Trial and error

The Planning Inspectorate has reinstated its compensation scheme for costs caused by its errors. Richard Harwood explains the background to the decision.

The Planning Inspectorate has reintroduced an ex gratia compensation scheme for costs caused by its errors including the redetermination of appeals following High Court quashings.

In the 1970s the Inspectorate practice was to pay the costs which had been incurred on the initial appeal hearing or inquiry. This changed in the 1980s to the practice of paying the costs of the redetermination rather than the initial hearing.

The practice of making ex gratia payments was well-known within the planning system although not publicised until 2009. This system was ended in April 2011 without announcement or consultation (merely removing references from Good Practice Advice Note 15 Challenges and complaints) with the Inspectorate later saying it would rely on the Parliamentary Ombudsman to settle claims.

This change prompted two judicial reviews over the costs of redetermining appeals where decisions had been quashed by the Courts prior to April 2011: R (Koumis) v Secretary of State for Communities and Local Government and R (Payne) vSecretary of State for Communities and Local Government. Both cases were ultimately settled with the Inspectorate paying those parties’ costs of redetermination. The Parliamentary Ombudsman was also critical of the Inspectorate’s approach to compensation.

The August 2012 version of Good Practice Advice Note 15 (now entitled Feedback, complaints and challenges) now says (para 24): “Where maladministration or an error by the Planning Inspectorate has led to injustice or hardship, we will try to offer a remedy that returns the complainant to the position they would have been in otherwise. If that is not possible, the Planning Inspectorate will provide compensation for unnecessary expense incurred as a result of an acknowledged error where there are compelling reasons to do so.”

Remedies may include “financial compensation for costs incurred as a result of our error”. The Inspectorate promise to “consider carefully complaints and requests for financial compensation received within 6 months of the date of the error or of any subsequent appeal decision by us related to that error.”

Richard Harwood is a barrister at 39 Essex Street. He acted for the Claimant in Payne v Secretary of State.