Orange PCS Ltd & Ors, R (on the application of) v London Borough of Islington [2005] EWHC 963 (Admin)

Case No CO/4624/2004[2005] EWHC 963 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 9 May 2005
Strand
London WC2
B E F O R E:
MR JUSTICE CRANE
Between
THE QUEEN ON THE APPLICATION OFClaimantORANGE PCS LIMITEDClaimantCROWN CASTLE UK LIMITEDClaimantHUTCHINSON 3G (UK) LIMITEDClaimant-v-
Between
THE LONDON BOROUGH OF ISLINGTONDefendant
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 CHRISTOPHER KATKOWSKI QC AND MR TIM BULEY (instructed by Burges Salmon) appeared for CLAIMANTMR REUBEN TAYLOR (instructed by London Borough of Islington) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE CRANE: This application for judicial review relates to planning permission for certain telecommunications equipment at Canonbury Telephone Exchange in what is now the Highbury New Park Conservation Area. The installation includes antennae, dishes, a cabin and ancillary work. The principal issue before the court is whether certain Withdrawal Notices dated 25 June 2004 withdrawing certain Enforcement Notices (as varied) should be quashed. There is a second issue as to whether the claimants should have pursued an alternative remedy. For reasons that will appear, I shall in fact decide the principal issue.[2]At the centre of the case is what effect the designation of the Conservation Area had on planning permission already granted in accordance with the Town and Country Planning (General Permitted Development) Order 1995 ("the Development Order") made under the Town and Country Planning Act 1990 (the principal Act). I turn to the history.[3]On 30 October 2000 the first claimants made a full planning application for the installation at the Canonbury Telephone Exchange. There followed discussions between the first claimants and the defendant local planning authority, and agreement was reached that the Development Order Part 24 applied. In February 2001 the first claimants therefore withdrew their full planning application and applied for prior approval under the Development Order Part 24, paragraph A.2(4), which involved the submission of details and plans.[4]On 4 April 2001 the defendants issued a prior approval notice, which in fact said that prior approval of details of siting and appearance were not required. But that in fact had the effect that the planning permission granted was for work in accordance with the details and plans submitted. Following that, the second claimants, as agents for the first claimants, commenced the installation work. In March 2002 the third claimants notified the defendant of an intention to install additional equipment. This was an installation for which no prior approval was required. Part of the additional equipment was to be attached to the equipment installed by the second claimant, and part was separate.[5]In May 2002 both the second and the third claimants completed work. But it is common ground that the work carried out by the second claimant, and consequently the attached work carried out by the third claimants, did not comply with the details and plans that had been submitted. The separate work carried out by the third claimants complied with the law.[6]On 14 October 2002 the Conservation Area was designated. It included the site of these installations, which site became "Article 1(5) land" for the purpose of the Development Order. In February and in August 2003, four Enforcement Notices were issued by the local planning authority. The effect of them was to require the removal of all the equipment installed by the second claimant and the relevant equipment installed by the third. The claimants appealed against those Enforcement Notices under section 174 of the principal Act.[7]Discussions followed between the claimants and the defendants. Following that, the claimants agreed to withdraw their appeals and the defendant agreed to vary the original Enforcement Notices. On 9 January 2004 Enforcement Notices varied under section 173A of the principal Act were issued. The effect of those varied Enforcement Notices was to require alterations to bring the installation into line with the details and plans that had been submitted. The precise wording of the original Enforcement Notices and the varied Enforcement Notices differed in paragraph (3), but I am persuaded that, in the end, nothing turns on that difference.[8]There is no doubt that alteration work at least commenced. But before work had been completed, on 25 June 2004 the Withdrawal Notices were issued. According to the claimants, the alteration work was close to completion. In the Withdrawal Notices, the defendant said this:
" ... no permitted development rights exist pursuant to the Town and Country Planning (General Permitted Development Order) 1995 which would permit the development that the [Enforcement] Notices require to be carried out."
[9]In a letter of the same date, the Council said this:
"The Council has now received counsel's opinion, as a result of which the Council is firmly of the view that permitted development rights granted by the Town and Country Planning (General Permitted Development) Order Article 3(1), Schedule 2, Part 24 no longer apply to the above site. This is because of the inclusion of the site in the Highbury New Park Conservation Area on 14 October 2002. In the light of counsel's opinion the Council is further of the view that prior approvals granted before the designation of the site as a Conservation Area cannot be relied upon to authorise erection following such designation. Development has not occurred in accordance with the details in the prior approval and Notice of Intention. The works undertaken are therefore in breach of condition and unlawful. Permitted development right cannot therefore be relied upon now to carry out the development because of the Conservation Area designation."
[10]A new Enforcement Notice was issued requiring the removal of the installation. Work in fact continued, and the claimants' case is that, on 5 July 2004, some four days before the deadline that had been laid down by the defendant, the alteration work was completed. According to the claimants, the alteration work resulted in the installation complying with the original approved work. The defendants reserve their position on whether the installation is now compliant. The claimants appealed against the Enforcement Notice dated 25 June and that appeal is due for hearing before an inspector in the near future.[11]The claimants also applied for permission to apply for judicial review, permission which was granted on 2 November 2004 by Forbes J on the papers.[12]It is clear that the claimants were at fault in not complying with what was the equivalent of prior approval. The work, it is accepted, did not follow in a number of respects to the details and plans submitted. However, it is clear from the correspondence that the defendant had in mind the existence of the Conservation Area at all material times following its designation, and it is, to say the least, unfortunate that, having agreed to the alteration work in January 2004 and allowed the work to continue for several months, they then hit upon a different view of the law and issued the Withdrawal Notices. Nevertheless, the court is faced with deciding the legal issue. I turn to the basic planning legislation.[13]As is well-known, by section 57(1) of the principal Act, planning permission is required for the carrying out of any development (as defined by section 55) on land. The only two relevant routes for present purposes to planning permission are in section 58(1), which reads:
"Planning permission may be granted—(a) by a development order;(b) by the local planning authority ... on application to the authority in accordance with a development order; ... "
[14]If the local authority are granting planning permission under section 58(1)(b), they must by section 70(1) have regard to the relevant Development Plan and other material considerations. I note in passing that section 73A provides for the granting of planning permission for development already carried out, for example without complying with some condition. By section 91(1), planning permission granted by the local planning authority must be begun within five years or such other period as the authority directs. But section 91(4)(a) makes it clear that this provision does not apply to planning permission granted by a Development Order. I therefore turn to the Development Order.[15]Section 59(1) requires the Secretary of State by order (a Development Order) to provide for the granting of planning permission. Section 59(2) reads:
"A development order may either— (a) itself grant planning permission for development specified in the order or for development of any class specified; ..."
[16]Section 60(1) provides that such permission may be granted subject to such conditions and limitations as may be specified in the order, and section 60(2) provides for the order to require approval of design or appearance.[17]The Development Order has been amended from time to time, but it is common ground which version was in force at the relevant dates in 2001. Article 1(5) of the Order defines "Article 1(5) land" as including land within a Conservation Area. Article 3, so far as is relevant, deals with permitted development and reads as follows:
"3(1) Subject to the provisions of this Order ... planning permission is hereby granted for the classes of development described as permitted development in Schedule 2. (2) Any permission granted by paragraph (1) is subject to any relevant exception, limitation or condition specified in Schedule 2."
[18]Schedule 2, Part 24 relates to electronic communications installation, and I then go to Part 24. Under Part 24, Permitted Development is, so far as relevant, defined as follows under Class A:
"A. Development by or on behalf of a telecommunications code system operator for the purpose of the operator's telecommunication system in, on, over or under land controlled by that operator or in accordance with his licence, consisting of— (a) the installation, alteration or replacement of any telecommunication apparatus, ..."
[19]There then follows under A.1 development that is not permitted, and that is not permitted in several circumstances.

(h) , which reads:

"in the case of development ... of any Article 1(5) land ... it would consist of- (i) the installation or alteration of an antenna or of any apparatus which includes or is intended for the support of such an antenna ..."
Thus, Schedule 2, Part 24 A.1(h) excludes Article 1(5) land, in other words, land in a Conservation Area. I am asked by counsel for the claimants to notice in particular the words "it would consist of" (my emphasis).[20]Then one comes to A.2, which deals with various conditions. I am cutting short some details which are common ground, but such development, as the first claimant wanted, is permitted subject to certain conditions. Under A.2(4), the crucial sub-paragraphs are (ii) and (iii)(aa):
"(ii) before beginning the development, the developer shall apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development; (iii) the application shall be accompanied— (aa) by a written description of the proposed development and a plan indicating its proposed location together with any fee required to be paid; ..."
[21]It is conceded that the word "siting" means that the local planning authority may decide whether the location is suitable for the installation at all. By (iv) the development shall not be begun unless, inter alia, the applicant has received from the local planning authority a written notice of their determination that such prior approval is not required. But by (v), the development must in such a case be carried out in accordance with the details and plans submitted with the application. Thus, indication that prior approval is not required has the effect of giving prior approval in practice to work carried out in accordance with the details and plans. By (vi), in such a case the development shall be begun not later than five years after the details and plans were submitted.[22]I turn to the question of enforcement. By section 171A(1) of the principal Act, development without planning permission, or development that fails to comply with any condition or limitation, constitutes a breach of planning control. Generally, no enforcement action in relation to building operations (which would include the present installation) is permitted after four years from substantial completion of the work: see section 171B(1).[23]Section 172(1) provides for the issue of an Enforcement Notice where there is a breach of planning control. Section 173(12) indicates that if work is carried out in accordance with an Enforcement Notice, the result is deemed planning permission for that work. Section 173A provides that the local planning authority may withdraw an Enforcement Notice whether or not that Notice has taken effect.[24]Section 174 provides for appeals against Enforcement Notices to the Secretary of State. In practice, there will of course be a hearing before an inspector. Section 174(2) sets out various possible grounds for an appeal. Sub-paragraphs (a) (c) (f) and (g) are relevant and relied on here. It is only necessary for present purposes to note that sub-paragraph (c) permits an appeal on the ground that matters, if they occurred, did not constitute a breach of planning control, thus legal issues are capable of decision on such an appeal. The powers of the Secretary of State by section 177(1)(c) include a power to determine whether any operations were lawful and to issue a certificate to that effect under section 191. To complete the description of the result of an appeal, I note that there is a right of appeal to the High Court on a point of law: see section 289(1).[25]I turn to the law relating to Conservation Areas. These are governed by the Planning (Listed Buildings and Conservation Areas) Act 1990. Section 69(1) reads:
"Every local planning authority— (a) shall from time to time determine which parts of their area are areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance, and (b) shall designate those areas as conservation areas."
[26]Section 72(1) reads:
"In the exercise, with respect to any buildings or other land in a conservation area, of any powers under any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
Sub-section (2) of section 72 indicates that among those provisions are the planning Acts themselves. So, at least from the date of designation, the site of the present installation became Article 1(5) land.[27]I turn then to the provisions of the principal Act, providing for power to revoke or modify planning permission. Section 97(1) permits the local planning authority, if it appears to them to be expedient, to revoke or modify any permission to develop land granted on an application. Section 97(3)(a) indicates that such a power may be exercised in circumstances relevant to this case "at any time before those operations have been completed". But section 97(4) reads:
"The revocation or modification of permission for the carrying out of building or other operations shall not affect so much of those operations as has been previously carried out."
[28]Note that section 97 applies whether or not there are conditions still to be fulfilled, but any revocation or modification of planning permission under section 97 is subject to a right to claim compensation under section 107. The right to such compensation will depend on the person interested in the land showing that certain kinds of loss or damage have been incurred.[29]I then return to the Development Order. Article 4(1) is entitled, "Directions restricting permitted development", and reads as follows:
"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 of 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—(a) all or any development of the Part, Class or paragraph in question in an area specified in the direction; or(b) any particular development, falling within that Part, Class or paragraph, which is specified in the direction and the direction shall specify that it is made under this paragraph."
[30]Article 4(3) indicates that such a direction shall not affect the carrying out of any development mentioned in Part 24 unless the direction specifically so provides. In many circumstances, the local planning authority require the approval of the Secretary of State before giving a direction: see Article 5. These powers can be used provided development has not been carried out. That interpretation is consistent with dicta of Lord Goddard CJ in Cole v Somerset County Council [1957] 2 QB 23. The question arises in some circumstances whether "carrying out" means "substantially completed", but that question is not crucial for present purposes.[31]I note in passing Article 4(2). It was not relied on specifically by counsel, but it is of interest because Article 4(2) contemplates the use of Article 4 (in certain circumstances not directly relevant) in relation to Conservation Areas. Article 4(2) is different since it appears to require no approval by the Secretary of State. Although compensation is not immediately payable on the giving of a direction under Article 4, it is conceded that it may be payable if planning permission is then refused: see section 108(1).[32]It is relevant to note that the following transitional provision appears in the 2001 Order amending the Development[33]I turn to the submissions. It is submitted on behalf of the claimants that the grant of planning permission by Development Order, in a prior approval case at least, is a mirror image of such a grant by the local planning authority. Whatever may be the situation in a case not requiring prior approval, it is said that the giving of prior approval crystallises and defines the extent and nature of the permission in such a way that there are then accrued rights similar to those resulting from the grant of planning permission. So, it is argued, after prior approval, there is an accrued right to develop. Hence, the defendant had no power to require removal as distinct from compliance with what was approved.[34]The claimants' counsel points to the fact that planning permission is by each route "granted". He also points to the existence of a limitation of time in each case. It is submitted that, although once planning permission is granted, subject to a condition of approval of, say, landscaping, the local planning authority can, and indeed must, take into account a designation in connection with such approval, and thus the local planning authority cannot deprive the applicant of the benefit of planning permission. Counsel also points to what he describes as the general legal presumption against retrospective legal provisions where reliance will have been placed upon them.[35]Counsel for the defendant relies on what appears to be the only authority of possible relevance in relation to the Development[36]As I have indicated, counsel for the defendant relies on the reasoning in that judgment, but I am bound to say that, in my view, the reasoning turns on the wording and the particular situation that arises in class B cases involving related work on a dwelling house. In the result, I have not found it of assistance in the present decision.[37]Counsel for the defendant further submits that grant by Development Order is a privilege, but as I have indicated in argument, I do not accept that submission. It seems to me that it is one of the two main routes to planning permission, designed to deal with the more common and acceptable forms of development.[38]In his helpful skeleton argument, counsel for the defendant, Mr Taylor, set out a series of possible points at which crystallisation of the permitted development rights might be held to occur. The following points were listed by him: Point 1: any date after the date on which the Development Order came into effect. Point 2: any date after the date on which the application for prior-approval was made; or, he now concedes, after the need for prior approval had been declined. Point 3: any date after the date of actual approval, if such actual approval is given. Point 4: any date after development has begun. Point 5: any date up until the date on which the development has been substantially completed.[39]He also submits as follows. The claimant's interpretation, he says, does not accord with the ordinary meaning of the words in the Development Order or the structure of the principal Act, and in particular with section 97. He submits that the claimants' interpretation does not accord with Article 4 of the Development Order, or the approach of the court in Watts. He submits that it does not accord with the structure of the Development Order in that it would have the consequence that, in respect of classes A and B, designation of Conservation Areas after 3 June 1995 would have no effect on permitted development rights under those classes. He submits that it would be contrary to the intention of Parliament that development within Conservation Areas should be controlled to preserve or enhance the character or appearance of Conservation Areas.[40]In my conclusions I note first that there is no reliance in this case by the claimant on any principle of estoppel or on the Human Rights Act. There are clearly both similarities and dissimilarities between a grant of planning permission by the local planning authority and a grant by Development Order. Grants by Development Order include both grants where prior approval is required, and those were it is not. Why is it that a grant by the local planning authority results in rights which can be described as "acquired"? The answer is that, even before permission is fully defined, permission can only be revoked or modified by reliance on a specific statutory power, namely section 97, which carries a right to compensation.[41]It is conceded, I think, and certainly is in my view correct, that a grant by Development Order where there is no prior approval required carries no acquired right to develop until work is substantially completed. The difficulty arises in relation to grant by Development Order where prior approval is appropriate. The answer to this question is not in my view at all straightforward. It seems to me that there are sufficient differences between a grant by the local planning authority and a grant by Development Order for me to disagree with claimants' counsel, Mr Katkowski QC, that the latter is a mirror image of the first.[42]My approach is this. Once a prior approval is given, the extent of the permission is clearly crystallised or defined. On the day before the designation of a Conservation Area, such permission is effective. It is necessary therefore for the defendant to demonstrate that the designation has the effect that, on the day after the designation, no such permission exists. As a matter of law, the fact that here there was an unlawful installation makes no deference. The point would be the same in law if there had been no attempt to carry out any work. The argument is that the permission cannot now operate because the Article is now Article 1(5) land. At this point I disagree with the claimants' counsel that the word "would" in sub-paragraph (h) of Schedule 2, Part 24 points in his favour. I am inclined to the view that, even without the existence of Article 4 of the Development Order, there is insufficient indication in the legislation that the designation of a Conservation Area takes away what had been granted and defined.[43]But the strongest argument in the claimants' favour which ultimately persuades me is that Article 4 is available. Article 4 undoubtedly permits in certain circumstances a direction which would require a specific application for planning permission. Although Article 4 can operate in a number of circumstances, it plainly can operate in a situation where a Conservation Area has been designated. In my view the scheme of the Act and of the Development Order points to Article 4 as being the correct route for a local planning authority to use, if so advised, in a situation such as the present. Article 4, if there is a further application and it is refused, can result in a right to compensation. It seems to me, therefore, that the Withdrawal Notice was wrongly issued, and that, subject to counsel's submissions, the remedies sought are available.[44]Before dealing with those, I must deal with the subsidiary issue relating to the existence of an alternative remedy. The defendant argues that the claimant should simply proceed with the appeal. Factual and legal decisions can be made, and they would include a decision on whether the alterations made now comply with the original prior approval. The claimants argue that no alternative remedy exists which could result in the quashing of the Withdrawal Notices, and therefore there is no power to reinstate the varied Enforcement Notices. I have been referred on the subsidiary issue to R v Devon County Council ex.p Baker [1995] 1 All ER 73. At page 92, Simon Brown LJ said this:
"Which of two available remedies, or perhaps more accurately, avenues of redress, is to be preferred will depend ultimately upon which is the more convenient, expeditious and effective. Where ministers have default powers, application to them will generally be the better remedy, particularly where, as so often, the central complaint is in reality about the substantive merits of the decision. The minister brings his department's expertise to bear upon the problem. He has the means to conduct an appropriate factual inquiry. Unlike the court, moreover, he can direct a solution rather than merely lead the authority to redetermine the question. Where, on the other hand, as here, what is required is the authoritative resolution of a legal issue, issue no 1, then, in common with Dillon LJ, I would regard judicial review as the more convenient alternative remedy."
[45]I note that in the passage in the judgment of Dillon LJ, at page 87, his wording mimics the appropriate circumstances for the court to decide more than does Simon Brown LJ. However, clearly the matter is ultimately one of discretion, although a discretion to be exercised in a particular way, as Simon Brown LJ indicates. I bear in mind that, in the present case, there is a right on an appeal for the public to participate before the inspector. If there were issues other than legal issues to decide, that would be a crucial consideration. Nevertheless, I am simply being asked to decide the legal issue, and on that legal issue, it is not one on which the public would be able to add to the inspector's review of matters.[46]I am asked by the claimants to bear in mind, in particular, the position of the third claimant insofar as their work was not subject to prior approval. If they carry out work the subject of an Enforcement Notice, they have the possibility of relying on section 173(12), which they could not if the matter proceeded simply by way of the appeal.[47]If I had simply declined to express a view or to decide the legal issue, the inspector would have gone on to decide the appeal. He would have decided the legal issue, but no doubt would have gone on to decide other issues. If I express a view and decide the legal issue but refuse a remedy, the appeal will continue. The inspector would be faced with the legal issue, but presumably would have regard to the view of this court, and presumably he would not then regard it as necessary to go on to decide the other issues. If I grant a remedy, counsel for the claimant has made it clear that it would not be necessary for the appeal to proceed. Counsel for the defendant points out that there could still be an issue about whether the alterations now comply with the prior approval and that that might require further proceedings. However, the defendant has chosen not clearly to indicate that there is such a dispute. It has simply reserved its position.[48]The learned judge who granted permission for the application for judicial review did not give reasons, although the defendant had raised the issue of the alternative remedy. But at this hearing, neither party sought to raise as a separate preliminary issue the question of alternative remedy. I am bound to say that had either party sought a separate decision on the alterative remedy issue, I should have inclined to rule in the defendant's favour, and as a matter of discretion let the claimants pursue their appeal. Thus the outcome of this case should not necessarily be regarded as appropriate in other cases.[49]However, as matters stand, both issues have proceeded before the court. It would be inappropriate and inconvenient for me to decline to decide the main issue, and it would equally be inconvenient, now things have reached this point, for me to refuse a remedy. In my view, the convenience now is clearly in favour of granting the remedy sought, which I shall proceed, subject to counsel's assistance, to do.[50]MR BULEY: My Lord, I am very grateful. My Lord, in terms of the order and the remedies sought, your Lordship has the various passages, but in particular at paragraph 3 of the claimants' skeleton argument -- the remedy there set out that we originally sought in the claim form. It is in identical terms, I think.[51]MR JUSTICE CRANE: So you seek an order that the Withdrawal Notices be quashed and the first declaration be granted. But I think the second declaration is no longer wanted.[52]MR BULEY: Exactly so. Unless I can help any further on that issue, and your Lordship has obviously to come back to that, that is all I need to say about that at this stage. If I can also indicate, my Lord, there is also an application for costs.[53]MR JUSTICE CRANE: I am sure there will be, but just one moment. What do you say about the remedy?[54]MR TAYLOR: My Lord, we had a small discussion about the remedy during the course of the argument, and I think I indicated that I thought that if your Lordship were with the claimants, then these two remedies were the appropriate remedies in the circumstances.[55]MR JUSTICE CRANE: Very well. What I would be grateful for is, subject to any further orders I make about costs and so on, if an order could be drawn up between counsel and submitted to me.[56]MR BULEY: I am sure that can be done.[57]MR JUSTICE CRANE: But I will grant a remedy under 1 and 2 as set out. Now, you say costs?[58]MR BULEY: Indeed, my Lord. I do make an application for costs.

MR JUSTICE CRANE: Are you asking for summary assessment?

[60]MR BULEY: My Lord, no. Summary assessment is only appropriate on a one-day hearing. So it would be subject to detailed assessment, if not agreed.

MR JUSTICE CRANE: That is what I thought.

[62]MR TAYLOR: My Lord, I do not resist that application.[63]MR JUSTICE CRANE: Very well. Costs and a detailed assessment.[64]MR TAYLOR: My Lord, there is one remaining matter which is an application for leave to appeal. Your Lordship indicated during the course of the judgment that the answer to the central issue was not at all straightforward.

MR JUSTICE CRANE: I agree.

[66]MR TAYLOR: This is clearly a difficult point, and it is one which, in my submission, would benefit from the authoritative view from the Court of Appeal.[67]MR JUSTICE CRANE: I see that argument. One slight reservation I have about it is this, that I think it was submitted that this is not a point of general importance. I think you submitted that in your skeleton.[68]MR TAYLOR: I did.[69]MR JUSTICE CRANE: I know that is not the only consideration in relation to leave to appeal, but if you were right about that, it would point against granting permission on that basis. I would be granting permission on the narrower basis that there might be a different outcome.[70]MR TAYLOR: I think the way I put the point, to do my argument a little bit of justice, was to restrict it to the likelihood of it arising on a Part 24 sort of case, because one would have the relatively rare factual circumstances to take into account, namely a prior approval and then a subsequent grant of conservation (inaudible) designation, on my case, before the development has been carried out. Of course there were other aspects certain to the Council's case, particularly relating to the potential for the argument in this case to be used more widely in interpreting the GDPO. In my submission, those wider aspects of the argument are such that this is a matter which really does raise issues that the Court of Appeal ought to consider. I am not going to make any other points. That is the nub of the application.[71]MR JUSTICE CRANE: I see that. The other matter that seems to me possibly to be relevant is this. Although the claimants admittedly got things wrong in the sense that they did not comply with the prior approval, the general point is not dependent on that, I think it is agreed, and as I pointed out in the course of argument and mentioned in the judgment, the Council have blown hot and cold over this, although I did not put it quite like that. They changed their minds. I am just wondering whether this is a case in which, if the Council want the matter litigated further, they should bear the costs.[72]MR TAYLOR: In terms of an order so that, if there is an appeal, the Council should have to pay the costs of that appeal whatever the outcome?[73]MR JUSTICE CRANE: That is a possibility. You are wanting the matter litigated as a test of what this means. Now, is it an appropriate case for the Council to bear those costs of the appeal? I am simply raising it. I am not necessarily of that view at the moment.[74]MR TAYLOR: I have to say I cannot see any particular reason why the Council should, particularly given that an unusual route for the resolution of this particular issue has been chosen, and that normally in planning inquiries each side bears their own costs unless one party is seen to have behaved unreasonably. So one would have to bear in mind, notwithstanding the dismissal of the points about alternative remedy, that particular background to the resolution of these sorts of issues. In the light of that I would --

MR JUSTICE CRANE: Are you wishing to appeal both the main issue and the alternative remedy issue?

[76]MR TAYLOR: No. In the light of your Lordship's decision on that particular aspect, there seems little point in taking that aspect further forward -- simply the substantive issue.

MR JUSTICE CRANE: Let me see what Mr Buley says.

[78]MR BULEY: I am grateful, my Lord. My Lord, in relation to, as it were, the wider issue -- whether there is any public importance or any other reason why leave to appeal should be granted -- if I may say so, I echo my Lord's comments to Mr Taylor, namely that he has run this case previously in relation to alternative remedy on the basis that there is no wider point of public interest because effectively he says, and it is obviously right, that it affects only this case. If I may say so, my Lord, it is a bit -- and I say it with the greatest of respect -- it is a bit rich for him to say that he was putting that only in relation to Part 24. Your Lordship's judgment, as I understand it -- the only aspect is in relation to the interpretation of Part 24 and prior approval cases generally --[79]MR JUSTICE CRANE: As I hope I made clear, I have not regarded it as helpful to go extensively through the Schedule to compare other situations.[80]MR BULEY: Indeed. All I really say is it is difficult then to see the distinction he draws. In my submission, there is no wider public interest in this case because it affects -- it is very unlikely that it will ever affect any other case. My Lord, in relation to, as it were, the prospect of success, it is right that that is an alternative basis for appeal.[81]MR JUSTICE CRANE: That is right. I think it comes down to this, whether I think there is a real prospect of success.[82]MR BULEY: My Lord, just on that, I do not want to detain your Lordship long on this -- I suspect your Lordship has reached a view -- but the way your Lordship put it, I think, was to say that you did not find the issue straightforward. But your Lordship then went on to indicate that, even without Article 4, your Lordship, as it were, was inclined to come down in favour of the claimants' arguments. As I understand your Lordship's judgment, it was Article 4 that put the nail in the coffin of the defendant's position.

MR JUSTICE CRANE: Yes, not perhaps the firmest nail that has ever been put in any coffin.

[84]MR BULEY: I accept that. But nevertheless, in the light of your Lordship's approach to Article 4, which in my submission is correct, and one notes in particular, as I think little was said about it, but Article 4(2) which specifically provides for a direction in the case of where in a Conservation area designation has occurred after the grant of planning permission, that points, in my submission, very strongly to the conclusion that your Lordship has reached. In those circumstances it is my submission that there is no real prospect of a different conclusion being reached.[85]My Lord, very briefly on the point that your Lordship made to my learned friend about the defendant bearing costs, if your Lordship was -- I would respectfully support that suggestion, although if your Lordship was minded to make such an order, it may require Mr Taylor and I to go away and think about the precise form of the order. Just on that point I would add only this: Mr Taylor points to the unusual route taken by the claimant in this case, namely to come here, and I hear what your Lordship says about, perhaps, had a preliminary application been made on an alternative remedy point, the outcome might have been different. But nevertheless, my Lord, given the conclusion that your Lordship has reached, there is no doubt that the actual costs incurred in this case, as a result of this route being taken, has been less because the alternative would be a five-day planning inquiry, which would have incurred much greater costs, with a very likely appeal to the High Court following that. So the likely costs would have been much greater had that route been pursued. I simply say that, if your Lordship is considering an order, to bear in mind that this route has resulted in a less costly outcome.

MR JUSTICE CRANE: Thank you.

[87]MR TAYLOR: My Lord, I have nothing to add.[88]MR JUSTICE CRANE: Thank you. No, after considering it, it seems to me that I should refuse leave to appeal. I am not able to go as far as saying there is a real prospect of success. Of course, an application can be made to the Court of Appeal and the way I put it can be quoted, and the Court of Appeal could if necessary consider the costs point that I have raised. But I shall refuse leave.[89]Can I renew my thanks to counsel for their submissions, and you will submit an order for me to initial.

Order

"Article 4 ... (2) The amendments made to the 1995 Order by this Order shall not apply in relation to applications for a determination as to whether the prior approval of the local planning authority will be required to the siting and appearance of the development made before the coming into force of this Order." That transitional provision is relied on for different reasons by counsel on both sides of this argument. Order: see a decision in R(Watts) v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 993 Admin (a decision of Ouseley J). From the transcript, it is clear that in that case the court was concerned with planning permission in relation to a dwelling house, and with a different part of the Development Order, namely class B. In paragraphs 34, 35 and 41, the learned judge said this: "Conclusions 34. (1) I accept, as did Mr Harwood, that the GPDO Class B most readily applies when examining the position before development in reliance upon it is started. But a development which would otherwise require express planning permission continues to need the permission afforded by the GPDO until it is 'substantially completed' i.e until it has reached the stage at which no further planning permission would be required for any of the works being done to it. If between the start of such works and their conclusion the building which is being altered pursuant to the GPDO is otherwise enlarged, improved or altered so that the cubic content of the 'resulting building' together with the GPDO works would now exceed 50 cubic metres, those GPDO works cease to be protected by the GPDO and can be enforced against. 35. In other words, in examining whether in Class B1(d) the cubic content of the resulting building 'would exceed' the cubic content of the original dwelling house by more than 50 cubic metres, the prospectivity inherent in 'would' continues to apply until the GPDO permission no longer needs to be relied on for the carrying out of any works. The availability of the GPDO is not set in stone by the mere start of works ... 41. (5) It is, accordingly, my judgment that the inspector had to ask himself as at the time when the GPDO works, namely the roof extension, were substantially complete and thus at the time when the claimant last ceased to do any works for which any planning permission, express or pursuant to the GPDO, was necessary: did the cubic content of the dwelling house, as at that time, including any actual cubic content already created by other works of enlargement, improvement or alteration ('the resulting building') exceed by more than 50 cubic metres, the cubic content of the original dwelling house? The side and rear extension may or may not have had any cubic content, but there were no findings of fact in relation to that matter."