Magauran, R (on the application of) v The First Secretary of State & Ors [2005] EWHC 1751 (Admin)

Case No CO/6042/2004

[2005] EWHC 1751 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 12 July 2005

Strand

London WC2

B E F O R E:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF MISS HELEN MAGAURANClaimant

-v-

Between

THE FIRST SECRETARY OF STATEDefendant

EPSOM & EWELL BOROUGH COUNCILDefendant

MR JOHN HENRY MAGAURANDefendant

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)

MISS CARINE PATRY (instructed by WH MATTHEWS & CO, SUTTON, SURREY, SM1 1DS) appeared for CLAIMANT

MR ROBER PALMER (instructed by TREASURY SOLICITORS) appeared for FIRST DEFENDANT

J U D G M E N T

[1]MR JUSTICE DAVIS: By this claim form which is issued on 30th November 2004, Miss Helen Magauran seeks to challenge the decision of an inspector given on 20th October 2004, which allowed an appeal in relation to a planning application that had granted outlying planning permission in respect of a proposed development at 25 Alexandra Road, Epsom in Surrey. The grounds of the claim have recently been amended with my leave.

[2]The background is this. The property, 25 Alexandra Road, Epsom, Surrey, has been in the occupation, as I gather, of the Magauran family for a very considerable number of years. I was told today by Mr John Magauran, the third defendant who appeared before me in person, that currently the property is held in trust. The trustee is a bank trust company and he told me, although I have not seen any copy of any trust deed, that the three beneficiaries are himself, his sister Denise, and the claimant, who is also his sister. Apparently the mother, who relatively recently died, had been the life tenant under that trust. She had lived in the property for many years with her husband when alive; and Ms Magauran, the claimant, currently occupies the property herself.

[3]From the papers put before me, the house may be described -- at least in the eyes of some -- as being a fine house. When the original planning application was made by Mr John Magauran, a number of letters and objections were submitted to the local council, Epsom and Ewell Borough Council. A flavour perhaps of some of the objections made can be taken from one particular letter, which is dated 28th November 2003, from Mr McKillop who is a lecturer in the history of design at the Kingston College School of Art and Design. He wrote to "support strongly", as he put it, "the retention and protection on site" of the property. He described it as a very special building of its type and said that there were few houses of that particular Arts and Crafts period remaining in the borough and that this was, as he said, "an exceptional example". He described the Arts and Crafts painted glass on the stairwell as, "Some of the finest that I have come across in the area". He also made favourable comments about the fireplaces, woodwork, mouldings and so on and then said this:

"I believe that it would be an inestimable loss to the borough if a house of such quality was lost. So many of its type have been demolished for rebuilding on their sites, as has already sadly been the case of many in Alexandra Road. I firmly believe that this house should be retained as a fine example of the quality of some of the housing that was developed in Epsom in the late Victorian and Edwardian period. I cannot think of another house that I have seen in the area of this particular quality of Arts and Crafts finish."

[4]There were numerous other letters of such a flavour. Putting it very shortly, it appears that Alexandra Road in recent years has undergone a great deal of development and, for the most part, the road seems to be fronted by developments of flats. 25 Alexandra Road seems to be something of an exception, being set back from the road and, as I gather, screened by trees and containing the architectural features on which many persons have commented.

[5]The council itself on receipt of the planning application did not support it. In fact, it refused that application by a letter dated 10th December 2003, which stated in the relevant terms:

"The application was refused for the following reasons: "1. The proposal to demolish a building of local architectural interest would be detrimental to the character and appearance of this part of Alexandra Road and would therefore be contrary to the provisions of policy BE15 of the Epsom and Ewell District Wide Local Plan 2000."

[6]It was drawn to my attention, the claimant thinking it relevant, that that decision was made by a majority of ten to three of the relevant committee of the council.

[7]The reference to the policy BE15 in that letter is to be explained in the following way. In previous times, the council had had occasion to consider the position of creating local lists of properties in the area of the borough, specifically having regard to properties which had not themselves achieved the status of formal statutory listing. I was shown a paper headed, "Conservation Officers' Group: Surrey. List of buildings of local architectural or historic interest," which set out the background and objectives involved and which related to the protection and enhancement of the local distinctiveness of the county and the character of the individual areas which had to be identified.

[8]So far as the criteria proposed in that document were concerned:

"It is suggested that the selection criteria for the local list be based on that for the statutory lists, but that the significance of the architectural character and its historical associations be assessed with regard to the locality."

[9]So far as the criteria for buildings constructed between 1840 and 1914 were concerned, and that would include 25 Alexandra Road, the criteria proposed were that the buildings should have:

"...definite quality and character with selection to exclude poor examples. Selection is designed to include modest works of principal architects and the principal works of modest architects. The key words are 'definite quality or character' and that can be apparent in many ways..."

[10]The council, as I gather, promulgated its policy with regard to locally listed buildings of this kind in the Epsom and Ewell District Council Local Plan of 2000 under the heading "Locally Important Buildings". This was provided at paragraph 6.6.6:

"The Borough Council, with the assistance of the County Council, has compiled a comprehensive list of buildings of local architectural or historic interest, called 'locally important buildings', to supplement the statutory list. This is because many buildings in the Borough which are valued for their contribution to the local scene, or local historic associations, are not considered to be of national importance. Currently there are about 80 buildings and structures on the list of locally important buildings. Such buildings are often protected by conservation area designation; however, the Borough Council will seek to ensure that all the buildings of local architectural or historic interest are preserved and will resist their demolition. In considering proposals which affect locally important buildings, the Borough Council will seek to protect their inherent qualities. Despite the importance which the Borough Council attaches to these buildings, they do not enjoy the full legal protection of statutory listing. "

BE15 The following criteria will be applied to planning applications affecting buildings of local architectural or historic interest:

"(1) The demolition of locally important buildings or removal of their features of character will not be permitted ..."

[11]There then follow four other categories and it is then said:

"Planning applications must be supported by sufficient details of the appropriate development ..."

[12]It is not disputed that 25 Alexandra Road was such a locally listed building. However, it was not a statutory listed building, albeit I gather application for that purpose was made but was rejected by the Secretary of State in December 2003. It is also accepted that 25 Alexandra Road is not in a conservation area.

[13]The refusal of the council to grant planning permission attracted an appeal by Mr John Magauran. As I gather from Mr Magauran's address to me today, he has acquired some familiarity over the years with planning applications and the planning process.

[14]The council maintained its opposition to the granting of planning permission. It lodged a detailed statement of case in advance of the appeal hearing. In paragraph 4 it set out explanatory comments and made the point about this particular house that if it were to be demolished, this would result in the demolition of a house that was on the local list of buildings of interest. The statement case also said this:

"This is the last house of its special type within this part of Alexandra Road. Its local listing, historical interest and importance in the local environment is considered sufficient to justify refusal of the application, which would otherwise have resulted in its demolition, on that ground alone."

[15]The statement of case then went on to refer to a number of observations made by various societies and bodies of the highest repute, for example the Stained Glass Conservation Department of the Victoria and Albert Museum, The Nonsuch Antiquarian Society, The Epsom Protection Society and The Victorian Society, amongst others, all expressing dismay at the prospect of 25 Alexandra Road being demolished and flats being erected in its place. Ms Helen Magauran, the claimant herself, was a very strong objector to the proposal.

[16]The application itself was for what has been described as:

"An application for a block of 10 flats with a 2 storey building with a pitched roof."

When the matter came on for hearing before the inspector on 21st September 2004, the inspector herself in a subsequent decision of 20th October noted that that had been a description of the proposal. She recorded, however, in her decision of 20th October 2004, this:

"It was however agreed by the parties at the hearing that the description used by the Council on the refusal notice better reflects the nature of the proposal."

That description was this:

"The development proposed is erection of a block of 10 flats, following demolition of an existing building."

[17]There was some debate before me in argument today as to exactly what was the extent of the planning application, at all events in the light of the recorded modification of the description as notified by the inspector. In the course of argument, Mr Palmer, counsel appearing on behalf of the First Secretary of State today, suggested that the application had come from both the demolition of the existing building and also the erection of the block of ten flats. Miss Patry, on the other hand, submitted that the application remained one for an erection of a block of ten flats and the reference to that following demolition of an existing building was simply descriptive, as indeed perhaps the words of the planning inspector connoted.

[18]I am not sure if it is actually necessary for me to decide this particular point, but I should record my view: which is that I agreed with Miss Patry on this. As I see it, this was an application for the erection of a block of ten flats, but, equally, it was inherent in that application that the erection of the block of ten flats could only ever take place, realistically, following demolition of the existing building on the site, that is to say the house at 25 Alexandra Road.

[19]However, having indicated that view, I should also go on to record my emphatic view that I reject Miss Patry's submission that, in her words, before the planning inspector, "demolition was not in issue." It is abundantly plain that it was very much in issue, as is apparent not only from the objections made by the council in advance of the hearing and, as I infer, also Ms Magauran herself, but also from the body of the decision letter which I will come on to recite.

[20]I should perhaps record that not only had the inspector conducted a hearing at which she heard the various parties' representations on 21st September, but she had also undertaken a site visit of the property on that date. In the course of the decision letter dated 20th October 2004, the inspector described the main issue as being:

"...the effect of the proposed development on the character and appearance of the area having regard to the inclusion of the existing building on the Council's list of buildings of local architectural or historic interest."

The inspector then went on to refer expressly to the Epsom and Ewell District Wide Local Plan 2000 and to policy BE15. The inspector then went on in giving her reasons to state that the blocks of flats, which by that time fronted that side of Alexandra Road, were large and prominent and that it was from those, in her view, that the character and appearance of that part of Alexandra Road derived. She went on to record her finding that the proposed development of flats would comprise a block of similar size to others in the road and the parking and access proposals indicated that the building would have a relationship to the street and recreation ground little different from that of the adjacent flats.

[21]She recorded that the council had expressed no concerns with regard to the proposed flats and that in the inspector's view such a building would be consistent with the surrounding development and, thus, have no significant detrimental effect on the character and appearance of the Alexandra Road street scene.

[22]The inspector then went on to say this in paragraphs 6 and 7 of the decision letter:

"6. I note that the existing house has many intact period features, a number of which I understand are not found on other houses in Alexandra Road or the immediate area, including some that suggest an Arts and Crafts influence. I have also considered carefully the views expressed with regard to the quality of the stained glass on the stairs. The building is valued by a number of local residents and has been listed by the Council as being of local architectural and historic interest. However, an application for statutory listing of the building was rejected and the site does not fall within a Conservation Area. Planning Policy Guidance (PPG) note 15: Planning and the Historic Environment paragraph 6.16 makes clear that locally listed buildings such as this do not enjoy the full protection of statutory listing. Permission simply for demolition of the house would not normally therefore be required. 7. I conclude that the proposed development of flats would cause no significant harm to the character and appearance of the area and that demolition of the existing building would not normally be required. Accordingly had the house been demolished prior to submission of the application there would have existed no reasonable grounds for dismissing the appeal. Whilst demolition of the locally listed building would be contrary to development plan policy I would consider these are material considerations that in this instance outweigh the provision of Policy BE15 and indicate that planning permission should be granted."

[23]Having said that, the inspector went on to deal with other considerations and with the question of conditions, concluded that the appeal should be allowed and the formal decision was that she allowed the appeal and granted:

"Planning permission for erection of a block of 10 flats, following demolition of an existing building at 25 Alexandra Road, Epsom, Surrey in accordance with the terms of the application, dated 2nd November 2003, and the plan submitted therewith, subject to the [specified] conditions."

[24]In order to put a little more flesh on the observations of the inspector and to explain the statutory background to the issue of demolition, which has been the principal point of argument before me, it is necessary to refer to some of the relevant statutory materials.

[20]The first provision which it is necessary to refer to is Section 54A of the Town and Country Planning Act 1990, as amended. That provides that:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

[25]I gather that since the hearing that particular section has been superseded by a more recent statutory provision, but it is common ground before me that it was the provisions of Section 54A which were of potential relevance here.

[26]By Section 55 of the Town and Country Planning Act 1990 there is a definition of the word "development" which includes:

"The carrying out of building ... operations in, on, over or under land ..."

[27]It is then provided by subsection 1(A) that for the purposes of that Act, the phrase "building operations" included, amongst other things, the demolition of buildings. In (2) it was stated:

"The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land."

Those following operations included by subsection (g):

"The demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities generally or to a particular local planning authority."

[28]In due course, a direction in the form of the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 was given, that direction coming into force on 3rd June 1995. By paragraph 2 it was provided:

"Subject [as there set out], the demolition of the following descriptions of building shall not be taken, for the purposes of the Town and Country Planning Act 1990, to involve development of land."

The following descriptions" included, amongst other things, listed buildings or buildings in a conservation area. It also included, subject to a particular provision: Any building other than a dwellinghouse or a building adjoining a dwellinghouse."

[29]As it happened, the Town and Country Planning (General Permitted Development) Order 1995 had been made on 22nd February 1995. By article 3 of that Order, it was provided:

"Subject to the provisions of this Order [and to certain other regulations] planning permission was hereby granted for the classes of development described as permitted development in schedule 2. Schedule 2 at paragraph 31 included as permitted development: "

Any building operation consisting of the demolition of a building."

[30]Various conditions were then set out and, in particular, there is provision for requiring prior approval to be sought from the Local Planning Authority for a determination:

"...as to whether the prior approval of the authority will be required to the method of demolition and any proposed restoration of the site."

[31]Provision is then made for the affixing of notices at the site and that the development should not be begun before the occurrence of, amongst other things, the obtaining of such prior approval or, alternatively, dispensation. It is not necessary to set out the precise details.

[32]It is to be noted, however, that the provisions of schedule 2, so far as the approval of the local planning authority is concerned, relate solely to the 'method' of demolition and any proposed restoration of the site. They do not relate to the principle of demolition.

[33]Referring back to the body of the 1995 Order, by Article 4 there are certain directions set out and restrictions permitted development. This is provided:

"4 (1) If the Secretary of State or the appropriate local planning authority is satisfied that it is expedient that development described in any Part, Class or paragraph in Schedule 2, other than Class B of Part 22 or Class B or Part 23, should not be carried out unless permission is granted for it on an application, he or they may give a direction under this paragraph that the permission granted by article 3 shall not apply to [the developments there set out]."

[34]Article 5, in broad terms, provides that the approval of the Secretary of State is required for article 4(1) directions. Article 5(1) provides as follows:

"Except in the cases specified in paragraphs (3) and (4), a direction by a local planning authority under article 4(1) requires the approval of the Secretary of State, who may approve the direction with or without modifications."

[35]A policy was promulgated with regard to the way in which the Secretary of State might be expected to exercise his powers by reference to those articles. That is contained in the Department of the Environment Circular 9/95 under the heading "Article 4 Directions. General Policy." This is provided:

"Article 4(1) and the new article 4(2) of the Permitted Development Order enable local planning authorities to make directions withdrawing permitted development rights given under Schedule 2 to that Order ... Generally and subject to the guidance in this Appendix, permitted development rights should be withdrawn only in exceptional circumstances. Such action will rarely be justified unless there is a real and specific threat, ie there is reliable evidence to suggest that permitted development is likely to take place which could damage an interest of acknowledged importance and which should therefore be brought within full planning control in the public interest."

Then a little further on with regard to Article 4 and the position of local planning authorities, it is said:

"...local planning authorities should consider their powers to require the prior approval of certain details of development permitted by various Parts of Schedule 2 to the Permitted Development Order."

[36]Overall, the general scheme broadly appears to be this: save where a particular building is statutorily listed, for example, or is in a conservation area or the like, demolition of a dwelling house may take place without an application for planning permission to the local planning authority being needed, on the footing that by the terms of the 1995 Order planning permission will have been granted by virtue of the operation of that particular statutory provision. However, that position is then subject to potential qualification where a direction is made under Article 4 and that direction is approved by the Secretary of State under Article 5: and the circumstances in which such a direction may be made and thereafter approved are subject to the policy statements set out in Circular 9/95.

[37]One implication of that, as it seems to me, is as stated by Mr Palmer, that policy BE15 of this particular council seems in some respects to -- in Mr Palmer's phrase -- "lack teeth": because while the policy on the face of it is framed in absolute terms stating that the demolition of locally important buildings or removal of their features of character will not be permitted, that can only be applied to planning applications affecting such buildings: as the policy itself says. In the ordinary way, however, by virtue of the operation of the 1995 Order, no planning application for demolition of such a building (assuming of course it is not statutorily listed or in a conservation area or the like), will be needed.

[38]The argument of Miss Patry in seeking to say that this particular decision of the inspector cannot stand and must be quashed in effect came to this: first, as I have said and I am prepared to accept, she submits that this was an application for the erection of a block of ten flats, in descriptive terms, following demolition. It was not an application for demolition in its own right.

[39]She accepts that on the face of it the inspector did indeed apply the approach laid down by Section 54A of the Town and Country Planning Act 1990, as amended. But she submits that in assessing whether or not there were material considerations indicating that there should be a departure from the -- on the face of it -- absolute terms of policy BE15, the reasoning of the inspector was flawed, in particular by taking into account an irrelevant and/or illegitimate consideration.

[40]In her skeleton argument and in her oral argument, Miss Patry submits that from a reading of the decision letter, the inspector considered that the material considerations outweighing the policy prohibition were these: first, the effect of the proposal on the character and appearance of the area; second, the fact that the building was not the subject of statutory listing or in a conservation area; and, thirdly, the fact that planning permission would not be required for demolition and it could have been demolished prior to the submission of the application.

[41]As to the first such consideration, Miss Patry accepts that that was a view that the planning inspector, as the relevant decision maker, was entitled to form.

[42]As to the second, she accepts that that was factually correct and that the inspector was entitled to take that into account as a material consideration; but her attack is as to the third material consideration which she says influenced the planning inspector in reaching the ultimate decision to allow the planning appeal.

[43]The essence of the complaint is this: quite simply, Miss Patry says that the inspector was wrong to proceed on the footing that there would be demolition of the house. She submits that that simply could not be taken as a given, that in effect the inspector took that as a given and thereby erred; and in so erring, reached an ultimate conclusion which had been based on an incorrect assessment of immaterial considerations.

[44]In her written skeleton argument Mr Patry had submitted this:

"It thus follows that permission would in fact be required to demolish the existing house contrary to the last sentence [of paragraph 6] of the Inspector's decision and it was incorrect of the Inspector to consider the possibility of a vacant and cleared site (paragraph 7 of DL) as this circumstance could not occur without permission being granted for demolition."

[45]She went on to say that the inspector wrongly assumed that permission would not normally be required for demolition when permission is in fact always required.

[46]In the course of her oral argument before me, Miss Patry in fact considerably modified those propositions. She accepted before me that in saying in the last sentence of paragraph 6 of the decision letter as the inspector did, "Permission simply for the demolition of the house would not therefore normally be required", the inspector was in fact making a correct statement. Of course, very strictly that statement is not correct, in the sense that permission is indeed always required for demolition of a house. The usual position is that such permission will have been given by virtue of the 1995

[47]Miss Patry's particular point of complaint is then by reference to the second sentence of paragraph 7 of the decision letter which, to repeat, provides as follows:

"Accordingly had the house been demolished prior to submission of the application there would have existed no reasonable grounds for dismissing the appeal."

[48]On the face of it, that particular sentence seems to me to be an entirely unexceptionable sentence on the footing that it is to be read (as plainly it was intended to be read)as assuring that the demolition had been lawful. The planning inspector was thereby simply making the point that if demolition had lawfully occurred without any need for planning permission, (which would have been the ordinary case in the first instance) then the planning application for the )block really would have been granted without too much difficulty; and the planning inspector thereby by implication was in effect musing that it might be a surprising result that it should be a different outcome simply because the order of events was reversed.

[49]Miss Patry's point of complaint, as I have indicated, is that the inspector is simply assuming that there could be such demolition when she submits that is simply something which should not properly have been assumed.

[50]The particular point which Miss Patry makes is by reference to Article 4. She accepts that when one has regard to the policy considerations set out in Circular 9.95, exceptional circumstances must be shown to justify the exercise of the powers by reference to Article 4 and then its approval by the Secretary of State under Article 5. But she submits that in this particular case there were -- and, as she would say, evidently were -- such exceptional circumstances. This was a fine house attracting the support of many local residents and other respected bodies in terms of the retention, and which the council itself had caused to be locally listed as a property to be esteemed and retained for the benefit of the borough as a whole. She submits that overall that amply laid the groundwork for this being an exceptional case whereby a direction under Article 4 thereafter to be approved under Article 5, could be made.

[51]The difficulty I have with that particular submission quite simply is this: that was not a point that was ever at any stage raised by the council itself, let alone, and more understandably of course given her status, by the claimant herself.

[52]The council of course knew about the whole background to this property. It had actively through its officers taken a keen interest in the planning application. It submitted a detailed statement of case for the purposes of the appeal to the inspector. It placed great emphasis on the issue of demolition. Attention was drawn to policy BE15 and the like. All those matters the inspector took into account; but at no stage did the council seek to invoke Article 4. It never made such a direction. It never indicated to the inspector that it was minded to make such a direction.

[53]It seems to me in those circumstances that the inspector was justified in proceeding on the footing, which in broad terms was correct, that permission simply for demolition of the house would not normally be required and nothing had been put before the inspector to indicate that exceptionally permission, in the sense of an application for permission, would be required. It seems to me that if the council were taking the view that either it would be done or at least might well be done, that it behoved the council to make its position clear. Indeed, as I understand it, even now no such direction has been made by the council.

[54]In those circumstances, I can see no error in the approach adopted by the inspector. It seemed to me that she approached the matter correctly as a matter of general approach. It seemed to me that she cannot be criticised for the point she made with regard to the position about demolition of the house. She plainly had regard to the issue of policy BE15 and the need for material considerations to be shown. She in my view marshalled the material considerations in a way in which it was open to her to marshal them.

[55]It must be borne in mind that the decision here is that of the planning inspector. It is easy to see (and, speaking for myself, easy to sympathise with) the views of the objectors. Many people will think it a great pity that potentially a house of this kind can disappear to make way for what no doubt some people will consider to be an anonymous block of flats. But notoriously in the field of planning there are two sides to the argument. Views can, and usually do, differ and this was a matter for the planning inspector to decide as the relevant decision maker.

[56]I cannot in the circumstances see any error in either the general statements of the inspector or indeed in her application of those statements. She approached the matter in a way open to her, no error in public law terms is shown on this point and it seems to me this ground of challenge must fail.

[57]The second ground raised by Miss Patry on behalf of the claimant is to say that there was a breach of natural justice in the sense that this particular point with regard to what the position would have been had the house been demolished and the like was never raised by the inspector at the hearing. I should add that no witness statement was put in before me to develop this point about natural justice; but in any case in my view there are two answers to that particular ground of objection.(1) Firstly, I do not think there was any requirement, given the circumstances, for the inspector to raise this particular point at the hearing. It seems to me she was fully justified in dealing with the point in this way in her decision letter as she did.

(2) Second, a further ground for objection to this complaint raised by Miss Patry on behalf of the complainant, is this: quite simply if -- as I have decided -- ground one has no validity, then it matters not a jot that the claimant had no right to argue the point: because in law there would have been no basis to it. Of course, had the council sought expressly to argue that they were minded to invoke Article 4, then possibly the position might have stood on a different footing. But that the council never did.

[58]The final ground raised by Miss Patry is by reference to what she called "the fallback position". According to Miss Patry, the inspector considered that planning permission would not normally be required for demolition but then went on to consider the position on the basis of the situation where the house might have been demolished without permission prior to appeal. She complains that there was no evidence before the inspector that this would have been likely to happen or that it was likely to happen in the future if the appeal was dismissed.

[59]In my view, this ground is devoid of all content. It has no relation at all to the conventional kind of fall-back case illustrated by cases such as Brentwood Borough Council v Secretary of State for the Environment and Gray 72 P&C.R 61. No one here was arguing that if planning permission was not given for this block of flats then some even more hideous and objectionable development or some unattractively vacant site would eventuate. Everyone accepted that as a matter of reality this block of flats would only eventuate if the house on the site was demolished: so this is not a fall-back case as such at all. It is to be noted that the inspector was not saying that the flats were objectionable but would be preferable to an empty site. On the contrary, the inspector was in effect finding that there was no objection in planning terms to the flats. It seems to me there is absolutely nothing in this point. Indeed, and as I think Miss Patry acknowledged in the course of argument, this really proved to be just another restatement of her first ground which ground it seems to me, as a matter of law, cannot be sustained.

[60]In the result therefore this claim fails. So, It is clearly a matter of regret to this Court that there obviously must be an uncomfortable family background to these proceedings, given that sister is suing brother. Also, as I have said, I can well understand why some people might feel very strongly indeed about the prospect of the demolition of this house in favour of the construction of a block of flats. However, my view is that this appeal cannot succeed and I see no basis for interfering with the decision of the planning inspector (on whom of course the process of decision making was imposed) who in my view discharged the process required of her in a proper and lawful way.

[61]Of course, whether the planning permission which has been granted will ever be implemented is another matter and nothing to do with me. Mr Palmer.

[62]MR PALMER: My Lord, I am grateful. I have an application for Section 6 costs in this matter. May I hand in a schedule. There was one served yesterday, but it was not, as I understand it, lodged at court. My Lord, the sum claimed is for a total of £6,752.

MR JUSTICE DAVIS: Yes.

[64]MR PALMER: I would ask for costs to be summarily assessed in that amount.

MR JUSTICE DAVIS: Mr Magauran, do you have any application for costs?

[66]MR MAGAURAN: No, my Lord.

[67]MR JUSTICE DAVIS: No, I imagine not. Miss Patry, can you resist an order for costs?

[68]MISS PATRY: No, the principle of costs is not resisted, no. Just flicking through, I do have one query about the second page, "Work done on documents" by the solicitors as opposed to counsel, which is obviously charged separately. At 12 hours it does seem rather high, given the complete lack of documentation put in by Treasury Solicitors on this matter.

MR JUSTICE DAVIS: 12 hours.

[70]MISS PATRY: It is at the very top.

MR JUSTICE DAVIS: What was your total statement of costs?

[72]MISS PATRY: It was around the same. No, it was lower. It was £5,604.

MR JUSTICE DAVIS: You say 12 hours for this is too much.

[74]MISS PATRY: No, we produced the bundle.

MR JUSTICE DAVIS: Yes, but this is the nature of the documentation in essence which eventuated.

[76]MISS PATRY: It is unusual for the Secretary of State's costs to be higher that those of the claimant, as I am sure you are aware.

[77]MR JUSTICE DAVIS: 12 hours does seem rather a lot for the documents here. This application has been relatively limited in nature. It has not required a trawl through all the documents that were before the planning inspector, has it?

[78]MR PALMER: No, my Lord, it has not. What it has required in the ordinary way is the exercise conducted by the Treasury Solicitor on receipt of an application under Section 288; a full consideration by a Treasury Solicitor, including the drafting of a detailed minute of advice to the planning inspectorate.

MR JUSTICE DAVIS: Is that something properly payable by the claimant in these proceedings?

[80]MR PALMER: My Lord, yes, and indeed regularly so. The provision of an advice is to the merit of the claim.

MR JUSTICE DAVIS: You mean in the sense of advice on the merits.

[82]MR PALMER: Yes, my Lord.

MR JUSTICE DAVIS: In that case, we do not need to allow anything for your advice.

[84]MR PALMER: My Lord, that in fact relates -- although it says advice --

MR JUSTICE DAVIS: I am only teasing you, Mr Palmer.

[86]MR PALMER: It is a separate exercise. It is not duplication. My Lord, in this case also there were both the original grounds and then the amended grounds which came in later and of course forced the Treasury Solicitor to review the position at that point.

[87]Finally, there was the preparation also included in the work done on the documents and preparation of two witness statements; the first when we understood that matters of complaint were to form part of the claim and a witness statement prepared on behalf of the inspector and secondly --

MR JUSTICE DAVIS: That is attendances on others, is it not?

[89]MR PALMER: In terms of taking instructions, but not the preparation of the witness statement.

MR JUSTICE DAVIS: It is not what I would call "work done on documents."

[91]MR PALMER: My Lord, it has been put under that heading, my Lord, but it could equally be put under another heading. I take your Lordship's point, but that is not so much to reduce the costs.

[92]My Lord, the other witness statement was because there was no witness statement filed on behalf of the claimant exhibiting the relevant planning policies from the local plan. My instructing solicitor did that himself, albeit that the exhibits were omitted in the bundle prepared for your Lordship today, but that was a proper exercise of time by my instructing solicitor.

[93]My Lord, that accounts for the 12 hours.

[94]My Lord, the only other thing I would mention is that we allowed five hours for the hearing today, in fact it has been six. I do not make a claim, but in the round it is a fair and reasonable sum.

MR JUSTICE DAVIS: You will have to put that one down to experience, I am afraid.

[96]MR PALMER: I am grateful.

[97]MR JUSTICE DAVIS: So far as costs are concerned, it is right, I think, that the claimant should pay the First Secretary of State's costs. I propose summary to assess them. I do think the amount for work done on documents looks rather on the high side and in the round I have assessed costs in the sum £6,250. How long do you want to pay, Miss Patry?

[98]MISS PATRY: I no longer have a client. If you could just give me a moment. The usual 14 days is entirely appropriate.

MR JUSTICE DAVIS: I will give you 28 days.

[100]MISS PATRY: That is very kind.

[101]MR JUSTICE DAVIS: Is that everything? Thank you both very much indeed for your very helpful arguments. Thank you.

Order

but in the sense, as was plainly intended by the inspector, that separate application for planning permission for demolition of a house would not normally be required, it is plainly correct. That is borne out by the statutory provisions which I have summarised and, as I have said, Miss Patry accepts that to be the case.