Winstanley, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2015] EWHC 3527 (Admin)

Case No CO/4475/2014[2015] EWHC 3527 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday 6 October 2015
Strand
London WC2A 2LL
B e f o r e:
MR C M G OCKELTON
(Sitting as a Deputy High Court Judge)
Between
THE QUEEN ON THE APPLICATION OF WINSTANLEYApplicantv
Between
SECRETARY OF STATE FOR COMMUNITIES & LOCAL GOVERNMENTDefendantROTHERHAM BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofDTI Global Trading asA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Applicant appeared in person for in personMr Mark Westmoreland-Smith (instructed by Government Legal Department) appeared for First Defendant for The Second Defendant was not represented, did not attend
J U D G M E N T
[1]DEPUTY JUDGE: This is an application under Section 288 of the Town & Country Planning Act 1990 challenging two decisions. The first decision is a decision in relation to a tree preservation order made by the Borough of Rotherham in 1990. The second decision is a decision made on appeal by Mr D J Barnes, a planning inspector, the decision date in relation to that appeal being 23 July 2014.[2]The application has a long procedural history; I do not need to set it out in detail. Suffice it to say that there have at all material times been doubts about the precise dates and content of the service of documents on, I think it is fair to say, both sides, that is to say both Mr Winstanley and the Secretary of State for Communities and Local Government. The local planning authority, Rotherham Borough Council, take, as is usual, no active part in these proceedings although they are the second defendant.[3]The procedural history is lengthy but - following decisions by Mr Price Lewis QC, sitting as a Deputy Judge of this Court in spring 2015, and a further decision by Mr Justice Ouseley in the summer - a timetable was fixed for the submission of documents by both Mr Winstanley, who appears in person, and by the representatives of the first defendant the Government Legal Department. Mr Winstanley perfectly understandably argues that in the light of what appears may have been defaults by the defendant in responding to proceedings as issued, the defendant ought perhaps now not to be allowed to defend; but as I have explained to him, bearing in mind that these are public law proceedings and not private law matters, and bearing in mind also that matters of timetable have been reviewed and made the subject of specific order by two previous judges, it does appear to me that it is right to treat the defence which has been now put in as effective; to ignore the previous difficulties and not to try to attribute any blame for them but simply to get on with the job of deciding the presentapplication.[4]The application raises two issues. It is convenient to deal first, albeit briefly, with that relating to the tree preservation order. The tree preservation order was made in 1990. The process for challenging a tree preservation order then and, so far as I am aware, now was an application for the order to be set aside made within six weeks after the order was made. The time for making such an application obviously expired many years - in fact more than two decades - ago. For that reason, as Mr Price Lewis pointed out and as Mr Justice Ouseley affirmed, in so far as the present challenge relates to the tree preservation order, it falls to be dismissed. And I dismiss it.[5]As Mr Price Lewis pointed out, there is a process for taking up with the council the question of whether an extant tree preservation order ought to be varied or revoked. Mr Winstanley's position is that he has begun that process. In his bundle (at page 53) is a letter which I have read which raises the issue. But, as has also been pointed out, the process then needs to be in the form of a decision made by the council, whether positive or negative in the applicant's terms, and then if appropriate further proceedings against the council in relation to that new decision might be commenced. But that is not this case. The present proceedings do not and could not properly challenge the tree preservation order. So far as they rely on that, therefore, as indicated by the two previous judges and now by me, the claim is dismissed.[6]I pass to the substantive matter on which I have been greatly assisted by Mr Winstanley's research and the moderate way in which he has put his case. I say that because the case has generated a great deal of material and I have relied on him to take me to the relevant matters. As he has said, his position is that he comes to the court honestly trying to explain the situation as it was at the time. This is a contentious matter. The council has shown, he believes, unwillingness to grant him planning permission and, as he says, there needs to be flexibility for people who are trying to provide, in the area in question, facilities of the sort that he proposes to provide. He has pointed out on a number of occasions in the course of the argument that this has throughout been a contentious issue.[7]So far as that last point is concerned, the process of appeal to an inspector and, if necessary, an application under Section 288 is supposed to remove from the immediate area of contention - that is to say between an individual rate payer and his local authority - to an independent inspector first, and then the court, issues such as have now been raised. I hope that it is right to say that, certainly from the point of view of the court proceedings today, the contention has been confined to the points in issue rather than to individual difficulties that Mr Winstanley may have with the council. As I have explained to him, I am concerned with the challenge to the inspector's decision, itself an independent decision, rather than the council's decision which was the beginning of the story.[8]I turn to the application for planning permission, its refusal and the appeal.[9]The site is land in Hooton Robert. It is in the green belt. It is a piece of land which, I understand, Mr Winstanley bought from an agency of the Government in the early 1990s. The proposal is to erect a building in total some 100 ft sq. It is in appearance an agricultural building. The issues relating to the tree preservation order and in relation to the status of the site as within the green belt are not matters which fall for direct challenge in these proceedings. The position is that those orders are in place. The application was not the first application of the sort that had been made. The previous year there had been a similar application, similar in the sense that it was for a building of approximately the same size and on the same site. That application was, as I understand it, refused.[10]But, in any event, the present application was made on 12 June 2013. It was begun in the usual way by the filling in of the formal application form. It was supported by a document which was described by the local planning authority and by the inspector as a ‘design and access statement’ although that is not the precise title which is given by the planning agent who acted for Mr Winstanley; it is called simply a planning statement.[11]As the development proposal was in the green belt, both the local planning authority and the inspector had to have regard to the appropriate policy in relation to development within the green belt. It is convenient to set out that at this stage. Part 9 of the National Planning Policy Framework (beginning with paragraph 79) is headed "Protecting Green Belt Land". Paragraph 79 reads:
"79 The Government attaches great importance to Green Belts. The fundamental aim of Green Belt policy is to prevent urban sprawl by keeping land permanently open; the essential characteristics of Green Belts are their openness and their permanence. 80 Green Belt serves five purposes: • to check the unrestricted sprawl of large built-up areas; • to prevent neighbouring towns merging into one another; • to assist in safeguarding the countryside from encroachment; ..... "
[12]After advice to local authorities on the setting up, maintaining and encouraging access, where possible, to green belt areas, the policy continues with indications about the grant or refusal of planning permission in green belt areas. Paragraphs 87 to 89 read:
"87 As with previous Green Belt policy, inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. 88 When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt. 'Very special circumstances' will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations. 89 A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: • buildings for agriculture and forestry; • provision of appropriate facilities for outdoor sport, outdoor recreation and for cemeteries, as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it; ..... "
Those policies clearly applied to the application because it was for a new building within the green belt. It is necessary in the light of the issues raised before me to give a little more detailed analysis to them. First, paragraph 89 makes it clear that the construction of a new building in the green belt is to be regarded as inappropriate, subject to the exceptions there set out. The two exceptions which are of relevance in the present case are those in the first two bullet points. So far as the first bullet point is concerned, a building for agriculture or forestry is simply excepted. It is exempt from the consequences of the opening words of paragraph 89. So far however as concerns the provision of appropriate facilities for outdoor sport, outdoor recreation or indeed for cemeteries, they are only exceptions "as long as it preserves the openness of the Green Belt and does not conflict with the purposes of including land within it". The exemption for buildings for agriculture and forestry is absolute. The exemption for appropriate facilities for outdoor sport, outdoor recreation and cemeteries is qualified.[13]The application for planning permission in this case, made on the appropriate form is described (on page 1 of that form) in the following words:
"Re-submission of proposed horse-training barn and hay storage."
The word "re-submission" indicates a reference to the previous application but, as I understand it, the previous application did not in fact refer to a horse-training barn in those or any similar words. In any event, the previous application was not this application.[14]The planning statement or design and access statement states that the building is stables for sport horses and the storage of hay. There is a plan of the proposed building on what is now page 15 of the evidence bundle. The plan is headed (and is all that there is by way of a) "Design Statement". It shows what I am told is a building in total about 100 feet square. The outer borders of the building are occupied by stables with their doors only to the outside of the whole development. There are also along the outside a tack room, a stable office and some WCs. The central area was to be open-plan under its roof. About a little over a quarter of the central area is shaded on the plan and on the section is shown as occupied by bales, not into the roof but up to the height of the columns. That part is described in the diagram as ‘winter hay storage area’. The rest of the open area under the roof is described on the plan as "wet weather covered exercise/training area". Immediately under the plan is a heading "building form" which is expanded as follows:
"The proposal is to erect two new stable blocks with WCs for facility with a central open barn for storage of hay or exercising of horses in poor weather. The horses to be stabled are to be racehorses which require regular and specialised training regimes. These type of horses are trained by the staff at the stables."
[15]The document then goes on to deal with a number of matters which it had to deal with, including matters as to access, the frequency and access, traffic and so on. Under the heading "Traffic Impact", the statement is - "The proposed for stables are to be used as a training facility for racehorses."[16]The building had been designed (this is a matter, I think, not in contention) in order to offer as little as possible in the way of visible interference with the site as presented at present. Indeed, in the conclusion the statement says any visibility of the building is very minimal from outside of the site curtilage.[17]That was the application. It was refused by the council on 27 August 2013.[18]It is at that point of refusal that Mr Winstanley raises his first substantive issue. As he points out, the decision refusing the planning application was headed in a manner which does not exactly match the application which had been made. It is headed "Erection of stable block and a barn, amendment to the previous application". There is no reference there to horse training. I am not entirely confident that I have captured Mr Winstanley's point on this issue.[19]There are clearly two points which might have been made and I think he was making both of them. The first is that heading the decision in that way might indicate that the application was being considered solely as an application for stables and a barn and not for a horse-training area, in which case the application ought to be continued to be considered as a purely agricultural application with no reference to the training of racehorses. Alternatively, or in addition, it might be said that the heading of the decision in that way indicated that the council was not paying proper attention to the application that was now being made but had only treated it as a re-submission of the previous application. The former argument might, I suppose, give rise to some sort of legitimate expectation if successful; the latter might give rise to an assertion of illegality in the council's decision though that would not necessarily affect the inspector's decision.[20]I have examined the documents to which Mr Winstanley has made reference. The truth of the matter is that however the decision was headed, the authority and its officers clearly understood that this was a modification of the previous application and that what was now proposed was what I have set out, that is to say a building for the stabling of racehorses, for the storing of hay and for the exercise of racehorses in inclement weather. Nothing, in my judgment, turns therefore on the titling of the decision. The decision was probably titled in that way simply because it was seen as a continuation of an unsuccessful application which had been made the previous year. If that is the case, it is explicable though not perhaps obvious to a person who did not know the history. case. The important thing is that the new application was different, was seen as different, and had the response it did have because it was different. That is clear in the officer's note that the previous refusal was being met by these new different proposals.[21]The decision having been made, the applicant Mr Winstanley entered his appeal against it. There was a site visit made by the inspector, as he records, on 25 June 2014 and he then made his decision on the appeal. That decision is the subject of Mr Winstanley's primary complaint today.[22]Before dealing with that complaint in detail, I need to remind myself and the parties of the constraints on making such a claim. An application under Section 288 is not a further appeal. It is not an opportunity for raising issues which were not raised before the inspector. It is instead in essence, confined to seeking to demonstrate that the inspector was not entitled to make the decision he did on the material which was before him.[23]In considering the substance of a decision letter, a court will remind itself that it was the decision of a properly qualified public officer responding to material which was before him - material which had been put before him by the parties - and that the inspector is not either required to set out planning law on first principles or to set out matters which were well known to the people with whom he was dealing, that is to say in this case the local planning authority and Mr Winstanley. The court does not, from read his decision as though marking an examination paper or construing a statute. The question is whether the inspector's decision was one that was open to him for the reasons he gave. In evaluating his reasons, the question is, as always, whether the reasons given are sufficient to enable a properly informed reader to understand the reasons why the decision is being made. The letter needs to be read as a whole. And, as a whole, the question is whether the points on which the inspector has reached a decision are points on which he was entitled to reach that decision.[24]The inspector's decision on the points that were raised before him by the application and by the appeal and in the context, in particular, of the Framework Guidance in relation to green belts were these. First of all, the inspector dealt with procedural matters and he raised two specific points. The first was that to which I had already referred, that the decision notice of the local planning authority wrongly describes the application. The application was made in the terms that I have indicated and refused with the headings I have indicated. However the inspector, evidently correctly, treats that as a mere matter of form and sets out, again correctly, that the appeal application was for the erection of a horse-training barn and hay storage.[25]The inspector goes on to say that, subsequent to the decision against which he is hearing an appeal, the appellant Mr Winstanley has suggested that the use would be for the keeping of livestock for agricultural purposes in addition to hay storage and the stabling of horses for recreational purposes. That is a matter which the inspector - again, properly and lawfully - puts aside because he is not determining a new planning application. He is instead hearing an appeal against the refusal that has already been issued in response to the application actually made.[26]At paragraph 7 the inspector sets out the main issues:(a) whether the proposal would be inappropriate development for the purposes of the National Planning Policy Framework and Development Planning Policy;(b) the effect of the development on the openness of the green belt and its purposes;(c) the effect of the development on the visual amenity of the green belt and character and appearance of the area; and,(d) if the development is inappropriate, whether the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations so as to amount to the very special circumstances necessary to justify the development.[27]That statement of the issues is, in my judgment, entirely correct and entirely in accordance with the matters raised by the application and the appeal and the context of Section 9 of the National Planning Policy Framework.[28]The inspector went on in his letter to deal with each of those issues. The first is the crucial one from Mr Winstanley's point of view. The argument raised by Mr Winstanley is this. First, the building had a wholly agricultural purpose and therefore it fell within the first bullet point of exceptions to the general rule that a new building in the green belt is inappropriate. Alternatively, the purpose of the building was, if not wholly agricultural, then wholly either agricultural or the provision of appropriate facilities for outdoor sport, horse racing being an outdoor sport. If that be right, the building fell within the first and second bullet points and therefore should be treated as an exception to the rule making new buildings in the green belt inappropriate.[29]Whether or not at Mr Winstanley's instigation, the Inspector dealt with precisely those issues. He did not, it is fair to say, consider that indoor training and exercise of racehorses might be provision of facilities for outdoor sport. But that is a matter which, for reasons I should explain, does not damage his conclusions. What he said was this:
"9. The keeping of hay would be an agricultural use of the building. However the appealed application included the stabling and indoor training of sports horses which do not fall within the definition of agriculture identified in the 1990 Act and would be inappropriate development in the green belt."
I emphasise the words "do not fall" because that shows that the stabling and indoor training of sports horses were regarded by the inspector as two separate additional purposes, neither of which fell within the definition of agriculture. I draw that from the plural "do".[30]The inspector has thus concluded that part of the use for the building would be an agricultural use but there would be non-agricultural uses in stabling of sports horses and their indoor training. Those were his conclusions on the interpretation of "agricultural use", and it seems to me that nothing that Mr Winstanley has said is sufficient to cast any doubt on the lawfulness (or, indeed, the correctness) of that conclusion. It follows that the inspector's decision that the building did not fall within the first bullet point of paragraph 89 is simply unassailable. It is properly reasoned and, with the greatest respect, obviously correct as a response to the application documents.[31]The inspector goes on at paragraph 10 to point out that the erection of appropriate facilities for outdoor sport and recreation is not inappropriate provided that it preserves the openness of the green belt. As I have said, he does not specifically consider whether the indoor exercising of racehorses might be providing facilities for outdoor sport. To that extent, he perhaps fails to decide whether the initial point of the second bullet point at paragraph 89 of the NPPF might be met. But that does not matter, because he goes on straightaway to deal with openness. As I have explained, the provision of such facilities within the green belt is only acceptable if the openness of the green belt is preserved.[32]The impact of paragraphs 8 to 11 of the inspector's decision letter is however that, for the reasons he gives, the purposes in addition to agricultural purposes, for which the building is specified to be projected do not amount to agricultural purposes or the provision of appropriate facilities for outdoor sport within the meaning of paragraph 89.[33]So far as concerns openness, the inspector deals with this at paragraphs 12 and 13. In a passage which, as I remarked in the course of argument, is almost a textbook example of a planning judgment, the inspector concludes that the erection of a building of the size proposed in the place proposed would be a material detriment to the openness of the green belt. Matters of planning judgment are reserved to the inspector. The court would simply not interfere with them. Mr Winstanley, it is fair to say, offered no substantive argument in relation to the conclusion reached by the inspector at paragraphs 12 and 13, and was right not to do so. Those conclusions are, in my judgment, unimpeachable.[34]The effect of then in combination with the second bullet point at paragraph 89 of the National Planning Policy Framework is that the inspector is not shown to have made any material error by his failure to consider whether the indoor exercising of racehorses was provision of a facility for outdoor sport because, in any event, the building would not fall within the second bullet point because of its detriment to the openness of the green belt.[35]The inspector went on, as he said he would go on, to look at the effect of the development on the visual amenity of the green belt and the character and appearance of the area. On this point he was in the applicant's favour. He said this is a building that looks like an agricultural building and, in so far as one considers the general visual quality of the area and its amenity, this is not a building that would damage it. That is not, as I see it, a conclusion inconsistent with his conclusions on openness; it is a decision on a different point.[36]Finally, he looked to see whether there were very special circumstances meriting the grant of planning permission to the development which had been characterised as inappropriate and concluded that there were not. He therefore dismissed the appeal.[37]I have during the course of setting out the Inspector’s decision given some indication of the points at which Mr Winstanley seeks to challenge it. The prime challenge which Mr Winstanley makes is this. The inspector was wrong, says Mr Winstanley, to characterise this application and therefore this appeal as an application for a building which was not wholly agricultural. Mr Winstanley points out that the inspector regarded the storage of hay as an agricultural purpose. That is of course right.[38]As I have also pointed out, however, the inspector noted that other purposes were proposed. This is the point at which, I think it is fair to say, Mr Winstanley describes the matter as contentious. He says if there is any doubt about what was intended the inspector should have asked him. I can understand that submission if made in relation to an application which was in any way unclear. The problem for Mr Winstanley is that this application made by agents with him was not unclear. It was very clear and precise. There is no contradiction or ambiguity in it. It was an application for a building which had stables around the edge, a large open area in the middle which was to be used as to about a quarter for the storage of hay and as to the rest for the training and exercising of horses in inclement weather. Nothing that can now be said about how often the weather in Hooton Robert is sufficiently inclement to require the training of horses inside or about how much hay might actually be in the premises from time to time can affect the material that was before the council when they made their decision on the application and the inspector when he made his decision on the appeal. This was an application unambiguously for a building with three purposes, only one of which was agricultural.[39]Therefore, I reject the suggestion that the inspector's procedure was in any way defective. He was dealing with an application which, albeit apparently misdescribed by the council in the heading but not elsewhere in the decision letter, was itself perfectly clear. The reasons he gave for rejecting the appeal in relation to that perfectly clear application are themselves also perfectly clear.[40]The second issue, as I understand it, raised by Mr Winstanley in this case is that it might be said that the indoor training of racehorses is a provision of facilities for outdoor sport. I have considerable sympathy with that argument. But for two reasons it is one which has no impact on this application. The first reason is that in my view it was, or - perhaps it is fair to say - would have been a matter for the judgment of the inspector in any event. The second reason is, as I have already pointed out, that any error made by the inspector in that point is rendered wholly irrelevant by his conclusion on openness which is an essential feature of the permissibility of provision of this sort of facility in the green belt in accordance with the National Planning Policy Framework.[41]For those reasons, Mr Winstanley's challenge to the inspector's conclusions in relation to the use is rejected.[42]So far as openness is concerned, it is perfectly clear that Mr Winstanley and his agent had done everything that could be done in relation to this building to make it one which was not apparent from the road or, so far as they understood it, an intrusion into other people's enjoyment of this area which - although it has a semi-industrial history and, as Mr Winstanley describes it, parts of unsightly appearance - is the open country and is the green belt. The building was designed to be in appearance an agricultural building. It was designed and sited also in such a way as not to be apparent to anybody who was merely passing along the road or on the public footpath. That is the issue which the inspector took into account in relation to his third issue.[43]What is not permissible in the course of an application of this sort is to confuse the issue of openness with the issue of visibility. One is about keeping open parts of the green belt open - that is to say not developed, not walled around - and the other is about the general appearance of green belt land to those who visit and use it. So far as the latter point is concerned, the inspector was in Mr Winstanley's favour. And to that extent Mr Winstanley was able to have the credit for the way in which the building was designed. But the former point as to openness is a separate point. As I have indicated, there are no substantive arguments raised against the inspector's decision on that point. In any event, the matter was a matter for his judgment.[44]Those issues are, in truth, sufficient to deal with this application. The inspector's conclusion that the building was one which did fall to be considered inappropriate as within the green belt and not within any of the exceptions were conclusions that were clearly open to him.[45]I must however say briefly something about one other point that was raised which relates to an assertion that the inspector showed real or apparent bias in dealing with matters in a way which suggested that he was more inclined to consider the council's arguments than Mr Winstanley's. I have not been referred specifically to any evidence which could properly be regarded as showing bias or apparent bias.[46]Mr Westmoreland-Smith - in dealing, at my invitation, with the Secretary of State's case in advance of Mr Winstanley's substantive submissions - suggested that the truth of the matter was that Mr Winstanley was concerned that a suggestion for alternative use of a different building made by the council, regarded by Mr Winstanley, perfectly properly I suspect, as absurd, had also been considered by the inspector. So far as that is concerned, the position is that the council's suggestion was made entirely openly and was made in terms in which Mr Winstanley saw it too, and of course he responded to it in the terms I have indicated. So far as the inspector was concerned, he regarded it, as his decision letter at paragraph 21 showed, as irrelevant.[47]There are other allegations made in the course of the papers about the council, about its conduct in relation to this application, about its conduct in relation to this applicant generally, about its general conduct in relation to its business. Those matters are not before me, and I make no comment on them other than to say that they are not relevant to this application which, for the reasons I have given, is refused.[48]MR WESTMORELAND-SMITH: I am grateful. In the circumstances I do ask for my costs. Has your Lordship received our costs schedule? I hand that up.[49]DEPUTY JUDGE: Has Mr Winstanley seen this?[50]MR WESTMORELAND-SMITH: Mr Winstanley has a hard copy which was given to him at the beginning of this hearing. We have also provided, in the light of comment from Mr Winstanley that he had not received it, an email from my instructing solicitor to Mr Winstanley yesterday at 10.45. That is enclosing the costs schedule and giving some guidance on the ordinary rules and where he can read those for himself (Rule 44 and the Practice Direction 44). The total amount is £5,148.[51]DEPUTY JUDGE: Including VAT?[52]MR WESTMORELAND-SMITH: With regard to my fees, yes; but generally no.[53]DEPUTY JUDGE: Because it says "amount if VAT claimed - nil" and it makes the grand total the same as before.[54]MR WESTMORELAND-SMITH: You are right. There is no VAT included.[55]DEPUTY JUDGE: VAT you are claiming in addition to that sum?[56]MR WESTMORELAND-SMITH: We just leave it as claimed.[57]DEPUTY JUDGE: Leave it as claimed.[58]Mr Winstanley, you know the general rule. Is there any reason why I should not make the usual order?[59]THE APPLICANT: I think as to all these difficulties and the application I was making to get this struck out and the detail, it has cost me a ridiculous amount of money since to travel across to the hearing of Rhodri Price Lewis and then go away and come back again and then deal with these matters. The circumstances are not contentious at all. These people were served. The council was served. The only reason for all these hearings was because they failed to respond and failed to attend hearings. They are Government departments who are dealing with this, not private people.[60]DEPUTY JUDGE: I am looking at that and I see, I think, that no charge has been raised for any hearing except today's.[61]THE APPLICANT: That is correct.[62]DEPUTY JUDGE: They have not put in any fee for anything else.[63]THE APPLICANT: I am not saying that - - - - -[64]DEPUTY JUDGE: If you look at the third page.[65]THE APPLICANT: I am not talking about that. I am talking about my off-set against what has occurred here.[66]DEPUTY JUDGE: The rule about costs, generally speaking, is that the losing party pays his own costs and the other side. There is not an off-set.[67]THE APPLICANT: I would not have had the costs if these people had turned up to the hearing of Rhodri Price Lewis which I proved had been served. And all my expenses in travel and everything else and the inconvenience to the courts, the Rotherham Borough Council, the Treasury Solicitor, Christopher Roylance who has hand-delivered these documents on the order of Rhodri Price Lewis, as was the council, and for a second time. I have produced all the documents; they are not contentious at all. I have had considerable costs.[68]DEPUTY JUDGE: Do I have your schedule of costs?[69]THE APPLICANT: No, because I rang and was told that legally these things have to be submitted twenty-four hours before the case. And to be quite frank with you, if the reasonable situation was considered in the run of this that should be tit for tat. I have not been unreasonable about anything to do with this and I think it is unreasonable for the costs to be applied in the manner that you are suggesting and these people are suggesting they are being applied. The Treasury Solicitor was wrong in what they did. There is no doubt about it that they should have attended the hearings. They were told by the court the hearings were taking place. Even as they claimed, they had lost the file - but what happened to the file - by Christopher Roylance. They should have attended the court. They only walk around the corner to the court. I was astonished at how close they were to the court when I went to serve them the documents on the order of Rhodri Price Lewis. They should have sent a clerk.[70]DEPUTY JUDGE: The position is I do not have any statement of your asserted costs. Nor do I have any good reason for supposing that the orders that were made in a previous proceedings were made on the basis that you assert.[71]THE APPLICANT: In what way?[72]DEPUTY JUDGE: Mr Winstanley, you have made a number of allegations about the conduct of other people.[73]THE APPLICANT: You are challenging my integrity about serving documentation.[74]DEPUTY JUDGE: With the greatest respect, Mr Winstanley, I am not. I am merely looking at the application which I have been dealing with today. So far as that application is concerned, you have been unsuccessful. The normal rule is that you pay the costs of the litigation of the winning party. I do not understand that anything you have yet said would be sufficient to cause me to depart from that rule. There is no proper reason given and there is no financial evidence. As a matter of fact, if it helps, the sum is not by any means over the top in terms of an application hearing of this sort.[75]THE APPLICANT: I am not saying it is. But it is the third hearing, the third distance I have travelled and two distances around the world to deal with this matter. If these people had attended the hearing at Rhodri Price Lewis, this matter would have been dealt with there and then. In the run of this thing, I have had to serve documents, copy documents, travel again across the world. I have been down here to set a date after I was severely criticised by the two previous judges for a five-minute hearing, five-minute discussion, on the date of this hearing when I should have been somewhere else - and travelling - to deal with other things. Even then I was criticised about court procedure. I have been put to a ridiculous amount of trouble to ensure this thing gets properly into court.[76]It is grossly unfair to saddle me with such huge costs on what was a perfectly legitimate claim and which should have been dealt with several months ago at the first hearing when I travelled across the world - as these people knew I would have to because I was in communication with them all - to deal with it and they did not even attend when it was only a walk around the corner. I was speaking to Niall Terr (?) about it over the phone. He sent an email - - I have submitted it all to you. He sent an email to Christopher Roylance and even then I had to chase the man over and over again and eventually he did accept it had been served. So what all this was about I have no idea. It is grossly unfair to saddle me with such costs when I have been put to all this inconvenience when it could have been dealt with months ago without all this problem. And two other judges were put to the same inconvenience what criticised me instead of the Government departments that were responsible.[77]DEPUTY JUDGE: I do not think I can take this matter much further in this context, but I will make an order which I hope will enable you to say what you are saying.[78]So far the application under Section 288 is concerned, I will order the applicant to pay the costs of the first defendant summarily assessed at £5,148. If the applicant wishes to put any submissions about any payment of costs to him then those are to be put in writing within seven days of today. I had better say either defendant has an opportunity to respond to them within twenty-one days of today. The applicant has a further seven days to respond and the matter will be put before the judge, which may or may not be me, for decision on the applicant's application. That will enable you to sort out what you are trying to say, essentially without the documents to deal with it at the moment, provided that you do so quickly.[79]Mr Westmoreland-Smith, you are looking a bit worried about that. It is unorthodox, I know, but it seems the best way forward in the present circumstances.[80]MR WESTMORELAND-SMITH: I am not worried at all.[81]DEPUTY JUDGE: Will you draw up an order to that effect?[82]MR WESTMORELAND-SMITH: I will. May I say I can respond fourteen days after receipt of Mr Winstanley's application because if it is twenty-one days from today and he is late, it may - - - - -[83]DEPUTY JUDGE: If he is late the order will not be made. He must make his application in time.[84]THE APPLICANT: The problem I have is when you run - - - - -[85]DEPUTY JUDGE: But you need to devote your attention to this point if you are going to make the application. You do not need to make the application but if you do make it, it will need to be within seven days.[86]What will happen now - broadly speaking now, within the next twenty-four hours or so - is Mr Westmoreland-Smith will draft an order which he will send to you for approval. "Approval" has a rather refined sense here. What it means is you agree that it records the substance of my decision. It does not mean you agree with my decision or anything like that. It means simply the order is the appropriate one following the decision I have made. So it is very likely that you will simply be able to autograph it because he is an expert draftsman. The order will say that after hearing him and you the claim is dismissed, and there is the order I have just made with the additional order enabling you to put in a costs application of your own. The sooner that you can autograph that and send it back, the sooner the court can finalise this process and, if necessary, you can then go on to thinking about your costs.[87]THE APPLICANT: Is there an appeal to this matter?[88]DEPUTY JUDGE: That is a matter on which it is not for me to advise.[89]THE APPLICANT: There is an appeal?[90]DEPUTY JUDGE: That is a matter on which it is not for me to advise. Thank you.