Searle, R (on the application of) v Secretary of State for the Environment & Anor [2006] EWHC 1908 (Admin)

Case No C0/672/2006[2006] EWHC 1908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 7th July 2006
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
THE QUEEN ON THE APPLICATION OF MR JIMMY SEARLE
(CLAIMANT)
-v-
THE SECRETARY OF STATE FOR THE ENVIRONMENT
and
EAST HAMPSHIRE DISTRICT COUNCIL
(DEFENDANTS)
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR MICHAEL MURPHY (instructed by Aldbury Chambers) appeared on behalf of the CLAIMANT
MR HEREWARD PHILLPOT (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
J U D G M E N T
Between
Searle, R (on the application of)ClaimantSecretary of State for the Environment & AnorDefendant
[1]MR JUSTICE COLLINS: This is an application brought under section 288 of the Town and Country Planning Act 1990, seeking to quash the decision of an inspector whereby he rejected the applicant's appeal against a refusal by the Local Planning Authority to grant a certificate of lawful use or Development to enable him to station a mobile home for residential use on particular land in Hampshire. The description is land adjacent to Oakhanger Stream, Gibbs Lane, Oakhanger, Bordon in Hampshire. The Inspector decided against the applicant on the basis that the land in question had not been used either since 1948 or, alternatively, for the ten years before the application was made, which would mean between October 1994 and October 2004, which was the date of the application in question, for such use and insofar as the applicant owned a parcel of land which was more extensive then that which was in issue directly for the stationing of a caravan, the land that he owned fell into two separate planning units.[2]Let me flesh that out a little. The application had annexed to it a plan and that plan identified the plot of land which the application related to and the land in question is a strip adjoining Oakhanger Stream, running roughly in a north-westerly direction so that the lower part, which was described as A in the plan, is to the south east and the area described as B, which was the area upon which the caravan was to be sited, was to the north west. There had been a certain amount of history in relation to the whole of this land and, in particular, there had in 2000 been a claim for adverse possession in respect of part of it. That claim had in due course been settled in 2004 but evidence had been put in in the form of statutory declarations by the applicant and by others in relation to the use of the whole of the land comprising A and B. There were also available to the Inspector some aerial photographs which had been taken on various dates between 1984 and 2000. To be more precise, there were some taken in July 1984, some in August 1991, some in September 1996, I think, (although it has been otherwise stated to be 1998) and one taken probably in 2000 and those photographs, on the whole, show that there was no building and no structure of any sort, let alone a caravan, on the area B but that there were buildings, and still are, on area A.[3]The Inspector therefore had to consider the correct conclusion to be drawn on the question whether there was a single planning unit covering the land which is comprised within both A and B or whether each was a separate planning unit. So far as A is concerned, that had been used as what is described as a brickyard and below it there was another area, a small area of paddock, together with stabling, and that had been used by the applicant for the stabling of his horses. He in fact uses the horses that he has on the land for the purpose of drawing funeral cars and he is, I understand, much in demand for that purpose from time to time. As the Inspector indicated, he:
"... supplies horse drawn carriages for funerals and weddings and also takes in horses for breaking, for which he uses the Common and for which he has gained a national reputation."
[4]The burden was upon the applicant to establish on the balance of probability that he had used the land in question either since 1948 or, if he could not establish that, the ten years proceeding the application in the relevant way. His case was that the land had been in single ownership and was not physically separate and that such separation as there had been really only occurred since the settlement of the adverse possession proceedings in, I imagine, the High Court or maybe the county court. The Inspector indicated that he was unable to share that view and he then referred to the statutory declaration that had been made not only by the applicant but also by a witness who was supporting his claim in respect of adverse possession. The point that was being made was that, in that adverse possession claim, the site which was identified as B was not included in the case that was put forward because it did not need to be; there was no issue as to adverse possession of that land. But the land which is A, together with the small paddock and stabling below it, was in issue and that was divided in the sense that the case was material to each part of that area. Now as I understand it, looking at the plans, the area which is A for the purposes of the appeal to the Inspector is part of that; the area below it, the small paddock and stabling, is not included within either A or B because B is to the north west of A, whereas this small area of land is to the south east of A.[5]That is important because, in the course of his statement to which the Inspector referred, Mr Searle stated:
"In excess of 20 years I have kept horses on both parcels of land and initially I used mobile shelters as stables in the form of other old lorry bodies."
That refers to A and the little area, as I have described, below it. And then in paragraph 7 he says:
"I have always maintained and secured the boundary around my land in order to ensure that the horses were unable to wander and also to keep out inquisitive trespassers. Usually the fences were conventional but along the front of the site to the access track the equipment in the form of bricks and stones and other items are parked on the boundary in order to secure the land."
The Inspector recorded in paragraph 9 of his decision:
"In his statutory declaration at that time, at paragraph 7, he stated that he always maintained and secured the boundary around that land to ensure that the horses were unable to wander and to keep out inquisitive trespassers."
That clearly covered what is now A rather than B and the witness, in his declaration, as the Inspector recorded, "indicated that the land then in question was 'always fenced along the ends'." Again, that is consistent with B being divided from A.[6]The Inspector then went through a number of witness statements which had been prepared in connection with those adverse possession proceedings and which had been produced by the applicant and, having analysed those, he indicated that the colouring on the plans that had been produced as annexes to those statements was not entirely satisfactory and there were a number of inconsistencies. That led him to take the view that the plans as coloured for the appeal before him were unreliable. That is a decision which he was clearly entitled to reach. Indeed, I do not understand Mr Murphy to argue the contrary. But what Mr Murphy does submit is that it was not open to him to decide that there was a distinct barrier, as it were, between the two plots now described as A and B, which could constitute within the test that has to be applied physically separate and distinct areas. That that is the test is clearly laid down by a decision of the divisional court in Burdle v Secretary of State for the Environment [1972] 1 WLR 1207, a decision of a particularly strong court in planning terms, consisting of Lord Widgery CJ, Willis and Bridge JJ, all of whom, I think I am right in saying, had considerable planning experience. The test in determining what is the correct planning unit is set out in Burdle at page 1212 in the judgment of Bridge J, which was the judgment of the court, the other two members of the court specifically agreeing with it, and he says this:
"What, then, are the appropriate criteria to determine the planning unit which should be considered in deciding whether there has been a material change of use? Without presuming to propound exhaustive tests apt to cover every situation, it may be helpful to sketch out some broad categories of distinction. First, whenever it is possible to recognise a single main purpose of the occupier's use of his land to which secondary activities are incidental or ancillary, the whole unit of occupation should be considered..." "
But, secondly, it may equally be apt to consider the entire unit of occupation even though the occupier carries on a variety of activities and it is not possible to say that one is incidental or ancillary to another. This is well settled in the case of a composite use where the component activities fluctuate in their intensity from time to time, but the different activities are not confined within separate and physically distinct areas of land. Thirdly, however, it may frequently occur that within a single unit of occupation two or more physically separate and distinct areas are occupied for substantially different and unrelated purposes. In such a case each area used for a different main purpose (together with its incidental and ancillary activities) ought to be considered as a separate planning unit. To decide which of these three categories apply to the circumstances of any particular case at any given time may be difficult. Like the question of material change of use, it must be a question of fact and degree. There may indeed be an almost imperceptible change from one category to another. Thus, for example, activities initially incidental to the main use of an area of land may grow in scale to a point where they convert the single use into a composite use and produce a material change of use as a whole. Again, activities once properly regarded as incidental to another use or as part of a composite use may be so intensified in scale and physically concentrated in a recognisably separate area that they produce a new planning unit the use of which is materially changed. It may be a useful working rule to assume that the unit of occupation is the appropriate planning unit unless and until some smaller unit can be recognised as the site of activities which amount in substance to a separate use both physically and functionally."[7]As Mr Murphy accepts (indeed, is clearly the case), the reference to physical and functional separation does not mean that there has to be a physical barrier between the two areas of land. It is a question of deciding whether there is in fact such a physical separation. Of course, the existence of some sort of barrier will help to determine if that is indeed the case but the absence of such a barrier is not fatal to a conclusion that that is the right decision on the facts. Equally, the other way round, Mr Murphy contends that the Inspector failed to deal in his reasoning with the fact that the whole area, A plus B, was treated as one for the purposes of rating and there was certainly evidence that, between 1978 and 1988, that was the case and that, at that time, there was a caravan on the land, the land being A plus B.[8]In fact, the aerial photographs and other evidence to which the Inspector refers shows that the caravan had been sited on what is now A rather than B. The reality, as the Inspector found on the material, was that B had at all material times been used only as a paddock (I suppose, an agricultural use of the land) and there had never been a separate activity carried on on that part of the whole site, which is known, I think, as Gibbs Moor. The part which is now A had been used, as I said, as a brickyard at one time and, certainly, there was evidence that the equipment and a caravan had been on that part. But that use had never extended to the paddock which is area B.[9]Mr Murphy points out that there was evidence that the horses had certainly been on the area to the south east of A, that is the paddock and the stabling, because that is where they were stabled, but it is to be noted that that small area is not included in the area A and B on the plan put forward in support of the application. Furthermore, there is no warrant for the suggestion that it was wrong as a matter of fact for the Inspector to regard the land as having these two separate uses. The fact that the rating authority had, at a time which incidentally is outside the ten year period, rated the whole unit is nothing to the point when one is considering the planning unit and, indeed, if one looks at the wording that I have cited of Bridge J in the third category, which is the relevant one, one notes that the point that is being made is that, within a single unit of occupation, there may be two physically separate and distinct areas occupied for substantially different and unrelated purposes. If there is a single unit of occupation, one might expect it to be rated as such and, whether or they are separate planning units is not a matter which the rating authority would take into account; nor would it be relevant to the question of rating, save, I suppose, if the reality was that one was, say, industrial and the other was, say, agricultural, there might be different amounts that would be appropriately levied. But, certainly, in principle, it cannot determine, although it may perhaps be, in a contested matter, a possibly relevant consideration as to whether there was a single unit or more than one unit for planning purposes.[10]The Inspector, having referred to Burdle and directed himself that the test was the test of physical and functional separation, referred to the aerial photographs and indicated that they leant support to his conclusion that the appropriate planning unit upon which to consider the LDC appeal was the paddock itself, that is to say B, and he concluded:
"The evidence concerning a residential caravan has related to the neighbouring lands to the south-east [ie A]. It has not been demonstrated, on the balance of probabilities, that there is a lawful use of the appeal site for the stationing of a residential caravan. The Council's refusal to grant a certificate of lawful use or development was well founded and this appeal fails."
[11]It is only if Mr Murphy can show that that was a decision which was not open to the Inspector on the facts, that this application could succeed. As it seems to me, the Inspector considered the evidence and was entitled, having regard to the evidence, to conclude that there were indeed separate planning units in the way that he described. It is quite impossible, in my judgment, to say that that decision was one which was perverse because that must be the test in deciding whether the Inspector was entitled to reach a conclusion of fact. It was a matter of fact which the Inspector decided adversely to the applicant. In all the circumstances, in my view, this application is one which is bound to fail and therefore I dismiss it.[12]MR PHILLPOT: My Lord, I am grateful. Can I just take instructions on the question of quantum of costs?[13]MR JUSTICE COLLINS: Yes, I have some documents somewhere, I note. Or have I -- perhaps I have not.[14]MR PHILLPOT: My Lord, the schedule has some amendments that need be made to it.

MR JUSTICE COLLINS: Have you got a clean copy?

[16]MR PHILLPOT: A clean copy? Yes, my Lord.

MR JUSTICE COLLINS: Mr Murphy, you have seen this, have you?

[18]MR MURPHY: My Lord, yes.[19]MR PHILLPOT: Would it help, my Lord, to indicate the additional matters that would need to be taken into account? They relate, on the second page, to attendance at the hearing and your Lordship will see that, at present, there is nothing there indicated for the Treasury Solicitor, his attendance, where in fact my instructing solicitor has attended and I am told, under (a) that would need to be 960.

MR JUSTICE COLLINS: What is the total amount?

[21]MR PHILLPOT: Well, my Lord, I am afraid I have not added that up. There is a another figure to add to -- at the moment, it is 4,706 but 960 would have to be added to that. In addition, my Lord, my fee for the hearing, which is the second item under "counsel's fees" is based on two hours. Now, my Lord, that has taken longer than that because, indeed, it has taken a while to get on while other matters have been heard. So that has gone from two hours to approximately five, something of that order. So there would be need to be an additional, approximating, three hours, so that is 240.

MR JUSTICE COLLINS: So we add £1,200 overall, plus some VAT, I expect.

[23]MR PHILLPOT: I think that is right, my Lord. £1,200 added to £4,706 so it is now --[24]MR JUSTICE COLLINS: £5,906. As I say, I am not going to do the precise figures, but there is no doubt some VAT to be added.[25]MR PHILLPOT: Certainly, as far as my fees are concerned, there is VAT added; not for the Treasury Solicitor.[26]MR JUSTICE COLLINS: I thought they did. I may be wrong. I remember that when it started, one always felt a little bit stupid that Customs and Excise had to pay VAT to counsel. But maybe they will not.[27]MR PHILLPOT: My Lord, I have clear instructions, again, that it is just for my fees.[28]MR JUSTICE COLLINS: Just for your fees? All right, well there is some VAT to be added to your fees, at seventeen and-a-half per cent. Well, I am not going to do the precise figures, because they can always be added if necessary. But, as I see it -- yes, all right.[29]MR PHILLPOT: So far as quantum is concerned, my Lord, your Lordship will see that, on the second page, work done on the documents --

MR JUSTICE COLLINS: Is 14.2 hours.

[31]MR PHILLPOT: My Lord, in light of the later additional material, two sets of skeleton arguments, that has, I am afraid, added, my Lord, to the number of hours.[32]MR JUSTICE COLLINS: The difficulty in this one is -- I had this in another case -- because, as I understand it, it is the practice of the Treasury Solicitor to prepare advice for the client in all these cases, which I accept is, in principle, not unreasonable. But I wonder whether the whole of that ought to be properly regarded as time spent in preparing for the claim. I do not know. I do not think anyone has actually decided this one way or the other.[33]MR PHILLPOT: My Lord, I make the following observations about that. In order to respond to the claim and to decide what, if any, evidence needs to be put in, as I say, my Lord, it is necessary for the Treasury Solicitor to consider a claim that has been submitted and to summarise the key points and to give advice to the client, which enables the client the power to respond. My Lord, I was responding to the claims, the cost of which is --[34]MR JUSTICE COLLINS: I suppose it is not unreasonable. Any client, looking at a private client who comes, would expect to receive advice from his solicitors as to what his prospects were and what he should do.[35]MR PHILLPOT: My Lord, that is all in response to a claim, which is entirely foreseeable, and it is the inevitable costs, as your Lordship says, for any client.[36]MR JUSTICE COLLINS: All right. Let us see what Mr Murphy has to say. Mr Murphy, I do not think you can resist a claim for cost in principle, can you?[37]MR MURPHY: My Lord, no.

MR JUSTICE COLLINS: I appreciate that your client is, as he says, short of money.

[39]MR MURPHY: My Lord, can I say this: that I did not do the appeal before the Inspector and I did not settle the grounds either. I was asked to come in at a very late stage.[40]MR JUSTICE COLLINS: Your client has reason to be grateful to you for your efforts. I note you were doing it pro bono.[41]MR MURPHY: My Lord, the only reason I mention that is that -- I can only put it this way, my Lord: costs are at all times at your Lordship's discretion and --[42]MR JUSTICE COLLINS: Well, I can make an order, and I should make on order, for such costs that are reasonably incurred by the other side. Whether they enforce and how they enforce, if they decided to do it, and the extent to which they enforce, is of course a matter for them. If they are satisfied that there is no point in spending money trying to get blood out of a stone then, no doubt, that will be the position. But that is nothing I have any control over and the usual thing, in this sort of situation is that your client, or someone in your client's position, should endeavour to make sensible arrangements with the Treasury Solicitor, perhaps to pay by instalments, or whatever. But that, as I say, that does not -- I mean, impecuniosity does not mean that I should not make an order for costs in an appropriate sum, does it?[43]MR MURPHY: My Lord, no, I cannot argue that. Given that the appellant is -- my Lord, I would not do this on a pro bono basis unless I was quite satisfied that he was not able to pay.[44]MR JUSTICE COLLINS: There is no criticism of you and, as I have indicated, the fact that he is not able to pay does not mean that I should not make an order.[45]MR MURPHY: No. I would say, under the circumstances, it would perhaps be harsh to penalise him for us getting on almost before lunch.

MR JUSTICE COLLINS: You mean a longer time?

[47]MR MURPHY: It just seems harsh on him.[48]MR JUSTICE COLLINS: Mr Murphy, at one stage, as you probably know, he had decided to give up on the basis of, as he said he did not have enough money.[49]MR MURPHY: Well, my Lord, I am fully aware --[50]MR JUSTICE COLLINS: Frankly, with great respect, this was a hopeless application. I think that -- I mean, this is the trouble with these 288s: so often it happens, because they have an appeal application as of right -- we are actually seriously considering, and we are going to have an exercise next term, to get views on whether there ought to be a permission stage in these because it is frankly not in the interests of many of these applicants to pursue these 288s if there are actually not arguable, because all that happens is this: a huge liability for costs, which would be avoided if the hopeless ones were knocked out on an arguability stage.[51]MR MURPHY: I can only say that that sounds very sensible.[52]MR JUSTICE COLLINS: But there we are. What about the quantum?[53]MR MURPHY: My Lord, I can only say it does not seem that there is anything there that I can say is unreasonable, really. I cannot really argue, my Lord, much with that.

MR JUSTICE COLLINS: I think I may have a reputation for knocking things down a bit.

[55]MR MURPHY: Well, my Lord, perhaps you could reinforce that reputation this afternoon.[56]MR JUSTICE COLLINS: Well -- I am not sure how much justification there is for me to do so, I am bound to say, because, actually, Treasury Solicitor's amounts are usually significantly less than any private clients; says he with feeling, having appeared as a Government counsel for some time.[57]MR MURPHY: My Lord, in effect, if I had agreed -- my Lord, if I have agreed to come here for nothing, maybe the tax payer might agreed to pay it, because it is taxpayers money at the end of the day.[58]MR JUSTICE COLLINS: Well, it is. Yes.[59]MR MURPHY: Maybe they can share some of burden in this. Sorry, my Lord, I push that no further, my Lord.[60]MR JUSTICE COLLINS: Well, Mr Murphy, I am afraid I am satisfied that the amount claimed is reasonable and therefore I will summarily assess costs in sums of £5,906 plus whatever is the appropriate sum of VAT. It will be about, I suspect, overall, something just over 6,000. Actually, what I think I could do, conveniently -- I think what I shall say is, so there is a degree of certainty, that I will award costs in the sum of £5,906 and that is the figure. You will have to put the VAT within that. It gives you a little time. Seventeen and-a-half per cent of Mr Phillpot's fee.[61]MR MURPHY: Thank you very much.

MR JUSTICE COLLINS: All right.