Khodari, R (On the Application Of) v Royal Borough of Kensington And Chelsea [2015] EWHC 4084 (Admin)

Case Nos.CO/1734/2015 & CO/3358/2015

[2015] EWHC 4084 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE PLANNING COURT

Venue Royal Courts of Justice

Strand

London WC2A 2LL

Date Wednesday, 18 November 2015

B e f o r e:

HIS HONOUR JUDGE SYCAMORE

(Sitting as a Judge of the High Court)

Between

THE QUEEN ON THE APPLICATION OF ISAAC YOUSSEF KHODARIClaimant

Between

ROYAL BOROUGH OF KENSINGTON AND CHELSEADefendant

Computer-Aided Transcript of the Stenograph Notes of

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(Official Shorthand Writers to the Court)

Mr M Lewis (instructed by Blake Morgan) appeared for Claimant

Mr A Mills (instructed by Royal Borough of Kensington and Chelsea) appeared for Defendant

HEARING DATE 10 November 2015

J U D G M E N T (Approved)

JUDGE SYCAMORE: These two applications for judicial review were listed for hearing together.

[2]The claimant in both applications is Isaac Youssef Khodari, who has a leasehold interest in Flat 4, 31 Egerton Gardens, London SW3 ("the flat"). He has lived there with his wife and children for 14 years.

[3]The two applications involve challenges to decisions of the Defendant, the Royal Borough of Kensington and Chelsea, to grant planning permission for the redevelopment of 31 Egerton Gardens ("the property"). The first decision in time ("the first decision") was dated 20 March 2015 and gave planning permission to the Interested Party, Cedarpark Holdings Incorporated, to permit the conversion of the property from five flats to eight flats. The second decision in time ("the second decision") was dated 5 June 2015 and gave planning permission for an alternative scheme of conversion from five flats as existing to five new flats.

[4]At the hearing before me, the Claimant and Defendant were both represented by counsel. The Interested Party had filed Acknowledgments of Service but took no part in the proceedings.

[5]In the proceedings in relation to the first decision, (CO/1734/2015), the Claimant initially relied on five grounds. On 2 June 2015, John Howell QC, sitting as a Deputy High Court Judge, granted permission in respect of ground 5 only, refusing permission in respect of grounds 1 to 4. Ground 5 is set out in the claimant's grounds in the following terms: i. "Further or alternatively, to the extent that the additional units granted planning permission are intended to be rendered car free by means of an agreement under section 106 of the 1990 Act, such an arrangement is not valid for the purposes of section 106; see Westminster City Council v Secretary of State

[2013] EWHC 690 (Admin)

. In addition, the agreement is invalid in that it provides in clause 3.1 for a payment to the council of a monitoring fee. The payment of such fees cannot be provided for in such an agreement; see Oxfordshire County Council v Secretary of State

[2015] EWHC 186 (Admin)

, and so the agreement in this respect also, in that the council could not have imposed such an obligation unless it regarded it as being necessary to overcome an objection to the development approved and so the planning permission for that development cannot stand if that obligation is unenforceable."

[6]In the second decision proceedings, (CO/3358/2015), the Claimant relied on two grounds which were in identical terms to the first two grounds in CO/1734/2015: i. "1. The council failed to have regard to the fact that 31 Egerton Gardens was an undesignated heritage asset in its own right (and not merely 'as being part of the conservation area') as defined in the NPPF and NPPG, namely, 'a building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions'. This is a non-preclusive definition which, in accordance with its natural and ordinary meaning, includes 31 Egerton Gardens and both its interior and exterior features of architectural and historic interest. ii. 2. Further or alternatively, the council failed to have regard to the fact that the inevitable consequence of the implementation of the planning permission granted by them would be the loss of the important interior features of 31 Egerton Gardens identified as having heritage significance. This was a material consideration to which the council should have had regard even if (which is not accepted) the house was not an undesignated or 'non-designated' heritage asset."

[7]Permission was refused on the papers by Holgate J on 20 August 2015. The matter came before me first as a renewed permission/rolled up hearing in CO/1734/2015 in relation to grounds 1 and 2 only and a renewed permission/rolled up hearing in relation to CO/3358/2015; and second, a substantive application in relation to ground 5 in CO/1734/2015.

[8]I will deal first with the application in relation to grounds 1 and 2 in both sets of proceedings, but first set out a brief factual summary.

[9]The property is located within the Thurloe Estate and Smith's Charity Conservation Area. It is, like other houses in Egerton Gardens, in a red brick Queen Anne revival style and in 1948 had been divided into two maisonettes and three self-contained flats. Some time before 1993 it was converted into five flats.

[10]In 2014, at the request of the claimant and his wife, English Heritage visited and assessed the property. They concluded that the property did not meet the criteria for statutory listing, but made a number of observations about it in an assessment dated 18 September 2014, observing: i. "31 Egerton Gardens certainly stands out from its immediate environs in terms of its decorative and architectural sophistication ... Number 31, a bespoke design commissioned by the prospective resident, is distinguished by the use of higher quality materials (soft red brick, leaded glazing) and more lavish ornament, and for the more successful treatment of the street elevation. This was originally matched in the interior, which -- to judge by the surviving spaces and the published drawings -- featured an unusually sumptuous scheme of fittings in an eclectic C17 style. ii. Thanks to the subdivision of the interior into four separate dwellings, however, the 1888 scheme no longer survives in anything like its original state. The best preserved state space the billiard room on the first floor, whose fielded panelling, scrolled and moulded door surrounds and a strapwork ceiling give a vivid impression of what has been lost elsewhere ... The stair hall is [well] preserved, and retains its elaborately moulded balustrade, arcading stained glass. iii. ... iv. Conclusion v. Though a building of some architectural quality and some local interest (in particular given the treatment of its facade and surviving original interiors), 31 Egerton Gardens is not recommended for listing."

[11]And in addition: i. "Reasons for designation decision ii. 31 Egerton Gardens, of 1888 by Thomas Henry Smith, is not recommended for listing for the following principal reasons: iii. Alteration: whilst the house is externally intact, the interiors have been much altered as a result of the subdivision into flats, with only one of the principal rooms surviving in its original form. iv. Architectural interest: although a handsome and (once) sumptuously appointed late Victorian townhouse, this is nevertheless an instance of a very widespread type, and its architectural quality is not high enough to outweigh the loss of so much of the interior."

[12]In relation to both decisions, the defendant's committee were made aware by the case officer and by the claimant of the nature of the building and the loss of the interiors, and that the heritage significance of the building was in relation to its external appearance and not to its interior. It was in respect of the external appearance that the property contributed to the conservation area. All of this was clearly taken into account.

[13]The claimant suggested that the defendant had failed to follow the National Planning Policy Framework ("NPPF") and Planning Practice Guidance ("PPG") in not producing a list of buildings of local heritage interest for its area. It is helpful to look to the NPPF for the definition of heritage assets: i. "A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing)." And further guidance from the PPG: ii. "What are non-designated heritage assets and how important are they? iii. Local planning authorities may identify non-designated heritage assets. These are buildings, monuments, sites, places, areas or landscapes identified as having a degree of significance meriting consideration in planning decisions but which are not formally designated heritage assets. In some areas, local authorities identified some non-designated heritage assets as 'locally listed'. iv. A substantial majority of buildings have little or no heritage significance and thus do not constitute heritage assets. Only a minority have enough heritage interest for their significance to be a material consideration in the planning process."

[14]The claimant in ground 1 proceeded on the basis that: i. "31 Egerton Gardens was an undesignated heritage asset in its own right."

[15]That is simply not the case, as the defendant has not identified it as a "non-designated heritage asset" for the purposes of the NPPF and PPG. That is a matter of planning judgment for the defendant, and not a matter for the court.

[16]13. The case officer made it clear that as no external works were planned, the character and appearance of the property would be preserved. In CO/1734/2015, the officer in the report to the council said: i. "[No external works are proposed so] the proposal would preserve the character and appearance of the Thurloe Estate and Smith's Charity Conservation Area."

[17]And in relation to CO/3358/2015: i. "The proposal involves internal works only. There would be no alterations to the external appearance of the property. The proposal would preserve the character and appearance of the Thurloe Estate and Smith's Charity Conservation Area."

[18]In my judgment there was no obligation on the defendant to consider, as the claimant suggests, the property as a "non-designated heritage asset" as it was not such an asset. The defendant did consider, as it was required to, the impact of the proposals on the conservation area. Furthermore, as Holgate J observed in refusing permission on the papers, as the works were restricted to internal works, planning permission was not required for those works to go ahead.

[19]As to ground 2, the claimant sought to rely on Sage v Secretary of State for the Environment, Transport and the Regions

[2003] 1 WLR 983

and Somak Travel Ltd v Secretary of State for the Environment

[1988] 55 P&CR 250

. In my judgment this is misconceived, as those authorities are relevant only in the context of works which would require planning permission. It is plainly the position in this case that the internal features could be removed without the need for planning permission, as for example was made clear by the case officer in the reports to the defendant's committee when answering objections and comments received. The first decision: i. "Comment: the building would be gutted which would harm the loss of valuable heritage features. ii. Response: as noted above, English Heritage does not consider the building warrants listing. Works can be carried out to the interior without planning permission." And the second decision: iii. "Comment: changes to the planning envelope of a unit constitutes material development. iv. Response: works which only affect the interior of a building, including changes to the layout and configuration of flats within a building, do not constitute development requiring planning permission as set out under section 55 of the Town and Country Planning Act 1990. As the building is not statutorily listed as being of architectural or historic interest the internal changes are not within the council's control under listed building legislation." In my judgment, against the background I have described, the claims at grounds 1 and 2 are unarguable and permission is refused. 15. For the sake of completeness, I should add that I agree with the comments of Holgate J at paragraph 4 of his reasons for refusing on the papers, that is to say that as planning permission was not required for the carrying out of internal works, the outcome for the claimant would not have been substantially different. Accordingly, section 31(3D) of the Senior Courts Act 1981 is engaged: v. "If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave." And the requirement at section 31(3E) is not fulfilled: vi. "The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest." deal now with ground 5 in CO/1734/2015. There is no equivalent ground in CO/3358/2015. No section 106 agreement was required, because the alternative scheme of conversion did not involve any increase in the number of units.

[20]In granting permission in respect of ground 5, the Deputy Judge observed: i. "Had clause 3.2, and the covenants in schedule 2, of the section 106 agreement stood alone, such an agreement would not have fallen within section 106 of the 1990 Act in accordance with the decision in Westminster City Council v SSCLG and Acorns

[2013] EWHC 690 (Admin)

. The other clauses referred to by the council do not (at least arguably) make those obligations ones falling within, and enforceable by virtue of, that section."

[21]Clause 3.2 of the section 106 agreement of 19 March 2015 provides: i. "The owner and lessees hereby covenant with the council to observe and perform and cause to be observed and performed the obligations, undertakings, covenants and restrictions contained in schedule 2."

[22]Those covenants, under the heading, "Owner's and Lessees' Covenants -- Permit Free," provide: i. "1. The owner and lessees hereby covenants with and undertakes to the council as follows: 1.1. From implementation: 1.1.1. Not to apply to the council for a parking permit in respect of the permit free residential units nor to knowingly permit any owner or occupier of the permit free residential units to apply to the council for a parking permit and if such a permit is issued in respect of the permit free residential units it shall be surrendered to the council within seven days of written demand. That all material used for advertising or marketing the permit free residential units for letting or sale will notify prospective owners and occupiers that they will not be entitled to apply for a parking permit in respect of the permit free residential units. That in respect of every lease granted, assigned, transferred or otherwise provided after the date of this deed in respect of the permit free residential units, the following covenant or a covenant in substantially the same nature of it shall be imposed (or a covenant of substantially the same nature in respect of any tenancy agreement, licence or other instrument entitling occupation of the permit free residential unit): ii. "The lessee for himself and his successors in title being the owner or owners for the time being of the terms of years hereby covenant with the lessor and separately with the Mayor and Burgesses of the Royal Borough of Kensington and Chelsea ('the council') not to apply for nor knowingly permit an application to be made by any person residing in the premises to the Royal Borough of Kensington and Chelsea for a resident's parking permit (save for disabled persons 'purple badge' issued pursuant to section 21 of the Chronically Sick and Disabled Persons Act 1970) in respect of such premises and if such a permit is issued then it shall be surrendered within seven days of written request to do so from the council and this covenant shall also be enforceable by the council under the Contracts (Rights of Third Parties) Act 1999, section 1. To send to the Executive Director a certified copy of the transfers, leases or tenancies within ten working days of the transfer or the grant or transfer of any lease or tenancy in respect of the permit free residential units."

[23]That the defendant's committee regarded the impact on parking policy as important, and a crucial element of the grant of planning permission, is clear from the report to the panel. The main report at paragraph 6, "Evaluation": i. "The Transport Supplementary Planning Document and Core Strategy Policy CT1 require new residential units to be subject to a legal agreement preventing future residents from applying for parking permits. The applicant has agreed to enter into this legal agreement which would need to be in place before planning permission could be granted." And Addendum Report:

"It is recommended that the committee authorises the Executive Director, Planning and Borough Development: To grant planning permission on the satisfactory completion of an agreement to secure the additional units are parking permit free and with the conditions listed in section 8 of this report. To refuse planning permission if an agreement to secure parking permit free has not been satisfactorily completed by 18 March 2015 for the reason that the proposed development would put undue pressure would put undue pressure on on-street parking and would therefore be contrary to the policies contained in the Core Strategy, in particular policy CT1 and the Transport Supplementary Planning Document."

[24]Thus there is no doubt that the defendant's committee took that into account in reaching its decision.

[25]Section 106 sets out the purposes for which they may be entered into at subparagraph (1): i. "Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section and sections 106A and 106B as 'a planning obligation'), enforceable to the extent mentioned in subsection (3) --(a) restricting the development or use of the land in any specified way;

(b) requiring specified operations or activities to be carried out in, on, under or over the land;

(d) requiring a sum or sums to be paid to the authority ... on a specified date or dates or periodically."

[26]But as counsel for the claimant submitted, they can only constitute a reason for granting planning permission (Community Infrastructure Regulations 2010) if the obligations are: i. "(a) necessary to make the development acceptable in planning terms; ii. (b) directly related to development; and iii. (c) fairly and reasonably related in scale and kind to the development."

[27]On behalf of the defendant, it was submitted that the agreement did restrict the development or use of the land in the covenants contained therein at schedule 2, and in particular at 3.4: i. "The owner covenants not to implement or permit implementation until such time as the owner has demonstrated to the council's satisfaction that the leaseholder (or anyone deriving a title from the leaseholder):(a) has ceased to have any legal or equitable interest in the permit free residential units by providing the following evidence: (i) that the leaseholders' lease has been surrendered or terminated; and ii. (ii) an updated copy of the Land Registry freehold title reference BGL97774 showing the leasehold title numbered BGL25138 has been removed from the leasehold title; or iii.

(b) has entered into an agreement with the council binding its interest in the permit free residential units with the provisions of this deed."

[28]And at 5.1: i. "The owner and/or lessees shall not implement the planning permission unless not less than ten working days prior to written notice of their intention to implement the planning permission has been given to the Executive Director."

[29]I disagree with this proposition. Those obligations do not amount to restrictions on the development or use, nor can they be said to be requirements to use the land in a certain way.

[30]I was referred to the decision of the High Court in Westminster City Council. Counsel for the defendant acknowledged that it appeared unhelpful to his clients, but sought to argue that it was not authority for the general proposition that an obligation not to apply for parking permits was not a valid obligation under section 106. Westminster has not been the subject of any challenge on appeal, and as I have already observed, in my judgment the terms of the covenants in respect of parking permits do not fall into the categories provided by section 106(3) and (5) and as such cannot be said to be a planning obligation within the terms of section 106. Furthermore, it is clear from a reading of schedule 2 that the obligations in any event apply only to the current owners and do not purport to bind successors in title.

[31]I deal next with the second element of ground 5, namely the provision in paragraph 3.1 of the section 106 agreement for a monitoring fee. The claimant's case is that Oxfordshire County Council is authority for the proposition that the payment of such fees cannot be provided for in a section 106 agreement; see paragraph 45 of the judgment of Lang J: i."45. There is nothing in the wording of the TCPA 1990, the Planning Act 2008, the CIL Regulations, the NPPF or the Guidance which suggests that authorities could or should claim administration and monitoring fees as part of planning obligations. It is significant that, in relation to the Community Infrastructure Levy, regulation 61 CIL Regulations expressly provides that an authority may apply CIL payments levied for infrastructure purposes, to defray the administrative expenses it has incurred. No such express provision was made under regulation 122 in respect of planning obligations. ii.

46. … the Secretary of State has a broad power to make provision for the payment of fees for the discharge of local planning authority functions. He has made regulations which prescribe fees for matters such as planning permission applications, reserved matters and discharge of conditions. It is significant that he has decided not to make provision for the payment of fees for the administration and monitoring of section 106 Agreements."

[32]There may be very limited circumstances in which a monitoring fee might "exceptionally" be justified (for example, a very large development or nationally significant piece of transport or energy infrastructure; see paragraph 47 of Oxfordshire), but this cannot apply to the circumstances of this case which on any view are routine.

[33]The defendant sought to argue that first the question of a monitoring fee did not feature in the decision to grant planning permission. There was no reference to it in the report to the committee. That is indeed the case, but I reject the defendant's contention that Oxfordshire is not authority for the general proposition that other than in the exceptional circumstances to which I have referred, a monitoring fee cannot be imposed in a section 106 agreement. That is an expense for which the council must itself bear responsibility.

[34]The defendant invited me, in the event that I found this element of ground 5 established, to deal with it by way of declaration only. The defendant has received £500 towards monitoring costs. If I was to declare that it was wrongly received, then it would follow that it would be repaid. Essentially, the defendants submitted, as it was a matter not taken into account when granting the permission, there was no need to quash the planning permission.

[35]Had I not found, as I did, that the first part of ground 5 was also established, that is to say that the section 106 agreement was invalid in respect of the agreement to render the additional units car free, that submission may have been attractive.

[36]Given my findings in respect of the invalidity of the section 106 agreement, it follows that the first decision of 20 March 2015 must be quashed. Although in refusing permission on grounds 1 and 2 I referred to the relevance of section 31(3D) and (3E) of the Senior Courts Act 1981, I have in mind that in the course of submissions, counsel for the defendant indicated that whilst planning permission was not required at all for the internal work and would certainly not have been required for the second decision, which involved the same number of flats, there was a material change of use in relation to the first decision, as it involved an increase from five to eight flats, and as such planning permission would have been necessary.

[37]I therefore grant the application for judicial review and direct that there be a quashing order in relation to the defendant's decision of 20 March 2015 granting planning permission to convert the property from five flats to eight flats.

[38]MR LEWIS: I am obliged, my Lord, and I would ask the court so to order.

[39]There is one point of fact on the date of the grant of planning permission, my Lord, and it may be that the claimant focussing initially on the decision made on 3 March 2015 resulted in what is ultimately an error on the date, my Lord, but for your Lordship's note and for the purposes of the order, the grant of planning permission in claim 1 is actually 20 March, not 3 March.

JUDGE SYCAMORE: 20 March.

[41]MR LEWIS: Your Lordship is quite right that the resolution of the decision made was on 20 March.

JUDGE SYCAMORE: Very well, I will correct the date to the 20 March.

[43]MR LEWIS: But just to pick that point up in point of formality.

[44]So as I have said, I will ask your Lordship so to order, and the claimant has a claim for his costs in the first claim. Summary schedules have been put in.

JUDGE SYCAMORE:

[45]Some summary schedules came through just before I came into court, but I didn't have the opportunity to print them off, they arrived shortly before 10.30. Given that these matters were heard together and that I have refused permission in respect of grounds 1 and 2 in relation to both claims, is this going to lend itself to a summary assessment?

[46]MR LEWIS: It strikes me -- forgive me, my Lord, it may be that your Lordship reaches a point where your Lordship decides that we can't go much further, but of course as your Lordship is aware, grounds 1 and 2 in both claims, that's 1734 and 3358, were renewed applications.

JUDGE SYCAMORE: Yes.

[48]MR LEWIS: And so even though they have been rolled up here, my Lord, the position, happily for the claimant, is that he has succeeded in his substantive judicial review claim under 1734, and from that point of view, my Lord, unless we do reach a point where it's too complicated to get in to looking at the figures, my primary position on the claimant's behalf would be that he should be entitled to his costs in claim 1, albeit that my learned friend may have certain observations to make about the effect of failing in the renewed application.

JUDGE SYCAMORE:

[49]Yes, it is a question of establishing how much of the costs relate to those parts of the claim or claims on which the claimant has not succeeded.

[50]MR LEWIS: Which, following on from that thought, if I may, my Lord, yes, does lead one to a point where it may be that the most appropriate order here is detailed assessment.

JUDGE SYCAMORE: If not agreed.

[52]MR LEWIS: If not agreed.

JUDGE SYCAMORE: Yes.

[54]MR LEWIS: May I just take instructions on that, my Lord.

JUDGE SYCAMORE: Yes. (Pause)

[56]MR LEWIS: Yes, please, and my instructing solicitor does ask for a payment on account nonetheless, my Lord, but we'll come to that in a moment or two.

JUDGE SYCAMORE: Let us see what Mr Mills has to say.

[58]MR MILLS: My Lord, I'm grateful. My instructions are that assessment if not agreed would not be something that would be objected to in the circumstances. That may be the best way to approach this. Payment on account I have not taken instructions on.

JUDGE SYCAMORE: Would you like to take instructions?

[60]MR MILLS: Yes. (Pause)

[61]This is something which is -- this isn't something which has been raised before, and so instructions haven't been got from the ultimate client. Payment on account is not something which the council would be willing to agree to.

JUDGE SYCAMORE: No, but it is a matter which I can direct if I consider it appropriate.

[63]MR MILLS: My Lord, yes, of course.

JUDGE SYCAMORE:

[64]Yes. Well just remind me, Mr Lewis, of the claimant's best position as regards costs.

[65]MR LEWIS: Claim 1, 1734, is £28,500, my Lord.

JUDGE SYCAMORE: Yes.

[67]MR LEWIS: On a rough estimate of two thirds of that, my Lord, I would request £20,000 payment on account, please.

JUDGE SYCAMORE:

[68]What do you say, Mr Mills? I know you have no instructions to agree a payment on account, but to assist me in deciding whether I should make an order, and if so in what sum?

[69]MR MILLS: The first submission is that my learned friend has taken a rough figure of two thirds of £28,000, despite the fact that in fact there was essentially a loss on grounds 1 and 2 and victory on ground 5. My second submission is that £20,000 is slightly more than two thirds in any event. My third submission is that the payment on account should seek to be modest rather than something which would have to be rowed back on detailed assessment. My submission would be that a maximum of £10,000 would be appropriate for such a payment.

JUDGE SYCAMORE: That is helpful.

[71]Mr Lewis, I think we need to approach this with some caution, because there may be issues about overlap between the two matters which were listed together. The figure I have in mind is one of £12,000. Do you seek to persuade me otherwise?

[72]MR LEWIS: No, my Lord, I wouldn't. I'm most grateful.

JUDGE SYCAMORE:

[73]I direct a payment on account in the sum of £12,000. If I allow 21 days, would that suffice? And detailed assessment if not agreed.

[74]MR MILLS: My Lord, of course there are the costs of the second claim, in which the defendant has been successful, and the defendant would seek its costs in relation to the judicial review of the second planning permission, which has been unsuccessful. Whilst permission has been ultimately refused on that basis, my submission is that the defendant should be able to recover its costs given that that was a rolled up hearing, and heard, as I understand it, fully before your Lordship, and the defendant should be entitled to its costs of that.

[75]MR LEWIS: My Lord, the general rule on a renewed oral permission hearing is that a respondent does not get their costs. I appreciate that all the claimant's claims have been rolled up, or heard together, whether there's any magic in the terminology there, but in my respectful submission, my Lord, that's convenient for both parties, which has assisted the council in that if the two hearings had been heard separately, my Lord, in accordance with your Lordship's judgment, the claim on ground 2 would have been refused permission at the renewed oral hearing, my learned friend would not normally expect to get his costs for that, so just because the council are here and matters have been heard together, in my respectful submission there shouldn't be any order for costs in relation to that.

JUDGE SYCAMORE:

[76]But the council would have been entitled to its costs on the acknowledgement of service.

[77]MR LEWIS: Yes, my Lord.

JUDGE SYCAMORE: Can you remind me, was an order made?

[79]MR LEWIS: It would be the order of Holgate J, my Lord, in bundle 2, which is page 219 of bundle 2, my Lord. Yes, it's page 219 of the bundle, costs of the acknowledgment of service to be paid by the claimant to the defendant assessed in the sum of £1,500.

JUDGE SYCAMORE: Yes.

[81]MR MILLS: If I may briefly respond, my Lord.

JUDGE SYCAMORE: Yes.

[83]MR MILLS: The position therefore appears to be that, according to my learned friend's submissions on JR2, despite it being a rolled up hearing and the defendant having succeeded upon the basis of full argument on JR2, if I may use that terminology, had the defendant won less well it would have got its full costs, but because your Lordship refused permission and it won more comprehensively, it should be restricted to its costs of the acknowledgement of service.

[84]My Lord, that cannot be right in the circumstances of a rolled up hearing, where there has been full argument. This isn't a situation where there has simply been an application on paper and then an oral renewal hearing. The situation just simply isn't analogous. The defendant has resisted JR2 and has been comprehensively successful and it should be entitled to its reasonable costs of doing so.

[85]MR LEWIS: I do come back on that, my Lord. As your Lordship will recall, my learned friend's argument, Mr Turney on that occasion, in addressing submissions on behalf of the council, did no more in his skeleton argument, as he had done in his acknowledgement of service, did no more than reiterate the arguments fully set out in those documents my Lord. In my respectful submission that's not a fuller argument in resistance to the claimant's claim for permission than is suggested by my learned friend in characterising as it were the rolled up hearing as in effect a substantive hearing, my Lord. In my respectful submission there's no more argument involved in that.

JUDGE SYCAMORE: Yes, thank you.

[87]MR LEWIS: And it comes back to the point that I make about the convenience for the Royal Borough of Kensington and Chelsea to be present in court.

JUDGE SYCAMORE:

[88]Yes, I am not persuaded that any departure from the usual practice, which follows that a defendant is not entitled to costs on a renewed permission application, is warranted. Matters of overlap in terms of the claimant's costs will of course be dealt with on the detailed assessment to the extent that they affect quantum of the claimant's costs. So as far as the defendant's costs on the second judicial review are concerned, I simply confirm the order made at paragraph 4 for the claimant to pay the costs on the acknowledgement of service, assessed in the sum of £1,500.

[89]MR MILLS: Could that sum also be paid within 21 days.

JUDGE SYCAMORE: Or would it make sense for it simply to be deducted from the payment on account?

[91]MR LEWIS: Yes, my Lord.

JUDGE SYCAMORE: That would make life easier for everybody.

[93]MR LEWIS: Yes.

[94]MR MILLS: If that's all on costs, my Lord, I do have a very brief application for permission to appeal.

JUDGE SYCAMORE: Yes.

[96]MR MILLS: You will be aware that I haven't had the benefit of being at the substantive hearing, but I do make the application to reserve the council's position. Essentially my application is brief, and that the effect of the Westminster case and Oxfordshire case merits consideration by the Court of Appeal, and the council has a real prospect of success on its arguments on the validity of the section 106 agreement and as regards the parking permit issue, and that is a matter on which they have a real prospect of success, and it is an important matter suitable for consideration by the court. I don't add anything further, my Lord.

JUDGE SYCAMORE: Thank you very much.

[98]MR LEWIS: My Lord, I do resist that. In my respectful submission the Westminster City Council case and the Oxfordshire County Council case are clear authority as to the respective principles which they establish. The section 106 agreement here is in substance no different from the one in the Westminster City Council case, and the lack of entitlement to claim monitoring costs is flatly contrary to the principle in Oxfordshire County Council, so on that basis I do resist the application for permission, my Lord.

JUDGE SYCAMORE:

[99]Yes. Well I refuse the application for permission to appeal, for all the reasons set out in the judgment which I have just handed down. I am not satisfied that there is a real prospect of success.

[100]MR MILLS: My Lord, I'm grateful.

[101]MR LEWIS: My Lord, I do have one more matter. Of course I can't ask your Lordship's permission in respect of the refusal of permission on the judicial review applications, that's a matter covered by CPR 52.15, my Lord.

JUDGE SYCAMORE: Yes.

[103]MR LEWIS: But if the claimant were to seek to do that, my Lord, which is to renew his judicial review permission applications in the Court of Appeal, he would normally have to do that within seven days of your Lordship's judgment. May I ask that the time limited for seeking permission to apply for judicial review in the Court of Appeal (if so advised), the time limited do not start to run until receipt of your Lordship's approved transcript?

JUDGE SYCAMORE:

[104]Yes. Mr Mills, that makes sense, doesn't it?

[105]MR MILLS: Unless I'm told otherwise, I don't have any objection.

JUDGE SYCAMORE:

[106]Very well. We will say seven days from receipt of the approved transcript.