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Costs awards in planning appeals in Northern Ireland - a new world of pain?

There are many changes to the Northern Irish planning system coming into force on 1 April 2015, as planning powers are transferred to the 11 new local councils. These have been the subject of much discussion and debate. One significant area that has perhaps been overlooked is the new powers granted to the Planning Appeals Commission (PAC) for the award of costs in planning appeals. The new rules make important reading for anyone going into an appeal and could have a considerable impact on the future of the appeal system.

The cost of an appeal itself for the refusal of planning permission is not changing; it will remain for the time being at the very reasonable price of £126 (as set out in the Planning Fees (Deemed Planning Applications and Appeals) Regulations (NI) 2015. Anyone with experience of appeals will of course know full well that the costs do not end there as the costs of consultants, Counsel and solicitors can soon stack up for a complex and lengthy appeal. However, for any appeals to planning applications submitted after 1 April there is a significant new issue to consider which could, depending on the circumstances, be a major benefit in mitigating those costs, or a significant hazard leaving appellants seriously out of pocket.

Sections 205 and 206 of the Planning Act (NI) 2011 allow the PAC to impose a costs order on any party to an appeal, but provide no detail on when such orders might be imposed. The PAC fills this gap with its own guidance that is now available on its website.

It is important to note that, unlike judicial review proceedings (another familiar forum for those involved in the planning process) not all appeals will end in a costs order. The key factors in determining whether costs are awarded will be whether a party to the appeal has brought another party to "unnecessary expense through unreasonable behaviour". So what in the PAC's view constitutes unreasonable behaviour? The guidance helpfully provides examples;

  • Causing an unnecessary appeal; for example where the planning authority provides no credible evidence to support its reasons for refusal. Another could be where an appellant pursues an appeal with no reasonable prospect of success;
  • Unnecessarily prolonging proceedings; for example by failing to attend a hearing or site visit or where a new reason for refusal or ground of appeal is introduced late in proceedings;
  • Abandoning or not pursuing part of a case, such as withdrawing a reason for refusal or ground of appeal; and
  • Withdrawing an appeal unless there are significant changes in circumstances that warrant the withdrawal.

It is clear from the above that opportunities for unreasonable behaviour apply equally to both appellant and the planning authority. Further, success in an appeal does not necessarily insulate the victor from a costs award against them. In some circumstances, the PAC states that third parties may also have costs orders imposed, such as where a third party has unreasonably prolonged proceedings or failed to support a significant issue that only they had raised. It is not unknown for objectors to seek to be vexatious in appeals, and this type of behaviour in future may have adverse consequences beyond a reprimand from the Commissioner.

Undoubtedly the threat of costs awards for new appeals brought after 1 April will focus minds on avoiding behaviour that could invoke section 205 or 206. This works both ways; the planning authorities may be dissuaded from bringing weak or spurious appeals but appellants will also need to think very carefully about whether an appeal has any real merit. Without doubt the threat of a costs order will be cast at the local councils whenever a refusal seems inevitable, and the planning authorities may be tasked with difficult decisions over whether a refusal should be sustained and the implications of a refusal in an appeal. A particular danger area for appellants will be in enforcement appeals, where it is not uncommon for appeals to be launched simply to buy more time before the inevitable refusal occurs.

Bringing and defending costs claims will incur their own further costs. Even when awarded they can be appealed and may be subject to protracted negotiations (ultimately before a Costs Judge) on the actual amount that can be claimed.

This is a whole new world for the Northern Irish planning system and it will inevitably take a long time and the help of substantial new precedent for the planning community (PAC included) to fully understand its implications. This is yet another major change to the planning system that local practitioners must grapple with.

As Northern Irish planning moves to a system far closer to that in England, inevitably experience gained in that jurisdiction will be invaluable. Costs awards have been available in England for many years and practitioners in that jurisdiction will be very familiar with the advantages and pitfalls of the costs awards system. TLT's planning team has many years' experience in making and defending costs awards in England and can bring this knowledge to appeals in Northern Ireland. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297. 

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