Tile Wise Ltd v South Somerset District Council [2010] EWHC 1618 (Admin)

Case No CO/5034/2010[2010] EWHC 1618 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 17 June 2010
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE MADDISON
Between
TILE WISE LIMITEDClaimantv
Between
SOUTH SOMERSET DISTRICT COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr P Towler (instructed by Clarke Willmott) appeared for ClaimantMr J Burns (instructed by South Somerset Council) appeared for Defendant
J U D G M E N T

LORD JUSTICE PITCHFORD:

This

[1]is an appeal by way of case stated against the decision of the Crown Court sitting at Taunton on 4 December 2009, dismissing the appellant's appeal from a conviction by the Magistrates sitting at Yeovil on 30 March 2009. The charge faced by the appellant was that:
"Between 3 September 2008 and 26 November 2008 the accused did display an advertisement at Garret Road, Lynx Trading Estate, Yeovil, in the County of Somerset without the consent of the South Somerset District Council or the Secretary of State, contrary to regulations 4 and 30 of the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 and section 224 of the Town and Country Planning Act 1990."
[2]The charge arose from the statutory planning control of advertisements placed usually in public places or at places to which the public has access. The scheme exists under sections 200 to 224 of the Town and Country Planning Act 1990, supported by regulations made under section 220 of the Act. They are the Town and Country Planning (Control of Advertisements)(England) Regulations 2007 (number 73).[3]The scheme for control is, in summary, by regulation 4, to give deemed permission for certain advertisements and to require planning consent for others. Those advertisements which have deemed consent are defined by regulation 6 and schedule 3 of the regulations. Those advertisements which are exempt from control are defined by regulation 1, paragraph 3, and schedule 1 of the regulations. Any advertisement which neither has deemed consent nor is exempt requires planning consent. The enforcement authority for these purposes is the Local Planning Authority who, in this case, was the South Somerset District Council. It is an offence triable summarily under section 224(3) of the Act to display an advertisement in contravention of the regulations. A person who is displaying an advertisement in contravention of the regulations is liable to a fine.[4]Regulation 1, paragraph 3, provides that paragraphs 2 and 3 of the regulations, which relate to actual and deemed consent, shall not apply:
"To the display of an advertisement of a description set out in column 1 of schedule 1 to these regulations so long as (a) the display complies with the conditions and limitations specified in column 2 of that schedule as applicable to advertisements of that description ..."
[5]The facts found by the Crown Court are set out in the case stated at paragraph 6: "(a) That, as was admitted, the appellant had displayed an advertisement on various vehicles on ten occasions between 3 September 2008 and 26 November 2008. Four different vehicles were used to display the advertisement: a Honda Acty (D368MFJ) on one occasion; a Mitsubishi Canter (WM03AYT) on one occasion; a Mazda pick-up (Y148HYD) on three occasions; and a Nissan Cabstar (WF06ZKR) on five occasions. (b) The appellant operated commercial vehicles in his normal course of business, for the regular transport of goods and personnel between its seven business locations in the west of England and for the delivery of goods to its customers. Each of the vehicles involved in this case was used most days as a delivery vehicle or for transporting personnel. The vehicles were of differing characteristics to suit day-to-day requirements, as to loads to be carried and as to the constraints of accessibility of delivery sites. Accordingly, there were times when a particular vehicle was not used for its main functions of transporting goods and personnel. On these occasions, the appellant sometimes placed an advertisement on the rear of the vehicle and parked it at Garret Road, Yeovil, at a location approximately 100 meters from its tile showroom in Sea King Road, where there were no parking restrictions and it was lawful to park any vehicle. (c) In particular, the appellant's officers gave evidence about the usage of each of the four vehicles during the period from 3 September 2008 to 26 November 2008, a period of 73 days, excluding Sundays, as follows: Honda - This vehicle was used only for very short journeys and there were no milage records. It was photographed on one occasion as the stand for an advertisement. Mitsubishi - Journeys totalling 8,282 miles were logged on 41 separate days during this period. It was photographed on one other day as the stand for an advertisement. Mazda - Journeys totalling 3,150 miles were logged on 40 separate days during the period. It was photographed on one of these days and on two other days as the stand for an advertisement. Nissan - Journeys totalling 2,617 miles were logged on 43 separate days during this period. It was photographed on five other days as the stand for an advertisement. (d) On each occasion that the advertisement was displayed it was standing on the back of the relevant vehicle. It was not permanently attached to any of the vehicles but its wooden stand was prevented from falling over by the use of several concrete slabs".[6]The appeal was heard in the Crown Court by HHJ O'Malley sitting with two Justices. At the conclusion of the hearing HHJ O'Malley gave a judgment explaining the court's decision. In it he described how the dispute between the appellant and the local authority had developed, as follows:
"We have heard from the owner of the company, Mr Pothecary, who is himself a property surveyor, although being involved in the sale of tiles at least for the last decade or so, that the defendants were led to seek to advertise their business in this way by the setting up nearby of strong competition from another tile business. Indeed, the dispute with South Somerset Council as to the lawfulness or otherwise of what Tile Wise were doing displaying an advertising notice on their vehicles goes back at least to 2006. Mr Pothecary frankly told us that they had been advertising in this way for 4 years before they came to the attention of the local authority."
[7]The issue before the Crown Court was whether the exemption from planning control made by regulation 1, paragraph 3, and schedule 1 of the regulations, applied to the advertisements the subject of the information. Schedule 1 identifies nine different classes of advertisement which, subject to the qualifying "conditions, limitations and interpretation" specified in column 2, exempt from planning control. I shall need to refer to some of the other classes later, but that specified as class B, column 1 is:
"An advertisement displayed on or in a vehicle normally employed as a moving vehicle"
. The qualification specified in column 2 was: "The vehicle is not used principally for the display of advertisements".[8]The argument which arose in the Crown Court and which has been ventilated before us is whether the class B exemption is granted in respect of a state of affairs in general or only in respect of a specific advertisement on any specific occasion. Concentrating for the moment on column 1, conventionally the words "normally employed" can bear the meaning "usually employed by the user" or alternatively "being employed according to the norm". There is a difference between the two usages of language which may have a critical effect upon the operation of the exemption. If the question to be answered is "how did the user normally employ the vehicle?" the attention of the tribunal is drawn to a general state of affairs existing at the time of the alleged breach of planning control. If, on the other hand, the question is "was the vehicle being used according to the norm?" the tribunal's attention is drawn to the specific state of affairs at the point in time when it is alleged that planning control was breached.[9]Turning to column 2, the words "used principally" may convey either general usage to which the vehicle was put or to the use specifically being made of the vehicle at the time of the alleged breach. The Crown Court favoured the first possible construction of column 1 and the second possible construction of column 2. Its findings are at paragraph 7 of the case stated, which read as follows: "(a) The advertisement displayed on each occasion was an advertisement as defined for the purposes of the 2007 regulations; (b) The advertisement was, on each occasion, displayed on or in a vehicle that was normally (in the sense of usually) employed as a moving vehicle. It therefore fell within the description of an advertisement exempt from control under schedule 1 class B of the 2007 regulations; (c) In relation to the "conditions, limitations and interpretation" of the class B exemption, in order to be lawful the condition that "the vehicle is not used principally for the display of advertisements" needed to be satisfied; (d) The conditions, limitations and interpretation were to be interpreted strictly; (e) The appellant contended that the principal use of the vehicle should be determined in relation to the overall use of the vehicle and that, because each of the vehicles in question was principally used for the movement of goods and personnel, its vehicle advertising was exempt under schedule 1 class B of the regulations; (f) The respondents contended that the principal use of the vehicle had to be determined at the time of the display, so that if a vehicle was ever, at any moment, used principally for the display of advertisements, it did not comply with the conditions of schedule 1 class B and the display was unlawful. They submitted that when any of the appellant's vehicles was parked with an advertisement upon it, it was being used principally for the display of the advertisement and the display was outside the exemption; (g) The court accepted the respondent's contention and, accordingly, dismissed the appeal. The court observed that the construction contended for by the prosecution in the present case became more apparent if the word "being" was inserted between the words "not" and "used" so that the condition read "the vehicle was not being used principally for the display of advertisements" and that this construction was correct. The court considered that construing the conditions, limitations and interpretation in this way did not offend the principle that they must be construed strictly".[10]I note that, in his judgment at pages 3G to 4A of the transcript, HHJ O'Malley recorded the agreement of the prosecutor that the four vehicles were indeed normally (in the sense of usually) employed by the appellant in the collection and delivery of goods. Thus, the court had no difficulty in deciding that the appellant brought itself within column 1 of the exemption. It is confirmed to us by Mr Burns today that, indeed, the prosecutor in the court below, not Mr Burns but Mr Holder, did not resist the Crown Court's construction of column 1. Mr Burns set out, first, to support the conclusion of the Crown Court but, for the reasons which will become apparent, conceded the difficulty which he faced. He acknowledged of the two columns it was column 2 which appeared to be aimed at general use rather than use on a specific occassion. He submitted that the time at which the qualification of the advertisement for exemption should be judged is the time when the vehicle had the advertising hoarding mounted on its flatbed. In the alternative, Mr Burns submits that at least one of the columns must be directed towards the moment of alleged commission of the offence. If this were not so, columns 1 and 2 would amount only to two different ways of saying the same thing, which cannot have been the draftsman's intention.[11]Mr Towler, who appears before us on behalf of the appellant, was also not counsel in the court below, who was Mr Mason. Mr Towler submits, first, that the Crown Court was right to apply a generalised construction to column 1. The natural meaning of the words "normally employed" is that the vehicle was usually employed as a moving vehicle. As to column 2, Mr Towler at first embarked on a submission that its application was probably intended to depend upon the way in which the charge was framed; that the words "principally used" would depend on the period over which it was alleged the advertisement was in place. If so, the result may be different, depending upon whether the charge was framed over a period of days, or indeed weeks, or just one day.[12]It seemed to me that this submission, as it was being developed, undermined Mr Towler's attempt to overturn the Crown Court's construction, since it implied that the period to be examined for the purpose of deciding whether the vehicle was used principally for the display of advertisements could be narrowed at the election of the prosecutor. Mr Towler saw where this was leading and resiled from an argument that the terms of the charge were, or could be, determinative of the meaning of column 2 of class B schedule 1. Furthermore, it seems to me that, had the appellant any objection to make about the terms of the charge in this particular case, the time to make it was at the Magistrates' Court. The Magistrates, and therefore the Crown Court, were entitled to convict if, on any day between the dates, the prosecutor proved that at least one vehicle displayed an advertisement in breach of planning control.[13]As to the question of construction, Mr Towler settled on two submissions. First, that it would be inconsistent if columns 1 and 2 were looking at different states of affairs; column 1 at the general and column 2 at the specific. Secondly, that column 2 referred to advertisements in the plural, which suggested a general use rather than use on a specific occasion referable to a single advertisement. Both counsel submitted to us that, if possible, in reaching the appropriate construction of class B schedule 1, the meaning attributed to the class B exemption should be workable, aimed at the mischief at which the draftsman was targeting the offence.[14]I therefore turn to the terms of class B in an attempt to examine the intention behind the provision. First, it is noticeable that the singular "advertisement" is used in column 1 but the plural "advertisements" in column 2. It can be safely assumed, in my view, since these two words are so closely juxtaposed, that the draftsman meant what he wrote. For reasons to which I shall come, it is clear that each class of exemption, by description in column 1, is aimed towards a specific advertisement which must, it seems to me, refer to the advertisement alleged by the enforcement authority to constitute the breach. On the contrary, the use of the plural in class B column 2 opens up column 2 from a consideration of the single advertisement under consideration to advertisements in general displayed on the vehicle. If this was not intentional, it is my view that the condition would read "the vehicle was not being principally used for the advertisement" or similar. In my view, it is tolerably clear that the mischief the draftsman had in mind was a vehicle whose principal purpose was advertising, such as a vehicle employed for the purpose of being a moving advertising hoarding, rather than a vehicle employed principally as a commercial vehicle conveying passengers or making deliveries and such like.[15]I conclude that, as a matter of construction, Mr Towler is right. Column 2 does concern the use to which the vehicle is, as a moving vehicle, principally put. While it is possible to envisage an alternative construction, namely that the words "used principally for the display of advertisements" mean only "used principally for advertising", such a construction requires the insertion of words which, in my view, strains the meaning of column 2 unnecessarily.[16]This is a feature of column 2 which HHJ O'Malley recognised. At page 5B of the transcript of his judgment, he said:
"The point that I raised in discussion with Mr Mason [then counsel for the appellant] was that the argument that the use of the plural there [in column 2] tended to help his contention about the meaning of the phrase, but notwithstanding that, we are nonetheless of the view that the prosecution construction of this provision is the correct one"
. It is noticeable that, neither in his judgment nor in the case stated, does HHJ O'Malley attempt to explain the reasons for the court's conclusion.[17]That, however, does not dispose of this appeal. As I have said, the draftsman's use of the singular in column 1 seems to me to point to a different possible interpretation of column 1. If the appellant could not bring himself within the column 1 exemption, the conviction must stand. The construction of the word "normally" in column 1 which was adopted by the Crown Court is on all fours with that accepted by this court in a different context in Peak Trailer and Chassis Ltd v Jackson [1967] 1 WLR 155.[18]In Peak Trailer v Chassis Ltd the defendant faced an information laid under regulation 7 of the Motor Vehicles (Construction and Use) Regulations 1963 that it used an articulated lorry exceeding 13 meters in length on a road. The defendant claimed an exemption under proviso (b) to regulation 7, to the effect that the articulated lorry was "constructed and normally used for the conveyance of indivisible loads of exceptional length". The Justices found that it was unnecessary to examine the history of use to which the vehicle was put, because on the day of the alleged offence, 11 March 1965, the articulated lorry was carrying a divisible load. The proviso was apt to exempt only a vehicle which was either carrying an indivisible load of exceptional length or was being used in a manner incidental to that use, such as by making a return journey.[19]Widgery J, as he then was, giving the judgment of the court, which also comprised Lord Parker CJ and Glyn-Jones J, said at page 161:
"The Justices, maybe, have applied a somewhat too narrow test. As I understand it they are saying, in effect, that a vehicle cannot be normally used for the carriage of indivisible loads of exceptional length unless it is always used, either on its outward or homeward journey, for such a load. I think they imply that normality in this sense means that on every return journey, one leg of the journey, as it were, should be involved with a load of exceptional length, and they considered that other loads can be carried only when the vehicle would otherwise be coming home light. If that is what they say, for my part I think it may be unduly strict but I do not propose to offer any further opinion in regard to it, except that I would not recommend it for use hereafter when similar problems arise. It seems to me what one really has to ask one self here is whether the figures do disclose clearly one way or the other the answer to the question, "was this vehicle normally used for loads of exceptional length?"
In my view, the word "normally" has a perfectly ordinary meaning which would be given to it by ordinarily people in everyday use. As a man might say "I normally get to the office every morning at 9.30 but this morning I was delayed by fog and only arrived at 10 o clock". In using the word "normally" one is referring to something which is in contra-distinction to abnormal or exceptional".[20]The court went on to hold that, on the facts, the use actually made of the vehicle on 11 March 1965 could not be described as abnormal or exceptional because, out of 177 journeys in a 12 month period, 46 of them did not involve indivisible loads of exceptional length. Accordingly, the appeal was dismissed.[21]It seems to me that the context in which the words "normally used" were to be found in regulation 7, that is to say in the phrase "constructed and normally used for", undoubtedly caused the divisional court to adopt the construction of the proviso which it did. That construction required an examination of the use to which the lorry was usually put by its operator.[22]I turn then to the question whether the context in which the words "normally employed as a moving vehicle" appear in schedule 1 class B, column 1, requires a similar construction. The offence is committed by "a person displaying an advertisement". It follows that the moment for analysis whether an offence was committed is the moment of displaying alleged by the prosecutor to constitute the offence. Schedule 1 provides exemption by description in the following classes: Class A applies to "an advertisement displayed on enclosed land". I note, as Mr Towler pointed out in the course of argument, that this exemption did not apply to the appellant's vehicles because they were parked on the highway in an unrestricted area; Class C applies to "an advertisement incorporated in the fabric of a building"; Class D applies to "an advertisement displayed on a article for sale, or on the container in or from which an article is sold"; Class E and class F apply in different ways to "an advertisement" relating to political purposes, such as elections; Class G applies to a traffic sign; Class H applies to the national flag of any country, the Commonwealth, the European Union or the United Nations, any English county, or the flag of any Saint; Class I applies to "an advertisement inside a building". The concentration of the description is, in each case, upon the advertisement itself or upon the object on which the advertisement appears. The natural interpretation of these descriptions is, it seems to me, that they should be judged against the facts as they are found to be at the moment of the alleged breach of planning control. There is no context which naturally requires the tribunal to look at a "usual" situation.[23]The exemption must, it seems to me, have been intended to apply or not to apply as at the moment claimed by the prosecutor to constitute the offence. This observation would have applied equally to the articulated lorry in Peak Trailer and Chassis Ltd, but there the exemption intended was of the vehicle itself and not the use to which it was being put on 11 March 1965. In my view, the material distinction between Peak Trailer and Chassis Ltd and the present case is that, in the present case, the focus of attention is upon the use to which the vehicle was being put at the moment the offence was allegedly committed.[24]Counsel have drawn our attention to the contents of circular 3 (2007) issued by the Department for Communities and Local Government. In its annex to part 2, headed "The Scope of the Control", guidance to enforcement authorities upon the exempt classes includes the following: "class B - An advertisement displayed on or in any vehicle normally employed as a moving vehicle. This includes boats (any vessel on any inland waterway or in coastal waters), trains or aeroplanes. This does not include any vehicles used principally for the display of advertisements, eg stationary vehicles or trailers in fields or lay-bys for advertising purposes".[25]I must be wary about deriving from departmental advice concerning the application of planning policy any assistance to statutory interpretation. However, I agree that the guidance identifies the mischief which the words of the legislation themselves reveal. Every day we see commercial vehicles advertising their owner's goods and services. In London we see buses and taxis advertising goods, services and events. All these advertisements are exempt if the vehicles on which they are displayed are being normally employed as moving vehicles. Vehicles are not, however, exempt if they are used principally to display advertising.[26]The conclusion to which I have come is that class B column 1 of schedule 1 relates to the moment that the advertisement is being displayed by the vehicle and to the use to which the vehicle is then being put. I have already referred to the draftsman's apparent intention to make a distinction by using the singular in column 1 and the plural in column 2. When considering what was his reason for so doing, I ask what purpose columns 1 and 2 would achieve if they were both intended to refer to a generalised state of affairs. If that is the correct construction, it is striking that column 2 would be simply a mirror, in different words, of the exemption in column 1. In this respect, I accept the submission of Mr Burns.[27]In that event, I cannot see the purpose of class B column 2. In my judgment, column 1 is concerned with the specific occasion on which the advertisement is being displayed and the use to which the vehicle is being put on that occasion. In the case, for example, of a commercial vehicle, if at any time it is not being normally employed as a moving vehicle it will not be exempt. Even if it is being normally employed as a moving vehicle, its advertisement will not be exempt if the vehicle is principally used for the display of advertisements. I do not accept the argument that this construction of column 1 will render liable advertisements on commercial vehicles ordinarily parked up. Parking of a vehicle is an ordinary incidence of the normal employment of a moving vehicle. It will be exempt unless it is established it is principally used as a display of advertisements, in which case, the column 1 exemption will be dis-applied by the column 2 qualification.[28]In the present case, the appellant usually employed its vehicles on the road. When they were not so employed, the vehicles were used as stands on which to display advertisements. If the appellant's construction of column 1 and column 2 is correct, it can avoid the objective of planning control by swapping vehicles. The logical consequence of the appellant's submissions would be that, as long as in practice, the appellant kept, in respect of each such vehicle, on the right side of "usual" employment, the advertisement could be kept permanently in place. That, indeed, appears to have been the objective of the appellant. Such a result, I suggest, would render the planning control useless and cannot have been the intention of parliament. I accept the respondent's argument that the class B column 1 exemption must be read so as to apply to the use being made of the vehicle at the time of the alleged breach.[29]While I disagree with the constructions applied by the Crown Court to columns 1 and 2 respectively, for reasons partly acknowledged by the Crown Court itself, I am satisfied that, on the occasions these vehicles were used as advertising hoardings, they did not come within the exemption. For those reasons, I would dismiss the appeal.[30]MR JUSTICE MADDISON: I agree with my Lord, Pitchford LJ, that this appeal should be dismissed, and with the interpretations to which he has referred, the words "normally employed" and "used principally" as they appear under the heading "class B" in schedule 1 to the 2007 regulations.[31]MR BURNS: Your Lordships, thank you very much. May I -- as I anticipate this judgment may well be reported, may I respectfully request that, before the official version of the judgment is issued, your Lordship could consider what your Lordship said about my principal argument.

LORD JUSTICE PITCHFORD: Your what argument?

[33]MR BURNS: My principal argument. I of course defer to your Lordships and rely upon my skeleton argument but, in my submission, I have never contended that both columns should mean the same thing, nor indeed that column 1 should be restricted to -- that both columns should be restricted to the specific instance.

LORD JUSTICE PITCHFORD: Only that one of them should be?

[35]MR BURNS: Quite so, your Lordship, and in fact your Lordship's judgment coincides with my implicit suggestion in my skeleton argument that the correct combination is D2 and C2, that is what I have suggested in my --

LORD JUSTICE PITCHFORD: When you opened, Mr Burns, your argument, I thought you said to us that your first object was to uphold the reasoning of the Crown Court but that if you failed in that respect, you would submit that at least one of the columns must be narrowly construed, in which case it would be column 2 rather than column 1, contrary to the concession made by the prosecutor in the court below. Is that right?

[37]MR BURNS: Your Lordship, yes, that is a fair summary. What --

LORD JUSTICE PITCHFORD: What you did not go on to submit, you say, is that a possible interpretation was that both of them were subject to the narrow construction?

[39]MR BURNS: That is correct, your Lordship.

LORD JUSTICE PITCHFORD: All right, I will make a note of that.

[41]MR BURNS: Thank you very much. I am not sure it makes any difference.[42]Secondly, I respectfully request an order for costs against the appellant in favour of the Council. A schedule was served a few days ago and if it will assist I can hand a schedule to your Lordship.

LORD JUSTICE PITCHFORD: £7,000?

[44]MR BURNS: Yes, please. If the application is resisted I would like to say more about it, but I will not at this stage.[45]MR TOWLER: My Lord, I would deal with the quantum first if I may. I do not suggest that in anyway the figures are excessive but I invite the court to bear in mind that, throughout, the solicitors dealing with this matter have been the in-house counsel who would be employed in any event, and to bear that in mind in relation to that part of the claim, which is just over £2,000. In fact the solicitors fees are £2,874.60.

LORD JUSTICE PITCHFORD: That does not necessarily mean that that is not what it cost the rate payers of South Somerset District Council.

[47]MR TOWLER: Well, looked at in theory, your Lordship is entirely right, but in practice, if the solicitors are going to be sitting in their office dealing with correspondence and paper in any event, there is not in fact that additional all cost to the rate payers. I ask the court to bear that in mind firstly. Secondly, it is clear from your Lordship's judgment that the Council succeeded on a basis that was not argued either below or entirely before this court either. On the earlier occasions the court perhaps took an element of sympathy on behalf of my client and ordered that it pay a contribution towards costs rather than full costs, and I invite your Lordships to consider going down that particular course today.

LORD JUSTICE PITCHFORD: Thank you very much.

[49]MR BURNS: Your Lordship, briefly, had the appeal succeeded the costs sought would have been, by my learned friend, would have been £9,367, albeit that his solicitors only started acting in the matter on 22 April and are not here today. My solicitors have been acting in this matter from the outset and I am represented today by a solicitor who has travelled from Yeovil and is not sitting there doing her normal paperwork, so I do not think --

LORD JUSTICE PITCHFORD: Hooray, she is thinking.

[51]MR BURNS: Of course, and it has been very nice having her here too. The fact that she works at the Council is neither here nor there, and the amount is extremely reasonable when compared with the appellant's schedule which claims solicitors' time as a vastly higher rate than that claimed by mine.[52]As for the outcome, before the case stated was even settled, when we were still arguing about exactly how the case stated should be drafted by HHJ O'Malley, we sent a letter, or my solicitor did, to Tile Wise flagging up and anticipating the very outcome which your Lordship has just enunciated in his judgment. We made it perfectly clear that if, as a result of the acknowledged difficulties in HHJ O'Malley's approach, it was found that HHJ O'Malley's interpretation of the condition was in error, we would then make the obvious argument that his preliminary finding about the description was also in error and the outcome would be the same. At that point, Tile Wise was quite capable of withdrawing from this appeal, which is quite clearly, in my submission, logical. At the end of the day, this appeal was dependant on the highly implausible suggestion that the condition on the one hand and the description on the other mean the same thing. With the greatest respect, that is a very difficult argument to think would ever have succeeded.[53]It is really -- perhaps this is putting it a bit highly -- Mr Pothecary wanting to have his day in court and give the Council the run around. He has got a conditional discharge and most sensible business men would have left it there rather than running this highly implausible and speculative appeal, and we have had to come here and incur costs. I request that the costs should follow the event, and please could you make a costs order.

LORD JUSTICE PITCHFORD: We will retire, I think, Mr Burns, and consider that. (Court rises at 2.52 and sits again at 2.57)

LORD JUSTICE PITCHFORD: We have taken principally into account three considerations. The first is the fact that the work done by the legally qualified member of the Council was done as an employee in-house, although we are bound to say that that is the lesser of the principal considerations. The second is that, as we are informed by Mr Burns, this outcome, for the reasons this court has given, was anticipated by the respondent and specifically drawn to the attention of the appellant before the appellant made a decision to embark on this appeal. The third consideration, however, is that the respondent itself got off on the wrong foot in the Magistrates' Court, made specific submissions to HHJ O'Malley which it is now in the embarrassing position of having to doubt, and which this court has found were wrong in law. Furthermore, making a concession before HHJ O'Malley which meant that there was no legal issue before him upon column 1 of the class B exemption.

[56]All in all, we take the view that, since the District Council is the successful party, it should have a proportion of its costs. The proportion which we judge should be paid is the sum of £4,000, which we accordingly assess summarily.[57]MR BURNS: Thank you very much.

LORD JUSTICE PITCHFORD: Thank you both very much.

Cited in 1 later judgment