same power to make orders under section 250(5) of the Local Government Act 1972 (orders with respect to the costs of the parties) in relation to proceedings in England to which this section applies which do not give rise to a local inquiry as he has in relation to a local inquiry.” It is therefore clear that where an opposed RO is withdrawn an inquiry is not held that the Secretary of State nonetheless has the power to award costs. This is put beyond doubt by section 322A TCPA 1990 which refers to hearings and inquiries:

“1) This section applies where—

(a) for the purpose of any proceedings in England under this Act—

(i) the Secretary of State is required, before a decision is reached, to give any person an opportunity, or ask any person whether he wishes, to appear before and be heard by a person appointed by him; and

(ii) arrangements are made for a local inquiry or hearing to be held;

(b) the inquiry or hearing does not take place; and

(c) if it had taken place, the Secretary of State or a person appointed by him would have had power to make an order under section 250(5) of the Local Government Act 1972 requiring any party to pay any costs of any other party.

(2) Where this section applies the power to make such an order may be exercised, in relation to costs incurred for the purposes of the inquiry or hearing, as if it had taken place.”

1.3. The National Planning Practice Guidance (NPPG), provides guidance in relation to the award of costs by the Secretary of State, the guidance covers costs in planning appeals, as well as the award of costs to objectors in connection with compulsory purchase orders (CPOs) and proposals considered to be analogous, which will include ROs.

Costs awards and procedure

2.1. The NPPG provides a non-exhaustive list of orders considered to be analogous to CPOs, namely “orders which seek to take away a party’s rights or interest in land” “for which the statute gives them a right to compensation”. A RO satisfies this test. The NPPG states that “Where objectors are defending their rights, or protecting their interests, which are the subject of a compulsory purchase or analogous order, they may have costs awarded in their favour if the order does not proceed or is not confirmed.” (Paragraph: 057 Reference ID: 16-057-20140306). The non-exhaustive list of ‘analogous orders’ is at Paragraph: 064 Reference ID: 16-064-20140306. The list specifically refers to ROs: “Orders under sections 97 and 98 of the Town and Country Planning Act 1990 revoking or modifying a planning permission”. Although the power to award costs is derived from section 322 and 322A TCPA 1990, the NPPG provides the additional confirmation that when a RO is withdrawn and a hearing or inquiry does not proceed, pursuant to section 98, that this gives rise to a right to claim costs to any party with an interest in the land that is the subject of the planning permission, that the LPA were seeking to revoke or modify.

2.2. The NPPG explains that a ‘remaining objection’ will be successful and a costs award may be made in a claimant’s favour if an inquiry is cancelled because the acquiring authority has decided not to proceed with the order (Paragraph: 057 Reference ID: 16-057-20140306). A ‘remaining objector’ is a person who is defending their rights, or protecting their interests, which are the subject of a compulsory purchase or analogous order. (Paragraph: 057 Reference ID: 16-057-20140306).

2.3. Costs may be awarded in relation to ‘analogous orders’ both where a party is successful (which will be the case where a proposed order is withdrawn); or where a party has behaved unreasonably and that party’s unreasonable behaviour has directly caused another party to incur unnecessary or wasted expense.

2.4. In Manchester City Council v SSE & Mercury Communications Limited [1988] JPL 774, Kennedy J emphasised that “unreasonable” in this context takes its ordinary meaning. This ‘unreasonableness’ test will be applied to the decision on the procedural issues and on the substantive merits of an application. This was affirmed in Swale Borough Council v Secretary of State for Housing, Communities and Local Government and another [2020] EWHC 3482 (Admin).

2.5. Procedural unreasonable behaviour may include a party’s lack of cooperation with the other parties, delay in providing information and failure to meet deadlines. Substantive unreasonable behaviour may include failure to provide evidence, preventing development, which should be permitted, and acting contrary to well-established case law.

2.6. An application for costs will need to demonstrate how the alleged unreasonable behaviour has resulted in unnecessary or wasted expense. Costs may include the time spent by the appellants and their representatives in preparing for the hearing or inquiry, but these may also relate to events before the hearing or inquiry.

2.7. Applications for costs should be made as soon as possible. However, “for all procedures”, which may include cases where a hearing or inquiry does not take place, or an appeal or enforcement notice is withdrawn, or there is a withdrawal of any “other planning matter which is the subject of the proceedings” applications should be made no later than 4 weeks after receiving notification from the Planning Inspectorate or the LPA of the withdrawal (NPPG, Paragraph: 035 Reference ID: 16-035-20161210, and Paragraph: 042 Reference ID: 16-042-20161210). Costs applications can be made by letter or by using the Planning’s Inspectorate’s application form.

Useful Resources:

• Town and Country Planning Act 1990
• Appeals - GOV.UK (www.gov.uk)
• Manchester City Council v Secretary of State for the Environment and another [1987] JPL 774 (Lexis Citation [1987] 305)
• Swale Borough Council v Secretary of State for Housing, Communities and Local Government and another [2020] EWHC 3482 (Admin)