Cocktails Ltd, R (on the application of) v Secretary of State for Communities and Local Government & Anor [2008] EWHC 380 (Admin)

Case No CO/9789/2006[2008] EWHC 380 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 21st February 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF COCKTAILS LIMITEDClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantREDCAR AND CLEVELAND BOROUGH 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 Tim Buley (instructed by Messrs Wilson Barca) appeared for ClaimantMs Sarah-Jane Davies (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: Until midnight on 20th April 2005 development which consisted of a change of the use of a building to a use falling within class A1 (shops) of the schedule to the Use Classes Order from a use for the sale or display for sale of motor vehicles did not require planning permission. On 18th April 2005, the claimants, Cocktails Limited, began to operate a retail sex shop from part of a building that had previously been a franchised motor dealership. The local planning authority, Redcar and Cleveland Borough Council, were minded to take enforcement action against the claimants to determine the legality of their use. The claimants sought a lawful development certificate. The matter came before a planning inspector, who decided against them for a variety of reasons. They appeal to this court under section 288 of the Town and Country Planning Act 1990.[2]Although many issues were canvassed before the Inspector and in skeleton arguments prepared for the purposes of this appeal, in the end the case turns upon a single question: was the use for which planning permission was granted on 22nd January 1997 by the Local Planning Authority a use for the sale or display for sale of motor vehicles or something else?[3]The planning permission reads as follows:
"Application No: R/96/0707/FF For: SOUTH CLEVELAND GARAGES... The Council as the Local Planning Authority HEREBY GRANT PLANNING PERMISSION for the development proposed by you in your application received on: 12/12/96 Details: CONVERSION OF INDUSTRIAL UNIT INTO A FRANCHISED MOTOR DEALERSHIP Location: UNIT B2, COMMERCE WAY, SOUTH BANK"
The permission was subject to two conditions upon which nothing turns.[4]Before the Inspector the claimants argued that the planning permission should be construed without reference to any external material, including in particular the application which gave rise to it. Reliance was placed, and is placed before me, upon the observations of Keene J in R v Ashford Borough Council ex parte Shepway District Council [1998] PLCR 12. It is common ground that Keene J, as is unsurprising, correctly summarised the legal principles to be applied at page 19C to 20:
"(1) The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions ... (2) This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application ... (3) For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as '... in accordance with the plans and application ...' or '... on the terms of the application...,' and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted... (4) If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity..."
In the event, the Inspector decided that the permission was ambiguous and that it expressly incorporated the application. Mr Buley, who appears for the claimants today, submits that he was wrong to do so in both instances.[5]As to ambiguity, in my judgment he is plainly right. If the words of the permission only are to be construed, leaving aside incorporation by reference for a moment, what permission has been granted for is "conversion of industrial unit into a franchised motor dealership". The activity for which permission is granted is the activity of conducting a franchised motor dealership. That phrase has a meaning in ordinary common parlance. It means the offering for sale and selling of motor vehicles manufactured by a particular manufacturer together with all necessary preparation of the vehicles for sale. It ordinarily incorporates also the servicing, maintenance and repair of such vehicles, leaving aside in the ordinary case repairs to the bodywork. A franchised motor dealer will carry out servicing, maintenance and repairs only of the vehicles manufactured by the franchisor. He will not be confined to servicing, maintaining or repairing only those vehicles which he has sold: the whole purpose of establishing a geographically spread franchise is to ensure that those who buy, drive and maintain vehicles of a particular manufacturer can have them properly serviced, maintained and repaired by authorised or franchised dealers.[6]That understanding of the nature of a franchised motor dealership coincides precisely with the trade definition which was cited to the Inspector in the Mintel report on car retailing, which defined franchised dealers as "specialist companies awarded a contract by a car manufacturer to sell and service that particular brand of car". Thus described, the activities permitted could be divided into two, albeit that they would in practice in many instances be interlinked and supported: the sale and offering for sale of cars and the servicing, maintenance and repair of cars. Mr Buley submits, and I agree, that a franchised motor dealership could not exist where there was no sale or offer for sale of cars. A business activity which consisted only of the servicing, maintenance and repair of cars, even the particular type, would not fall within the commonly understood meaning of the phrase or the meaning understood by the trade.[7]Accordingly, and for those reasons, there was in my view no ambiguity in the description "franchised motor dealership" in the document which granted permission. I therefore accept Mr Buley's submission that the Inspector was in error in concluding that there was ambiguity.[8]He was not, however, in my judgment in error in concluding that the document granting permission incorporated, by express reference, the application. The reader of the permission would see that what the Local Planning Authority granted was "planning permission for the development proposed by you in your application..." Those words seem to me to be apt to include, by reference, the application itself. They are not simply a reference to the application; that is done at the beginning of the document in the terms that I have already read. These words seem to me to be at least as apt as those cited by Keene J in Ashford to incorporate the application. The application would have reinforced rather than contradicted the construction that I place on the word franchised motor dealer. It was for a "garage, showroom and workshop". The processes to be carried on were described in part 2 of the application form:
"car showroom, car maintenance workshop"
. One of the plans accompanying the application showed the showroom physically separated from the workshop and the parts store. Accordingly, the Inspector was in my view right to treat the application as incorporated by reference and, having done so, to conclude that the permitted activity included both the offer for sale of cars and the carrying on of a servicing, maintenance and repair workshop.[9]That is not, however, an end of this appeal because, even though on my construction of this permission two sets of activities were permitted by it, nevertheless Mr Buley submits that servicing, maintenance and repair was ancillary to or subsidiary to the primary activity of selling cars. In the end he accepted that he was making the following submission to me, in my words not his, that, because the lawful use of this site necessarily included the sale of cars, so any other activity must be ancillary to car sales. He relied on the example given by Lord Denning in Brazil (Concrete) v Amersham Rural District Council [1967] 18 PMCR page 399 of Harrods, where other activities, operation of an office, the packing of goods and so forth, were all ancillary to the main business of the shop selling goods.[10]I accept that in cases where other activities are truly supportive of or ancillary to the main activity permitted then it does not create a mixed use; the main activity remains the permitted use and everything else is ancillary to it. But, on a true analysis of the business of a franchised motor dealer or of the operator of the unit in which the car showroom and a workshop are to exist, the one activity is not dependent upon or necessarily ancillary to the other. The servicing, maintenance and repair of cars in a franchised car dealership will be performed on cars that have not been sold by the dealer. Of necessity, therefore, the activity of service, maintaining and repairing such cars is not ancillary to the business of selling cars. The balance within a particular franchised motor dealer's business may vary from dealer to dealer. One may derive most of his profits and conduct most of his activities by selling motorcars; another may derive a much larger share of his profit and devote a much greater proportion of his efforts to the servicing, maintenance and repair of motorcars. Both remain within the description. I do not accept that merely because a franchised motor dealership could not be carried on without there being a facility for selling a particular manufacturer's cars so the activities of servicing, maintaining and repairs cars manufactured by that manufacturer are necessarily or in the ordinary event, actually, ancillary to the business of selling cars.[11]For those simple reasons, I am satisfied that the use permitted by this permission was not that described in schedule 2 part 3A of the General Permitted Development order, the "use for the sale or display for sale of motor vehicles", and I conclude that, in reaching the same conclusion, the Inspector did not err in law. In those circumstances, it is unnecessary for me to analyse other criticisms of the Inspector's decision, such as, for example, taking into account the use to which the site had actually been put after permission had been granted. For those reasons, I dismiss this appeal.[12]MS DAVIES: Thank you, my Lord. Has a schedule of costs reached your Lordship?[13]MR JUSTICE MITTING: I think not but I do not promise that it has not. I cannot lay my hands on it and I do not remember having seeing it.[14]MS DAVIES: It was sent, my Lord, but I will hand another one up to you. I will just make a note of the -- I know that my learned friend has seen a copy, my Lord.

MR JUSTICE MITTING: Well, that is much more important than that I should have seen it beforehand.

[16]MS DAVIES: My Lord, I simply make an application for the Secretary of State's costs to be summarily assessed at the figure your Lordship sees on that schedule, £6,124.25. I have had the advantage of seeing my learned friend's schedule of costs in the event that your Lordship held the other way and they are roughly comparable and I also draw attention, my Lord, to the practice in these cases, with which no doubt your Lordship is familiar, of the Treasury Solicitors in drafting a minute of advice for the Planning Inspectorate on receipt of the papers and that accounts for a proportion of the time that is spent on the case. That is the first thing that is done so that they can be properly honed on from the outset. So I say in those circumstances it is a wholly proportionate figure that I ask your Lordship to award.

MR JUSTICE MITTING: Mr Buley?

[18]MR BULEY: My Lord, I cannot resist the principle, obviously. As to the amount, my Lord, there is probably not a great deal I can say and your Lordship has recently had me in the same position, as it were. Can I just say, going through -- I do not for a moment question my learned friend's fee, or rather, I think, her fee plus half a fee, but at any rate I do not say anything about that. My Lord, just looking at the hours applied for by the Treasury Solicitor, my Lord, on a very quick calculation, and I would not want to swear I have this right, but I think I counted about 30 hours. My Lord, this is in a case where, so far as I am aware, there has been no communication at all with my clients or my solicitors from the Treasury Solicitor.

MR JUSTICE MITTING: It is about 22 of preparation and about seven for the hearing.

[20]MR BULEY: There is, my Lord. It is not a case on which any work has been done on documents other than the minute of advice and I do not know whether there is any overlap between the advice given by the Treasury Solicitor and that which is recorded in counsel's fees, so it is difficult for me in the circumstances to go into great detail but I would at least say that those hours call for a fuller explanation from my learned friend and perhaps I put it in that way, otherwise the total hours is somewhat excessive and I would ask your Lordship to take a view. As I say, it is not a case where, other than advice, anything was required to be done by the Treasury Solicitor.[21]MS DAVIES: Well, my Lord, another item that is taken into account, of course, is drafting instructions to counsel. I can tell your Lordship, certainly from my own part, that there is not an overlap in advice and the Secretary of State's advice because he was not asked to advise. Counsel, Mark Beard, had the papers before I was instructed and I think the hearing was moved and therefore the papers came to me.[22]MR JUSTICE MITTING: This is a straightforward case which has been listed for one day, not called on before, actually been dealt with on the day it has been listed.[23]MS DAVIES: Exactly, and my learned friend takes no issue with counsel's fees and, as to work that has been done, my Lord, as I have said, there is the minute of advise which accounts for --[24]MR JUSTICE MITTING: Well, who has prepared the bundle of authorities? That is done by the claimant. And the hearing bundle, also the claimant?[25]MS DAVIES: Exactly, yes.

MR JUSTICE MITTING: Then why do you need 22 hours to get it prepared?

[27]MS DAVIES: It is the drafting of advice and drafting of instructions to counsel, attendances on client, that is discussion with the Planning Inspectorate. I do see that attendances on opponents is listed, I am assuming that that is correspondence, and on others, I am assuming that is correspondence with the interested party and with the court.[28]MR JUSTICE MITTING: Well, it seems to me at the moment that it is a slightly over-egged. Would I be doing any serious injustice if I were to assess the pre-hearing time at 15 hours at £160?[29]MS DAVIES: All I can submit to your Lordship is that the hours that are recorded on the schedule accurately reflect the hours that have been spent by the Treasury Solicitor.[30]MR JUSTICE MITTING: Of course. I would be astonished if it were anything other than that but the question is what is reasonable, not what has actually been done. I am bound to say, I think, that rather too many hours have been spent on preparation and advice than is actually necessarily and I think it is reasonable and necessary, is that not the test on the standard basis?[31]MS DAVIES: My Lord, yes.

MR JUSTICE MITTING: Would you have anything to say about a reduction?

[33]MR BULEY: No, my Lord. I was going to say to your Lordship there is a good seven hours unaccounted for, which is roughly where your Lordship has got to, so I am quite content with that.[34]MR JUSTICE MITTING: I assess pre-hearing costs, excluding counsel's fees, at 15 hours times £160, which, if my arithmetic is right, is £2,400. The hearing costs today of attendance, travel et cetera are £630 and counsel's fees amount to £1,976.25 and I assess costs in whatever the sum of those three figures is. If you want me to do the arithmetic I will but --[35]MS DAVIES: Just to make sure I have scribbled that down correct, we are adding up 2,400, 630, and 1,976.25?

MR JUSTICE MITTING: Correct.

[37]MS DAVIES: I am sure between us we will come to the answer to that question.

MR JUSTICE MITTING: Thank you.

[39]MR BULEY: Hopefully no liberty to apply. My Lord, it is always a difficult application to make, I do very respectfully have an application for permission to appeal. I am instructed to make that application.[40]MR JUSTICE MITTING: I can see there is a substantial commercial interest in this but I do not believe it raises any great difficult questions of planning law, I have applied familiar principles, and I would be surprised if I were to be held to be wrong. So on that basis you will have to apply to the Court of Appeal.[41]MR BULEY: I am grateful. Thank you, my Lord. Can I just take instructions on one other matter? (pause)[42]My Lord, just with that in mind, my Lord, and your Lordship has rejected my application, obviously, I wondered if I might ask for a transcript, simply in case we do want to take the matter further.[43]MR JUSTICE MITTING: Certainly. You are not asking for it at public expense, you are asking it be provided in the ordinary way at the expense of the party asking.[44]MR BULEY: So that we can look at your Lordship's judgment within the time --[45]MR JUSTICE MITTING: Certainly. What you mean is you want an expedited transcript. Well, I know that the shorthand writer who is court has been extremely busy on other activities. I will ask politely whether that is a request which can be met. Yes.[46]MR BULEY: Very grateful. Thank you, my Lord.[47]MS DAVIES: For your Lordship's note, my instructing solicitor and I have both done the arithmetic. It makes it easier. We come out at £5,006.25.

MR JUSTICE MITTING: Thank you both for an interesting argument.