Bolam v First Secretary of State & Ors [2006] EWHC 2184 (Admin)

Case No CO/3269/2005[2006] EWHC 2184 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday 10 July 2006
Between
BRIAN BOLAMClaimant
The Strand
London
WC2A 2LL
B e f o r e:
MR JUSTICE COLLINS
_______________
B E T W E E N:
- v -
Between
FIRST SECRETARY OF STATEDefendantWYCHAVEN DISTRICT COUNCILDefendantTIMOTHY BOLAMDefendant_______________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone No: 020 7421 4040(Official Shorthand Writers to the Court)_______________MISS C PATRY (instructed by the Treasury Solicitor)appeared for APPLICANT (FIRST DEFENDANT)MR W HANSEN (instructed by Messrs Burgess Salmon, Bristol BS1)appeared for RESPONDENT (CLAIMANT)_______________J U D G M E N T
[1]This is an application for costs incurred in seeking an injunction and to prevent the letting of a house which is owned by Mr Bolam Junior, and an order under section 288(5) of the Town and Country Planning Act 1990 to suspend the decision of an Inspector pending the determination of an appeal under section 288. That application was dealt with by the duty judge on the 15th and into the early hours of 16 July 2005. Most unfortunately, the application was made at the last minute on the morning of the 14th because it transpired that the tenancy was due to commence on 15 July. I am told that counsel and solicitors endeavoured to come before this court but for whatever reason a judge was not available. They had to go to the duty judge, who was overwhelmed that evening and so the matter was not heard until 12.30am on 16 July. By then the tenancy had commenced and it was too late to obtain an injunction to prevent it.[2]The section 288 appeal came before Sullivan J on 8 November 2005. Following argument, he quashed the Inspector's decision which had allowed an appeal against the removal of a condition which was applied to the planning permission.[3]Mr Bolam Senior owns the Manor House at Bredons Norton in Gloucestershire, which is a Grade II listed building. Very close to it was a barn which had fallen into disrepair. It was decided that the barn could be converted into a dwelling house and planning permission was obtained to enable that to be done. One of the conditions of that planning permission was that the barn should only be occupied by members of the family of those who lived in the Manor House. Mr Bolam Senior conveyed the barn and a small area around it to his son, Mr Bolam Junior, for a nominal consideration, with a view to him living there.[4]For whatever reason father and son fell out with each other. The barn remained empty, although it had been converted into a five-bedroomed accommodation. Mr Bolam Junior decided that he would like to let the barn because he did not wish to live in it. Accordingly, he applied for the condition to be removed from the planning consent. That application came before an Inspector who decided on 13 April 2005 that the condition should be removed, but imposed a condition which the council had required, namely that a turning area should be provided to ensure that parked vehicles entered the highway in forward gear in the interests of highway safety. That meant that there had to be room for vehicles to be turned in order to be able to park and comply with the condition. The parking area outside the barn, which was in the ownership of Mr Bolam Junior, was too small to enable that condition to be met. Mr Bolam Senior had not been at the view. He had not been informed that the Inspector was carrying out a view on the day that he did. In the result, the Inspector was not given material information which would have informed him that the condition that he proposed was one which could not be fulfilled because Mr Bolam Junior did not own sufficient land for it to be achieved. Access to the barn was over a road which was owned by Mr Bolam Senior. The only right that Mr Bolam Junior had was to pass and to repass along that and to turn off it in order to leave a vehicle outside the barn. It was that failure of the Inspector to appreciate the true position which led to the quashing of his decision. As the matter was argued before Sullivan J, it became apparent that the condition required access over Mr Bolam Senior's land, that therefore the condition as it stood could not properly be imposed, that such a condition was in the inspector's view necessary and accordingly the decision would have to be reconsidered. Other grounds which were relied on in support of the section 288 appeal did not find favour with Sullivan J and I need say no more about them.[5]Following the Inspector's decision, Mr Bolam Junior proceeded to put forward representations to the council which provided a manner in which the condition could be complied with. The council was persuaded that those proposals were satisfactory. So it was that on 18 May 2005 the council confirmed to those representing Mr Bolam Junior that the relevant plan that had been put forward indicating the position of two car parking spaces was considered to be acceptable, and discharged the relevant condition imposed by the Inspector. Unfortunately, Mr Bolam Senior was not informed of this. The council stated that they had not appreciated that consultation with Mr Bolam Senior was necessary. It is not suggested that the council ought to have known that they should have notified Mr Bolam Senior although, having been aware of his opposition, it is a little surprising that in the interests of transparency they did not think it right to give him the information. It is also surprising that those representing Mr Bolam Junior did not appreciate that it would have been sensible to have informed Mr Bolam Senior of what they were doing.[6]Having obtained consent, Mr Bolam Junior decided to go ahead with marketing the house. That came to the attention of Mr Bolam Senior. It led to the writing by his solicitors of a letter dated 20 June 2005 to the Chief Planning Officer of the council which read:
"Further to our letter of 25 May 2005, it has come to our attention that the third defendant in the above action, Mr Timothy Bolam, who is the owner of Manor Barn ('the Property') is attempting to let the Property for residential accommodation in breach of planning control."
They referred to the relevant condition and asked that they should be notified if plans were submitted to the council which were required in order to fulfil the condition which had been imposed. They pointed out that the only right was a right to pass and re-pass and that the land would be directly affected by any parking scheme which was implemented, and asked how the vehicles were intended to turn so as to comply with the condition.[7]Sadly, again there was a failure of complete communication. The claimant's solicitors did not think to notify Mr Bolam Junior's solicitors of their concerns and to draw to their attention that they would object and take steps to prevent the letting of the barn.[8]The council failed to respond in reasonable time to the letter of 20 June. It was not until a letter dated 7 July (which did not arrive with the claimant's solicitors until the 11th) that the council stated that they were not aware that consultation was necessary. They attached a letter dated 18 May 2005 approving the plans.[9]On receipt of that, the claimant was very concerned to take action to stop any potential letting. It was necessary initially to institute the section 288 appeal. The six weeks had almost expired. The appeal was lodged with the Administrative Court. In addition, on 14 July a letter was sent to the body responsible for the letting, informing them of the situation and the purported approval of the condition. It indicated that an injunction was being sought to prevent the letting going ahead and strongly advised them to take no further steps to let the property or to allow the occupation to commence. It was not then known for sure when the tenancy was to commence, but it was believed that it was to be 14 July. That letter was faxed to the letting agents at 3.16pm on 14 July. There was also a telephone conversation at about the same time. The agents were requested to indicate the length of the term of the tenancy, to which they responded:
"We cannot give you that information without our client's consent."
[10]Shortly thereafter, there was a chasing call to the solicitors representing Mr Bolam Junior. They indicated that they were authorised to accept service. They proposed to oppose the application and would attend court to do so. The solicitors on behalf of Mr Bolam Junior faxed a letter to the claimant's solicitors on the 14th in which they asserted that the claimant had no property interest which he sought to protect in relation to the alleged injunction and as such their client would vigorously oppose the application. They continued that the letting would have no bearing on the consideration of the High Court challenge to the Planning Inspector's decision. They did not say, nor did they enclose a copy of any tenancy agreement to indicate that it was a fait accompli or how long it was to last.[11]The injunction proceedings were launched in ignorance of the precise circumstances in which any agreement may or may not have been concluded. As I have indicated, unfortunately the matter was unable to be heard during the day. In due course it came before the duty judge at 12.30am the following day. There were two applications, each of which was opposed by Mr Bolam Junior. It was technically a without notice application, but notice had been given. The defendant to it, Mr Bolam Junior, was on notice that the application was to be made. As a result his representative was able to speak to Calvert-Smith J over the telephone. Calvert-Smith J was persuaded, it would seem, that in principle he might have been inclined to grant the injunction, but for the fact that Mr Hansen, on behalf of Mr Bolam Junior, made it clear to him that the letting had already commenced. There was no question of being able to grant an injunction which would not affect the third party rights of the tenants and therefore he agreed that there was no basis for granting it.[12]It is rare to grant an injunction in support of a planning condition. Normally the court takes the view that enforcement is a matter for the local planning authority. Indeed, it is only if the local planning authority decides that it is expedient to enforce that such procedure will be undertaken. However, the court has jurisdiction, and there may be circumstances in which it is appropriate to exercise that jurisdiction. Miss Patry has submitted that if there had been the possibility of preventing the letting, it would have been a case in which such action was justified because there had been a failure to give the necessary information. The letting would directly affect the private law rights of the claimant in as much as his land was affected by the vehicles. Indeed, the very letting of the premises would have a direct impact upon his amenity, as I am told it has. I am far from persuaded that this was a case in which a refusal of the injunction would have been justified on the basis that such injunctions are rarely granted. It seems to me that there was a strong argument that this was one of those rare cases.[13]In addition, there was the section 288(5) suspension. Mr Hansen has submitted that, in the circumstances, that had no beneficial effect. It has had no beneficial effect hitherto; Mr Bolam Junior has chosen to take no steps to comply with the breach of planning control which has existed since it was imposed and indeed since the decision of the Inspector was quashed. I am told that now the council has decided to take enforcement action in relation to that breach. Certainly, as Miss Patry submits, there was a benefit (maybe an indirect benefit); it enabled the council to take enforcement action, should that have been considered appropriate, and had Mr Bolam Junior complied with the law it may have had the effect of bringing the tenancy to an end. That, unfortunately, has not occurred. But it is quite impossible, in my judgment, to say that there was no benefit obtained from the application.[14]Mr Hansen has submitted that it was far too late to take the action that was taken; that they should have notified Mr Bolam Junior on 20 June, or very shortly thereafter, and made it plain that proceedings would be taken if a letting was to go ahead; and that in the result the last minute application was made necessary by that delay. Miss Patry submits that there was no reason why Mr Bolam Senior should have believed that the condition could be fulfilled. They had received no information. There was delay by the local planning authority in answering their letter of 20 June, and the moment they did appreciate, they took action. If they had been told even at that last moment of the true position, it may well be that they would have appreciated that the injunction (but not the 288(5) application) was unlikely to succeed. Had it been a 288(5) application only, it would not, I suspect, have been necessary to rush before the duty judge. It was a matter that could have been heard by the Administrative Court within the following few days. Therefore the need for speed and the need for work to be done out of working hours was largely due to the need for the last minute application.[15]The general rule is that costs follow the event; but that is only a general rule. There was partial success and partial failure, following the judge's eventual decision. It seems to me that the taking of the proceedings was justified. Equally, it seems to me that, although with hindsight and as a counsel of perfection, it no doubt would have been sensible of the claimant's solicitors to have notified Mr Bolam Junior's advisers on or immediately after 20 June, there is some excuse for their failure to do so. It is very unfortunate in the light of the history that the council took almost three weeks to answer the letter of 20 June. That did not suggest urgency. It did not suggest to the claimant that the die was already cast and that the condition had been imposed.[16]In all the circumstances it seems to me that it would be right, having regard to that history, for the claimant to have the substantial proportion of his costs. I do not think it would be appropriate to grant him all his costs because there were steps he could have taken at an earlier stage. Nor did he succeed in obtaining the full injunction that he sought. I propose to award him three-quarters of the costs incurred in seeking the injunction and the section 288(5) order. Quantum? MISS PATRY: Your Lordship should have a schedule. MR JUSTICE COLLINS: I have a schedule, but it may be out of date. The one I have is dated November 2005. I presume there is a more up to date one? That is excluding the injunction application. I am not sure I have seen a schedule. MISS PATRY: There is a schedule headed "Costs of the claimant in respect of the injunction application awarded 16 July 2005". That was in fact sent to the court with the written submissions on 23 November 2005. MR JUSTICE COLLINS: What is the total? MISS PATRY: The total is -- MR JUSTICE COLLINS: I take it, Mr Hansen, you have seen this? MR HANSEN: My Lord, I have seen a schedule. I have seen something which calls itself "Costs of the claimant in respect of the injunction". MR JUSTICE COLLINS: And what is the total on yours? MR HANSEN: £17,389.60. MR JUSTICE COLLINS: It seems a lot, but I can understand how it might be -- MISS PATRY: My Lord, I am going to pass up to you three things. I am going to pass you up a copy of this schedule and I am going to pass you up also two further documents, which are further breakdowns -- the breakdown of the solicitor's costs and the breakdown of work done on the documents. MR JUSTICE COLLINS: Has Mr Hansen seen these? MISS PATRY: He has. I passed them to him. My Lord, if you look firstly at the schedule itself, I have got various things to say, the first being that everything was done at short notice. MR JUSTICE COLLINS: Yes, certainly. MISS PATRY: That is why so many people had had to be involved. It was actually quite hare to find someone who was able full-time to work on it. So you will see that various people were involved. Then you will see various headings, including "Attendance at hearing". You will see that the attendance at hearing was rather lengthy. That is because it was over the course of a full day from 10am right through until 1.30am the next morning. That is also true of my fee -- I hate having to defend my own fee. I am not going to address you on every single part of the schedule. What I am going to do is to refer to the two other documents I have handed up. Just so that your Lordship knows that there is a further breakdown -- MR JUSTICE COLLINS: I may have the dates wrong. The hearing is indicated on the 14th; it was actually not until the 15th that you came to the court. MISS PATRY: That is right. MR JUSTICE COLLINS: And although the judge's order says the 15th, it was actually in the early hours of the morning of the 16th? MISS PATRY: Yes. MR JUSTICE COLLINS: Yes. Of course, you were not aware until the hearing took place that actually the 15th was the -- MISS PATRY: Was D day. MR JUSTICE COLLINS: That was my understanding. Yes. MISS PATRY: My Lord, I am only going to address you on the two distinct issues on which I have given you a breakdown. MR JUSTICE COLLINS: Is it sensible -- I see what you have done -- to see what Mr Hansen has to say? First of all, to see whether he challenges the amounts, and, if so, we can identify what items he does. You want me to make a summary assessment, do you? MISS PATRY: My Lord, I would ask you to, simply because the costs to date are escalating. My submission is that if this goes off any further, it is just going to be incredible. I have not even touched on the costs of today yet. MR JUSTICE COLLINS: They are an additional factor, are they not? MISS PATRY: Absolutely. So I would ask for a summary assessment, if you feel able to do so. MR JUSTICE COLLINS: What have we to add in for the costs of today? Perhaps we ought to have the total figure? MISS PATRY: I have another schedule for the costs of today. MR JUSTICE COLLINS: Have you seen this, Mr Hansen? MR HANSEN: I have not. MR JUSTICE COLLINS: How can I decide it then? MISS PATRY: I am so sorry, I thought this had made its way to my learned friend. MR JUSTICE COLLINS: Is the sensible thing, Miss Patry, I do not know, in order to try to avoid further costs, for you and Mr Hansen, when he has had a chance to assimilate these and to consider them, to put in writing where you have any differences? MR HANSEN: My Lord, the difficulty is that my overriding submission is that these costs are completely disproportionate to the application. MR JUSTICE COLLINS: I am not sure that they are necessarily. MR HANSEN: The costs before Sullivan J on a substantive appeal were in the region of £24,000, and he expressed the view that they were very high and should go off for detailed assessment. MR JUSTICE COLLINS: Yes. MR HANSEN: This is £18,000 odd with more to add -- MR JUSTICE COLLINS: I entirely take your point. I find it is very difficult for me to assess costs of this magnitude. Of course, there may be scope for agreement, but I do not think, particularly in the light of the knowledge that Mr Hansen has not even had a chance to consider the latest figures, I really do think that this is one that ought to go off for detailed assessment if not agreed. I am, sorry, but I am not inclined to make a summary assessment of costs of this magnitude. I am not saying you will not justify them; I simply do not know. MISS PATRY: My Lord, we are very reluctant for that course simply because of the costs implications. MR JUSTICE COLLINS: Well, I know, but you have incurred a very large sum on the face of it. The addition is another nearly £10,000. The total is what? MR HANSEN: My Lord, I might need to address you on the principle. MR JUSTICE COLLINS: The costs are £27,000, which is as much as the costs for the whole claim. MISS PATRY: I can assist your Lordship on the costs of the claim which have now been the subject of detailed assessment. I am told that in fact we made an offer to the Treasury Solicitors which was subsequently upheld -- MR JUSTICE COLLINS: Well, that may be. MISS PATRY: -- so do not think it can be considered in any way to be disproportionate. Yes, the costs are high in relation to the application, but it has to be remembered that it was made very much at short notice and late into the night, which does account for some of the costs. If your Lordship is not willing to deal with quantum, which I understand, and I am not going to try to persuade your Lordship if your Lordship is not persuaded, perhaps I need to address you on the principle of the costs of this application. MR JUSTICE COLLINS: Why? The principle is that you are entitled to them. MISS PATRY: I am entitled to them. MR JUSTICE COLLINS: You are entitled to the same three-quarters. MISS PATRY: In relation to the application? MR JUSTICE COLLINS: Yes. You can have three-quarters of all your costs. That is the order that I propose to make. That would include the costs incurred for today, as well as the costs incurred overall before Calvert-Smith J. So, you will get three-quarters of the whole of your costs. MISS PATRY: Would your Lordship -- I know the lateness of the hour is not assisting here -- but would your Lordship be prepared to rise for five minutes to see if we can reach any form of agreement now? MR JUSTICE COLLINS: Yes. I will go up to my room and give you five minutes or so. If you cannot reach agreement, then the order will be detailed assessment. If you can, then obviously -- if you reach agreement as to amount they you do not need to call me back. Then it will be summary assessment in the sum that you have accepted to be appropriate. Mr Hansen, you have to take account of the fact that before Calvert-Smith J this had to be done in a great hurry and it took a long time and waiting time, which was no fault of the claimant's, and, unfortunately, you will have to bear additional costs incurred by the long time and of course the our-of-hours working. MR HANSEN: I accept that, but I do say that on a detailed assessment a bill that is edging towards £30,000 would be subject to intense scrutiny. MR JUSTICE COLLINS: I think it would. I think you are absolutely right that it would, and certainly if I had to make a summary assessment I am afraid I would be thinking in rather lower terms than that. I know that there was a lot of work that had to be done and it had to be done quickly, and I note, Miss Patry, your fees for today, which are not unreasonable perhaps, but they are on the high side. MISS PATRY: I hate having to defend my own costs. MR JUSTICE COLLINS: No, this is invidious, I know. MR HANSEN: Especially when I have not yet seen them. MR JUSTICE COLLINS: You presumably have thoughts about how much you would have claimed for today if you had won? MR HANSEN: Save that your Lordship will have seen from my skeleton argument my position is that the fair order is no order. MR JUSTICE COLLINS: Well, I know. I agree. MR HANSEN: We did not make an offer in respect of today because we were not in a position to contend for -- MR JUSTICE COLLINS: No, you are quite right. So there was no need for you -- but anyway, yes, I am quite happy that you have words, but, as I say, I am not going to assess these summarily if there is disagreement. If you want to say, "We cannot do it in five minutes and would like more time", by all means. MR HANSEN: My Lord, the difficulty is that I surmise that there is a yawning chasm between us. MR JUSTICE COLLINS: I suspect that may be the case. MR HANSEN: So I am more than willing to try now, but I think it will be a short conversation. MR JUSTICE COLLINS: All right. I have indicated what I propose to do. So I do not think there is any need to summon me, although I will be there for a few minutes. MISS PATRY: We will do our best. We will let you know either way. 17. _______________________