Holding v First Secretary of State [2003] EWHC 3138 (Admin)

Case No CO/3449/2003[2003] EWHC 3138 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 9th December 2003
Strand
London WC2
B E F O R E:
MR JUSTICE HARRISON
Between
HOLDINGAppellant-v-
Between
FIRST SECRETARY OF STATERespondent
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J HOWELL QC & MR K LEIGH (instructed by Jennings Son & Ash) appeared for CLAIMANTMS N LIEVEN (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T(As approved by the Court)
Crown copyright©Tuesday, 9th December 2003

MR JUSTICE HARRISON: Background

[2]This is an appeal under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against decisions of an inspector appointed by the first respondent, the First Secretary of State, contained in a letter dated 24th June 2003 relating to some enforcement notices that had been issued by the second respondent, Thurrock Borough Council, relating to the appellant's land at King's Farm, Parkers Farm Road, Orsett in Essex.[3]That property includes a large three storey house and gardens, various outbuildings and an adjoining airfield with a grassed runway. The appellant is the owner of four aircraft. The outbuildings include a barn in which one of the aircraft is kept, and a hanger in which the other three aircraft are kept. The hanger housing the three aircraft is the subject of two of the enforcement notices. Put shortly, the issue is whether the provision of the hanger is required for a purpose incidental to the enjoyment of the dwelling house as such.[4]It is, however, necessary first of all to explain briefly the history of the matter to explain the context in which that issue arose. On 15th July 1999 the second respondent served two enforcement notices on the appellant. The breach of planning control alleged in Notice 1 was a material change in use of the land from domestic use and agricultural use to domestic use and use as an airfield and for the storage of aircraft.[5]The breach of planning control alleged in Notice 2 was the laying of a hardstanding and concrete base and the erection of a metal framed building on the concrete base. That was the building which I have referred to as the hanger.[6]The appellant appealed against those enforcement notices. The inspector hearing that appeal allowed the appeal against Notice 1 under section 174(2)(d) of the 1990 Act on the ground that the use of the airfield had existed in materially the same way for the previous ten years. He also allowed the appeal against Notice 2, which he quashed and granted conditional planning permission for the works to which it related. The second respondent appealed to the High Court against those decisions, the appeal relating to Notice 1 being under section 289 of the 1990 Act and the appeal relating to Notice 2 being under section 288 of the Act. Both appeals were allowed by Newman J, and the Court of Appeal upheld his decisions.[7]Notice 1 was remitted to the first respondent for re-hearing and determination. The Inspector's decision to quash Notice 2 could not be challenged under section 288, and the second respondent did not exercise its right to challenge that decision under section 289, so Notice 2 remained quashed and of no effect. All that remained to be dealt with in relation to Notice 2 was the application for planning permission deemed to have been made under section 177(5) of the 1990 Act. As a result, the second respondent issued a further enforcement notice, Notice 3, on 10th March 2003 relating to the hanger and its hardstanding against which the appellant appealed.[8]A second public inquiry was held by a different inspector, Mr Norman, to re-hear the appeal relating to Notice 1, to determine the deemed planning application for the hanger and hardstanding in respect of Notice 2 and the appeal against Notice 3 relating to the hanger and the hardstanding.[9]The inspector allowed the appellant's appeal in respect of Notice 1 under section 174(2)(d) of the 1990 Act on the ground that the making of a material change in the use of the land to a mixed use for residential purposes and an airfield occurred more than ten years ago and was thus immune against enforcement action. There is no challenge to the inspector's decision relating to Notice 1. It is to be noted, though, that, in dealing with the appeal against Notice 1, the inspector had to consider in some detail the three components of the use of the airfield, which consisted of flying by the appellant, his family and friends for pleasure and business purposes; flying by others and the storage of their aircraft; and aircraft maintenance, sales and leasing.[10]Subject to a variation of the time for compliance with the notice, the Inspector dismissed the appellant's appeal against Notice 3, and he refused to grant planning permission for the applications deemed to have been made under section 177(5) of the 1990 Act in respect of Notices 2 and 3, both of which related to the hanger and hardstanding.[11]One of the grounds of appeal against Notice 3 had been under section 174(2)(c) of the 1990 Act, namely that there was not a breach of planning control. That involved consideration of whether the hanger and hardstanding were permitted development under Schedule 2, Part I, Class E and Class F respectively of the Town and Country Planning (General Permitted Development) Order 1995 ("the GDO"). A similar question arose on the deemed planning applications in respect of Notices 2 and 3 under the appellant's "fallback" argument, namely that, if planning permission were refused for the retention of the hanger, the appellant could and would relocate it within the curtilage of the dwelling house as permitted development under the GDO where its adverse effect on the openness of the Green Belt would be greater.[12]Thus it was that the inspector came to consider whether the hanger and hardstanding would be permitted development under the GDO when dealing with both Notices 2 and 3. Before I deal with the inspector's conclusions on that aspect, I should first refer to the relevant statutory provisions. Statutory provisions[13]Under section 57 of the 1990 Act, planning permission is required for the carrying out of any development of land. Section 55(1) defines development as being the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land. Section 55(2) specifies certain operations or uses of land which shall not be taken to involve development of land. Section 55(2)(d) specifies: "the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such".[14]Under paragraph 3 of the GDO, planning permission is granted for the classes of development described as permitted development in Schedule 2 of the Order. Two of those classes are Class E and Class F.[15]Class E describes as permitted development:
"The provision within the curtilage of a dwellinghouse of any building ... required for a purpose incidental to the enjoyment of the dwellinghouse as such ... "
Class E then contains certain limitations on the permitted development. For instance, the building would not be permitted development if it would be within 5 metres of the dwelling house, if its height exceeded certain limits or if the total ground area covered by buildings within the curtilage, other than the dwelling house, would exceed 50 per cent of the total area of the curtilage.[16]Class F describes as permitted development: "The provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse as such".[17]As the test is similar for Class E and Class F, I concentrate only, as the inspector did, on Class E relating to the hanger. In fact, the inspector found that the hanger and hardstanding were outside the curtilage of the dwelling house so that the appellant's appeal under section 174(2)(c) in respect of Notice 2 failed as it could not therefore be permitted development under the GDO. However, the inspector went on to consider the question whether the hanger would be permitted development if it were within the curtilage of the dwelling house because that was relevant to the appellant's fallback argument in respect of the deemed planning applications under section 177(5) relating to Notices 2 and 3. The issue, therefore, was whether the provision of the hanger within the curtilage of the dwelling house was required for a purpose incidental to the enjoyment of the dwelling house as such.[18]I turn next to the inspector's decision letter to see how he dealt with that issue. Inspector's decision letter[19]Before coming to that issue, the inspector first dealt with the relevant background between paragraphs 10 to 17 of the decision letter, noting in paragraph 12 that the house was a large and imposing property on three floors with five bedrooms. He then dealt with the appeal against Notice 1 between paragraphs 18 to 43 of the decision letter. As I have already mentioned, that involved consideration of the three components of the use of the airfield, one of which was flying by the appellant, his family and friends for pleasure and business purposes. The inspector described that use in paragraph 21 as follows:
"Mr Holding owns four planes which are kept in the barn and in the hanger the subject of Notice 3. He uses them to fly to and from his other homes in Florida and Guernsey and for business trips to his companies' sites at Bedford and Nottingham and on Teesside. They are also used for pleasure flights. It was explained that the appellant uses aircraft in much the same way as other people use cars - for a mixture of social, domestic, leisure and business-related uses, although for accounting purposes all his flying is treated as a business expense. One of the planes is also used for banner-towing, mainly for the appellant's own business or for charitable purposes rather than as a commercial venture. It appears that planes are also used in connection with corporate hospitality functions, either for transport to and from King's Farm or for sightseeing flights. Most of the evidence on this element of the use relates to an earlier period but I have no reason to doubt that it continues."
[20]In considering, in connection with the appeal against Notice 1, whether the use of the airfield in 1989 was materially different from that in 1999, the inspector stated at paragraph 34:
"... In my view the evidence shows that the personal element of the flying use, by which I mean flying by the appellant, his family and personal friends for pleasure and on business trips, and other business flying connected with the appellant's companies, is much the same now as it was in 1989. In planning terms I consider that it is and was a use ancillary or incidental to the appellant's use of the property for residential purposes, and not sufficient in itself to justify a conclusion that the land has a mixed use."
[21]The conclusion of the inspector in the last sentence of paragraph 34 that the appellant's personal element of the flying use is and was a use ancillary or incidental to the appellant's use of the property for residential purposes was relied upon in argument on behalf of the appellant in relation to the inspector's conclusion in respect of Notices 2 and 3 that the hanger to accommodate three of the appellant's aircraft was not required for a purpose incidental to the enjoyment of the dwelling house as such.[22]The inspector came to deal with the appeal relating to Notice 3 between paragraphs 44 to 64 of the decision letter. He noted in paragraph 45 that part of the barn was used as a hanger for the appellant's twin-engined plane used for trans-Atlantic flights. Although that plane was in regular use, he noted that the ambience of the building was that of a museum or display area rather than a working hanger and that that character was even more pronounced in the hanger which is the subject of Notice 3 where the other three planes are kept. Part of that building was furnished as a comfortable lounge area with fully-glazed sides facing south over the garden and east towards the Langdon Hills. There was no dispute that the size and height of the hanger did not contravene the limitations set out in Class E of the GDO.[23]The inspector dealt with the issue whether the hanger was required for a purpose incidental to the enjoyment of the dwelling house as such in paragraphs 53 to 55 of the decision letter. They are important paragraphs so I set them out in full:
"53. Part of the Notice building is furnished as a lounge, it includes a number of cabinets containing trophies and other memorabilia and, with its glass sides overlooking the garden and the countryside beyond, it has something of the feel of a very spacious conservatory. The inquiry heard that the appellant intends to install a snooker table. However the primary use and purpose of the building is to provide secure, covered storage for three of Mr Holding's four private planes, the other being kept in the barn. I accept that he uses these aircraft for transport, much as other people use cars, but it became quite clear to me in listening to his evidence that planes mean far more to him than a mode of transport. He has been involved in flying since the 1960s, when he belonged to the Herts & Essex Aero Club, and qualified as a pilot in 1970. He told the inquiry that he considers his aircraft in the same vein as the exotic or ancient cars which some people collect, and described his use of the hanger (the Notice building) as 'a bit like an enthusiast who keeps a car or motorbike in his garage and works on it as well as spending time in his garage on other things or socialising with like-minded enthusiasts and interested people'. 54. Many people have hobbies for which they need space in and around their home, and it is reasonable to suppose that the purpose of the permission granted under Class E is to allow for such accommodation to be provided without the need for the trouble and formality of a planning application. However the Courts have held that what is a purpose incidental to the enjoyment of a dwellinghouse, and what buildings are reasonably required for such a purpose, are not matters which depend on the unrestrained whim of the occupier (Croydon LBC v Gladden: Document 20). The authorities were reviewed by the Court of Appeal in Harrods Limited v The Secretary of State for the Environment, Transport and The Regions and the Royal Borough of Kensington and Chelsea [2002] JPL 1258, to which I was referred. That case was concerned with the slightly different point as to what might be considered incidental to a retail use, but it was held that the correct approach was not to concentrate on what was incidental to a particular shop (Harrods) bearing in mind its particular mode of operation, but to see what activities are reasonably incidental to shops in general. In my view that approach is equally valid in the residential context. 55. Few people own private aircraft, and even fewer are in a position to keep a plane within their curtilage at home. The keeping of planes is therefore not normally incidental to houses in general. I accept that what is abnormal is not necessarily unreasonable, and that in some circumstances a building capable of holding an aeroplane may reasonably be required for the provision of personal transport - a purpose incidental to a dwelling. In the case of King's Farm the barn is such a building and the Council do not seek its removal. But the provision of a further large building, with associated hardstanding, to accommodate three more aircraft seems to me as a matter of fact and degree to go beyond what, on any objective test of reasonableness, could be considered incidental to the enjoyment of the dwellinghouse as such."
Submissions[24]That conclusion of the inspector is challenged by Mr Howell QC on behalf of the appellant on five grounds. Firstly, it is said that the inspector erred in law by applying the test of whether an activity is one that is reasonably incidental to the enjoyment of dwelling houses generally, rather than incidental to the enjoyment of this particular dwelling house.[25]Secondly, it is said that the inspector's conclusion in paragraph 55 is inconsistent with his conclusion in paragraph 34, which I quoted earlier.[26]Thirdly, it is said that the inspector failed to give reasons for his conclusion in the last sentence of paragraph 55 of the decision letter, in particular that he failed to take into account such matters as the size of the dwelling house and its curtilage, its proximity to an airfield, the appellant's explanation why there were four aircraft to be accommodated, and the opportunity to accommodate visitors' aircraft.[27]Fourthly, it is said that the inspector failed to consider what aircraft accommodation was required in connection with the appellant's hobby.[28]Fifthly, it is said that the inspector misdirected himself by referring to what was "reasonably required" for a purpose incidental to the enjoyment of the dwelling house as such, as opposed to what could "reasonably be regarded as required" for such a purpose.[29]Ms Lieven, in dealing with those five grounds of challenge on behalf of the respondent, submitted, firstly, that on a true reading of paragraph 55 of the decision letter, the inspector had based his decision on whether the building was required for a purpose incidental to the enjoyment of this particular dwelling house as such, not dwelling houses in general.[30]Secondly, she submitted that paragraphs 34 and 55 of the decision letter were not inconsistent because paragraph 34 was dealing with whether the level of flying by the appellant constituted a material change in use, whereas paragraph 55 was dealing with the erection of a hanger to accommodate three of the appellant's four aircraft. She suggested, in effect, that the level of the appellant's flying may have been low, whereas the size of the required accommodation was large.[31]Thirdly, she submitted that it was important to read the decision letter as a whole and not to treat paragraphs 53 to 55 as a self contained decision. Earlier paragraphs of the decision letter had referred to such matters as the size of the dwelling house, its proximity to an airfield, the reason for four aircraft to be accommodated and the use by visitors. The inspector had not therefore failed to take those matters into account.[32]Fourthly, she submitted that the inspector had not failed to take account of aircraft accommodation required for the appellant's hobby. He had referred in paragraph 53 to aircraft as a means of transport and as a hobby, and he had made further reference to the provision of accommodation required for a hobby in paragraph 54. It was submitted that, once one appreciated the structure of paragraphs 53 to 55, it was clear that the conclusion in paragraph 55 was intended to embrace accommodation required for aircraft both as a means of transport and as a hobby.[33]Finally, it was submitted that the inspector correctly applied an objective test, as was clear from the last sentence of paragraph 55, which was in accordance with the decided cases.[34]It is therefore appropriate at this stage to refer to the authorities which were relied upon by both sides. Case law[35]The case of Emin v Secretary of State for the Environment [1989] JPL 909, which was decided by Sir Graham Eyre QC sitting as a Deputy High Court judge, concerned the erection of two buildings within the curtilage of a dwelling house for use as a pottery, utility room and games/garden room for use for archery and billiards. The question was whether the buildings, which were substantial, were "required for a purpose incidental to the enjoyment of the dwelling house as such" within the meaning of Class 1.3 of the General Development Order 1977, which was the predecessor of Class E of the 1995 GDO. It was decided that indoor archery, although unusual, was capable of being incidental to the enjoyment of the dwelling house. Mr Howell contended that having four aircraft may be unusual, but that it is similarly capable of coming within that criterion. It was held in that case that the nature and scale of the activity are important and that the physical size of the building can be an important but not conclusive consideration. Finally, the concept of an objective test of reasonableness was introduced in the following passage, which was subsequently approved by the Court of Appeal in another case:
"The fact that such a building had to be required for a purpose associated with the enjoyment of a dwelling-house could not rest solely on the unrestrained whim of him who dwelt there but connoted some sense of reasonableness in all the circumstances of the particular case. That was not to say that the arbiter could impose some hard objective test so as to frustrate the reasonable aspirations of a particular owner or occupier so long as they were sensibly related to enjoyment of the dwelling."
[36]That passage was approved by the Court of Appeal in Wallington v Secretary of State for Wales [1991] 1 PLR 87, which was a case where an enforcement notice was served on the appellant alleging a material change of use of her dwelling house by keeping 44 dogs. The issue was whether the keeping of the dogs as a hobby was incidental to the enjoyment of the dwelling house within the meaning of section 22(2)(d) of the Town and Country Planning Act 1970, which was the predecessor of section 55(2)(d) of the 1990 Act. Slade LJ said at page 93H:
"The formula makes it necessary to consider whether the relevant purpose is incidental to the enjoyment of 'the dwellinghouse' (i.e. the particular dwellinghouse in question) as such, not any dwellinghouse."
Both Mr Howell and Ms Lieven accept that that is the correct test in the present case. However, Slade LJ made it clear that the inspector was also perfectly entitled to have regard to what people normally do in dwelling houses to decide whether, as a matter of fact and degree, the keeping of the appellant's 44 dogs should reasonably be regarded as incidental to the enjoyment of her dwelling house as a dwelling house. Farquharson LJ agreed with that way of expressing the objective test. He also made the point that it was sensible to consider what would be a normal use of a dwelling house, although that was not determinative. He agreed that it came down to a question of fact and degree in any particular case and stated that, amongst the matters to which it was necessary to have regard, were where the dwelling house was located, the size of the dwelling house and its curtilage, the nature and scale of the activity, and the disposition and character of the owner. He said that the view of the occupier as to whether or not the activity was incidental was something to which regard should be paid although it was not in any sense conclusive.[37]In the case of Croydon London Borough Council v Gladden [1994] 1 PLR 2, which was referred to by the inspector in this case and which was a case under section 55(2)(d) of the 1990 Act, the Court of Appeal not surprisingly held that a large replica Spitfire in a small suburban garden of a semi-detached house, put there to tease the local planning authority, was not incidental to the enjoyment of the dwelling house. The court referred to the judgment of Farquharson LJ in the Wallington case as holding that the concept of what is incidental to the enjoyment of the dwelling house as such involved an element of objective reasonableness and that it could not rest solely on the unrestrained whim of the occupier of the dwelling house.[38]Finally, I refer to the case of Harrods Limited v Secretary of State for the Environment, Transport and the Regions and the Royal Borough of Kensington and Chelsea [2002] EWCA Civ 412, another case which was referred to by the inspector in this case, which concerned the question whether the use of the roof of the Harrods store for landing a helicopter involved a material change of use. At paragraph 22 of his judgment, Schiemann LJ said that it was not appropriate to concentrate on what was incidental to that particular shop, given the way it was run and given its needs. The right approach was to see what shops in general have as reasonably incidental activities. That was, no doubt, the part of the judgment to which the inspector in the present case was referring in paragraph 54 of the decision letter. Schiemann LJ also went on in paragraph 23 of the judgment to say that a person who moves next door to Harrods can expect things that are normal there and in other emporia of that sort of size. Conclusions[39]I come now to my conclusions. Firstly, I do not accept that the inspector's decision was arrived at by applying the test of whether the activity was one which was incidental to the enjoyment of dwelling houses generally rather than incidental to the enjoyment of this particular dwelling house. It is certainly right to say that the inspector refers to the generic approach derived from the Harrods case in paragraph 54 of the decision letter and that he is, in effect, dealing with it in the first three sentences of paragraph 55, but in the last two sentences of that paragraph he is dealing with the particular circumstances of King's Farm. Indeed, in the last sentence he expressly states that the further large building, as a matter of fact and degree, goes beyond what could be considered incidental to the enjoyment of "the dwelling house as such". That shows that he was applying the test which both parties agree is the correct test. The Court of Appeal in the Wallington case made it clear that it was sensible to have regard to what would be the normal use of a dwelling house (i.e. the generic approach) in order to decide whether, as a matter of fact and degree, the activities should reasonably be regarded as incidental to the enjoyment of the particular dwelling house as a dwelling house. In my view, that is precisely what the inspector did in this case. He had regard to the normal use of a dwelling house and then he considered whether the hanger to accommodate three more aircraft could, as a matter of fact and degree, be considered to be for a purpose incidental to the enjoyment of this particular dwelling house as such. His conclusion is, of course, directed to the building because that is what Class E of the GDO is dealing with, whilst the Wallington case is directed at the use because that is what section 55(2)(d) (as it now is) is dealing with.[40]Secondly, I accept that the inspector's conclusion in paragraph 34 of the decision letter that the appellant's personal element of the flying is ancillary or incidental to his use of the property for residential purposes does not sit easily with the conclusion in paragraph 55 that the provision of a further large building to accommodate three more aircraft goes beyond what could be considered incidental to the enjoyment of the dwelling house as such. It is, however, right to say that paragraph 34 is dealing with a quite separate matter, namely the amount of flying done by the appellant, his family and friends, as one of three component uses of the aircraft as a whole, in the context of deciding whether there was a material change of use between 1989 and 1999 of the whole planning unit to a mixed use of residential and airfield use. Paragraph 55, on the other hand, is dealing with a quite separate matter of whether the provision of the hanger was required for a purpose incidental to the enjoyment of the dwelling house as such in accordance with Class E of the GDO. Even though there may be an element of inconsistency between the two conclusions, I do not consider that what was said in paragraph 34 in a different context should be allowed to undermine the very clear and strong conclusion reached, as a matter of judgment, by the inspector in relation to the hanger in paragraph 55 of the decision letter.[41]Thirdly, I do not consider that the inspector could justifiably be criticised for not giving reasons for his conclusion, or for failing to take account of the matters mentioned by Mr Howell. As was said in the Emin case, the size of the building, although within the limits of the GDO, can be an important consideration as an indicia of the nature and scale of the activity. The fact that it was to house a further three aircraft in addition to the one in the barn gives rise to a judgment as to whether, as a matter of fact and degree, it could be considered incidental to the enjoyment of the dwelling house as such. It is, in effect, a matter of impression, having regard to all the relevant factors, which is not capable of much further elaboration. The inspector was plainly well aware of the size of the house and its curtilage and he was well aware that the house and its curtilage adjoined the airfield. He was also well aware of what the appellant used the four aircraft for. He took into account, in paragraph 55, that what is abnormal is not necessarily unreasonable, whilst at the same time taking into account, in paragraph 54, that what could be said to be incidental to the enjoyment of the dwelling house does not depend on the unrestrained whim of the occupier. Both of those matters are consistent with, and derived from, the case of Emin, as approved by the Court of Appeal. The fact that the appellant sees a need for four aircraft is a relevant consideration, but it is not determinative. An objective test of reasonableness, whilst taking account of the appellant's view, must be imported. That is what the inspector did.[42]Fourthly, I do not consider that the inspector failed to take into account what aircraft accommodation was required in connection with the appellant's hobby. Insofar as that gave rise to an accommodation requirement, the inspector referred earlier in the decision letter to the lounge area and the nature and ambience of the interior of the hanger, but the need for accommodation for the three aircraft was said to arise in any event from their use as a means of personal transport. It is therefore not surprising that the inspector referred to the accommodation requirement arising from aircraft as a means of transport in paragraph 55 of the decision letter. He did, in any event, refer to the hobby aspect in paragraphs 53 and 54 and, insofar as that aspect can be said to give rise to an accommodation requirement, his overall conclusion in paragraph 55 can properly be said to embrace that aspect of the matter.[43]Fifthly, although the inspector did refer to what was "reasonably required" in paragraphs 54 and 55 of the decision letter, rather than to what could "reasonably be regarded as required", as suggested by Farquharson LJ in the Wallington case, I do not consider that anything turns on that point because it is quite clear from the last sentence of paragraph 55 of the decision letter that the inspector applied an objective test of reasonableness which is consistent with the cases of Emin, Wallington and Gladden.[44]At the end of the day, the question whether the hanger to accommodate three more aircraft was required for a purpose incidental to the enjoyment of the dwelling house as such was a question of fact and degree involving a judgment to be made by the inspector. He reached what many people may regard as a thoroughly sensible conclusion. The court should not interfere with a judgment made as a matter of fact and degree by the decision maker unless it can be shown that an error of law was involved in the decision. Despite the very able arguments to the contrary made on behalf of the appellant, I am not persuaded that there was an error of law involved in this decision. In my judgment, the inspector was entitled to reach the decision that he did. I would therefore dismiss this appeal.[45]MS LIEVEN: My Lord, in those circumstances, on behalf of the First Secretary of State, I ask for my costs to be assessed by this court. I am not sure if the amount is disputed, but the total amount, I will hand up to your Lordship a summary assessment form, is £6,885. There is an additional £150, so my learned friend knows, for the hour this afternoon for my instructing solicitor. That is why it has been added on in hand. I do not know whether the amount is disputed so I will leave it there at this stage for your Lordship to come back if it is disputed.[46]MR JUSTICE HARRISON: Very well. Mr Leigh, first of all, do you dispute the quantum?[47]MR LEIGH: My Lord, at the moment I am simply querying, I did raise with my learned friend before court started that if your Lordship looks at the bottom of the first page and going over to the second there is an item that begins "Work done on documents" and over the page it says 20.2 hours, some £3,000-odd. We queried what that was. My learned friend says that was those instructing her advising the department. We query it because it does not seem to fit with the balance of this bill. My learned friend subsequently gave advice, one sees that was charged at £480, but we wonder what took 20-odd hours to deal with. If one were to contrast that with what we were doing on this side of the room, I believe we spent some eight hours in getting our papers together and so on to apply for the permission hearing. I accept, of course, that we were at the inquiry whereas those instructing my learned friend were not there, but we do wonder why it does appear to be such a large amount. It is effectively almost half of the total bill. If there is a proper explanation then of course we will hear it and we will accept it, we are not unreasonable, but, on the face of it, it does seem to stand out from everything else on this bill.

MR JUSTICE HARRISON: Are you able to help with that, Ms Lieven?

[49]MS LIEVEN: I am, my Lord. I do not know whether your Lordship is aware of this, but the way these cases are conducted is first of all the matter goes to the Treasury Solicitor and Treasury Solicitor advises, in this case not the Department but the Inspectorate, on the merits. The 20-odd hours is the Treasury Solicitor getting to grips with the legal issues, the factual issues in the case, and of course those were entirely new to those instructing me, and giving advice. My advice, which is referred to under the section on counsel, came much later in the process. The advice from Treasury Solicitors is before. It was given in this case, and would normally be given, before the permission hearing or the permission consideration, it is the first stage. My Lord, to be frank, yes, the figure for my advice is shorter, but that is because I am fairly experienced in these matters and can usually advise relatively quickly, and your Lordship may be aware that Treasury counsel's rates are entirely done on a hourly basis. The figure shows that it took me four hours to advise, it took my instructing solicitor a good deal longer, probably because she was less familiar with the area of law and the issued raised.[50]MR JUSTICE HARRISON: And, as you say, came to the matter new, and you had the benefit of knowing what that advice was presumably.[51]MS LIEVEN: I had the benefit of her advice, absolutely, my Lord.

MR JUSTICE HARRISON: Do you still dispute that?

[53]MR LEIGH: No, my Lord. Now we hear the explanation we can understand the figure.[54]MR JUSTICE HARRISON: I think that is very sensible, if I may say so, Mr Leigh. Do you oppose the application for costs?[55]MR LEIGH: No, my Lord.[56]MR JUSTICE HARRISON: Then I make an order that the appellant should pay the first respondent's costs in the sum of £6,885.[57]MR LEIGH: My Lord, that just leaves one matter, always a slightly difficult position, to seek permission from your Lordship to appeal your Lordship's judgment to the Court of Appeal. It is not my practice to waste the court's time, it may be that your Lordship says, as sometimes is said, "Well, I am firmly convinced in my mind my judgment is right and whatever you say, Mr Leigh, you are not going to persuade me", in which case I will not take your Lordship's trouble this afternoon, I have already wasted some time this morning, but if your Lordship wants to hear me I would suggest that this is an appropriate matter to go to the Court of Appeal. There is an important point here. It probably arises out of the way your Lordship particularly dealt with paragraph 2 of the matter, but it also --

MR JUSTICE HARRISON: Paragraph 2 of the matter?

[59]MR LEIGH: Your Lordship's conclusions numbered 1 to 5, so rather than going into the judgment itself I would put my submissions in this way. First of all, your Lordship sought to distinguish the conclusion in paragraph 34 as, in effect, being a conclusion on an entirely different matter from that which was concluded upon in paragraph 55. My Lord, not surprisingly, we would say in terms of planning law the conclusion reached in paragraph 34 was, in effect, a conclusion upon the same substantive matter of what was being considered in paragraph 55. In particular, because of the structure of the way Class E operates a conclusion on the use of the objects, which under Class E we are seeking to house, is a conclusion that is entirely related to any conclusion under Class E. In other words, for the Inspector to have concluded that our operating of three or four aircraft, including friends and family and so on and so forth, in planning terms, as a planning concept which is concerned with land use, was a conclusion plain in its term that it was a use incidental to the dwelling house. If that had not been so, of course, it would have had an impact upon his conclusions under the first enforcement notice. Of course, we know he decided in our favour. That part of the decision letter could of course have been challenged by Thurrock, the local authority. It was perfectly open to them to say "Well, actually, no, his conclusion must have been wrong", but having reached that conclusion, which is plain, that conclusion itself not being challenged, within the same decision letter to then have to make, in effect, a decision almost on the same point, instead of now talking about the use by the appellant, he is now talking about a building to house the use.[60]With the utmost respect to your Lordship's judgment, we would say, as light follows day, the conclusion of the decision letter at 55 cannot fit with the conclusion at 34, and, as I say, with due respect to your Lordship, to distinguish them in the way your Lordship did so overlooks the fact that the subject matter and the planning conclusions to reach on that subject matter under the use point, paragraph 34, as well as Class E, paragraph 55, are precisely the same. It is exactly the same test that is being incorporated.[61]In addition, my Lord, and perhaps though of course arising therefrom, and dealing perhaps globally with the way your Lordship put the points in 1, 3, 4 and 5, we would say that the position of the authorities as they now stand, with, as it were, two Court of Appeal authorities and of course the earlier case of Emin, may lead to an area of law where there is, despite what your Lordship has ruled, an ambiguity in the proper application of the test, because on the one hand both sides agree that the test must take into account the particular circumstances of the dwelling, but at the same time the courts have said that this is a test which, on the one hand, they describe as objective and is not one where one simply pays heed to every whim of the appellant, but, on the other hand, one is somehow supposed to take account of the subjective needs, wants, desires of the particular applicant or appellant. With respect to the way the authorities now stand, it may be that it is a question of now trying to square the circle here and see what exactly is happening.[62]One appreciates that in the Harrods case it was a slightly topic from what we are concerned with because that was in relation to the use of a building, and the question was under section 55, of course, whether it even fell within the definition of development, whereas we are concerned with a building to be provided as part of a use, that use itself having already been decided as incidental, and the question is whether it fell within the terms of Class E.[63]It boils down to this. There is either possibly a tension between Harrods and Wallington in the way that they are trying to apply Emin, or if there is not a tension then there is uncertainty in this area of law, because it is one thing to say "We apply objective tests taking into account the individual circumstances", but on the very clear facts of this case, in my respectful submission, my Lord, we have an Inspector who says, "Right, Mr Holding can reasonably, in my view, operate four aircraft from his home, and indeed it is alright for his friends and family to operate their aircraft, and indeed it is reasonable for him to use his aircraft for business purposes, all of that would fall squarely within his ordinary or incidental use of enjoyment of his dwelling house". Taking it a step further, the point then arises that when one comes to look at Class E, which on its face simply talks about a building being required, as opposed to reasonably required or any other gloss one puts on it, one finds in the way your Lordship's judgment has effect on the facts of this case that while the aircraft are acceptable, housing them is not, and yet it appears, bearing in mind the Inspector's own words, that that was precisely what Class E was supposed to do, to take out the bureaucracy of applying for planning consent.[64]Accordingly, on the application of the test, whatever that may be, to the facts of this case, with respect, it does not make logical sense.[65]I have taken perhaps enough of your Lordship's time, but I am happy to take the point further, and I realise of course I am arguing against your Lordship's judgment, but we would say there are rather important points here. There are of course the wider legal principles arising from the series of cases, Emin and Croydon and Wallington and so on, and of course on the facts of this case, this, we would say, indistinguishable subject matter that fell for consideration under Notice 1, and also under the --

MR JUSTICE HARRISON: I think you are repeating yourself now, are you not?

[67]MR LEIGH: I am summarising, my Lord. I hope I have done sufficient for my arguments.[68]MR JUSTICE HARRISON: Thank you very much. Ms Lieven, anything you want to say?[69]MS LIEVEN: My Lord, in my submission, first of all, the case turns entirely on your Lordship's judgment on the facts of the particular case and there is absolutely no reason to believe that the Court of Appeal would come to a different decision on the facts of the particular case as set out in the Inspector's report, so I do not accept at all that there are reasonable prospects of success. On the other part of the test for permission in these circumstances, is there a wider important point? My Lord, in my submission, there is no ambiguity in the test set out in the judgments that your Lordship has referred to. It is perfectly clear that there is an objective test but one takes into account personal circumstances. My Lord, there is no ambiguity in the case law and there is no tension between your Lordship's judgment and the previous authorities. So I would say this case does not satisfy either limb, but I do not see any benefit in going back through the prospects of success point.

MR JUSTICE HARRISON: Thank you very much.

[71]Mr Leigh, I am afraid I am not prepared to grant permission to appeal, so you will have to go to the Court of Appeal.[72]MR LEIGH: Thank you, my Lord.

Cited in 1 later judgment