Tatham Homes Ltd, R (on the application of) v First Secretary of State & Anor [2005] EWHC 3538 (Admin)

Case No CO/1221/2005[2005] EWHC 3538 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 16th June 2005
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF TATHAM HOMES LIMITEDClaimantv
Between
(1)FIRST SECRETARY OF STATEDefendantSEVENOAKS DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Frazer-Urquhart (instructed by Leigh Day & Co) appeared for ClaimantMR P COPPEL (instructed by the Treasury Solicitor) appeared for First Defendant for The Second Defendant did not attend and was not represented
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of one of the first defendant's Inspectors contained in a decision letter dated 18th January 2005, dismissing the claimant's appeal against the second defendant's refusal of planning permission for the demolition of an existing building at 3 Woodside, Sevenoaks, Kent and its replacement with a block of six flats. The Inspector held an inquiry into the appeal on 8th December 2004 and made a site visit on the following day.[2]In paragraph 8 of his decision letter, the Inspector said that from the evidence at the inquiry, the written representations and his inspection of the site and the surroundings he considered that there were two main issues in the case. These were:
"(i) The character and visual amenities of the area. (ii) The living conditions of occupiers of nearby properties with particular regard to overlooking and loss of privacy."
[3]On the first of those issues the Inspector concluded that the development would not be harmful to the character or visual amenities of the area. That was the issue on which the second defendant had refused planning permission. The application had been recommended for approval by the second defendant's planning officers but it had been refused by members after they had made a site visit. The statement of common ground between the claimant and the second defendant included the following:
"Privacy and overshadowing do not form part of the Council's reason for refusal and are not therefore at issue with the Council."
The second defendant's evidence, consistently with that statement of common ground, did not refer to privacy or overshadowing.[4]The Inspector dealt with the second issue between paragraphs 19 and 23 of his decision letter. In paragraph 19 he said:
"This issue does not form part of the reason for refusal and the statement of common ground identifies that privacy and overshadowing are not at issue with Council. However, I heard evidence at the inquiry from adjoining and nearby residents and I visited both the properties that I have identified as being most likely to be affected by this development. I have also had regard to the provisions of the development plan and to Supplementary Planning Guidance (SPG), in particular to Kent Design. I have had regard to the fact that the site lies within an established housing area where a degree of overlooking between residential properties is normal and where new developments are likely to have some impact on the living conditions of adjoining residents."
In paragraph 20 the Inspector said that the occupiers of two properties would be likely to be particularly affected by the proposed development, vis the occupiers of Numbers 5 and 16 Woodside Road. The Inspector explained why he did not consider that the occupiers of other properties would be affected. In paragraph 21 the Inspector dealt with the impact of the proposed development on Number 5 Woodside Road, and concluded that there would not be a significant effect on privacy.[5]In paragraphs 22 and 23, the Inspector said:
"(22) I have very serious concerns, however, regarding the likely impact on the occupiers at Number 16. This is a detached house situated to the east of the appeal site. Its site is to the rear of its block so the entire garden is between the house and the road. At present a reasonable level of privacy is maintained as there is a wooden fence and gates along the Woodside Road frontage. The only apparent direct overlooking is from a first floor window in the existing house at Number 3. The proposed development would bring the development substantially closer to Number 16. The new three-storey flats would be almost six metres closer to Number 16 than the two-storey part of the existing house. As well as being closer, however, the nature of the potential overlooking would change. Instead of a single first floor window to a house, there would be five windows at first and second floor levels. These windows would serve two living rooms, two dining rooms and a master bedroom. The potential for overlooking is exacerbated, however, by two of these windows having balconies. While these balconies would be only about 600mm deep, they would be accessible through French windows and would be wide enough for standing on. This would afford direct views into the garden of Number 16 and, at a greater distance, to the front windows of that property. (23) I have taken account of policy EN1(3) of the Local Plan which includes consideration of the impact of new development on privacy and the advice in the SPG. This advises that developments must ensure the protection of privacy and amenity for a variety of new and existing occupiers. It suggests as a guide that a distance of 21 metres between the unobstructed windows of habitable rooms in the private rear facades of dwellings has been found to be generally acceptable. In this context, however, it is the private amenity space of Number 16 that I consider warrants some protection. The proposed development would have living and dining room windows at first and second floor level, as well as two balconies directly overlooking the garden at a minimum distance of about 17 metres, and only about 34 metres from the house. In my opinion this potential degree of overlooking, especially from rooms that are likely to be well used, would be unacceptable and contrary to provisions in policy EN1(3) of the Local Plan and the advice in the SPG."
[6]In paragraphs 24 to 27, the Inspector dealt with a variety of other matters that had been raised by local residents. In the final sentence at paragraph 27 he concluded that:
"I have found nothing in these other matters to outweigh my conclusions on the main issues."
He returned to the main issues in paragraph 28 of the decision letter, saying:
"Overall, therefore, I conclude that the proposed development would replace a fairly non-descript house with a larger and more visually interesting building. I do not consider that this would be harmful to the character or visual amenities of the area. I am very concerned, however, about the impact of the development on the living conditions of the occupiers of Number 16 Woodside Road due to the unacceptable degree of overlooking and loss of privacy that would result. This would be harmful to their living conditions and contrary to the provisions of the development plan. I do not consider that this could be overcome by the imposition of conditions and, due to the severity of the harm, I conclude that this outweighs the benefits of the development. I conclude that the appeal should not succeed."
He therefore dismissed the appeal.[7]On behalf of the claimant, Mr Frazer-Urquhart challenges the Inspector's decision on four grounds. First, he submits that in dismissing the appeal on the second issue the Inspector acted unfairly. That issue had not been raised by the second defendant and the Inspector had not identified it as one of the main issues at the outset of the inquiry. Rule 16 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 ("the Rules") provides, so far as material:
"(2) At the start of the inquiry the Inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear. (3) Nothing in paragraph 2 shall preclude any person entitled or permitted to appear from referring to issues which they consider relevant for the consideration of the appeal which were not issues identified by the Inspector pursuant to that paragraph."
[8]As the Inspector mentioned in paragraph 19 of the decision letter, having heard the second defendant's evidence he heard evidence from a number of interested persons. They included Mr Fowler, the owner of Number 16 Woodside Road. Mr Fowler had written to the second defendant objecting to the grant of planning permission. His objections included the ground that there would be unacceptable overlooking and loss of privacy in respect of Number 16 Woodside Road. He reiterated this concern in his letter to the Planning Inspectorate dated 10th May 2004. Having said that the proposal would "greatly damage our standard of living", he said:
"I feel that if you would take some time out of your appeal time to visit my property and take a proper look from my viewpoint, it would provide you with a very different view of the said development."
In his evidence before the Inspector, Mr Fowler repeated his objection on the ground of overlooking and invited the Inspector to view the site of the proposed development from Number 16. At the conclusion of Mr Fowler's evidence, the Inspector said that he would accept that invitation.[9]After the interested parties had given their evidence, the Inspector heard evidence from the claimant's witnesses. The claimant's planning witness, Miss Dixon, was well aware of the fact that although the second defendant had not objected on the ground of privacy or overshadowing, those issues had been raised by local residents. In paragraph 5 under the heading "Privacy and Overshadowing", she said in paragraph 5.15 of her proof of evidence:
"Again, this issue does not form part of the reason for refusal and is not therefore an issue for the Council. However, it was one of the concerns raised in the third party representations."
Her proof of evidence then dealt with the issue generally and dealt specifically with the impact of the proposed development on Number 5 Woodside Road and on the properties situated on the eastern side of Woodside Road, including Number 16 Woodside Road. In respect of the latter she said this in paragraphs 5.19 to 5.24:
"(5.19) Properties situated on the eastern side of Woodside Road are sited at a lower level than the appeal proposal but towards the rear of their individual plots the building-to-building separation between the proposed building and Numbers 16 Woodside Road and 28 Mount Harry would be a minimum of approximately 32 metres and 40 metres respectively, which is well in excess of the spacing guidelines advocated in Kent Design. Furthermore, the building will be set at an angle in relation to these two properties. Any views from it would therefore be oblique views because of this orientation. (5.20) In addition, the proposal was amended (letter and drawings dated 16th December 2003) to exclude the door window in the eastern roof slope to address the neighbours' concerns at that time about the relationship with 16 Woodside Road. (5.21) This, together with the intervening trees and landscaping will create an acceptable relationship between the proposed building and the existing properties on the opposite side of Woodside Road, without any material loss of privacy or overbearing effect. (5.22) This relationship is comparable to that between the newly erected pair of dwellings at Number 7 Woodside Road which was approved by the Council under delegated authority on 13th July 1998. (5.23) Furthermore, neighbour objections centred on the impact of the proposed building on the garden area to Number 16 Woodside should be balanced against the fact that the rear garden area to that property is effectively used up by a large extension to the property. (5.24) As such, the proposal complies with criteria 3 of policy EN1."
[10]In another section of her proof of evidence, Miss Dixon set out her analysis of the third party representations. In that analysis she said that the 39 letters of objection received in response to the appeal reiterated the objections that had been put forward at the application stage. She then summarised the points that had been made in the letters of objection and they included "overlooking, overbearing and loss of amenity/light to neighbour (25 letters)". She then set out her response to those various points which included:
"Furthermore, I have demonstrated that the proposed development will not impact harmfully on the residential amenities of occupiers or adjacent occupiers through unacceptable loss of privacy or overbearing effect."
Neither she nor Mr Fowler were cross-examined on the second issue.[11]In a witness statement, the Inspector describes the course of the inquiry and says:
"Turning to Mrs Dixon, I asked her about Kent Design and whether the cited advice related to the privacy of gardens or just to building-to-building distances. She responded by referring to the site conditions, trees levels, densities and concluded that there is not an overlooking issue. It has not much bearing on two/three storey buildings. There is a need to look at the surrounding context and I do not consider it is necessarily useful to apply 21 metres distance between new/existing development. Having received that response, there did not seem to be much more to ask on the subject. The acceptability of the development as regards overlooking/privacy would only really become clear at site visit."
[12]Mr Frazer-Urquhart submits that although the second issue was clearly raised by Mr Fowler at the inquiry, its significance, and the fact that it was a main or determining issue, could only have become apparent to the Inspector on his site visit, otherwise he would have identified it as such at the outset of the inquiry, having previously read the residents' letters of objection. He submits that having realised the importance of the second issue on the site visit, fairness required the Inspector to alert the parties to that effect and to invite them to make further representations and/or to reopen the inquiry to enable further evidence to be received. Since he failed to do so, he did not give the claimant a fair crack of the whip: see Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255.[13]Whether or not a party to an inquiry has been given a fair crack of the whip will very much depend upon the particular circumstances of the case. There is a useful discussion of the applicable principles in Castleford Homes v Secretary of State for the Environment, Transport and the Regions and Royal Borough of Windsor and Maidenhead [2001] EWHC Admin 77, [2001] PLCR 470. In paragraph 52 of his judgment, Ouseley J said this:
"The relevant law, though not cited to me, is to be found in cases such as Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255 at 1266 . . . Did the claimant have a fair crack of the whip? Was the claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated, or is he trying to improve his case subsequently, having been substantially aware of or alerted to the key issues of the inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence failed to put forward his fall-back case. Those are the sort of questions which can be used to guide inclusion as to whether the manner in which a particular issue was dealt with at an inquiry involved a breach of natural justice and was unfair."
[14]The claimant in the present case was not deprived of an opportunity to present as much material as he wished in respect of the second issue by an approach adopted on the part of the Inspector which he could not reasonably have anticipated. The issue of overlooking in general, and the impact of the proposed development on the privacy and amenity of Number 16 Woodside Road in particular, were squarely raised before the Inspector. They were "fairly and squarely at issue". Although the second issue had not been raised by the second defendant, the claimant could reasonably have anticipated that the Inspector might be persuaded by the force of Mr Fowler's objection. It is plain from Miss Dixon's proof of evidence at the inquiry that she realised that this was an issue and that it had to be dealt with in some detail. Having heard Mr Fowler's oral evidence, she had an opportunity to add whatever she might have wished to add to the material set out in her written proof of evidence. The Inspector asked her about the applicability of the Kent Design guide. Having received her answer, which in essence reiterated her position that there would be no unacceptable overlooking, as the Inspector said in his witness statement, further questioning was really unnecessary since this was a dispute that could only sensibly be resolved at the site inspection.[15]Mr Frazer-Urquhart submitted that if after the site inspection the Inspector had identified this as a main issue, then the claimant would have wished to lead additional evidence. In my judgment, this is an example of a claimant trying to improve his case subsequently, having failed to realise that he might lose his appeal on a matter that was in issue at the inquiry.[16]The second main issue had been raised by Mr Fowler and others in correspondence prior to the inquiry. Thus the claimant had an opportunity to present whatever evidence he wished in response. Having heard Mr Fowler amplify his objection in his oral evidence, the claimant had a further opportunity to respond. The claimant now seeks to put before this court photographs showing views from scaffolding that was erected on the site after the decision letter, and also photographs showing summer views from the site with the boundary trees in leaf. It is not suggested that that material was available at the inquiry.[17]Since it could have been reasonably anticipated that Mr Fowler's objection, which he had raised long before the inquiry, might be regarded as significant by the Inspector, the claimant clearly had ample opportunity to present whatever photographic evidence (for example, summer and winter views) he wished at the inquiry. I do not accept that fairness would have required the Inspector to adjourn to enable the claimant to supplement his case by the additional evidence which he sought to present before this court. If there was not to be an adjournment to enable further evidence to be gathered, it is difficult to see what more could have been said on the topic. Both Mr Fowler and Miss Dixon had had an opportunity to set out their respective positions. It was plain that the dispute between them could only be resolved on the site visit.[18]I can well understand that the claimant is greatly disappointed by the Inspector's conclusions, but from the outset of the inquiry it should have been foreseeable that the Inspector might be persuaded by the views expressed by local residents on this, and indeed on the other issues they raised. Equally, it would have been appreciated that the Inspector would conduct a site visit and that whatever impression he gained would be gained at a site inspection in December. In all the circumstances, I do not accept that there was any unfairness on the Inspector's part. This was a matter which was fairly and squarely at issue during the inquiry. The fact that in the event the Inspector accepted Mr Fowler's evidence rather than Miss Dixon's evidence on this point does not mean that there has been any unfairness.[19]I move to the second ground of challenge which is that the Inspector failed to have regard to relevant factors, namely the existing trees on and around the appeal site. It is submitted that the Inspector failed to have regard to this matter because in paragraphs 22 and 23 he did not mention those trees. The difficulty with this submission is that the decision letter has to be read as a whole. Once that is done, it is plain that the Inspector was well aware of the existence of the trees and a boundary hedge on the site. In paragraph 2 of the decision letter the Inspector describes the appeal site and specifically mentions the existence of a number of trees that are protected under the provisions of a tree preservation order. He also mentions that the order extends to trees outside the appeal site.[20]When dealing with issue one, the Inspector made a number of references to the hedge and perimeter trees when considering whether or not the proposed development would be harmful to the character or visual amenities of the area. Without setting out those references in extenso, the Inspector refers to that aspect of the appeal in, amongst other places, paragraphs 11, 14 and 15. In addition, when dealing with the impact of the proposed development on Number 5 Woodside Road, the Inspector specifically refers to there being a "very substantial tree screen" along the common boundary between Number 5 and the appeal site. In view of those numerous references to the extent of the tree cover on and around the appeal site, it is wholly unrealistic to postulate that the Inspector had forgotten the very trees that he had mentioned earlier in the decision letter when he came to consider the impact of the proposals on the occupiers of Number 16 in paragraphs 22 and 23 of the decision letter.[21]The third ground of challenge is that the Inspector misunderstood the policy in the Kent Design guide and therefore erred in law in saying that the proposal would be contrary to the provisions of policy EN1 of the Local Plan and the advice in the SPG. Policy EN1(3) of the Local Plan is in these terms:
"The proposed development including any changes of use does not have an adverse impact on the privacy and amenities of a locality by reason of form, scale, height, outlook, noise or light intrusion or activity levels, including vehicular or pedestrian movement."
[22]The Kent Design document is specifically referred to in the Local Plan as a material consideration amplifying the policies in the Plan. Principle 8.6 in the guide is in these terms:
"Developments must ensure the protection of privacy and amenity for a variety of new and existing occupiers."
Paragraph 8.6.2 makes the point inter alia that "distance alone is a very crude measure of privacy." Paragraph 8.6.4 is in these terms:
"Local context will help determine the appropriate form and density of development. It is important, however, to ensure that the privacy of existing residents is safeguarded when assessing the impact of new development. As a guide, a distance of 21 metres between the unobstructed windows of habitable rooms in the private rear facades of dwellings has been found to be generally acceptable. This dimension may, however, vary according to the surrounding context."
Paragraph 8.6.6 deals with the position within new development and says:
"Within new development visual privacy can be achieved by a range of methods other than simply the distance between buildings or spaces. Individual units should be designed to prevent overlooking neighbouring private spaces and windows by employing the following methods where appropriate . . . "
[23]Mr Frazer-Urquhart submits that by contrast with the position within new development where it is permissible to have regard to overlooking private spaces, paragraph 8.6.4 deals with the impact of new developments on existing development, and if the guidance distance of 21 metres between unobstructed windows of habitable rooms is met then, subject to the surrounding context, the impact on private spaces has, by necessary implication, already been taken into account. He submits that the Inspector considered the surrounding context under the first issue and concluded that there would be no harm. In summary, his submission is that the guide distance of 21 metres having been met, there was no basis on which the Inspector could conclude that there would be an unacceptable impact on the private amenity space of Number 16.[24]I do not accept that submission. It seems to convert what is intended to be a guide into a legalistic straight jacket. It is clear from paragraph 23 that the Inspector was well aware of the terms of both EN1(3) of the Local Plan and the advice in principle 8.6 of the Kent Design guide. The Inspector correctly stated that:
"This advises that developments must ensure the protection of privacy and amenity for a variety of new and existing occupiers."
The Inspector then refers to paragraph 8.6.4, saying that it suggests as a guide that a distance of 21 metres between the unobstructed windows of habitable rooms in the private rear facades of dwellings has been found to be generally acceptable. Thus the Inspector was well aware of the point that was being made on behalf of the claimant by Miss Dixon in her evidence. However, the Inspector then explains why he does not feel it appropriate in the circumstances of this case to apply that guide figure because he considers that it is the private amenity space of Number 16 that warrants some protection. He then considers the impact of the proposed development on that private amenity space and concludes that there would be an unacceptable degree of overlooking. That being his conclusion, in my judgment, he was entitled to say that that would indeed be contrary to the provisions of policy EN1(3) and the advice in the SPG that "developments must ensure the protection of privacy and amenity for a variety of new and existing occupiers". I see no reason why the privacy of private amenity space should not be considered under principle 8.6 of the design guide. It should be noted that the design guide is at pains to point out that distance alone is a very crude measure of privacy.[25]Lastly, Mr Frazer-Urquhart makes the bold submission that the Inspector's decision was simply perverse. He relies upon the matters to which I have already referred and also submits that the Inspector's overall balancing conclusion was unreasonable given the large range of factors which pointed in favour of a grant of planning permission. Those factors were that the proposal was for housing in an area of high demand at appropriate density and on previously developed land and in that respect accorded with the objectives of the development plan (a matter mentioned by the Inspector in paragraph 18), that it was located in a relatively accessible location with access to public transport (a matter mentioned in paragraph 25 of the decision letter), that the new building would be architecturally more attractive that that which it replaced and would be in keeping with the character of the area (a matter mentioned in paragraph 18 of the decision letter), and that it would lead to a "significant improvement" in a substandard and potentially dangerous road junction (a matter referred to in paragraph 24 of the decision letter).[26]It will be seen that this is not a case where it is suggested that the Inspector, in carrying out the balancing exercise, failed to have regard to any material factor. On the contrary, it is plain from Mr Frazer-Urquhart's submission that the Inspector did indeed take all of these matters into account. I have already mentioned the fact that in the final sentence of paragraph 27 the Inspector made it clear that there was nothing in the other matters that outweighed his conclusions on the main issues. The submission therefore has to be that it was simply not open to the Inspector to conclude that the appeal should be dismissed on the second main issue.[27]Any claimant challenging an Inspector's decision on perversity grounds has a high hurdle to surmount. In the present case, that hurdle is all the higher, since it is clear that this was one of those appeals where the Inspector's impression on the site inspection was of critical importance. The Inspector has had the advantage of accepting Mr Fowler's invitation and considering the impact on Number 16 Woodside Road from that property. That being the case, it is really quite impossible for this court to conclude that the Inspector's decision was perverse.[28]For the sake of completeness I should mention the fact that in his skeleton argument Mr Frazer-Urquhart submitted that the Inspector erred in his conclusion in paragraph 22 that the balconies in the proposed development were capable of being stood upon. It is submitted that in fact:
"They were designed such that a person could not comfortably stand out on them and the likelihood of a person ever doing so was remote, this being a point the claimant would have advanced strongly in further evidence had the Inspector called for the same."
If one reads paragraph 22 it is plain that the Inspector was well aware of the limitations of the balconies. He states in terms:
"While these balconies would be only 600 millimetres deep, they would be accessible through French windows and be wide enough for standing on."
It is not suggested that they would not be wide enough to stand upon and it must have been perfectly obvious that it would not be particularly comfortable to stand on a 600 millimetre deep balcony. There can be no doubt that the Inspector understood the detail of the proposal that was before him.[29]Mr Frazer-Urquhart urged me to consider the impact of the four grounds set out above cumulatively. I have done so and accept that the claimant must be very disappointed at the outcome of the appeal, having managed to persuade the second defendant that there was no privacy issue, but the short answer to the grounds of appeal is that that issue was squarely raised by Mr Fowler. It could have been anticipated that he would raise that issue at the inquiry in view of his earlier correspondence, and it could reasonably have been anticipated that the Inspector might prefer Mr Fowler's evidence having carried out a site inspection. That is what occurred. In the circumstances there is no unfairness and, although the claimant profoundly disagrees with the outcome of the appeal, it cannot be said that the Inspector's conclusion was one which was not open to him.[30]For all of these reasons, this application must fail.[31]MR COPPEL: My Lord, I am grateful. I would ask for an order for the claimant to pay the first defendant's costs, there be summary assessment and that that summary assessment be in the sum of £5,481. Does your Lordship have a copy of the schedule?[32]MR JUSTICE SULLIVAN: I do not think I do, actually. (Handed). Thank you. Can I check with Mr Frazer-Urquhart whether there is a dispute as to principle or detail.[33]MR FRAZER-URQUHART: There is no dispute as to principle, my Lord. There is a dispute over the detail of the amounts.[34]MR JUSTICE SULLIVAN: Right. Can you identify what the dispute is?[35]MR FRAZER-URQUHART: Yes, my Lord. It is on the second page: work done on documents.

MR JUSTICE SULLIVAN: Yes.

[37]MR FRAZER-URQUHART: Just glancing down the columns, there is a total of almost 7.8 hours of work on documents in the context of a case where what has been produced by the first defendant is a relatively short witness statement and then legal submissions from my learned friend. I do not quibble, of course, with any of that. It does seem somewhat extraordinary though in the context of this sort of case that some 7 hours of work, the majority of which done by the most senior of lawyers involved, can have been properly generated.[38]MR JUSTICE SULLIVAN: Yes. Do you want to say anything about that, Mr Coppel?[39]MR COPPEL: My Lord, first of all, it needs to be borne in mind that the Treasury Solicitor comes to these matters fresh unlike the claimant. They have not had the benefit of the planning inquiry to familiarise themselves with the matter that comes before the court. Secondly, the total amount which one must look at is modest. The documents are not, of course, just the witness statement, although that must be included, but instructions to counsel. In the circumstances, the figures are quite reasonable and one notes that the claimant's work on documents is 3.6 hours, they, of course, having the benefit of previously having prepared for the planning inquiry.[40]MR JUSTICE SULLIVAN: In fact I do not have the comparable summary costs of the claimant. I did not get the two lots.[41]MR COPPEL: I am sorry, my Lord, may I hand up mine. (Handed).[42]MR JUSTICE SULLIVAN: Yes. I see.[43]MR COPPEL: My Lord, I do not propose to say anything further unless you wish to hear from me.[44]MR JUSTICE SULLIVAN: No, thank you. I think, doing the best I can and knocking off a couple of hours, one of them at £160 an hour and one at £80 an hour, that would knock off about £240. Rounding it up to £281, I knock off that and summarily assess the costs in the sum of £5,200. Anything else?[45]MR COPPEL: No, my Lord.[46]MR FRAZER-URQUHART: No.

MR JUSTICE SULLIVAN: Thank you both very much.

Cited in 4 later judgments