Smith, R (on the application of) v Secretary of State for Communities & Local Government [2009] EWHC 1231 (Admin)

Case No CO/4561/2008[2009] EWHC 1231 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 7th May 2009
Strand
London WC2A 2LL
B e f o r e:
SIR GEORGE NEWMAN
Between
THE QUEEN ON THE APPLICATION OF DARREN SMITHClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMs Lisa Busch (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T

SIR GEORGE NEWMAN

[1]: The applicant Darren Smith has appeared in person in this court to present his application under section 288 of the Town and Country Planning Act 1990. He has with skill and ability, which I have already commended, presented a series of submissions in which he seeks to challenge the decision of an inspector appointed by the first respondent, the decision being set out in a decision letter dated 20th March 2008.[2]The underlying facts of the challenge, which the Inspector set out in an admirably succinct decision letter, can be stated shortly. Mr Smith has for some years now sought to develop the property at 747 Heywood Old Road, Birch in the borough of Rochdale by adding a balcony to his dwelling. He has, in common with other residents who own properties in this terraced accommodation, added a dormer window but, unlike the other residents, he has wished to place a balcony at the level of access from the dormer window, out from the dormer window by varying distances, according to which application over the period of time he was making, but in any event now a balcony. He has told me in clear terms that the balcony would be in itself, if permitted, incapable of enabling someone to sit out on it, but they would be able to stand on it, and since access is from the room, which is currently a bedroom, there would also be an opportunity for someone to partially sit within the bedroom and the balcony.[3]The application with which the court is presently concerned is the third application for planning permission. The local authority refused it for the following reasons:
"1. The proposal is not compatible with the design of this row of traditional terraced houses, and detracts from the overall character of the area. The balcony would be incongruous to the row of houses, visually detrimental by reason of its siting, materials and design, and not compatible with the original property in terms of scale and design. As such, the Proposal does not comply with policy D/7 Extensions to Residential Properties (Green Belt) or Policy H/11 Residential Extensions of Rochdale Council's Unitary Development Plan. The balcony would also be contrary to Policy BE/2 by not being compatible with the proposal's surroundings. 2. Notwithstanding the provision of the obscure glazed privacy screen indicated on the submitted drawings, the balcony extension would result in an unacceptable loss of privacy for the neighbouring dwellings, with the platform providing full views of the gardens of the neighbouring properties. As such, the balcony proposal contravenes Policy H/11 of the Rochdale Unitary Development Plan."
[4]The challenge has been limited to the ground of rationality, although there is also an undeveloped, and sensibly not sought to be developed, complaint that what the Council have done is to go beyond what a previous planning inspector had intimated could be acceptable.[5]The contention, so far as the irrationality ground is concerned, is that the decision of the Inspector on the planning policy and consistency of planning development in connection with this terraced housing was so unreasonable that no reasonably competent authority could come to it, given the scale of the development. I will come back to the development of the argument under that ground but, for the purposes of completeness, I should refer to the complaint which appeared in the papers by reference to the observations made in a previous planning decision by the Inspector which I am sure did give rise, so far as Mr Smith is concerned, to some hope that he might be able to resolve the position with the planning authority by way of discussion. The Inspector observed:
"Observations made during the site visit do however lead me to believe that it would be unduly harsh if as a result of these decisions Mr Smith were denied the opportunity of further exploring with the Council the possibility of overcoming the balcony's present adverse effects. Should detailed proposals in that regard in due course be submitted, interested persons too should be given the chance of expressing their views on them."
The observation is made in the context of the appeal. The only question is in connection with the enforcement notice and the period of time which the appellant ought to be given to draw up proposals to find an acceptable solution to this planning dispute.[6]Well, as it happened, the hopes of the Inspector that the matter might be resolved, if indeed he harboured any specific hope, did not prove to be true or come to fruition because the position which has been adopted by the Council is that there should be no balcony at all and thus applications involving adjustments made to the size and appearance and design and so forth of a proposal balcony, so far as the Council are concerned, are destined to failure.[7]Thus Mr Smith submits that the Council have gone too far and the Inspector, in his decision letter with which I am concerned, by agreeing with the Council, has also gone too far. As I understand the argument, Mr Smith submits that, having now limited his balcony to something of restrained dimension, it, despite the fact that it amounts to a balcony from the dormer window, is really not capable of reasonably being regarded as amounting to a development which is any different from the developments which have taken place by way of dormer window extension, which the local authority have approved, in connection with the other houses. Thus his case is that the conclusion reached by the local authority was wrong and the decision of the Inspector equally was wrong.[8]That leads me to set out the reasoning of the Inspector. In paragraph 6 he concluded:
"Irrespective of the final finish of the proposed balcony, I am of the view that its scale and positioning would not be in keeping with the overall style and form of the dwellings within this traditional terrace row. As a result, the balcony would be an incongruous, overly-prominent addition. Furthermore, this harm would be heightened by the fact that the balcony would be highly visible for the rear gardens of the neighbouring properties and partly visible from Heywood Old Road, when approaching from the north."
In the next paragraph of his decision letter, the Inspector observed as follows:
"I share the appellant's view that the rear dormer extensions which have been introduced to several of the properties along this terraced row, including one at the appeal property, are not particularly in keeping with their original scale and form. Nevertheless, this argument is no justification whatsoever for a development that would inflict further harm in such terms."
[9]The appellant, understandably, places reliance upon that paragraph. He submits that it founds a sufficient basis for the argument that there is to be discerned in the development which has occurred a policy which has permitted development not in keeping with the original scale and form of the terraced houses and he therefore goes on to submit that it is irrational for his proposal therefore to be rejected upon the basis that its scaling and position would not be in keeping with the overall style and form of the dwellings when the overall style and form of the dwellings in the area have already been substantially altered by the nature of the development which has already occurred. That is the core, as I see it, of his submission in relation to the irrationality of this conclusion and he says that the Inspector erred in law in concluding that there was "no justification whatsoever for a development that would inflict further harm in such terms".[10]Dealing therefore with this core part of the case, I have the following observations to make. Firstly, that it seems to me that, on a true analysis of what has been concluded to date, whilst there may have been development which is not particularly in keeping with the original scale and form of the terraced houses, the proposed development by the addition of a balcony to a dormer window, for which window Mr Smith has been given permission, goes beyond that which can be regarded as the consistent development, not particularly in keeping with the original scale and form of the housing, and in planning terms, it has been concluded, does inflict harm going beyond that which has already been inflicted by the existing development. I emphasise for the benefit of Mr Smith that that is what is meant by the last sentence of paragraph 7 of the Inspector, when he says "there is no justification whatsoever for a further development that would inflict further harm in such terms". He is concluding, as a matter of planning judgment, that there will be the further harm by the addition of the balcony and that the further harm would be in such terms, namely in such terms as he stated in paragraph 6, something which is not in keeping with the overall style and form of the dwellings in the terrace, it would be an incongruous, overly prominent addition.[11]In these matters, as I hope I have made clear to Mr Smith in the course of submissions, one is essentially looking at two different strands of development, or at least one is looking in planning terms at what a reasonable conclusion of an Inspector could see as a distinction in planning terms between dormer window and dormer window plus a balcony. Mr Smith is seeking to advance a challenge to the rationality of the Inspector's decision where there exists, in my judgment, a basis for a distinction to be drawn between a development which has already occurred and the development which he seeks to make and, there being material to found the decision, the Inspector's conclusion is essentially a planning decision. This court is not concerned with the merits of the planning decision. It is not for the court to have a view in matters of planning judgment, it is pre-eminently a matter for the Inspector, informed as he is by the facts and the conclusions reached by the Local Planning Authority. It is, in short, the scale of the harm which it was concluded would be done by the grant of permission in respect of a balcony. I see this as being at the heart of the Inspector's decision.[12]There was also a second point advanced by the Inspector, which was paragraph 10 of his decision letter:
"The overall positioning and height of the balcony would afford considerable views of the gardens below. While the fitting of an obscurely glazed privacy screen would reduce these views, large areas of the neighbouring gardens would remain exposed. I accept that the removal of the balcony would result in increased views from the existing bedroom window and door. However, I am of the view that this effect would be less intrusive and less uncomfortable for neighbours than the overlooking that would be experienced if people were on the balcony. On this basis, I conclude that the proposal would result in an unacceptable loss of privacy for the occupiers of neighbouring properties, contrary to policy H/11 of the UDP."
[13]Mr Smith challenged this conclusion but he did so with, in my judgment, some difficulty because he had to accept that he wished to have a balcony, however small, and a balcony which nevertheless would give access to somebody from the dormer window. The point is not met by the suggestion that there may not be room for someone to sit down. The point remains valid so far as there is the potential for such use. It has to be said that the whole purpose of having a balcony is that someone can go out on it in order to enjoy the view from the balcony.[14]It seems to me unavoidable that the objection on grounds of privacy remains untainted or unimpugned because it has to be accepted that there would be an intrusion on privacy, a potentiality for greater or lesser degree of intrusion, but nevertheless an intrusion. It also must be observed that in a matter such as this it is not for the court to take a view as to whether intrusion from time to time by somebody standing amounts to intrusion or whether the degree of intrusion or the character of the intrusion is such as to persuade a court the development should not be permitted. Those are all matters of planning judgment for the Inspector.[15]Again, as I indicated in the course of argument with Mr Smith, when one looks at this decision in essence, the balcony creating, as it does, the potentiality for intrusion, in a sense heightens the point advanced for the Inspector by the Secretary of State, on the first point, namely that it was perfectly right and proper to regard the difference between this proposed development and the already existing development as the difference between a dormer window and a dormer window with a balcony.[16]Thus I have concluded that there is no basis under section 288 for the court intervening in connection with this decision of the Inspector and the application therefore fails.[17]Thank you. Any applications now?[18]MS BUSCH: Yes, thank you, my Lord. I have a statement of costs which--

SIR GEORGE NEWMAN: I have seen.

[20]MS BUSCH: -- I would like summarily assessed.

SIR GEORGE NEWMAN: Has Mr Smith seen it?

[22]MS BUSCH: Well, my Lord, he has seen it. We did in fact forewarn Mr Smith, as you have seen from my skeleton argument, but --

SIR GEORGE NEWMAN: But he has seen the schedule?

[24]MS BUSCH: He has seen it this morning. We sent a copy to him by first class post --

SIR GEORGE NEWMAN: Does he have it in front of him now? Let him have a copy. Thank you. (handed)

[26]I have had looked at this. It would save time if I told you what concerns me about it, Ms Busch. There is obviously nothing which gives rise to comment from the court in any event in relation to the first page. One sees there what one might regard as a minimal but reasonable period of time being spent on attendances on client, counsel, opponents and on others and one ends up, at the bottom of that page, with a figure of £267. Nothing arises, as I see it, in relation to that. But where I am bound to say I am concerned is where I see on top of the next page, at item D, 18.8 hours at £160 a hour in work done on documents, and so one suddenly sees a figure of £267 shooting up by the addition of £3,000 and for the moment I am completely at a loss as to how anybody could have spent 18.8 hours on the documents in this case, which are minimal, and I cannot imagine what they were doing.[27]MS BUSCH: (pause) My Lord, the explanation, as is often the case with these Secretary of State cases, is that the time spent was -- as my Lord is aware, it is the practice of the Treasury Solicitor for the relevant solicitor to draft a minute of advice for the client. In this case it was some 18 paragraphs long and evidently it took the person in question some quite considerable period of time, but I see my Lord's point.

SIR GEORGE NEWMAN: I do not see that -- I mean, there may be a point of principle underlying the processes of the Treasury Solicitor. Plainly the Treasury Solicitor is entitled to tend an advice to the Secretary of State or the relevant person within the Secretary of State's department who receives these, but this is in fact not in terms of being an advice at all, it is for work done on documents, which is hardly an appropriate way of describing 18 paragraphs of what may be a carefully formulated advice. But 18 paragraphs of an advice, it seems to me, would be, a bit of a rather slang expression, over the top in connection with a perfectly straightforward matter such as this.

[29]I see. Well, that is the matter which first I comment on. Then I do not think anything else arises, apart from your fees, which, if I may say so, bearing in mind the detail of the skeleton argument and the care which you obviously prepared it, seem to me to be eminently reasonable. I cannot increase your fee, despite the fact that that might be on the face of it rather an attractive proposition for you. I cannot do that but, I am bound to say, I do draw attention to the fact that you as counsel have had to prepare a detailed skeleton argument, which has been of the utmost benefit, if I may say so, to the court, when on the other hand one is looking at a claim of £3,000 in connection with an advice internally given to the Secretary of State and it therefore gives me some cause for concern as to the disparity that can sometimes arise when, for the purposes of preparing the matter for the court, counsel does what he or she has to do and if, on the basis of the figures you have there, you were preparing an advice, then it seems to me that it would not have been outwith the ranges of 3,000.[30]I have no agenda here but I just draw it to the attention, of I know, the senior -- it is Diana Babar who is here today -- for the purposes of knowing the sort of points which the court pays regard to in considering the way in which work is distributed in this case. I cannot change the systems but one can indicate, perhaps, what one is thinking.[31]So there we are. It means, that we have a total bill -- including VAT, I suppose, does it? Is it exclusive of VAT?[32]MS BUSCH: It does not include VAT.

SIR GEORGE NEWMAN: We get to 5,227 and in effect one has 267 at the top of the page, 750 for you and attendance at the hearing by Ms Babar.

[34]MS BUSCH: My Lord, on that point, I think it is fair to make a couple of observations. The first is that the Treasury Solicitor does tend to do a jolly good belt and braces job on the documents and it is only fair to say that the minutes of advice that they draft are of great assistance to counsel as well. That is often why --

SIR GEORGE NEWMAN: Did you see the advice?

[36]MS BUSCH: Yes.

SIR GEORGE NEWMAN: You did. Well, I am grateful for you telling me that.

[38]MS BUSCH: So it does provide --

SIR GEORGE NEWMAN: So the two of you together, as it were, in a sense, generated the skeleton argument.

[40]MS BUSCH: Yes, and that is quite often why one would find that the time spent by counsel is relatively short, because it is of great assistance --

SIR GEORGE NEWMAN

[41]: Where is the skeleton argument charged from you, though? Is it embraced within -- what, the £250 or the £500. It must be the £250, must it not?[42]MS BUSCH: Yes, that is the 250 and then, as a matter of fact, my fees should be reduced because the fee for hearing is based on the assumption, which turned out to be misplaced, that the hearing would last two and a half hours. It has only been just over the hour.

SIR GEORGE NEWMAN: Well, it equally applies to Ms Babar's attendance too, two and a half hours.

[44]MS BUSCH: Yes.

SIR GEORGE NEWMAN: So we have to do a bit of chipping off in various areas, have we not? Do you want to suggest to me what you say? I think we ought to pay some significant regard to the 3,000, and then at the rest, in the light of what you said. Do you want to make any submissions, otherwise, with the help of Mr Smith, I am going to be left having a stab at it.

[46]MS BUSCH: May I discuss it with my solicitor?

SIR GEORGE NEWMAN: Yes. (pause)

[48]MS BUSCH: My Lord, the simple matter with regard to attendance at hearing can be considerably halved -- well, perhaps a little less than half. As regards the --

SIR GEORGE NEWMAN: What about the big sum?

[50]MS BUSCH: That is the 526, attendance at hearing by my instructing solicitor, and my fee for hearing of 500 -- well, strictly speaking it would be a hundred pounds, because, as you probably know, Treasury Counsel B panel are £100 an hour. So that is reasonably easy and then the question of the 18 hours: as I have said, a lot of the work was done beforehand, before it gets to me, so I would submit, perhaps -- my Lord may this still find this somewhat excessive, but in my submission a sum of 2,000 would be reasonable.

SIR GEORGE NEWMAN: Well, that is the equivalent of about 14 hours. What is your hourly rate, if I may ask?

[52]MS BUSCH: £100.

SIR GEORGE NEWMAN: And that is because you are scale B, is it? So you are here being regarded as having done seven and a half hours, as with the 500 for the attendance today.

[54]I will come to a broad brush conclusion but I will do my best to be fair all round. I need to hear Mr Smith. Thank you very much.[55]Mr Smith, you can see the exercise that I am engaged in. It is on the basis that you are facing first of all an application for you to pay the costs. Do you want to say anything, in principle, against the application to pay costs.[56]THE CLAIMANT: In principle I would argue that I should not have to pay the costs, as you might expect I would argue, on the grounds that I believe it is fair and reasonable for one to exercise their constitutional rights to challenge the power of the executive in the courts in relation to the separation of powers and by -- the balcony in itself is only worth about a thousand pounds, that is what it costs to construct. By these costs of some 5,000 being put up against me, it is almost a way of using costs to prevent people exercising their rights to challenge the executive. That is the point I would make in relation to that.[57]But in relation to the overall totality of costs, I would make the point that I had not actually seen this schedule until this morning and I only saw it very, very briefly for a matter of perhaps 30 seconds. So I have not had a chance to analyse the figures, although I would agree with you that 18 hours for 18 paragraphs of advice seems somewhat excessive. That is about a hour per-paragraph.[58]I would make the point that at the previous High Court hearing Sullivan J awarded costs of £500. Treasury Solicitors were seeking a similar amount of circa £5,000. I think there is an issue of proportionality into costs --

SIR GEORGE NEWMAN: What, he awarded £500 on a bill --

[60]THE CLAIMANT: Of 5,000.

SIR GEORGE NEWMAN: -- carrying an assessment of 5,000?

[62]MS BUSCH: Yes, my Lord.

SIR GEORGE NEWMAN: Was counsel here on that occasion?

[64]MS BUSCH: My Lord, I was. I have to say, I cannot actually remember, but it seems somewhat unlikely.

SIR GEORGE NEWMAN: What about your instructing solicitor today? Does she have any recollection of that?

[66]MS BUSCH: No.[67]THE CLAIMANT: I may have the papers, actually. I am not sure but I might --

SIR GEORGE NEWMAN: Well, I would not wish to show a slavish regard to another judge's conclusion in a different set of circumstances, but I will take it that on the previous occasion, whatever the bill was, it was substantially slashed by Sullivan J, as he then was. All right.

[69]THE CLAIMANT: The point I would make on the issue of proportionality in relation to the costs, the overall costs of the balcony is only about a thousand pounds and I would consider an award of costs for £500 would be proportionate in the circumstances and my final point would be that, if I had won the application, there would have been no costs awarded despite me putting significant time and effort in relation to this matter. Those are my submissions in relation to costs, my Lord.

SIR GEORGE NEWMAN: Thank you very much.

[71]The successful Secretary of State asks for his costs. In my judgment he is plainly entitled to reasonable costs of succeeding in the action and the normal order should follow. That does not infringe anybody's right to question the executive. Nobody has an unchallengeable, unfettered right to put the executive to costs in these courts on any particular privileged basis. The courts have a duty to ensure that justice is done in dealing with costs, as in dealing with the substance of any matter before the court.[72]So turning to the amount, the amount claimed, exclusive of VAT, is £5,227. The largest element in that is an item of 18.8 hours at £160 a hour by solicitors in the Treasury Solicitors and, after enquiry, it seems 18 hours spent for compiling largely an advice for internal purposes, which itself ran to about 18 paragraphs.[73]The amount of time, in my judgment, simply is completely disproportionate to the legal issues to which the application under section 288 gave rise. How anybody could have spent 18 hours, including writing out paragraphs, in dealing with straightforward matters such as this, I have difficulty in understanding. Ms Busch, who is instructed by the Secretary of State, acknowledges that what was done was of assistance to her in drawing up a skeleton argument, which, in accordance with her fee arrangement, took her two and a half hours. It seems to me that, less the quality of advice and the quality of succinctness and help which the skeleton argument has provided to the court, it is difficult to see why it should be costed in terms of time at such a significant period of time in addition, as is now suggested, namely something of the order of 12 to 13 hours, would make it a £2,000 award in respect of those costs.[74]So far as attendance is concerned, there is an attendance today allowing for £562 on the basis of some two and a half hours. The period of time, as I see it, is attendance at court. Travel time is already allowed for. There is a scope for tinkering with that but I would not be minded to tinker with that. Two and a half hours at court does not literally mean only, in this circumstance, the time spent in the court, it is the time spent by a solicitor with counsel discussing the case and so forth. If there is to be a reduction there, in my judgment, it would be very small and, in terms of the amount of time that counsel has been on her feet, again, no real reflection of what responsibility in these matters necessarily gives rise to. So I would be minded not to interfere with either of the figures which have been put forward on the basis of attendance at court and thus one has a figure of £1,000 (I forget the £62.50 for convenience); of £500 for counsel's attendance and solicitor and Treasury Solicitor here today; £250 for counsel's time and preparation, including skeleton argument; £267, which is the time built into the step before one comes to the much larger item of 3,000 for the preparation in house of an advice which was of assistance to counsel. It seems to me that the appropriate figure for that should be £500. That is twice the figure that counsel had been earning and it allows the fee earner there in excess of three hours for the work.[75]In those circumstances, one then has travel time, 112.50 to be added. Doing the quick mathematics now, as I sit here, that comes -- do correct me -- I shall probably get this wrong -- does that make £929.50 in precise terms or has my mathematics gone wrong? It must be more than that. It is 500 -- sorry, it must be more than that. It is 5, 10, 12, 18, 23, so 2,300. (pause)[76]MS BUSCH: My Lord, the figure that we have, this is adding -- I thought my Lord said initially £1,500 then 250, 267, 500, 112.50. That comes to 2,629.50.

SIR GEORGE NEWMAN: Right. Well, that seems to me to be the appropriate figure. We will round it up, shall we, say to £2,630.

[78]MS BUSCH: Thank you, my Lord.

SIR GEORGE NEWMAN: Thank you very much. You can have your encyclopaedia back. Thank you very much.