Bell v Secretary of State for Communities and Local Government [2012] EWHC 2612 (Admin)

[2012] EWHC 2612 (Admin)

Case No CO/4204/2012

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Sitting at:

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

Date Tuesday, 14 th August 2012

M60 9DJ

Before

HIS HONOUR JUDGE PELLING QC

(SITTING AS A JUDGE OF THE HIGH COURT)

Between

BELLClaimant

SECRETARY OF STATE FORDefendant

COMMUNITIES AND LOCAL GOVERNMENTDefendant

(DAR Transcript of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

Official Shorthand Writers to the Court)

The Claimant appeared in person. for in person

Ms Blackmore (instructed by the Treasury Solicitor) appeared for Defendant.

Judgment

[1]This is an application under section 288 of the Town and Country Planning Act 1990 in relation to a decision of a Planning Inspector made on an appeal by the claimant from a decision by the Barrow Borough Council, the relevant local planning authority, to refuse a planning application made by the claimant, Mr Timothy Bell, concerning premises known as Crown Court House, 143 - 145 Market Street, Dalton in Furness in Cumbria.

[2]The building is Victorian in appearance, and is centrally located within Dalton in Furness. At the time when it was first acquired by the claimant it was in a poor and abandoned condition, as is apparent from the photograph at Appendix 1 to the claim form. As its name implies, the building had previously been used both as a courthouse, a police station and offices. An earlier planning application by the claimant to change the use of the premises to a restaurant and guest house had been successful. Extensive works of modernisation to the ground floor part of the premises were completed over a period of some three years at significant cost. Currently, the ground floor of the building is being used as a restaurant, although it is suggested that this is not commercially viable unless combined with the guest house facilities, which it was always intended should be constructed on and operated from the first and second floors of the building. It would appear from what I have been told that some construction work has been carried out to the first and second floors.

[3]Currently, the windows on the front and side elevations on the first and second floors consist of a combination of old original window frames, some replaced window frames, and I think two, or possibly three, frames manufactured from uPVC. What the claimant wished to do was to replace all 43 windows with a particular new range of uPVC windows because, he maintains, they offer very considerable advantages, including but not limited to the fact that they will not require redecoration every five years, as wooden frames would require; would have a life of about 35 years; and would not warp so as to affect their ability to exclude the weather and keep heat within the building. He maintains also that the heat preservation quality of these units is significantly higher than could be achieved even with double-glazed panels in traditional wood frames.

[4]The planning application, which appears at Appendix 5 and 6 to the claim form, was made on 28 September 2011. The proposed work in respect of which planning permission was sought is described in paragraph 3 of the application as being “Replacement of 1st and 2nd floor doors and windows to PVC to meet safety and installation standards”. The application refers to the fact that the existing windows consisted of three white PVC windows with the remainder being wooden sash windows, and that the proposed replacement windows were PVC white. Attached to the application, as is referred to in section 10 of the application, was:

“Original side and front elevation drawings, technical data on superior thermal insulation properties of new high spec PVC windows.”

[5]Aside from a situational plan, the attachments to the application consisted of a drawing entitled “Scale 8 foot to 1 inch”, which is in the bundle and is marked 611/0675118. It is a drawing of the front elevation of the subject building, but with various handwritten amendments made to it. The handwritten amendments made on it appear to suggest that at first-floor level on the left and right-hand sides of the front elevation, the existing windows were to be replaced with doors, so as to create a balcony from the first-floor rooms concerned on to the flat roof of the ground floor extended windows.

[6]The application duly came before the Planning Committee of the LPA on 15 November 2011. Before the Committee was a summary prepared by the local planning officer concerning the application. The advice of the planning officer referred specifically to policy DI5, which was to the following effect:

“Alterations and additions to a Listed Building, or those properties affected by the Article Four Direction will not be permitted if they adversely affect its character and setting or its architectural or historic features. In particular, the following alterations are likely to be unacceptable, particularly where they pose a conflict with the traditions of the building type or area; [...] b) the use of uPVC or aluminium or other non-traditional materials or styles for windows and doors ...”

[7]There was a summary of the consultations undertaken as part of the planning process. That included a response from the town council to this effect:

“These premises are one of the main features in the street scene and lies within the conservation area. Given the importance of the appearance and historic significance of this building the Town Council would expect timber doors and windows to be reinstated.”

[8]There was a response from the Victorian Society which is important because, it is submitted by the claimant, it contained a misapprehension which carried through the whole process, and which he submits either of itself or in combination with other points made vitiate the determination of the Planning Inspector. The Victorian Society’s response is summarised as being as follows:

“143-145 Market Street is a fine and prominent building, which is an important element of the conservation area. It is very unfortunate that some windows have already been replaced in uPVC; the current proposals would compound the damage. uPVC is a wholly inappropriate material for use on historic buildings. Contrary to the assertion in the applicant’s design and access statement, uPVC windows look very different to timber, with a shiny finish and much thicker sections than the delicate sashes currently in place. This is very obvious when you look at the vast differences between the original and replacement windows already on the building. The proposals to remove the central window mullions on the outer first floor windows on each end of the main elevation and insert doors to new balconies would also damage the architectural integrity of the building and the character of the conservation area. We recommend that you refuse consent.”

[9]The Ancient Monument Society is a statutory consultee. They expressed concern that the Cumbria Business Environment Network was recommending the use of such windows, and drew attention to English Heritage’s published advice on domestic energy assessments, and advised review of the application against that advice.

[10]The planning officer’s report in essence recommended rejection of the application. Having summarised the nature of the application in the first paragraph as being “the replacement of the first and second-floor windows and doors with uPVC-framed units”, the planning officer identified as the main issue the effect of the proposed development upon the conservation area, drawing attention specifically to section 72 of the Listed Buildings and Conservation Area Act 1990, which places a statutory duty on the LPA to apply special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. The report acknowledged that the building design incorporated a combination of casement and sash windows, based in relation to sash windows on a six pane over two type design. There was an acknowledgment that the proposed items for installation represented an advance in technology over what had previously been produced as uPVC windows, and the officer recorded having investigated recent decisions in relation to these more recent advances. He drew attention to two decisions in particular. One related to a listed building in Appleby. Since the subject property is not a listed building, it seems to me that the decision in relation to the Appleby premises is unlikely to be helpful. However, he also drew attention to a case concerning a large detached Victorian building in Exeter situated within a conservation area, and recorded the Inspector in that case as having concluded that:

“The uPVC replacement windows, that the appellant wishes to install, are intended to be sympathetic to the building and the wider CA [conservation area]. I accept that they would be less bulky and awkward in appearance in some earlier designs, and their sliding sashes would reflect existing arrangements, but their sterile finish would be unlike painted wood and this would undermine the building’s contribution to the CA.”

The planning officer concluded in these terms:

“The use of similar systems here while providing architectural uniformity to the building, would detract from its traditional character by use of inappropriate material and detailing. Approval would run contrary to national and local policies.”

A recommendation was made that the application be refused and the LPA decided to follow that recommendation and refused the application.

[11]From that decision the claimant appealed, and an issue that arose in early course was whether there should be a hearing or enquiry, or whether the matter could properly be dealt with under the paper procedure. The decision taken by the Planning Inspectorate was to proceed using the paper procedure. The consequence of this was that representations could not be made other than in writing, and any physical examination was limited to a site visit, rather than as an opportunity to address the merits of the appeal.

[12]The Inspector rejected the appeal in a short appeal decision running only to 11 paragraphs over two pages. The issue that was identified by the Inspector was whether the proposal would conserve or enhance the character or appearance of the conservation area concerned. She explained why in her view there would be no such enhancement. At paragraphs 3 and 4 she explained the current arrangement, and then at paragraph 5 she recorded that the windows that it was proposed should be used:

“...has features that reflect the characteristics of traditional timber frame windows. These include a traditional opening method, structural putty bars and extended horns. There is an optional timber-look finish that appears not dissimilar to the timber grain of modern timber framed windows, but less similar to the uneven appearance of many historic windows.”

At paragraph 6, the Inspector said this in relation to what was proposed:

“...the proposed replacements would appear heavier in appearance with a thicker frame and sash compared to the fine and delicate features of the original timber windows. The windows would be at upper floor level and not subject to close-up external scrutiny. Nevertheless there would be significant and clearly noticeable discrepancies with the loss of the traditional windows that would detract from the architectural and historic integrity of the building.”

In relation to the stone mullion issue first identified by the Victorian Society in their response, she said this at paragraph 7:

“Furthermore on the front facade the central stone mullions of the 2 outermost windows on the first floor would be removed. The mullions would be replaced by 3 tall panes incorporating a central door opening onto a balcony. These alterations would add to the loss of traditional features and further undermine the architecture and historic integrity of the building.”

[13]In support of the appeal, the claimant had relied upon the use of windows manufactured by the manufacturer of the windows he proposed to use at the former Conservative Club in Ulverston, a building located some three miles from the subject site, but in a different LPA area. The Inspector’s view in relation to that, and for that matter in relation to the other decisions referred to by the planning officer in his report to the Committee, was set out at paragraph 8 of the decision in these terms:

“I have taken into account other examples drawn to my attention including the new windows at the former Conservative Club at Ulverston. I have also considered other appeal decisions highlighted by the Council. However, I am conscious that the circumstances of this appeal proposal differ from other examples. I have therefore judged this proposal on its own individual merits based on the submissions and my observations at the site visit.”

She took account of the benefits of refurbishment and reuse of the upper floors of the building in paragraph 10; she took account of the existence of match funding at the time when the application was originally made. She took account of the fact that the local funding body have advised replacement PVC windows, but noted that the funding and grant regime was no longer applicable. She attached significant weight to these issues, but concluded that they were outweighed by other issues, and noted in passing that other measures could be put in place to upgrade the thermal performance of traditional windows.

[14]The Inspector’s overall conclusion was that identified in paragraph 9 of her reasons, which was to this effect:

“Taking all these matters into account, I conclude that the proposal would neither preserve nor enhance the character and appearance of the Dalton-in-Furness Conservation Area. The proposal therefore conflicts with the objects of Policy D15 of the Barrow-in-FurnessBorough Council Local Plan Review 1996-2006. However, given the distance across the street to nearby Listed Buildings, I find no material harm to the setting of these Listed Buildings.”

[15]Being dissatisfied with that outcome, the claimant commenced these proceedings. The application is supported by a statement from the claimant. The grounds upon which he wishes to advance this challenge are principally identified in his statement. The Inspectors’ decision is challenged principally by reference to what the claimant maintains are numerous material factual errors in the appeal decision, but also by reference to what is alleges was a failure to give proper consideration to the local plan, and a failure to give proper reasons for the decision by the Planning Inspector.

[16]The principles of law that apply to an application of this sort have not been disputed by the claimant before me, and are summarised in the skeleton argument filed on behalf of the defendant. In relation to alleged mistakes of fact, reference has been made to the decision of the Court of Appeal in E v SSHD

[2004] EWCA Civ 49

as summarising the applicable principles. They were summarised by counsel in her written submissions as being as follows:

“In order to establish a mistake of fact, a Claimant must establish that (1) the tribunal whose decision was under appeal had made a mistake as to an established fact which was uncontentious and objectively verifiable, including a mistake as to the availability of evidence on a particular matter (2) that the appellant or his advisers had not been responsible for the mistake (3) and that the mistake had played a material though not necessarily decisive part in the tribunal’s reasoning; and that, (4) accordingly, if the new evidence were admitted the court would be entitled to consider whether the tribunal had made a mistake of fact giving rise to unfairness as to amount to an error of law.”

[17]In relation to the reasons challenge, attention is drawn to the well-known summary of the applicable principles contained in the opinion of Lord Brown in South Bucks District Council v Porter (No 2)

[2004] 1 WLR 1953

which is to the following effect:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

[18]Overall, the point which is made on behalf of the defendants, which arises in every 288 challenge, but which bears repeating in a case of this sort, given the way in which the claim has been advanced, is to draw attention to the salutary warning from Sullivan J, as he then was, in Newsmith v Secretary of State for the Environment, Transport and the Regions

[2001] EWHC (Admin) 74

, where at paragraph 6 he said this:

“An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.”

[19]In relation to judgments arrived at by Planning Inspectors, reference is made to the opinion of Lord Hoffman in Tesco Stores v Secretary of State for the Environment

[1995] 2 All ER 636

in relation to the clear distinction that has to be drawn between an assertion that the Inspector has failed to take into account relevant matters and the weight that is to be attached to them. As Lord Hoffman observed:

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.”

[20]Against that background, I now turn to the various detailed grounds relied upon by the claimant. As I have already indicated, the challenge breaks down into three groups of grounds. The first concerns what are alleged to be material errors. Those are identified in paragraph 19 and following of the witness statement in support of the application. The first complaint that is made is that the Inspector was wrong to conclude that “the proposed replacements would appear heavier in appearance with a thicker frame and sash compared to the fine and delicate features of the original timber windows”. The challenge to this is advanced on the basis that all that the Inspector examined was a sample window which had not been installed, and she failed to take into account the fact that at any rate the outer frame of the window would in part be rebated within a stone void, and thus would appear thinner than it appeared when simply looking at the sample.

[21]In my judgment, this is a challenge which the claimant cannot hope to succeed in. The Planning Inspector is a highly qualified planning expert. The notion that the Planning Inspector would not take into account the fact that the windows would be inserted into an existing window void is, in my judgment, entirely unsustainable. In any event, the challenge fails to pay appropriate account to the actual reasoning of the Inspector. She did not proceed exclusively by reference to the width in section of the outer frame of the units to be installed; although she made reference to the fact that there was a thicker frame and sash, the point is that she took account of the appearance in totality of the unit concerned. She took account of the absence, as she judged it, of the fine and delicate features of the original timber windows, and considered that significant and clearly noticeable discrepancies when comparing the proposed installation unit with the traditional windows that were present was a significant factor which, in her judgment, would detract from the architectural and historical integrity of the building.

[22]Thus, I am not satisfied that she failed to take account of a material factor; rather, paragraph 6 of her reasoning in my judgment reflects a judgment made following an inspection of the item concerned. There was no obligation on her to record the fact that the frame would be installed in a void, and thus the outer frame would appear thinner in section than it did when viewed in isolation. In any event, her reasoning was rather more fundamental than merely referring to that. She was concerned with the overall impact of the units when compared with what was being replaced. That was a planning judgment she was entitled to arrive at; it is not a material omission or error.

[23]The next issue concerns the Inspector’s conclusion at paragraph 7 opf her Decision that the appeal should fail because the proposal included the removal of the central stone mullions of the two outermost windows at first-floor level, and their replacement with doors. This has been the subject of considerable controversy before me, because it was submitted by the claimant that it was not his intention to remove the mullions concerned, and indeed he maintained before me that the application was not in any way concerned with doors.

[24]The difficulty about that submission from his point of view is that, as I have already explained, the application referred in terms to the replacement of first and second floor doors and windows, although he explained to me that what he intended to refer to there was some fire doors at the rear of the premises, not what was proposed at the front. However, attached to the application was the drawing to which I made reference earlier in this judgment. That drawing refers with handwritten notes to the first floor windows to which the Inspector makes reference. The handwritten notes refer to a balcony and to “new doors”. I should also say that there appear to be hand deletions in relation to the first floor windows concerned which suggest the elimination of the central mullion, which appears in the second floor windows above each of the windows that I am now referring to. It was submitted by the claimant that this was a material error, because it was never intended that the mullion should be removed, and it was intended, as I understand it, that only a single door should be installed so as to facilitate the use of the flat roof and balconies.

[25]In my judgment, there are a number of answers to this point, each of which are relied on by the defendants, and each of which provide, in my judgment, a complete answer to this point. First and foremost, at paragraph 7, the Inspector refers to the incorporation of doors as being a departure from the traditional features that were present in the building as it is currently structured. As I understand the submissions that were made by the claimant he proposed that a door in each window should be inserted. That involves a departure of the sort identified by the Inspector on any view. More fundamentally, however, the issue concerning the removal of the central stone mullions, and the question whether or not it was intended that doors should be inserted, were matters which appear on the face of the claimant’s own planning application. If, as the claimant now maintains, the approach adopted in paragraph 7 was erroneous because it was not intended that the central stone mullions be removed, and it was not intended that two doors would be installed in each of the windows concerned, but rather only one or possibly none at all, that was an error that arose only as a result of the claimant’s own mistake, and thus is not a relevant mistake for present purposes.

[26]I asked the claimant in the course of reply submissions as to whether or not he was aware of the objections that were being taken to his application when he came to address the planning meeting. He told me that he was aware that the objection based on the removal of mullions was mentioned in the course of the meeting. He maintains that it was not correct, and was known by him not to be correct, but nonetheless was not corrected at that meeting, but maintains that the application itself was nothing to do with the removal of mullions. In my judgment, once it is accepted that the issue had been mentioned, and I accept it had been, not merely because the claimant says so but because it appears on the face of the report of the Planning Committee, but was not corrected in circumstances where the claimant was present and had the opportunity to address the Planning Committee, the reliance that was thereafter placed by the Planning Committee and the Planning Inspector on the point is something that is attributable to an error on the part of the claimant.

[27]Aside from this point, however, there is a more fundamental point which in my judgment renders this point in effect academic. Any fair reading of the reasoning adopted by the Inspector makes it abundantly clear that her primary reason for rejecting the appeal focused on the quality and attributes of the proposed replacement window units for the 42 windows at the subject premises (see paragraph 6 in particular of the reasoning). Paragraph 7 makes it abundantly clear that the issue concerning the stone mullions and the installation of doors at first floor level was a subsidiary reason, and the way in which paragraphs 6 and 7 of the reasons are expressed makes it abundantly clear that the application would have failed notwithstanding the issues identified in paragraph 7. Thus, even if I am wrong so far in my analysis concerning the effect of the alleged mistake, it cannot be that the mistake was a material one.

[28]The next mistake issue is what is alleged to be an erroneous and contradictory approach concerning the perceived effect on the conservation area when compared and contrasted with the Inspector’s view that the distance across the street to nearby listed buildings meant that no material harm to the setting of the listed buildings had occurred. In my judgment, this is a point which is, again with great respect, unarguable because it is not comparing like issues. The Inspector was observing that the proposed works would not impact the setting for the listed buildings concerned. That does not affect the entirely different issue concerning the impact of what was proposed on the character and appearance of the conservation area. Her reasoning concerning why in her judgment there was an adverse effect on the character or appearance of the conservation area by reason of what was proposed was adequately explained in her reasons, applying the principles concerning adequacy of reasons identified in the authorities referred to earlier in this judgment.

[29]Likewise, reference is made to the issue concerning the recommendation of CBEM concerning the use of such windows. The Inspector clearly took that into account, because she identifies it specifically as an issue to which account was to be given in paragraph 10 of her reasoning. She said she took it into account, and the weight that she chose to give to it when arriving at an overall conclusion was entirely a matter for her. A submission that her approach to that issue was either was of itself irrational in the public law sense, or rendered the overall decision making irrational is unarguable.. In those circumstances, in my judgment a challenge based upon a failure to take into account material facts is one which must fail.

[30]The second group of grounds of challenge is that the Planning Inspector failed to give proper consideration to the objectives set out in the local plan. Particular attention is drawn by the claimant in his submission in relation to this issue to policy D17, which states as follows:

“Applications for the re-use of empty Listed Buildings or prominent buildings in Conservation Areas will be given favourable consideration provided the redevelopment will not result in the significant loss of the property’s special architectural details or its historic fabric.”

[31]In my judgment, that policy is immaterial to the application under consideration. The application was not concerned with the reuse of empty listed buildings directly, but rather with a change to the fabric of the building, which was judged by both the LPA and the Planning Inspector to give rise to an adverse effect on the architectural details or historic fabric of the building concerned. Thus, it seems to me policy D17 is at best neutral to the application, and possibly a policy on which reliance could safely have been placed by the Inspector.

[32]Similarly, reference is made to policy D14 as being that the authority’s main aims were, amongst others:

“To encourage the full use of Listed Buildings and ensure that proposals to alter or change their use are not detrimental [to] their character or special interest.”

The building was not a listed building, and thus that paragraph is of no application. However, reliance is also placed I think on the aim to:

“...restore and improve the townscape, especially in the Conservation Areas.”

That is not in issue in this present application. The issue is whether or not the effect of what was proposed would be adverse to the overall character of the conservation area. In any event, it is perfectly clear from the reasoning adopted by the Inspector that full regard was had on the one hand to the need, or the positive benefits to be obtained, from the refurbishment and reuse of otherwise redundant buildings (see paragraph 10 of the reasoning), which was to be and was balanced against the need also to take account, applying section 72 of the Listed Buildings and Conservation Area Act 1990, of the desirability of preserving and enhancing the character or appearance of the conservation. The outcome of that balancing exercise was a matter of planning judgment, taking account of all material factors. I am satisfied that this is precisely what the Inspector did, and that such is plain from the terms of her decision when read a s a whole. That judgment may not be one with which the claimant agrees, but that is not the issue that arises in a case of this sort.

[33]Finally, there is a challenge to the Planning Inspector’s reasoning. That is identified in paragraphs A to C under the heading relating to reasoning in Mister Bell’s witness statement. He complains that although at paragraph 8 the Inspector has referred to the new windows at the former Conservative Club at Ulverston, the Inspector fails to explain how the circumstances of the subject case are different from other examples, or provide details of other appeal decisions highlighted by the council. In my judgment, that is erroneous. The other appeal decisions highlighted by the council are those referred to in the Planning Officer’s report referred to earlier in this judgment.

[34]So far as the challenge to the reasoning of the Inspector is concerned, in my judgment that is erroneous. The relevant reasoning is contained in paragraph 8. The essence of her reasoning is that while she has taken account of other examples which have been deployed before her, both by the claimant in relation to the former Conservative Club at Ulverston and the examples identified by the Planning Officer in the report to the Planning Committee, she rejects an approach based on those comparables as being an inappropriate way to proceed. She reaches this conclusion because the circumstances of the appeal proposal differ from other examples, as must inevitably be the case, because each conservation area is different, and the assessment as a matter of planning judgment of the impact of a particular proposal on the character or appearance of a particular conservation area is highly fact sensitive. The Inspector say therefore that she had judged the proposal on its own individual merits, based on the submissions and her observations at the site visit. That was an approach she was entitled to adopt, but in any event the reasons challenge is mistaken, because her reasoning as to her approach is entirely clear in Paragraph 8 of her Decision

[35]The end of all of this, regrettably so far as Mr Bell is concerned, is that this challenge must fail. JUDGE PELLING: Yes? MS BLACKMORE: My Lord, I do have an application for costs. JUDGE PELLING: Yes. MS BLACKMORE: I will hand up the summary assessment. JUDGE PELLING: Has it been served? MS BLACKMORE: It has been served in the updated schedule. My Lord, I am just being instructed from behind that the estimate was based on a full day, and of course we have in fact been half a day. JUDGE PELLING Yes. MS BLACKMORE: So there will be a reduction in that. JUDGE PELLING: Of what? MS BLACKMORE: My solicitor is just calculating that. JUDGE PELLING: That is fine. If I can have a figure which comes off the bottom line figure, that will help. MS BLACKMORE: My Lord, we think the reduction will be in the sum of around £600. I can see the global total is -- JUDGE PELLING: Shall we say the global is now £6,000 then. Right. Is there anything you want to say about this at this stage, or do you want to wait until Mr Bell has had his say? MS BLACKMORE: Not specifically, my Lord, other than to say that the claimant was informed at an early stage of the likely costs of the Secretary of State defending an appeal, and that the resulting figure is in the ballpark that he was given. JUDGE PELLING: Yes, first of all, do you accept the principle that you must pay the costs, and secondly, have you any observations to make concerning the sums claimed? MR BELL: I have represented myself to save on costs, and I appreciate that the Inspector is a public body. The real costs to me are going to be far more significant, because we are effectively going on to declare bankruptcy anyway, because this building is unsustainable until it is completed, and I am not prepared to do a hash job of it. So the overall effect for me is, you know, I will not be in this situation. JUDGE PELLING: Right. MR BELL: I will be filing for bankruptcy this week. JUDGE PELLING: Is there anything else that you want to observe or submit? MR BELL: No, I personally think that on your conclusions, that that frame is exactly the same dimensions as the window -- JUDGE PELLING: No, no I am not interested in that at the moment, I am interested in the costs issue, the costs issue. MR BELL: No, that is my situation, I am afraid. JUDGE PELLING: Anything else you want to say? MS BLACKMORE: Nothing, my Lord. JUDGE PELLING: Very good.

[36]This is an application by the successful defendant for the costs of and occasioned by these proceedings. The first issue I have to determine is whether or not the defendant should recover their costs of and occasioned by these proceedings. I invited Mr Bell to make submissions in relation to that issue. All he has said to me is that he intends to file for personal bankruptcy, and in those circumstances has no submissions to make concerning the costs issue other than to observe that he sought to keep costs under control by representing himself. None of these points, either individually or collectively, are relevant to the issue I have to decide, which is who should be order to pay what costs of these proceedings.

[37]As to that, I am required under the Civil Procedure Rules in the first instance to decide who has won. The defendant has won. The second issue I have to decide is whether or not there is any reason to depart from the principle that the party that has won should recover its costs. There is not, because even if an issue-based approach was to be adopted, all relevant issues have been resolved in favour of the defendants. It follows that the defendants would be entitled to the whole of their costs in any event.

[38]I should add that no conduct issues have been raised by the claimant in relation to the costs issue. I record, however, that I was told by counsel that a warning was given to the claimant concerning the likely costs of these proceedings if they remained contested, and that the costs claimed fall within the range that was supplied to the claimant. Thus, it is difficult to see how any conduct issue could arise in those circumstances.

[39]In those circumstances, I conclude that the appropriate order to make is an order that the defendant’s costs of and occasioned by these proceedings should be paid by the claimant, to be assessed on a standard basis or on a summary assessment on the standard basis. Very good, and you are asking me to assess these costs? MS BLACKMORE: Yes, my Lord. JUDGE PELLING: Anything you want me to observe on the figures? MR BELL: Totally extortionate. I never received their skeleton argument until last Monday, and I would imagine the amount of time spent on it has been quite minimal. But this is the sort of fees these guys charge, and I am only a member of the public trying to do my best, and relying on the court system to give a fair judgment. JUDGE PELLING: Yes. I am troubled by the work done on the documents, which totals 15 and-a-half hours, which comes close to two days of work, given that there is a fee claimed for advice, conference and documents from counsel, as well as a fee for the hearing. Two days, or 15 and-a-half-odd hours seems an awful lot of time to spend on documents. MS BLACKMORE: My Lord, if I can just take instructions. (Pause) 40. In relation to my fees, obviously what one has is reading into all of the documents and providing a skeleton argument, and then a fee for hearing. You will be aware that counsel for the Secretary of State is instructed on a strict hourly rate of £80 an hour, and reflects the number of hours taken. Though those figures have of course been reduced somewhat by the less length of time for the hearing, but obviously we have had to travel up from London. The matter of summary assessment is really for my Lord. JUDGE PELLING: Yes, very good. Thank you very much.

Very good, and you are asking me to assess these costs?

[40]I am asked to summarily assess the costs claimed by the Treasury Solicitor in relation to the resistance of this claim by the claimant. The sum claimed now is £6,000, reduced from £6,630 because the hearing was estimated to last all day but in fact finished by about 12.30. The sums which are claimed are modest by commercial solicitors’ standards, because the work has been carried out by the Treasury Solicitor. By the same token, the rates charged by counsel are lower than one would expect in a commercial context, because of the arrangements between the Treasury Solicitors and counsel on the Treasury panel concerning the rates that are to be paid.

[41]Overall, the hours which have been expended in the preparation of this case appear reasonable save in one respect, to which I now turn. Under the heading “Work on Documents”, there is recorded work done as to 1.8 hours at £200 an hour, which appears to be by a Grade B fee earner; 10.2 hours at £160 an hour, which appears to be a Grade C fee earner; £90 an hour for one hour by a Grade D fee earner; and 2.5 hours at £80 an hour by one or possibly two Grade E fee earners. There is no explanation offered in relation to how a total of about 15 and-a-half hours came to be expended on work on documents, other than one I turn to in a moment.

[42]The bundle of papers in relation to this case is, on any view, a small one, and the issues which were raised were simple planning issues which anyone familiar with the planning appeal regime would be able to deal with relatively quickly. On the face of it, therefore, it is difficult to see how a total of four or possibly five people could between them spend 15 and-a-half hours in preparing the documentation, or working on the documentation, relevant to this case, particularly given that counsel was paid for advice, conference and documents, as well as for the hearing itself.

[43]In those circumstances, it is necessary next to note the explanation which is offered. The explanation offered is that in addition to the documents provided by the claimant, it was necessary to check the planning file, and it is necessary then to prepare an advice note for consideration by the relevant officials prior to progressing further in the resistance of the claim. It is to be borne in mind that where costs are awarded on a standard basis, the ability to recover those costs depends upon necessity rather than reasonableness.

[44]In my judgment, whilst it might have been reasonable for advice notes to be prepared so as to enable various officials to consider the position, the necessity for such a step is not made out, particularly when attendances on the client totalling 1.6 hours is recorded earlier in the document. Clearly, some work on documents would be necessary in order to prepare the material for counsel, and I accept that some documents other than those which appear in the bundle might have to be placed before counsel in order that a balanced view could be come to as to how the case was to be conducted. However, I am unable to accept that that work would take 15 and-a-half hours.

[45]In my judgment a total of five hours, which I will allow at £160 an hour, being the Grade C fee earner, is appropriate in the circumstances. Subject to that adjustment, I allow the costs as asked. So if you calculate the figure and insert it in the order, that is where we need to go. Is there any other business? MS BLACKMORE: Not today, my Lord. JUDGE PELLING: Thank you very much. --------------------