Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Buckinghamshire County Council v Secretary Of State For Environment, Transport & Regions & Anor [2000] EWHC Admin 386 (31 August 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/386.html
Cite as: [2000] EWHC Admin 386
[New search] [Printable RTF version] [Help]
BUCKINGHAMSHIRE COUNTY COUNCIL v. SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS and J BROWN [2000] EWHC Admin 386 (31st August, 2000)
IN THE HIGH COURT OF JUSTICE CO
4769/99
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Thursday, 31st August 2000
MR ROBIN PURCHAS QC
(Sitting as a Deputy Judge of the Queen's Bench Division)
- - - - - - -
BUCKINGHAMSHIRE COUNTY COUNCIL
-v-
THE SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT AND THE REGIONS
and
J BROWN
- - - - - - -
(Computer-aided Transcript of the Handed Down
Judgment of Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Telephone No: 020-7421 4040
Fax No: 020-7831 8838
Official Shorthand Writers to the Court)
- - - - - - -
MR B SEFI and MS K SHERRETT (for judgment) (instructed by Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the Applicant.
MR D ELVIN QC and MR D ABRAHAMS (for judgment) (instructed by The Treasury Solicitors) appeared on behalf of the Respondent.
As Approved by the Court
(Crown Copyright)
MR ROBIN PURCHAS QC
In this appeal Buckinghamshire County Council appeals under Section 289 of the Town and Country Planning Act ("the 1990 Act") against a decision by an Inspector appointed by the First Respondent, allowing the appeal of the Second Respondent against an Enforcement Notice issued on the 8th December 1995 in respect of a building at Westhorpe Farm, Little Marlow ("the Building"). The Enforcement Notice was in respect of the change of use of the Building to an engineering workshop. The Second Respondent's appeal was allowed on ground (d), that is the use that commenced more than 10 years prior to the issue of the notice.
Mr Benedict Sefi, who appears for the Appellant, relies upon two main grounds, both of which raise points of general importance:
(1) That the Inspector erred in concluding that the Second Respondent was a competent Appellant for the purposes of Section 174 of the 1990 Act; and
(2) That the Inspector erred in holding that the Second Respondent was not estopped from relying upon ground (d) in support of his appeal pursuant to Section 174.
I will deal with each ground in turn.
COMPETENCY
The Statutory framework
By Section 174 of the 1990 Act:
"(1) A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him. ...
(6) In this section "relevant occupier" means a person who
(a) on the date on which the enforcement notice is issued occupies the land to which the notice relates by virtue of a licence; and
(b) continues so to occupy the land when the appeal is brought."
By Section 179:
"(1) Where, at any time after the end of the period for compliance of an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice. ...
(4) A person who has control of or an interest in the land to which an enforcement notice relates (other than the owner) must not carry on any activity which is required by the notice to cease or cause or permit such an activity to be carried on."
By Section 331(1)
"Where an offence under this Act has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of
(a) a director, manager, secretary of other similar officer of the body corporate, or
(b) any person who is purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against accordingly."
Background
The Second Respondent was the sole director and principal shareholder of a company called Matthew and Brown Industrial Services Limited ("the Company"). The company paid rent in respect of the Building and an earlier building on the same site from 1984. In his Decision Letter dated the 8th November 1999 the Inspector dealt with locus in paragraphs 3 - 11. In paragraph 4 the Inspector concluded that the Second Respondent was the Appellant as follows:
"The first stage in determining this issue is to establish the identity of the appellant in this appeal. In the section of the appeal form headed "Appellant's details" the full name and address was given as "Mr John Brown, Mathews and Brown Industrial Services Limited Narcot Lane, Chalfont St. Giles, Bucks". Whilst there is a degree of ambiguity in this entry (and an incorrect spelling of Matthews) my interpretation of it is that the form names Mr Brown as the appellant. This is reflected in the registration of the appeal and in the first appeal decision where the heading refers to Mr Brown as the appellant. In my view Mr Brown has been correctly identified as the appellant in this case...."
I should explain that the decision, the subject of the present appeal, had been the subject of an earlier decision on behalf of the First Respondent, which had been remitted following a successful appeal to this Court (judgment of Mr Gerald Moriarty QC sitting as a Deputy Judge of the Court delivered on the 19th December 1997).
That finding left two alternative bases on which the Second Respondent relied to establish his competency as an appellant, namely (1) that in this case it would be appropriate to pierce the corporate veil so as to treat the Second Respondent and the Company as one and (2) that the Second Respondent occupied the building by virtue of a licence from the Company for the purposes of Section 174(1) and (6). The Inspector found for the Second Respondent on both bases. Thus to succeed on this ground Mr Sefi must demonstrate that the Inspector's conclusions in both respects were flawed in law. I will deal with each in turn.
The Corporate Veil
The Inspector dealt with this consideration in paragraphs 4 to 7 of his decision letter as follows:
"... (Mr Brown) is the "head" of the company, Matthews and Brown, and although his wife has, for the most of the relevant period, been company secretary, Mr Brown opens and deals with all the company's mail.
5. However, throughout the progress of this appeal several parties have employed loose terminology in referring to Mr Brown and his company. Mr Brown himself sometimes refers to himself personally, and sometimes to "my company" or "my business". His agent, Mr Cooper, in different inquiry documents, identifies his client(s) variously as "Mr J Brown", as "Mr John Brown of Matthews and Brown Industrial Services Ltd.", and "Matthews and Brown". Such inconsistencies persist in an application for a certificate of lawful use made in January 1996, and affidavits and other documents submitted in support of the appellant in the present appeal reflect similar confusion. Even the Council, whilst not necessarily confusing the individual with the company, have at times clearly associated one with the other. Such occurrences suggest to me that there is, and has been for several years, a tendency by Mr Brown, his agent, and his associates to think of the company as Mr Brown and Mr Brown as the company, or at least to disregard any distinction between the two. This has at times extended even to the Council.
6. The question arises as to whether this provides a sufficient justification for lifting the corporate veil to examine the relationship between Mr Brown as an individual and his company. Courts have generally been reluctant to lift or pierce the corporate veil, and in the judgment in Tunstall v. Steigman [1962] the view was expressed that:
"If persons choose to conduct their operations through the medium of a limited company with the advantages in respect of responsibility for debts thereby conferred, they cannot really complain if they face some disadvantages also."
However, the case DHN Food Distributors Limited v. Tower Hamlets LBC [1976] post-dates Tunstall v. Steigman and represents a somewhat more liberal approach the question. Reservations as to the former judgment were expressed in the House of Lords case of Woolfson but fell short in saying that the case was wrongly decided on this ground, and accepted that DHN was distinguishable on its facts. I see the closeness of the relationships between the three companies in DHN as akin to the relationship between Mr Brown and his company, and in that case, as in this, the difficulty that gave rise to the case could easily have been avoided. In my view it not only post-dates but is also more relevant to the circumstances of the present case than earlier ones such as Tunstall v. Steigman. The argument that Mr Brown and the company "should not be treated separately so as to be defeated on a technical point" is therefore an attractive one.
7. Applying the approach in DHN it seems to me that today there is a tendency to ignore the separate legal entities of a sole director and the company that he directs. Such a tendency, or at least a failure to appreciate such a distinction, has clearly manifested itself in the present case. Mr Moriarty, in his judgment, reports Counsel for the Secretary of State as conceding that "whilst ... the conclusion ... that Mr Brown and the company were to be identified with one another was legally possible ... there was no suggestion that that was the case here, or that such possibility was the basis of the Inspector's conclusions." In the light of my comments in paragraph 5 above I find this concession surprising, but I note that DHN is not referred to in the judgment and presumably was not referred to in submissions. In my view the DHN case is persuasive and the argument that the corporate veil should be lifted in this case. On that basis Mr Brown and Matthews and Brown Industrial Services Limited can be treated as the same entity, implying that the appellant is a relevant occupier and has locus to appeal."
Mr Sefi's submission in respect of this part of the decision is shortly that the Inspector should not have followed DHN but should have applied the orthodox approach in Tunstall v. Steigman. The separate legal entities of a company and its principal sole shareholder have been firmly established since Salomon v. Salomon [1897] KC 22 followed in Lee v. Lee's Air Farming Limited [1951] AC 12.
In Tunstall v. Steigman [1962] 2 QB 593 the Court of Appeal was considering an appeal from an order upholding the landlord's objection to the grant of a new tenancy under Section 30(1)(g) of the Landlord and Tenant Act 1954, that is that she intended to occupy the premises for the purpose of a business to be carried on by her, notwithstanding that the business was owned by a company of which she was the principal shareholder. The Court of Appeal allowed the appeal, following Salomon. Lord Justice Ormerod said at page 600:
"There is no question, of course, of the premises being required here as a residence for the landlord, and the only question to be considered is whether it was the intention of the landlord to occupy the holding for the purposes of a business to be carried on by her therein. I have formed the view that in these circumstances it cannot be said that it was the intention of the landlord to carry on the business."
He then referred to Salomon and Salomon in support of that conclusion. Lord Justice Wilmer said at page 605:
"For these reasons I feel driven to the conclusion that the judge's decision cannot be supported in law. I do not think that the landlord here brings herself within Section 30(1)(g) by proving an intention to occupy through the medium of the company which she controls. She cannot, therefore, successfully oppose grant of a new tenancy. I have reached this conclusion with some reluctance, for it seems to me the construction of Section 30(1)(g), which I have felt compelled to adopt, may well lead to some very bizarre results. Thus it will be possible for an absentee landlord, living in idleness away from the holding, to resist the grant of a new tenancy upon proof of an intention to occupy, through his agent or manager, for the purpose of carrying on his business through such agent or manager. On the other hand, a hard working landlord, who has transferred his business to a company of which he retains complete control, and who genuinely needs to obtain possession of the holding so that his company's business may be carried on there with the aid of his own labour, will nevertheless apparently be without any right to oppose an application for a new tenancy by a tenant however undeserving. It seems, however, impossible to escape the conclusion that this is the effect of what Parliament has enacted. If the results are thought undesirable, only Parliament can put that right."
Danckwerts LJ agreed at page 607 stating:
"I have, therefore, reached the conclusion that, Mrs Steigman, being the
present landlord, the requirements of Section 30(1)(g) will not be satisfied if
the property is to be occupied by the company or the business therein is to be
carried on as the business of the company. I reach this result with some
reluctance, because it is from a common sense point of view an artificial
result (though the conception of a limited company, it must be said, is a
legalistic and artificial conception) and also because I have a feeling that if
the landlord's business affairs had been suitably arranged, the requirements of
the Act might have been satisfied ... ."
In DHN Food Distributors Limited v. Tower Hamlets LBC [1976] 1 WLR 852,
on which the Inspector relied, the Court of Appeal was concerned with a
compensation claim for disturbance. Business premises were owned by Bronze, a
wholly owned subsidiary of the trading company, DHN. The companies had the
same director. Bronze's only assets were the premises. It had no other
activities. The Lands Tribunal rejected a general claim for disturbance by DHN
on the ground that its interest was limited to the balance of its interest as a
yearly tenant of the premises. The Court allowed the appeal on a number of
grounds including (1) that in the circumstances it was appropriate to treat the
companies as a single economic entity for the purposes of the payment of
compensation and (2) that, if they were to be treated as separate entities,
there was an implied irrevocable licence from Bronze to DHN sufficient to
justify the full payment of compensation for disturbance. While (2) is
relevant to the second issue which I consider later in this judgement, as to
(1) Lord Denning MR said at page 860:
"Third, lifting the corporate veil. ... We all know that in many respects a
group of companies are treated together for the purpose of general accounts,
balance sheet, and profit and loss account. They are treated as one concern.
Professor Gower in Modern Company Law Third Edition (1969) page 216 says:
"There is evidence of a general tendency to ignore the separate legal entities
of various companies within a group, and to look instead at the economic entity
of the whole group".
This is especially the case where a parent company owns all the shares of the
subsidiaries - so much so that it can control every movement of the
subsidiaries. These subsidiaries are bound hand and foot to the parent company
and must do just what the parent company says. A striking instance is the
decision of the House of Lords in Harold Holdsworth and Company (Wakefield)
Limited v. Caddies [1955] 1 WLR 352. So here. This group is virtually the
same as a partnership in which all the three companies are partners. They
should not be treated separately so as to be defeated on a technical point.
They would not be deprived of compensation which should justly be payable for
disturbance. The three companies should for present purposes, be treated as
one, and the parent company DHN should be treated as that one. So DHN are
entitled to claim compensation accordingly."
Lord Justice Goff, as he then was, agreed, stating at page 861:
"Secondly on the footing that that is not in itself sufficient, still, in my
judgment, this is a case in which one is entitled to look at the realities of
the situation and to pierce the corporate veil. I wish to safeguard myself by
saying that so far as this ground is concerned, I am relying on the facts of
this particular case. I would not at this juncture accept in every case where
one has a group of companies one is entitled to pierce the veil, but in this
case the two subsidiaries were both wholly owned; further, they had no separate
business operations whatsoever; thirdly, in my judgment, the nature of the
question involved is highly relevant, namely, whether the owners of this
business have been disturbed in their possession and enjoyment of it."
Lord Justice Shaw also agreed.
This element of the decision in DHN was considered by the House of Lords in
Woolfson v. Strathclyde RC [1978] SLT 159. The House was there
concerned with a claim for disturbance, where the claimant owned part of the
business premises and a family company, in which the claimant was the majority
shareholder, owned the remainder. The business was carried on by a separate
company, of which the claimant was the majority shareholder and sole director.
The House of Lords upheld the Lands Tribunal's decision that it was not
appropriate to treat the business carried on by the second company as that of
the claimant. Lord Keith said at page 161:
"I can see no grounds whatever upon the facts found in the special case, for
treating the company structure as a mere façade, nor do I consider that
the DHN Food Distributors case is, on a proper analysis, of assistance
to the appellants' argument."
He then summarised the position in DHN and continued:
"I have some doubts whether in this respect the Court of Appeal properly
applied the principle that it is appropriate to pierce the corporate veil only
where special circumstances exist indicating that it is a mere façade
concealing the true facts. Further, the decisions of this House in Caddies
v. Harold Holdsworth and Co. (Wakefield) Limited and Meyer v. Scottish
Co-operative Wholesale Society Limited, which were founded on by Goff LJ in
support of this ground of judgment and, as to the first of them, to some extent
also by Lord Denning MR do not, with respect, appear to me concerned with that
principle. But however that may be, I consider the DHN Food case to be clearly
distinguishable on its facts on the present case. There the company that owned
the land was the wholly owned subsidiary of the company that carried on the
business. The latter was in complete control of the situation as respects
anything which might affect its business and there was no one but itself having
any kind of interest or right as respects the assets of the subsidiary. Here,
on the other hand, the company that carried on the business, Campbell, has no
sort of control whatever over the owners of the land Solfred and Woolfson.
Woolfson holds two-thirds only of the shares in Solfred, and Solfred has no
interest in Campbell. Woolfson cannot be treated as beneficially entitled to
the whole shareholding in Campbell, since it is not found that the one share in
Campbell held by his wife is held as his nominee. In my opinion there is no
basis consonant with the principle upon which on the facts of this case the
corporate veil can be pierced to the effect of holding Woolfson to be the true
owner of Campbell's business or of the assets of Solfred.".
The relevant authorities were comprehensively reviewed in Adams v. Cape
Industries PLC [1990] 1Ch 433 by Lord Justice Slade, giving the judgment of
the Court. He dealt with the "corporate veil point" at page 539 of the
following, stating at page 542A
"The question of law which we now have to consider is whether the arrangements
... made by Cape with the intentions which we have inferred constituted a
façade such as to justify the lifting of the corporate veil ...".
Having referred to Merchandise Transport Limited v. British Transport
Commission [1962] QB 173 and other authorities, Lord Justice Slade
concluded at page 543D
"From the authorities cited to us we are left with rather sparse guidance as to
the principles which would guide the Court into determining whether or not that
arrangements of a corporate group involve a façade within the meaning of
that word as used by the House of Lords in Woolfson. We will not
attempt a definition of these principles."
Lord Justice Slade concluded that the circumstances in that case were not such
as constitute a façade so as to justify piercing the corporate veil. I
was also referred to the helpful analysis of the relevant authorities in
Professor Gower's Principles of Modern Company Law 6th Edition at
page 106 and following.
I conclude on the basis of these authorities that, in a situation concerning a
company and its principal shareholder, the Court should only be prepared to
pierce the corporate veil where it can be properly concluded that the
arrangements in place constituted a mere "façade concealing the true
facts". That would, it seems to me, tend to be the exception rather than the
rule. Generally, the establishment of a corporate structure to carry on a
business or hold property would be deliberate, so as to put that part of a
business or operation on a corporate basis. The arrangements so set up would
take effect in substance and not as a façade. I would doubt whether in
those circumstances it would be open to a decision maker as a matter of law to
conclude that the arrangements were such as to entitle him to ignore the
corporate structure that had been set up.
On that basis I turn to consider how the Inspector approached this issue in the
present case. In paragraphs 4-5 he found:
(1) That the Second Respondent was the "head" of the company;
(2) That he opened and dealt with all its mail; and
(3) That loose terminology was adopted by those involved in referring to the
Second Respondent and the company on an inter-changeable basis.
In paragraphs 6 and 7 the Inspector appears to have based his overall
conclusion on the closeness of the relationship between the company and the
Second Respondent and its similarity to the position in DHN. The two "should
not be treated separately so as to be defeated on a technical point". He also
relied upon what he found was "today a tendency to ignore the separate legal
entities of a sole director and the company that he directs".
Taking the conclusions overall, it appears that the Inspector did not directly
address the key question whether the arrangements were a mere façade in
the sense described in Woolfson and Cape. In the absence of any
such finding it does not seem to me in the light of the authorities to which I
have referred that the approach in DHN in this respect could be followed as of
wider application. So far as they go, the findings recorded by the Inspector
would reflect the position that would commonly be found with any company and
sole director and majority shareholder. Whatever may be the practical
implications of arrangements of this kind for those dealing with the company or
its director and shareholder nor indeed their understanding, I detect no
tendency in the relevant authorities to ignore the separate legal entities of
the company and its director and shareholder. It seems to me that
Woolfson and Cape point unequivocally in the other direction. In
my judgment the Inspector misdirected himself in approaching the question
whether he was entitled to pierce the corporate veil on the basis of the
closeness of the relationship between the Company and the Second Respondent and
applying DHN in preference to the other authorities. He did not address the
proper question, that is whether an exception could be made in this case for
piercing the corporate veil on the grounds that the arrangements were a mere
façade concealing the true facts. On the findings in the decision
letter it can certainly not be said that that was an inevitable conclusion, had
the Inspector addressed the appropriate question. Thus this part of Mr Sefi's
challenge succeeds. However, the error in approach will only be material and
justify quashing the decision as a whole if Mr Sefi can also establish that the
Inspector's alternative ground of occupation by licence was unsustainable in
law.
Occupation under Licence
The Inspector dealt with the question whether in the alternative the Second
Respondent occupied the Building by virtue of a licence in paragraphs 8 to 11
of the decision letter as follows:
"8. In the event that my conclusion in this respect is insecure I have also
considered whether Mr Brown is a relevant occupier by virtue of a licence. The
DHN judgment is also illuminating on this question, and includes a finding,
summarised in Woolfson, as being
"that if the companies were to be treated as separate entities, there was by
necessary implication from the circumstances an agreement between DHN and
Bronze under which the former had a irrevocable licence to occupy the premises
for as long as it wished ...".
I consider this to be relevant to the present case. In reaching this view I
have taken into account another concession by the Secretary of State recorded
by Mr Moriarty, namely that Mr Brown did not have an interest in, or a licence
to occupy, the land. However, that concession was made in the light of the
facts then known I do not regard myself as being bound by it. I note, in this
context too, that the DHN case was not, apparently, a part of the submissions
before Mr Moriarty.
9. There are various types of licence but in this case it is unnecessary to
consider the nature of any licence involved here, including whether or not it
is irrevocable, as this goes beyond the statutory requirements set out in
Section 174(6) of the Act. Likewise, I do not need to consider whether every
employee of the company would have an implied licence, leading to a right to
appeal against an enforcement notice served on that company. All I need to
reach a view upon is whether Mr Brown, on the facts of this case, was a
"relevant occupier" for the purposes of the Act.
10. The Council argues that the servants and agents of the company are not
relevant occupiers, but "simply the physical behaviour of the company".
However, it seems to me, that, without "physical behaviour" on the part of the
company servants and agents, occupation by the company could not manifest
itself. Indeed the Council's submission that a company can "only act through
its officers and agents" seems to me a strong argument for the view that at
least some officers of the company are likely to have a licence to occupy.
Applying the approach implicit in DHN judgment it is hard to imagine how the
company could have prevented its sole director from occupying the premises. To
do so would frustrate its purposes. The existence of a licence suspends
liability for trespass and there is no suggestion that Mr Brown was a
trespasser. On the basis of the facts of the case I conclude that, by
necessary implication, Mr Brown has had a licence to occupy the premises."
Mr Sefi challenges not so much the principle of inferring a licence in circumstances where there is evidence of relevant occupation as the absence of evidence to support the conclusion of the Inspector that the Second Respondent was occupying the building by virtue of an implied licence. Alternatively, he relies upon the absence of any relevant findings in the decision letter to support that conclusion.
Submissions
Mr Sefi starts from the requirement in Section 174(1) and (6) both for
occupation of the land and that the occupation was by virtue of a licence. In
the normal case, he submits, an employee would not occupy his place of work
within the meaning of the section. While any invitee would be present by a
form of licence, he would not as such be in occupation for this purpose. In
the present case the Inspector had based his earlier conclusion on the close
identity between the Company and the Second Respondent. While the Second
Respondent would have been present on the premises with the licence of the
company, he did so solely for its purposes. He had no independent or
individual capacity as an occupier himself. Thus he could not be held to be
occupying the premises by virtue of a licence, at least without specific
evidence as to the existence of a licence authorising his independent
occupation. That would require, Mr Sefi submits, evidence as to the terms of
the licence and when and how it was granted. In the relevant part of the
decision letter, he submits, there is a total absence of reasoning to support
the implication of such a licence or the conclusion that it was the Second
Respondent and not the Company that was in occupation. Mr Sefi also criticises
the comment by the Inspector that it was hard to see how the company could
prevent the Second Respondent from occupying the premises. An obvious example
would be, he submits, if the Company went into administration for the purposes
of the Insolvency Act 1986.
Mr Sefi relied upon the judgment of Mr Justice Plowman in Stevens v. LB
Bromley [1971] 2 AE 331. That case concerned Sections 45 and 46 of the
Town and Country Planning Act 1962 and, in particular, whether a caravan owner
as licensee was in occupation of land so as to be entitled to service of the
Enforcement Notice under Section 45(3) and to appeal under Section 46(1). At
page 337 Plowman J said:
"It is in my judgment a fair inference from those provisions that the intention of the legislature was ... to ensure that anyone who might be prejudiced by an enforcement notice should be served with it and have an opportunity of appealing against it. Common fairness might well require that that should be done in the case of a licensee just as much as the case of a tenant. It would, for example, be strange if when steps are about to be taken to demolish a dwelling, or to prevent its continued use as a dwelling, the man whose home that dwelling was, was not entitled to be serve with notice of the proposal because he was a licensee and not a tenant. Whatever the status of such a person viz a viz the owner of the land, he would, in my judgment viz a viz the local planning authority, be an occupier for the purposes of s.45. A man who is seen to be residing on the site may well be entitled, in my view, to be served with an enforcement notice which adversely affects him, without the planning authority having to enquire into his precise status and to resolve the possibly difficult questions of law and fact on which it depends."
Plowman J went on to refer to the opinion of Viscount Cave in Madrassa
Anjuman Islamia of Kholwad v. Johannesburg Municipal Council [1922] 1 AC 500 at page 504:
"The word "occupy" is a word of uncertain meaning. Sometimes it denotes legal
possession in a technical sense, as when occupation is made the test of
rateability; and it is in this sense that it is said in the rating cases that
the occupation of premises by a servant, if such occupation is subservient and
necessary to the service, is the occupation of his master R v. Spurrell.
At other times "occupation" denotes nothing more than physical presence in a
place for a substantial period of time, as where a person is said to occupy a
seat or pew or where a person who allows his horses or cattle to be in a field
or to pass along a highway, is said to be the occupier of the field of highway
for the purpose of section 68 of the Railway Clauses Act 1845 ... . Its
precise meaning in any particular statute or document must depend on the
purposes for which, and the context in which, it is used."
Plowman J held that the caravan owner as licensee was a relevant occupier for
the purposes of that Act. That decision was upheld by the Court of Appeal
(1972 1 AER 712).
Mr Sefi compares that conclusion with the conclusion of the Court of Appeal in
Tunstall v. Steigman (referred to above) where Lord Justice Willmer at
page 605 and Lord Justice Danckwerts page 607 both held that the company, whose
business it was, did not intend to occupy the premises. Mr Sefi points out
that, since the decision in Stevens, the statutory requirements for
appeal have been amended so as to require not merely occupation but occupation
by virtue of a licence. Indeed, until that provision was amended pursuant to
the Planning and Compensation Act 1991 ("the 1991 Act"), the licence had to be
in writing.
Mr Sefi contrasts the requirement for occupation by a licence under Section
174(6) with the provision for an offence under Section 179(4), which would
include a person who has control of the relevant land and would, for example,
plainly include the Second Respondent. Given the difference in language
between the two sub-sections, it was not, he submits, possible to equate an
interest in the outcome of the proceedings in respect of the enforcement notice
with the right to appeal. A similar conclusion would be reached, he submits,
by comparing that requirement with the provisions for corporate liability under
Section 331, which would include a director's liability in appropriate
circumstances but would not provide a right of appeal as such.
Mr Sefi submits that the restriction on the right of appeal is of importance,
given the obligation to serve occupiers of the land under Section 172(2) and
the right of appeal in that respect under Section 174(2)(e). If occupation was
extended to include directors and employees, the obligation to serve would
become unacceptably onerous and vulnerable to appeal, albeit that Mr Sefi
recognises that under Section 176(5) the First Respondent can disregard any
failure to serve where no substantial prejudice has been caused.
Mr David Elvin QC, who appears for the First Respondent, submits that it was
plainly open to the Inspector to find on the evidence that the Second
Respondent was in occupation and occupied by virtue of a licence. He submits
that for this ground to succeed I would have to be persuaded that there was no
evidence for the relevant findings of the Inspector to that effect or that his
conclusion was perverse.
There are no formal requirements for a licence, which can cover a wide range of
situations (see McGarry and Wade Law of Real Property 6th Edition
para. 17.002). Mr Elvin submits that the approach of the Inspector is
supported by the finding of an implied licence in DHN (see Lord Denning
MR at page 859E-G, Goff LJ at page 860F-H and Shaw LJ page 867H-868A). That
basis for allowing the appeal in DHN had not subsequently been
criticised in Woolfson or elsewhere. The law recognises that a
director/majority shareholder has an independent existence, separate from that
of the company, albeit remaining its agent and fiduciary. The Second
Respondent was transacting the business of the company. He was physically
occupying the building in his own right for that purpose and on the finding of
the Inspector did so by licence.
The exposure to liability under Section 179(4) and Section 331 supported, he
says, a broad approach to the application of the requirement for occupation by
virtue of a licence for the right to appeal. It was, however, for the decision
maker to apply that provision subject to the normal limits of administrative
control. Mr Elvin referred to the opinion of Lord Mustill in R v.
Monopolies and Mergers Commission ex parte South Yorkshire Transport
Limited [1993] 1 WLR 23 at page 32. Such an approach would be consistent
with the opinion of Viscount Cave in Madrassa. He also relied upon
Lee v. Lee's Air Farming Limited [1960] 3 WR 758 where the sole
governing director and controlling shareholder was held to have a separate
contract of employment with the company.
Decision
In my judgment the approach for which Mr Elvin contends is correct. The
question that the Inspector had to address was whether the Second Respondent
occupied the premises by virtue of a licence. The first requirement was for
occupation. That was occupation within the context of Part VII of the 1990
Act, within which it is an expression widely used (see Madrassa).
Occupation need not involve exclusive possession. It would, however, be for
the decision maker to determine as a matter of fact and degree who was
occupying the land in question. Physical possession would not necessarily be
equated to occupation for this purpose. For example, generally employees would
not be regarded themselves as in occupation of premises. They would normally be
the physical manifestation on the premises of their employer's own occupation.
Equally, however, it seems to me that the fact that a director and principal
shareholder was carrying on the business of the company from the company's
premises would not preclude a finding that in appropriate circumstances he was
occupying the premises in his own right. Indeed, it might well on occasion be
the case that the occupation was joint in the sense of being occupation by the
director both in his own right and on behalf of the company. There would in my
judgement be a range of conclusions to which the decision maker might come,
having regard to the particular relationship between the parties and the
circumstances in which the premises were physically occupied.
Having determined who in the light of all the circumstances should be regarded
the occupier or occupiers, the decision maker should then for the purposes of
section 174(6) determine whether that occupation was by licence. Again I
accept the submission of Mr Elvin in this respect. There are no formalities
for a licence, particularly given the amendment in the 1991 Act removing the
requirement for writing. However, the decision maker must be satisfied that
expressly or by implication there was a licence granted that permitted the
occupation in question.
I turn then to consider the approach of this Inspector. The conclusions in
paragraphs 8-10, which I have set out earlier in this judgement, were in the
context of the findings that the Inspector had already made in paragraphs 4-6
as to the position of the Second Respondent and his relationship with the
Company. It is apparent from paragraphs 9 and 10 that the Inspector had
clearly in mind that the question he had to determine was whether the Second
Respondent was in occupation of the Building for the purposes of the subsection
and did so by virtue of a licence.
Taking the earlier findings with his conclusions in paragraph 10 as a whole, it
is in my judgement clear that the Inspector there concluded that, given his
control over the premises and the other circumstances, the Second Respondent
was himself in occupation of the Building, notwithstanding that he was there
transacting the affairs of his Company. It was a practical appraisal of the
position. In particular, the conclusion that the Inspector expressed in
paragraph 10 that it was hard to imagine how the Company could have prevented
its sole director from occupying the premises was in my view a conclusion based
on the realities of the situation rather than the formal legal possibilities.
In determining the nature of occupation the Inspector was in my judgement fully
entitled to have regard to the reality of what was the position on the ground.
For the reasons that I have set out above his overall conclusion was in my
judgement a conclusion that was open to him as a matter of law and one to which
he was able properly to come as a question of fact and degree on the evidence
before him. In the particular circumstances of this case and in the light of
his findings it was not perverse. The reasons given were adequate in that
the Inspector set out his salient findings, against which he reached his
overall conclusion as to the character of the occupation and whether it was by
licence. In my judgement those overall conclusions did not require
elaboration. Once the Inspector had concluded that the Second Respondent was in
occupation, the finding that that was by licence was in the circumstances
almost unavoidable. I am not therefore persuaded that the Inspector's
conclusions as to the Second Respondent's occupation by virtue of an implied
licence reflect any error of law or that the reasons given were inadequate so
as to give rise to any prejudice of substance. Thus, notwithstanding my
conclusion that the Inspector's approach to piercing of the corporate veil was
not one that was sustainable in law, having regard to his alternative ground
for supporting the overall conclusion to which he came as to the competency of
the Second Respondent as appellant, his conclusion would have remained the
same. Thus the error of law in the former respect would not justify quashing
the decision. Accordingly Mr Sefi's first ground for challenge fails.
ESTOPPEL
Background
On the 16th June 1986 the agent for the landowner wrote to the
Appellant's planning officer, stating in respect of the building:
"Further to our telephone conversation regarding the above we are erecting this for the repairs of gravel pit machinery, in particular the dumper trucks, and also the maintenance of the concrete crushing machine. This is on the same site as the old workshop but because of the dumper trucks the old workshop is too small. Previously it was used for repairing the small locomotives which are no longer in existence. Looking to the future this building can be used for agricultural purposes."
The letter was copied to the owner and to the mineral operator.
On the 15th July 1986 there was a meeting between the officers of
the Appellants and the landowner's son and the mineral operator. The Minute
records at paragraph 1
"(The Appellants officer) said having read (the) letter, that it was clear that
the County Council had to approve the siting and design of the building since
it was to be used, largely, in connection with the mineral workings."
The Inspector dealt with this evidence at paragraph 14 of the Decision Letter
as follows
"There has been, since the early 50's or before, a workshop building on the
appeal site. Part of it can still be seen in the part of the present building
at the northeastern end of the main structure. The latter was observed to be
under construction in 1986, without the benefit of planning permission.
However, the owner of the site, Mr Randall told the Council the building was
required to accommodate the repair and maintenance of gravel pit machinery and
waste processing equipment. Mineral operator on the site confirmed this
shortly afterwards. On the basis of this information and their own
observations the Council decided that the construction of the building was
permitted development under Class XIX of the 1977 General Development Order
(GDO). Its use forms the main subject of the present appeal."
At the inquiry the Appellants had contended that the Second Respondent was
estopped by these representations from relying upon ground (d) so far as would
be inconsistent therewith. That would have meant that the ten year period
would not have expired by the time of the issue of the Notice.
The Inspector dealt with the issue of estoppel at paragraphs 15 to 20 of the
decision letter. In particular at paragraph 17 and following he concluded:
"17. A number of cases and texts have been drawn to my attention and I have taken them into account. However, I have seen no previous case in which estoppel in pais has been raised in connection with the four and ten year rules associated with planning enforcement action. I have had, therefore to rely on more indirect arguments. I agree that a Council's actions are made much more difficult if they are not able to rely on what they are told, and I share their distaste for the possibility that some development might gain immunity from enforcement action by virtue of deliberate deception. On the other hand it might be equally unfortunate as well as unfair, should a tenant of property be estopped from defending his development from an incorrect enforcement notice based upon inaccurate information provided in good faith by his landlord.
18. Councils have extensive powers of inspection and investigation, backed up
by penalties operable against those providing false information either
recklessly or intentionally. However, I know of no principle whereby an
appellant is estopped from denying the truth of his, or in this case someone
else's, previous representations. The acceptance of such a doctrine, however
it was termed, would represent an extension of the application of estoppel to
planning law well beyond that so far accepted by the courts. Indeed it would
in practice represent the very extension Mr Moriarty described in his judgment
as unacceptable.
19. In the present instance, I have had adequate time and opportunity to
assess Mr Brown's evidence and level of knowledge of planning matters. It is
my clear impression that his knowledge of planning issues at stake here, even
after his involvement in the lengthy proceeding generated by this appeal,
varies between scanty and non-existent. This is understandable and I intend no
criticism in stating it. I find it entirely credible that he took no interest
in, and had no knowledge of, statements made to the planning authority by his
landlord and the site's mineral operator. I can also accept that he is unaware
of the precarious planning status of his company's premises. When he was
eventually questioned the report of the answers he gave do not seem to me to
indicate any significant areas of deceit or evasion.
20. Taking such factors into account I find no substantial evidence that Mr
Brown was party to any deception of the Council. On that basis and for the
reasons referred to above, I conclude that he is not estopped from pursuing the
appeal on Ground (d), or from relying on evidence as to the use of his premises
which differs from previous descriptions of that use furnished by his landlord
and a mineral operator involved in the surrounding area."
Submissions
Mr Sefi accepts that he is bound by the Inspector's finding that the Second
Respondent was not aware of or party to the relevant representations. However,
he submits that that is not the end of the matter because the Second Respondent
was a privy to the representations made by reason of his tenure and as such is
bound by them. Mr Sefi relies upon Spencer Bower Estoppel by
Representation Third Edition paragraph 126 which states:
"In transactions relating to land, any person who derives title from, or takes
an assignment from, or is let into possession by, or otherwise claims, or
"comes in", under the actual representor, is bound by the same representation,
and consequent estoppel, as that which binds such actual representor."
Mr Sefi submits that the fact that the Second Respondent was not aware of the representations or a party to them, did not mean that he was not bound by the representations made by his landlord or the landlord of the Company, from whom he occupied by licence. The Inspector made no findings in that respect in the decision letter, whether as to the timing of the representations and any fictionalised grant and re-grant in respect of the expanded premises or otherwise.
Mr Sefi submits that the application of estoppels in the context of enforcement
has been established by the House of Lords in Thrasyvoulou v. Secretary of
State of the Environment [1990] 2 AC 273. There is no reason why an
estoppel in pais could and should not arise in an appropriate situation. He
referred me to Canadian and Dominion Sugar Company Limited v. Canadian
National (West Indies) Steamships Limited [1947] AC 46 where Lord Wright
giving the judgment of the Privy Council at pages 55 and 56 described estoppel
as "a substantive rule of law."
Mr Gerald Moriarty QC had relied upon Western Fish Products Limited v.
Penwith District Council [1981] 2 AER 204 in rejecting the application of
estoppel (albeit not necessary for his decision in that case) (transcript pages
16-17). Western Fish could however be distinguished because it was
concerned with a fetter on the statutory discretion of the authority. That did
not arise in the present case, which was concerned with representations
deliberately made with the intention that they be relied upon and which were in
fact relied upon to the disadvantage of the Appellants. The Inspector erred in
rejecting estoppel in principle and failed to consider the question of privity.
In the circumstances the Inspector had not made sufficient findings to conclude
what his decision would have been had he been properly directed. Thus the
decision should be remitted on this ground alone.
Mr Elvin submits that this is not a situation of privity at all. The principle
of privity concerns transactions relating to land. For the purposes of this
form of estoppel that is in effect limited to cases involving proprietary
estoppel, such as in Hopwood v. Brown [1955] 1 WLR 213; ER Ives
Investment Limited v. High [1967] 2 QB 379 and Inwards v. Baker
[1965] 2 QB 29.
In the present case on the findings of the Inspector the Second Respondent was
not involved in the representations and they did not concern a transaction
relating to the land. The principle of estoppel, if it applied, required the
consideration of unconscionability. It was inconceivable on the findings of
the Inspector that he would have held that it was unconscionable for the Second
Respondent to have relied upon ground (d).
Mr Elvin further submits that the framework for planning control is statutorily
based, including the right of appeal on the grounds set out Section 174 of the
Act. Thus the Court should be slow to infer principles of common law as a
gloss on the statutory framework. He refers in that respect to the opinion of
Lord Scarman in Pioneer Aggregates (UK) Limited v. Secretary of State for
the Environment [1985] 1 AC 132 at page 140. For example, an application
could be made by the Second Respondent for a lawful use certificate based on
the ten year user by virtue of Section 191 of the Act. That was a statutory
right, of which he could not be divested by estoppel at common law. As a
matter of principle, estoppel should not be extended to override the statutory
right of appeal under Section 174. Thus, if estoppel is to apply, it should be
limited to procedural and not substantive matters.
There was nothing in the present case to justify the conclusion that the Second
Respondent had conducted himself in such a way as to be debarred from relying
on ground (d) under Section 174. Mr Elvin also relied upon Article 1 to the
First Protocol to and Article 8 of the European Convention on Human Rights. He
submitted that this Court should approach conscionability within the context of
those rights. It would, he submits, be disproportionate to allow the Second
Respondent to be deprived of his rights under the statute through no fault of
his own.
Decision
I start with the principle. It is well established that no authority can be
estopped from exercising its statutory duty, at least subject to the principles
of fairness explained in R v. North and East Devon Health Authority ex parte
Coughlan [2000] 2 WLR 622. That apart, I see no reason why in principle
estoppel cannot apply in the context of planning control. So much would seem
to me consistent with the reasoning of the House in Thrasyvoulou.
However, I accept Mr Elvin's submission that planning control is a creature of
statute and that estoppel cannot itself directly override or alter accrued
rights under the statute, such as planning permission or a lawful use
certificate. Thus, in my judgment, the effect of estoppel would normally be
procedural, that is that a person or, subject to the limitations on fettering
discretion, an authority may act in such a way as to make it unconscionable or
unfair for it to proceed in one way or another under the Act. For this purpose
the effect of estoppel would be essentially personal or what would have been
known as in personam.
With regard to the Inspector's conclusions in paragraph 18 of the Decision
Letter, I do not believe that what I have set out above would represent an
extension of what is the generally understood concept of estoppel. It does
mean, however, that, subject to Mr Sefi's submissions as to privity, the
Inspector's findings in paragraph 19 in respect of the absence of complicity
or knowledge on the part of the Second Respondent become highly material as to
whether the Second Respondent should have been estopped from relying upon any
part of the evidence to support his ground (d) appeal. In my judgement it is
manifest that on those findings there was no basis for concluding that it would
have been unconscionable or unfair for him to have pursued that ground on the
basis of the evidence available to him, notwithstanding that the Appellant
might have been misled by representations made by others.
Thus to succeed Mr Sefi must demonstrate that, within the limits of estoppel to
which I have already referred, the Second Respondent was so bound by those
representations as to make it unfair for him to proceed with his ground (d)
appeal in a manner that would be inconsistent with the representations. It
does not seem to me that the doctrine of privity relied upon by Mr Sefi would
generally be relevant in this context. While planning permission would run with
the land, representations as to the use of land do not relate to or constitute
a transaction or dealing in land. Planning is concerned with the use of and
operations on land, not its ownership. There is not, therefore, at least for
this purpose, any relevant privity of estate, on which the doctrine of privity
is fundamentally based. In my judgement representations made by a landlord
independent of and without the complicity of, as here, a licensee would not in
themselves estop the licensee from exercising his full rights under the Act in
this respect.
Moreover, I have considerable doubts whether prior representations of fact
could ever without more bind any potential appellant under section 174. As the
Inspector pointed out, Parliament provided specific powers to the authority to
require information from owners and occupiers of land under sections 171C and D
as part of the 1991 Act amendments. While sanctions are there imposed for
giving false information, there is no suggestion that the information provided
should be in any way conclusive in subsequent appeal proceedings or otherwise.
That would seem to me supportive of the view that I have expressed above as to
the role of estoppels of this kind in the planning context.
Thus, while I would not have stated the relevant principle as widely as the
Inspector appears to have done, in the circumstances of the present case there
was not in my judgment any error of law or for that matter inadequacy of
reasoning in his conclusions in this respect. It also follows that, given the
conclusion to which I have come, it is unnecessary for me to consider Mr
Elvin's submission as to the effect of the application of Convention rights on
the established principles of estoppel. Accordingly, this ground also fails,
as does the application.
MR PURCHAS QC: For the reasons set out in the unrevised judgment, which I now hand down, this appeal is dismissed.
MR ABRAHAMS: My Lord, I am grateful. I do seek the First Respondent's costs of this action. An updated schedule of costs has been prepared today, if I can hand that to you (same handed).
MR PURCHAS QC: Bear with me. I have had a look at the unrevised judgment I have handed down, there are plainly a number of typographical and other points I will want to look at and that is why it is unrevised. If there are any amendments that either party thinks should be made, I would be very grateful to receive those. I do not want to spend time this morning, but they can be passed to me on a note. If that is acceptable to both parties, then that is the way I propose to deal with it.
MISS SKERRETT: My Lord, I do not know if it would be appropriate to interject? Basically, the Appellate would be seeking permission to appeal.
MR PURCHAS QC: You can come to that after I have dealt with costs, if that is convenient, thank you very much.
MR ABRAHAMS: My Lord, an updated schedule of costs has been served, I understand there is a copy before you.
MR PURCHAS QC: I am not sure I have received it. Yes, I have it. Can we deal with the principle of costs first. I will just ask Miss Skerrett if she resists.
MISS SKERRETT: My Lord, we are not seeking to oppose any application made by the Respondent.
MR PURCHAS QC: Can I ask Miss Skerrett whether she has any comments on the schedule that was served on her?
MR ABRAHAMS: My Lord, there is a slight disagreement between the parties. As I understand it, my learned friend is instructed to ask for a detailed assessment which would be the normal route, given that this hearing did stretch over two days. My instructions are that given the modest sums asked for and set out in our costs schedule, and given the fact that the hearing only just went over the one day limit, it would be appropriate to have summary assessment.
MR PURCHAS QC: How long did it last?
MR ABRAHAMS: A day and a half, my Lord. It would be appropriate for you to assess the costs this morning to avoid the additional costs of going to detail assessment.
MR PURCHAS QC: Can you remind me, is it in my discretion, whether I can rule this is appropriate for summary assessment?
MR ABRAHAMS: Yes, the fundamental view is Part 44.7.
MR PURCHAS QC: Give me a moment.
MR ABRAHAMS: That has to be read in the light of the costs direction.
MR PURCHAS QC: Yes. That is a discretionary power.
MR ABRAHAMS: It is page 643 in the White Book. It is at the bottom of the page, paragraph 4.3. Are you with me my Lord?
MR PURCHAS QC: Yes.
MR ABRAHAMS:
"Whenever a court makes an order about costs, fixed costs, the court should consider whether to make a summary assessments."
Then the general rule is set out at 4.4(1). At 4.4(1)(b):
"At the conclusion of any other hearing which has lasted not more than one day, in which case the order will deal with costs of the application or matter."
That is a general rule, my Lord, and it seems to me plain that there is a discretion, because under 4.3 you are required to consider a summary assessment under any circumstances.
MR PURCHAS QC: Thank you for that. Is it appropriate I hear from Miss Skerrett, first?
MR ABRAHAMS: Yes, my Lord.
MISS SKERRETT: My Lord, if I take costs first. We are seeking an assessment on the basis that the initial costs schedule which we were given was in the region of £6,000. That was revised to £7,500. It is just that increase of £1,500 we are concerned about, which is why we are seeking detailed assessment.
MR PURCHAS QC: In what way does the difference arise?
MISS SKERRETT: I have been instructed by the Treasury Solicitor that the main difference is a refresher fee for Mr Elvin, that is the main difference. Otherwise, I am instructed that if the costs were below £7,000, we would be prepared to agree to summary assessment, but the fact that it has gone above that figure, we are seeking detailed assessment.
MR PURCHAS QC: On the basis, that Mr Elvin - bearing in mind his call, his refresher was £875 for the second day would not be appropriate, is that right?
MISS SKERRETT: I think the refresher fee was in the region of £700.
MR ABRAHAMS: The refresher is £875, as set out in the Schedule.
MISS SKERRETT: Obviously, we do not have a major quibble with the figures, we would just like to go through it with detailed assessment and arrive at it that way rather than summarily doing it today.
MR PURCHAS QC: I think this Court is loath to order assessment after the hearing if it can be avoided. I have in mind that, generally speaking, the Treasury Solicitor applies rates of remuneration which, on the whole, this Court has accepted as being reasonable, certainly for summary assessment.
Is it simply that you want the opportunity to look further at them?
MISS SKERRETT: That is exactly what it is.
MR PURCHAS QC: When was it served on you?
MISS SKERRETT: The revised schedule was served on me this morning.
MR PURCHAS QC: You have not had a chance to take instructions?
MISS SKERRETT: No. I just have brief instructions that if it is over £7,000 we would like more time to go through the figures. We were given the previous schedule a few days ago, but they were revised today.
MR PURCHAS QC: It is rather difficult, because the guidance in the Practice Direction says that where it is less than a day, it should be served 24 hours in advance. There is no requirement to serve a schedule at all, is there?
MISS SKERRETT: No, as far as I am aware, no. It would have been helpful if we had received it a little earlier, that is the basis of our application.
MR PURCHAS QC: Mr Abrahams, what do you say about it?
MR ABRAHAMS: My Lord, my concern on this matter is, firstly, on the principle of whether there should be detailed assessment. It seems from what my learned friend has said that her concerns relate only to the additional matters that were included in the updated schedule, that is the refresher for Mr Elvin of £875. My fee for attending this morning, which is £75, and I believe just half an hours further attendance on the client. We are dealing with sums of about £1,000. In my submission, it is simply not proportionate to order a detailed assessment which will simply lead to greater costs being incurred and in order to allow the Applicant a chance to look at the figures more carefully. The applicant has the figures before her and they can make submissions before you this morning. In my submission, that is the proportionate and reasonable approach here.
MR PURCHAS QC: If it was intended to seek a summary assessment, why was the schedule not served on the Applicant until this morning?
MR ABRAHAMS: I believe there was some difficulty getting the fee figure for my attendance at judgment, my Lord.
MR PURCHAS QC: Mr Elvin's refresher would have been known for some time?
MR ABRAHAMS: No, I am afraid, my Lord, that again was something which those instructing me had to investigate rather at the last minute.
MR PURCHAS QC: Thank you very much, is there anything else you want to add?
MR ABRAHAMS: No, my Lord, other than to submit those additional figures, which concerned my learned friend and which are, in my submission, reasonable and proportionate in this case.
RULING ON COSTS
MR PURCHAS QC: I do not need to trouble you, Miss Skerrett on this point. I do not propose to make a summary assessment of costs on this matter. The sole reason I take that course is because the schedule of costs was only served on the Appellant this morning. I am not satisfied with the explanation given on behalf of the First Respondent in that respect. Of course, this is a case that lasted more than a day and, accordingly, there was no obligation under the Practice Direction to serve a schedule 24 hours in advance. In my judgment, if the First Respondent was seeking a summary assessment, which would normally be a course I would support, then the First Respondent should have taken steps to ensure that the Appellant had the opportunity to consider the schedule of costs on which the First Respondent was inviting a summary assessment.
In these circumstances, I propose to deal with costs on the basis that they be assessed if not otherwise agreed. Is there any other application you make before the application for leave to appeal?
MR ABRAHAMS: No, my Lord.
MR PURCHAS QC: Miss Skerrett.
MISS SKERRETT: My Lord, the Appellant seeks permission to appeal on the ground that there is some other compelling reason that the appeal should be granted. The reason being that this case raises issues of general importance which your Lordship identifies very early on in his judgment, I think it is on the first page. In particular, I am referring to paragraph 2, page 1 and to the issue of estoppel and the corporate veil. In my submission, if those are determined, they will have some value within the planning context. I do not know if it would be helpful, my Lord?
MR PURCHAS QC: No, I think the difficulty with that is this: although the corporate veil question raises an important point, as I understand the question I have to consider, it is whether there is a reasonable prospect that the appeal will succeed, that is the test I have to apply, I think. Can you remind me of that.
MISS SKERRETT: The test under 52.3(6) is permission to appeal, "where the... appeal would have a real prospect of success or where there is some other compelling reason" and I am relying on that latter one, not the first.
MR PURCHAS QC: "Real prospect".
MISS SKERRETT: Yes, "real prospect". I am not seeking to rely on that, I am seeking to rely on (b) "there is some other compelling reason", and that reason being issues of general importance.
MR PURCHAS QC: Success would obviously depend on the alternative licence point.
MISS SKERRETT: Yes. I am not sure if it would be helpful if I took you to the passages of the judgment.
MR PURCHAS QC: No, I am familiar with that.
MISS SKERRETT: In any event, my Lord, the Appellant seeks a direction allowing them at least 28 days to file the Appellant's notice, whether or not leave is granted here today.
MR PURCHAS QC: It is normally 14 days.
MISS SKERRETT: It is normally 14 days if no direction is given, but the Practice Direction stipulates that you must not normally exceed 28 days, but it does not say any other requirement.
MR PURCHAS QC: What are the grounds for that, for the extra 14 days?
MISS SKERRETT: I will check.
MR PURCHAS QC: What are your grounds for asking me to extend....
MISS SKERRETT: My grounds are simply because we require 28 days on the basis that it is vacation period, and the committee's instructions would have to be obtained to authorise this appeal. In our submission, that would take more than 14 days, around 28 days.
MR PURCHAS QC: When is the committee due to sit?
MISS SKERRETT: We do not know, I am sorry.
MR PURCHAS QC: Anything else you want to say?
MISS SKERRETT: No, that is my application, thank you my Lord.
MR PURCHAS QC: Mr Abrahams, I need not trouble you on permission. What do you say about 28 days?
MR ABRAHAMS: We do not oppose an extension of the time limit to 28 days.
RULING ON LEAVE TO APPEAL
MR PURCHAS QC: In this matter, permission to appeal will be refused on the grounds that there would not be a real prospect of success in respect of piercing the corporate veil grounds because of the alternative licence basis for upholding the Inspector's decision. I am not satisfied that although the point is a point of general importance, that it is sufficiently compelling to justify permission to appeal in the absence of a real prospect of success.
So far as the second part of the application is concerned, bearing in mind that it is within vacation period, I am minded to extend the period, via the Appellant's notice, to 28 days on the application made by Miss Skerrett.
Are there any other matters?
MISS SKERRETT: No, my Lord.
MR PURCHAS QC: I have copies of the unrevised judgment, I do not know if it would be helpful?
MISS SKERRETT: Yes, it would be helpful.
© 2000 Crown Copyright