Award of costs in planning appeals

 

In England, everyone who takes part in a planning appeal normally pays their own way. There is no fee to lodge an appeal, and there is no prize for winning one. An award of costs is the exception to that rule. It is an order that one party pays another party’s expenses, and it is made only where somebody has behaved unreasonably and that behaviour has cost the other side money it should never have had to spend.

This catches people out, because it works nothing like a court case. In the High Court, costs broadly follow the event, so the losing side usually pays. At a planning appeal they do not. You can win your appeal outright and still go home with your own bill for the planning consultant, the barrister and the expert witnesses. Whether the council was wrong is a completely different question from whether it was unreasonable, and only the second one puts money on the table.

This page explains when costs can be awarded, what you have to prove, how the position changes for called-in applications and enforcement appeals, and why applying is not always the sensible move.

 

What an award of costs actually is

 

The underlying power sits in section 250(5) of the Local Government Act 1972, which lets the decision maker order one party to an inquiry to pay another party’s costs. Planning law then borrows that power and applies it to the various ways an appeal can be dealt with. Section 320(2) of the Town and Country Planning Act 1990 applies it to a local inquiry. Section 322(2) applies the same power to proceedings in England that do not give rise to a local inquiry, which is how it reaches hearings and written representations. Where an appeal has been transferred to an inspector, the order recites section 250(5) together with Schedule 6 to the 1990 Act.

The words “in England” in section 322(2) were put there by the Planning (Wales) Act 2015. That is a signal worth noticing, because Wales now runs a materially different costs regime, covered further down this page.

The statutory power is deliberately broad. In practice it is exercised in accordance with the Planning Practice Guidance, and it is the guidance rather than the statute that decides almost every real case.

 

Costs do not follow the event

 

This is the single most important thing to understand, and it is the point most often got wrong. Parties in planning appeals and other planning proceedings normally meet their own expenses. Winning does not entitle you to anything. A council that refuses permission and then loses the appeal has not, by losing, done anything that costs you money unfairly. It has simply reached a different planning judgment from the inspector, which it is entitled to do.

Planning involves judgment, and reasonable people reach opposite conclusions on the same facts every day of the week. The costs regime exists to catch behaviour that falls outside that range, not to punish the side that came second.

 

The two things you have to show

 

An application has to get over two separate hurdles, and both of them:

• that the other party behaved unreasonably
• that the unreasonable behaviour directly caused you to incur unnecessary or wasted expense in the appeal process

The second limb does a lot of work and is where most applications fail. Behaviour can be plainly unreasonable and still produce no award, because it did not actually cost you anything extra. Equally, you may have spent a fortune on an appeal without any of it being wasted. You have to join the two together and show which expense flowed from which behaviour.

An award can be full or partial. A partial award is much more common, and typically runs from a particular date or covers one issue rather than the whole appeal.

A good real-world example is the 2026 Chichester appeal costs decision at Inlands Road, Nutbourne. Members were entitled to disagree with their officers, but the Inspector found the technical highway and level-crossing reasons were not adequately supported. The resulting partial award has now crystallised into a £99,000 payment by the council.

The guidance treats “unreasonable” as having its ordinary, everyday meaning. It is not a technical public law test, and it does not require bad faith.

One point that surprises people: an award does not depend on anyone asking for one. Costs are usually awarded in response to an application by one of the parties, but the Inspector may also make an award of their own initiative where no party has applied at all.

 

Procedural and substantive unreasonableness

 

The guidance splits unreasonable behaviour into two families. Procedural unreasonableness is about how a party has conducted the process. Substantive unreasonableness is about the merits of the position it has taken.

Procedural examples include a lack of co-operation with the other parties, delay in providing information, missing deadlines, and putting forward information that turns out to be manifestly inaccurate or untrue.

Substantive examples, where the party at risk is the council, include failing to produce evidence to substantiate each reason for refusal, refusing to provide reasonably requested information where a more helpful approach would probably have avoided the appeal or narrowed the issues, not reviewing its case promptly once an appeal has been lodged, and preventing or delaying development that should clearly have been permitted having regard to the development plan and national policy.

A useful recent example is the Dursley Class MA appeal. Stroud District Council refused prior approval because the conversion depended on windows and rooflights outside Class MA, despite an extant separate permission and the approach established in Zenith. The Inspector found the council’s case against a suitable occupation condition limited and vague and made a full award of costs. You can read the full costs decision for appeal 6008924.

Appellants are not immune. An appellant can be at risk for pursuing an appeal with no reasonable prospect, for failing to provide evidence it always knew would be needed, or for causing an inquiry to be adjourned.

Unreasonable behaviour at the application stage counts. The expense you can recover is the expense of the appeal, but the conduct that caused it can predate the appeal being lodged, which is why the appeal form itself invites a costs application at the point of submission.

 

When to make a costs application

 

Do not wait until the decision arrives. The deadline depends on the procedure:

• for a Part 1 written representations appeal, including refusal of advertisement consent, the appellant should submit the costs application with the appeal; the council has 14 days from the appeal start-date letter
• for a Tree Preservation Order appeal, the appellant should make the costs application with the appeal
• for Part 2 written representations, apply no later than the final-comments stage unless the Inspectorate sets a different deadline; if the complaint is about conduct at the site visit, apply within 7 days of the visit
• at a hearing or inquiry, the application must be formally made before the event closes, although it is good practice to put it in writing beforehand where possible
• if the appeal or other proceedings are withdrawn, the normal outside limit is 4 weeks from notification of the withdrawal

Late applications need a good reason before the Secretary of State will consider accepting them. The Planning Inspectorate provides a costs template, but a properly set out written application can also be used.

 

How much evidence a council has to produce

 

Two older cases still set the threshold. The second approved the first, and in 2025 the Court of Appeal treated both as the settled case law on costs and applied their tests.

The courts have held that the evidence a council relies on must have some substance, in the sense of providing a respectable basis for its position on the issue. It does not have to be good enough to persuade the inspector. If it did, every failure to persuade would expose the losing side to a finding of unreasonableness, which cannot be right.

That approach has been approved, with the threshold described as a sufficient evidential basis, meaning evidence that is not lacking real substance, is capable of belief, and if accepted would make good the objection. He added an important qualification: a council that persists with an objection knowing the appellant can produce cogent and overwhelming evidence to refute it may still be acting unreasonably, even though its own evidence clears the threshold.

 

Called-in applications, and what the Halton case decided

 

Where an application is called in, the Secretary of State determines it instead of the council. That puts the parties in a different position, because the council is not defending a refusal or a failure to determine. The guidance says that in a called-in case it is not envisaged that a party will be at risk of an award of costs relating to the substance of the case, or to anything done before the call-in. Procedural failures remain in scope, and that expressly includes aborting the process by withdrawing the application without good reason.

That distinction was tested in R (Halton Borough Council) v Secretary of State for Housing, Communities and Local Government [2025] EWCA Civ 1566, decided on 3 December 2025. The council had supported a housing scheme near a chemicals complex against objections from the Health and Safety Executive. The application was called in. Partway through the inquiry the council’s own expert accepted in cross-examination that, in the inspector’s shoes, he would advise strongly against granting permission. The council withdrew its support, the developer withdrew the application, and the inquiry collapsed. The Secretary of State decided the council had behaved unreasonably in withdrawing support when it did, and made partial awards against it. A challenge failed before Fordham J.

The Court of Appeal allowed the council’s appeal and the costs awards did not survive. Lord Justice Lewison held that the reasoning contained a demonstrable flaw. Points worth taking away:

• an expert’s evidence being damaged in cross-examination does not by itself make the party who called that expert unreasonable
• an expert’s first duty is to help the inspector, so an expert who concedes a point adverse to their own client is doing the job properly
• before reliance on expert evidence can be called unreasonable there has to be some trigger that should have caused the party to doubt it
• there is no normal procedural requirement to test your own expert to see whether the evidence would withstand cross-examination
• where you realise you can no longer maintain a case, withdrawing is the right thing to do; the real question is whether you should have withdrawn sooner

Read the last point carefully. Prompt withdrawal is not unreasonable behaviour. Late withdrawal, where you knew or should have appreciated much earlier that your case had gone, can be.

One caution. Halton was a called-in application, where substantive unreasonableness was largely off the table to begin with. It should not be stretched into an all-purpose rule that expert evidence never carries a costs risk in an ordinary planning appeal.

 

When the inquiry or hearing never happens

 

Costs are not lost simply because the event is cancelled. Section 322A of the 1990 Act covers the situation where arrangements have been made for an inquiry or a hearing, the inquiry or hearing does not take place, and the decision maker would have had the power to make a costs order if it had. In that case the power can be exercised in relation to the costs incurred for the purposes of the event as though it had gone ahead.

This is the provision that bites when an appeal is withdrawn at the eleventh hour, or a council caves in the week before an inquiry after everyone has already paid for their evidence. It is regularly overlooked.

 

Enforcement appeals and other proceedings

 

The same costs regime applies to enforcement appeals, and the same two limbs have to be satisfied. A council that issues an enforcement notice it cannot substantiate, or that withdraws one at the door of the inquiry, is exposed in exactly the way it would be on a refusal. An appellant who runs hopeless grounds, or who abandons grounds only at the hearing after the council has prepared to meet them, is exposed in the other direction.

Interested parties are treated more cautiously. Someone who takes on formal Rule 6 party status at an inquiry can both receive an award and be liable for one. For other interested parties, awards are not anticipated except in exceptional circumstances, and in written representations cases the guidance does not envisage awards involving interested parties arising at all.

 

The mayoral direction, a costs risk that is set to widen

 

Section 322B of the 1990 Act deals with a situation peculiar to London. Where a London borough refuses an application in compliance with a direction from the Mayor of London, and an appeal follows, the Mayor can be ordered to pay costs even if the Mayor is not a party to the inquiry, provided the Secretary of State decides the Mayor acted unreasonably in making that direction. The borough that was obliged to refuse is not left carrying the bill for a decision it did not take.

Schedule 16 to the English Devolution and Community Empowerment Act 2026, which received Royal Assent on 29 April 2026, is headed “Amendments relating to changes to mayoral planning powers” and its paragraph 11 amends section 322B. The Act creates strategic authorities and gives their mayors planning powers that until now only the Mayor of London held. This amendment has not yet been commenced. Schedule 16 is not among the provisions brought fully into force on Royal Assent, and neither of the first two commencement regulations brought it into force. The section 322B text on legislation.gov.uk has therefore not yet been updated to include it. Anyone outside London whose council refuses under a mayoral direction should keep an eye on commencement, but the widened provision should not be relied on as current law today.

 

Wales does it differently

 

Do not read Welsh material and assume it applies in England. Section 322C of the 1990 Act, inserted by the Planning (Wales) Act 2015, applies to applications, appeals and references to the Welsh Ministers. It lets the Welsh Ministers recover their own costs of dealing with the case from the applicant or appellant, including a prescribed standard daily amount, and it covers an inquiry or hearing that never takes place.

England has no equivalent. In England the appeal is free and the Planning Inspectorate does not charge you for its time. If you find a page telling you that the planning authority will bill you for the cost of running your appeal, check whether you are reading about Wales.

 

Should you apply for an award of costs at all?

 

Often the answer is no, and this is worth thinking about properly before you spend more money chasing money.

Awards are not routine. The threshold is genuinely high, most refusals are simply disagreements about planning judgment, and a council that produced a respectable evidential basis for each reason for refusal has done what is asked of it even if the inspector preferred your case. Putting in a weak application costs you time, invites a response, and achieves nothing.

There is a relationship cost too. If you are a developer, agent or homeowner who will be dealing with the same planning department again, an aggressive and unsuccessful costs application is remembered. That is not a reason to let genuinely unreasonable behaviour go unchallenged, but it is a reason to be sure of your ground.

Where you should apply is where you can point to something concrete: a reason for refusal abandoned without explanation, evidence never produced, information withheld that would have avoided the whole appeal, or an event aborted at the last minute after you had paid for everything. If you cannot identify the wasted expense and tie it to a specific act, you probably do not have an application.

 

What it costs, and challenging a costs decision

 

There is no fee to make a planning appeal and no fee to apply for an award of costs. Each party bears its own expenses unless an order is made. The application fee you paid the council at the outset is a separate matter, so see our guide to planning fees in England for what an application costs.

Where an award is made, the order settles who pays whom and on what basis, not how much. The parties are expected to agree the amount between themselves, and if they cannot, it goes for detailed assessment by the Senior Courts Costs Office. That process has its own costs, which is another reason to think about proportionality. Our guide to recovering a planning appeal costs award explains the next stage, including the standard basis, proportionality and CPR Part 47.

There is no right of appeal against a costs decision. If you think the decision maker got it wrong, the route is the High Court, not an appeal. Where the costs order was made in connection with an order listed in section 284(2) or an action listed in section 284(3), the route is statutory review under section 288(1A), which needs leave and must be brought within six weeks beginning with the day after the order is made. Where there is no such underlying decision, judicial review is the route instead. The grounds are ordinary public law grounds, such as a material misdirection, a failure to follow the guidance without explaining why, inadequate reasons, or reasoning containing a logical gap. Halton was a judicial review, the application in that case having been withdrawn before any decision was made, and it took two rounds to succeed. The courts are clear that costs are pre-eminently a matter for the decision maker, and a decision is not unlawful merely because another decision maker might have taken a different view.

For deadlines on the underlying appeal, see our guide to planning appeal timescales, and for the wider procedure see planning appeals.

See also our guide to the types of planning application.

 

 

Relevant legislation

 

Links below go to legislation.gov.uk. Always check the “Changes to Legislation” panel at the top of each provision, because amendments are often listed there before they are written into the text. That is currently the position for section 322B.

• Section 250, Local Government Act 1972
• Section 320, Town and Country Planning Act 1990
• Section 322, Town and Country Planning Act 1990
• Section 322A, Town and Country Planning Act 1990
• Section 322B, Town and Country Planning Act 1990
• Section 322C, Town and Country Planning Act 1990, Wales
• Schedule 6, Town and Country Planning Act 1990
• Schedule 16, English Devolution and Community Empowerment Act 2026

Other Planning Appeal Sections

 

Award of Costs Page Updated: 3rd September 2026