Ranson, R (On the Application Of) v Secretary of State & Anor [2003] EWHC 3075 (Admin)

Case No CO/2891/2003

[2003] EWHC 3075 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 27 November 2003

Strand

London WC2

B E F O R E:

MR JUSTICE OUSELEY

Between

THE QUEEN ON THE APPLICATION OF RANSONClaimant

-v-

Between

THE FIRST SECRETARY OF STATEDefendant

FOREST HEATH DISTRICT COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR T JOHNSON (Solicitor of DAVIES ARNOLD COOPER) appeared for CLAIMANT

MR P COPPEL (instructed by THE TREASURY SOLICITOR) appeared for FIRST DEFENDANT

for THE SECOND DEFENDANT WAS NOT REPRESENTED AND DID NOT ATTEND

J U D G M E N T

(As approved by the Court)

[1]MR JUSTICE OUSELEY: This is an appeal under section 288 of the Town and Country Planning Act 1990 against the decision of the First Secretary of State given by his Inspector on 12th May 2003. By his decision the Inspector dismissed an appeal by the claimant against the refusal by the Forest Heath District Council to vary the terms of a planning permission which it had granted in April 1999 so as to remove one of the conditions imposed.

[2]In April 1999 the local planning authority granted planning permission for alterations to the stable yard range and associated living accommodation, including the provision of ground floor residential accommodation, a trainer's house, garden and other minor works. The range of stables adjoined a large house known as Green Lodge within the conservation area of Newmarket, a major characteristic of which is the townscape which relates to the historic and traditional horse racing industry in Newmarket.

[3]When permission was granted in 1999 a condition was imposed as follows:

"The residential accommodation hereby permitted together with Green Lodge and other staff accommodation, stabling and other facilities as indicated edged in red upon the submitted drawings shall be considered as a single planning unit and shall not be occupied or operated separately or independently at any time."

[4]The condition was imposed in order to safeguard the facilities and accommodation of the racehorse training yard.

[5]The stabling accommodation was in very poor condition or derelict and had been in that condition for many, many years. Likewise, Green Lodge, the adjacent property, had not been occupied for residential purposes for some 30 years and was very dilapidated. It was the intention of the claimant when he purchased Green Lodge and the stabling in 1998, or thereabouts, to carry out the refurbishment work to the stables for which he got permission in 1999, and to fund the carrying out of that work by the disposal of a refurbished Green Lodge.

[6]The tie which was introduced by the condition imposed by the local planning authority in April 1999 was, to him, a very considerable blow to the realisation in commercial terms of his plan. The house could no longer be sold to raise the money that was necessary.

[7]In evidence he sought to persuade the Inspector that the return from operating a 23-horsebox yard would simply not be sufficient by itself to finance the necessary refurbishment works to the lodge.

[8]The Council refused his application and when he appealed against that to the Secretary of State the matter was dealt with by written representations. The Inspector defined the main issues on the appeal as follows in paragraph 2 of the decision letter: "2. I consider that there are three main issues in this case. The first is the effect of removing condition 4 on the operation of the training establishment and the local horse racing industry. The second is the implications for the living conditions of future occupiers of Green Lodge in terms of noise and disturbance. The third is the effect of the proposal on the character or appearance of the Newmarket Conservation Area.

[9]He referred to two policies which have been of relevance to the appeal and upon which the local authority relied. In the Local Plan seeking to protect the status of Newmarket as the capital of the horse racing industry, and to protect the industry and the townscape which it has created, policy 12.4 says that the change of use of racehorse training establishments would not be permitted nor their operation permitted adversely to be affected. Policy 12.6 seeks to prevent the loss of residential accommodation used for the purposes of racehorse supervision and training activities.

[10]The Inspector concluded that the removal of the condition would sever the tie between the house and the training yard, but that if separation of the house from the yard could be satisfactorily achieved without intruding on the space of the yard, the operating efficiency of the yard would not be adversely affected. But he continued as follows in paragraph 12:

"Even so, the independent occupation of the principal house and its potential loss to an owner with no active interest in horse racing would to some extent diminish the stock of suitable accommodation available to the industry in Newmarket. In this respect I consider that the proposal would represent a loss of one type of accommodation and cause some harm to the local horse racing industry. It would thus be contrary to Local Plan policy 12.6. My conclusion on the first main issue is therefore that the balance is in favour of retaining the occupancy restriction on Green Lodge."

[11]However, his conclusion in relation to that first issue was not the end of the matter. He considered the question of noise and disturbance which would be experienced by an independent occupier of Green Lodge as a result of the activities of the training establishment, and he also considered the problems of car parking on the adjacent roads and the impact which alternative means of parking would have on the availability of training space. On this second main issue he concluded in paragraph 17:

"On the second main issue I conclude that the proposal would give rise to noise and disturbance associated with the proximity of the training activities which would harm the living conditions of future occupiers of Green Lodge."

[12]The third main issue was the effect on the conservation area. He concluded that, despite the air of neglect, Green Lodge made a positive contribution to the conservation area as an elegant Victorian residence with its own walled garden and conservatory. He concluded, however, for reasons which were at issue before me as follows:

"On the third main issue, having regard to my duty under the Planning (Listed Buildings and Conservation Areas) Act 1990, I conclude that the removal of condition 4 would have no material effect on the character and appearance of the conservation area. It would not therefore conflict with Structure Plan policy ENV1 and Local Plan policy 8.17 or PPG15."

[13]Having dealt with other considerations, the Inspector's overall conclusion was as follows in paragraph 25:

"My conclusion on the third issue favours the proposal. However, the effect of removing condition 4 on the operation of the training establishment and the local horse racing industry, and the implications for the living conditions of nearby occupiers, provide compelling reasons why planning permission should not be granted."

[14]Mr Johnson, on behalf of the complainant, has raised a number of issues where he contends that the Inspector has reached a conclusion erroneous in law. He says that the Inspector has failed to deal with the argument raised by the claimant that the condition did not reasonably relate to the permission upon which it was imposed. He contended that the Inspector had reached irrational conclusions in the way in which he had accepted that there were advantages from the proposal, but in the end concluded that it would represent a loss of one type of accommodation and would cause harm to the horse racing industry. He also submitted that the Inspector had given inadequate reasons or had ignored material considerations in the way in which he dealt with the viability or market evidence presented to him by the claimant. There were a number of other criticisms of the rationality of his approach to the effect of the removal of the tie on the occupiers of the yard or house. There were said to be errors of fact, proposed conditions overlooked, and decisions in other appeals which ought to have been considered by him explicitly. The Inspector had ignored the obvious benefits to the conservation area from the proposal.

[15]Taking those in turn, I deal first with the validity of the condition. It is unnecessary to rehearse the relevant legal background beyond saying that there is no dispute but that in order to be valid a condition must, amongst other matters, relate to the permission upon which it is imposed, (see Newbury District Council V Secretary of State for the Environment

[1981] AC 578

[16]There were written submissions provided to the Inspector as to why the condition did not relate to the refurbishment of the stable block. Those submissions, in short, contended that Green Lodge had a separate residential use and was not part of a larger unit with a different overall use which could be described as 'horse racing establishment'. Those submissions involved an examination of the history of occupation and ownership of Green Lodge and the stable block, and of the way in which, over the years, substantial parts of the stabling and other horse racing related facilities had been sold off. They referred to the absence of occupation of either the remaining stables or of Green Lodge itself for 30 years, or thereabouts.

[17]The local authority responded contesting the premise upon which that argument was based. Suffice it, for present purposes, to say that it relied, essentially, upon the reasoned decision letter which it had provided in June 2001 in response to the claimant's application for a certificate of lawful existing use in respect of Green Lodge, that lawful use being as an unrestricted residential dwelling within use class C3a of the Town and County Planning Use Classes Order 1987; that application was rejected. There was a detailed decision letter. That decision, which is an appealable decision, has not been appealed.

[18]The upshot of it was that the Council expressed the view that Green Lodge was not a separate planning unit with an existing C3 use in its own right. It was said to form part of a larger planning unit in mixed or composite use as a horse-training establishment, comprising: house, offices, yard, loose boxes and so on.

[19]Mr Johnson accepted that if the Council's analysis of the factual position was correct then the basis for his argument that the condition did not relate reasonably to the permission fell by the wayside. So the critical question on this issue was: did the Inspector consider and reach a conclusion on that matter? In paragraph 22 the Inspector said briefly:

"However, condition 4 is in my view relevant to the development permitted..."

[20]In paragraph 7 of the decision letter he explained a little further what he meant. He said, and I do not need to quote the whole of paragraph 7:

"I have noted the full information supplied by both the appellant and the council relating to the history of Green Lodge and the stables, though I do not consider the detailed background of early ownership to be particularly relevant to the future of the property. While I accept that Green Lodge was originally part of a much larger training complex, on the basis of the evidence available to me it does seem likely that the house has always had a connection with the rest of the training establishment. For this reason and because of the physical relationship between Green Lodge and the stables I consider that the council are justified in treating the appeal site as a single planning unit."

[21]It is clear, therefore, that the Inspector reached a conclusion on the issue which underlies the argument which Mr Johnson has addressed to me. The question really becomes this: in the light of extensive material deployed on both sides in front of the Inspector, has the Inspector given adequate reasons for the conclusion which he has reached that he accepts the Council's argument on the point? In my judgment, he has given adequate reasons. I say that because it is not a requirement that reasons be lengthy or that they decide every point at issue within a particular issue which he has to decide. If the claimant seeks to know more about the Inspector's thinking it is clear from the way in which he has expressed himself that he has accepted the reasoning contained in the Council's document and where it differs from the claimant's he has rejected the claimant's reasoning. That is, together with the other points which the Inspector refers to, a sufficient basis upon which he can reach the laconic conclusion, which he does, in paragraph 22.

[22]The second issue to which I turn is the question of whether the approach of the Inspector to the harm or benefit to the local horse racing industry is irrational. It is said by Mr Johnson that the Inspector had recognised, as indeed is the case, that there had been a high-quality refurbishment thus far and that there might well be a demand for small training units of this type and the project would probably provide a beneficial facility.

[23]It was then said that having reached that conclusion how could the Inspector conclude that there would be a loss to the local horse racing industry? The Inspector has, however, in my judgment, explained quite clearly why he has come to that view and it is not a view which can be regarded as irrational. He has referred to the location of the lodge and stables within Newmarket. He described it as strategically significant. He said that the separation of stables from the lodge would limit the attractiveness "of the whole property to certain sectors of the market". It would be unlikely that a combined use would be reinstated in the future. He thought that Green Lodge could be occupied by an owner employing a trainer at the yard. He concluded that independent occupation of the principal house and its potential loss to an owner with no active interest in horseracing would, to some extent, diminish the stock of suitable accommodation. This would cause some harm to the industry contrary to local plan policy 12.6.

[24]It is, in my judgment, a matter where the Inspector is entitled to say, with that policy background, that there an the overriding requirement that the lodge and the stables should remain part of one unit and that if they were not, there would be some harm. It involves no more than a legitimate and rational planning judgment by him that the benefits which he had identified to the industry were not as significant as the disadvantages, with the policy backing which they had, which would flow from the separation of lodge and stables.

[25]Mr Johnson, thirdly, advanced a related argument. It is plain that the premise for the Inspector's conclusion that there would be some harm to the local horse racing industry was that there was some realistic prospect that somebody would buy Green Lodge and use Green Lodge as accommodation whilst operating or supervising the operation of horse racing activities in the stables and yard. If that had not been his conclusion, then it is irrational for him to have refused permission for the tie to be released.

[26]The argument of Mr Johnson was that he had ignored relevant evidence in dealing with that issue. There were two facets to the argument put forward by the claimant in relation to market and viability matters, although it is fair to say that the distinction between them was not, and perhaps could not, always be drawn with a clear dividing line.

[27]The first aspect in relation to the claimant's case was that the claimant himself was unable to afford to proceed with the project in the light of the impact which the tie had on the raising of funds for the refurbishment. He pointed out that the income generated from 23 boxes could not support the costs of restoring, maintaining and occupying Green Lodge. That was why the claimant sought to dispose of it as an independent dwelling in order to fund the restoration of the stables. The Inspector said that he was fully aware of the claimant's concern about the economics of the training project. Having said that, he then said, at the end of paragraph 9:

"However, I am not aware of all the financial details of this scheme and I note that the approval granted under [the 1999 permission] is not in any case personal to the appellant."

[28]It is clear that the Inspector is there reaching a conclusion which, at least, and it is for debate how much more, is a conclusion in relation to that component of the viability argument, which depended upon the claimant's particular way of financing the project. He was, in my judgment, entitled to say, in the light of the evidence which he had on that issue, in effect, that he was not satisfied that the personal and particular financial details of the scheme were sufficient to make out the claimant's case, at least so far as his own project was concerned. But the Inspector in the comment which I have quoted was, in effect, then saying that it does not follow by any manner of means that the only way in which the refurbishment and occupation of Green Lodge can come about is through the ownership and endeavours of the claimant. The property could be sold with the benefit of the 1999 permission and, of course, its restrictions.

[29]As I have said, there was a second linked strand to the claimant's submissions. This strand is related not so much to what he, the claimant, would be able to do, but to whether there were potentially interested buyers of the accommodation who would also be interested in operating the stables, in view of, as he was essentially contending, the disparity in size between the house, which was a substantial house, and the number of boxes, which was, in effect, a small training unit. It is not necessary for me to cite all that the claimant put forward in relation to that because Mr Coppel has accepted, on behalf of the First Secretary of State, that the issue, in that way, was raised by the claimant for the Inspector's consideration.

[30]The interlinking of the two strands of the argument can, however, be seen from the written submissions to the Inspector on page 111 of the bundle. The claimant refers to the fact that the property had remained unsold and unoccupied for some 30 years precisely because trainers and would-be purchasers recognised the economic non-viability of proceeding with the purchase and running a training operation from the premises as they had been left. The claimant then pointed out that the problems which he experienced in terms of cost, return and raising money would be the problems that any potential occupier would face in considering purchasing and training from the whole complex. He took the historic costs which he had paid and the income generated from the fees and pointed out that nobody had come forward prepared to invest that sum in the property; he made the point that no other yard existed in Newmarket, saddled with such a configuration of substantial non-income-producing buildings with an economically low level of income-producing training facilities. There is more in a similar vein, but it is unnecessary to refer to it. That is perhaps the strongest way in which the point is raised.

[31]At this juncture I pause to refer to one of the decisions of other Inspectors in relation to accommodation and stables in Newmarket upon which the claimant relied in his written representations and to which substantial reference has been made by Mr Johnson before me. I refer to it because it was said that some support could be gained for the claimant's contentions from the evidence accepted in that case by the Inspector. The Inspector pointed out in relation to a very much more substantial property, however, that the evidence of an expert witness on behalf of the appellant had been that: " ... only about 17 people in the horse racing world who would be wealthy enough and with a need for some 20-40 horses in training who would be likely to show an interest in Sefton Lodge. It is also by no means certain that the accommodation ... would suit [them anyway]".

[32]The Inspector there concluded that it would be unreasonable to insist that the large house be kept underused and available in the expectation that a wealthy horse racing owner would find it suitable at some future time.

[33]I point out that, notwithstanding those conclusions, the Inspector in that case, nonetheless, had concluded that the loss of the principal house to an owner with no active interest in horse racing, " ... would to some extent diminish the stock of accommodation available to the horse racing industry in the town as a whole." But he did not think that a sufficient basis in that case to refuse permission.

[34]There was no significant alternative evidence on this issue provided by the Council. Mr Coppel, for the First Secretary of State, submits that in reality the Inspector, in the brief extract to which I have made reference, has provided a conclusion reflected in other comments which he makes which simply are the consequence of his not being satisfied with the evidence in relation to marketability provided by the claimant.

[35]The question is not an entirely straightforward one because it is an important issue and it underlies the conclusion on a major issue in the whole case. But I have come to the conclusion that although the reasoning expressed is short, it is legitimate for the Inspector to take the view, as I consider he does, that he is simply not satisfied by the evidence which has been produced that the marketability and viability, interrelated as they are, mean that there is no realistic prospect of a buyer with some interest in training or operating from the site; that is the essential issue.

[36]There was some evidence that if the stables were to be funded in a particular way, and the refurbishment of the house were also to be funded in the same way, that is from the disposal separately of Green Lodge that there would be difficulties in such a manner of proceeding; this the Inspector plainly recognised. It is also clear that there was a very strong relationship between the concerns raised by the claimant as to how he would finance matters and the way in which he envisaged anybody else financing matters.

[37]However, the Inspector is entitled to take the view, and it is encapsulated, albeit in somewhat short form, in the last part of his comment which I have quoted about the permission not being personal, that others might approach matters in a different way. After all, brutal though it may be to say it, the historic cost in 1998 is not necessarily the cost from which one should proceed when looking at the prospect of a purchaser, and the Inspector is not obliged to take the view that it is. Likewise, it is not necessary to suppose that all the costs of the refurbishment have to come from a commercial enterprise or a disposal of the property, Green Lodge. Some people might purchase Green Lodge as a dwelling to refurbish.

[38]The problem with the evidence which was put forward by the claimant, in respect of which the Inspector in his laconic comment was entitled to express doubt, was that there was no evidence as to market price, cost of refurbishment and the extent of the market; it was very much a market viability exercise expressed in terms of the particular approach which the claimant had adopted and about which the Inspector had reservations.

[39]I appreciate that there was the evidence of a lack of sale over the years, but if Mr Ranson, the claimant, had wished this Inspector to proceed along the lines which were persuasive in the Sefton House case, then it would have been open to him to call expert evidence related to this particular property.

[40]I regard the Inspector's conclusion as short, but it is, in the circumstances, not one in which I can say that he has given inadequate reasons for his decision. I do not think the whole approach in the letter shows that he has ignored the concerns that were raised.

[41]I next turn to the question of the effect on occupiers. There is a contention by Mr Johnson that the approach of the Inspector was irrational. The Inspector considers the relationship between the windows and elevation of the dwelling and the main yard. He describes it in paragraph 13 as follows:

"However, in the case of Green Lodge the house directly abuts the training yard and its eastern and northern walls form the boundary of the yard. Indeed it seems probable that the house was specifically designed to overlook the yard in a supervisory manner. I note the appellant's acceptance that if noise were thought to be a sensitive issue double or triple glazing would be a possibility."

[42]He agreed that Green Lodge had its own curtilage and a definite boundary with the rest of the property, but he also concluded that the noise and disturbance inevitably associated with the operation of a training yard would require consideration of some adjustments to the configuration of a dwelling if it were to be independently operated.

[43]He also considered noise disturbance and inconvenience from car parking. He pointed out that there was no other independent access to the property other than along what he called The Severals. The Severals in the vicinity of Green Lodge had, according to his conclusion, a mix of vehicles and other users which could cause inconvenience and disturbance "to the occupiers of an unrelated private dwelling." In my judgment, the Inspector is fully entitled, having been to and seen the site, to reach that conclusion and it is an understandable conclusion that horse racing related activities and problems with parking could give rise to inconvenience and disturbance to those who had no relation to it.

[44]He then considered that if there were to be parking inside the yard for Green Lodge, there would be no separation of the yard's operation activities from the training activity which, by implication, would be damaging to the yard. In the light of those conclusions the Inspector's conclusion in paragraph 17, which I have cited, is not one which, on the face of it, is irrational.

[45]I raised a point with Mr Coppel as to whether or not it could properly be said that it was irrational to find that noise and disturbance would harm the living conditions of future occupiers of Green Lodge differently, as the Inspector implicitly must have concluded, as between those who occupy the house as independent accommodation and those who occupy the house whilst supervising or having connection with the training activities in the yard. Might not both sets of occupiers desire to protect the house in terms of noise, in terms of car parking and so on?

[46]Mr Coppel persuaded me that the concerns in relation to either car parking or noise which might otherwise lead to an adverse interaction between the uses with possibilities of nuisance proceedings really all stemmed from the same point, that is to say if the yard and house are occupied as a single unit there will be control by the occupier of the house over the activities in the yard whether as to hours, degree, noise, type, smell and so on. In the light of that, I consider that the Inspector is drawing a distinction which cannot be stigmatised as irrational. It plainly is an unspoken assumption, but I do not accept Mr Johnson's submission that all unspoken assumptions are illegitimate and require to be made explicit.

[47]The Inspector was also concerned about the conservation area. If there had to be subsequent physical separation which was an issue in relation to which he foresaw some degree of risk, there would have been, in his judgment, an adverse effect upon the integrity of the group of buildings as a whole in the context of the conservation area.

[48]Mr Johnson drew attention to a number of decisions at various stages. I have already referred briefly to Sefton Lodge, but he drew my attention to the decision in respect of Warren Hill Stud upon which some weight had been placed before the Inspector as to the way in which the interaction between dwelling accommodation and equine activities could be satisfactorily managed. The Inspector considers that decision at some length and he comes to a view that the position at Warren Park was significantly different from the position with which he was dealing by virtue of the close juxtaposition of Green Lodge and its stables. He was, obviously, entitled to come to that conclusion as a matter of his planning judgment.

[49]It was said in relation to paragraph 16 that the Inspector had made a clear and fundamental error of fact when he had spoken of the car parking for Green Lodge having to be along the Severals or nearby roads and then in describing the Severals as forming part of a horse-walk system and being fairly wide near to Green Lodge. Mr Johnson's point was that the Severals was a much larger open area and was not confined to the access road with the horse-walk area now marked off by pillar and rope.

[50]The Inspector may or may not have the nomenclature precisely right, but that is beside the point. It is perfectly clear which area of land he is talking about in this context. He is talking about the road and the horse-walk system. It does not matter for these purposes how much more of the Severals exists because his point relates exclusively to that part of the Severals, or that area whether it is the Severals or not, which is identifiably the access road with the horse-walking area. It is there that there is, in his view, a risk of a mix of vehicles and other uses, whether they are jockey's vehicles, trainer's vehicles or anybody else's vehicles including those who might be parking in order to access Green Lodge or the training activities.

[51]The next point that I deal with is the conservation area argument. Mr Johnson submits that it was irrational for the Inspector to conclude that the impact on the conservation area of the removal of condition 4 would merely be neutral. The only rational conclusion to which he could have come was that it favoured the proposal, which is what the Inspector actually says in paragraph 25. But the basis upon which his conclusion, that it would have no material effect in terms of the conservation area, was attacked was that it was obvious that the refurbishment of Green Lodge, a significant Victorian property in a strategic location in the conservation area, would do more than just preserve the conservation area; it would positively enhance it.

[52]The Inspector, in my judgment, was entitled to come to the view that he did. He refers to the Lodge in language which I have already referred to as making, that is now making, a positive contribution to the conservation area. He identifies a possible risk to the integrity of the group if there is subsequent physical separation works between the lodge and the stable, and he is also unclear as to whether the separation of the stables from the Lodge would increase the prospects of the Lodge being refurbished. He considers that the difficulties associated with the independent occupation of the dwelling could increase the risk of the loss of the yard in the long term.

[53]So there are a number of factors which go into the balance, which support the conclusion or at least show it not to be irrational, that there would be no material effect, although, as I say, in fact, in paragraph 25 of his decision the Inspector appears to have been more positive than hitherto.

[54]Mr Johnson complained that the Inspector had failed to take into account a number of possible conditions as a solution to the problems which he identified. The conditions might have controlled: the form of any refurbishment to the lodge; the design of a wall; or ensured that the yard refurbishment proceeded if the house were to be released from its tie. It is true that the Inspector makes no identifiable reference to those points. But, in my judgment, he did not need to for this reason: the conditions did not bite on the problems he had identified. The question of the refurbishment or reconfiguration of Green Lodge in consequence of the removal of the tie was not the problem. It is not a question of the aesthetics or design of them, it was a question of the fact that they might have to be done and might mean that people who did not want to do them, would face a problem living there without them. Similarly, the problem with the wall was not how nice a wall it would be, but the fact that it would be a wall. Again the Inspector did not do down the claimant on the basis that he had doubts about whether the refurbishment of the stables would proceed if there were to be a release of the tie.

[55]Finally, Mr Johnson complained about the way in which the Inspector had dealt with, or rather not dealt with, three decision letters upon which the claimant had relied. He said that they all fell within the terms of the judgment of the Court of Appeal in North Wiltshire District Council V Secretary of State for the Environment and Clover [1993] 65 PNCR 137 at page 145. Mann LJ referred to the importance of consistency, but also the fact that the Inspector had to be free to exercise his own judgment. Cases, if they were to be decided alike, had to be alike in fact and not distinguishable in some relevant respect. Where it was indistinguishable then ordinarily it would be a material consideration and the Inspector would have to ask whether he was agreeing with it or disagreeing with it if he decided his case in a particular way.

[56]We have gone through the cases in some detail. So far as Warren Hill is concerned I am entirely satisfied that the Inspector in paragraph 15 reached a conclusion in relation to its relevance which he was entirely entitled to reach and that really was the point in it.

[57]There was a discussion in that case over whether the functional link between the house and the stud farm there had been maintained and whether there was or was not one planning unit. There was a conclusion that they were not any longer one planning unit. That issue was discussed in Sefton Lodge and a different view was reached. But on the particular point which appears to be of relevance in Warren Hill the Inspector has dealt with it.

[58]So far as Sefton Lodge is concerned the question of the viability of a particular use and whether or not it would come about if permission were not granted, again depends very much on the circumstances of each case. I have already referred to the evidence given in that case about the likelihood of an interest being shown in Sefton Lodge where the Inspector reached a conclusion in relation to that accommodation suggesting that the market was very small. Nonetheless, the Inspector also concluded, in a passage upon which Mr Johnson understandably does not rely, that there would be a loss to the horse racing industry in the town as a whole through the diminution of the stock of accommodation available to it. The question of whether that was or was not sufficient to lead to the grant of permission is a matter peculiarly for examination in each case.

[59]Sefton House was also relied on in relation to the interaction between the amenities of occupiers of the lodge and the training facilities. This depends peculiarly upon the configuration and proximity of the various uses. The Inspector here at least considered that issue.

[60]Finally, the problem in the Beverly Lodge case was a very different one from the one at issue here. They were looking at the tie between the stable block and its immediate dwelling, that is the one provided for it, rather than the relationship between that and the big house, Beverly House, where there had been no tie. The only point of value was the doubt expressed by the Inspector over whether there would be a residential use in conjunction with the training facility of Beverly House, but no conclusion was reached and, as I say, each case depends on its merits.

[61]Having considered all those matters I have come to the conclusion that none of them succeed and, accordingly, this application is dismissed.

[62]MR COPPEL: I am grateful, my Lord, and in those circumstances I would ask for an order that the claimant pay the defendant the Secretary of State's costs. Your Lordship should have before you in fact two statements of costs, one from the Secretary of State and one from my learned friend. The figures have not as yet been agreed, I do not know whether my learned friend is going to dispute them.

MR JUSTICE OUSELEY: Mr Johnson?

[64]MR JOHNSON: My Lord, yes. The only dispute is in relation to page 2 of the Secretary of State's costs.

MR JUSTICE OUSELEY: I am not sure I have those.

[66]MR COPPEL: My Lord, may I hand them?

MR JUSTICE OUSELEY: Thank you. (Handed)

[68]MR JOHNSON: Page 2, as I said, my Lord.

MR JUSTICE OUSELEY: Yes.

[70]MR JOHNSON: And the part "work done on documents".

MR JUSTICE OUSELEY: Where am I looking at? Yes, "work done on documents".

[72]MR JOHNSON: The point is simple and short on this with regard to the fact, on the basis that all the documentation was prepared by the claimant, that the amount of time spent on this would seem to us to be too long.

MR JUSTICE OUSELEY: Yes, what do you say to that, Mr Coppel? It is 21 hours plus.

[74]MR COPPEL: Well, my Lord, this is always the case in section 288 appeals involving the Secretary of State. The Secretary of State, of course, when the papers come from him, or his officers and the Treasury Solicitor knows absolutely nothing in relation to the matter and what is generally required of those instructing me is that they look at the matter and see whether the matter is proper to defend; that plainly takes time for them to do it properly. A minute is prepared to see whether or not it should be defended and it has to be considered, as I say, from scratch. My learned friend, of course, has the advantage, when it comes to a 288, that they have presented the matter before the planning inspector so they are perfectly familiar with the matter, so they do not have to get up to speed. That is why we always see on "work done on documents" by the Treasury Solicitor in a 288 appeal a significant number of hours, I accept, but that is simply because they come to this matter completely new. They do have to consider whether the matter is worthy of defence. Now sometimes they decide that it is not; sometimes they decide that it is. But either way it takes time and it is time well spent, if I may say so.

[75]MR JUSTICE OUSELEY: Yes. What was your time, Mr Johnson?

[76]MR JOHNSON: 23 hours -- 24 hours and 40 minutes.

[77]MR JUSTICE OUSELEY: Well, I see what you say, but I think that you seem to have taken about the same time. Order for costs in favour of the Secretary of State, £6,625.

[78]MR COPPEL: I am grateful, my Lord. Thank you very much.