Golding v Secretary of State for Communities and Local Government & Ors [2012] EWHC 1656 (Admin)

Case No CO/4335/2011[2012] EWHC 1656 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 27th April 2012
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE WAKSMAN QC
(Sitting as a Judge of the High Court)
Between
JOANNA GOLDINGClaimantv
Between
THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantEAST LINDSEY DISTRICT COUNCILDefendantGBM WASTE MANAGEMENT LTDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr A Masters (instructed by Branwell Browne Odedra Solicitors) appeared for ClaimantMr S Whale (instructed by the Treasury Solicitor) appeared for First Defendant
J U D G M E N TJUDGE WAKSMAN:Introduction
[1]This is an application for judicial review of two costs orders made by the Inspector on 1st April 2011 following the conclusion of a planning appeal in favour of the appellant and the present claimant, Miss Golding.[2]At the commencement of the hearing before me I ruled that the appropriate method of challenge for a costs order made by the Inspector pursuant to her powers under section 255 of the Local Government Act 1972 ("the 1972 Act") and Schedule 6 of the Town and Country Planning Act ("the 1990 Act"), and in respect of an appeal brought under section 78 of the 1990 Act, was by way of judicial review and not pursuant to section 288 of the 1990 Act. Following my substantive judgment is an addendum setting out my reasoning for that ruling in case there is some interest in it. Since both parties wished me to deal with the substance of the challenge, I formally granted permission for the judicial review claim, which I now determine as a matter of substance.[3]For the purpose of the application before me I have read all the witness statements, namely from Mr Brown, the claimant's planning consultant, from Miss Lewenstein on behalf of the Secretary of State and Mr Tym on behalf of the relevant council, which is the East Lindsey District Council. Background[4]The appeal concerned an application for planning permission made by the claimant to the Council for the conversion of holiday caravan site to one for permanent use by caravans on 11 pitches for use by gypsies or travellers.[5]On 11th May 2009 the Council refused permission on grounds which included the lack of any ecological survey prepared by the claimant which could satisfy concerns as to whether there were any habitat implications and also on the question of noise.[6]Adjoining the application site was a waste management facility operated by the third defendant, GBM Waste Management Limited ("GBM"). They objected to the claimant's application for planning permission and they took part as an objector in the subsequent appeal. The noise objection related to the noise produced by GBM on its site and its effect on the amenity at the proposed new residential site and in relation to those who might then live there.[7]In the appeal the Council, as well as GBM, objected to the claimant's proposals until there came a time when, as a result of an ecological survey and further material in relation to noise, the Council indicated that it would now be withdrawing its objections, providing that suitable conditions would be imposed. GBM, however, maintained its objections. The course of the appeal[8]The appeal was set down for two days on 30th and 31st March 2010. Given the number of witnesses and the fact there would be three counsel, these dates had been agreed some months in advance. As it transpired, two days was a significant underestimate. On or around 24th March 2010 Mr Brown informed the Inspector that the claimant's counsel -- then, as now, Mr Masters -- would not be able to attend the second day of the hearing. This was because at an earlier hearing before the Court of Appeal Criminal Division on 16th March, which was adjourned, the court told counsel they would have to attend an adjourned hearing which would take place before the end of that term on a date to be fixed by the court. Some days later Mr Masters was told it would be 31st March. Alternative counsel for the planning appeal were not instructed to take over. The Inspector wanted Mr Masters to explain on the first day in some detail why he was prevented from attending and why alternative counsel had not been instructed. He did attend on that day, and at least some time on the morning of the first day was taken up discussing Mr Masters' difficulties in attending and so on.[9]It was decided that the inquiry would have to be re-fixed for a longer period in any event to accommodate all of the evidence. Three days were set aside. The original revised hearing dates were in August 2010, but these could not be kept due to the illness of Mr Brown, and eventually the inquiry took place on 18th to 20th January 2011. There were site visits on 31st March 2011 and 19th January 2011.[10]The eventual inquiry was somewhat shorter than been anticipated because at least by then the Council were no longer objecting in principle.[11]The date by which the claimant was to serve any evidence in support of the appeal was 2nd March, so just about 28 days before it was due to start. She did not do so. It is clear, however, that around this time or a little later she was turning her mind to the need to put in an ecological survey. As the Inspector put it in paragraph 61 of her first costs submission:
"There is no indication of the appellant having made any attempt to secure an expert on this until a week or so before the inquiry. An email from the Local Planning Authority of 25 March 2010 to Ms Golding and Mr Brown (copied to PINS) refers to this and Ms Golding was there reminded by the Council that such evidence should have been received by 2 March 2010. Mr Masters said on Day 1 that he had asked for such evidence but that it was not yet ready. There was thus a clear breach of the Inquiry Procedure Rules."
I have a copy of the relevant e-mail from Mr Tym at the Council talking about the new ecological report and that the claimant had told him she wanted to have a copy of the report of Mr Pocklington, who was going to be the Council witness on ecological matters, so as to inform her own ecology consultants' survey. If that was a reference to evidence she now intended to produce, they would point out the date of exchange was 2nd March and the reason for refusal on ecological grounds had been known to Miss Golding since at least the publishing of the Planning Committee report prior to the decision being made in May 2009. The Council viewed the introduction of such evidence at a very late stage as unreasonable behaviour.[12]As it turned out, the survey for that new ecology report was itself undertaken on 30th March, and subsequently, in April, after the case had been adjourned, it was served late. Once served, the Council said on 21st May that provided the Inspector was prepared to accept this late evidence, they would withdraw their ecological objections and seek the appropriate conditions instead. The Inspector did admit that evidence and so the Council's position changed appropriately.[13]As far as noise is concerned, the Council explained their position subsequently, and they did so in this way -- I am here reading from the Council's closing statement after the inquiry had finished at paragraph 6:
"Reason 1 [for the refusal of planning permission] related to noise and disturbance issues in Reason 2 about which the Council had not had adequate information from the appellants. There is a chain of correspondence from the Council repeatedly pointing out the lack of an inadequate noise survey. At the time the Committee determined the application there was only the scant noise survey supplied by the appellant which the appellant had been told was inadequate for a number of reasons (most importantly it only applied PPG24 principles and not BS4142). The GBM 2007 noise survey was not before the Committee as GBM had objected to its use for reasons it alleged related to copyright. In any event it was not prepared for the purposes of the application before the Committee at that time ... and it would have been erroneous for the Council to have relied upon it in that context in the absence of an adequate survey and information from the ... appellant."
In paragraph 7:
"... during the first adjournment the appellant sent the Council details of a bund and acoustic fencing without explanation. Reference was made to readings collected on the day of the site visit but no noise survey information was supplied ... After the second adjournment and as late as November 2010 a full noise report and survey with data was supplied to the inspector. Again, the inspector accepted this evidence and asked the Council to be in a position to address it and the new information about the effect of the bund and the acoustic fencing."
[14]I need to explain a little more about all of this. GBM, as part of the conditions governing its own planning consent, was required to produce noise assessments annually. In June 2010 it did so, but the report here showed that if one took into account something called tonal adjustment, the noise level was higher than it otherwise would have been so far as any neighbours were concerned. That report was produced on 16th June but it was not served by GBM at that time on the Council or on the Inspector. But the position so far as the appellant by that stage was this. It had first of all submitted materials concerning noise on 1st and 13th April 2010, and one of those, I suspect the first, was the one which referred to or relied upon data which had been taken on 31st March and to which the Council's document made reference. The later document went into detail concerning acoustic barriers and proposed mitigation measures, so that was all before the GBM report was produced. Those materials, it would seem, were served on the Council on 26th April. Subsequently, on 16th and 17th June, and independently of GBM, the appellant did her own further noise assessments, and those reports dated 16th and 17th June are at pages 283 and 284.[15]The GBM report was not itself served until around October 2010 together with the further report from the appellant, and it was all served by the appellant. It seems the appellant did not serve any report in response to GBM as such, but it did rely upon its own June 2010 reports, which showed no tonal adjustments, and it relied upon the reports concerning further detail about further mitigation measures in relation to acoustic barriers and bunds and things of that kind.[16]The position taken by the Council was that if it had had all of those noise assessments and proposed mitigation measures at the time of the original planning application, it could have dealt with any noise issue by conditions then, or at least if it had that information by 2nd March, then it would have been in a position to drop its objection in noise before the appeal got fully under way. All of that was made clear in the Council's position statement which was prepared by Mr Dobbs and served some time after November 2010. I am not going to refer to it, but it contains a detailed account and history of all the reports and the Council's position in relation to it.[17]Against that background, I turn to the Inspector's decision itself.[18]First of all, by way of background in relation to the planning appeal, at paragraph 6 she said that once it was clear that the inquiry would have to be adjourned, she indicated that she was minded to accept an ecological report provided it was accepted by 21st April. By that date the appellant also supplied a document on acoustic barriers. Considering that latter material useful to the consideration about any conditions, she accepted that also, and then she explained when the data was collected in relation to that. Paragraph 7 noted the change of position on behalf of the Council. Then at paragraph 20 she referred to GBM's report produced by NVC, saying that it included consideration of distinctive impulsive notes for the first time, showing a correction factor of 5 decibels. If so, it would be very close to the point at which complaints would be considered likely. The appellant appeared to doubt why that was recorded in 2010 but had not featured in the earlier reports. Her June 2010 surveys showed a 6 decibel difference without tonal content. Had that been the case, with a correction factor it would have entered the "complaints likely" band. In paragraph 21 the Inspector said that although noise from GBM was of no or marginal significance for much of the time, sometimes it would be, or it would enter the point at which complaints would be likely. She said that noise was a subjective matter, but having considered all of that, she decided that with various mitigation measures the noise could be dealt with and she said that it was achievable and could reasonably and necessarily be dealt with by way of condition.[19]Paragraph 34 refers to the ecology position and what she observed about a pond, for examples, some grasses, and that there could have been environmental ecological objections or concerns, but she then refers in paragraph 36 to the ecology survey submitted during the adjournment from the appellant, describes that in detail. Her conclusion in relation to all of that is, having got all of that, she then agreed with the Council's position that suitable conditions could be imposed.[20]Against all of that background, and once she had given her decision, she was then asked to make various costs orders. The jurisdiction for that may be set out in this way, contained in the Costs Circular of March 2009. Costs would be awarded by an inspector where they had been sought timeously, where the party against whom the award was sought had acted unreasonably and where the unreasonable behaviour had caused the party applying for costs to incur unnecessary or wasted expense in the appeals process.[21]The Inspector made two costs awards, and both of them were made against the appellant. The first was in favour of the Council in respect of(a) costs wasted on the morning of the first day due to Mr Masters' difficulties,(b) costs wasted due to the late service of the ecological evidence, and(c) costs wasted as a result of the late service of noise reports. The costs awarded in respect of the second and third matters were to be the Council's costs incurred after 2nd March, although obviously subject to assessment. The second costs order was made in favour of GBM only on the first item, in other words the morning of the first day. All the parties made written and oral submissions to the Inspector on the question of costs before she issued the two decisions now under challenge.[22]At this point I remind myself that costs are pre-eminently a matter for the awarding tribunal which had dealt with the issues to which they relate, albeit that here costs should only be awarded if there had been unreasonable conduct, but the task of the court on any challenge is to assess whether those costs decisions are Wednesbury-unreasonable; that is to say, irrational. Disagreement, even significant disagreement, with the outcome, is not sufficient.[23]Mr Masters suggested at the outset that the Inspector did not even have in mind what the appropriate test for the award of costs was. There is nothing in that point. Paragraph 2 of the first costs decision refers specifically to the three conditions of the circular to which I have just referred. Paragraph 48 sets out in summary form what those provisions are, and paragraph 49 states -- and it has not been suggested inaccurately -- that the costs regime is targetted at encouraging good practice and the timely submission of evidence.[24]So far as the first decision is concerned, the Inspector set out in detail what each of the parties contended for by way of costs. I mention one aspect about that. In relation to the Council's submissions, the Council submitted that alternative counsel should have been obtained, it would have been possible to find an alternative barrister to come and do the case, and any competent barrister could have done it in time, and the point was also made that barristers were familiar sometimes with having to accept briefs at a late stage.[25]Then I go to the Inspector's reasons given in relation to that. So far as the need to adjourn is concerned, she set out the history about Mr Masters' unavailability. She made reference to Article 6 and the need for everyone to have a fair hearing. She found the case did not demand counsel of any more specific expertise in gypsy matters than could reasonably be expected from a member of the planning bar, especially with a consultant with the specialist knowledge of Mr Brown, that the date had been set for a long time before, that GBM's counsel had pointed out that counsel had the experience of receiving briefs late on the day, and she concluded that it was unreasonable not to have sought an alternative advocate, Ms Golding would not have been at any disadvantage. She found that costs ought to be awarded, but because the matter was going to be adjourned in any event it was a very confined order. It was simply the wasted costs on the first half of the first day in discussions in relation to Mr Masters' non-availability, and she made a similar order in favour of GBM in respect of the same matter.[26]As far as ecology is concerned, I have already read out paragraph 61. In paragraph 62 she said that given by 2009 the site had not only a large pond but an island of vegetation, and it was entirely reasonable for the local planning authority to wish to be reassured on the matter and there had been a survey in relation to that. They had reasonable grounds for considering that there was a potentially valuable habitat. It was inconceivable that the planning officer would have referred in the May 2009 committee report to an exchange with the appellant if she had not made her aware that such a survey was needed. It was entirely clear from the third reason for the refusal that the local planning authority wanted a survey from the appellant to assess this. There was ample opportunity to do so. Not to do so on time, because it only happened in April, was unreasonable, and there was unnecessary expense in dealing with the evidence at that point.[27]As far as noise is concerned, in paragraph 65 she refers to the fact that when the inquiry opened there was no indication from the appellant that she was hoping to submit additional noise evidence. Information on noise barriers were sent in April with the ecology report and she allowed that in. Data that was said to be enclosed was not, and then there were the further reports that came through in November, though based on observations made in March and also a noise survey addressing several control points within the site that came from the appellant. All of that was a breach of the rules in not submitting it by 2nd March. Once the local authority had the information, it considered it, it acted promptly to review its decision before saying finally on 16th December that conditions would be a sufficient safeguard, which would include the mitigation measures.[28]Then in paragraph 68 she said that had the noise survey and ecology report been submitted according to the rules, there was sufficient to convince her that there would have been no need for the inquiry to have been held, that is the form that the appeal would take place, with all its associated expenses for the local authority from 2nd March. She did not go so far as to say, because she could not be sure about it, that the local authority would have in fact granted planning permission, and that is why the costs were limited to a period after the appeal had started and after 2nd March, which was the deadline for the evidence. In the light of that she made the costs order and referred specifically to her powers under section 250 of the 1972 Act. Discussion - Ecology[29]I deal first with the discussion of ecology. Mr Masters' essential submission was that there was never a need to serve the ecological survey from the appellant at all because this was never a real issue. If so, it does beg the question as to why the appellant chose to serve it. In fact, the need was obvious given that the Council had made the lack of such a survey one of the grounds for refusing the planning permission. In fact, that that was the case was set out in paragraph 10 of the Council's opening statement for the appeal, at which point they were still objecting on ecological grounds because they were relying on the observations of Mr Pocklington.[30]It cannot be said that the appellant was only considering even serving that survey once it was clear that the inquiry was going to be adjourned in any event. That is contradicted by the e-mail on 25th March and the fact that the survey itself was done on 30th March. The truth is, as the inspector Found, the appellant simply got round to this point late in the day and in breach of the evidence direction. I cannot possibly interfere with the Inspector's decision on Wednesbury-unreasonableness grounds. Noise[31]Mr Masters' key point here is that, in truth, what happened was that the appellant only put in the additional evidence on noise as a result of and a response to GBM's noise report on June 2010 referring to the correction for tonal adjustment. The appellant could not and would not have put in any evidence earlier because that report had not been there. Therefore it was unfair and irrational for the Inspector to penalise the claimant for only serving the evidence when it did. Moreover, the Council could not be heard to say that it would have granted planning permission, or at least would not have pursued the appeal at an earlier stage, if the information had been provided by 2nd March.[32]I follow Mr Masters' argument, but in truth the position was much more nuanced. The appellant first put in additional evidence on noise in April 2010, long before GBM's. That evidence included some data taken on 30th March and, importantly in my judgment, further detail about mitigation measures which had not previously been put forward. It was the mitigation measure proposals which would allow the Council to consider dealing with the matter by way of conditions, lest there could be a problem over the level of noise. I accept that once GBM provided its report, that went into the equation, and it is referred to as part of the concern in relation to noise, albeit one which could be remedied on the part of the Inspector, but the fact remains that the Council was clearly entitled to submit that if the claimant had produced the information which it had obtained in March and April 2010 and its readings from June 2010 back or on before 2nd March, the Council, for its part, could have been satisfied. The mitigation measures were proposed by the appellant on the footing that even if, which it denied, noise levels were too high or higher than it said, the new barrier et cetera would deal with it. Mr Masters says that the Council was being disingenuous because at the time of the appeal it had no real noise objections anyway, but, as a matter of fact, that is simply not correct, even if the appellant thought it ought not to have any noise objections. It was a ground of refusal. Again, evidence of the Council's own position is very clearly stated on 29th March 2010: see paragraphs 4 and 5 of the opening statement.[33]Of course, even if the Council would agree conditions to deal with noise, which it did late in 2010, that would not guarantee that GBM would not still take a point on noise. That is what happened at the eventual inquiry, and the Council was attending that principally on the question of conditions, but GBM was still objecting in principle.[34]The key point here, however, is that the Inspector's costs award concerning noise is only in favour of the Council and not in favour of any further costs of GBM, as to which different considerations would apply.[35]As to all of the above, perhaps a different Inspector might have taken a different view on the noise evidence question, although for my part I agree with the view that she did take, but in no way can her considered decision on the point be said to be irrational or illogical. Indeed, although not a conclusive point, it is worth noting that in the causative point now being made, that all of this was done only in response to the GBM report, was not really made, or not made very clearly, in the submissions made on behalf of the appellant at the time. See paragraph 36 of her decision, which describes how the objection was put. See also how the Council put it in her record of what it was submitting in paragraphs 16 to 19 of the first costs decision. Having regard to those paragraphs, what the appellant appeared to have been suggesting to the Inspector at the time was that the Council's change of position on noise was not really as a result of any information submitted after 2nd March, but was simply due to a change of heart on its point that should have come earlier. The Inspector had that submission and was fully entitled to reject it. Accordingly, there can be no challenge to the costs decision so far as noise is concerned. Counsel's Unavailability[36]I turn finally to the question of counsel's unavailability and the Inspector's view that other counsel could have been instructed. Mr Masters says, in effect, that that is an absurd or an impermissible view because no other barrister could be found in the time available or would be found, and in any event he or she would apply for an adjournment so the time would be wasted anyway. But the Inspector was entitled to adopt the view submitted by GBM's counsel (see paragraph 54 of her decision) that counsel do sometimes get instructed late in the day. In fact, had alternative counsel been instructed on the issues which actually would have been limited at the time, they could have appeared at the inquiry dealing with those matters and then what would have to be decided was whether the case was going to be adjourned for other reasons, but that would not affect the fact that costs were wasted in discussing the unavailability of Mr Masters. Again, views might differ on the question of instructing alternative counsel, but by no means can it be said that the Inspector's view was irrational or perverse.[37]In truth, although this particular costs decision, that is to say in relation to the discussion over Mr Masters' unavailability, was made in favour of both the Council and GBM, it has very little impact. On any assessment it seems to me those costs will be limited to that part of the day, said to be the morning, which were actually taken up with the discussion with Mr Masters about why he could not attend on the 31st and the failure to appoint other counsel and the effect of that. Certainly no-one is suggest that it could extend beyond the costs of the morning. Other Matters[38]I now mention other costs quantum matters. On the more substantial costs decisions and grounds in relation to noise and ecology, the Inspector awarded the Council all of its costs of the appeal from 2nd March 2010 onwards. However, it is common ground that even if it withdrew its objection in principle to the appeal so that an inquiry was not necessary, at an earlier stage there would still have to have been some costs incurred after 2nd March in relation to matters of condition, and those costs cannot be recovered. In truth, any assessment will have to focus on the Council's incremental savings on costs being the difference between its costs which it did incur and those which it would have incurred had all the material been produced before 2nd March and its role limited to the question of conditions and the shape which the appeal then took. All of that is a matter to be determined at a detailed costs assessment.[39]For those reasons, this claim for judicial review is dismissed. Addendum: The correct route to the challenging of costs awards made by inspectors on section 78 appeals[40]The issue was whether it was possible to challenge such costs awards under section 288. The matters on a section 288 appeal included any action on the part of the Secretary of State as mentioned in section 284(3). The matters in section 284(3) include any decision "on an appeal under section 78". Section 79(1) refers to "on an appeal under section 78", therefore the same words were used. Section 79(1) is concerned only with substantive orders on the appeal. There was no need for section 79 to include a power to award costs since that was already contained in the Secretary of State's general powers under section 255 of the 1972 Act, and that was the power exercised here.[41]In my judgment, the words "on an appeal" means those orders contemplated by section 79 dealing with substantive matters and not section 255. I therefore rejected Mr Masters' contention that "on" here means "arising out of" or "connected with", or some such. Neither the statutory context nor any other wider purpose would entail that construction.[42]Further, I am supported in my view that section 288 is not the correct route by the observations of Sir George Newman in the Dedames case [2008] EWHC 2770, where at paragraph 70, in the context of a section 288 appeal, he said:
"So far as the costs are concerned, there are no judicial review proceedings in being in respect of the costs challenge. In order for there to be a costs challenge there must be judicial review proceedings."
I also rely upon what is said in the planning encyclopedia at section 288.25 by way of commentary, which refers to:
"... so for an application in respect of an award of costs against a council though since the costs of judicial review were likely to be equal to or exceed the costs of the Secretary of State, parties should think long and hard before deciding to seek leave to move for judicial review."
Therefore making it plain that the editor's view was that judicial review was the correct route. Then, importantly:
"The decision whether or not to make an award of costs was pre-eminently a discretionary matter and the inspector who actually heard the evidence was in the best position to judge. Only very rarely would it be proper for the court to strike down such an exercise of discretion."
I wholly endorse those final comments.[43]The judicial review route as the only route to challenge makes particular sense here because there is the very useful first hurdle of permission which any party seeking to challenge costs will need to surmount before it can take matters further.

JUDGE WAKSMAN: I will now hear counsel on any consequential matters.

[45]MR WHALE: I am very grateful. In terms of the costs of these proceedings, the Secretary of State applies for his costs. A costs statement has been served but I am not sure if one has reached your Lordship.

JUDGE WAKSMAN:

[46]No. It may have reached the court office but I am afraid I have had nothing since we had the hearing, whenever it was.[47]MR WHALE: Can I hand a copy up please. The claimants have got a copy.

JUDGE WAKSMAN: Mr Masters, do you object in principle to paying the costs?

[49]MR MASTERS: Not in principle, my Lord. I cannot.

JUDGE WAKSMAN: I always ask, you never know.

[51]MR WHALE: That is helpful. My Lord, I do not know to what extent, if at all, there will be any debate as to quantum, but I just make one or two brief points lest the need arise. You will recall obviously that costs have been incurred on the judicial review or section 288 point, and we have entered into correspondence as to that and we have succeeded on that point. The second point I make is that really very late in the day, 23rd March I think it was of this year, the claimant served the two detailed witness statements and exhibits to which Miss Lewenstein on behalf of the Secretary of State responded, and I just ask you to bear those two points --

JUDGE WAKSMAN: That was Mr Brown and?

[53]MR WHALE: And Mr Hook.

JUDGE WAKSMAN:

[54]Yes, I forgot to mention Mr Hook, but of course I read his as well. Did that cause additional cost?[55]MR WHALE: It did, my Lord, because, amongst a number of things, assertions were made as to Miss Sheikh of counsel who had acted for the Council. That caused us to make enquiries and caused us, not simply for that reason, but in part to put together a witness statement dealing with it that. I just put those two markers down, so to speak. I am hoping that quantum will not an issue, although I suspect it may be. Obviously I can address you further once you have had a chance to hear from Mr Masters.

JUDGE WAKSMAN:

[56]On the hourly rates for the purpose of the guideline to the summary assessment of costs, this is taken from which band as far as firms are concerned? It is not going to be London, is it?[57]MR WHALE: I am going to have to check that, if I may (Pause). I am afraid I cannot help.

JUDGE WAKSMAN:

[58]We will see if Mr Masters takes a point on that. It is certainly well within the --[59]MR MASTERS: My Lord, I do not take a point on that, if that helps.

JUDGE WAKSMAN: Let me hear from Mr Masters.

[61]MR MASTERS: My Lord, we do object to quantum. I accept -- although my learned friend's rebuttal evidence were in extremely late, in fact they had more time, I am not going to take a point on that. If you look at the attendance on others, which comes in that section -- matters arising, I do not deal with, but that is dealt with in attendance on others. If you go to work on documents, I just find this excessive. It totals 19 hours and £3,000 for what is a very small bundle, and the attendance on others is dealt with elsewhere, which I am not objecting to. My Lord, that is extremely excessive and should be halved.

JUDGE WAKSMAN: That is about £3,000 as claimed there.

[63]MR MASTERS: You know the bundle is not exactly huge, and I do not think my Lord has taken 19 hours in coming to a view on this, and that is, I am afraid to say, in my view excessive. That is the only point I take.

JUDGE WAKSMAN: What about that? It does seem rather a lot.

[65]MR WHALE: Well, my Lord, this case has been complicated by the fact that, putting it crudely, we have not had an inspector because the Inspector left the Inspectorate around about a year or so ago and so the Treasury Solicitor -- and, take it from me, the file must be door-stopper size -- has really had to make a lot of the running in that regard and really get to the bottom of what was really quite a complicated chronology in terms of all of these reports, when they were filed and ecology and all manner of things, and that explains why the work is of that extent. I would also make the point that part of the work on documents has included the Secretary of State, Miss Lewenstein behind me, doing the witness statement in response to the two that came very late in the story. So in my submission if you are to make any inroad in at all it should be nothing of the order of one half, having regard as well to some of the ways in which this case has twisted and turned and, without wanting to be unduly critical, some of the shortcomings on the claimant's side.

JUDGE WAKSMAN:

[66]I follow that. I think there ought to be some reduction because the actual events were set out fairly clearly in the reports, but not as much as Mr Masters suggests. £6,000 will be the assessment, so I am taking off £871.[67]Then the next matter to deal with is time to pay. Normally it is 14 days. Do you want to say anything about that, Mr Masters?[68]MR MASTERS: My Lord, my client could not possibly pay within 14 days. My client is going to ask for six months.

JUDGE WAKSMAN: How long?

[70]MR MASTERS: Six months.

JUDGE WAKSMAN: Is there any evidence before me --

[72]MR MASTERS: I have never known a court in this instance to go into time to pay, it is collected in the normal way.

JUDGE WAKSMAN:

[73]Sorry, I am not with you, "it is collected in the normal way". If I do not put a time limit on it, it is enforceable immediately. I do costs assessments all the time, Mr Masters. The approach is the same. I have to fix a time, otherwise if I do not fix a time it is like any other judgment --[74]MR MASTERS: I understand, my Lord, I am probably not thinking clearly.

JUDGE WAKSMAN:

[75]If I did not do anything, you say collect it in the usual way, they might be knocking at your door tomorrow. You do not want that.[76]MR MASTERS: No, my Lord.

JUDGE WAKSMAN:

[77]I think what you need to do is tell me a little bit more about why you need as much as six months, because I do not know what your client's financial is, apart from the fact she has planning permission for this site.[78]MR MASTERS: It is slightly difficult. The site is not owned by her, for a start. The planning permission is in her name and to that extent she does not benefit. Her main employment, my Lord, is in training and passing dogs over to the security service.

JUDGE WAKSMAN: Right, so she is running a business.

[80]MR MASTERS: She is running a business in that sense, but not in the sums that are involved. I am told that to get the sort of monies involved with her assets will take some time.

JUDGE WAKSMAN: Does she have a house?

[82]MR MASTERS: No.

JUDGE WAKSMAN: Where does she live?

[84]MR MASTERS: She lives with her former husband, or partner.

JUDGE WAKSMAN:

[85]Right. She lives with her former husband. Does she live in a house, or is she in a caravan as well?[86]MR MASTERS: She lives in a house, but it is not her house.

JUDGE WAKSMAN: Does she have any assets? Does she have a car?

[88]MR MASTERS: She has a car.

JUDGE WAKSMAN:

[89]Yes. She is running this business, which is presumably an established business. What does she make from it?[90]MR MASTERS: She is not employed as such, she is contracted. She reckons she earns about £15,000 a year.

JUDGE WAKSMAN:

[91]She earns about £15,000 a year, but presumably -- of course you do not have to own the land in order to apply for planning permission, but presumably she went to all the time and trouble of expense of doing so because she was going to make something from it, otherwise she would not have done it.[92]MR MASTERS: As I understand it, she was assisting her former partner. It was a quid pro quo.

JUDGE WAKSMAN: He might assist her in the question of costs, might he not, it is all the same?

[94]MR MASTERS: My Lord, he might.

JUDGE WAKSMAN:

[95]Yes. Well, I have your submissions. Thank you very much, Mr Masters.[96]MR WHALE: My Lord, the Secretary of State is prepared for some leeway, some departure from the norm. My submission would be £2,000 within 21 days and the balance within 56 days. That is the order we seek, but I will say in open court that if you do make that order and the claimant is having some genuine difficulties, of course she can approach the Treasury Solicitor and see if some other accommodation can be made.

JUDGE WAKSMAN:

[97]What I am going to do is go a little bit further than that, simply because one wants to avoid repeated applications to the court. What I am going to do is give them three months. That seems to be the absolute outside of what I can do here and the Secretary of State would be perfectly entitled to stand on that period, and if the claimant is going to come back and say that is completely impossible they will have to make an application to the court.[98]MR MASTERS: My Lord, of course we are only dealing with the costs of this hearing, the costs awarded in relation to the underlying claim are immediately payable, which are substantially higher.

JUDGE WAKSMAN:

[99]I follow all of that, but that was the position in any event and unfortunately, despite, if I may say so, your extremely eloquent and succinct submissions, she has failed on this account and therefore these costs have to be dealt with. It is pretty rare unless there is something exceptional to go near three months, but that is what I am doing here.[100]MR MASTERS: I am not arguing about that, my Lord, I just wanted to explain that in terms of ability to pay, it is not just the ability to pay the £6,000 --

JUDGE WAKSMAN:

[101]I follow that. That is the order. I am just going to formalise what the order is.[102]The order is:(1) claim dismissed;(2) the claimant to pay the first defendant's costs of the application summarily assessed at £6,000, to be paid on or before 27th July 2012. As I say, this is not part of the order, Mr Masters, but if your client is really in difficulties about that, providing she does so timeously, she will be able to make an application to the court.[103]MR MASTERS: I am grateful.[104]My Lord, there is the point of leave to appeal. I can give you reasons straight away. My Lord, part of my argument was failure of reasons, and in particular it related to the fact that the learned Inspector had not reminded herself of paragraph 20, and my submissions in that paragraph are that one of the reasons why the noise matters were served was because of the tonal variation. My Lord criticises me because that is not in her reasons elsewhere, and I say my Lord has failed to apply the principles of South Bucks v Porter (no 2), that reading all the decisions as a whole and not just in one place or another. One would have expected on the costs decision, for the reasons set out in paragraph 20 and the issues there which she was clearly aware of, and which the evidence was on which she was addressed, is the error my Lord has failed to understand.

JUDGE WAKSMAN: Yes.

[106]MR MASTERS: I do not mean that as against you, my Lord, you have to set it out and I am robustly setting out the reason. I hate doing this, my Lord, but the court requires us to do it in this way.

JUDGE WAKSMAN:

[107]You should not hate to do it, and I do not hold it against you, but I am not giving you permission.[108]MR MASTERS: I know, my Lord.

JUDGE WAKSMAN:

[109]You can by all means try your luck with the Court of Appeal, and just in order to do that, let me just complete the form. Do sit down.[110]The order is(1) claim dismissed;(2) the claimant to pay the first defendant's costs of the application summarily assessed in £6,000, to be paid on or before 4pm on 27th July 2012;(3) permission to appeal refused, and I will just give the reason for that.[111]MR MASTERS: My Lord, there was one other matter in relation to the time period for appeal. I am instructed to appeal, I will want to formally advise and explain to the client my view on that. I wonder if you could extend the time period, purely because pressure of my own work at the moment, to 28 days. I should tell you that there are two other cases in which I have to deal with appeals arising, as well as having a very busy practice, and it would assist me, my Lord, if it was extended to that time in order that I can properly advise my client on my views.

JUDGE WAKSMAN:

[112]You are only asking for another seven days, 28 days instead of 21. Mr Whale, do you resist that?[113]MR WHALE: Not at all.

JUDGE WAKSMAN:

[114]The next part of the order will be time for appeal extended to 28 days from today's date, that is from 27th April.[115]MR MASTERS: I am grateful.[116]MR WHALE: My Lord, I did have two other matters in terms of tidying up. I just wondered if paragraphs 1 and 2 of the order, before all the orders that you have just made, should in fact be in these terms:(1) Section 288 application treated as claim of judicial review;(2) permission to apply for judicial review granted. And then everything that you have ordered.

JUDGE WAKSMAN:

[117]I think that is right. So the order will be:(1) Section 288(8) claim treated as application for judicial review;(2) Permission granted.[118]MR MASTERS: You did say that it your judgment.

JUDGE WAKSMAN: I did, but he is right.

Cited in 4 later judgments