Pelling, R (on the application of) v Newham London Borough Council & Anor [2011] EWHC 3265 (Admin)

Case No CO/6677/2009[2011] EWHC 3265 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 28 October 2011
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF PELLINGClaimantv
Between
NEWHAM LONDON BOROUGH COUNCILDefendantCHRISTINE MARGARET HODGSONInterested Party
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)
The Claimant appeared in person for in personMr A Goudie (Instructed by Newham London Borough Council) appeared for Defendant for The Interested Party did not appear and was not represented
J U D G M E N T

Introduction

[1]The claimant, Dr Pelling, brings this judicial review claim against the defendant, Newham London Borough Council. The subject matter is a high hedge in the front of Dr Pelling's garden bordering onto the street. In 2008 the interested party, his next door neighbour, complained to the council about this hedge. On receipt of that complaint, an exchange of correspondence began between claimant and defendant that was to lead to this claim being issued.[2]The same neighbour approached the council about the hedge in 2006. That led to a decision in 2007 that the claimant should reduce the height of his hedge in some way. He objected to that decision, but it appears that no enforcement action was taken despite the terms of that letter of 20 February 2007. One of the points that Dr Pelling has raised in the subsequent correspondence is that it is an abuse, or may be an abuse, for the council to proceed with enforcement on this occasion when it did not proceed with enforcement on the previous occasion.[3]The Anti-social Behaviour Act 2003 contains part 8, "High Hedges". Section 65(1) says:
"(1) This Part applies to a complaint which — (a) is made for the purposes of this Part by an owner or occupier of a domestic property; and (b) alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person."
[4]Section 68 of the same Act is headed "Procedure for dealing with complaints". Section 68(1) says:
"(1) This section has effect where a complaint to which this Part applies — (a) is made to the relevant authority; and (b) is accompanied by such fee (if any) as the authority may determine. (2) If the authority consider - (a) that the complainant has not taken all reasonable steps to resolve the matters complained of without proceeding by way of such a complaint to the authority, or (b) that the complaint is frivolous or vexatious, the authority may decide that the complaint should not be proceeded with. (3) If the authority do not so decide, they must decide — (a) whether the height of the high hedge specified in the complaint is adversely affecting the complainant's reasonable enjoyment of the domestic property so specified; and (b) if so, what action (if any) should be taken in relation to that hedge, in pursuance of a remedial notice under section 69, with a view to remedying the adverse effect or preventing its recurrence."
[5]Section 69 provides for remedial notices, the operative date of such notices and the consequences of them. Section 71 provides for an appeal against remedial notices and other decisions of relevant authorities. Section 72 applies to rules regulating the right of appeal. Section 75 provides for enforcement powers and offences: if a person who is the owner of a property on neighbouring land does not do what the remedial notice requires him to do within the set time by that notice, he shall be guilty of an offence with a fine not exceeding level 3 on the standard scale.[6]For good measure, the High Hedges (Appeals) (England) Regulations 2005 [SI 2005/711], which came into force on 1 June 2005, regulate the right of appeal provided under section 71 of the Act. In the case of a remedial notice it is regulation 3 of those regulations that deals with grounds of appeal:
"An appeal under section 71(1) of the Act against the issue of a remedial notice may be made on any of the following grounds — (a) that the height of the high hedge specified in the remedial notice is not adversely affecting the complainant's reasonable enjoyment of the domestic property so specified; (b)that the remedial action or preventative action, or both (as the case may be) specified in the remedial notice is insufficient to remedy the adverse effect of the high hedge on the complainant's reasonable enjoyment of the domestic property so specified or to prevent its recurrence; (c)that the remedial action or preventative action, or both (as the case may be) specified in the remedial notice exceeds what is necessary or appropriate to remedy the adverse effect of the high hedge or to prevent its recurrence; (d)that the period specified in the remedial notice for taking the initial action so specified falls short of what should reasonably be allowed."
[7]There are also rights of appeal by former complainants against unfavourable decisions under regulation 5. The appeal provided by those regulations, set out in regulations 9, 10, 11 and 12, and the appeal form, indicate that the appeal is to the planning inspector, but it is an appeal on written submissions and documents, albeit with a site visit where that is considered appropriate by the inspector, but not an oral hearing in the way that a full planning enquiry might involve.[8]With that statutory background, it is necessary now to turn briefly to the events that give rise to this application. On 7 January 2009 the local authority wrote to the claimant saying that it had received a complaint regarding a high hedge. It reminded him of the legal measures in force to resolve complaints in those circumstances. It somewhat mis-stated the nature of the regime when it said that the Anti-social Behaviour Act limits the maximum height of a hedge on domestic premises to two metres above ground level to ensure that there is no barrier to light or access. "Two metres" is relevant for the definition of a high hedge, but it does not follow that a high hedge is, by reason of being two metres or more, interfering with the reasonable enjoyment of a neighbour's property.[9]The letter also mis-states the law when it says:
"Should the hedge exceed the legal limit of 2 metres, the officers will seek to resolve this matter initially through mediation. However, should this not be possible, a Remedial Notice may be served upon you under section 69 ..."
However, the letter also said:
"As part of the investigation that the Council must undertake to comply with its statutory duty, officers from the Crime and Anti-Social Behaviour Service accompanied by a Planning Enforcement officer will visit your premises on 14 January 2009 ... to view the high hedge complained of, and its surroundings, to establish whether the hedge adversely affects the reasonable enjoyment of neighbouring premises."
[10]The letter continues that there was a statutory right of entry on 24 hours' notice. That initial meeting did take place, although it appears that there was no recording or measurement of the hedge or matters of that sort.[11]On 2 March 2009, a second letter was written to the claimant indicating:
"The officers confirmed that hedge is overgrown ... This overgrowth may be adversely affecting the reasonable enjoyment of [the neighbour's property]."
The council offered mediation but said:
"I should advise if we are unable to pursue this route the Council will not have any choice other than to make arrangements to formally assess and measure the hedge. The outcome of this action could be to serve a formal notice on you requiring steps to be taken to reduce the height of the hedge to an acceptable level."
[12]The claimant made a robust response to that letter on 9 March 2009, where he indicated, amongst other things, that there had been a previous complaint that had not resulted in action and that pursuing this might be vexatious or an abuse. Ignoring a letter of 27 March 2009 indicating that mediation was still possible, the council’s letter of 15 April 2009 is of some importance in these proceedings. In the middle of the letter the council says this:
"The term 'overgrown' used in my letter comes from the officer's observation describing the current state of the hedge."
[13]This letter resulted in another detailed response by the claimant. Then on 22 May 2009, a further letter from the council to Dr Pelling says that it appears that the neighbour has not responded to the suggestion of mediation. The letter continues as follows:
"Following this I can inform you that we are now assessing this complaint. It is for us to decide whether this hedge is adversely affecting the reasonable enjoyment of your neighbour's property and, if so, what action -- if any -- should be taken to remedy the situation or prevent it happening again. The council have to weigh up all relevant information before reaching a fair and balanced decision. Collecting evidence from you and your neighbour may be required as too will a site visit. This will make sure the Council have the information they need to make the right decision. "
There is no set deadline for the Council to decide your complaint, but I would hope that we will be able to get an answer to you by at least the end of June 2009."[14]In fact, of course, it was the neighbour who was complaining rather than Dr Pelling. That letter, seven days later, resulted in a pre-action letter indicating that the claimant was minded to take judicial review proceedings. Essentially, he says that the procedure contemplated by the council would be a breach of the local authority's obligations under section 6 of the Human Rights Act 1998 to act compatibly with the claimant's human rights, and in particular the right to a fair trial under Article 6(1) of the European Convention on Human Rights in respect of the determination of civil rights and obligations.[15]At that point, the council responded with a letter dated 23 June 2009 making four points: (i). The council is bound to investigate the complaint. (ii). The authority to deal with high hedge complaints is delegated to the Crime and Anti-social Behaviour Service. (iii). As to disclosure, "The current complaint is subject to prescribed procedures by statute which incorporate an appeal process should a Remedial Notice be served. Significant time has elapsed since the complaint dated 2006 was received by the Council. However, I will pass your letters ... to the Council's Information Governance Team [in respect of] the Freedom of Information Act." (iv). The procedures are prescribed by statute which incorporate an appeal process and are Article 6 compliant.[16]Unsatisfied with that statement, on 29 June the claimant promptly issued an application for judicial review to which he also sought interim relief precluding the local authority from making a decision to serve a remedial notice before the judicial review application was determined. On 30 June, King J, in this court, made an order restraining the issue of such a notice pending the determination of this application.[17]Thereafter things went very seriously wrong in a number of ways. First, they went wrong in this court, since the matter was never listed for permission at all and the papers appeared to have got lost, until the period of two years had elapsed. The papers were then put before Mitting J who refused permission. The claimant renewed the permission application and on 11 August 2011, Langstaff J granted permission in terms to which I will turn in one moment.[18]However, that was not the only thing that went wrong. Despite the order of King J, on 30 July 2009 the defendant council wrote to the claimant in the following terms:
"A complaint has been made to the Council regarding a high hedge comprised within the land at 3 Avenue Road, Forest Gate [Dr Pelling's premises]. "
The council has determined that the hedge in question is adversely affecting the complainant's reasonable enjoyment of the property at 5 Avenue Road ... and that remedial work is necessary to remedy the adverse effect and preventing its recurrence. "As a consequence, the enclosed remedial notice requires you to take the action as specified in the notice. "You have the right of appeal against the remedial notice, details of which are stated in the notice."[19]Mr Goudie, counsel who appears for the defendant, accepts, that there were three things wrong with that letter and attached notice. First, and most obviously, it was issued in breach of the restraining order issued by King J. Second, it was a notice which came out of the blue, as it were, without any of the further investigation and opportunity to gather information referred to in the May 2009 letter. Third, it does not actually explain why the conclusion is reached that the hedge in question is adversely affecting the complainant's reasonable enjoyment of the property, it merely is a finding that it does, and the relevance of that is in terms of the appeal and other matters to which I will now turn.[20]However, despite an attempt by the claimant to sequestrate the defendant's assets for contempt of court, upon which no order was made apart from an order for costs in his favour, the council recognised that that order could not stand. On 9 November no order was made on the defendant's application and on 11 November the notice was withdrawn.

The Issues

[21]When the permission matter was considered by Mitting J he concluded on the papers that whilst the proceedings may engage Article 6(1) of the European Convention on Human Rights, they are hybrid in nature and similar to the planning appeal considered by the House of Lords in the case of R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 292. Further on the assumption that there was a duty of fairness on the council to permit the claimant to make representations, he has had that opportunity and accordingly viewed overall there was no breach of Article 6.[22]When granting permission on the renewed application, Langstaff J indicated that the arguable issue was whether this kind of procedure envisaged by the statute complied with common law fairness or Article 6. Nothing more needs to be said about the claimant’s contention that the second decision was an abuse of process. In granting permission Langstaff J referred to non-statutory guidance issued by the Office of the Deputy Prime Minister in 2005 dealing with this new statutory procedure.[23]That guidance includes the following propositions:
"5.34 The Act does not specify the procedure that Councils must follow in determining complaints. But they should take into account all relevant factors and should assess each case on its particular merits. They will need, therefore, to gather information about the hedge and its effect on both the complainant and the person occupying the land where the hedge is situated. It is suggested that the necessary information is collected through an exchange of representations and a visit to the site. ... "5.37 The Act requires all these people to be notified of the decision on a complaint, and so they should all play an equal part in the process leading to that decision. References to the main parties in the rest of this and subsequent Chapters include all the above. In particular, it is important that the main parties are given copies of all submissions made to the Council so that the process is open and transparent. ... "5.39 Having satisfied themselves that the complaint is one they can deal with, the Council should normally send a letter of acknowledgement to the complainant giving the name and contact details of the officer dealing with the case. The letter should also explain briefly the procedure that the Council will follow. In particular, it should make clear that comments will be sought from the owner and occupier of the land where the hedge is situated and that the Council intends to visit the site. A sample letter is in the Appendix. "5.40 The Council should then write to everyone who owns and occupies the land where the hedge is situated, notifying them formally that the Council are considering a complaint about their hedge. The complainant should have sent them a copy of the complaint at the same time as it was submitted to the Council and so the approach from the Council should not come as a surprise. "5.41 The letter should explain briefly the procedure that the Council will follow, including that the Council intends to visit the site. In particular, it should invite the owner and occupier of the land where the hedge is situated to comment on the points raised by the complainant and to provide any additional information that they wish the Council to consider. Copies of these papers should be sent to the complainant at the same time as they are submitted to the Council. The Council might wish to seek confirmation this has been done. ... "5.86 Factors that might be taken into account include how close the hedge is to buildings; the height and length of the hedge; its bulk and mass; and the area that it covers compared with that of the garden. The immediate surroundings, especially what else borders the property, and the general characteristics of the area might also be relevant. For example, the presence of other hedges and their impact; other buildings or features which, without the hedge, might be visually intrusive; whether the area is characterised by a sense of openness. Just because trees in the hedge are taller than neighbouring buildings will not necessarily be material. "5.87 The importance of these factors, and their effect on the reasonable enjoyment of the property will vary according to the circumstances. As a general rule, however, it is not reasonable for someone to expect to see beyond the hedge to a particular landscape, seascape or object, such as an attractive building. On the other hand, it might be reasonable to expect that a property should not suffer serious visual intrusion, which has an oppressive effect on living conditions. Equally, if the surrounding development is characterised by openness, it might be reasonable to expect that the property should not be unduly enclosed by a high hedge. "5.88 When assessing these or other factors, the effect of any gaps in the hedge should – where relevant – be taken into account. The extent of any gaps and their position in the hedge could be material. In some cases, the depth of the hedge might mean that gaps have little appreciable effect. In others, especially where the canopy is raised, the impact could be significant. ... "5.105 Councils are advised to keep a clear record of how they reach their decision, to inform the decision letter and for use in any subsequent appeal. They might wish to prepare a report, in a standard format, which could be appended to the decision letter. This would help to provide assurance to the main parties that their representations and other information provided have been fully considered and demonstrate how they have been assessed. Such a report might include the following: • A description of the hedge and its surroundings; • Relevant policies or other legislation that might apply (eg tree preservation order, conservation area, local Biodiversity Action Plan); • Case for the complainant; • Case for the owner or occupier of the land where the hedge is situated; • Representations received from anyone else and the results of any consultations carried out; • Appraisal of the evidence; • Conclusions and recommendation."
[24]The guidance therefore suggests that the council will undertake an active process prior to any notice being issued that will enable it to investigate the complaint fairly, enable affected persons to make representations to the council on any topic relevant to the investigation and decision, for all affected persons to know what procedures will be followed and applied, and to ensure that an informed decision is reached and communicated when it is decided to uphold a complaint and issue a remedial notice. The guidance is not statutory and there is no legal obligation either to have regard to it or to apply it.[25]When the defendant came to file the acknowledgement of service in response to the claimant's judicial review application on 20 October 2009, it explained as follows:
"[1] Section 68 of the 2003 Act prescribes the procedure that must be complied with where a complaint is received... "[2] Part 8 of the 2003 Act does not require a local authority to provide the claimant to an opportunity to make representations or be afforded a hearing before a decision is made to serve a remedial notice as soon as is reasonably practicable... "[3] The 2003 Act provides the recipient of a remedial notice with a right of appeal under section 71. "[4] The appeal against a remedial notice is to the planning inspectorate and independent of the local authority that issues the notice and therefore is compliant with the Human Rights Act 1998 and Article 6."
[26]The authority there defended its position on what the claimant describes as a "minimalist position" in terms of procedural fairness, namely that as long as the authority make a decision within the terms of section 68 of the statute and there is a right of appeal under section 71, that is all the fairness needed to dispose of the case. It is right to say that that is not the position that is now advanced in the skeleton argument of Mr Goudie, dated 20 October 2011, although there has never been any amendment to the acknowledgement of service.[27]With that background, I can now turn to the submissions. The claimant has made numerous written submissions in the course of these proceedings, and his skeleton argument proceeds by reference back to the written submissions previously made, which the court has had an opportunity to read and evaluate. As I understand the essence of his case, he puts it in the following ways.[28]First, he submits that the Council’s decision was a determination of a civil right or obligation. The council was in the position of an adjudicative tribunal deciding a neighbour dispute in very much the same way that a County Court judge would be deciding a nuisance claim for damages, and that therefore all the fair trial rights that one would expect to see in a civil context in the course of determining a claim of such a nature should apply to this case, including an oral procedure before an independent court, an opportunity to cross-examine and a right to a reasoned decision. The proceedings actually conducted including this application for judicial review, separately or together, could not meet those standards.[29]Second, if this is viewed as a mixed procedure, the statutory arrangements as applied by the defendant falls short even of the degree of open hearing that was the position in the Alconbury case to which Mitting J made reference. In that case there was a planning inquiry and oral hearing before an inspector, followed by judicial review.[30]Third, in any event common law fairness requires the bare bones of the statutory procedure to be supplemented by measures such as those indicated in the Office of the Deputy Prime Minister's guidance note in order to ensure a fair hearing. 31.Dr Pelling argued his case from the high point of Article 6 in its full ambit. He refers to the well known authority in Strasbourg of Albert and Le Compte v Belgium [1983] ECHR 10, a decision of the European Court of Human Rights, setting out what a fair hearing requires by way of “full jurisdiction” to determine facts and law.[32]I indicate at once that I reject Dr Pelling's primary way of putting his case. In my judgment, this is plainly a new statutory public law power afforded to the local authority to determine whether to issue a remedial notice under the statute. In that respect, this is in essence a public law exercise of judgment by the local authority, admittedly a judgment to be exercised only upon complaint by a person paying the specified fee, but nevertheless an exercise of judgment which can be better compared with planning enforcement notices and abatement orders and other matters of that sort.[33]The local authority act as a guardian of the public interest, in this case the public interest meaning the interest in addressing a grievance by a land owner about the size of a hedge and its consequences for a neighbour. I therefore conclude that the full panoply of the Article 6 civil fair hearing rights contained in cases such as Albert and Le Compte are inapplicable to a decision of this sort that remains a public law administrative decision, albeit upon complaint. I do not accept that this was a quasi judicial decision by a local authority of a private law dispute between neighbours. It is not a form of proceeding equivalent to a nuisance action heard in the County Court. Although I recognise that there are a number of aspects of the public law procedure that are similar to matters which might be the subject of a private law claim for damages and an injunction.[34]The real issue in dispute is how the council are required to act in order reach a decision under the statute. I nevertheless recognise that the effect of the decision potentially engages the civil rights and obligations of land owners, in such a procedure ultimately leading to the potential sanction of enforcement by way of criminal law.[35]The case law classifying what is a civil right and obligation, which engages in whole or in part aspects of the Article 6 procedure, and what is not, is by no means clear-cut, as a review of the authorities mentioned in Judicial Review Handbook (5th Edition, Fordham) at page 549 and paragraphs 59.5.5 demonstrate. In this context, it could be said that on one side a decision such as Friends Provident Life & Pensions Ltd v Secretary Of State For Transport, Local Government & Regions & Ors [2001] EWHC Admin 820, a planning decision determining objective civil rights and obligations goes one side of the line, whereas it is said Mitchell & Anor, R (on the application of) v Horsham District Council [2003] EWHC 234 (Admin), enforcement action to remove unauthorised gypsy caravans, is the other side of the line. To some extent, this case falls within the area where it has the potential to engage these rights and obligations. Certainly fairness is required in some form or other.[36]However, I conclude that the third of Dr Pelling's submissions is a sound one namely that that common law fairness is required to be read into the statutory procedure. The minimal procedure identified in the statute is to be supplemented by such measures as suggested in the extra statutory guidance indicates to ensure an overall outcome of a fair procedure. That is indeed not now disputed by the defendant in the form of Mr Goudie's submissions and as previously indicated was contemplated by the non-statutory guidance.[37]In my judgment, fairness requires a party potentially adversely affected in the enjoyment of their land be given an opportunity to be heard before enforcement action is taken. Precisely what fairness requires in a particular case will, of course, always turn upon the context. The context of this dispute suggests that in the normal run of such decisions the following is needed:(i) Some information as to why it is said that the hedge in question is adversely interfering with the neighbour’s enjoyment of land;(ii) Affording the person on whose land the disputed hedge is located the opportunity to address those matters, supply any relevant information, and submit further evidence, possibly even including an expert's assessment of the matter, to the decision maker before a decision is made to issue enforcement action.(iii) The council should explain why they have reached the decision that they have, so that the person concerned can know whether there is a case to appeal and, if so, what the appeal should concern.[38]With respect to this last point, it is noteworthy that the appeal notice indicates that the procedure is a written procedure and that the appellant only gets one opportunity to explain their case, which they should do so by reference to the reasons given by the council. So both the guidance and the appeal form suggest that the council will give sufficient reasons to enable the matter to be investigated.[39]These elements were not reflected in the enforcement decision actually taken and then withdrawn or the approach indicated in the acknowledgement of service in October 2009. In my judgment that was a flawed approach. Moreover, the response to the letter before action, which appears to foreshadow the approach in the AOS, simply referring to the duty to make a determination and the right of appeal as being sufficient in itself to ensure Article 6 compliance, is inaccurate and inadequate to achieve the level of fairness required.[40]However, if the statutory procedure is supplemented by a duty to act fairly as indicated in general terms by the contents of the guidance note, then the person affected has a fair opportunity to make representations pertinent to the issue in question, and obtain a reasoned decision of the council which is capable of being challenged in appropriate cases by an appeal. On appeal the decision of the planning inspector, even without an oral hearing brings an appropriate degree of independence and where contentious legal issues arise the whole process is subject to the supervision of this court in judicial review.[41]Taking these measures together, I am satisfied that that would provide a sufficient answer to Dr Pelling's second submission, that even if this is an administrative decision, it does not meet the standards of fairness set in Alconbury. The House of Lords in Alconbury pointed out that there is the precedent of the Strasbourg approach to such matters in the case of Bryan v United Kingdom, which is dealt with extensively in the judgment of Lord Hoffman at paragraphs 101 through to 122. Whilst in Alconbury there was more by way of public hearing than is contemplated by these regulations, as a matter of principle the degree of oral procedure is primarily a judgment for the rules and the decision taker. Relevant to that judgment is an assessment of the proportionality of the cost, speed and simplicity of the issues relating to an assessment whether a high hedge detrimentally affects adjoining occupiers.[42]Since I reject Dr Pelling's primary analogy with determination of a damages claim in a County Court, I do not consider that he is right in his second submission to say that, even looked at as an administrative decision, it nevertheless requires oral hearing, cross-examination, full disclosure and matters of that sort that would be derived from ordinary civil procedure rules.[43]I reject, therefore, Dr Pelling's further submission that it is a breach of the section 6 duty of the local authority not to act as openly as they possibly could by way of an oral investigation and proceeding. That seems to be a reflection of the primary submission that I have rejected. The council is not required to act outside of the statutory mechanism contemplated by the statutory right of appeal and the regulations made under it, nor is there any question of declaration of incompatibility that the statutory right of appeal is somehow insufficient to meet Convention rights, for the reasons I have attempted to explain.[44]I therefore reach the conclusion that the claimant was right in part of his challenge that common law fairness did require the statutory procedures to be supplemented, but wrong in other aspects of his challenge when he said that nothing less than an open hearing by the council and/or the inspector will do to determine this class of case.[45]There are a number of procedures whereby hearings are dealt with on the papers and paper appeals based upon reasoned submissions and submission of evidence is generally satisfactory for disposal of cases. It all depends upon the issue, the context in which the issue has to be determined, and the nature of the problem that is being addressed in the investigation and the determination. I am satisfied that Parliament, in this context, intended a reasonably simple, speedy and very focussed procedure to examine whether indeed hedges that were over two metres in height, and therefore falling within the definition of "high hedge", adversely affect reasonable enjoyment of property by another.[46]This assessment is not a complex one and is very much a matter for those capable of making planning judgments, or environmental impact judgments, and it was intended to be summary, comparatively brief, but having such elements of opportunity to make pertinent observations as the particular context of the case required.[47]One then comes to the question of applying these principles to the facts of the particular case. Although the council's letters from January to May 2009 were not in all respects a model of accuracy and clarity, the indication in May at least was consistent with the kind of procedure allowing the parties to comment upon the case, to make submissions and submit observations of their own, including, if they so wanted, any expert assessment of the case. If that procedure had indeed been adopted, I consider there would have been no legitimate complaint at all by Dr Pelling.[48]Things went wrong when the response to the pre-action letter suggested that something less than that might suffice, and go very wrong indeed when the decision in July indicated that something very much less than that had in fact been adopted. In October, the council was saying that that was all right because that was all that the statute required. But all of that has been set aside by a decision in November to rescind the remedial notice .[49]It is extremely unfortunate that this matter has taken so long to be ventilated in public and see the light of day. But now it has, I conclude that no relief needs to be granted other than this judgment explaining, the principles to be applied. If the complaint is now to proceed with a hedge that has been growing for the last two years, it should proceed along the lines first indicated in May 2009 but interrupted by these proceedings.[50]It would have been a perfectly legitimate response from the AOS for the defendant to have said these proceedings were both premature and unnecessary, since before a decision is to be taken the claimant would be given every opportunity to say whatever he wants to say and submit whatever he wants to submit. Sadly, that was not the response they took, hence the claim. The high point of the claimant's case, as to how the local authority might behave, was the evidence of how they actually did behave, not only without reasons, not only without following the procedure they said they were going to follow, but also, of course, in breach of the order.[51]To this extent, the common law aspect of the claimant's case, this application succeeds. In so far as the claimant was seeking more than that, it does not. MR GOUDIE: Just for the avoidance of doubt, the order made by King J is discharged. I know that it was renewed -- the interim order. MR JUSTICE BLAKE: I thought Mitting J discharged it. THE CLAIMANT: He did. No, it wasn't reinstated. MR GOUDIE: My apologies. MR JUSTICE BLAKE: He discharged it. You have held your hand since July simply because it was sensible to do so, rather than because you were ordered to do so. THE CLAIMANT: In fact, they wrote a letter saying that they would (Inaudible), so that was sufficient. So no need for continuation -- MR JUSTICE BLAKE: No, if you can agree things, it is much better to agree them rather than come to this court. THE CLAIMANT: My Lord, I am going to ask for leave to appeal. I'm not necessarily going to appeal, it's just to reserve my position. MR JUSTICE BLAKE: Of course, yes, you may certainly ask for permission to appeal and I will refuse you such permission on the basis that it would be disproportionate and I do not consider that it has reasonable prospects of success. I will fill out a form. THE CLAIMANT: Yes, there is a form. MR JUSTICE BLAKE: It will be filled out in due course. THE CLAIMANT: That is leave to appeal, and then of course there is the question of costs. MR JUSTICE BLAKE: Yes, you have put in a schedule of your costs but before we get down to that, what should the costs be in principle? You have succeeded in part, but not in whole, hence your application for appeal. THE CLAIMANT: That is correct, my Lord, but I would point out that if I had not brought this judicial review then I would not have got anything at all. The council's stance really was extreme, as I think your Lordship is clearly accepting in your judgment -- MR JUSTICE BLAKE: It is a little difficult to speculate, Dr Pelling. If you had never written your letter before action, they might have plodded on with what they said they were going to do in May, rather than, as it were, tighten up in response to your challenge and then we have a head-to-head. I do not know, but I appreciate we have gone through this history. I appreciate what happened in July was extremely unfortunate. THE CLAIMANT: Yes, and they made their position plain in the acknowledgement of service. MR JUSTICE BLAKE: Quite, but of course if you had not applied for judicial review there would not have been an acknowledgement of service. THE CLAIMANT: That's true, but the evidence is that they were progressing that hold. Their way of doing things was very quickly because they said we're going to -- well, going back to the 22 May letter, "We will forward all relevant documents to you, along with the results of our assessment, by the end of June 2009. May I ask you to wait for the council's decision on this complaint before sending any further correspondence on this matter." MR JUSTICE BLAKE: All right. What do you say you should get by way of costs? THE CLAIMANT: Well, I submit that I should be entitled to, in all the circumstances, because -- MR JUSTICE BLAKE: Entitled to the whole of your costs? THE CLAIMANT: Yes. MR JUSTICE BLAKE: I think that is the bit that was missing, if we add that. Anything else you want to say about -- THE CLAIMANT: Well, yes, I just want to say it's certainly not the case that because a claimant does not succeed on every aspect of his case that his costs are reduced. I say I have substantially succeeded. I have achieved a major ruling from your Lordship, the importance of common law fairness, and there is no evidence at all that the council was ever going to apply that in my case. And now at least I have achieved the security of these principles being applied by the council, and it really was necessary to bring this claim. MR JUSTICE BLAKE: Okay. Let us try to keep it short. MR GOUDIE: My Lord, in respect of the costs, the council do not dispute they have lost in respect of part of Dr Pelling's claim, but in our submission the bulk of the action has been further than that on which your Lordship has ruled, and particularly the submission with respect of Article 6 and Alconbury. In the circumstances, we would not object to being ordered to pay a third of the costs that are applied for in the terms that there are, as your Lordship made judgment, three effective applications or grounds that he has relied upon, and he has been successful in respect of one of them. MR JUSTICE BLAKE: Okay. So if we take his figures, do you have his figures. MR GOUDIE: £1,948 (As heard). THE CLAIMANT: My Lord, that needs a slight adjustment because, as you can see, item 15 was predicated on an assumption of a half day, literally a half day. Well, it's unfortunately turned into a whole day. MR JUSTICE BLAKE: Well, yes, I am not sure it is going to get much adjustment for that, because I think you might have taken a bit of time. THE CLAIMANT: Can I just add, instead of finishing at 1.00 pm, we should add at least three hours to that. Also, can I just respond to the point about one-third. MR JUSTICE BLAKE: Yes. THE CLAIMANT: That is superficially attractive, because there were three -- MR JUSTICE BLAKE: Why is it, on more thorough consideration, not attractive? THE CLAIMANT: Well, I think it's really, it splits into two. I mean, there was common law fairness and Article 6. My case was either way, whether there is administrative law or not, whether Alconbury is relevant or not, my case was still that Article 6 applies and it's all based on Article 6. So you could say I have lost on the human rights part, but I have succeeded at common law, so if there is to be a division I think the proportion I should have is at least 50 per cent. MR JUSTICE BLAKE: Thank you, I think I have probably heard enough now. I am going to award you £900 by way of costs on the summary assessment. I do that having regard to the issue of proceedings and the point at which you have succeeded, but it seems to me that a great part of the hearing and certainly the reason why it lasted more than half a day was because of broader matters on which you have not been successful. THE CLAIMANT: My Lord, making that decision, did you appreciate that disbursements, the court fees themselves, amounted to £265? MR JUSTICE BLAKE: I am taking the sum that you -- yes, I did. Right. Thank you very much. THE CLAIMANT: Well, it's not quite the -- MR JUSTICE BLAKE: Anything else? THE CLAIMANT: The costs order. Could you order that be payable within, say, 14 days or something like that? MR GOUDIE: Twenty-eight days. THE CLAIMANT: I've got no objection to 28 days. MR JUSTICE BLAKE: All right. THE CLAIMANT: Would it be possible to have a transcript of judgment at public expense? MR JUSTICE BLAKE: I think since Langstaff J thought there was some public interest in this, it may be that there are hedge growers all over the country wanting to know and I think there is probably a case for that. THE CLAIMANT: Thank you, and could it be ordered to be provided with expedition in case I do want to refer to -- MR JUSTICE BLAKE: Well, I do not know how long it is going to take. It seems to be reasonable expedition. It is probably not the greatest priority. THE CLAIMANT: Thank you very much.