On 2 September, we received notification that we had been successful in a planning appeal against a refusal of planning permission for a straightforward first floor rear extension in Forest Gate, in the London Borough of Newham.
The refusal of planning permission had been particularly unreasonable. The extension that our client was proposing was virtually identical to several others on the same street, including at neighbouring properties, and the extension mimicked the original design of the house itself. Dismissing the Council’s argument, the appeals inspector actually decided that the extension would improve the appearance of the property.
The Council further suggested that the extension would harm neighbour’s enjoyment of their own property, by being overbearing and harmfully affecting their outlook. The inspector had little time for this argument, deciding that the development would be set away from neighbours and “modest in scale and depth”.
The government agrees that it is completely unreasonable that householders should incur the costs of appealing a planning refusal, where that refusal was unjustified and not backed up by reasoned judgement. Although Just Planning charges very reasonable fees, all costs matter to householders saving up to extend and renovate their homes.
When appealing, you therefore have the right to make an application for the other side to pay your reasonable costs. It is relatively rare that there applications are successful. It is a generally accepted principle that parties to an appeal should cover their own costs. However, the National Planning Policy Guidance (NPPG) sets out circumstances under which an application might be successful.
According to the NPPG Councils are at particular risk of an award of costs if they:
- prevent or delay development which should clearly be permitted, having regard to its accordance with the development plan, national policy and any other material considerations.
- make vague, generalised or inaccurate assertions about a proposal’s impact, which are unsupported by any objective analysis.
In the Newham case, we prepared a report pointing out that the Council’s refusal was not backed up by a robust assessment of the development. The case officer did not seem to have assessed the application fully and we pointed out errors in the Council’s justification of its decision. We provided evidence that the Council refused permission despite granting permission for almost identical extensions in almost identical circumstances, under the current planning policy framework.
In his costs decision, the inspector agreed with our assessment, deciding:
“I consider that the Council has behaved unreasonably. It has failed to clearly show why the development should not proceed and has not substantiated the reason for refusal. The Council has prevented development that should have been permitted. The appellant has therefore had to recourse to appeal and incur the associated costs of doing so, which in my view could have been avoided.Therefore, I find that unreasonable behaviour resulting in unnecessary or wasted expense, as described in the PPG has been demonstrated and that a full award of costs is justified.”
Not all clients can expect to win a full award of costs, but it is always worth exploring. Clients should also be aware that it is possible that an inspector might also award costs against them (in the Council’s favour) if they behave poorly during the appeal or if it can be shown that they had no realistic chance of success at appeal. Just Planning has never had costs sought or awarded against a client on appeal we have been involved in.