The costs of commissioners
Where a council employs independent commissioners, determining who is responsible for the costs depends on the circumstances of the commissioner’s appointment.
Where a council decides to use independent commissioner(s), then the costs are passed onto the applicant in the standard way under s36.
However if independent commissioners are requested under s100A then the following applies (s36(1)):
If the applicant makes the request (regardless of whether a submitter also makes a request) the applicant is responsible for all the costs of the hearing and decision.
If submitter(s) make the request (and the applicant does not), then the submitter(s) who have made the request and the applicant are responsible for portions of the costs of the hearing and decision. The applicant must pay for the costs of the hearing and decision as if the request for independent commissioners had not been made (i.e. the council was hearing and deciding the application in the normal way). The submitter(s) pays for any additional costs consequent of the appointment of the independent commissioner. These additional costs are split in equal shares if there is more than one submitter who makes the request for a commissioner.
All charges are to be set as fixed charges under section 36(1).
Councils cannot take a deposit or security to ensure the costs of independent commissioners requested by submitters are met. Councils need to recover costs from submitters through their usual debt recovery means. Therefore it is important for councils to sort out their financial systems and make their charging regime clear to submitters before confirming the use of independent commissioners.
Councils also have the discretion to waive additional fees and changes where independent commissioners are requested. If they choose not to waive fees or charges, and the hearing has already gone ahead with independent commissioners, then the submitters should be treated like any other debtor.