Green v Secretary of State for Communities and Local Government & Ors [2009] EWHC 754 (Admin)

Case No CO/7330/2008

[2009] EWHC 754 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 19th March 2009

Between

ROGER MICHAEL GREENClaimant

Strand

London WC2A 2LL

B e f o r e:

MR. TIMOTHY CORNER QC

(Sitting as a Deputy Judge of the High Court)

Between

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant

CANTERBURY CITY COUNCILDefendant

BRIDGET JONESDefendant

JOSEPH JONESDefendant

ANGIE JONESDefendant

SHANE JONESDefendant

CANTERBURY CITY COUNCIL

Claimant

Between

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT

SHANE JONES

FRIENDS OF FORDWICH AND DISTRICT

BRIDGET JONES

ANGIE JONES

Computer-Aided Transcript of the Stenograph Notes of

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(Official Shorthand Writers to the Court)

Mr Iain Colville (instructed by Messrs DMH Solicitors)) appeared for Claimant (Roger Michael Green)

Mr Robin Green (instructed by Canterbury City Council) appeared for Claimant (Canterbury City Council)

Mr David Forsdick (instructed by the Treasury Solicitor) appeared for 1st Defendant

Mr Stephen Cottle appeared on behalf of Bridget Jones and Angie Jones

J U D G M E N T

(As Approved By Court)

[1]THE DEPUTY: These are applications under section 288 of the Town and Country Planning Act against the decisions of the Secretary of State, dated 24th June 2008, granting planning permission for development at Moate Farm, Stodmarsh Road, Fordwich, Canterbury, Kent CT3 4AP (“the Site”). BACKGROUND

[2]The Secretary of State's decision was made on her behalf by Mr Stuart Reid, a Planning Inspector, after an inquiry on 1st, 2nd and 3rd April 2008. The Local Planning Authority, Canterbury City Council, was of course represented at the inquiry, as well as the appellants and also the Friends of Fordwich and District, who were represented by counsel Ms Weller. She called as a witness Mr Roger Green.

[3]The Inspector's decision letter related to nine appeals. Appeal A was under section 78 of the Town and Country Planning Act 1990, and concerned an application for planning permission for 3 x 40ft x 20ft caravans for all year round dwellings. The application for that development was made on 6th June 2001, refused on 6th March 2003 and permitted on appeal on 7th May 2004. The appeal decision was quashed. This was therefore the re-determination of the appeal.

[4]There were also eight appeals against enforcement notices relating to development at the Site referred to by the Inspector as appeals B to I. Appeals B and C related to enforcement notices which were withdrawn before the inquiry. It is common ground that for the purposes of this case I need not concern myself with appeals E, F, H and I, all of which were dismissed, the enforcement notices having been upheld subject to corrections. Appeal D related to an enforcement notice about operational development on the Site. Appeal G alleged a material change of use at the Site. Between them, those appeals concerned the placing on the Site and use of the Site for a number of items which are fully described in the enforcement notices and which are shown on the plan attached to the Inspector's decision letter as plan number 2.

[5]I should explain that the Site is divided into three "units" running lengthwise from northwest to southeast. The main items on the Site are as follows. On unit one, which is the easternmost unit, there is what is described in the enforcement notice as mobile living accommodation and at the rear of that unit a timber shed. On unit two, three caravans, a timber structure and a “van back store”. On unit three, a caravan, a construction formed of two former caravans connected by a central timber structure, a workshop and another van back store.

[6]I turn to the Inspector's decision. At paragraph 4 of his decision, the Inspector referred to discrepancies between the plans attached to the enforcement notices and what was on Site at the time he was considering the appeals. He corrected the description and plans to conform with what I have just described. He also corrected the dimensions for the mobile living accommodation on unit one. The dimensions he gives in paragraph 4 makes it clear that it will be outside the statutory definition of a caravan, though not by much.

[7]The statutory definition of a caravan to which I refer is contained in the Caravan Sites Act 1968 and I should read section 13(2) of that Act, which says:

"For the purposes of Part I of the Caravan Sites and Control of Development Act 1960, the expression 'caravan' shall not include a structure designed or adapted for human habitation which falls within paragraphs (a) and (b) of the foregoing subsection if its dimensions when assembled exceed any of the following limits, namely— (a) length (exclusive of any drawbar) 65.616 feet (20 metres); (b) width: 22.309 feet (6.8 metres); (c) overall height of living accommodation (measured internally from the floor at the lowest level to the ceiling at the highest level): 10.006 feet (3.05 metres)."

[8]In relation to appeal A, which was a section 78 appeal, the Inspector set out at paragraph 18 of his decision the main issues:

"• Firstly, the effect the proposed development would have on the character and appearance of the surrounding rural area; • Secondly, the effect the proposed development would have on the residential amenity of nearby residents; • Thirdly, the effect the proposed development would have on the setting of Fordwich Conservation Area; • Fourthly, whether the proposed development could be adequately screened from adjoining land; and • Fifthly, whether the proposed development would be well related to local services and facilities."

[9]At paragraphs 19 to 25, the Inspector set out the relevant planning policies and at paragraph 26 onwards he considered the impact of the development on character and appearance. As part of that assessment, he dealt with the need for new gypsy caravan sites within the district. I set out paragraphs 32 and 33 of his decision:

"32. The Council accepts that there is an unmet local need for new gypsy caravan sites. The only public site at Vauxhall Road is full, and vacancies rarely occur. The Council has not yet identified any additional sites within the district to accommodate the need for further gypsy site provision. 33. The need for Canterbury has been established at 31 pitches between 2007 and 2011, and 17 further pitches between 2012 and 2017, in the East Kent Gypsy and Traveller Accommodation Assessment. These figures have been forwarded to the South East Regional Assembly, and the final numbers will be established through the South East Plan process."

[10]The Inspector went on to deal with the effect of the proposals on character and appearance. He pointed out at paragraph 34 that the Site was not located in an area with a nationally recognised designation, and nor was it subject to a local landscape or local nature conservation designation. He pointed out that paragraph 54 of circular 1/2006 states that rural settings, where not subject to special planning constraints, are acceptable in principle and then he said, in paragraph 35:

"Thus, whilst the proposal would be seen, it seems to me to be clear that the national policy set out in the Circular indicates that some modest degree of harm is acceptable in the countryside, otherwise paragraph 54 would not say that rural settings are acceptable in principle. I do not consider that the harm caused by the presence of the caravans would be any more than marginal within the wide sweep of the countryside in the area, and thus it would be acceptable. The character and appearance of the rural area would be preserved"

. Having dealt in paragraphs 36 and 37 with the Local Plan, he concluded at paragraph 38:

"Thus the proposed gypsy caravan site would preserve the character and appearance of the surrounding rural area, would conform to the advice in Circular 01/2006, and would satisfy the relevant policies in the Development Plan including Local Plan Policy BE1."

At paragraphs 39 and 40 he dealt with the impact of the development on residential amenity and concluded at paragraph 40:

"The use of the site would therefore not have an adverse effect on residential amenity, and it would in consequence satisfy policy H8(a)."

At paragraphs 41 and 42 he dealt with the effect on the conservation area and concluded that:

"In consequence the development would have no harmful effect on the preservation of the character or appearance of the Conservation Area."

[11]The Inspector dealt with the issue of screening at paragraphs 43 and 44 and concluded that:

"I am therefore satisfied that the site could be adequately screened from adjoining land, by use of an appropriate condition to achieve it."

He then dealt with sustainability at paragraphs 45 and 46, and concluded at paragraph 46:

"The development is acceptable in principle as a gypsy caravan site for 3 plots. It seems to me that the development is well related to Fordwich and Sturry for local needs, and is sufficiently close to Canterbury for more major needs, for a gypsy family with health, education, shopping and entertainment and social requirements, amongst others. It is in a sustainable location..."

[12]At paragraph 47 and 48 he considered conditions. I need to set out these paragraphs in their entirety:

"47. The use of the land is clearly only appropriate for gypsies or travellers who fall within the definition in the Circular, and I shall impose a condition to restrict the use of the land in that regard. It is necessary to prevent unacceptable encroachment on the countryside and therefore I shall limit the area to be used for residential purposes and the use of the access road. It is also necessary to limit the number of pitches and statutorily defined caravans to protect the rural area. 48. It is also reasonable and necessary to control commercial or industrial activities on the site to protect the character of the area. As there is a need for enhancement of the landscaping and for clarification of the proposed layout, a condition to deal with this is also necessary, with a timetable to ensure that it is complied with, failing which the use will cease. I have also attached a condition for replacement planting and to ensure that the structure on Plot 3 is removed."

And so the Inspector concluded on the section 78 appeal at paragraph 49:

"I conclude on the section 78 appeal that the proposed development would preserve the character and appearance of the rural area, it would not harm residential amenity, it would not harm the setting of the Conservation Area or views into and out of it, that it could be satisfactorily screened, and that it is in a sustainable location as a gypsy site. All the relevant Development Plan policies are satisfied."

[13]The Inspector then turned to deal with the section 174 appeals concerning the enforcement notices. So far as the appeals on ground (a) and the deemed planning applications were concerned, he said that the main issues were the same as in the section 78 appeal and in relation to character and appearance he said as follows:

"53. There seems to me to be a significant difference on this issue compared with the section 78 appeal. That is that the development on the site is substantially more than is acceptable under the section 78 appeal, with one of the structures being marginally outside the definition of a caravan, with other structures being wholly outside the definition of a caravan and almost certainly not able to be moved, and other items seemingly randomly scattered on the land. 54. The site is unattractively developed, and is harmful in the countryside due to its out-of-keeping and insensitive intrusion. It has a damaging impact on the countryside, and is not covered by the very specific guidance in the Circular, which relates to gypsy and traveller caravans, properly controlled to make their effect acceptable. For these reasons I find the development unacceptably harmful to the character and appearance of the rural area, which it fails to protect. In consequence it fails to satisfy the relevant Development Plan policies."

[14]In relation to residential amenity, setting of the conservation area, screening and sustainability, the Inspector said that he found no reason to differ from his conclusions on appeal A. Therefore at paragraph 59 of the decision he said:

"I therefore conclude that the ground (a) appeals fail to preserve the character and appearance of the rural area. Whilst the other issues are not a concern, I consider that the harm to the character and appearance of the rural area caused by this development to be unacceptably harmful, and to be a compelling reason to dismiss the appeals. There are no conditions which could make this unacceptable development acceptable."

[15]He dismissed the appeals on ground (g) and concluded that the section 174 appeals must fail on grounds (a) and (g).

[16]Overall conclusions were reached by the Inspector at paragraph 62:

"Because the proposed development would cause no unacceptable harm, I shall allow the section 78 appeal. As the section 174 appeals cause unacceptable harm to the rural area, I shall dismiss the appeals."

Then in his formal decisions, paragraph 63, he said:

"I allow the section 78 appeal, and grant planning permission for the siting of 3 x 40ft x 20ft caravans for all year round dwelling at Moate Farm, Stodmarsh Road, Fordwich, Canterbury, Kent CT3 4AP in accordance with the terms of the application, Ref. CA/01/00697/FOR, dated 6 June 2001, and the plans submitted with it, subject to the following conditions..."

I set out the most pertinent conditions:

"2) This permission does not authorise the use of the land as a caravan site by any persons other than Gypsies and Travellers, as defined by paragraph 15 of the ODPM Circular 01/2006... 4) At no time shall the residentially occupied part of the land be subdivided into more than 3 separate pitches... 5) No more than 2 caravans including no more than 1 static caravan shall be stationed on Plot 1; no more than 3 caravans including no more than 2 static caravans shall be stationed on Plot 2; and no more than 3 caravans including no more than 1 static caravan shall be stationed on Plot 3. All of the caravans shall be as defined in Part 1 of the Caravan Sites and Control of Development Act 1960 and section 13 of the Caravan Sites Act 1968 as amended………"

Condition 7 I read only in part:

"The use hereby permitted shall cease and all caravans, structures and materials brought on to the land for the purposes of such use shall be removed within 28 days of the date of failure to meet any of the requirements set out in (i) to (iv) below:- (i) within 3 months of the date of this decision: (a) a scheme for the layout of the site include the extent of each of the 3 pitches; the position on each pitch of the caravan bases for static caravans and the position of the touring caravans; associated parking and other hard-surfaced areas; and a scheme for the landscaping of the site which shall include details of plant species, plant sizes and proposed numbers and densities, fencing, gates, external lighting and surface treatment including the access drive; and (b) full details of the wooden shed erected on Plot 2; and, (c) details of foul drainage; shall have been submitted for the written approval of the local planning authority and the schemes shall include a timetable for their implementation……"

There were other conditions which I do not set out. As I have already said, the Inspector went on to direct that the enforcement notice appeals that have not been withdrawn should be dismissed, subject to various corrections. THE GROUNDS OF CHALLENGE

[17]The submissions made on behalf of the claimants can be expressed as the following grounds. It will become clear that there was a substantial overlap between the points made by Mr Green for the Council and Mr Colville for the Friends of Fordwich and District (herein after called "Friends") on the other. In what follows where I refer to Mr Green I refer to Mr Robin Green, counsel for the Council.

[18]First, it was submitted by Mr Colville that condition 5 could not lawfully be imposed. He says that the Inspector erred in granting planning permission for development which the Jones family were not applying for and which is substantially different from that described and considered by the Council.

[19]Mr Colville relied on Kent County Council v Secretary of State for the Environment

[1976] P&Cr 70

, Wheatcroft (Bernard) v Secretary of State for the Environment

[1982] 43 P&CR 233

and Breckland DC v Secretary of State for the Environment and Hill

[1992] 65 P&CR 34

, for the principle that planning permission cannot be granted for something substantially different from that which has been applied for. As Forbes J said in Wheatcroft at page 240:

"To give permission for a substantially different development would ... be unreasonable ... because it would not have been what Parliament intended for a consultation process to comprehend..."

[20]Mr Colville said that the pivotal factor in the application of this test was the defeat to the statutory consultative scheme if permission were granted for development substantially different from that which was applied for and consulted upon. He argued that the approach of the Inspector in the present case resulted in approval of a development substantially different from the proposed scheme, and which was not subject to public consultation. In particular, there was no consultation on whether the Jones family should be permitted: - to place 8 caravans on the Site, including 4 "static" caravans; - to retain the wooden shed on plot 2; and - to be permitted sufficient hardstanding to station 8 caravans plus ancillary vehicles, and additional hardstanding.

[21]Secondly, both Mr Colville and Mr Green for the Council argued that condition 5 is not sufficiently certain to be enforceable. Essentially, the proposition was that the term "static" which is used in condition 5 is uncertain of meaning.

[22]The result of this, Mr Colville said, was that the condition was void for uncertainty. He relied on Fawcett Properties Ltd v Buckingham County Council

[1961] AC 636

, where Lord Denning said at page 678:

"For I am of opinion that a planning condition is only void for uncertainty if it can be given no meaning or no sensible or ascertainable meaning, and not merely because it is ambiguous or leads to absurd results. It is the daily task of the courts to resolve ambiguities of language and to choose between them; and to construe words so as to avoid absurdities or to put up with them. And this applies to conditions in planning permissions as well as to other documents."

[23]Mr Colville submitted that the meaning of "static" was so obscure that it could be given no meaning or no sensible or ascertainable meaning. Accordingly the condition must be void.

[24]Mr Green for the Council did not go as far as Mr Colville. He did not suggest that the presence of the word "static" in condition 5 made the condition void for uncertainty using the test in Fawcett. However, he said, there was sufficient uncertainty in the meaning of "static" for the Secretary of State's own policy to be breached. Mr Green relied on Circular 11/95.

[25]Paragraph 14 of circular 11/95 explains that conditions should be:

"i. necessary ii. relevant to planning iii. relevant to the development to be permitted iv. enforceable v. precise and vi. reasonable in all other respects."

Later paragraphs of circular 11/95 expand on these requirements. Paragraphs 30 and 31 provide:

"30. The framing of conditions requires care, not least to ensure that a condition is enforceable. A condition, for example, requiring only that 'a landscape scheme shall be submitted for the approval of the local planning authority' is incomplete, since if the applicant were to submit the scheme, even if it is approved, the local planning authority is unlikely to be able to require the scheme to be implemented. In such a case the requirement that needs to be imposed is that landscape work shall be carried out in accordance with a scheme to be approved in writing by the local planning authority; and the wording of the condition must clearly require this. A condition of this kind also sets no requirement as to the time or the stage of development by which the landscape work must be done, which can similarly lead to enforcement difficulties. Conditions which require specific works to be carried out should state clearly when this must be done."

Paragraph 31 is headed "Vague Conditions" and reads:

"A condition which is not sufficiently precise for the applicant to be able to ascertain what must be done to comply with it is ultra vires and cannot be imposed. Vague expressions which sometimes appear in conditions, for example such as 'keep the buildings in a tidy state', or 'so as not to cause annoyance to nearby residents', give occupants little idea of what is expected of them. Conditions should not be made subject to qualifications such as 'if called upon to do so', or 'if the growth of traffic makes it desirable', which do not provide any objective and certain criteria by which the applicant can ascertain what is required."

[26]Mr Colville and Mr Green said that neither condition 5 nor the body of the decision states what a static caravan is or how it is distinguished from a non-static caravan. Nor is there a relevant statutory definition. Mr Green said that the qualifier "static" could refer to physical characteristics or to past or proposed use.

[27]Thirdly, Mr Colville submitted that even if condition 5 is lawful, the Inspector in granting permission subject to that condition did not take account of the full extent of the development that he was permitting, when assessing the impact on the development on the character and appearance of the surrounding area and residential amenity. He said that at no stage in the decision letter did the Inspector address a development of the Site to station eight caravans on three plots, plus the retention of the wooden shed on plot 2, and the storage, hardstanding and other elements that would be lawfully ancillary to the eight caravans. As the development permitted by the Inspector was substantially greater than that proposed, it followed that the Inspector was bound to consider the full extent of the development he had in mind to grant permission for, and set out his reasons why, having considered the material planning considerations, permission should be granted.

[28]Fourthly, both the Council and Mr Green criticise the Inspector's decision to grant permission on the section 78 appeal on the basis that, as the Inspector said in paragraph 53, the development currently on the Site (ie the development which was the subject of the Enforcement Notices) was:

"... substantially more than is acceptable under the section 78 appeal, with one of the structures being marginally outside the definition of a caravan, with other structures being wholly outside the definition of a caravan and almost certainly not able to be moved, and other items seemingly randomly scattered on the land."

[29]Mr Colville said it was irrational for the Inspector to grant permission on the section 78 appeal having regard to what he found at paragraph 54 of his decision to be the unacceptable impact on the character and appearance of the development now on the Site, because the development that would be permitted pursuant to the section 78 appeal was more extensive than the development now on the Site.

[30]Mr Green did not go so far as to say that the Inspector could not rationally grant permission in those circumstances. However, he said that the Inspector had allowed under the section 78 appeal a quantum of development that could be greater than the development enforced against. Furthermore, said Mr Green, in the light of the Inspector’s findings that the existing development was unacceptably harmful, it is difficult to understand how a planning permission for up to eight caravans could be any less harmful. Mr Green said that the Inspector had erred in not giving adequate reasons why he nevertheless allowed the section 78 appeal in those circumstances.

[31]Fifthly and finally, Mr Colville submitted that the Inspector erred in that he did not consider the case put by the Jones family for their own personal need for the caravans on the Site. The Inspector had identified that harm would result from the development. In those circumstances some countervailing benefit was needed in order to justify the development. The Jones family's case on personal need was not accepted by the Friends. The Inspector should have considered it, and set out his conclusions.

[32]CONCLUSIONS

[33]I now set out my conclusions on the points raised. As a matter of approach, I keep in mind the guidance given by Lord Brown of Eaton-Under-Heywood in South Buckinghamshire District Council v Porter (No 2)

[2004] 1 WLR 1953

at paragraph 36. That guidance is too well-known to require setting out in this judgment but I take particular note from paragraph 36 of the need to read decision letters:

"... in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments addressed."

[34]I begin with ground 1, which concerns the lawfulness of condition 5.

[35]It is important as a matter of background to bear in mind that by condition 2 this Site was only to be used as a caravan site by Gypsies and Travellers as defined in paragraph 15 of circular 01/2006. Paragraph 15 refers to:

"Persons of nomadic habit of life whatever their race or origin, including such persons who on grounds only of their own or their family's or dependants' educational or health needs or old age have ceased to travel temporarily or permanently, but excluding members of an organised group of travelling show people or circus people travelling together as such."

[36]It is plain that the people who were to be permitted to use this Site as a caravan site were to be persons of nomadic habit of life. One consequence of that is that Gypsies and Travellers have at least two caravans. Annex C to the circular refers to:

"... the nomadic and traditional lifestyle whereby many gypsies and travellers have one caravan to live in, and one that is more mobile that they use when travelling."

[37]It appears therefore that it is normal, and to be expected, that a gypsy family will have a caravan in which they live and a tourer. As was submitted for the Secretary of State, this is further confirmed by:(a) The Planning Inspectorate's own manual on gypsy casework at paragraph 142: "The numbers required/anticipated (including the number of mobile homes/static caravans and the numbers of touring caravans) should be established early on in the proceedings. Occupation may commence with a touring caravan with the hope of purchasing a mobile home in the future. Clarify the likely intentions. One mobile home and one tourer (often used for sleeping in throughout the year where there is inadequate space in the mobile home) is the normal minimum for a single gypsy family. If less than this is sought, Inspectors should find out what arrangements are made for periods of travel. Caravans only needed for touring can sometimes be stored off-site."

(b) The Good Practice Guidance on Designing Gypsy and Travellers Sites, published in May 2008, which says at paragraph 7.12 that: "... as a general guide, it is possible to specify that an average family pitch must be capable of accommodating ... a large trailer and a touring caravan."

[38]In view of this, it cannot have been a surprise when the Jones family made it clear at the inquiry, as I understand they did, that they were seeking to have more than three caravans on the Site. Even before the conditions session, I was told by Mr Green, who was present at the inquiry, that the Appellants stated that they wished to have the eight caravans that condition 5 would permit. Their desire was clear beyond doubt when their representative produced for the purposes of the section 78 appeal the manuscript list of conditions, which included a condition that formed the basis of condition 5 in the decision.

[39]No one at the inquiry, including those representing the Council and the Friends, objected at that stage to the lawfulness of a condition in the form of condition 5.

[40]A condition similar to condition 5 was considered by Davis J in R (Dowling) v Secretary of State

[2007] EWHC 738

. That case, like the case before me, concerned a challenge to an appeal decision about a caravan site for Gypsies. The Inspector's formal decision was:

"I allow the appeal, and grant planning permission for four mobile homes for Gypsy families ... in accordance with the terms of the application ... and the plans submitted therewith, subject to the following conditions."

[41]Condition 2 provided:

"No more than six caravans, as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968 (of which no more than four shall be static caravans or mobile homes) shall be stationed on the site at any one time."

[42]One of the grounds of challenge to the permission was that (see paragraph 22 of the judgment):

"... the effect of that condition is in truth to enlarge, and significantly to enlarge, the actual planning permission which the appellant ... had been seeking. She had sought, and what had been in issue at the inquiry, permission for four mobile homes for gypsy families. But, as it is submitted, the consequence of the condition imposed is that, in the result, six caravans can be installed on the site, albeit that no more than four of them could be static caravans or mobile homes."

[43]After having referred to the provisions of circular 01/2006, which I have already cited, Davis J's conclusions on this submission were as follows:

"27. It is also said that with regard to specifying number of caravans any maximum should be reached through planning conditions, but should be related to the circumstances of the specific size and location of the site and surrounding population and density. In addition, there were cited to me the provisions of Circular 11/95 relating to the use of conditions in planning permissions, which I do not need to set out further here, although I of course have had regard to them. 28. It seems to me that, set in the context of this overall decision letter, the short answer to this objection raised on behalf of Mr Dowling is the one put forward by Mr Phillpot on behalf of the Secretary of State and adopted by Mr Rudd on behalf of Mrs Keet; that is, that such condition is not designed to and does not have the effect of expanding or enlarging the planning permission granted. Rather it is designed and has the effect of regulating and controlling it. It seems to me that that must be right: because the actual decision of the inspector here was to grant planning permission for four mobile homes for gypsy families. It would really make little sense if that were then immediately to be converted into the grant effectively of permission for six caravans. It is true that in condition 2, there is no express restriction as to what those caravans may be used for, and Mr Nardecchia suggested that such a condition would permit six residential caravans; that is to say, four mobile homes already on the site and two others then to be brought on to the site to be use[d] entirely for residential purposes. But I do not think that is a sensible interpretation of this particular decision letter. 29. It seems to me, looking at this on a realistic and pragmatic basis, the condition is reflecting the structure of this particular decision. What the inspector was doing was saying that those four mobile homes could be there, and then there were to be no more than six caravans in total: so that if, for example, Mrs Keet or her family wished to have, in addition, touring caravans -- which, as I see it, they otherwise would be entitled to do in the absence of any planning restriction or condition -- then that was to be subject to an overall restriction of six in total. That, to my way of thinking, makes excellent sense. It seems to me to be that which was intended, and it seems to me to be adequately covered by the wording of the condition used."

[44]In short, rather than expanding or enlarging the permission, condition 2 in Dowling had the effect of regulating and controlling it, which was in everyone's interest.

[45]The need for regulation and control arises because of the nature of a planning permission of the kind granted in Dowling and in the present case. The permission is for a change of use. Although it permits use of the site by a given number of caravans, in the absence of a condition, there is nothing to prevent intensification of the use by the introduction of further caravans.

[46]In submissions before me there was no quarrel with the following passage to be found in the Encyclopedia of Planning Law and Practice at paragraph 55.53:

"... a caravan site is still a caravan site whether three or 300 caravans are accommodated. Whilst an increase in numbers need not in itself constitute development, it will do so if the increase is of a scale sufficient to constitute a material change in the character of the use."

[47]It follows that where planning permission is granted for use of land by a given number of caravans, in the absence of a condition no further planning permission is required for the presence of a greater number, unless the increase in numbers is of such a scale that there has been a material change in the character of the use.

[48]It therefore seems to me legitimate and appropriate for conditions to be imposed on such a permission to control the numbers of caravans which may be present on site.

[49]Mr Colville suggested that the present case was to be distinguished from Dowling in that there would be in the present case an inconsistency between what was permitted -- namely 3 homes for permanent living -- and what the conditions would allow -- four "static" homes, which, in effect, meant four homes for permanent living.

[50]I do not think such inconsistency arises. All the condition is seeking to achieve is to control any future expansion of the use by way of intensification.

[51]It is true that, unlike in Dowling, a timber shed is specifically referred to in condition 5. However, I do not think that means this case should be decided differently from Dowling. So far as I can see, it was not suggested in Dowling, and it was not suggested at the inquiry in this case, that the effect of the relevant condition (number 2 in Dowling, number 5 here) would be to allow intensification to the extent of there being a material change of use.

[52]In my view the Wheatcroft line of cases does not apply in this particular context until the stage is reached at which the lawful limits of intensification are breached. In other words, unless a condition like condition 5 is giving sanction to activities which would be so intensified as to comprise a material change of use from the use permitted by the grant of planning permission, it cannot be said that an Inspector or Local Planning Authority is giving planning permission for something substantially different from that applied for.

[53]It is true that the Inspector did not in his decision letter deal expressly with the issue whether that which condition 5 would allow would comprise a material change of use by intensification. However, he could not have been expected to do so. No one at the inquiry raised the issue, so it can hardly be said that this was a principal important controversial issue with which the Inspector needed to deal expressly. It might be argued that there could be cases where what was being suggested for incorporation in the condition was so extensive as to be likely to sanction a material change of use by intensification. If so, it might be said that the Inspector dealing with the case should expressly deal with that point in his decision, even if no-one had raised it. However, this case does not in my view approach that situation, and it was not suggested that it did.

[54]For clarity, I add that I do not think that the issue whether having regard to condition 4 (prevention of sub-division of the Site into more than three separate pitches) more than three households could occupy the Site affects this is or any of the other grounds. I accept the submission of the Secretary of State that in the context of Gypsy cases a "pitch" means the part of a site occupied by one household but even if that is wrong, and more than three households could occupy the Site, that does not affect the conclusions I have reached.

[55]I therefore conclude that the first ground of challenge fails.

[56]I now turn to the second ground, in which it is argued that the use of the word "static" in condition 5 renders the condition either void for uncertainty, or at least contrary to the Secretary of State's policy. For an Inspector to impose a condition contrary to such policy without giving reasons for departing from it would attract the conclusion that he failed to take the policy into account.

[57]I do not accept the submission for the Claimants. It seems to me that the meaning of "static" is sufficiently clear. It is a term commonly used in the context of gypsy cases. It arises from the fact that, as I have already said, gypsies generally have one caravan in which they live, and one that is more mobile, that they use when they are travelling.

[58]The concept of "static caravans" as opposed to "touring caravans" has been in use in Government policy documents for many years. For instance, "static caravans" are contrasted with "touring caravans" in circular 23/1983, which deals with the Caravan Sites and Control of Development Act 1960.

[59]The same is true of the Planning Inspectorate's own manual on gypsy casework. I have already set out paragraph 142. Paragraph 143 states:

"'Caravan' is defined by s.29(1) of the Caravan Sites & Control of Development Act 1960 and s.13 of the Caravan Sites Act 1968 ... Any permission for a 'caravan' can thus mean a twin-unit mobile home with the appearance of a small bungalow. Where visual impact is an issue, Inspectors should consider whether it is appropriate or necessary to limit the number of mobile homes within the total figure, or indeed to restrict all caravans on the site to a type capable of being lawfully towed on the public highway without division into separate parts' if the visual or other impact of a static caravan would be unacceptable."

[60]The Inspectorate's standard conditions use the word "static" in conditions 8 and 9, which I will set out:

"8) No more than x caravan(s), as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968 (of which no more than y shall be a static caravan or mobile home) shall be stationed on the site at any time. 9) The residential use hereby permitted shall be restricted to the stationing of no more than x caravans at any time (of which no more than y shall be a static caravan or mobile home)."

[61]Further, the distinction between static and touring caravans was not new, either, to the Council or to Mr Roger Green, who gave evidence for the Friends at the inquiry before Mr Reid. The terms "static caravans" and "touring caravans" appear in an appeal decision dated 6th June 2006, in relation to Romany Green Acres, Well Lane, Fordwich. The Council was represented at that inquiry as Local Planning Authority and Mr Roger Green gave evidence. It was not suggested to me that this decision was challenged by either the Council or Mr Roger Green, or that any objection was raised to the relevant condition.

[62]I think the Inspector made clear in this case in his decision what he meant by the use of "static". Condition 7(1(a) refers to "the position on each pitch of the caravan bases for static caravans and the position of the touring caravans". The Inspector was drawing a contrast between static caravans, which are the caravans where the Gypsies live, and which have bases, and the touring caravans, which are used when the Gypsies are travelling.

[63]Mr Forsdick described a touring caravan as being one in which one travels, which can be hitched to the back of a car or van, is not permanently plumbed in, does not require a permanent base, and will be on roadworthy wheels. He drew a contrast with a static caravan as being one which cannot be hitched to the back of a car or van, will have a base, may or may not be on wheels, and which will be plumbed in.

[64]I find those descriptions helpful, but I am not convinced that a precise definition needs to be or can be attempted. The essence of the difference between static and other caravans seems to me to be that static caravans are those in which one lives, and which are not generally moved, and the mobile caravans are those in which one travels.

[65]I find helpful the approach of Sullivan J in Carter Commercial Developments v Secretary of State

[2002] EWHC 1200 (Admin)

in which the court held (see paragraph 49 of the judgment) that conditions should be construed in a benevolent manner and the court should be astute to ensure, if at all possible, that conditions were not so interpreted that they were imprecise or unreasonable. As part of that approach, it is to be recognised that a term may be difficult to define exhaustively, and there may be debate in relation to marginal cases as to whether the term applies in a particular situation, but that, in general, its applicability in a given situation is evident to those active in the relevant field; see by analogy R (Belgrave Land) Limited ex parte Bedford Borough Council

[2001] EWHC (Admin) 1127

, per Sullivan J at paragraphs 48-52, in relation to the term "district centre".

[66]I am comforted in my view that the condition was not vitiated by containing the word "static" by the fact that no-one at the inquiry, including the Council and the Friends, raised objection to condition 5 in this regard. Mr Green told me that he had not had concerns at the inquiry and that the Council had decided to take the point on appeal only after officers of its enforcement section read the decision. I believe, for the reasons I have given, that the fears of the enforcement officers are without justification.

[67]I turn to the third ground, which raises the question whether the Inspector assessed the full extent of what he was permitting.

[68]I should say at the outset that it is not just eight caravans that will be permitted to be on the Site as a result of this permission. It was made clear to me that once one has permission for the use of land for the siting of caravans, planning permission is granted automatically for all the necessarily incidental operational development which is required under the Caravans Sites and Control of Development Act 1960. However, Mr Colville accepted that the Inspector could be expected to be fully aware of these incidental matters and that he could be assumed to have taken them into account in reaching his conclusions on the effect of the proposals overall.

[69]Mr Colville based his case on the third ground on the caravans and shed referred to in condition 5. He said that there was no evidence that in considering the effect of allowing the appeal, on the character and appearance of the area, residential amenity, setting the conservation area, sustainability, and any other relevant matter, the Inspector had considered the impact of eight caravans and a timber shed as opposed to three caravans.

[70]I do not accept that contention. It is clear from condition 5 that the Inspector knew what he was permitting. I do not think it can possibly be said that when assessing, carefully as he did in the body of his decision, the impacts of the development, that he ignored the full extent of the development that would ensue from all parts of the permission he was granting, including condition 5.

[71]The fourth ground focuses on paragraphs 53 and 54 of the decision. It is said that the Inspector could not consistently allow the section 78 appeal, complete with condition 5, and take the view that the development now on Site is unacceptable. I do not agree.

[72]It is clear from paragraph 53 that the Inspector was taking the view that the present condition of the Site, which is the subject of the Enforcement Notice, is unacceptable.

[73]What is now on site comprises, in summary, on unit one a caravan which is larger (though not by much) than the tolerances in the statutory definition of a caravan in section 13 of the 1968 Act, plus a timber shed, on unit two three caravans, a timber structure and a "van back store", and on unit three a structure formed out of two caravans connected with a timber structure, a further caravan, a workshop and another "van back store". In my judgment the Inspector was wholly entitled to conclude that eight caravans and a timber shed would be more environmentally acceptable than the collection of items I have just mentioned.

[74]It was said by Mr Green that the Inspector could rationally have concluded that what he was permitting under the section 78 appeal was more acceptable than what is now present on the Site only if he had in mind in relation to section 78 appeal nothing other than the three caravans applied for. I do not agree. For reasons I have set out, I think he could rationally take the view, having inspected the Site, that what was now on the Site was materially worse than that which he was permitting, taking on board the caravans and the shed that condition 5 allows. It would be surprising if for the purposes of comparison the Inspector forgot what condition 5 allows for, and I see no evidence that he did. I should add in my judgment his reasoning furthermore cannot be impugned.

[75]Finally, I deal with the fifth ground. Mr Colville argued that the Inspector failed to deal with the case put forward by the Jones family based on their own personal need for a site. It is true that the Inspector did not deal with that, and I accept that the Friends opposed that element of the Jones family’s case. However, in my judgment the Inspector did not need to deal with the "personal need" case put forward by the Jones family. The Inspector found that there would be some modest adverse effect from the development. At paragraph 35 of his decision, he said there would be "marginal" harm caused by the presence of the caravans in the countryside. However, he went on to find that all relevant development plan policies were satisfied -- see paragraph 49 of his decision. It follows that there was no need for the Inspector to identify compensating material considerations to balance any development plan conflict.

[76]Mr Colville argued that nevertheless the identification of even marginal harm called for evidence of some countervailing benefit from the proposal in order to justify the grant of permission. Given the Inspector's finding that the development plan was complied with, I do not agree. But even if Mr Colville is right, the Inspector did identify a countervailing benefit. At paragraphs 32 and 33 of his decision, he recorded the Council as accepting that "there is an unmet need for new gypsy caravan sites." He therefore found a need, albeit that it was not a need personal to the Jones family, and based on their own circumstances. I do not find that surprising. This was not, after all, intended to be a personal permission and I find therefore that the fifth ground fails.

[77]Overall, in my judgment none of the grounds of challenge raised by either Claimant can be sustained and these applications must fail.

[78]I wish to add that I am very grateful to all four counsel for their helpful and clear submissions. Thank you.

[79]MR FORSDICK: My Lord I have an application for costs against both claimants. Now, first of all, of course, the court needs to deal with the question of costs in principle and then secondly the question of costs, the quantum. It is not a summary assessment case but I would be inviting my Lord to summarily assess, because we are in a position to put in front of my Lord schedules that are in the run of what one would expect on these sort of Secretary of State cases anyway and to consider whether or not my Lord could make a summary assessment now that will save everyone a lot of effort and expense.

[80]THE DEPUTY: Well, I will certainly do so, if the claimants -- if anybody who ends up being liable for costs- are happy. You are applying for costs against both claimants?

[81]MR FORSDICK: Yes. The way it has been worked, my Lord, is that the schedule of costs had been split down by the time spent by the Treasury Solicitors for each case and then my time has been split half-half, because I was not able to distinguish.

[82]THE DEPUTY: Has your side provided a schedule of the costs to the claimants?

[83]MR FORSDICK: Yes.

[84]THE DEPUTY: The claimants, Mr Green, Mr Colville, Mr Colville, Mr Green, it is unlikely that you can resist the Secretary of State's application in principle, I think, is it not?

[85]MR GREEN: I do not seek to resist the principle.

[86]THE DEPUTY: Mr Colville?

[87]MR COLVILLE: I do not resist the principle.

[88]THE DEPUTY: No. So far as the quantum is concerned, I have no idea because I have not seen the schedule. Is there any dispute?

[89]MR COLVILLE: Well, there is --

[90]THE DEPUTY: If there is not, I am happy -- sorry, go on.

[91]MR COLVILLE: There is an issue and that is clearly there is a -- where there is late service of skeleton arguments, there is a sanction in respect of costs and that is in part 52 of the practice direction and at 52 -- practice direction, part 52, 5.10, and in brackets (6). Sorry, the page number is 1448.

[92]THE DEPUTY: 1448 of the White Book:

"The cost of preparing a skeleton argument which – (a) does not comply with the requirements set out in this paragraph; or (b) was not filed within the time limits provided by this Practice Direction ... will not be allowed on assessment except to the extent that the court otherwise directs."

Right.

[93]MR COLVILLE: So in this case, and there is no dispute, the skeleton was not in line with -- and it clearly did cause significant difficulties for -- in respect of Mr Green, one of the Friends. It caused a considerable difficulty and I would submit that as a matter of principle we were able to address the matter and therefore I was able to not push and press for the adjournment but Mr Green was not given the full opportunity that he was entitled to consider his position in the light of skeleton argument and what I would submit is that clearly, if there is going to be summary assessment of the costs now, that that should be taken into account. If it is to be put off for detailed assessment, but I would contend the court should not direct that they be entitled to recover full costs by the Secretary of State because of the failure to abide by the directions. The explanation given was down to the ill health of the solicitor in charge holding the file, but that, in my submission, and with respect to the solicitor who had charge, that is not an explanation that justifies the delay and indeed the prejudice that I then was caused by the delay, giving effectively one working day to prepare in response to both the Secretary of State's argument and indeed the Jones family's argument.

[94]THE DEPUTY: Clearly I would have thought it is in everybody's interest that I summarily assess the costs today if I can, because we all know what the costs and delays of sending matters to detailed assessment are. So, unless anybody seriously objects, I think that is what I would wish to do. Mr Cottle?

[95]MR COTTLE: That is right. I hope that I have brought something to the table and I was going to take you through the judgments to point out certain areas in which I have bolstered or at least made the ground clearer as to the way my Lordship's conclusions are.

[96]The short point is that we are publicly funded and so therefore there will not be a summary assessment if you order any costs to be paid by the applicants in respect of the second defendants.

[97]THE DEPUTY: You are applying for costs?

[98]MR COTTLE: I do, and it is inevitable, if I could refer you to the Bromley case, the meat of which you do not have but it is --

[99]THE DEPUTY: Is this the Keston Showmen's one?

[100]MR COTTLE: That is right, yes.

[101]THE DEPUTY: Yes, I only have about half of it.

[102]MR COTTLE: Well, it is in the penultimate -- only to do with the costs and it is on the penultimate page and Sullivan J, as he then was, made two points:

"This was not simply an exercise, as so many planning appeals are, about the value of land where a developer, for example, wishes to defend a planning permission..."

[103]THE DEPUTY: Yes.

[104]MR COTTLE:

"The second defendants in the present case are at risk, or were at risk if the Council's application succeeded, of losing their homes..."

Then he goes on to say:

"It would seem to me to be fundamentally unjust if someone whose home was at risk was not able to attend court in order ..."

[105]THE DEPUTY: And you say the same applies here.

[106]MR FORSDICK: I do, but moreover, the first thought that struck my learned friend Mr Forsdick was what happened at the condition session and certainly it was of paramount importance and in those circumstances the matters which I brought to the hearing have been, with respect, I hope, of some assistance to the court.

[107]THE DEPUTY: Yes. Having said that, Mr Robin Green was at court -- Mr Roger Green was at court -- was at the inquiry, Mr Roger Green was at the inquiry, and I have no doubt that both of them would have given me a wholly accurate picture of what was going on. I have no reason to doubt anything that they might have said about what happened.

[108]MR COTTLE: There were three aspects. First of all I was saying that the accommodation needs of the family, it was in paragraph 2 of my skeleton argument, were there in evidence before the Inspector, I said that, and I was also making the point that at the condition session nobody was saying you cannot impose that if you are dismissing the enforcement notice appeal and you also had the second statement of Mrs Brown dealing with the origin of the handwritten conditions.

[109]So in those circumstances, my Lord, it is appropriate that when these applications were lodged it was foreseeable that we would be here to defend and, of course, the late service of the Secretary of State's skeleton argument --

[110]THE DEPUTY: I do not think anybody is holding late service of your skeleton against you.

[111]MR COTTLE: But we had to be poised, is what I am saying, we had to be involved at that stage. We had to be poised and ready --

[112]THE DEPUTY: Did you? What, for that reason?

[113]MR COTTLE: We did not know which side of the fence they were going to come down on, we did not have a response from them until fairly early on in March. But I would make the distinction, my Lord, between lateness of an applicant's skeleton argument and lateness of a defendant's skeleton argument, because my learned friend Mr Colville must have known that the battle ground was going to be in relation to whether the Wheatcroft line of cases applied, he must have known, and so there were no surprises in my learned friend's skeleton argument on behalf of the Secretary of State in responding.

[114]There is a distinction between the late service of a skeleton argument from a respondent where they are defending a first instance decision, because they are going to rely, in the absence of a respondent's notice, on what the Inspector had decided. The only new point really is the Inspector's statement and I make that as a distinction. It is not as if they were left guessing as to what the Secretary of State was going to do.

[115]THE DEPUTY: I am sorry. You have lost me on this point. It is my fault. It is not a criticism of you. I am trying to understand the points you are making here. You say you have helped with what happened at the inquiry-the point about the accommodation needs of the family, and the second statement from Mr Brown which dealt with the manuscript condition, et cetera. Then you say you did not know which side the Secretary of State were going to come down on, and then you lost me.

[116]MR COTTLE: OK. We needed to be ready to attend the hearing if the Secretary of State was not going to defend and in relation to the lateness, because he did not come off the fence until it was fairly late in the day, in relation to lateness --

[117]MR FORSDICK: My Lord, the Secretary of State was never sitting on the fence, the Secretary of State was always going to defend the action.

[118]THE DEPUTY: I was just going to say, Mr Forsdick, I have not based my judgment on any assumption as to what fence, if any, the Secretary of State might have been sitting on.

[119]MR COTTLE: Where I was going was I was conflating the submission for why we should have our costs with actually the different considerations that apply when you have a late respondent's skeleton argument that is seeking to support the decision of the decision-maker, because you know what the Secretary of State is going to be saying, they are going to be supporting the Inspector's decision. They have not put in a respondent's notice, it is not like the lateness of an applicant's skeleton argument, where you might not have some mystery as to how the case is going to be put.

[120]THE DEPUTY: Right.

[121]MR COTTLE: And, my Lord, in those circumstances it was quite right for me, as well, to wait to see what that skeleton argument said before I put in my skeleton argument and it is quite right that my clients should get their costs for this appeal.

[122]THE DEPUTY: Right. Now then, we have a number of issues here. To begin with -- can we deal, to begin with, with the issue as to whether -- the only issue that the claimants are raising in relation to you, Mr Forsdick, is whether I should either disallow in whole, or presumably I have the power to disallow in part, the costs of the skeleton.

[123]MR FORSDICK: That is the only point that the first claimant raises. I think Canterbury City Council have a couple of points on quantum.

[124]THE DEPUTY: I do not think -- well, we are not on quantum yet. That is a joy to come. Mr Green raises no point in principle. Mr Colville does, in that he says that your skeleton was late.

[125]MR FORSDICK: Part 52 does not apply. This is a part 8 claim. This is not an appeal under part 52, that is their first point: there is no equivalent cost sanction, as far as I am aware, in the rules for part 8 claims. I accept that in a particular case my Lord might say, well, the skeleton argument being late has caused expense and therefore there should be a sanction but, my Lord, I make a number of points on that. First of all, the skeleton raised unexceptional propositions of law that the court has accepted and, secondly, addressed the points raised directly by reference to matters within the decision letter. So it was not as if there was anything there to cause surprise.

[126]THE DEPUTY: I can see that 52 does not apply strictly in this case but I have a discretion.

[127]MR FORSDICK: I am not suggesting you do not have a discretion, my Lord, of course, but what I am saying is that 52 is not directly on point, part 8 does not have an equivalent practice direction.

[128]THE DEPUTY: I understand that.

[129]MR FORSDICK: My Lord has a discretion and if my Lord considers that the lateness of the skeleton has caused undue cost elsewhere then a costs sanction may be appropriate but in my respectful submission I am just seeking to point out to the court that just on an analysis of the skeleton argument there is nothing that should have caused additional cost and therefore I do not accept there should be a discount down for the lateness of the skeleton. But, even if such discount is appropriate, then that does not detract from the appropriateness of doing a summary assessment now. My Lord, can just --

[130]THE DEPUTY: No, it does not. I agree with that. Unless anybody persuades me, and I do not think anything is seeking to, I think I should do a summary assessment so that you can all go away with the case finished.

[131]MR FORSDICK: Can I just hand up two schedules, just -- so, there is one for each of the parties.

[132]THE DEPUTY: I mean, there must be no doubt -- I shall not forget your application.

[133]MR COTTLE: If there is going to be a summary, it is just if there is going to be an assessment, maybe that is the whole time to look at the whole bill of costs in the round.

[134]THE DEPUTY: Good point. Yes.

[135]MR FORSDICK: I do not accept that, my Lord. The Secretary of State comes first.

[136]THE DEPUTY: Right. There must be no doubt, Mr Forsdick -- I quite understand, and nobody has disputed, that the solicitor, the case holder, was ill and obviously that is unfortunate, nobody can help that, but the Secretary of State has many solicitors available to her, and it is obviously not a criticism of you or indeed the particular solicitor who has been assisting you with the case recently, but it would have been possible, would it not, for the Secretary of State to instruct counsel well before it was in fact done.

[137]MR FORSDICK: I am sure that is right, my Lord, yes.

[138]THE DEPUTY: Yes.

[139]MR FORSDICK: My Lord, there was a week's delay in the skeleton after I got instructed because I immediately raised an issue as to what had happened with the conditions and I did --

[140]THE DEPUTY: I do not think anybody is criticising you.

[141]MR FORSDICK: No, but in the adjournment debate yesterday, my Lord, I did raise the point that it is highly surprising that the evolution of the conditions was not mentioned in any of the paperwork before the court until I got involved and so my skeleton raised an issue that really should have been raised very significantly in advance. So I ask my Lord to take that into account as well.

[142]THE DEPUTY: What is being claimed for the preparation of the skeleton?

[143]MR FORSDICK: Well, it will be within the costs -- it was a substantial exercise. It will be within the £1,020 for advice, conference and documents, I assume. I cannot segregate it. My Lord will just have to take, I think, a broadbrush view, I am afraid, but we are happy for my Lord to do that.

[144]MR COLVILLE: My Lord, just on the point in terms of the effect, my Lord, not only was there costs in terms of chasing the Secretary of State but also the fact is that it has been said -- I am not sure whether there is any evidence to support that -- that there was no surprise. Well, there was a surprise when my learned friend's skeleton was provided and the surprise was the witness statement from the Inspector setting out what was in effect said to be an agreed conditions following a round the table discussion and the whip was put on that evidence. Now, that led to and resulted in Mr Roger Green dealing with the question, having addressed the question in a witness statement, very quickly and it informed the basis of the application for the adjournment because quite clearly there was work in response to having received the skeleton, which was time taken up dealing with matters that frankly should have been dealt long before the time to prepare for the actual hearing itself.

[145]THE DEPUTY: That is the witness statement, not the skeleton.

[146]MR COLVILLE: I appreciate it is the witness statement, but in terms of -- it is being said, well, all Mr Green would have known or Friends of Fordwich would have known what was coming and therefore there was no harm or prejudice because they know what was coming. That is clearly not the case. There was a surprise in that the witness statement from the Inspector was provided and relied upon in argument. Clearly my Lord has a discretion when it comes to costs and, given that Mr Green for the Friends of Fordwich was put to the expense of having to deal with and respond to -- those are his cost, extra costs, which he has had to pay for and --

[147]THE DEPUTY: Because he would have to -- I am sorry to interrupt but just try to cut the Gordian knot, he would have had to do that even if the statement had been received six months ago.

[148]MR COLVILLE: Well, indeed, he would have, but there would have been one time to deal with it and it would not have impinged on the preparation for the appeal. At the end of the day, there are directions for disclosure -- for service of the skeletons and the directions are there for a reason, to ensure that the parties are able to prepare for the appeal. The Secretary of State failed to abide by those directions and it did cause prejudice to Mr Green and that should be borne out in the costs, otherwise there is no point having directions.

[149]THE DEPUTY: I am bound to say, looking at the amount and the matter of principle, I perfectly understand that the Secretary of State operates, and those advising her operate, under pressure but there are rules for the production of skeleton arguments and this was produced very late. I am entirely sympathetic to the fact that the case holder was sadly taken ill, and I am told for an extended period, but it is quite clear that the Secretary of State could have through other of her solicitors and legal advisers, instructed counsel much earlier and in time to produce a skeleton which was in time.

[150]It is difficult to quantify any loss that was caused by the late receipt of the skeleton but I am conscious that it did occasion, through no fault of Mr Colville's, an application for an adjournment, that related partly to the skeleton itself, and also the need for the court to adjourn for a short period while Mr Colville took instructions. I see that the fee that is charged for advice, conference and documents, which includes the preparation of a skeleton, is £1,020 and I am going to allow that fee but with a deduction of £200 to mark the fact. I think that there was prejudice to Mr Colville and it is impossible, I think, in this context to separate that from prejudice to Mr Green. However, Mr Green does not complain of any prejudice and does not oppose the Secretary of State’s cost claim, and so I think there should be £200 off whatever fee is charged to Mr Colville’s sid in relation to the counsel's fees for advice, conference or documents, to take account of the late receipt of the skeleton. So Mr Robin Green from his side will not benefit from this but Mr Colville will. I think that is the fair way of dealing with it.

[151]MR FORSDICK: My Lord, that would make the assessment of costs against Mr Roger Green in the sum of £4,912. There has been some dispute as to the quantum in the Canterbury City Council case. I understand that it has been agreed that £216 can be knocked off the total. I am not sure whether there is any further point.

[152]THE DEPUTY: Mr Green?

[153]MR GREEN: Yes, getting into the detail of it, yes, there is to be a deduction of £216. The only outstanding matter that leaves is the total time taken for work on documents. On the second page, work on documents A to E amount to nine hours and those behind me are concerned that that does appear to be larger perhaps than is justified, giving the modest size of the City Council's bundle. The vast bulk of the documents in the bundle before your Lordship come from the other claimant but -- it is a matter for your Lordship.

[154]THE DEPUTY: Mr Forsdick, do you want to say anything?

[155]MR FORSDICK: All I would say is that it is certified as being the time actually spent and, of course, that includes all the instruction of the counsel and prognosis letters and so on internally.

[156]THE DEPUTY: Mr Green, I am bound to say that nine hours does not seem to me to be excessive for a case that has after all occupied the time of the court for effectively two working days.

[157]MR GREEN: My Lord, that would then leave, I think, a total of 4,668, if my maths is correct.

[158]THE DEPUTY: And, Mr Colville, do you want to say anything else?

[159]MR COLVILLE: Well, in terms of quantum, as I understand the way it is structured, is that there has been effectively divided -- the amount of time spent is divided by two, so there is nine hours claimed in respect of the council and nine hours in respect of Mr Roger Green. Now, that is a total of 18 hours and that is excessive, in my submission, in terms of the amount. That is how I understand the way the cost schedule has been drawn up --

[160]THE DEPUTY: Well, it is two working days plus two hours.

[161]MR COLVILLE: Well, the appeal -- I accept that the appeal has run two days, that is because there is four parties involved, but the issues are -- in terms of preparation, the issues were heavily overlapping --

[162]THE DEPUTY: Of course.

[163]MR COLVILLE: -- and therefore one cannot say, well, this is two claims. It should be treated as if it were, for the purpose of preparation, one claim and 18 hours is, in my submission, an excessive amount of time if one was to proceed with it being one appeal.

[164]THE DEPUTY: I am afraid I do not accept that. It seems to me that this is time reasonably claimed for. It has clearly been spent and I think it is reasonable in a case of this magnitude. So therefore there will be an order that Mr Robin Green's side pays the sum that was mentioned a moment or two ago --

[165]MR FORSDICK: 4,668, my Lord.

[166]THE DEPUTY: And Mr Ian Colville pays -- I have not forgotten, Mr Cottle --

[167]MR FORSDICK: 4,912.

[168]THE DEPUTY: Yes. Now, we have --

[169]MR COTTLE: I just wanted to say one thing --

[170]THE DEPUTY: We have the issue of your costs, yes.

[171]MR COTTLE: -- which is that this case began in 2001. It is unthinkable, given that we have had a permission and it was subject to a judicial review and we have had a permission and there was another application, unthinkable that we would not want to be here on this.

[172]THE DEPUTY: Right. Well, let us -- you have made your case in principle and we need to hear the response.

[173]MR COLVILLE: Can I just deal -- I mean, your Honour mentioned the figures. Your Lordship has given the £200 reduction in terms of the summary assessment against Mr Roger Green but he ends up paying more than what the Canterbury City Council are paying. I cannot understand how that can be right.

[174]THE DEPUTY: Nor do I. You are right and I do not understand it.

[175]MR FORSDICK: It has taken more time. It was more pronounced and the Secretary of State has had to find more time spent on it.

[176]MR COLVILLE: Well, I cannot see how that can be justified --

[177]THE DEPUTY: Well, there are more grounds.

[178]MR COLVILLE: I accept there are more grounds but in real terms it is an appeal against one decision, there may be different angles that have been taken but that does not justify -- the issues are closely aligned to each other and there cannot, in my submission, justifiably be a greater award of costs because the number of grounds that have been taken. The question is one has to look in terms of costs at the issues that were -- the broad issues that are being raised. They are similar and one cannot, in my submission, justify greater costs just because there were more grounds being taken. They were different perspectives being taken in challenge of the same decision, covering similar issues.

[179]THE DEPUTY: Well, there were, but your claim raised, it seems to me, substantially more complex issues.

[180]MR COLVILLE: Well, I accept there were five issues that Mr Roger Green raised and there were two by the Council but that is in my submission a simplistic approach to say, well, therefore you have to pay more because you raised five grounds. Mr Roger Green raised the grounds that were available to him, and rightly so, but they in terms of costs, and assessment of costs, the issues are -- it is looking at the same decision letter through different perspectives, different challenges, but the amount of work that has to be done -- it is not my learned friend's -- there is no increase in costs by my learned friend for the Secretary of State, it is the work that was done by those who instruct him and in terms of that amount of work, well, the only extra -- I cannot in my submission see how it can be justified that there would be more time spent by the Treasury Solicitor dealing with instructing my learned friend on behalf of the -- in respect of Mr Roger Green's appeal, as opposed to the Canterbury City Council appeal.

[181]THE DEPUTY: Well, I think if we have to go into great detail on this I shall simply say that it needs to be dealt with by detailed assessment.

[182]MR COLVILLE: Just in terms of summary assessment, my Lord, I think the appropriate order would be that both claimants have to end up paying the same costs. I cannot, in my submission, see how it can be justified as part of summary assessment.

[183]THE DEPUTY: Mr Forsdick, do you want to say anything about this?

[184]MR FORSDICK: My Lord, the Treasury Solicitor has certified a very minimal set of costs for a challenge like this. She has certified that the hours spent on attendance on clients, for example, was more for Mr Green's case than it was for the City Council case, for example, and, my Lord, in my respectful submission there is no possible basis to go behind that in the light of the numbers of grounds that were pursued by Mr Green as compared to the number of grounds pursued by the City Council.

[185]MR COLVILLE: My Lord, if there is an issue here, I would ask for a detailed assessment, because I cannot see how that level of hours can be justified.

[186]THE DEPUTY: Well then, Mr Colville, if that is what you want. Mr Forsdick?

[187]MR FORSDICK: I most rigorously object, given that we have spent half an hour going through the costs schedule, my Lord. It is entirely inappropriate to allow it to have got this far and then to withdraw the agreement. My Lord has the power to summarily assess anyway.

[188]THE DEPUTY: Do you accept that, Mr Colville? It has gone two days but I have the power to decide to make a summary assessment.

[189]MR COLVILLE: I accept that the court has the power to decide to make a summary assessment. I just think that --

[190]MR COTTLE: Without wishing to cause any further problems, certainly from my side's point of view there was a lot more work in the Wheatcroft and Breckland line of cases which my learned friend Mr Green was not relying on. His was very simple: reasons challenge and static challenge. It is about 20/40.

[191]THE DEPUTY: I am afraid I am going to continue with a summary assessment and I hear all that Mr Colville has said but the differences between the costs claims are, in my view -- I was told that they arose because of the greater number of issues and the greater complexity of the case made by Mr Roger Green. I accept that and Mr Roger Green must pay the costs that are claimed, subject to the deduction which I have referred to. That is the assessment I make.

[192]MR COTTLE: So now I formally ask for my costs.

[193]THE DEPUTY: Yes. Now, gentlemen, which of you wants to go first?

[194]MR GREEN: My Lord, in the City Council claim, the clients for whom Mr Cottle acts were not joined initially because they were not any party to the section 78 appeal. So they sought to be joined a month or so ago. That was their choice. Without wishing any disrespect to my learned friend, they have added, I submit, nothing to the Secretary of State's case.

[195]THE DEPUTY: Is that the test? I mean, the governing authority is the Bolton case?

[196]MR GREEN: The Bolton case, my Lord, which says, I think, helpfully, the rule is there are no rules but nonetheless it is exceptional to award a second set of costs.

[197]MR COTTLE: If the interests are identical. It is not --

[198]THE DEPUTY: Just hang on, Mr Cottle. You have had your say for a bit. Let us just hear from the others. Sorry, but otherwise we are never going to finish. It is paragraph 15.52 of the White Book.

[199]MR GREEN: I am obliged.

[200]THE DEPUTY: The courts do not generally order an unsuccessful claimant to pay two sets of costs, Bolton. The courts may award two sets of cost where the interested party deals with a separate issue, not dealt with by the defendant or where the defendant and the interested party have separate and distinct interests which require separate representations. So there appear to be two separate grounds. I am minded to think at the moment that Mr Cottle's best point is that, if he is right-and I have not seen the decision he relies on- if it is your home you are entitled to defend it. What do you say to that?

[201]MR GREEN: Well, my Lord, that would then permit this sort of claim in every sort of gypsy challenge, frankly, because their homes are always at risk in these case. Your Lordship may recall that in the Dowling case there was also a request for a second set of costs.

[202]THE DEPUTY: I did not recall that.

[203]MR GREEN: There was, my Lord, and that was rejected.

[204]THE DEPUTY: Right. Can we just look at that?

[205]MR GREEN: My Lord, yes. Tab 16, my Lord.

[206]THE DEPUTY: Yes, I have it in front of me. Yes, in that case Mr Dowling, the claimant, had to the pay the Secretary of State £10,296.

[207]MR GREEN: My Lord, yes.

[208]THE DEPUTY: Do not worry, nobody is suggesting that either of you should.

[209]MR COLVILLE: Well, if you add the two together.

[210]THE DEPUTY: That is true. Yes, very well.

[211]MR GREEN: My Lord, it is significant in my submission that the Joneses for whom Mr Cottle acts were not the appellants in the section 78 appeal. Yes, they live on the site but if that itself is enough then we could have been faced with separate representations by any number of persons who happened to be occupiers of the site.

[212]THE DEPUTY: Who were the appellants?

[213]MR GREEN: The appellant was Mr Shane Jones, who was joined as an interested party, but has taken no part in these proceedings. If your Lordship looks at the decision letter, the appellant is identified, page 21, as Mr Shane Jones.

[214]THE DEPUTY: So he is not the Mr Jones who Mr Cottle represents, is he?

[215]MR GREEN: No, my learned friend acts for, as I understand it, for Bridget Jones and Angie Jones, who were not parties but sought to be joined a month or so ago.

[216]THE DEPUTY: Yes. Is there anything else you want to say?

[217]MR GREEN: Well, my Lord, the issues that my learned friend has dealt with are the same. He has added, with all due respect to him, nothing to the Secretary of State's case and the fact that the occupiers live on the land in my submission does not begin to justify an exceptional course of a second award of costs.

[218]THE DEPUTY: Yes. Alright. Thank you. Mr Colville?

[219]MR COLVILLE: My Lord, my learned friend has said it so I adopt what my learned friend says but, as far as the public funding certificate, under which my learned friend Mr Cottle appears, it is, I believe, limited to Bridget and Angie Jones. The other defendants are under a public funding certificate. Now, my Lord, when there are clearly costs against a unsuccessful claimant in relation to the second defendant, the court has a clear discretion. One has to start off by saying, well, what has been added, as my learned friend has stated, and, with great respect to my learned friend Mr Cottle, there is nothing more than has been added that has not be dealt with by the Secretary of State. One can see that from the skeleton argument prior to the hearing. There should be no costs order made and to purely award costs on the basis that, well, this is where they have reside, well, my Lord, that is not justification of sufficient grounds on which to award costs against the unsuccessful party in this case.

[220]THE DEPUTY: Thank you. Do you want me to look, Mr Cottle, at Sullivan J's decision? Would it help if I did. As I said, although I was in it, I have no memory of it.

[221]MR COTTLE: The penultimate page of tab 13, just before tab 14.

[222]THE DEPUTY: But, you see, I do not have that. I said to you the other day -- is that the Keston Showmen's?

[223]MR COTTLE: That is right.

[224]THE DEPUTY: No, I do not have it. I have checked. That is why he said I thought -- if you thought I was a little slow it was because I had only about half of the judgment. It is just one of those things. Let me have a look. (handed)

[225]Thank you very much. Right, now, yes, I have not seen these.

[226]MR COTTLE: As I say, the costs decision is actually in the penultimate page of the report.

[227]THE DEPUTY: Yes, yes. (pause)

[228]MR COTTLE: In that case there was also a very large witness statement.

[229]THE DEPUTY: And you are publicly funded?

[230]MR COTTLE: That is right. It is not right that we should be making a claim on the fund at this juncture, my Lord.

[231]THE DEPUTY: I see Sullivan J did not allow all of the costs -he ordered the claimant to pay the second defendant's costs and said at the end that there ought to be some reasonable proportion between the costs of the Secretary of State, who bears the main burden of the costs incurred by the second defendants. He considered the justice of the matter would be met by ordering the claimant to pay the second defendant's costs and summarily assessing those costs in the sum of £3,000. I have no idea what -- I have no idea what was being claimed. I do not suppose anybody else has.

[232]MR COTTLE: As I said, there are two important points. One you have described as the best point. The other one is the fact that is distinguished from the normal situation which just concerned the value of the land and the long history of this case.

[233]My Lord, I do, with respect to my learned friends' submissions, point out that I did underline the conflict with the development plan policies that the enforcement notice appeal development occasioned. It was not so clear from my learned friend for the Secretary of State's skeleton argument and I did bring something to the table as well in relation to the need point in relation to 38(6) and there was not any need for regard to material considerations. I do hope that my submissions assisted the court. But inevitably in this case, as my learned friend Mr Forsdick said, the first question is, well, what happened at the condition session and in those circumstances it was right that we were represented at the hearing where the court would be asking, well, what did go on there and I was able to make the submission, nobody complained when that condition was imposed. It is an important point to make and it is an extraordinary history, this case, having had permission granted by the local authority only for the resolution to be rescinded and for the planning permission to have to be obtained, and then to go up to the Court of Appeal and then for a third inquiry and for that to result in permission being obtained. It is unthinkable, given the amount of uncertainty, that we would not have wanted to be here.

[234]THE DEPUTY: Yes. It is entirely understandable that you should want to be here but the question really is whether --

[235]MR COTTLE: It goes with it, my Lord. We are one family. Again, my learned friend Mr Green makes the point, well, inevitably there is a distinction between the person applied. Well, the name on the application was Mr Shane Jones but you know who it was for, it was for the extended family. Shane is the son of Mr Jones in plot 3 and then daughter is in plot 2. It is the same extended family. Their interests are wide.

[236]THE DEPUTY: It would be open to me to make an award but to summarily assess it?

[237]MR COTTLE: As proportion though. It is not open to you to summarily assess the publicly funded costs.

[238]THE DEPUTY: Is it not?

[239]MR COTTLE: It is if agreed. You can say a proportion of those costs, if not agreed, to be subject to detailed assessment and I would say that the time spent on the Friends of Fordwich case was about 60 per cent and the time spent on the local planning authority's case was 40 per cent.

[240]THE DEPUTY: Yes, but it would be open to me -- you, as it were, have one set of costs that you have had to incur. It would be open to me, if I considered you should get any costs at all, to decide that you should get only a proportion of those costs and for that proportion to be shared between the two claimants, presumably.

[241]MR COTTLE: And there was a recent precedent in the last six weeks where there was a 75 per cent award made for people in my client's situation and it was right that we got in something as soon as we got the funding extended in March, from Mr Brown, but it was also right to wait for the Secretary of State's skeleton argument, because my learned friend Mr Colville and my learned friend Mr Green were told what we were saying and Mr Brown's statement made the point about conflict of policy.

[242]THE DEPUTY: Well, yes, I think that was largely a matter of submission.

[243]MR FORSDICK: I will leave it for my Lord.

[244]THE DEPUTY: Yes. Alright. Thank you.

[245]MR COLVILLE: My Lord, can I just --

[246]THE DEPUTY: I have not seen the case before, so if you do not mind -- of course I will give you last word, but if you do not mind I will just give Mr Colville and Mr Green the opportunity to say anything that they want to. You probably, realise, Mr Colville, I have not seen Sullivan J's costs judgment before, so in the light of that I do not know whether there is anything that you want to add.

[247]MR COLVILLE: Two things, my Lord. Firstly, the justification by my learned friend for the Jones family being here was because the risk -- the risk was that if the appeal was allowed the matter would have to go back to another inquiry. There was no risk -- it was not the end of the day and they would have to move off. It was not an injunction application.

[248]THE DEPUTY: Was Keston? Keston was a section 288 challenge as well. It is no different, as far as I can see. All that was happening on Keston, and I am not acting on memory, I am just --

[249]MR COLVILLE: It is a 288.

[250]THE DEPUTY: It is 288. So I do not think that is a distinction.

[251]MR COLVILLE: But in terms of the attending today and attending at the appeal, my Lord referred to the two prongs, adding a new point of having an interest. Clearly there is an interest because Mr Shane Jones, who is the applicant, he was the appellant -- not the whole family, but Mr Shane Jones was the appellant. If the appeal was successful, it would have been remitted back to the Secretary of State to make a fresh decision. As for whether they would lose their home --

[252]THE DEPUTY: Who knows, yes.

[253]MR COLVILLE: Who knows, but in terms of risk and the need to attend today, that risk of losing a home was not there, therefore one cannot, in my submission, distinguish between a developer who is seeking to protect his interests obtaining permission and not of securing it through resisting the appeal and --

[254]THE DEPUTY: That does not seem to me to be any different from Keston, I have to say.

[255]MR COLVILLE: Indeed. As in Keston, as I understand that penultimate page, Sullivan J was dealing there with two claims for costs and he awarded a proportion in respect of both. My Lord has made a full award in respect of the Secretary of State, and, as far Mr Green is concerned, minus £200 to reflect the lateness of the skeleton and that -- so there has been a full award rather than a proportion, to split the costs between that and the second --

[256]THE DEPUTY: As far as I can see, Sullivan J did not only award a proportion of the Secretary of State's cost in Keston. I am open to correction but he simply says at the beginning of the penultimate page:

"Dealing, firstly, with the Secretary of State's costs, to which there is no objection, the application is dismissed with an order that the claimant pay the Secretary of State's costs. I summarily assess those costs in the sum of £3,492.90."

There is no indication that that was only part of the Secretary of State's costs. He does not actually say that he is only awarding a proportion of the other parties costs. If you look at the bottom of the page, he just says there ought to be some reasonable proportion between the costs of the Secretary of State, who bears the main burden of the day, and costs incurred by the second defendants. So we do not know that that is only a proportion of those costs. It may or may not be. You see, he is just really comparing it with the amount that he has ordered to the Secretary of State.

[257]MR FORSDICK: My Lord, in the paragraph, so far as quantum is concerned, the overall total now claimed is 4,399.

[258]THE DEPUTY: Yes. You are right, yes.

[259]MR COLVILLE: So there was a reflection of --

[260]THE DEPUTY: Yes, you are right. All I am saying is that there is no indication that the Secretary of State costs were cut.

[261]MR COLVILLE: That appears to be right. But I do still maintain that Bolton is the approach that should be adopted. There should be no second award for costs. The reason that the Joneses today -- and with great respect to my learned friend, they have not added anything further to the mix of the argument. The Secretary of State have not dealt with -- so why should the claimant have to pick up two cost orders as opposed to one when the matters were one and the same in resisting the appeal that was being brought. There cannot, in my submission, be any justice in making two costs orders where both defendants are saying the same thing and the second defendants are not adding anything new to the argument. The fact that they are, that Mr Shane Jones, one of the appellants, was the applicant, that it is his home and therefore there was a risk, my Lord, there is no weight to be attached to that. That cannot be a justification for awarding costs against the claimant to pay the second defendant's costs, because the only risk would be -- there is no risk to his home and the risk would be of him having to resist -- attend a further appeal if a further inquiry is called.

[262]THE DEPUTY: Thank you. Mr Green?

[263]MR GREEN: Very shortly, my Lord, one can see from the judgment of Sullivan J that there were two factors that justified the award. The first was particular interests, the sufficiently clear and separate interest, as it were, the ownership of the home. The second matter was that in that case Sullivan J plainly felt that the second party claiming costs did bring something, so he goes on to say, it is his third paragraph from the end:

"So I am satisfied, therefore, that they do have a clear and distinct interest which warranted representation. That they did, if you like, give added value in the case of this particular reasons challenge, given the nature and the subject matter of the reasoning that was challenged. For those reasons, I am satisfied, in principle, that there should be a second award..."

So, my Lord, unless, in my submission, Mr Cottle can show two things, both an interest and that he has brought added value, he should not achieve a second award of costs.

[264]THE DEPUTY: Thank you. Now, you have the last word.

[265]MR COTTLE: Well, first of all, section 180, it says that if you have a planning permission --

[266]THE DEPUTY: Section 180 of what?

[267]MR COTTLE: Of the Town and Country Planning Act. If you have a planning permission, then a prior enforcement notice would not take effect insofar as it is inconsistent with the planning permission and if we get on, with planning permission knocked out, we are subject to an enforcement notice. So that deals with Mr Cottle's point about there being no adverse outcome to this. Secondly, I will not repeat the point, but it was absolutely axiomatic that the question was asked what happened at the conditions session. We have evidence from the person who drew up the conditions and the court has been assisted and safe in the knowledge that all parties are represented as to what happened in that permission decision. So we have brought something to the table.

[268]THE DEPUTY: Would it be open to me, Mr Cottle, to make an order, although I cannot do a summary assessment, that only a particular proportion of your costs is --

[269]MR COTTLE: Absolutely.

[270]THE DEPUTY: Yes, that, but also and in any event limited to a particular sum to take account of any proportion between the --

[271]MR COTTLE: Indeed it is. Up to a ceiling of a particular amount.

[272]THE DEPUTY: Yes. right. Thank you very much.

[273]I have already made an award of costs in favour of the Secretary of State. Mr Cottle, who appears for Mr and Mrs Jones, asks for his costs as well. He is publicly funded. He acts not for the appellant but for two members of the extended family, who tell me, and nobody disputed this, that they have their homes on the site.

[274]The principle for a second award of costs in these cases is set out in the Bolton case, Bolton Metropolitan District Council v the Secretary of State for the Environment

[1995] 1 WLR 1176

, and the principle is summarised in the White Book at CPR 54.16.7. It says the courts do not generally order an unsuccessful claimant to pay two sets of costs. The court may award two sets of costs where the interested party deals with a separate issue not dealt with by the defendant or where the defendant and the interested party have separate and distinct interests which require separate representation.

[275]It seems to me that, although Mr Cottle of course was helpful at the hearing before me and was able to assist in various ways, not only by making legal submissions but also by making clear from the point of view of his clients what happened at the inquiry, he was not dealing with a separate issue not dealt with by the Secretary of State.

[276]However, he says he had a separate and distinct interest which required separate representation and he referred me to the case of London Borough of Bromley v Secretary of State for the Environment, Transport and Regions and the Keston Showmen's Park Planning Fund

[2001] EWHC Admin 561

, a decision of Sullivan J, as he then was.

[277]In that case, Sullivan J awarded to the second defendant a proportion of their costs on the basis that they were at risk, if the application succeeded, of losing their homes; and Sullivan J said that in his judgment that gave them a particular and direct interest which made it right that they should be represented before him, in addition to the Secretary of State.

[278]Mr Robin Green, for the Council, said that there were, in that case, the two elements referred to in the White Book, namely not only a separate particular and direct interest but also a separate issue with which Sullivan J clearly considered the second defendants assisted.

[279]It seems to me I must pay substantial regard to Sullivan J's judgment. It does seem to me that the second defendants were at risk, if the application succeeded, of losing their homes and if I follow Sullivan J's approach that did give them a particular and direct interest which Sullivan J would say made it right that they should be represented here in addition to the Secretary of State.

[280]However, as I have said, it does not seem to me that they dealt with separate issues. The basic principle is the Secretary of State can be expected and must be expected to defend her own appeal decisions and it is in the interests of the proper working of the system as a whole that costs be kept to a reasonable level.

[281]Therefore I should and will in my discretion make some award of costs in relation to the second defendants, but it will be limited. The award that I make is that Mr Cottle's clients should recover no more than half their costs. As to the basis of responsibility for those costs between the Council and Mr Colville's side, I have no evidence that a greater time was spent by Mr Cottle's clients on dealing with Mr Colville's claim than on the Council's claim. It seems to me the fairest way of dealing with it is to say that they will be liable equally and that the sum that is assessed as being recoverable by Mr Cottle's client should be no more than £2,000. So that would mean that no more than a thousand pounds each for the Friends and for Mr Robin Green for the Council.

[282]MR COTTLE: Can I also ask in those circumstances, in any event, for an order for detailed assessment of our public funded costs?

[283]THE DEPUTY: Yes.

[284]MR COTTLE: I am obliged. Could it also be that the order payable by the applicants be assessed if not agreed?

[285]THE DEPUTY: Yes. I should have said that, assessed if not agreed.

[286]MR COTTLE: I am obliged.

[287]THE DEPUTY: It may be that, given the sums that I referred to, agreement would be reached. I do not know. Right.

[288]MR GREEN: My Lord, forgive me, I have an application to make. I should say at once that I am extremely grateful that your Lordship was able to put in writing the analysis of your Lordship's judgment, which makes the task of those behind me very much easier, and indeed my task, but I do seek permission to appeal, and I make it clear, to hold the position. Those instructing me will want to consider very carefully the extent to which it does remove entirely the concerns that they have about the enforceability of the condition. But I ask for permission to appeal on the basis that the Court of Appeal may come to view that, although static and touring caravans are terms in common currency, it is necessary, given that prosecution is a possibility, that they be more closely defined than they were.

[289]THE DEPUTY: Right. Thank you. I refuse leave to appeal. It seems to me that you have no reasonable prospect of success and there is no other reason why leave to appeal should be granted.

[290]MR COLVILLE: I also seek permission to appeal. Does your Lordship wish me --

[291]THE DEPUTY: If your grounds are any different, obviously then I will hear you, but if they are no different, if it is following the point --

[292]MR COLVILLE: Well, there was this static caravan point but also the Wheatcroft point, if I can put it that way, and the need for the inspector to deal with the question of intensification in his decision letter.

[293]THE DEPUTY: Yes. I am afraid I am going to refuse leave to appeal and say the same, no reasonable prospect of success and no other reason why permission to appeal should be granted.

[294]Is there anything else, gentlemen? Thank you all very much.