London Borough of Hounslow v Secretary of State for Communities and Local Government (The Planning Inspectorate) & Anor

Neutral Citation Number: [2009] EWHC 1055 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No. CO/10258/2007 Royal Courts of Justice The Strand London WC2A 2LL Date: Monday 6 April 2009 B e f o r e: MR JUSTICE COLLINS - - - - - - - - - - - - - - - - B E T W E E N: LONDON BOROUGH OF HOUNSLOW Appellant and SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (THE PLANNING INSPECTORATE) First Respondent and MRS KRISHNA DEOI KAPOOR Second Respondent - - - - - - - - - - - - - - - - Computer Aided Transcription by Wordwave International Ltd (a Merrill Communications Company) 190 Fleet Street, London EC4 Telephone No: 020 7421 4040 (Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - Mr Richard Harwood (instructed by London Borough of Hounslow Legal Department) appeared on behalf of The Appellant Mr Tim Buley (instructed by the Shergill & Co, London TW3 3EB) appeared on behalf of The Second Respondent - - - - - - - - - - - - - - - - J U D G M E N T MR JUSTICE COLLINS: 1. There are two claims before the court. The first, under section 289 of the Town and Country Planning Act 1990, is an appeal against a decision by an inspector to quash an Enforcement Notice which had been made by the council. The second is a claim under section 288 of the Act in relation to the decision by the inspector to grant planning permission. That was the result of the appeal under ground A against the Enforcement Notice, namely that planning permission should have been granted for the matter which was alleged to be the breach of planning control. The fact that there are two separate claims is nothing to the point because the issue raised in each is in effect whether the inspector's decision was flawed by an error of law and, if so, whether it is right that an order should be made in favour of the Council quashing the inspector's decision and remitting the matter for fresh consideration. 2. The background can be shortly stated. The second respondent, Mrs Kapoor, is the owner of a house with a garden at 110 Bath Road, Hounslow. At some stage she had built in the garden, which stretches a distance back from the house, a building. It may be that originally it was intended as a garage. Planning permission was granted for the construction of a garage in the garden. In addition, she obtained planning permission to change the use of the house into four separate self-contained flats. 3. The building in the garden was either built as, or converted to, a dwelling-house. It is that that has led to the enforcement action and hence to these proceedings. The material dates are as follows. In 1963 an application for the erection of a pair of garages was granted. In 1970 the application for the conversion to flats was granted. In 1996 there was a refusal of planning permission for the erection of a detached dwelling in the rear garden. But in 1999 there was granted an application for the erection of a garage, presumably because that granted in 1963 had not been carried out. 4. In 2002 the Council's enforcement team received a complaint alleging that the detached building in the garden had bathroom and kitchen facilities installed and was being rented out as a separate dwelling. An enforcement inspection by an enforcement officer in April 2003 established that that conversion had taken place without the benefit of planning permission. In September 2003 there was a further visit. Mrs Kapoor apparently told the enforcement officer that the residential use had ceased. That was certainly the information received by the Council. As a result the question of any enforcement dropped away. However, in November 2005 there was a further complaint concerning the residential use of the outbuilding and, accordingly, a further enforcement investigation was carried out. It was established that the outbuilding was indeed being used as a self-contained bungalow. 5. Accordingly, Mrs Kapoor made an application for retrospective planning permission in respect of the bungalow. The Council refused that application on 6 April 2006. The reasons for refusal, so far as material, were stated as follows: "The proposal to retain the detached bungalow fails to meet the Council's definition of acceptable backland development, providing an unsatisfactory level of accommodation for the residents of the house and resulting in an unacceptable loss of SMITH BERNAL WORDWAVE garden space to the users of the original house at 110 Bath Road. The bungalow fails to respect the character of the area and, by its scale, position and design, harms living conditions at neighbouring properties through loss of outlook and an overbearing effect." There is then reference to the relevant policies which are said to have been breached. 6. Mrs Kapoor appealed against that refusal. That appeal came before an inspector who dismissed it on 10 May 2007. The inspector found against Mrs Kapoor on each of the three main issues: first, the effect of the bungalow on the character and appearance of the surrounding area; secondly, the relationship between the bungalow and 110 Bath Road in terms of outlook and privacy; and thirdly, whether the development would provide acceptable living conditions for future occupiers of the bungalow, with regard to outlook, amenity space and access. He took the view, putting it broadly, that the relationship between the proximity of the boundary of what was to be the garden of the bungalow with the house at 110 Bath Road was such that the privacy available would be significantly affected and that there would be an adverse impact and so it was in conflict with a relevant plan policy. In connection with the living conditions for future occupiers, although the fact that the access was poor would not on its own have led to the refusal of permission, the inspector concluded that overall the development would not provide acceptable living conditions for future occupiers of the bungalow with regard to outlook, amenity space and access. Looking at the matter in the round, he dismissed the appeal on the acceptability of the proposal. 7. Following the dismissal of the appeal, the Council issued an Enforcement Notice dated 25 January 2007. It was due to take effect on 1 March 2007. It required the use of "the Outbuilding" to the rear of 110 Bath Road as a separate residential unit to cease. There was a direction that there should be removal of the bathroom and kitchen facilities from it. There was not, and could not be by then, a requirement to remove the building itself because it had been there for a period in excess of four years. However, it was the Council's contention, having regard to the history to which I have referred, that it had not been used as a dwelling for more than three years and that therefore that aspect could be dealt with by the Enforcement Notice. 8. Mrs Kapoor appealed against that Enforcement Notice. Her appeal was on ground A, namely that planning permission should be granted. In the Appeal Notice there is a standard box headed "Other Appeals/ Applications" which asks: "Have you made any other appeals to the Secretary of State on this, or nearby land, for example, against a refusal of planning permission or of lawful development certificate." The "Yes" box is ticked. The Appeal Notice goes on: SMITH BERNAL WORDWAVE "If yes, please give details, including our reference number if known." Under that is typed: "Planning Appeal ...." The relevant reference is given which shows that it was an appeal made in 2006. The box goes on: "Has the appellant applied for planning permission and paid the appropriate fee for the same development as in the enforcement notice?" Again the "Yes" box was ticked. It was said that the relevant application had been made on 22 December 2005 and that the Local Planning Authority's decision had been made on 6 April 2006. It was obvious that there had been a refusal, otherwise there would have been no need to appeal against the Enforcement Notice because it clearly could not have been issued. 9. Unfortunately, due to an error both in its summary to the Planning Committee, which considered whether an Enforcement Notice should be issued, and in the statement that it submitted to the inspector when Mrs Kapoor appealed, those responsible stated that the owner had not appealed against the Council's decisions not to grant planning permission and had not remedied the breach. (It also used the masculine which was another error.) 10. It is clear that whoever was responsible was unaware of the appeal because otherwise he could hardly have recommended that there should be an Enforcement Notice before the decision on the appeal was known. The Enforcement Notice was issued in March, following a decision in January 2007; but the appeal against the refusal of planning permission was not determined until 10 May 2007. Unfortunately, the Council's internal arrangements were such that one side clearly did not know what the other side was doing. Therefore that error was made and was unfortunately perpetuated. Thus, as Mr Buley points out, this was not a case simply of the Inspectorate not being informed of the fact of an appeal, but it went further because the Inspectorate was informed that there had not been an appeal. In the result, this being a decision made by the inspector on written representations (there was no hearing), the inspector was unaware of the previous decision when on 11 October 2007 he reached his decision on the Enforcement Notice appeal. He decided that planning permission should be granted. Thus he SMITH BERNAL WORDWAVE allowed the appeal and directed that the notice be quashed. He was only concerned with the second and third issues that were heard by the first inspector, but his decision was totally contrary to that of his predecessor. That is an unfortunate state of affairs because it is important for obvious reasons that there should be consistency. Furthermore, it is accepted by Mr Buley (and it is common ground) that the fact of a previous decision on the same issue was a material consideration within the meaning of the provisions of the Town and Country Planning Acts. That that is so is apparent from a decision of the Court of Appeal in North Wiltshire District Council v Secretary of State for the Environment (1992) 65 P&CR 137. That was a case in which there had been a previous appeal decision materially indistinguishable from the present case, which had not been referred to by the inspector, albeit it had been part of the material put before him. It follows that the inspector gave no reasons for a decision which was contrary to that previous decision. The headnote reads: a previous appeal decision which is materially indistinguishable from the present case is a material consideration within the meaning of section 29 of the Town and Country Planning Act 1971 which an inspector should take into account in determining whether or not to grant planning permission on an appeal. An inspector is free to depart from an earlier decision but before doing to he ought to have regard to the importance of ensuring consistent decisions and must give his reasons for departing from the earlier decision. "(i) ...." At page 146 Mann LJ, giving the only reasoned judgment, made the point that that case depended upon the fact that the previous decision had been put before the inspector and so he was aware of it. He said at page 145: "In this case the asserted material consideration is a previous appeal decision. It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self- evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always He is therefore free upon exercise his own judgment. consideration to disagree with the judgment of another but before SMITH BERNAL WORDWAVE doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision." 11. As Mr Buley correctly points out, that case goes no further than to make the point that such a previous decision being material has to be taken into account and reasons must be given for departing from it, but in a case where (as with the facts in the Wiltshire case) the inspector was aware of that previous decision because it was in the papers before him. That, Mr Buley submits, is not the position here. He further submits that it is not an obligation upon an inspector to make inquiries in this sort of a case where he has been told in terms that there was no appeal against the relevant refusal by the Local Planning Authority of planning permission. 12. Mr Harwood's submissions have been put on a wider and a narrower basis. The wider basis contends that, in respect of matters which are clearly material such as a previous decision on the same point, there is an obligation because of the public interest and concern in a proper planning control for an inspector to consider all relevant material such as this. If he does not do so, that mistake of fact is, as the law has developed, sufficient to mean that his decision as a matter of law is one which cannot stand. 13. It is true that the law has developed since 1992, and no doubt continues to develop. There are cases which point in the direction of permitting a mistake of fact to operate in that way. As against that, as Mr Buley has pointed out, there are ample authorities which establish that it is not generally to be regarded as an error of law for a decision-maker to fail to take account of material not put before him. The approach has generally been (and he submits should remain) that that power to overturn a decision should only be exercised where the party who seeks it was not to blame for the failure to put the material before the decision-maker. He accepts and recognises that an innocent party adversely affected by a decision reached without considering an important matter which was clearly material may be able to overturn it even if the decision- maker was innocent in the sense that he was not, nor could he have been expected to be, aware of the material matter, but being innocent, being adversely affected by a public law decision he would be able to argue (and perhaps succeed) on the basis that there was a failure by the decision-maker to take account of a material consideration and in the case of an innocent party it mattered not who was to blame for the failure to put the matter before the decision-maker. 14. The development of the law has to an extent been indicated by a decision of the Court of Appeal (Lord Phillips of Worth Matravers MR, Mantell and Carnwath LJJ) in two immigration cases E and R v Secretary of State for the Home Department [2004] QB 1044. They were asylum appeals in which the question arose as to whether matters which had mistakenly been regarded as established before a tribunal were not. The headnote reads: "(i) .... mistake of fact giving rise to unfairness was a separate head of challenge on an appeal on a point of law, at least in statutory contexts (including asylum claims) where the parties shared an interest in co-operating to achieve the correct result; that in order for a court to make a finding of such unfairness it SMITH BERNAL WORDWAVE would have to be shown that the tribunal whose decision was under appeal had made a mistake as to an established fact which was uncontentious and objectively verifiable, including a mistake as to the availability of evidence on a particular matter, that the appellant or his advisers had not been responsible for the mistake, and that the mistake had played a material though not necessarily decisive part in the tribunal's reasoning...." It is apparent from the judgment that fault was considered to be a material consideration. In giving the judgment of the court Carnwath LJ said this: "61. As the passage cited by Lord Slynn shows, the editors of the current edition of de Smith, Woolf & Jowell, Judicial Review of Administrative Action .... are somewhat tentative as to whether this is a separate ground of review, at para 5-094: 'The taking into account of a mistaken fact can just as easily be absorbed into a traditional legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision upon any evidence.' 62. We are doubtful, however, whether those traditional grounds provide an adequate explanation of the cases. We take them in turn. (i) Failure to take account of a material consideration is only a ground for setting aside a decision, if the statute expressly or impliedly requires it to be taken into account: In re Findlay [1985] AC 318, 333-334, per Lord Scarman." (It is clear that there is a statutory obligation to take into account material considerations: specifically any planning policy, but also material considerations.) "That may be an accurate way of characterising some mistakes; for example, a mistake about the development plan allocation, where there is a specific statutory requirement to take the development plan into account .... But it is difficult to give such status to other mistakes which cause unfairness; for example whether a building can be seen .... or whether the authority has carried out a particular form of study .... (ii) Reasons are no less 'adequate and intelligible', because they reveal that the decision- SMITH BERNAL WORDWAVE maker fell into error; indeed that is one of the purposes of requiring reasons. (iii) Finally, it may be impossible, or at least artificial, to say that there was a failure to base the decision on 'any evidence', or even that it had 'no justifiable basis' .... In most of these cases there is some evidential basis for the decision, even if part of the reasoning is flawed by mistake or misunderstanding. 63. In our view, the Criminal Injuries Compensation Board case [1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between 'ignorance of fact' and 'unfairness' as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that 'objectively' there was unfairness. On analysis, the 'unfairness' arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was 'established', in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant's work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning. 64. If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact. Although planning inquiries are also adversarial, the planning authority has a public interest, shared with the Secretary of State through his inspector, in ensuring that development control is carried out on the correct factual basis. Similarly, in Thameside [1977] AC 1014, the council and the Secretary of State, notwithstanding their policy differences, had a shared interest in decisions being made on correct information as to practicalities. The same thinking can be applied to asylum cases." He then dealt with matters specific to that case. He concluded: "66. In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in SMITH BERNAL WORDWAVE an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established', in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning." 15. If I correctly follow the approach, the question of the responsibility of the appellant or his advisers is the only relevant aspect of fault. If the decision of the decision-maker had contained a mistake, but no one had been at fault, when the mistake was discovered, the fact that it was unfair to an individual was sufficient to mean that the mistake of fact could be regarded as an error of law. If, however, the party wishing to quash the relevant decision was at fault in producing the situation that the fact was not known to the decision-maker, that would mean that he would not obtain the relief. That is why an innocent third party would be able to obtain redress, even where the inspector was not himself to blame. 16. That sort of case is exemplified by a decision of Pitchford J in R(Connolly) v London Borough of Havering [2008] EWCA 2873 Admin, to which my attention has been drawn. The facts of that case were that the claimant and his wife were neighbours of the individual who sought planning permission to carry out certain alterations to his house. The inspector was not informed by the planning authority that they had objected to certain aspects of the proposed development, albeit that the claimant had been told by the planning authority that it would put before the inspector all material matters which otherwise the claimant would have wanted to raise. The planning authority was at fault and failed to do what it should have done. The result was that the inspector was unaware of a material matter, namely that the planning authority had indeed objected. Pitchford J took the view, understandably and clearly correctly, that that might have affected the decision had the inspector been aware of those matters. 17. It seems to me that that case falls clearly within the principle that I have indicated; but it equally well could have been put upon a classic Wednesbury basis, namely that there was in the decision a failure to have regard to a material particular, the claimant was adversely affected by that decision, and so was able to have it quashed. Another way of looking at it would be that there is an obligation upon the parties to a planning appeal to put before the inspector matters which are material considerations for the purposes of the relevant statutory provisions. If there is a failure by either party (or both) to do that and a third party suffers a detriment as a result, that third party should have the possibility of relief. However it is analysed, it does not go beyond the scope of the present law to say that that clearly justifies a quashing of the decision SMITH BERNAL WORDWAVE made in ignorance of that material fact. 18. Mr Buley has submitted that there is an important limitation: that the inspector is not required to make his own inquiries in order to establish whether there is a possible mistake. He relies upon a decision of Jackson J in Granchester Retail Parks Plc v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 92 (Admin). Unfortunately, it is not possible to follow from the judgment in that case precisely what the material facts were. It seems that there was a decision of an inspector which had some possible (maybe even probable) materiality in relation to the decision that was actually reached, the absence of which, it was alleged, meant that that decision should be quashed. Unfortunately, it is not possible to follow the precise nature of that other decision and the extent of its supposed materiality. Jackson J said this: "26. It is quite correct that the Matalan decision, if it had been brought to the inspector's attention, would have been a relevant consideration. It did not create any kind of binding precedent, but nevertheless the inspector would have taken it into account if he had known about it. The fatal flaw in this limb of the claimant's case, however, is that the Matalan decision was not drawn to the inspector's attention until after he had given his own decision. As a general principle a decision-maker does not err in law if he fails to take into account relevant matters which are not drawn to his attention and of which he is unaware. There is abundant authority for the proposition that a planning inspector's duty to take into account relevant decisions of his colleagues only extends to decisions drawn to his attention .... 27. In my view the earlier decision of Hollis v Secretary of State for the Environment [1982] P&CR 351, upon which [counsel] relies, does not support the opposite conclusion. [Counsel] submitted that the duty of planning officers to be consistent with one another was an onerous one. Accordingly, it was their duty to take into account relevant decisions of colleagues, whether or not such decisions were cited in argument. This duty could be performed by carrying out a computer check of a database of all inspectors' decisions. 28. To my mind this is an unsound argument. It flies in the face of both principle and authority, as previously mentioned. Furthermore, if correct, the proposition of law advanced by [counsel] would impose a wholly intolerable burden upon the planning inspectorate. It should be borne in mind that there are some 400 planning inspectors, all engaged upon producing decisions. It is the duty of an inspector to decide cases, not to carry out extensive research on behalf of the parties." SMITH BERNAL WORDWAVE That case was before the decision in E and R v SSHD, but I do not in any way dissent from the general approach that Jackson J indicates to be correct. 19. However, the facts of this case have a crucial difference. The crucial difference lies in the reference in the Appeal Notice to the existence of a previous planning decision. It is true that the local planning authority indicated that there had been no appeal, but it seems to me that, albeit there is no general requirement to investigate if there is no reason to do so, the fact that that previous appeal had been mentioned, and the fact that it was in 2006 (which was when there had been the refusal of planning permission) meant that in the circumstances there was an obligation upon the Inspectorate at least to check. It would have taken a matter of seconds to go to the relevant website. If they had, they would have discovered exactly what the decision was and that it was directly in point. It seems to me that in those circumstances there is a degree of fault upon the Inspectorate. I do not blame the inspector personally. No doubt he relied upon the documentation that was put before him although, having spotted that there was a reference to the previous appeal, he might at least have asked to check to see whether it had any materiality to the circumstances of this case. 20. The primary fault, of course, was that of the local authority, but it seems to me that where a decision such as this in planning terms has a public impact, it is important that if possible the correct decision should be reached. It must be borne in mind that there had been previous complaints by neighbours, albeit no neighbour had apparently pursued those into an active involvement in the Enforcement Notice or planing permission procedure. Nonetheless, it must be recognised that there was apparent concern by neighbours in respect of this development. 21. It seems to me that the fault of the claimant cannot cancel out the fault on the part of the Inspectorate. Indeed it is to be noted that the Secretary of State has not appeared before me because he consented to the quashing of this decision. It was the second defendant, Mrs Kapoor, who sought to maintain the decision in her favour. In my judgment the Secretary of State was correct to recognise that there was such an error of law occasioned by the mistake that was made which would justify the quashing of this decision. 22. Mr Buley accepts, as indeed he is bound to, that he cannot argue that if there was an error of law in the failure to take into account and deal with the previous decision, nonetheless the decision would have been the same. Of course, it would be open to an inspector to decide that the subsequent inspector was right and that there is indeed no proper basis for refusing permission; but he must do so bearing in mind the previous decision and giving reasons for preferring (if he does) the subsequent decision reached in ignorance of the earlier one. 23. However, for the reasons that I have given I am satisfied that this decision cannot stand and the appeal and the claim are both allowed. The decision of the inspector must be quashed and the matter must be remitted for the Secretary of State to reach a further decision. MR HARWOOD: I am obliged, my Lord. I ask for formal orders in those terms, quashing and remission back to the Secretary of State. My Lord, I apply for the council's costs in respect of the permission hearing and of today's hearing. I do not seek the council's costs in respect of the -- SMITH BERNAL WORDWAVE MR JUSTICE COLLINS: I do not think you can have the permission hearing costs. There is no reason why Mrs Kapoor should pay that. You would have had to have obtained permission in any event. MR HARWOOD: My Lord, two points on that. First of all, if Mrs Kapoor had agreed on the Secretary of State's -- MR JUSTICE COLLINS: Well, that is true, but you would have to have obtained permission. MR HARWOOD: My Lord, there is actually an order in respect of the permission costs -- MR JUSTICE COLLINS: is there? MR HARWOOD: -- by Owen J. MR JUSTICE COLLINS: I had not spotted that. What did he order? MR HARWOOD: It is at page 20 of the bundle. MR JUSTICE COLLINS: Oh, costs in the case. MR HARWOOD: Costs in the case. My Lord, there is an error, I am afraid, in that it refers to the costs be in the case against the Second Interested Party, which is described as Barclays Bank. MR JUSTICE COLLINS: There was a mortgage or something, was there? MR HARWOOD: There must have been. MR BULEY: My Lord, we would be delighted with that outcome MR JUSTICE COLLINS: You would be quite happy for Barclays to pay? I cannot quite see what they have to do with it, but still.... MR BULEY: My Lord, they were simply served with a copy of the Enforcement Notice, but, my Lord, it was intended -- MR JUSTICE COLLINS: It is obviously intended to be Mrs Kapoor. That is obviously right. It should be Second Respondent and not Second Interested Party. MR HARWOOD: Yes. MR JUSTICE COLLINS: If it be necessary, I will direct an amendment to that order, but I do not think it is. It is quite clear. I can see that there might be an argument -- all right, they have fought this issue and lost, but they had a fairly respectable argument in some ways and it is all your fault that it happened in the first place. SMITH BERNAL WORDWAVE MR HARWOOD: My Lord, have you seen a schedule of costs? MR JUSTICE COLLINS: I have not seen one. Mr Buley, have you seen one? MR BULEY: In fairness, my Lord, I was passed a copy this morning. MR HARWOOD: It is fairly modest, my Lord. MR JUSTICE COLLINS: I am not wholly persuaded about the permission hearing. Let us just go back to that. Which page was it again, sorry? MR HARWOOD: Page 20, my Lord. MR JUSTICE COLLINS: Presumably at the permission stage the indication had been given by the Secretary of State that he was minded to concede? MR HARWOOD: That is correct, my Lord. MR JUSTICE COLLINS: It is difficult to see, I am bound to say, what was the point in trying to resist permission? Mr Buley? MR BULEY: My Lord, unless we consented to judgment, the council's costs of the permission hearing would have been incurred in any event. MR JUSTICE COLLINS: I know, but why did you fight permission? MR BULEY: In the hope that we might win. MR JUSTICE COLLINS: Well, it was pretty hopeless, was it not, on permission? MR BULEY: In the light of your Lordship's judgment -- MR JUSTICE COLLINS: No, no, no, not in the light of any judgment. If the decision-maker says he is prepared to concede, then you are on a pretty hopeless argument as to permission, as opposed to whether you win in the end. It was a hopeless resistance. MR BULEY: My Lord, what persuaded Owen J, as I recorded was, in effect there was no permission stage for the section 288 -- MR JUSTICE COLLINS: Well, that too, but I cannot imagine how anyone could not grant permission in the circumstances. But it was a pointless exercise anyway because of the 288. MR BULEY: My Lord, can I address you generally on costs? My Lord, I know the point against me is that we fought on. That is the argument against me in a nutshell. It is the normal situation. But, my Lord, you do, as your Lordship well knows, have a discretion. SMITH BERNAL WORDWAVE MR JUSTICE COLLINS: Yes, but unfortunately I have to exercise it in a judicial fashion. MR BULEY: Of course, of course. I would not dream of suggesting otherwise but there are special circumstances in this case and whether your Lordship looks at it in terms of making an order as to costs, whether your Lordship looks at it in terms of making a reduced order, or another possibility is to look at it in terms of there being a proportionate order in part against the Secretary of State, we would say -- MR JUSTICE COLLINS: No, I could not do that. MR BULEY: What we would say -- MR JUSTICE COLLINS: You know I could not do that. MR BULEY: The point I want to make is that we would say this is very clearly a case where no order, or at least a reduced order is appropriate. The essence of that is that the party most at fault here is the council; the party otherwise at fault is the Inspectorate; and the one party not at fault at all throughout is my client. MR JUSTICE COLLINS: I know. MR BULEY: My Lord, I know what is said. My Lord, a further difficulty that we have laboured under in this case is that your Lordship will know that the ordinary situation would be that the Secretary of State would attend and then there would be no potential liability for my client. My Lord, I recognise that the Secretary of State dropped out but one of the difficulties we have always laboured under in this case is of knowing the basis for that because the consent order which was signed -- MR JUSTICE COLLINS: It did not give any indication, merely that there had been a failure to have regard to it. MR BULEY: That is right, my Lord. That is it in a nutshell; it is no more than a sentence, and although we have written inviting the Secretary of State to reconsider the position and/or at least to indicate why they take that view, no response has ever been given. MR JUSTICE COLLINS: Well, they did not have to say. MR BULEY: No, I am not saying they did, my Lord, but I am just asking your Lordship to look at -- there is on the face of it something pretty unfair about a situation where a party who is not at fault at all loses the benefit a judgment in her favour and then is obliged to pay costs in respect of that. MR JUSTICE COLLINS: Well, yes. MR BULEY: With great respect, your Lordship is entitled, even obliged, to take into account all the relevant factors. I know what the general rule is; I know what is said about defending the case not unreasonably but in circumstances where ultimately we lost. But I do say that there are SMITH BERNAL WORDWAVE particular features which are obvious: no fault by us and lots of fault by other people -- MR JUSTICE COLLINS: I have a lot of sympathy, as you gather, Mr Buley, but the problem is that our system is on the whole: loser pays. The fact that loser may be in one sense innocent, or it may be most unfortunate that he has had to fight, nonetheless, as a general approach, right or wrong, our system is as I have indicated, and you are well aware of that. MR BULEY: I am well aware of it, my Lord, of course. That is the general rule absolutely, but it is known -- especially since the advent of the CPR -- subject to exceptions and subject to a different approach being taken -- MR JUSTICE COLLINS: Yes, but the different approach, broadly speaking, in the CPR is that the court can take account of separate issues to a much greater extent than it used to so that if, for example, say three issues are raised and only one succeeds, it does not mean that the successful party necessarily obtains all his costs because one has to recognise that he has lost on two out of three, for example. MR BULEY: My Lord, I well recognise that that is one of the matters which is obviously relied upon -- MR JUSTICE COLLINS: That is the usual one, is it not? MR BULEY: It is -- it is in planning appeals especially where you have someone with a commercial interest. MR JUSTICE COLLINS: Yes. MR BULEY: But, my Lord, it is by means the only -- MR JUSTICE COLLINS: No, no, I follow that. MR BULEY: The general rule is -- MR JUSTICE COLLINS: What is it, 44? MR BULEY: Yes, 44.3 MR JUSTICE COLLINS: 44.3.2. MR BULEY: Yes, the general rule, and the court may make a different order. MR JUSTICE COLLINS: Yes. MR BULEY: Then, my Lord, 44.3.4, having regard to all of the circumstances, including the conduct of the parties. Well, we would certainly say, my Lord, coming within that rubric -- MR JUSTICE COLLINS: Oh, certainly conduct of the parties is relevant. But that is conduct SMITH BERNAL WORDWAVE of the parties in the case. MR BULEY: Yes, I accept that is probably what it means, but, my Lord, you have to have regard to all of the circumstances. You can also have regard to the conduct outside the conduct of the litigation. MR JUSTICE COLLINS: Yes. MR BULEY: My Lord, I appreciate that there has only been one issue but, as your Lordship noted, the case was principally a good one. My Lord, again -- and I appreciate that this is in the ordinary case not crucial -- but there is another hearing which my client has to go through again at some expense. MR JUSTICE COLLINS: I follow that. MR BULEY: Even if the appeal had succeeded and we had consented to judgment, my client would be put to additional expense. MR JUSTICE COLLINS: Well, as I say, I have a degree of sympathy. I think what I will do is to reduce the amount claimed because I think, albeit I recognise that the permission hearing may have needed more than might have been otherwise anticipated, nonetheless I think that the full amounts for both hearings are in all the circumstances such that I would not be prepared to award. As you appreciate, this is inevitably very much a broad-brush approach, as it always is in these cases. I am out of date on counsel's fees, I am sure. I am not sure where the extra £50 comes from on the brief fee, but there we are. I think that, overall, this was perhaps not a very complicated matter. What I am going to do -- and I am not going to indicate why -- merely that on an overall balance I take the view that it is appropriate roughly to halve the amount claimed and I am going to award an overall sum of £3,500. You have done rather better. That includes everything -- VAT and everything. MR BULEY: My Lord, I am grateful. My Lord, there is one other matter. My Lord, I formally make an application for permission to appeal. MR JUSTICE COLLINS: You are not going to get permission to appeal because I take the view that I have not developed the law at all. This is an application of existing principles essentially. If you want to appeal, you will have to persuade the Court of Appeal. But I think your clients will be throwing good money after bad. MR BULEY: My Lord, it may be important in any event for the order, in fact you do not have to grant permission to appeal -- MR JUSTICE COLLINS: It is a second appeal? MR BULEY: The section 289 is and the section 288 is not. MR JUSTICE COLLINS: That is all the more reason for not granting you on a 289. One is SMITH BERNAL WORDWAVE an appeal, the other is a claim technically, which is a crazy situation, but there we are. MR BULEY: My Lord, can I raise one other matter, which is this? Your Lordship will appreciate, whether or not my clients decide to appeal, one of the matters which I think they may want to take up again is dependent upon the Secretary of State -- MR JUSTICE COLLINS: What you can have, and what I will direct is that any time should run from when you receive the transcript, which I fear will probably not be until the beginning of next term now, for obvious reasons. MR BULEY: Your Lordship is ahead of me. I am grateful. MR JUSTICE COLLINS: I do not imagine you would object to that, Mr Harwood? MR HARWOOD: No, certainly not. MR JUSTICE COLLINS: I have to fill in this form. I have put: "(1) I refuse permission to appeal; no proper basis for permission exists. (2) In any event, this is an application of existing established principles to the facts of this case." ______________________________________ SMITH BERNAL WORDWAVE