Planning Soap Opera Part II: The Rise of “Unreasonable” Costs Awards

“Unreasonable, irrational, and injudicious to the extent that no reasonable authority would have made it". Incredibly strong words from Inspector Young following a recent costs award for a scheme which was allowed as a result of a public inquiry in November 2022.

 

The case in question (not one of DHA's projects) relates to Peel Group’s proposals at Hulton Park in Bolton, which focused on building a Ryder Cup-standard golf course, primary school, a collection of shops and leisure facilities, and more than 1,000 homes on 880 acres by Newbrook Road in Westhoughton.

 

The site’s position within the Green Belt was one of the reasons for the council’s near-unanimous decision to refuse the project in February 2022 against their own planning officer's recommendation. It’s fair to say that this Member overturn had come as a surprise, considering the scheme was the second version of a previously approved application with the revised application having less impact on the Green Belt than the original.

 

So, an appeal is submitted, teams appointed on both sides to great expense, and then just before the Inquiry, the Council (after consulting with its legal team) decide not to defend the decision at Inquiry. Sound familiar? We cited a similar case we were involved with Bellway Homes and Esquire Developments in our recent article “Planning Soap Opera “!

 

However, Peel’s case is perhaps unique; it had not sought a costs award after winning its planning appeal against the Council – but the Planning Inspectorate, clearly incensed by the behaviour of the Council and the waste of time and resources, opted to give it anyway.

 

The decision to award costs was made in November, but as with these things only now has a Council cabinet report revealed the final bill of what Bolton Council owes Peel; a staggering £467,746.61.

 

The sad and worrying thing is, it’s becoming a growing trend. We had a similar situation last year on a scheme at Mornings Mill Farm in Polegate, where Members of Wealden District Council's Planning Committee had refused an application for 700 homes on the outskirts of Eastbourne on highways and drainage grounds, together with concerns about the location of the site and the effects of development. This was despite the best efforts of officers and a positive recommendation, with no technical objections to the application.

 

The outcome? The scheme was allowed at Inquiry, and our client was awarded full costs - a very sizeable six figure sum. The Inspector concluded the local authority's conduct was the "epitome of unreasonable behaviour".

 

Following the Planning Committee’s decision to overturn their officer's recommendation for approval, the Council withdrew its objections the month before the Inquiry was due to sit, following their own Counsel’s advice that you “cannot defend the indefensible” as cited in an official press release. This was also not the only recent sizeable costs award against Wealden DC.

 

The similarities to the Bolton case are astonishing, yet Councillors are using taxpayers’ and most importantly planning departments' budgets to fund these cost awards, at a time when many of our colleagues in the public sector are under-resourced and underfunded. The consequences of such decisions go beyond the monetary aspect. These significant costs awards divert funds from essential public services and exacerbate the financial strain on already under-resourced local planning departments. As planning applications take longer to be determined, developers and indeed communities alike, suffer due to delayed progress on the delivery of vital new local infrastructure and much needed affordable homes.

 

Whilst the Planning Inspectorate's intent to hold local authorities accountable for irrational decisions is commendable, the current situation raises concerns about the long-term implications for the planning process. It is crucial for local planning committees to strike a balance between adhering to regulations and ensuring their decisions are based on objective analysis and sound reasoning but most importantly listening and taking heed of their officers’ own advice. Such prudence will help prevent costly disputes.

 

The cases of Hulton Park and Mornings Mill exemplify the pressing need for a re-evaluation of decision-making processes within Local Planning Authorities. These two examples of costs awards against councils for "unreasonable" decisions pose a significant concern for taxpayers and undermines the already limited resources of local planning departments. Striking a balance between compliance with regulations and pragmatic decision-making is essential to protect the interests of the community and the industry as well as a more efficient and effective planning process.