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COSTS - CIRCULAR 8/93 (DoE) March 1993
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Award of costs incurred in planning and other (including compulsory purchase Order) Proceedings Introduction1. This Circular updates and consolidates the policy guidance on awards of costs in certain planning and other proceedings. It follows public consultation and a careful review of the current guidance in DOE Circular 2/87 (Welsh Office Circular 5/87), in the light of practical experience of it since April 1987. Except for paragraph 23, that guidance has applied where the Secretary of State may order one party to proceedings to meet the costs of another party. 2. Interim guidance, in DOE Circular 23/91 (Welsh Office 77/91), on "Awards of Costs in Planning Proceedings, Following Late Cancellation of an Inquiry or Hearing", was issued on December 16, 1991. This explained (in Annex 1) how it was proposed to exercise the new discretionary power, in section 322A of the Town and Country Planning Act 1990 (inserted by section 30 of the Planning and Compensation Act 1991), which came into force on January 2, 1992, to award appeal costs following the late cancellation of an inquiry or hearing by either principal party. The interim Circular also explained the introduction of costs awards in hearing cases from January 2, 1992. 3. Annexes 1 to 7 to this Circular now provide revised guidance, including legislative developments arising from the Planning and Compensation Act 1991, as follows: (1) Annex 1: general principles for awards of costs for unreasonable behaviour (2) Annex 2: general procedural requirements of appeals: unreasonable behaviour (3) Annex 3: unreasonable behaviour relating to the substance of the case, Including action prior to submission of appeal (4) Annex 4: application of costs policy to third parties in proceedings (5) Annex 5: the costs application (6) Annex 6: costs in respect of compulsory purchase and analogous orders (including a list of examples of analogous orders) (7) Annex 7: list of proceedings in which costs may be awarded where an inquiry or hearing is held. A brief summary of the criteria for awards of costs on grounds of unreasonable behaviour is in the Appendix to this Circular. Explanatory pamphlet 4. A revised explanatory pamphlet ("Costs Awards in Planning Appeals - A Guide for Appellants"), is obtainable from the following addresses: - *In England: Department of the Environment (PDC2), Room TX 103, Tollgate House, Houlton Street, Bristol BS2 9DJ; tel. 0272 218594. *In Wales: Welsh Office (Planning Division), Cathays Park, Cardiff CF1 3NQ; tel. 0222 825426 * Please note change of addresses In England: Planning Inspectorate, Costs Branch, 4/08 Kite Wing , Temple Quay House, 2 The Square, Temple Quay House, Bristol, BS1 6PN. Tel: 01173 728594 *In Wales: National Assembly for Wales, Cathays Parkk, Cardiff, CF10 3NF. Tel: 029 2082 3866 Scope of revised arrangements 5. The new guidance in Annexes 1 to 6 will apply to all appeals made, or other proceedings begun, on or after the date of this Circular, as follows: - (1) all the categories of inquiry and hearing proceedings listed in Annex 7, except for those specified in paragraph 8 below; and (2) the inquiry proceedings mentioned in paragraph 9 below. The power to award costs 6. Section 250 (5) of the Local Government Act 1972enables the Secretary of State to make an order as to the costs of the parties at an inquiry. This power is applied to various planning proceedings by section 320 of, and Schedule 6 to, the Town and Country Planning Act 1990; by section 89 of the Planning (Listed Buildings and Conservation Areas) Act 1990; and by section 37 of the Planning (Hazardous Substances) Act 1990. In the case of hearings, the provisions of section 322 of, and paragraph 6 (5) of Schedule 6 to, the Town and Country Planning Act 1990 were commenced on January 2, 1992 in respect of the award of costs to, or against, a party in planning and listed building consent appeals, and other cases dealt with by way of a hearing, where the appeal is made, or other proceedings are begun, under the Planning Acts, on or after that date. Thus, except in proceedings not under the Planning Acts, examples of which are identified in paragraph 9 below, legislation no longer distinguishes between inquiry and hearing cases for costs purposes. 7. Section 322A of the Town and Country Planning Act 1990 (inserted by section 30 of the Planning and Compensation Act 1991, which came into force on January 2, 1992, enables costs to be awarded against any party in proceedings under the Planning Acts whose "unreasonable" behaviour directly results in the late cancellation of an inquiry or hearing, so that expense incurred by any of the other parties is wasted. These provisions apply to all categories of proceedings listed in Annex 7 in which an inquiry or hearing is arranged under the Planning Acts, as provided for in paragraph 8 below. They apply to all such appeals made, or other proceedings begun, on or after January 2, 1992, in which an inquiry or hearing is subsequently arranged. Proceedings in which costs may be awarded where an inquiry or hearing is held or cancelled 8. The power to award costs, including the new power in section 322A of the Town and Country Planning Act 1990, is available for all categories of proceedings under Town and Country Planning legislation listed in Annex 7. The policy guidance in paragraphs 13 and 14 of Annex 1, and paragraphs 6 to 17 of Annex 2, concerning late cancellation of an inquiry or hearing, applies to those cases, with the exception of the various orders listed in sub-paragraphs (25) to (30) in Annex 7. These include (sub-paragraph (25) orders under sections 247, 248, 249 and 251 of the 1990 Act relating to highways orders, and sections 257 and 258 of the 1990 Act relating to public rights of way orders. The commencement of the new power, stated in paragraph 7 above, does not apply to these cases. Subject to this, the guidance in Annexes 1 to 6will apply to all the categories of proceedings listed in Annex 7 in which a hearing is held, as stated in paragraph 5above. Proceedings in which costs may be awarded where an inquiry (but not a hearing) is held 9. Proceedings held under non-Town and Country Planning legislation in which an inquiry (but not a hearing) is held, and the Secretary of State or Planning Inspectors are empowered to award costs by virtue of section 250 (5) of the Local Government Act 1972, but not under section 322A of the Town and Country Planning Act 1990 (paragraph 7 above), include: - (1)* opposed definitive map orders under sections 53 and 54of the Wildlife and Countryside Act 1981 relating to public rights of way (definitive map modification and reclassification orders); (2)* opposed public path and rail crossing orders under section 26, 118and 119 of the Highways Act 1980, and sections 118A and 119Aof the Act (as inserted by the Transport and Works Act 1992). ( NOTE: section 26 (public path creation) orders are regarded as falling into category (5) below; extinguishment and diversion orders under sections 118 to 119A may be regarded as such, depending on the particular circumstances of an objector's interest in the land (see paragraph 5 of Annex 6); (3) limestone pavement orders under section 34 of the Wildlife and Countryside Act 1981; (4) appeals under section 18 of the Land Compensation Act 1961; and (5) opposed compulsory purchase orders, and certain orders (described as analogous) which are not made under Town and Country Planning legislation. Examples are listed at sub-paragraphs (6) to (9) in the Appendix to Annex 6. *NOTE: paragraph 8 above applies to public rights of way orders under the Town and Country Planning Act 1990. Proceedings in which costs may be awarded where no inquiry or hearing is arranged or held 10. In enforcement notice appeals and some other specialist appeals, which are listed in sub-paragraphs (3), (6), (12), (14), (19) and (24) in Annex 7, provisions in Schedule 4 to the Planning (Consequential Provisions) Act 1990 enable costs to be awarded where such a case: (1) does not proceed by an inquiry or hearing, but is determined by written representations and a site-inspection; (2) is proceeding by written representations and a site-inspection, but is not determined because of withdrawal by one of the principal parties at any stage during the proceedings; and (3)is proceeding by an inquiry or hearing, but one of the principal parties withdraws before arrangements have been formally notified by the Department. These provisions enable costs to be awarded in relation to any such proceedings in sub-paragraphs (1) to (3) as if those proceedings were an inquiry. (Where an inquiry or hearing has been arranged in such a case, but is then cancelled as a result of withdrawal by one of the principal parties, the provisions in section 322A of the Town and Country Planning Act apply, as stated in paragraph 7 above). Policy guidance specific to the cases in sub-paragraphs (1) to (3) above is in paragraph 17of Annex 2. Awards of costs in written representations planning appeals 11. The Government has decided to defer, for the time being, any further extension of awards of costs to written representations appeals. The matter will be reviewed in due course. Financial and public service manpower implications 12. This Circular is not expected to have any significant financial or manpower implications for local planning authorities generally. To the extent that the revised policies succeed in discouraging "unreasonable" behaviour, the overall result should be a reduction in aggregate costs of the parties to planning appeals which are considered at public inquiries and hearings. Cancellation of guidance 13. DOE Circulars 2/87 (WO 5/87) and 23/91 (WO 77/91) are hereby cancelled.
UNREASONABLE BEHAVIOUR: A SUMMARY OF THE CRITERIA* Appellants are at risk of an award of costs against them if, for example, they: (1) fail to comply with normal procedural requirements for inquiries or hearings; do not provide a pre-inquiry statement when asked to do so, if the proceedings have to be adjourned or are unnecessarily prolonged; or are deliberately or wilfully unco-operative, such as refusing to discuss the appeal or provide requested, necessary information (paragraph 3 of Annex 2, and Annex 4); (2) fail to pursue an appeal or attend an inquiry or hearing ( paragraph 5 of Annex 2); (3) introduce new grounds of appeal, or new issues, late in the proceedings (paragraph 3 of Annex 2); (4) withdraw the appeal, or legal grounds in an enforcement appeal, after being notified of inquiry or hearing arrangements, without any material change in circumstances (paragraph 13 of Annex 1 , paragraphs 6 to 11 of Annex 2 and paragraphs 4 to 5 of Annex 4 ); (5) pursue an appeal which obviously had no reasonable prospect of success, including one which clearly "flies in the face" of national planning policies (paragraph 11 of Annex 1 and paragraphs 1 to 6 of Annex 3). Planning authorities are at risk of an award of costs against them, on appeal, if, for example, they: (1) fail to comply with normal procedural requirements for inquiries or hearings, including compliance with relevant Regulations ( paragraph 4 of Annex 2, and Annex 4); (2) fail to provide evidence, on planning grounds, to substantiate each of their reasons for refusing planning permission, including reasons relying on advice of statutory consultees (paragraphs 8 to 20 of Annex 3); or to demonstrate that they had reasonable grounds for considering it expedient to issue an enforcement notice (paragraphs 23 and 24 of Annex 3); (3) fail to take into account relevant policy statements in Departmental guidance or relevant judicial authority ( paragraphs 10 and 11of Annex 1 and paragraphs 8 and 22of Annex 3); (4) refuse to discuss a planning application or provide requested information, or seek additional information, as appropriate (paragraphs 26 to 28 of Annex 3); (5) refuse permission for a modified scheme when an earlier appeal decision indicated this would be acceptable, and circumstances have not materially changed (paragraph 16 of Annex 3); (6) fail to carry out reasonable investigations of fact, or to exercise sufficient care, before issuing an enforcement notice ( paragraphs 22 and 28of Annex 3); (7) at a late stage, introduce an additional reason for refusal, or abandon a reason for refusal, or withdraw an enforcement notice unjustifiably (paragraphs 4 and 12 to 16 of Annex 2, and paragraph 22 of Annex 3); (8) impose conditions which are unnecessary, unreasonable, unenforceable, imprecise or irrelevant (paragraph 20 of Annex 3); (9) pursue unreasonable demands or obligations in connection with a grant of permission (paragraphs 16 and 17 of Annex 1 and paragraphs 11 and 18 of Annex 3); (10) fail to renew an extant or recently expired planning permission, without good reason (paragraph 19 of Annex 3); (11) unreasonably refuse to grant permission for reserved matters or pursue issues settled at outline stage ( paragraph 17 of Annex 3). *This brief summary is based on the full statement of policy in Annexes 1 to 4. It is illustrative and not comprehensive.
CONTENTS OF ANNEXES 1 TO 7 TO Department of Enviroment Circular 8/93 (Welsh Office 23/93) General principles for awards of costs for unreasonable behaviour Annex 1 paragraphs Introduction 1-3 Meaning of "unreasonable" 1 Principle that parties normally meet own expenses 2 (an award of costs does not "follow the event") Disciplining effect of costs regime 4-6 Relevance to all parties 4 Decision to award costs not punitive 4 Statutory right of appeal 5 Proper exercise of planning authorities' 5 statutory responsibilities General conditions for an award 6 Separate appeal and costs jurisdiction 7 Application of guidance to different categories of proceedings, 8-9 including called-in planning applications National planning policy guidance 10-11 Third parties 12 Award of a party's costs in appeals and other planning 13-14 proceedings as a result of the late cancellation of an inquiry or hearing: section 322A of the Town and Country Planning Act 1990 Basis for awards 13 Withdrawal by agreement between parties 14 Costs in hearing cases 15 The practice of "twin-tracking" 16-17 General procedural requirements in appeal Annex 2 paragraphs proceedings – unreasonable behaviour: awards against appellants and planning authorities Request for an oral hearing 1 Procedural conduct in inquiry and hearing cases 2-5 Conduct involving an appellant in the risk of an award 5-11 against him Failure to pursue an appeal or to attend an inquiry 5 or hearing Withdrawal of an appeal resulting in late cancellation: 6-10 section 322A of the 1990 Act Withdrawal of an appeal too late for inquiry 11 or hearing to be cancelled Conduct involving the planning authority in the risk 12-16 of an award against them Withdrawal of planning authority's reason (s) 12-16 for refusal of planning permission, resulting in late cancellation: section 322A of the 1990 Act Withdrawal as a result of agreement between 16 planning authority and appellant during proceedings Awards against appellants and planning authorities in 17 written representations enforcement notice (and some other specialist) appeals, as a result of a withdrawal by either party
Unreasonable behaviour relating to the substance Annex 3 paragraphs of the case, including action prior to submission of appeal Awards against appellants: unreasonable appeal 1-6 Awards against planning authorities 7-28 Unreasonable refusal of planning permission 7-11 Examples of unreasonable refusal 12-19 Conditions 20 Unreasonable issue of enforcement notice 21-25 Handling of planning application or enforcement notice 26-28
Application of costs policy to third parties in Annex 4 paragraphs proceedings
General policy on awards of costs to, or against, third parties 1-3 Definition of third parties, including statutory 1 consultees, for costs purposes Conduct of Government Departments in proceedings 3 Late cancellation of an inquiry or hearing 4-5 General conditions for an award to third parties 5
The costs application Annex 5 paragraphs Inquiry or hearing cases 1 Cases where no inquiry or hearing is held because 2 of a late cancellation Cases determined by written representations and a site-inspection 3 Late applications for costs 4 Amount of an award 5 Full awards 6 Partial awards 7
Costs in respect of compulsory purchase and analogous Annex 6 paragraphs orders General principles 1-3 Partly successful objectors 4 Analogous orders and proposals 5 & Append.6 Plural objections 6
Proceedings in which costs may be awarded where an Annex 7 inquiry or hearing is held or cancelled Legislative references 1 List of proceedings 2
Annex 1 General Principles for Awards of Costs for Unreasonable behaviour in Appeals and other planning procedures Introduction 1. In planning and other proceedings to which this guidance applies, the parties normally meet their own expenses. Except for compulsory purchase and analogous orders (which are dealt with in Annex 6), costs are awarded only when what is termed "unreasonable" behaviour is held to have occurred. Annexes 1 to 4 give examples of "unreasonable" behaviour, either directly or indirectly by reference to what is expected of parties in planning proceedings. The word "unreasonable" is used in its ordinary meaning, as reflected in the High Court's judgement in the case of Manchester City Council v. Secretary of State for the Environment and Mercury Communications Limited [1988] J.P.L. 774. 2. The principle that the parties normally meet their own expenses means that, in proceedings to which this guidance (except Annex 6) applies, awards of costs do not necessarily "follow the event". A decision on a costs application, when made, does not follow directly from the result of the appeal itself. An appellant is not awarded costs simply because the appeal succeeds. Nor are the planning authority awarded their costs simply because the appeal fails. An award against a successful party may very occasionally be justified. (For example, a partial award may be made against a successful appellant for behaviour resulting in procedural delay.) 3. Examples of unreasonable behaviour, and more detailed guidance on the circumstances in which parties may be at risk of an award of costs, are stated in Annexes 2 to 4. A summary is in the Appendix to the Circular. Guidance on seeking an award of costs is in Annex 5. Disciplining effect of costs regime 4. The availability of costs awards, on specific application, is intended to bring a greater sense of discipline to all parties involved in planning proceedings. A decision to award costs against one of the principal parties in an appeal is not punitive. The great majority of planning appeals do not result in a costs application. Awards of costs are only made in 30 per cent. of costs applications, on average. 5. This discipline is not intended to deter people from exercising their statutory right of appeal, but rather to ensure that other parties, notably the planning authority (and, indirectly, the local taxpayer) are not put to unnecessary expense as a result of unreasonable use of the right of appeal. Where complex or technical issues of legal precedent or procedure arise, the Secretary of State, in deciding whether behaviour is unreasonable, will take into account the extent to which an appellant obtained professional advice. Where the planning authority drew the appellant's attention to relevant facts (see paragraph 6 of Annex 3), the Secretary of State will also take that into account. The guidance is intended both to support planning authorities in the proper exercise of their statutory responsibilities and to reflect the principle that the planning system should not prevent, inhibit or delay development which could reasonably be permitted, in the light of the development plan, so far as it is material to the application, and of any other material considerations. General conditions for an award 6. Before an award of costs* is made, the following conditions will normally need to be met: - (1) one of the parties has sought an award at the appropriate stage of the proceedings (as explained in Annex 5); (2) the party against whom costs are sought has behaved unreasonably; and (3) this unreasonable conduct has caused the party seeking costs to incur or waste expense unnecessarily, either because it should not have been necessary for the matter to be determined by the Secretary of State, or because of the manner in which another party has behaved in the proceedings (for example, because the arranged inquiry or hearing had to be cancelled or extended, resulting in wasted preparatory work or unnecessary additional expense). The Secretary of State and
Planning Inspectors determine only the extent of any costs payable, not
the actual amount (see paragraph 5 of Annex 5). 7. The appeal decision itself will not be affected in any way by the fact that an application for costs has been made. The determination of a costs application is a separate jurisdiction. A decision whether to award costs is usually taken by the Planning Inspector, or Secretary of State, after the end of the appeal process.
Application of guidance to different categories of proceedings, including called-in planning applications 8. The guidance in these Annexes (except Annex 6) applies equally to the principal parties in different categories of proceedings (for example, the person who has served a purchase notice in proceedings under Part VI of the 1990 Act), although it refers to the principal parties as "appellant" and "planning authority" for convenience. The guidance is applicable, by analogy, to the principal parties in non-Planning Act proceedings - for example, statutory objectors, the "surveying authority" (County Council) and persons making statutory representations in support of an order, in the case of opposed orders under sections 53 and 54 of the Wildlife and Countryside Act 1981. Separate guidance on these latter cases, consistent with the general principles stated in this Annex, is in DOE Circular 2/93 (WO 5/93). 9. In the case of "called-in" planning applications, referred to the Secretary of State under section 77 of the Town and Country Planning Act 1990, and other referred applications (as specified in sub-paragraphs (2), (5), (7) and (22) of Annex 7), the decision by the Secretary of State to call-in an application for his own determination places the parties in subsequent inquiry proceedings in a different position from that in a planning appeal. In call-in proceedings the participation of the parties is primarily to assist the Secretary of State in the process of reaching his decision on the planning issues identified in his statement under Rule 6 of the relevant Inquiries Procedure Rules. Unlike the situation in a planning appeal, the planning authority are not defending their formal decision to refuse planning permission, or their failure to determine the application within the prescribed period. The applicant has a right to apply for planning permission. In these circumstances, it is not envisaged that a party may be at risk of an award of costs for unreasonable behaviour relating to the substance of the case or action taken prior to the call-in decision ( Annex 3). However, a party's failure to comply with the normal procedural requirements of inquiries risks a partial award of costs for unreasonable behaviour (Annex 2) in a called-in case.
National planning policy guidance 10. Planning Policy Guidance Notes (PPGs), Regional Planning Guidance Notes (RPGs) and Minerals Planning Guidance Notes (MPGs) obtainable from HMSO Bookshops, provide guidance on national planning policies relevant to appeals. For example, comprehensive guidance on how planning applications should be considered in accordance with sections 70 (2) and 54A of the Town and Country Planning Act 1990 (the latter inserted by section 26 of the Planning and Compensation Act 1991) is in paragraphs 25 to 31of PPG 1(revised March 1992). Guidance on "other material considerations" is in paragraphs 23to 24 of PPG 1. A published index of all extant DOE and WO Circulars (or parts of Circulars) and other advice is also available from HMSO Bookshops. 11. Appeals which clearly "fly in the face" of such policies, and obviously had no reasonable prospect of success (see paragraphs 1 to 6of Annex 3) will run the risk of an award of costs against those pursuing them, depending on the circumstances. Similarly, a planning authority may be held to have acted unreasonably if they fail to take into account reported judicial authority, or well-publicised appeal decisions relevant to their reasons for refusal, or relevant policy statements in Government White Papers, DOE and WO Circulars or Planning Policy Guidance Notes (PPGs, RPGs and MPGs).
Third parties 12. In this guidance, the term "principal party" refers to the relevant planning authority and the appellant. All other interested parties are defined, for the purposes of this guidance, as third parties. Awards of costs either in favour of or against third parties will be made only in exceptional circumstances, as explained in Annex 4.
Award of a party's costs in appeals and other planning proceedings as a result of the late cancellation of an inquiry or hearing: section 322A of the Town and Country Planning Act 1990 13. Significant costs may be wasted by appeal parties in preparing for an inquiry or hearing which then has to be cancelled because of a withdrawal by the appellant or planning authority. In accordance with section 322A of the Town and Country Planning Act 1990, an award of costs may be made, on specific application, against one party to enable other parties, including third parties, to recover their "wasted" costs caused by the late cancellation of the inquiry or hearing. Examples are where the appellant withdraws his appeal entirely, or the local planning authority withdraw one or more of their original reasons for refusing the planning application, resulting in cancellation of the inquiry or hearing, so that other appeal parties have wasted their preparatory work. Detailed guidance is in paragraphs 6 to 17of Annex 2. (NOTE: this guidance does not apply to the exceptional cases mentioned in paragraph 8 of the Circular.) 14. The availability of costs awards in such circumstances is not intended to deter a principal party from withdrawing, even at a late stage, rather than proceeding to an anticipated unfavourable decision. A withdrawal may be partly excusable in the interests of minimising the period for a possible award of costs if the inquiry, or hearing, is cancelled and attendance costs are thereby avoided. Or a withdrawal may arise from an agreement between the principal parties, as envisaged in paragraph 16 of Annex 2. Either principal party may decide that it is preferable to withdraw, rather than incur further expense in proceeding to an arranged inquiry or hearing, if their interest in, or expectation of, the outcome of the appeal has significantly changed, notwithstanding the risk of a partial award of costs against them. Costs in hearing cases 15. Hearings are informal, unlike inquires. They proceed in accordance with the "Code of Practice for Hearings", a copy of which is sent to the parties with notification of the arrangements. A hearing lasts, on average, about half a day. It is unusual for either party to be legally represented. The introduction of costs awards in such cases (as stated in paragraph 5 of the introductory Circular) should not affect the procedure at hearings. The principles for awards of costs in these cases are exactly the same as for inquiry cases. The practice of "twin-tracking" 16. "Twin-tracking" is the practice whereby an applicant submits two identical applications to the planning authority, with the intention of lodging an appeal on one application as soon as the statutory determination period has expired, leaving the other application for continuing discussion and determination by the planning authority. If the planning authority decide to grant permission on the application remaining with them, after an appeal has been made on the parallel application, so that the planning issues arising on the appeal are satisfactorily resolved at an early stage in the proceedings, the Departments take the view that the Secretary of State need not determine the appeal (if it is not withdrawn), or take any further action on it unless the appellant satisfies him that there are outstanding planning issues which justify pursuing the appeal to a determination. Examples are where the appellant is dissatisfied with a conditional grant of permission, or a planning authority's offer to grant permission subject to the appellant's entering into a planning obligation under section 106 of the Town and Country Planning Act 1990; and he wishes to see whether he can obtain a permission, on appeal, without conditions or with less onerous ones, or a permission without the need to enter into an associated planning obligation. In these circumstances, an award of costs may be made in favour of the appellant if the planning authority fail to provide sufficient evidence, on appeal, to support their imposition of the condition, or fail to show that their demand, in terms of a planning obligation, is consistent with the policy guidance in DOE Circular 16/91; and the condition is discharged, or permission granted on appeal without reference to such an obligation. 17. Where the appellant chose to sign an agreement before the inquiry or hearing, at the authority's invitation, this will be taken into account in determining any costs application. It does not necessarily follow that such an agreement will resolve any planning objections to the planning application, and the Inspector may find it appropriate to hear evidence in this respect. In reaching a view on whether the agreement is a material consideration in determining the application, he will have regard to the policy guidance in DOE Circular 16/91 (WO 53/91). (Further guidance is given in paragraph 18 of Annex 3.) If the Inspector, or Secretary of State, is not so satisfied, the authority may be at risk of a partial award of costs against them if the appellant can show that he incurred unnecessary costs in responding to an unreasonable and unnecessary demand, on the part of the authority. However, if the Secretary of State, or Planning Inspector, concluded that the appeal decision to discharge a condition, or grant permission without reference to a planning obligation, had been finely balanced, an award of costs against the authority would be unlikely. Annex 2 General Procedural Requirements in Appeal Proceedings - Unreasonable Behaviour: Awards against appellants and Planning Authorities Request for an oral hearing 1. Costs will not be awarded simply because one of the principal parties to an appeal has asked to be "heard". Each principal party has a statutory right to ask for an opportunity to appear before and be heard by a person appointed by the Secretary of State. The exercise of that right will not, in itself, be regarded as unreasonable, even if the appeal could have been adequately dealt with by written representations and a site-inspection. However, once an inquiry or hearing has been formally notified, the principal parties will be at risk of an award of costs if their conduct in the proceedings is unreasonable. Procedural conduct in inquiry and hearing cases 2. Both appellant and planning authority are expected to comply not only with the normal statutory procedural requirements for inquiries, specified in the Inquiries Procedure Rules, but also, where applicable, with the non-statutory code of practice for hearings (to which the Inquiries Procedure Rules do not apply). However, a failure to comply with the Inquiries Procedure Rules, or the hearings code, may occasionally be excusable, and not amount to unreasonable behaviour such as could lead to an award of costs. A pre-condition for an award of costs is that a party has incurred unnecessary expense in the proceedings. 3. In the case of an appellant, the following are examples of what may be regarded as unreasonable behaviour in inquiry or hearing cases, resulting in an award of costs if unnecessary expense is incurred: - (1) failing to provide an adequate pre-inquiry, or pre-hearing statement of case - for example, unclear presentation of facts or arguments. This might cause another party to undertake identifiable, abortive work in preparing for the inquiry or hearing; or it might lead to an adjournment (see (4) below); (2) failing to provide the required information in support of an appeal, or ground of appeal; or refusing to discuss the appeal, or failing to respond to a planning contravention notice if this causes the planning authority to incur unnecessary expense in resisting a subsequent appeal; (3) introducing a new ground of appeal, or issue, when it is too late to postpone the start of the inquiry or hearing; (4) causing an inquiry or hearing to be adjourned or unnecessarily prolonged by the unreasonably late submission of a statement of case, or by an amendment or addition to a statement of case, or proof of evidence; or by unreasonable failure to provide any required summary of a proof of evidence so that the whole proof has to be read at the proceedings; and (5) causing a party to call a professional witness to attend unnecessarily - for example, where legal grounds in an enforcement notice appeal are withdrawn shortly before, or during, an inquiry or hearing; or where a technical issue could have been resolved satisfactorily by prior discussion. Deliberately unco-operative behaviour by an appellant, whether or not professionally represented, may be a ground for an award of costs. However, where complex or technical issues of precedent or procedure arise - for example, in an enforcement notice appeal on legal grounds - the Secretary of State, in deciding whether behaviour is unreasonable, will take into account the extent to which an appellant obtained professional advice. Where the planning authority drew the appellant's attention to relevant facts (see paragraph 6 of Annex 3), the Secretary of State will also take that into account. 4. Similarly, a planning authority may be considered to have acted unreasonably in the situations described at paragraph 3 (1), (4)and (5) above and in the following situations: (1) introducing, without sufficient reason, a new reason for refusal at a late stage in the proceedings; or abandoning a reason for refusal; or withdrawing an enforcement notice, in the course of the proceedings (see also paragraphs 12 to 16below); (2) failing to supply relevant information, within the time-limit specified in accordance with the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1991, with the result that the Secretary of State quashes the enforcement notice; and (3) refusing to co-operate in settling agreed facts, or supplying relevant information, so that the proceedings are adjourned or prolonged unnecessarily. Conduct involving an appellant in the risk of an award against him Failure to pursue an appeal or to attend an inquiry or hearing 5. A warning to the planning authority of an intention to withdraw an appeal is not regarded as a formal decision that the appeal is withdrawn. Until the Department has received formal notice in writing (including a faxed letter), of withdrawal, the appeal is still extant and the planning authority and other parties must assume that they will need to attend any proceedings. Where an inquiry or hearing has not been cancelled, an appellant's failure to attend, or be represented at, an arranged inquiry or hearing is likely to result in an award of costs against him, unless it can be demonstrated, in any particular case, that there is good reason for not making one. This applies whether the appellant has expressed a wish "to be heard", or the Department has decided that an inquiry (or hearing) is necessary. In these circumstances, a partial award of costs may be made against the appellant in respect of costs, incurred after formal notification of the inquiry or hearing arrangements, of preparatory work and attendance of the planning authority and of any other parties who have notified the appellant of their intention to be present. Withdrawal of an appeal resulting in late cancellation of an inquiry or hearing: section 322A of the Town and Country Planning Act 1990 6. An award of costs may be made, in accordance with section 322A of the 1990 Act, against an appellant who withdraws his appeal at a time which results in the Department's late cancellation of an inquiry or hearing. However, this is not intended to dissuade appellants from pursuing, with the planning authority, a timely solution to the planning issues the appeal turns on. 7. When the principal parties (the appellant and the planning authority) are initially notified that an appeal is to be dealt with by way of an inquiry, or hearing, they may wish jointly to ask that the appeal be held "in abeyance", while discussions take place, and before formal arrangements are made for an inquiry date and venue. The Department may agree to this, and is likely to do so in an enforcement notice appeal, if a mutually acceptable outcome is anticipated. 8. The principal parties may also jointly seek a postponement of an arranged inquiry (or hearing), to a later date, after the Department has formally notified them, and the planning authority have notified any other interested parties, about the arrangements. The principal parties may agree to pursue further discussions, notwithstanding the risk of a successful application against either of them for an award of costs under section 322A of the 1990 Act. (It is clearly preferable that the principal parties should discuss, if they wish, before such arrangements are formally made.) Exceptionally, the Department may agree to a joint request for a postponement after the inquiry (or hearing) arrangements have been made, depending on the particular circumstances. Where the parties can show that they co-operated in holding constructive discussions, it is not intended that the possibility of an award of costs, under section 322A of the 1990 Act, should arise at a later stage, if the discussions are ultimately unsuccessful and the formal appeal proceedings have to be resumed. 9. If an appeal is withdrawn, without any material change in the planning authority's case, or any other material change in circumstances, relevant to the planning issues arising on the appeal, after the date on which the Secretary of State is subsequently satisfied that the principal parties had received formal notification of the arrangements for an inquiry or hearing, an award of costs may be made against the appellant, in accordance with section 322A of the 1990 Act. The date of receipt of the formal notification of the inquiry or hearing, after which the appellant will be at risk of an award of costs, will be taken as three working days after the date of posting of the Department's notification letter (to allow for first class postal delivery and receipt), unless it is subsequently shown that the notification was not received in that time. Any award would relate only to "wasted" expenses incurred by the planning authority, and any interested third parties, in preparing for the abortive inquiry or hearing. An example of a material change in circumstances which would be regarded as justifying an appellant's late withdrawal of an appeal is an agreed alteration to the proposed development, resulting from discussions early in the proceedings, which removes the authority's objections to the proposal, so that planning permission is granted for substantially the same development, whether conditionally or not. In any costs application, the planning authority will strengthen their case if they can show that they issued their statement or proofs of evidence promptly, and the substantive statement of their case was fully communicated to the appellant well before the appeal was withdrawn. 10. When an appeal is to be dealt with by way of an inquiry or hearing, the Department's practice is to forewarn appellants that, if they subsequently decide to withdraw their appeal, e.g. as a result of successful discussions with the planning authority, they should do so without delay, and if possible before arrangements are settled for the inquiry or hearing. Otherwise, they run the risk of a possible award of costs if they cannot show that a later withdrawal of the appeal was reasonable in the particular circumstances. Withdrawal of an appeal too late for inquiry or hearing to be cancelled 11. When an appeal is to be dealt with by an enquiry or hearing, the Department's practice is to forewarn appellants that they should notify the Department of any withdrawal soon enough for the inquiry or hearing to be cancelled and for the planning authority to be contacted, and the cancellation publicised locally. Appellants will be expected to ensure that notification of any withdrawal is received by the Department no later than three working days before the inquiry or hearing is due to start , which should be sufficient for the Department to respond by cancelling the arrangements. If the appellant fails to notify the Department of withdrawal before this time-limit, with the result either that the inquiry or hearing is opened; or that the planning authority, and any other parties, are present at the venue in anticipation that it will open, the appellant will run the risk of an award, against him, of the preparation and attendance costs of the planning authority, and of any other parties who have notified the appellant of their intention to be present. Such an award is likely to be made, unless it can be demonstrated, in any particular case, that there is good reason for not making one. Conduct involving the planning authority in the risk of an award against them Withdrawal of planning authority's reason (s) for refusal of planning permission, resulting in late cancellation of an inquiry or hearing: section 322A of the Town and Country Planning Act 1990 12. If the planning authority withdraw one or more reasons for refusing (or for resolving that they would have refused) planning permission, or if they withdraw the basis of their case in other proceedings (for example, an enforcement notice), after the date on which the Secretary of State is subsequently satisfied that the principal parties had received formal notification of the inquiry or hearing arrangements, and this results in cancelling the inquiry or hearing, an award of costs may be made against the planning authority. In any particular case, the date of receipt of the formal notification of the inquiry or hearing, after which the authority will be at risk of an award of costs, will be taken as three working days after the date of posting of the Department's notification letter (to allow for first class postal delivery and receipt), unless it is subsequently shown that the notification was not received in that time. No award will be made unless it is concluded that, for example, the party, or parties, claiming costs were unreasonably put to "wasted" expense in pursuing an appeal arising from an application which the planning authority had failed to consider properly, in the light of all the evidence available at the time of the initial application. 13. An award is unlikely to be made when it is shown that the planning authority's withdrawal of one or more reasons for refusal resulted from a material change of circumstances relevant to the planning issues arising on the appeal, which enabled the authority's previous objections to the proposal to be resolved by discussions begun early in the appeal proceedings; and their original decision had been justified. An example of a material change of circumstances is when the planning authority have invited the appellant, before the formal arrangements for an inquiry date and venue are made, to substitute amended plans which overcome the authority's objections to the appeal proposal, without any substantial change to the proposed development; and the appellant agrees to this course. Another example is when the appellant initiates discussion with a statutory consultee (such as the National Rivers Authority [now the Environment Agency], or a County Council as highway authority) which results in slight changes to the appeal proposal, corresponding to the statutory consultee's view on which the planning authority had based their original objections; and the authority consequently withdraw one or more of the objections on which their refusal was based. 14. During the early stages of an appeal, the planning authority may decide to re-open discussion of a statutory consultee's objections, either because they are unclear about advice received on a development proposal or because they consider that the reasons for refusal, based on the consultee's advice, may be overcome in advance of the inquiry (or hearing). If so, they will normally be expected to have resolved the matter before formal arrangements for the date and venue are notified. It is for the planning authority to decide whether to accept advice from a statutory consultee and, if they rely on it, to maintain contact with the consultee during appeal proceedings about the production of supporting evidence; and to provide adequate reasons for any subsequent material change of their case. If, in the event, the stated position of a statutory consultee appears to have changed after the formal arrangements for an inquiry (or hearing), with the result that their known intention is not to offer any substantial evidence in support of their original advice, the planning authority will minimise the risk of an award of costs against them if they can show that they promptly withdrew the relevant reason for refusal at the earliest opportunity. If, nevertheless, the authority choose to maintain the reason for refusal in such circumstances, they will be expected to provide evidence to substantiate their maintained position. 15. The planning authority can minimise the risk of an award of costs against them in an appeal, or the extent of any award of costs, by notifying the Department and the appellant immediately if they conclude, on re-examination of their case, that any of their reasons for refusal, or conditions for an approval, cannot, in the circumstances, be supported by substantial evidence; and they confirm that they will not be contesting the appeal in those respects. In the event that the planning authority are found to have behaved unreasonably - for example, by not acting sooner (before formal notification of the inquiry or hearing arrangements) - the appellant would not then be able to show that he had incurred unnecessary expense, in preparing to contest such reasons or conditions, after he had been notified of the planning authority's change of stance. 16. If the appeal is withdrawn as a clear result of an agreement between the principal parties, and neither principal party applies for an award of costs, an award is unlikely to be made in favour of any third party in the proceedings, as explained in paragraph 5 of Annex 4. If the planning authority's withdrawal of one or more reasons for refusal causes an inquiry or hearing to be cancelled, but the appeal proceedings continue by written representations, a partial award of costs may be made against the planning authority, limited to any "wasted" extra costs incurred by other parties in preparation for the inquiry or hearing. Any such award would be without prejudice to consideration of any other application for costs on the grounds of unreasonable behaviour mentioned elsewhere in this guidance. Awards against appellants and planning authorities in written representations enforcement notice (and some other specialist) appeals, as a result of a withdrawal by either party 17. The availability of costs awards in these cases is explained in paragraph 10 of the Circular. This guidance applies if an enforcement or other specialist appeal, or ground of appeal, is withdrawn: (1) at any stage of such an appeal which is proceeding by written representations; or (2) before an inquiry or hearing date has been formally notified by the Department in such a case where the parties are being "heard". In this event, unless there has been a material change in the planning authority's case, or any other material change in circumstances, relevant to the planning issues arising on appeal, an award of costs may be made against the appellant, in accordance with Schedule 4 to the Planning (Consequential Provisions) Act 1990, if it is concluded that the authority was unreasonably put to "wasted" expense. Similarly, if the planning authority withdraw the enforcement notice (or the basis for their case in other specified proceedings) at any time after an appeal is made, an award of costs may be made against the planning authority, if it is concluded that the appellant was unreasonably put to "wasted" expense. Consistently, this guidance also applies to such cases proceeding by an inquiry or hearing, where one of the principal parties withdraws before the date has been formally notified by the Department. Annex 3 Unreasonable Behaviour Relating to the Substance of the Case, including Action Prior to Submission of Appeal Awards against appellants Unreasonable appeal 1. The right of appeal is a statutory right, but it should be exercised in a reasonable manner. Where there has been a recent appeal in respect of the same, or substantially the same, site and the same or a very similar development proposal, and the Secretary of State, or a Planning Inspector, has made it plain that the development should not be allowed, an appellant may be at risk of an award of costs against him if he persists with a further appeal, despite the previous decision. This might be a further planning appeal or an appeal, on ground (a) in section 174 (2) of the Town and Country Planning Act 1990(as amended), against a subsequent, related enforcement notice. In circumstances where the planning authority have not exercised their power under section 70A of the Town and Country Planning Act 1990 (inserted by section 17 of the Planning and Compensation Act 1991) to decline to determine a further planning application, the appellant will be at risk of having costs awarded against him if it is found, on appeal, that circumstances have not materially changed in the meantime. 2. Paragraph 25 of PPG 1 explains that where the development plan is material to the development proposal, and must therefore be taken into account, an application or appeal must be determined in accordance with the plan, unless material considerations indicate otherwise.
3. Accordingly, in a case where the development plan is material and there are no other material considerations (paragraph 26 of PPG 1), an appeal may be considered unreasonable where the planning authority can show that their determination of a planning application for a proposed development is in accordance with an operative plan which is up-to-date and consistent with national and regional policies; and they have substantiated this in their reasons for refusing permission and in their written statement on an appeal. As noted in paragraph 31of PPG 1, in these circumstances the applicant will risk an award of the authority's costs against him if he pursues the appeal to an inquiry or hearing, but is unable to produce substantial evidence to support the contention that there are material considerations which would justify an exception to the policies in the development plan. 4. Paragraph 31 of PPG 1 also deals with the case where the planning authority have refused an application on grounds of prematurity at a time when the development plan is being prepared or reviewed. In such a case where the planning authority have indicated clearly how the grant of permission for the development concerned would prejudice the outcome of the development plan process, an applicant who persists with an appeal risks having the planning authority's costs awarded against him if his action is found to be unreasonable. Advice on prematurity, and on the weight to be attached to emerging development plans, is stated in paragraphs 32 to 34of PPG 1. 5. If there are other material considerations, or if the development plan is not relevant to the application or appeal ( paragraphs 27 and 28of PPG 1), an appeal may be considered unreasonable when it must have been obvious from the Government's planning policy guidance or from judicial authority, where material to the particular case, that the appeal had no reasonable prospect of success. This particularly applies to major development proposals. Where an appellant is seeking permission for development in a Green Belt, which would normally be considered inappropriate there, it will not be sufficient to demonstrate, and rely on, a genuine belief that there are very special circumstances and that the proposal is sufficiently exceptional to justify overriding the Green Belt presumption (stated in PPG 2) against the development. In determining such a costs application, what matters is the adequacy of submitted evidence to justify an exception to general Green Belt policy. Another example is an advertisement appeal against a refusal of express consent for a large-scale poster site, where the display would clearly be contrary to the policy guidance on outdoor advertisement control in the Annex to PPG 19. In any particular case, an appellant will be at risk of an award of costs against him if it is concluded that it must have been obvious, from the evidence presented, that the appeal had no reasonable prospect of success. 6. In all such cases, the planning authority will strengthen the case for an award of their costs if they can show that they drew the appellant's attention to the relevant facts and to the possible consequences of persisting in an appeal. Awards against planning authorities Unreasonable refusal of planning permission 7. A planning authority should not prevent, inhibit or delay development which could reasonably be permitted, in the light of the development plan, so far as it is material to the application, and of any other material considerations. 8. Reasons for refusal should be complete, precise, specific and relevant to the application. In any appeal proceedings, the authority will be expected to produce evidence to substantiate each reason for refusal, by reference to the development plan and all other material considerations. If they cannot do so, costs may be awarded against them. This is the ground on which costs are most commonly awarded against a planning authority. Each reason for refusal will be examined for evidence that the provisions of the development plan, and relevant advice in Departmental planning guidance in PPGs, RPGs, MPGs or Circulars, and any relevant judicial authority, were properly taken into account; and that the application was properly considered in the light of these and other material considerations. In any such proceedings, authorities will be expected to produce evidence to show clearly why the development cannot be permitted. If one reason for refusal is not properly supported, but substantial evidence has been produced in support of the others, a partial award may be made, against the authority, of the appellant's costs incurred in opposing that reason. In cases where planning issues are clearly shown to be finely balanced, an award of costs relating to substantive, as distinct from procedural, matters is unlikely to be made against the planning authority. 9. Planning authorities are not bound to adopt, or include as part of their case, the professional or technical advice given by their own officers, or received from statutory bodies or consultees. But they will be expected to show that they had reasonable planning grounds for taking a decision contrary to such advice; and they were able to produce relevant evidence to support their decision in all respects. If they fail to do so, costs may be awarded against the authority. It follows that planning authorities are expected thoroughly to consider relevant advice from a statutory consultee (such as the National Rivers Authority [now the Environment Agency] or English Heritage), or from another Council (for example, a County Council as highway authority), or from a Government Department, before determining a planning application. Nevertheless, it is always the planning authority's sole responsibility to ensure that, if they adopt such advice, their decision is based on a complete understanding of the consultee's advice or opinion. If the planning authority do not accept or adopt any such advice, they should say so and explain why. In some cases the planning authority may be specifically directed (under the Town and Country Planning General Development [Procedure] Order) to refuse, or restrict the grant of, planning permission or to impose condition (s) on any permission they may grant. 10. In general, planning authorities will be expected, in any appeal proceedings, to produce, or co-ordinate the provision of, evidence in support of advice on which the authority is relying. They would be well-advised therefore to discuss their case with the consultee, at an early stage. This extends to keeping the relevant Government Department informed where a direction has been made. If they see any risk of a later misunderstanding of their reasons for accepting, or rejecting, advice received, they would be well-advised to amend their reasons, or their case. If the planning authority are asked during the appeal proceedings about a consultee's previous advice on which they are not relying in their reasons for refusal, or about the consultee's intentions in the proceedings (for example, whether they wish to be represented at an inquiry (or hearing) as a separate party and submit a statement), the authority should always discuss the matter promptly with the consultee and, where appropriate, forward relevant correspondence for the consultee's urgent attention. What matters in any subsequent costs application is the relevance of the reasoning which prompted the authority to accept, or reject, the consultee's advice, and whether the appellant was given a fair opportunity to examine and comment on it, as appropriate, during the appeal proceedings. 11. Whenever appropriate, planning authorities will be expected to show that they have considered the possibility of imposing relevant planning conditions on a grant of permission which would allow proposed development to proceed; and they have considered any conditions proposed to them before refusing permission. Where an applicant offers to enter into a planning obligation which is relevant to his application, this will be a material consideration which the authority should take into account. However, if there is a choice between imposing conditions and entering into a planning obligation, the imposition of a condition is preferable because it enables the applicant to exercise the right of appeal to the Secretary of State. Examples of unreasonable refusal 12. General advice on the relevance of national planning guidance (in PPGs, RPGs, MPGs and Circulars) is given in paragraphs 10 and 11of Annex 1 to this Circular. In the light of the guidance in paragraphs 25to 31 of PPG 1 (revised March 1992), which is cited in paragraphs 2to 5 of this Annex, a planning authority will be at risk of an award of costs against them if they refuse an application which accords with material policies or proposals in the development plan, and they are unable to show that there are any other material considerations supporting such a refusal. Where there are "other material considerations", on which guidance is given in paragraphs 23 to 24of PPG 1, the planning authority are likely to be held to have acted "unreasonably", in refusing an application, if they cannot provide substantial evidence, on appeal, in support of that decision, consistent with the guidance in paragraphs 27 to 31of PPG 1. Paragraphs 32 to 34of PPG 1refer to questions of prematurity. Where planning permission is refused on such grounds, at a time when the development plan is being prepared or reviewed, the planning authority will be expected to provide substantial evidence, on appeal, to show how the grant of permission would prejudice the outcome of the development plan process. If they fail to do so, costs may be awarded against them. 13. The new significance of the development plan in planning decisions, following the implementation of section 54A of the 1990 Act, makes it all the more important that planning authorities should take all reasonable steps to achieve up-to-date area-wide plans, and ensure that those plans are kept up-to-date. In cases where a planning authority refuse an application on the basis that it does not accord with the development plan, and the plan is then shown to be clearly out-of-date in that respect, the authority will risk an award of costs against them, unless they can show that they are taking all reasonable steps to bring the relevant plan up-to-date. 14. When determining planning applications, planning authorities are expected to consider the impact of development on existing buildings and the landscape or town-scape. Particular weight should be given to the impact of development on environmentally sensitive areas (such as National Parks, Areas of Outstanding Natural Beauty and Conservation Areas). But authorities should not seek to control the detailed design of buildings unless the sensitive character of the setting for the development justifies it. Guidance on design control is stated in Annex A to PPG 1. If the degree of control goes beyond what is appropriate for the circumstances of the location concerned, the authority's action may be regarded as unreasonable. Where there are other sustainable planning objections to a proposal, a partial award of costs may be made if design considerations have also been stated, without very good reasons, as a ground for refusing planning permission. 15. Planning authorities are expected to consider the views of local residents when determining a planning application. Nevertheless, local opposition to a proposal is not, by itself, a reasonable ground for the refusal of a planning application, unless that opposition is founded on valid planning reasons which are supported by substantial evidence. While the planning authority will need to consider the substance of any local opposition to the proposal, their duty is to decide a case on its planning merits. 16. A planning authority are likely to be regarded as having acted unreasonably, in the event of a successful appeal against their refusal of planning permission, if it is clear from a relevant earlier appeal decision that the Secretary of State or a Planning Inspector would have no objection to a revised application in the form which was ultimately allowed, and circumstances have not changed materially meantime. 17. A planning authority are also likely to be regarded as having acted unreasonably if they refuse permission or reserved matters, raising objections more appropriate to outline stage, and are unable to show good reason, on appeal, for their stance taken. 18. As stated in PPG 12(February 1992), paragraph 5.23, and PPG 12(Wales), paragraph 5.22, the adequacy of infrastructure can be a material consideration in deciding whether permission should be granted on an individual planning application. However, a planning authority may be regarded as having acted unreasonably if they cite inadequate infrastructure as a reason for refusal, and there is a statutory duty to remedy the inadequacy within a given timescale - for example, in the case of a water company's supply of water for domestic purposes under the Water Industry Act 1991; or the provision of associated infrastructure for sewerage or sewage disposal. Annex B to Circular 16/91 (WO 53/91), provides guidance on the proper use of planning obligations made under section 106 of the Town and Country Planning Act 1990 (as substituted by section 12 of the Planning and Compensation Act 1991), in connection with a grant of planning permission. Where an appeal has arisen, or is pursued, because of what seems to the Secretary of State to be an unreasonable demand on the part of the planning authority, he will consider sympathetically an application made to him for an award of costs, subject to the procedural guidance in Annex 5. (In the case of "twin-tracking" situations, guidance is given in paragraphs 16and 17 of Annex 1.) 19. A further example of unreasonable behaviour is when a planning authority cannot show good reason - such as a material change in planning circumstances - for failing to renew an extant or a recently expired planning permission. The advice in paragraph 48 of the Annex to Circular 1/85is relevant in this respect. Such a permission is a material factor which must be taken into account when a planning authority consider a subsequent application for the same development. In applications for renewal of planning permissions for mineral workings, the advice in MPG 2 is relevant. It will normally be considered unreasonable for a mineral planning authority to refuse to renew an extant, or recently expired, planning permission to extract minerals, where a condition of that permission stipulated a date by which operations must cease and that date has been reached, if workable deposits remain and there has been no material change of circumstances since the expiring permission was granted. MPG 8 gives advice on the statutory provisions and procedures for applications for registration of an interim development order (IDO) or old mining permission, or for determination of operating and restoration conditions. A mineral planning authority will be expected to show good reason, on appeal, for refusing an application to register an IDO, or for determining an area of land or conditions which differ from those set out in the application. Failure to do so is likely to be regarded as unreasonable. Conditions 20. Circular 1/85 and MPGs 2 and 7 (in the case of mineral developments) give detailed guidance on the use of conditions, as stated in PPG 1. ( MPG 9 gives guidance in the case of interim development order permission, to which similar considerations apply.) Conditions should be imposed only when they are both necessary and reasonable. They should be enforceable, precise, and relevant, both in planning terms and to the proposed development. The imposition of conditions which clearly fail to meet these criteria may lead to an award of costs against the planning authority. In outdoor advertisement applications, the planning authority should not impose a condition requiring the removal of the advertisement at the expiry of the period of express consent solely to have the opportunity to review the consent. They will need to show that any such condition is justified by reference to an actual or anticipated change in the relevant local circumstances. Unreasonable issue of enforcement notice 21. Decisions to award costs in enforcement appeal proceedings are based on substantially the same principles as for planning appeals. This is because enforcement action is within the planning authority's discretion, and there is a right of appeal to the Secretary of State. However, the availability of awards of costs, in appropriate circumstances, is not intended to inhibit planning authorities' readiness to take effective enforcement action, when it is clearly essential in the public interest. Guidance on planning authorities' use of their new and improved enforcement powers under the Planning and Compensation Act 1991 (with effect from January 2, and July 27, 1992) is given in DOE Circulars 21/91 and 17/92(WO 76/91 and 38/92) and PPG 18. 22. When using their discretionary enforcement powers, planning authorities will be expected to exercise care to ensure that their decision to issue an enforcement notice takes full account of relevant judicial authority, the Government's guidance in PPG 18and well-publicised appeal decisions. Even where there is no relevant judicial authority applicable to an enforcement notice or appeal, or the weight of judicial authority is uncertain in a particular case, a planning authority are likely to be at risk of an award of costs if they feel compelled to withdraw an enforcement notice. In that event, it may be concluded that, by withdrawing the notice, the authority were effectively conceding that it was not expedient to have issued it at the outset. An example is where the notice has been so incorrectly drafted, or is so technically defective, that, in the authority's view, it could not be corrected or varied by the Secretary of State, on appeal, in accordance with section 176 (1) of the Town and Country Planning Act 1990(as substituted by paragraph 23of Schedule 7 to the Planning and Compensation Act 1991), with the result that an appeal and the expense involved have been unnecessarily incurred up to the date of withdrawal. The same applies if such a notice is not withdrawn, but is subsequently quashed on appeal for similar reasons, after expense has been incurred over a greater period. A serious misunderstanding of clearly established principles of law is likely to be regarded as unreasonable conduct. However, it does not follow that, in any particular case, an authority's reliance on a legal interpretation which is not, in the event, supported by the reasons for an appeal decision will necessarily be regarded as unreasonable. Planning authorities may wish to exercise their new power under section 173A (1)(b) of the 1990 Act (introduced by section 5 of the Planning and Compensation Act 1991) to waive or relax any requirement of an enforcement notice. If they do so after an appeal has been made - for example, in the light of subsequent discussion with the appellant - authorities will not be at risk of a partial award of the appellant's costs of pursuing grounds (f) and (g), in section 174 (2) of the 1990 Act(as amended), if applicable. 23. Circular 21/91, Annex 1, on the new power in section 171C (7) of the 1990 Act, states clearly that the service of a planning contravention notice (requiring the provision of relevant information) prior to any enforcement action is entirely optional. It is not intended that an authority's enforcement decision, when reasonably taken in the circumstances, should put them at risk of an award of appeals costs because they decided not to serve a planning contravention notice. However, in enforcement cases the Secretary of State, or Planning Inspector, will need to consider whether the planning authority had reasonable grounds for concluding that there had been a breach of control; and the adequacy of their stated reasons (as required by Regulation 3 of the Town and Country Planning (Enforcement Notices and Appeals) Regulations 1991, S.I. 1991/2804) why enforcement action was considered expedient in the particular circumstances. 24. It will generally be regarded as unreasonable for a planning authority to issue an enforcement notice solely to remedy the absence of a valid planning permission, if it is concluded, on an enforcement appeal to the Secretary of State, that there is no significant planning objection to the breach of control alleged in the enforcement notice. Accordingly, planning authorities who issue a notice in these circumstances will remain at risk of an award against them of the appellant's costs in the enforcement appeal. For example, an unconditional grant of permission on the "deemed application" in the enforcement appeal might be regarded as an indication that the alleged breach of control was so trivial or technical as not to justify enforcement action. The Secretary of State, or Planning Inspector, will consider, in the light of paragraphs 5to 22 of PPG 18, whether the planning authority had behaved reasonably in exercising their discretion to take enforcement action. Authorities should be able to show, on appeal, that they had reasonable grounds for concluding that the breach of control would unacceptably affect public amenity, or the existing use of land and buildings meriting protection in the public interest; and it was expedient to issue the enforcement notice in the particular case. 25. Discussions between the parties to an enforcement appeal often continue while the appeal is in progress. A mutually acceptable compromise may result in withdrawal of an enforcement notice or appeal, thus avoiding further costs in the proceedings. New section 173A of the 1990 Act enables the planning authority to waive or relax any of the notice's requirements, and to extend any period specified for compliance with it. In any relevant case, the planning authority's stated reasons for withdrawing the enforcement notice will be examined in order to assess whether any material change of circumstances has occurred since the date of issue - for example, the availability of new information or the willingness of the appellant to apply for a conditional planning permission - and whether the enforcement notice was withdrawn promptly. If no good reason can be shown for any protracted delay since the decision to withdraw was taken, a partial award of costs may be made in respect of costs incurred during that period. The handling of the planning application or enforcement notice 26. If a planning authority fail to determine an application within the statutory period, or any extended period to which the applicant agrees, the applicant may appeal to the Secretary of State. Paragraph 7 of Circular 22/80 (WO 40/80) advises that, if a decision will be unavoidably delayed, the applicant ought to be given a proper explanation, including information about any consultation with other bodies and some indication when a decision is likely to be given. In any appeal under section 78 (2) of the 1990 Act, the planning authority will be expected to show that they had specific and adequate reasons for not reaching a decision within the time-limit. An example is where they were discussing relevant issues with the appellant and had requested an extended period, or required further information which was requested but not received from the appellant soon enough to enable a timely decision to be made. An award of costs may be made against the planning authority if, in the appeal proceedings, they cannot show that they had specific and adequate reasons for failing to make a decision; or if they cannot produce evidence to substantiate each of their stated reasons why they would have refused planning permission (if they had determined the application within the prescribed period). 27. If the planning authority have refused the appellant's request to discuss the planning application, or the possibility of granting planning permission (including a conditional permission) for the development alleged in the enforcement notice, or if they have refused to provide reasonably requested information, an award of costs may be made against them if it is concluded that a more helpful approach would have enabled the appeal to be avoided. 28. A planning authority will be expected to have sought further details of an application if they are unclear about the applicant's intentions from the detail supplied. A planning authority who have not sought such further details may be regarded as having acted unreasonably in refusing planning permission on the ground that insufficient detail has been supplied. Similarly, before issuing an enforcement notice, a planning authority should undertake reasonable investigations to establish whether there has been a breach of planning control by, for example, making enquiries and discussing the position with the owner or occupier, and examining their own records for information about any previous planning consents; or using their improved investigatory powers provided by the Planning and Compensation Act, which are explained in PPG 18and DOE Circular 21/91 (WO 76/91). These include power to serve a planning contravention notice and to enter on to land to obtain relevant information from the owner or occupier of the land and premises. Failure to undertake adequate investigation may be a ground for an award of costs if it results in an enforcement appeal to the Secretary of State which, it is concluded, could probably have been avoided if the planning authority had been more diligent. Annex 4 Application of Costs Policy to Third Parties in Proceedings General policy on awards of costs to, or against, third parties 1. As explained in paragraph 8 of Annex 1, the term "principal party" refers (for appeal proceedings) to the relevant planning authority and the appellant. All other interested parties, including statutory consultees, whether or not they are "entitled to appear at an inquiry" under the appropriate Inquiries Procedure Rules, are defined, for the purposes of this guidance, as third parties. In the case of hearings, the Inquiries Procedure Rules do not apply, although similar considerations relating to the procedural conduct of the parties do apply. 2. Awards of costs either in favour of or against third parties, including statutory consultees, will be made only in exceptional circumstances. In general, third parties will not have costs awarded to, or against, them where unreasonable behaviour by one of the principal parties relates to the substance of the case (i.e. the appeal, or the refusal or permission, is considered unreasonable). But, where unreasonable conduct relating to procedural matters at the inquiry, or hearing, causes unnecessary expense, third parties may be awarded costs, or have costs awarded against them. An example would be an unnecessary adjournment caused by unreasonable conduct, whether of a third party or of another party. 3. The statutory provisions for awards of costs (and the procedures under which they are made) do not apply to the Crown, including Government Departments which may be represented, as third parties, in planning proceedings. These provisions remain Crown exempt. If any party considers that they have incurred "wasted" or unnecessary costs directly as a result of unreasonable conduct by a Government Department, it is open to the party to approach them directly. Under the Citizen's Charter, all public bodies should have well-publicised and easy to use complaints procedures. Late cancellation of an inquiry or hearing 4. Where unreasonable conduct causes the cancellation of an inquiry (or hearing), for example, as a result of unreasonable withdrawal of the appeal (paragraphs 6 to 10 in Annex 2), or where an appellant withdraws the appeal too late for the inquiry or hearing to be cancelled ( paragraph 11 in Annex 2), or fails to attend an inquiry or hearing (paragraph 5 in Annex 2), third parties may be awarded costs in their favour. For an award of costs to be entertained, third parties will need to demonstrate that they had forewarned the appellant and the planning authority of their intention to appear at an inquiry (or hearing), before incurring expense in preparatory work for their appearance. 5. Consistently with paragraph 16 of Annex 2, an award of costs in favour of a third party is unlikely to be made, after the Department's cancellation of an inquiry (or hearing), in circumstances where discussions between the appellant and the planning authority have resulted in a mutually acceptable solution to the planning issues on which the appeal turns. If third parties choose to participate in appeal proceedings, and to incur expense in preparatory work for an inquiry (or hearing), in which they intend to appear - for example, in support of the planning authority's refusal of planning permission - they do so on their own initiative. In any costs application relating to a cancellation of an inquiry (or hearing), third parties will be expected to demonstrate that: (1) before incurring any expense which is ultimately "wasted", they first enquired of the planning authority (and kept in close touch with them) about any discussions between the principal parties which would have forewarned them that the arranged inquiry (or hearing) might not proceed on the date first notified; and (2) the party against whom costs are sought has behaved unreasonably in causing the cancellation of the inquiry (or hearing). Annex 5 The Costs Application Inquiry or hearing cases 1. Any application for costs should normally be made to the Planning Inspector at the inquiry or hearing. Because costs are awarded on the basis of unreasonable conduct, it is usually clear by this stage whether there are grounds for such an allegation. An application made before the end of the proceedings enables the Inspector to consider the parties' submissions. It can usually be dealt with simply and speedily. The Inspector's appeal decision will not be affected in any way by the fact that an application for costs has been made. Both parties' representations on any costs application will normally be made immediately after an inquiry or hearing. If necessary, a short adjournment may be allowed, at the Inspector's discretion, before the application is heard. If the appeal has been transferred to the Inspector for decision, he will normally also determine the costs application. If the Secretary of State is to decide the appeal, the Inspector will report the application and usually make a recommendation, which will be considered when deciding whether to make any award. Cases where no inquiry or hearing is held because of a late cancellation 2. If an arranged inquiry or hearing is cancelled as a direct result of an appellant's withdrawal of the appeal, or the planning authority's withdrawal of their reasons for refusal or of their enforcement notice, or of any other basis for the proceedings, an application for costs should be made in writing immediately to the Department. If some delay is unavoidable, the application should be made no later than four weeks after receiving confirmation from the Department (or, in the case of any third parties, from the planning authority) that the inquiry or hearing has been cancelled. This is already the practice in enforcement notice appeals (and some specialist appeals cited in paragraph 10 of the Circular), which proceeded by written representations but were not determined because of the withdrawal by one of the principal parties. In the case of other proceedings under the Planning Acts, the Secretary of State does not intend to consider using the discretionary power, in section 322A of the 1990 Act, unless, as in the case of enforcement notice appeals, a specific application for costs is accepted for consideration, which is made by one of the principal parties against the other principal party, or by one, or more, third parties against a principal party. The decision whether the action which caused the cancellation of the inquiry or hearing was unreasonable will then be taken on the basis of an exchange of written submissions. Particular attention will be paid to the circumstances and timing of the action and to the stated justification. The decision on costs will therefore be made solely on the basis of material information which will have been made available to the relevant parties for prior comment. Cases determined by written representations and a site-inspection 3. As stated in paragraph 10 of the introductory Circular, costs may be awarded in the case of enforcement notice appeals (and some other specified appeals) dealt with by written representations. Additionally, paragraph 16 of Annex 2 refers to the possibility that, in planning appeals and other proceedings, an inquiry or hearing may be cancelled after a planning authority's late withdrawal of one or more reasons for refusal, but the appeal nevertheless proceeds to a determination by written representations and a site-inspection. In this situation, the Secretary of State may, on application to him, use the discretionary power in section 322A of the 1990 Act to make a partial award of costs, on the basis stated in paragraph 16 of Annex 2. In all such cases, an application for costs should be made to the Department, in writing, before the Planning Inspector's site-inspection. At this stage, when it is expected that the parties' statements will have been exchanged, it should normally be clear whether there is any basis for an application for costs on grounds of unreasonable behaviour. Late applications for costs 4. An application for costs made after the inquiry or hearing, or later than four weeks after its cancellation, will be accepted only if the party applying for costs can show good reason for not having applied earlier; and likewise if an application is made later than four weeks after issue of the decision, or the Department's notification of an appellant's or planning authority's withdrawal, in a written representations case. If such an application is accepted, it will be determined by the Secretary of State on the basis of the appeal papers and an exchange of written submissions, and normally without seeking any advice from the Inspector who held the inquiry or hearing. A party wishing to apply for costs after completion of the proceedings should do so at the earliest opportunity. If the Secretary of State accepts the application, the parties involved should be as concise and sparing as reasonably possible in their exchange of submissions, and observe the time-limits set by the Secretary of State. If this is not done, the application may be determined on the basis of the submissions already available, without further delay.
Amount of award 5. Section 250 (5) of the 1972 Act empowers the Secretary of State to make "orders as to the costs of the parties at the inquiry." He interprets this as enabling him to award to a party the costs necessarily and reasonably incurred in relation to the proceedings before him. The power, which has been applied so as to enable Planning Inspectors to award costs, does not extend to awards of compensation for indirect losses, such as those which may result from delay in obtaining planning permission via the appeal process. The Secretary of State and Inspectors do not determine the amount of costs payable. The party awarded costs should in the first instance submit details of their costs to the other party, with a view to reaching agreement on the amount. If they are unable to agree, the party awarded costs can refer the case of a Taxing Officer of the Supreme Court for determination. When an award of costs is made, the parties will also be sent a guidance note on taxation procedure.
Full awards 6. A full award of costs relates to costs incurred during the period starting on the date when the Secretary of State receives notice of an appeal and ending on the date when the appeal is concluded, normally by its determination or withdrawal.
Partial awards 7. Some cases do not justify a full award of costs. In these circumstances, a partial award may be made. An example is where a planning authority have failed to provide evidence to substantiate only one of several reasons for refusing a planning application; in this case an award would be limited to the costs of appealing against that reason. Similarly, where an unnecessary adjournment is caused by the unreasonable conduct of one of the parties, the award of costs would be limited to the extra expense caused by the adjournment - that is, over a limited period. Annex 6 Costs in Respect of Compulsory Purchase and Analogous Orders General principles 1. There is a distinction between cases where appellants take the initiative, such as in applying for planning permission or undertaking development allegedly without planning permission, and cases where objectors are defending their rights, or protecting their interests, which are the subject of a compulsory purchase order. If a statutory objector to such an order is successful, an award of costs will be made in his favour unless there are exceptional reasons for not doing so. The award will be made against the authority who made the order: it does not, of itself, imply unreasonable behaviour by the authority. 2. To enable an award to be made on grounds of success the claimant must have made a formal objection to the order; the order must have been the subject of a local inquiry which the claimant must have attended (or been represented at); and the claimant must have been heard as a statutory objector. In addition, the claimant must have had the objection sustained by the Secretary of State's refusal to confirm the order, or by his decision to exclude from the order the whole or part of the objector's property. 3. No application for costs need be made at the inquiry by a successful statutory objector; the Secretary of State will write to the parties concerned. There are some circumstances in which an award of costs may be made to an unsuccessful objector or to an order-making authority because of unreasonable behaviour by the other party. In practice such an award is likely to relate to procedural matters, such as failing to submit grounds of objection or serve a statement of case, resulting in unnecessary expense - for example, because the inquiry has to be adjourned or is unnecessarily prolonged. In these cases an application for costs should be made to the Secretary of State immediately after the inquiry. An award of costs cannot be made both on grounds of success and unreasonable behaviour in such cases; but an award to a successful objector may be reduced if he has acted unreasonably and caused unnecessary expense in the proceedings - as, for example, where his conduct leads to an adjournment which ought not to have been necessary.
Partly successful objectors 4. Where a statutory objector is partly successful in opposing a compulsory purchase order, the Secretary of State will normally make a partial award of costs. Such cases arise, for example, where the Secretary of State, in confirming an order, excludes part of the objector's land. Where a compulsory purchase order has been made under section 290 of the Housing Act 1985, after March 31, 1990, an objector will not be regarded as partly successful if the order is confirmed with a modification re-classifying his property as "added" lands. Following the enhanced compensation provisions introduced by the Local Government and Housing Act 1989, such a notification would not affect the compensation payable. Analogous orders and proposals 5. The Secretary of State normally awards costs to successful objectors to orders and proposals which he regards as analogous to compulsory purchase orders. In general he will consider an order or proposal to be analogous to a compulsory purchase order if its making or confirmation takes award from the objector some right or interest in land for which the statute gives him a right to compensation. Some examples of orders and proposals which are considered to be analogous to compulsory purchase orders, or may be in certain cases (depending on the particular circumstances of an objector's interest in the land), are set out in the Appendix to this Annex, although the list is not intended to be exhaustive. 6. Paragraph 8 of the Circular (inserted by section 30 of the Planning and Compensation Act 1991) has been commenced so as not to apply to certain categories of proceedings under the Planning Acts. These proceedings include "analogous" orders made under the Planning Acts, which are listed both in Annex 7 and in the Appendix to this Annex. The provisions do not apply to any compulsory purchase order or analogous order proceedings. Plural objections 7. Sometimes joint inquiries are held into two or more proposals, only one of which is a compulsory purchase (or analogous) order, for example an application for planning permission and an order for the compulsory acquisition of land included in the application. Where a statutory objector, who also makes representations about a related application, appears at such inquiries and is successful in objecting to the compulsory purchase order, the objector will be entitled to an award in respect of the compulsory purchase order only. An objector is not, however, precluded from applying for the costs relating to the other matter on the grounds that the authority has acted unreasonably. Appendix to Annex 6 Orders Analogous to Compulsory Purchase Orders (1) orders under sections 97 and 98of the Town and Country Planning Act 1990, revoking or modifying a planning permission; (2) orders under sections 23 and 24 of the Planning (Listed Buildings and Conservation Areas) Act 1990, revoking or modifying listed building consent; (3) orders under section 220 of the Town and Country Planning Act 1990 and Control of Advertisements Regulations, revoking or modifying a grant of advertisement consent; (4) orders under sections 102 and 103 of, and Schedule 9 to, the Town and Country Planning Act 1990 - (a) requiring discontinuance of a use of land (including the winning and working of minerals), or imposing conditions on the continuance of a use of land; or (b) requiring the removal or alteration of buildings or works; or (c) requiring the removal or alteration of plant or machinery used for winning or working of minerals; or (d) prohibiting the resumption of winning or working of minerals; or (e) requiring steps to be taken for the protection of the environment, after suspension of winning and working of minerals; (5) orders under sections 14 and 15of the Planning (Hazardous Substances) Act 1990, revoking or modifying a hazardous substances consent, or refusal of an application under section 17 (1)of the Act for continuation of a consent, on change of control of land; (6) orders under section 26 of the Highways Act 1980 , creating a footpath or bridleway over land; (7) *orders under sections 118 to 119A of the Highways Act 1980(as amended by the Transport and Works Act 1992); (8) orders under section 65 of the National Parks and Access to the Countryside Act 1949 regarding access to land; (9) orders under section 29 of the Wildlife and Countryside Act 1981 relating to special protection of certain areas of special scientific interest; (10) a petition under section 125 of the Local Government Act 1972, as substituted by section 43 of the Housing and Planning Act 1986, relating to compulsory acquisition of land on behalf of parish or community Councils. *Whether these orders are regarded as analogous in any case depends on the particular circumstances of an objector's interest in the land
Annex 7 Proceedings in which Costs may be awarded where an Inquiry or Hearing is held or Cancelled1. Proceedings in which an inquiry or hearing is held (or cancelled), and the Secretary of State or Planning Inspectors are empowered to award costs, by virtue of section 250 (5) of the Local Government Act 1972 and section 322A of the Town and Country Planning Act 1990, are listed below. The provisions in section 322A of the 1990 Act (introduced by section 30 of the Planning and Compensation Act 1991), concerning late cancellation of an inquiry or hearing, were brought into effect on January 2, 1992 by commencement order (S.I. 1991/2728) for appeals made on or after that date. The commencement does not apply to the cases stated in sub-paragraphs (25) to (30) of paragraph 2 below. In the case of hearings, the power to award costs arises from the partial commencement, on January 2, 1992, of section 322 of the Town and Country Planning Act 1990 (S.I. 1991/2698). 2. These proceedings include: - (1) planning appeals under section 78 of the Town and Country Planning Act 1990; (2) planning applications referred to the Secretary of State under section 77 of the 1990 Act; (3) enforcement notice appeals under section 174 of the 1990 Act; (4) listed building consent appeals under section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990; (5) listed building consent applications referred to the Secretary of State under section 12 of the Planning (Listed Buildings and Conservation Areas) Act 1990; (6) listed building enforcement notice appeals under section 39 of the Planning (Listed Buildings and Conservation Areas) Act 1990; (7) conservation area consent applications referred to the Secretary of State under section 74 (2)(a)of the Planning (Listed Buildings and Conservation Areas) Act 1990; (8) conservation area consent appeals under section 74 (3) of the Planning (Listed Buildings and Conservation Areas) Act 1990; (9) conservation area enforcement appeals under section 74 (3) of the Planning (Listed Buildings and Conservation Areas) Act 1990; (10) advertisement appeals, including "discontinuance notice" appeals, under section 220 of the Town and Country Planning Act 1990 and Regulation 15 of the Town and Country Planning (Control of Advertisements) Regulations 1992; (11) orders under section 220 of the Town and Country Planning Act 1990 and Control of Advertisements Regulations designating, revoking or modifying Areas of Special Advertisement Control; (12) appeals made before July 27, 1992, under section 195 of the 1990 Act, in respect of established use certificate applications; (13) appeals made before July 27, 1992, in respect of applications under section 64 of the 1990 Act, to determine whether an application for planning permission is required; (14) from July 1992, appeals under section 195 of the 1990 Act, as amended by paragraph 32of Schedule 7 to the Planning and Compensation Act 1991 (certificates of lawful development); (15) completion notices requiring confirmation by the Secretary of State under section 95 of the 1990 Act; (16) purchase notice references to the Secretary of State under sections 139 and 140 of the 1990 Act; (17) listed building purchase notice references to the Secretary of State under sections 33 and 34 of the Planning (Listed Buildings and Conservation Areas) Act 1990; (18) tree preservation order purchase notice references to the Secretary of State under section 198 (4)(b) of the 1990 Act; (19) trees replacement enforcement notice appeals under section 208of the 1990 Act ; (20) appeals under section 22 of, and Schedule 2to, the Planning and Compensation Act 1991against refusal of an application for registration of an old mining permission; or against determination of an area of land or conditions different from those set out in the application; or against determination of conditions to be attached to a registered old mining permission; (21) *appeals under section 106Bof the Town and Country Planning Act 1990 (inserted by section 12 (1)of the Planning and Compensation Act 1991); (22) hazardous substances applications referred to the Secretary of State under section 20 of the Planning (Hazardous Substances) Act 1990 and Regulations; (23) hazardous substances consent appeals under section 21of the Planning (Hazardous Substances) Act 1990 and Regulations; (24) appeals under section 25 of the Planning (Hazardous Substances) Act 1990 and Regulations against hazardous substances contravention notices; (25) opposed highways or public rights of way orders under Part X of the Town and Country Planning Act 1990; (26) **orders under sections 97 and 98 of, and Schedule 5 to, the Town and Country Planning Act 1990, revoking or modifying a planning permission; (27) **orders under sections 23 and 24of the Planning (Listed Buildings and Conservation Areas) Act 1990, revoking or modifying listed building consent; (28) **orders under sections 220 of the Town and Country Planning Act 1990 and Control of Advertisements Regulations revoking or modifying a grant of advertisement consent; (29) **discontinuance orders under sections 102 and 103 of, and Schedule 9 to, the Town and Country Planning Act 1990; (29A) **prohibition orders and orders (after suspension of winning and working of minerals) for protection of the environment, under Schedule 9 to the Town and Country Planning Act 1990; (30) **orders under section 14 and 15of the Planning (Hazardous Substances) Act 1990 and Regulations, revoking or modifying hazardous substances consent. *Brought into effect by commencement order on November 9, 1992 (S.I. 1992/2831), as explained in DOE Circular 28/92 (WO 66/92). **These are regarded as analogous to compulsory purchase orders and are covered by the policy guidance in Annex 6. Examples of analogous orders are in the Appendix to Annex 6.
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