Wealden Planning Oversight Committee and Trustees on Behalf of Mirage 2005 Sass Pension Trust v Secretary of State for Communities and Local Government [2016] EWHC 745 (Admin)

Case No CO/5925/2015Case No CO/6265/2015[2016] EWHC 745 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 28 January 2016
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE CRANSTON
Between
WEALDEN PLANNING OVERSIGHT COMMITTEE and TRUSTEESClaimantON BEHALF OF MIRAGE 2005 SASS PENSION TRUSTClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
The Claimant appeared through a company director, Mr Philip JinksMr J Parker (instructed by SSCLG) appeared for DefendantMr W Beglan (instructed by Wealden Council) appeared for Defendant
J U D G M E N T

MR JUSTICE CRANSTON: Introduction

[2]There are two linked challenges before me. The first is an application for leave under section 289(6) of the Town and Country Planning Act of 1990 (“the 1990 Act”) to appeal a decision of a planning inspector. That decision letter was dated 5 November 2015 and it dismissed an appeal which had been made against an enforcement notice issued by the Wealden District Council (“the Council”). The second challenge is brought against the decision of the planning inspector under Part 8 of the CPR pursuant to section 288 of the 1990 Act.[3]In addition to those main challenges, there is an application notice dated 22 January 2016. This followed a hearing before Charles George QC, sitting as a Deputy High Court Judge on 14 January 2016. The deputy judge had adjourned the hearing at the request of the claimants because of the inability of Mr Philip Jinks their representative to appear that day. That adjournment was made on medical grounds. Mr George decided, in light of the late application for the adjournment, that the claimants and Mr Jinks personally should pay the costs which had been incurred by the Secretary of State and the Council in respect of that hearing, on the basis that there had been undue delay in seeking the adjournment. The application notice of 22 January seeks to vary the deputy judge’s order in relation to costs, but it also requires the Council to provide disclosure of documents. I will return to that in a moment.[4]On 11 January 2016, Paterson J ordered that the section 289 and Part 8 matters be joined and listed for consideration on 14 January. She had observed that the two matters were inextricably linked and should be heard together and both required permission to proceed. She noted that the two impugned decisions arose out of the enforcement notice appeal. She said that the subject matter of the Part 8 matter could be brought under section 289 as well as the section 288 application. She continued:
"Should the claimant wish to argue for a different approach, it is open to do so at the listed hearing as well as putting its contention that permission should be granted."
[5]In the application notice, no specific objection was taken that the Part 8 matter be treated pursuant to section 288. Mr Jinks explained to me that a notice of discontinuance filed on 12 January meant all but Wealden Planning Oversight Committee LLP discontinued in relation to the Part 8 matter because of a concern with potential costs. In particular, the trustees of the pension fund had not wanted to incur the cost of an amendment. The application notice itself accepted that the two matters could run together and on that basis I have allowed the proceedings to proceed this morning. In my view it was appropriate in terms of the Overriding Objective of the CPR that they be heard together and decided together. There was no specific objection raised to that course by Mr Jinks on behalf of Wealden Planning Oversight Committee LLP or by the Secretary of State.[6]This matter was listed for an hour. In fact it will certainly run into its third hour. Almost the first hour was taken by the focus on the application in the notice of 22 January for disclosure of documents. To some extent that overlapped with some of the grounds raised in the section 289 challenge and I will return to that in a moment.[7]Background[8]Before proceeding further, it is possibly helpful if I briefly outline the background. As I explained earlier, there had been a decision of a planning inspector, a Dr Paul Dingnam, who heard appeals against an enforcement notice which the Council had issued on 8 December 2014 in respect of land at Gatehouse Farm, Stocklands Lane, Hadlow Down, East Sussex. That site is approximately 1.1 hectares. It is in open countryside within the High Weald area of outstanding natural beauty. The inspector describes how the site has a large single story industrial-type building and 11 large in ground fish tanks. The inspector also describes how the present owners, some of the appellants in this case, bought the site in 2007, how their sellers had used it as a fish farm and how they had in turn obtained the property in 1996 from owners trading as Koi Valley Fish Farm.[9]The inspector also deals with some of the planning history of the site. It is useful to record that in 1990 planning permission was granted on appeal for an agricultural workers’ dwelling for an existing poultry enterprise. That permission was never implemented. In 1990 planning permission had been sought and refused for the provision of a temporary mobile home for use by a farm manager. Then in 2000 planning permission was granted retrospectively for the installation of external fish stock tanks on the site. In 2004 permission was granted for two additional stock tanks similar to the existing tanks.[10]The issue of access to documents, which as I have said forms part of the application notice of 27 January, has run as a thread through Mr Jinks' concerns in recent years with the enforcement action being taken by the Council. Mr Jinks took me to freedom of information requests which he had made in relation to the enforcement records in January 2015, to an internal review which he requested when the information was not provided and then to a further email which he had sent to the Council in March 2015 calling for the disclosure of the information. He explained that information about the enforcement history of the site was essential to his case but the Council refused to provide that information, indeed did not seem to keep it records properly.[11]In particular, the information concerned evidence which would have been given by neighbours called the Parkes, who had lived there for some considerable period. They had told him that there had been a static caravan on the site and that when it was removed the occupants moved into the building. Without the enforcement records, he asserted, it was not possible to make his claims as good as would have otherwise been the case. Although, in Mr Jinks' account, Mr Parkes gave a statutory declaration, he did not give evidence before the inspector because the Council (again on Mr Jinks' account) had apparently informed him that his evidence would not assist.[12]The issue of information not being available before the inspector was addressed specifically in paragraph 6 of his decision letter. Mr Jinks had applied for an adjournment so that he could gain access to further information. Importantly, that information included information held by the Council. The inspector records that Mr Jinks said that he would need time to address nondisclosure of that information through the courts but the inspector says:
"No such application has been made and Mr Jinks was unable to say what documents he saw might have been."
[13]In a footnote the inspector records that during the course of the enquiry Mr Jinks was provided with information about the refusal notice for the 1990 planning application for use of a mobile home. Mr Jinks retorts, in particular in relation to the application notice of 22 January, that what is really needed are the enforcement records. I note in passing that the issue of disclosure of enforcement action against residential use of the site was raised again in the costs decision of the inspector, where at paragraph 5 the inspector records that Mr Jinks had believed that it was being withheld. However, as the inspector notes again as in the decision letter itself, Mr Jinks had provided no evidence of any substance to support his assertion:
“On the strength of the evidence provided, I could not reasonably conclude that the Council was deliberately withholding relevant information from the appellants.”
[14]I indicated during the course of the hearing this morning that I was refusing this part of the application notice. Essentially that is for the reasons the inspector himself has given, namely, that Mr Jinks had not made the case. Albeit that he took me to certain attempts in 2015 to obtain the information, he has not explained why the matter was not pursued with greater vigour before the hearing of the inspector. Moreover, as the inspector noted, an application could be made to the court pursuant, for example, to freedom of information legislation or alternatively the local government legislation.[15]I note also that Mr Jinks is a non-practising barrister and is not ignorant of the claimants’ legal rights or of how to pursue them. But more importantly, I was not persuaded that the information about enforcement history would have had any fundamental impact on the inspector's decision. That requires me to address how the inspector dealt with the matter and the challenges which Mr Jinks has made to his decision letter. Inspector’s decision[16]After setting out the background as I have described it, the inspector considered first of all that the ground (b) appeal namely that the matters alleged in the notice as constituting a breach of planning permission had occurred: section 174(b) of the 1990 Act. The inspector considered certain arguments that Mr Jinks advanced on behalf of the appellants, for example, the fish production at the site was pet shop use and not fish farming. In the course of considering that particular argument, the inspector stated that the production of fish for ornamental purposes was not agricultural use and then said this:
"However, notwithstanding that the Council has always treated the use as agricultural… the allegation in the enforcement notice does not qualify the breach in this way. “Fish farm” describes the use of land and the evidence is that this is what the appeal property has been used for since at least 1990."
[17]The inspector then considered a second argument (b), that the use of the property was now wholly residential and that fish rearing was no more than a hobby. In relation to this and a third argument, he rejected any basis for the ground (b) appeal. In particular, in terms of the use of the property as a fish farm, there was other evidence, for example, there had been a recent re-registration of the site with the Centre for Environmental Fisheries and Agricultural Science, and there was also that Mr Jinks had contact with the Council taxation department in relation to the particular use of the property.[18]The inspector then turned to ground (c), namely, that the matters alleged in the notice if they had occurred did not amount to a breach of planning control: section 174(c) of the 1990 Act. Again he rejected the argument, commenting that the introduction of full time residential use to a fish farm use was clearly material.[19]In the ground (d) appeal, the issue was whether it was too late to take enforcement action: section 174 of the 1990 Act. The inspector put the issue in way "whether or not the property has been used consistently and continuously both as a fish farm and for residential purposes for a period of at least ten years."[20]The inspector noted what Mr Jinks had said about what the Parkes had told him and commented that as hearsay that evidence carried very little weight. He then outlined at some length the evidence of Mr Michaelson Yates, the next door neighbour to the east, who had lived there from 1997. Mr Michaelson Yates had described the use of the site, how, for example, staff had stayed at the property, although the inspector did note:
"that only occupier he, namely Mr Michaelson Yates could specifically recall occupying the building was a young man who rode a motorbike up and down the site but that was only for the period of 1999 to 2001."
[21]After recounting the evidence given by Mr Jinks' daughter, Rebecca, the inspector turned to the evidence of Mr Cukuracus, who was the neighbour on the other side and who had been there from, it seems, 2007 or 2008. He gave evidence that he and his partner walked the dogs regularly past the site. They noticed a change in the pattern of activity in mid 2013 when a removal van made a series of visits which seemed as if someone was moving in. There was then evidence from Council officials as to what they saw on visits to the site.[22]The inspector then summed up this evidence by saying that he found it difficult to accept Mr Jinks’ assertion that the building had been used for residential purposes consistently and continuously over a period of the appellants' ownership of the property. There did not seem to be anyone living there and Mr Cukuracus had assisted in repair and conversion work of the building in 2008. The inspector noted that Mr Jinks' own account of his use of the property was vague and imprecise. He said that given the poor state of the building and the fact that council officers visiting saw no sign of occupancy, he considered that residential use of the building could not have been clear at any time that Mr Jinks was not actually in residence. He then said that the evidence provided a mixed use for any continuous period of ten years prior to the issuing of the notice "falls well short of discharging the burden of proof which lies with the appellant."[23]The inspector had earlier addressed the issue of the enforcement notice. That had referred to a period of four years which was clearly incorrect. The inspector said that he would amend it to ten years and added:
"The appellants have identified in their statements the relevance of the ten-year period and have directed most of their arguments there."
[24]The inspector then turned to whether planning permission should be granted. In the course of that he said that the deemed planning application derived in terms from the allegation in the enforcement notice and was "therefore for the change of use of the land from use as a fish farm to a mixed use as a fish farm and for residential purposes." He continued that what the appellant was actually seeking was planning permission for a change of use of the land which included the building for residential use, that is, use of the building as a dwelling house and land as a garden. He referred to there being no evidence of any attempt to market the building on the property as a whole "for its lawful use as an agricultural fish farm."[25]He said that he could see no justification for relaxing the strict control on a new residential development in the countryside and referred to the proximity of the Ashdown Forest special protection area/special area of conservation and to other factors which led him to conclude that the proposed development would be contrary to the development plan and not accord with the government's approach to the protection of internationally designated nature conservation sites.[26]In considering ground (f), the inspector referred to the use of the site as an agricultural fish farm. He then considered the time for the enforcement action to take place and rejected (as with the other points) the appellants' case. Consideration of appellants’ case[27]Before me Mr Jinks has advanced the case under the 13 grounds set out in the section 289 application. In his submission these grounds should be considered in the round as well as individually. There is no need for me to deal with each ground separately because they fall to an extent under different heads. For example, the early grounds deal with the fact that the inspector did not have evidence before him but refused to grant an adjournment so that that evidence could be obtained. I have already outlined Mr Jinks' case in relation to this and have indicated that I do not see any substance to it.[28]In terms of the approach of the inspector, Mr Jinks submitted that he was required to act in accordance with principles of natural justice, but he did not consider fairness in his decision about the an adjournment. In no way can I regard the course the inspection adopted as being in breach of either of those principles. A specific point was raised about the evidence of a Mrs Morris who is an experienced planning consultant? Mr Jinks' case was that the inspector refused to hear evidence from her and that it was only at the costs stage that her evidence was taken into account. Mr Jinks' recollection of what happened was that the inspector actually refused to hear her. To my mind, that case is not being made. There is no proof of evidence from Mrs Morris in relation to the issues before the inspector and in Mr Beglan's recollection, Mr Jinks had indicated that he did not intend to call her on those matters. Whatever the position I am not persuaded, and Mr Jinks has not explained, how her evidence would have made the slightest bit of difference to the outcome of the inspector's decision.[29]Mr Jinks then raised the issue of the amendment of the enforcement notice. In his submission it had been, at the very least, unfair for the inspector to have amended the notice in the way that he did, expanding the period for four years because the case had been prepared on the basis of the four-year period set out on the notice. In particular he reiterated the point which I canvassed earlier about Mr Parkes’ evidence. Had the ten-year period being at the forefront, Mr Parkes' evidence would have been so much more powerful.[30]In my view this gets nowhere. In the statement of case dated 9 March 2015 it was clear, as the inspector said, that the appellants' case was being prepared on the basis of the ten-year period. In my view there was no injustice to the appellant's with the amendment the inspector amending the notice in the way he did.[31]Mr Jinks referred in general terms to what he said was the lack of evidence supporting the inferences and conclusions which the inspector had drawn. As he put it in ground 7, not only did they not justify the inspector's conclusions but they led irresistibly to the opposite inferences or conclusions. "The inspector has improperly failed to exercise proper judgment to control proceedings and in reaching his decision has relied upon relevant contradictory and/or pseudo-legal authorities.”[32]In the course of his submissions this morning, Mr Jinks also referred to factual errors in particular the inspector’s description at several points of this being an agricultural fish farm and that being the lawful use. As he put it, without the right information the inspector was never going to reach the right result. Again I reject that ground. To my mind, reading the decision the inspector carefully considered the evidence, gave reasons for not adjourning to obtain other speculative evidence and albeit that at least two points described the lawful use as being as an agricultural fish farm did not in any way use that as a central point in his reasoning. Indeed in the passages I have quoted, it is evident that the inspector understood the planning status of the site and that any misuse of terminology was simply a slip of the pen. In as much as there was a slip of the pen, it was in no way influential in terms of the reasoning.[33]In the following grounds, Mr Jinks attacked the inspector's analysis of the test for residential use, albeit that the inspector had referred to residential use as use of a building as a dwelling house and its land as a garden, that was a description of the reality rather than used in terms of his legal analysis. There was no error of law in terms of the inspector's understanding of the lawful use of this site or what was being proposed.[34]Mr Jinks turned in ground 11, the inspector misdirecting himself as to fish farm use. I have already addressed that point. It is clear to me that the inspector had considered the evidence with great care in reaching his conclusion on this point and in upholding the notice.[35]The next ground deals with a failure to give reasons. One aspect of Mr Jinks' criticism in this regard concerns the weight that the inspector had given to the use of the hearsay evidence, both of himself and of Mr Michaelson Yates. The inspector was perfectly entitled to take the view he did. Mr Parkes was available to give evidence. He could have given evidence but did not do so. What Mr Jinks said about the evidence he would have given was therefore quite properly treated by the inspector as being of little weight.[36]The final criticism is of bias. In my view that goes nowhere.[37]That being the case, I refuse permission in relation to both the appellants’ section 288 and 289 matters. The only outstanding matter concerns costs and I will now hear submissions about that.

MR JUSTICE CRANSTON: Mr Jinks you want to tell me about the deputy judge and how he treated costs.

[39]MR JINKS: Yes my Lord. The argument is at page 2 in the application.

MR JUSTICE CRANSTON: He said you applied for the adjournment far too late.

[41]MR JINKS: Yes, he did my Lord but I think that is the unfairness of it. Once the issue was identified I spoke with the Secretary of State solicitor's office.

MR JUSTICE CRANSTON: When did do you that, sorry? The hearing was the 14th.

[43]MR JINKS: Yes. This on the 13th.

MR JUSTICE CRANSTON: On the 13th? Why did you leave it so late?

[45]MR JINKS: I wasn't particular aware, sir, of the actual problem, myself aware of the problem in my leg and the infections that were going on but not the problem --

MR JUSTICE CRANSTON: Where is the medical evidence?

[47]MR JINKS: Yes. There is the letter from the doctor. There were sick notes before Christmas.

MR JUSTICE CRANSTON: Yes.

[49]MR JINKS: If I take you to the actual application the section 289. The point was actually raised in that application at 62 in the original bundle.

MR JUSTICE CRANSTON: In the hearing bundle or which bundle?

[51]MR JINKS: The blue bundle.

MR JUSTICE CRANSTON: I do not have a blue bundle but 62.

[53]MR JINKS: It is 62 in the main one.

MR JUSTICE CRANSTON: I am not sure I have this actually.

[55]MR JINKS: It is tab 3.[56]MR JUSTICE CRANSTON: This is not in the hearing bundle. It is in the hearing bundle?[57]MR JINKS: Yes.[58]MR JUSTICE CRANSTON: Sorry. Tab 3, what page?[59]MR JINKS: It is at page 62.[60]MR JUSTICE CRANSTON: It is different numbering. Let me find it.[61]MR JINKS: Various evidence in support of ground 2, the applicant presented a medical certificate. That was until a sort of, well actually it says there 24 December. So we had requested at that time an extension of time for --

MR JUSTICE CRANSTON: So you had a medical problem at that stage.

[63]MR JINKS: Yes my Lord. Between then and I believe it was the 7th when I went back to see the consultant and the infection then was being treated by a different source of antibiotics. It was now the fourth time on antibiotics and it was that which was causing me even more difficulties.

MR JUSTICE CRANSTON: Have we got a medical letter?

[65]MR JINKS: Yes. There is doctor's letter.

MR JUSTICE CRANSTON: Where is that?

[67]MR JINKS: That was in the application bundle I think page 7 and page 8. There is the, yes, it was from the 7th. I was under a certificate there.

MR JUSTICE CRANSTON: Sorry, where was that?

[69]MR JINKS: The application bundle rather than --

MR JUSTICE CRANSTON: Of the 22nd.

[71]MR JINKS: Yes.

MR JUSTICE CRANSTON: I have your statement.

[73]MR JINKS: Well in the exhibits.[74]MR JUSTICE CRANSTON: That is what I want. Where is that?[75]MR JINKS: The exhibit is at page 7 of the exhibits. There is the letter there from the doctor.

MR JUSTICE CRANSTON: Yes, I have it.

[77]MR JINKS: But there is also the renewed certificate 3. Which again, Mr Shetty simply refers to right tender Achilles repair. What he did not know was that the new antibiotics were reacting with the strong painkillers.[78]MR JUSTICE CRANSTON: This was presented. What did the deputy judge say on the 14th?[79]MR JINKS: Unfortunately I wasn't there.

MR JUSTICE CRANSTON: No, but what does his order say? Where is his order?

[81]MR JINKS: The order is at the front of the bundle there and that is at pages 1 and 2.[82]MR JUSTICE CRANSTON: Of the application bundle? In the appendices. Anything more on that?[83]MR JINKS: Yes my Lord. We acted with all promptness and involved the parties in it. I don't know what else one could do. The application for adjournment --[84]MR JUSTICE CRANSTON: Sorry. Let us look at the doctor's letter. You were treated on 1 October, then you had several wound infections and then you had these antibiotics and strong pain relief. Your foot was oriented and you are not in the best position but I think probably what the deputy judge was saying was that you knew all about this, an unfortunate situation but you knew all about it. Why had you not acted earlier? That was what he was saying. That the basis of his decision.[85]MR JINKS: My Lord we did not because the new drugs were not prescribed until the 7th.

MR JUSTICE CRANSTON: Where do I see that?

[87]MR JINKS: That no, it does not actually say that but is the only way you get that evidence but it does not actually say it. But the doctor is quite clear that is the combination of the drugs at that time.[88]MR JUSTICE CRANSTON: Let us hear from the others. Was that you Mr Parker?[89]MR PARKER: Yes. I was here on last occasion. If I refer my Lord to appendix 5 of the document which is the document which refers to the schedule -- the third and fourth respondent, which was effectively -- in the bundle appendix 5 page 9 perhaps the easiest way of --[90]MR JUSTICE CRANSTON: Mine goes appendix 3, appendix 4. I do not have appendix 5. I go to page 8. This is in the application bundle.[91]MR PARKER: On 22 January.

MR JUSTICE CRANSTON: What are we looking at?

[93]MR PARKER: I have it as an appendix to application notice and as my documents are numbered it is page 9 of the exhibits.[94]MR JUSTICE CRANSTON: I have an order there. Sorry, I go from page 7, page 8 and then I go to page 19, 20, 21.[95]MR PARKER: I don't know whether --

MR JUSTICE CRANSTON: Tell me what it is.

[97]MR PARKER: Well, it set out the basis on which Mr Jinks was making his application for an adjournment. In fact we did refer to the document A. It is a skeleton argument on behalf of the third and fourth appellants. So I presume you do have that document.

MR JUSTICE CRANSTON: I certainly have that somewhere.

[99]MR PARKER: Somewhere.[100]MR BEGLAN: My Lord I have multiple passages in my copy.[101]MR PARKER: I have a clean copy.[102]MR JUSTICE CRANSTON: I have the copy somewhere. I have it, skeleton argument of 3rd and 4th is that it?[103]MR PARKER: Yes, that's it.

MR JUSTICE CRANSTON: Where do we go? Adjournment.

[105]MR PARKER: The only point that I seek to make, given that Mr Jinks now seeks to --

MR JUSTICE CRANSTON: Make it --

[107]MR PARKER: Mr Jinks now seeks that he should not pay the costs of that adjournment but at the time he made that application for the adjournment he accepted he would need to pay the costs associated with that hearing.

MR JUSTICE CRANSTON: Where is that?

[109]MR PARKER: Paragraph 29.[110]MR JINKS: Wasted.

MR JUSTICE CRANSTON: The appellants are to undertake the wasted costs for that hearing.

[112]MR PARKER: So Mr Jinks accepted that --[113]MR JUSTICE CRANSTON: Get the point. Anything anymore?[114]MR PARKER: No.

MR JUSTICE CRANSTON: Well, you accepted it.

[116]MR JINKS: Just the wasted costs. I think that is what we are arguing.[117]MR JUSTICE CRANSTON: It was the wasted costs. They turned up on the day. What were the costs?[118]MR JINKS: That is the point. I have not been notified what the specific costs wasted are. We accepted that we would have to pay something if it was necessary.[119]MR JUSTICE CRANSTON: We don't know the costs. Mr Beglan any help?[120]MR BEGLAN: I certainly have in relation to my costs, but I have a sufficient for all of my costs. That is all.[121]MR PARKER: As I understand it, and Mr Jinks will correct me if I am wrong, we haven't set out to him what the specific figure in respect of those costs would be. What I propose to ask for are the entirety of the Secretary of State's costs associated with these proceedings today following the refusal of permission. In any event it does not make any particular given to the specific figure because it is included in the updated figure. If you are happy that Mr Jinks should bear the costs of the adjourned hearing those will be --

MR JUSTICE CRANSTON: How is that going to be assessed? It is going to be done on papers by me.

[123]MR PARKER: I will ask you to assess the costs summarily today.

MR JUSTICE CRANSTON: Yes, but we do not know what the figure is.

[125]MR PARKER: I can give you the figure in respect of the total amount. In respect of today's hearing --

MR JUSTICE CRANSTON: How are going to get today's hearing?

[127]MR PARKER: My lord.

MR JUSTICE CRANSTON: How are you going to get today's hearing?

[129]MR PARKER: I have statements here.

MR JUSTICE CRANSTON: No, as a matter of principle.

[131]MR PARKER: Permission is being refused and contrary to section 289 lead appeals, the respondent is entitled to the cost of the oral hearing.

MR JUSTICE CRANSTON: Where is that?

[133]MR PARKER: I do not have the authority with me but I can dig it out. I would suggest --

MR JUSTICE CRANSTON: 289, what subsection?

[135]MR PARKER: It isn't set out in the statute my Lord. It is an authority --[136]MR JUSTICE CRANSTON: Mr Parker, Mr Parker you should know this. This has to be dealt with.[137]MR PARKER: Yes, my Lord.[138]MR JUSTICE CRANSTON: One page to my clerk in writing and I will consider the application but I have Mr Jinks he does not want to pay. He wants to pay a reasonable amount. What about today though? I want some explanation about that as well.[139]MR PARKER: I am sorry my Lord.[140]MR JUSTICE CRANSTON: I want an explanation as to why you want the costs of both that hearing and this hearing.[141]MR PARKER: Yes my Lord.

MR JUSTICE CRANSTON: Yes Mr Beglan.

[143]MR BEGLAN: Recognising that ordinarily there would be two sets of costs proceedings such as interim relief and judicial review on principle, I say that there are three reasons why we ought to get an award of costs. The first relates to the nature of the allegations that were made against local authority officers. They are Mr Jinks’ --

MR JUSTICE CRANSTON: Well he retreated from that this morning.

[145]MR PARKER: He did this morning but not before this morning, the cost being incurred by that stage.[146]MR JUSTICE CRANSTON: I have that point. Next one.[147]MR PARKER: They were serious allegations including suggestion related to fraud. Secondly, in relation to the section 288 proceeding, Mr Jinks sought an injunction against the local authority to stop it from taking any further enforcement action.

MR JUSTICE CRANSTON: Where is that? I have not seen that.

[149]MR BEGLAN: On the face of the section 288 part 8 claim.

MR JUSTICE CRANSTON: What do you about that though? What did you do about that Mr Beglan?

[151]MR BEGLAN: My lord.

MR JUSTICE CRANSTON: What did you do about that?

[153]MR BEGLAN: We decided to appear to resist it if it was necessary.

MR JUSTICE CRANSTON: When was that?

[155]MR BEGLAN: At both the hearings.

MR JUSTICE CRANSTON: I see.

[157]MR BEGLAN: So it is not a single case where there was just the challenge.

MR JUSTICE CRANSTON: What is the third point?

[159]MR BEGLAN: The third point is in relation to assistance we were able to give the court. It seemed to us that it would be likely that we might be asked to assist because of the nature of the complaints Mr Jinks was making about what had actually transpired at the planning enquiry and as it turns out in my submission we were correct about that because my Lord did ask for assistance.

MR JUSTICE CRANSTON: Where is the schedule?

[161]MR BEGLAN: The schedule is here and it has been served on Mr Jinks. Could I, while the third point is being handed up, make the point that we of course already have the costs thrown away by the hearing on 14 January as a result of Mr George's order. So the total of our costs over two pages is in the order of £5000 and I would invite the court to summarily assess in that sum.[162]MR JUSTICE CRANSTON: I have your submissions. When I have Mr Parker's submissions, I will make an order about costs and Mr Jinks, what about today, the cost of today?[163]MR JINKS: My Lord --

MR JUSTICE CRANSTON: You do not want to pay them I know.

[165]MR JINKS: We do not. I don't think it would be reasonable to expect us to. We do accept that, you know, there were costs wasted before, but I think they should be looked at carefully, if we could request that.[166]MR JUSTICE CRANSTON: I think what you do Mr Parker is serve your one page within, how quickly, end of the week?[167]MR PARKER: Yes.[168]MR JUSTICE CRANSTON: You get it on Friday, served on Mr Jinks. You then have until Thursday of the next week.[169]MR JINKS: Thank you, my Lord.[170]MR JUSTICE CRANSTON: Make any submissions and I will then make the decision. Thank you very much.