...back to appeal costs.

I've written before that securing costs as an LPA is hard. So much so, that I am not sure you should bother. With a statutory right to appeal, the bar is already set high. Trying to demonstrate unreasonable behaviour in that context is a toughie. Its just annoying is what it is.

I bet you can think of a case : a stinker at that, you've refused it and what happens, Inspector has wool pulled over their eyes at appeal and you loose out. Don't get your costs.

I won't list all the examples but you know what goes on: Wheatcroft schemes right through to new evidence, or other in appeal shenanigans. Its another post altogether. though I have written some stuff elsewhere.

But I remain the optimist. To accept I/we must be getting our costs applications wrong in the first place, or, generally messing things up at appeal. So am always looking out. Reading and trying to learn. Am sure you are the same. I want to advise our Members best I can. but also, know how and when to spot unreasonable behaviour and call it out (and get our costs where we can).

Yes, yes I know what some of you will be thinking as you read this - if LPAs just accepted schemes it would avoid appeals in the first place, then there would be no issue on costs. However, as I once infamously quipped that, "bum sites shouldn't get permission. Simple." and that puts you on a collision course to appeal.

An appeal popped up in my feed. (I could start so many posts like that ??) As its local to us, involving a neighbouring LPA at Rother, i took interest. Actually saw it via Hashi Mohamed's post. Am not hiding that, you can go find that on here, including my comments on the appeal. (I think the main decision is flawed, as conditions said to be important at securing mitigation, are not properly delivered. It makes decision challengeable, but hey, who am I).

It doesn't really matter too much about the scheme - it was recommended for approval by officers, rejected by Committee. In the appeal, the Appellant sought their costs.

Hashi commented:

"The costs application was refused, but the Inspector did have some important observations about the role of the Minerals and Waste Planning Authority at the hearing. (9-10). And whilst she found that the Council had acted unreasonably, the hearing could not have been avoided (13-14) and therefore the threshold of awarding costs not met".

That's for me, I thought, am taking a closer look at what was said and why the costs case was denied.

I downloaded it and read it over lunch (I know how to live).

Before I go any further, I should say that the Inspector is Shelia Holden. Vastly experienced senior Inspector. I recall Inspector Holden held a Hearing one Summers day at ours on what I think was potentially the hottest day ever on record. It was a scorcher. I said my suit melted in the subsequent post. That scheme involved more KCs in one room than I've ever seen (other than at an EiP or in Court!). Inspector Holden took no prisoners that day and was master of the Hearing agenda, controlling all exchanges.

Back to the current case in Turkey Road, as it was also Sheila Holden, so I was excited to read more details.

But it still doesn't add up!

Remember I said this was an overturn case? Well, it was. If I have created any sort of interest, you might do well to go look at the decision(s) in full yourself. Both on PINS website in normal way.

These are the paragraphs of the costs decision that trouble me (my emphasis):

11. In view of all the above, it is not surprising that Members took a different view, as they are entitled to do, notwithstanding the professional advice of their officers. They represent local people who live close to the brickworks and understand the problems of noise, dust and light pollution that nearby residents have to contend with. Whilst that might not be technical evidence that is equivalent to the assessments presented by Ardent, the lived experiences of neighbours should not be swept aside as of no relevance.

The decision went on to say:

13. However, once the Council had refused the scheme and the appeal had been lodged, Members should have realised that it would be necessary to defend their decision by providing detailed and cogent planning, evidence-based reasons for their decision. This simply did not happen. The lack of substantive evidence int [sic] its appeal statement, and the absence of any suitably qualified person to justify the decision of Members, either by their own EHO or a consultant acting on their behalf, significantly restricted the manner in which the Council was able to present its case at the Hearing.

Back up, back up....back right up.

So, it is OK for elected Members to represent local people in opposing development as they are expected to do so, that views of local people must not be "swept aside aside as of no relevance". But it was only unreasonable when, after the appeal was lodged, no evidence could be presented to back up that view....? Only at that point Members should have realised they needed evidence to defend the decision.

What ever happened to taking informed decisions based on best available evidence?

Have I misread this analysis, because whilst I get no costs were in fact awarded against the LPA, the assessment of the behaviour and commentary on what elected member can and cannot do (and at key points in the decision making process) is very confused. Isn't it?

I tell our Members they must look at the PPG. Paragraph: 016 Reference ID: 21b-016-20140306 Revision date: 06 03 2014 says

"Local authority members are involved in planning matters to represent the interests of the whole community and must maintain an open mind when considering planning applications. Where members take decisions on planning applications they must do so in accordance with the development plan unless material considerations indicate otherwise. Members must only take into account material planning considerations, which can include public views where they relate to relevant planning matters. Local opposition or support for a proposal is not in itself a ground for refusing or granting planning permission, unless it is founded upon valid material planning reasons".

Inconsistency doesn't help?

There is a site in our area, a big one (for us anyway) mixed use scheme c800 dwellings, school, commercial use etc. No objections from technical consultees to the application. We recommended it. The then Committee refused it, citing highway and drainage concerns. This was because there were over 1,000 objections - individual ones - not the round robin jobs - and no doubt the Members felt they had to listen to the community. It was certainly not wanted (and we still get emails about said scheme). Triggered a long Inquiry. The subsequent costs decision is seared on my brain. Sometimes in the dead of night, I sit bolt upright and the words appear in front of me:

"The Council’s conduct in this case is the epitome of unreasonable behaviour. It has delayed development which clearly should have been permitted, having regard to its accordance with the development plan and all other materials considerations".

Strong stuff eh. Cost us a bundle I can tell you. But on the actual highway and drainage matters, it was pretty simple. Our Inspector in that case said:

"Had the Council properly considered the planning application, having regard to the available evidence, it would have granted planning permission. This is notwithstanding local controversy and the number of objections. Whilst these are an important consideration, quantity of objections alone cannot be determinative in a decision-making regime that is informed by policy and evidence. As such, the entire appeal, and indeed the costs application, should have been unnecessary".

So back to Turkey Road Bexhiill, that appeal turned on detailed technical submissions on noise, odour and dust, with expert input from the LPAs shared service pollution control team. Even if there is a lived in experience from the community, why would that justify Members taking a contrary view on technical matters? If that is purely to ensure they were not sweeping aside local views, surely the correct course of action would've been better to explain there was no defence to the technical submissions? To own but explain the decision?

Who knows, I don't.... but for those of us trying to keep up to date, stay ahead and learn from key decisions to ensure we give our Members the best advice, the reasoning in this decision is certainly a head scratcher.

I suspect at our next Committee, our lot might quote this at me and team... hope they don't see it. Which I say in jest, but this sort of mixed messaging on costs really does cause confusion. I'm certainly nowhere closer to understating how or if LPAs might get costs.

Views mine, even if it does seem like am looking the other way - SR