England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London WC2
		Tuesday, 23rd January 2001

Tuesday, 23rd January 2001

1. MR JUSTICE SULLIVAN: This is an appeal under section 288 of the Town and Country Planning Act 1990 against a decision letter of an inspector, dated 22nd December 1999, dismissing a planning appeal.
2. The planning appeal related to the use of a site, a yard, at the rear of 86-88 Upton Lane in Forest Gate. The proposed development was the use of that rear yard for car washing, valeting and servicing, carpet and upholstery cleaning and the pumping out of flood water.
3. The inspector dealt first of all with procedural matters. He said at paragraph 1 that:

"... the appellant had clarified the scope of the application. The yard is used for the valeting, washing and servicing of cars. It is also used to store equipment and machinery used for carpet and upholstery cleaning and pumping, but those operations are normally carried out on customers' premises."

4. He then went on to note that a planning permission had been granted for alterations at 86-88 to provide a ground floor shop and three self-contained flats, but that there were certain conditions attached to that grant of permission. The relevant one for present purposes is condition 3, which stated that:

"The yard area formed at the rear of the building shall be provided prior to the commencement of the use of the ground floor shop and retained permanently for the accommodation of vehicles of the occupiers or persons calling at the premises only and shall not be used for any other purpose."

5. The inspector noted that the reason for the imposition of that condition was:

"... to avoid the obstruction of surrounding streets by waiting vehicles and to protect the amenities of the area."

6. The inspector said that the permission had been implemented and since the present use, which was not related to the shop, had also commenced, what he was going to do was to treat the current proposal as an application under section 73A of the 1990 Act to authorise a breach of condition. He added this:

"Furthermore, the existence of Condition 3 overrides the appellant's argument that the change of use of the yard does not require permission under the terms of the Town and Country Planning (General Permitted Development) Order 1995."

7. I pause there to note that in that respect the inspector was entirely correct. It is perfectly obvious that given the existence of the condition, planning permission was required for the development proposed. The references by Mr Bhamjee to various statutory instruments do not alter that position.
8. The inspector described the main issues as:

"... whether the yard area should be retained as an area serving the shop at Nos. 86-88 and whether its separate use creates an unacceptable threat to highway safety and to residential amenity in terms of increased noise and disturbance."

9. The inspector then described the yard and its location and added some information about the present use. He noted that the Council's opposition to the creation of a separate planning unit was the central part of its case, and that the Council had argued that that would constitute an overdevelopment of the site which would result in conflicting vehicle movement and therefore be a threat to drivers and pedestrians alike.
10. The inspector considered the question of visibility from the access and noted that it was restricted. But he went on to say that, so far as number of vehicle movements was concerned, he was not convinced that they would be significantly greater than if the yard had been used for the originally intended purpose.
11. He went on in paragraph 9 of the decision to say:

"It is the limited capacity of the site however, which causes me my principal concern about the use, because there is clearly no room within the site for vehicles waiting to be worked on or waiting to be collected."

12. He then referred to the appellant's evidence as to the extent to which that might happen, but went on to conclude in that paragraph:

"... even if the current level of activity is as modest as the appellant maintains, I cannot safely rely on that continuing to be the case."

13. He continued:

"My concern is that even a relatively minor increase in the number of vehicles parked in the adjoining streets could produce an unacceptable increase in congestion with its associated threat to highway safety."

14. He then described what he had seen at a lunchtime visit on a single weekday. He noted that he had to have regard to the appellant's objection to one of the conditions that had been suggested by the Council, in the event of the appeal being allowed, which would have prevented weekend working. He mentioned that because he thought that, if anything, during the weekend the demand for parking space by residents would be even greater. He expressed some sympathy for the appellant, but considered that he had to have regard to the potential of the type of use for which permission was being sought. In his view that potential endorsed the Council's fears that the site was too small and confined for the use.
15. He then referred to the relevant policy in the Council's Unitary Development Plan and concluded that there was too great a risk that the use would conflict with the objectives of that policy, which was to ensure that car repair workshops and garages have adequate off-street parking and vehicle storage space to avoid the need for on-street parking.
16. He then turned to the issue of residential amenity, noting that the appellant had said that if the principle of the use could be agreed, he would intend to enclose the site with a structure similar to that approved in 1993. He went on:

"That proposal does not form part of the application, but, again, I have no reason to doubt the appellant; not least because, at present, the site is entirely exposed to the weather. I also consider that a suitably insulated building could protect those residents who are most at risk from noise. The Council has a further concern about waste water escaping from the site. During my inspection, the appellant sought to demonstrate that the Council's concern is unfounded, but I would nonetheless wish to be satisfied that any necessary modifications to the drainage system could be installed."

17. For those reasons he considered that the appeal should be dismissed.
18. It might have been thought that this was one of the most simple and straightforward cases of planning judgment that could possibly be imagined, giving rise to absolutely no question of law whatsoever. It is plain upon a common sense reading of the decision letter that whilst the inspector had some reservations on the waste water issue, and was not particularly impressed with the Council's residential amenity point, his primary concern was the fact that the use, with its potential for increase, could produce an unacceptable increase in congestion in adjoining streets with the associated threat to highway safety. That was preeminently a matter of planning judgment for the inspector to reach in the light of all the evidence supplemented by his site visit.
19. Notwithstanding that, Mr Bhamjee, who has appeared in person, has produced reams of correspondence with the Treasury Solicitor. There are no less than three bundles of documents before the court. I have read Mr Bhamjee's lengthy particulars of claim, which have been presented in an amended form in accordance with directions by Scott Baker J. I have also read the applicant's revised skeleton argument, which sets out a great number of matters at even greater length.
20. I do not intend to occupy the court's time by reading out all of that material. I recognise that Mr Bhamjee is appearing in person and that he genuinely considers that he has proper complaints. I do not intend any discourtesy, but simply an accurate statement as to the force of the numerous detailed points that are made in the particulars of claim and the revised skeleton, when I say that all of them in the context of a section 288 appeal are either unintelligible, or, if and insofar as they are intelligible, entirely devoid of merit.
21. This case is the clearest possible demonstration of the need for a filter or permission stage for appeals under section 288, as is the case with appeals against inspector's decisions in respect of enforcement notices. Such a filter stage would weed out entirely unmeritorious appeals such as this one, and thus save all parties a great deal of time and cost.
22. I say that the appeal is devoid of merit for the following reasons. Firstly, most of the appellant's complaints do not relate to the inspector at all, but to the conduct of other parties who he has sought to join in these proceedings, in particular a councillor, Mr Chaudhary. It is plain that the appellant considers that Councillor Chaudhary is pursuing what might be called a vendetta of some kind against him and making false statements and exaggerated complaints. Whether or not that is the case is not for me to decide. It is simply not relevant for the purposes of a section 288 appeal, which is a challenge to the decision of the inspector.
23. For the same reason, the numerous complaints against the conduct of Council officers are neither here nor there for the purposes of this section 288 appeal. The underlying purpose of enabling those who are dissatisfied with council decisions on planning applications to appeal to inspectors is so that a fresh look can be taken at the planning merits of their applications. That is just what this inspector did. If the Council's officers had erred in some way, then that is a matter which could be raised with the inspector and put right by him.
24. I have sought, with some difficulty, to identify certain points which might be said to have some bearing upon the lawfulness of the inspector's decision. I have already mentioned the appellant's reference to either the General Development Order or the Use Classes Order (or perhaps both, it is not entirely clear which statutory instrument is relied on) for the proposition that no permission was required. The short answer to that is that there was an application for planning permission for a particular development before the inspector with which he was obliged to deal. Moreover, given the existence of condition 3, he was entirely correct in his conclusion that whatever the provisions of those orders, planning permission was required under section 73A to authorise a use which would be in breach of that condition.
25. Apart from that issue, it seems to me that there may be six points which might be said to have some bearing on the lawfulness of the inspector's decision.
26. Firstly, and this is a point that has been added very recently indeed, after the amended particulars of claim, it is argued that the inspector was not sufficiently independent for the purposes of article 6 of the European Convention on Human Rights.
27. Secondly, as I understand it, the inspector is criticised because he did not either permit or require the attendance of Councillor Chaudhary for cross-examination.
28. Thirdly, it is said that he did not require the enforcement officer to attend for the purpose of cross-examination. As I understand it, the appellant would have wished to ask the enforcement officer certain questions as to the history of the manner in which the application plans had been dealt with.
29. Fourthly, it is said that there was no reference before the inspector to certain planning permissions which were granted in 1976 and 1980.
30. Fifthly, it is said that the inspector failed to appreciate that the Highway Authority and the Health and Safety Executive had not objected and instead took account of the objections of a councillor.
31. Sixthly, it is said that what the appellant called "screening tests", by which he means, as I understand it, noise tests of the kind carried out by environmental health officers, were not conducted at the behest of the inspector.
32. I shall deal very briefly with each of those matters in turn. As to the first point, this was an appeal to the Secretary fo State which was transferred to an inspector and which dealt with a purely local issue. It was a dispute between a citizen and his local council as to whether the citizen ought to have planning permission for a relatively small scale development. The Secretary of State had no role whatsoever. This is in clear contrast with the cases that were dealt with by the Divisional Court in what have come to be called the Alconbury cases. In those cases the Secretary of State rather than the inspector was taking decisions on what might generally be called for the purposes of this appeal "government proposals"; that is to say, proposals in which government departments had some kind of interest. This case, by contrast, is covered by the Bryan decision of the ECHR, which was dealt with by the Divisional Court in these terms in paragraph 94:

"We have already said why we think the SSETR is not independent or impartial. This must be balanced against the safeguards inherent in the process, the most important of which is the public inquiry. The rules under which such inquiries are held are designed to and do, we think, give the parties a fair and public hearing at which all issues of fact and law can be ventilated. If the decision was for the Inspector we have no doubt, as in Bryan, that this would justify a restricted right of review by the High Court. But that is not the case. The Inspector reaches conclusions and makes recommendations at the end of the inquiry and the SSETR cannot disagree with his material findings of fact without giving the parties the opportunity to make written representations. But having complied with this requirement of natural justice he is free to make his own decision and does so after taking account of internal legal and policy 'elucidation' and the recommendations of the Decision Officer which are not seen by the parties."

33. As I have said, this is a Bryan type of case, where the ECHR made it quite clear that it was satisfied that although there was the theoretical possibility of recovery of such cases by the Secretary of State, and therefore a theoretical question mark over an inspector's independence, that question mark was effectively removed by the opportunity of challenge in this court. In my judgment, paragraph 94 of the Alconbury judgment disposes of this argument.
34. Secondly, turning to the question of cross-examination of Mr Chaudhary. That was not possible because Mr Chaudhary did not attend. The inspector deals with this matter in a witness statement. In that statement he makes it clear that there had been correspondence prior to the hearing with the Planning Inspectorate in which the appellant made it plain that he wanted to cross-examine the councillor, but at the end of the day, very sensibly, the inspectorate left it to the inspector to decide. Looking at the matter, the inspector, as he says in his witness statement:

"... formed the opinion that it was unlikely that even if Councillor Chaudhary were to be cross-examined, whatever he would say would not be central to the relevant issues, and therefore would make no difference to my ultimate decision in any event."

35. Having seen the sort of points that the appellant wished to raise with Councillor Chaudhary, I need only say that the inspector's judgment in that respect was wholly justified. Accordingly, it follows that he was also justified in concluding that the appropriate way forward was an informal hearing.
36. Again, pausing there, I have sought to give some impression of the scale of the development involved in the application. If ever there was a case that was appropriate for an informal hearing, it was this case. The inspector had been under the impression that the appellant had agreed to there being an informal hearing, notwithstanding his previously expressed wish to cross-examine. He says that his impression was borne out by the fact that at the hearing "the appellant did not raise the point with me at all":

"I was therefore unaware of the existence of any problem, and did not consider there was a need to raise the point myself. I did not therefore see any need to give reasons for my decision to have an informal hearing, without cross-examination, in the decision letter."

37. I need only say that this decision is so obviously sensible that it is difficult to see how any complaint could be made about it.
38. The same applies to the third point, that is to say, the non-availability of the enforcement officer for cross-examination. The appellant could put in whatever plans he wished to place before the inspector and say whatever he wished to say to the inspector about the scope of the application. Having heard the appellant, the inspector concluded that although the appellant would be prepared to enclose the site with a structure, that particular proposal did not form part of the application. The inspector was perfectly well able to determine the scope of the application by reference to the application form and the drawings produced in front of him without there being any need at all for the enforcement officer to be cross-examined about those matters. In respect of the various other complaints relating to Council officers' conduct, there was no need for them to be cross-examined for the appellant to be able to make his points at an informal hearing into this very simple proposal.
39. Fourthly, the fact that there was no reference to the 1976 and 1980 planning permission is perfectly true, but goes nowhere because the inspector has looked at those documents, and makes the point in paragraph 8 of his witness statement that they were not, in fact, granted in relation to the premises the subject of this appeal. There was an erroneous reference which might have given that impression in respect of one of the permissions, but when one looks at the documents, it is plain that it did not relate to this yard. The inspector also went on to make the point that even if it had, the 1980 permission had been given to a company called AW Child Limited and was personal to that company and limited in its operation. As the inspector sensibly says at the end of his witness statement:

"The fact therefore that the planning permissions were not disclosed to me by the second Defendant [the Council] at the hearing made no difference whatsoever to my ultimate decision..."

40. Fifthly, with regard to the proposition that the inspector did not take account of the fact that there was no objection by the Highway Authority and the Health and Safety Executive, there is no suggestion in the decision letter that the inspector believed that the Highway Authority were objecting to the proposal. Notwithstanding the lack of objection from the Highway Authority, the local planning authority, on such a local issue as this, was perfectly entitled to raise the point of congestion in surrounding streets. There is often a degree of overlap between highway and planning matters. Congestion and parking difficulties are one example of where there may well be an overlap, and where a local planning authority may well have different views from a highway authority. The local planning authority is concerned, in part at least, for residential amenity in terms of residents' needing parking space by their homes and generally having their lives made difficult by obstruction from parked cars, with the highway authority possibly concentrating rather more upon the purely highway safety aspects of the problem.
41. In any event, the local authority planning authority had objected on this ground and the inspector was perfectly entitled to take the view that its objection was well-founded. There is no question of him simply rubber stamping the planning authority. He went out on a site inspection. He looked for himself. He formed his own conclusion. He was perfectly entitled to do so.
42. Lastly, the question of no "screening tests". There are a number of answers to that point. Firstly, it was not incumbent on the inspector to order screening tests if the parties had not thought it necessary to have them carried out. Secondly, the inspector did not, in any event, base his decision upon a noise objection. He seemed rather to accept the appellant's point that the noise problem at least would be dealt with if the site was enclosed with a structure. It is perfectly clear from reading the decision that the inspector's concern was the congestion point on the highway rather than the noise point. Thus there was no sensible reason for him to order noise tests, even if there had been some sort of obligation upon him to do so, which there was not.
43. For all of these reasons, I am satisfied that there is no conceivable basis on which this inspector's decision, which was essentially a question of planning judgment, can be said to be erroneous in law. It is fair to describe the appeal as wholly misconceived. For these reasons it must be dismissed.
44. MR MAURICI: My Lord, two points. First of all, your Lordship will have seen there are a number of other applications which at least are purported to be made in the course of these proceedings. In addition to dismissing the section 288 proceedings, I would ask that your Lordship also order that any other applications which have been made in those proceedings are also dismissed.
45. MR JUSTICE SULLIVAN: Can I just satisfy myself as to exactly what those applications are.
46. MR MAURICI: My Lord, it is very difficult to see what they are. I have tried to identify some of them in my skeleton argument.
47. MR JUSTICE SULLIVAN: Let me just dig out your skeleton argument.
48. MR MAURICI: Paragraph 20, page 6.
49. MR JUSTICE SULLIVAN: Yes, thank you.
50. MR MAURICI: My Lord, there is the question of costs. Your Lordship should have a schedule of costs, to which I wish to make one --
51. MR JUSTICE SULLIVAN: I do not actually have a schedule of costs.
52. MR MAURICI: Can I hand it up (Handed). It has been slightly amended and reduced to take out one figure.
53. MR JUSTICE SULLIVAN: While these are being handed up, I should just add this.
54. In addition to the application to quash the inspector's decision, the appellant has purported to make a number of other applications. I am entirely satisfied that none of these is appropriate in a section 288 application, and that all of them, if and insofar as they have been made, must be refused.
55. Now, costs.
56. MR MAURICI: The total amended figure is £9,882.50, which is a large sum, my Lord, but is, I say, justified in the context of this case. Unfortunately, the Treasury Solicitor's department has had to try and deal with the complaints that have been made. My Lord, there was obviously an interim hearing before Carnwath J --
57. MR JUSTICE SULLIVAN: I saw what he said about costs. Where is that?
58. MR MAURICI: It was in bundle D, which I do not know if your Lordship has retained.
59. MR JUSTICE SULLIVAN: No, I have a bundle A and a bundle B. I have seen Carnwath J's order somewhere. I have it. It is actually his judgment, where he says at the end:

"Mr Bhamjee, I am not going to make an order. All I am saying is, I should think very carefully before wasting further costs, because when you get to the full hearing the judge will not be as generous as I have been to you..."

60. MR MAURICI: My Lord, I also make the point that in the voluminous correspondence there are a number of references where the Treasury Solicitor's department have also pointed out to Mr Bhamjee that if continues with these proceedings in the way he does, he is likely to incur a large amount of costs. I have given one example in paragraph 24 of the skeleton, bundle B, page 224. My Lord, there are a number of letters in which the Treasury Solicitor have pointed that out.
61. MR JUSTICE SULLIVAN: Bundle B, page 224?
62. MR MAURICI: My Lord, it is the penultimate paragraph in that letter dated 3rd May 2000:

"I reiterate, please consider very carefully indeed before continuing these proceedings, and potentially incurring liability for yet further costs."

63. My Lord, that letter is dealing with a number of points that Mr Bhamjee raised at that time. There is a number of other similar letters. But there certainly have been a number of warnings given about the costs that are being incurred as this case proceeds.
64. MR JUSTICE SULLIVAN: Yes, I do not think I need trouble you further.
65. Right, Mr Bhamjee, why should you not pay the costs?
66. MR BHAMJEE: The dispute is that I gave them the reasons from 30th January last year, and they would have issued a costs application to have my applications struck out at that time --
67. MR JUSTICE SULLIVAN: That would have just led you to exactly the same costs.
68. MR BHAMJEE: They would have issued the application down there at that time, then the costs would not have come to this much. I would not have had to have three hearings now or so on and come before three different judges or so on. They would have issued an application and it would have been dealt with there and then, because I have been to the Court of Appeal and now I am going to the House of Lords on the same sort of decisions, whereby I have denied -- this matter, I have been treated unfairly because the Civil Procedure Rules applies that a person can take an action against one, two or more persons. So it does not mean that when I am taking an action against the Council or I am taking an action against -- if I am taking them in the High Court here, I will take the time of three judges hearing one similar case, so I would take the time of three judges instead of taking the time of one judge to deal with the matters at one go.
69. I was trying to save the time of the court because the Civil Procedure Rules 1998 says that a person can take proceedings against two or more persons and the court does have a power to make an order for costs against a third party person. So what I am trying to say here is that I was not the person who caused the problem. It was the councillor who has used somebody else against me in this way. I am in a low income wages whereby I do not earn more than £150 a week as I have to pay my -- these costs will be scarcely on me. The income I get is about £150 a week or so, and I used to clean four cars a day as well. Now I have no other way to go because what this judgment means is either I must go to the door(?) and then get the money from the door with your order, because I cannot get another place and pay rent for another yard.
70. MR JUSTICE SULLIVAN: Thank you.
71. MR BHAMJEE: This is the situation.
72. MR JUSTICE SULLIVAN: Thank you. Do you want to say anything else?
73. MR BHAMJEE: That is all.
74. MR JUSTICE SULLIVAN: In this matter an application is made for costs on behalf of the Secretary of State. Costs usually follow the event so that an applicant who unsuccessfully challenges an inspector's decision letter would ordinarily expect to pay the costs.
75. Sometimes the Treasury Solicitor, on behalf of the Secretary of State, is prepared to adopt what might be called a merciful attitude towards litigants in person who are perhaps pursuing what they conceive to be points of principle, even if they are mistaken.
76. That approach was indeed adopted by Carnwath J when this matter came before him on 21st March 2000. There was an application made by the appellant for interim relief. It is quite clear that the application was entirely misconceived, but Carnwath J felt that no order for costs should be made. It is important, however, to note that he said this:

"Mr Bhamjee, I am not going to make an order. All I am saying is, I should think very carefully before wasting further costs, because when you get to the full hearing the judge will not be as generous as I have been to you on the question of costs."

77. Thus there was the clearest possible jurisdiction warning of the perils of proceeding further.
78. It is not as though the Treasury Solicitor has allowed an unrepresented litigant simply to proceed willy nilly without pointing out the problems in his path. There has been extensive correspondence, as I have mentioned, with the Treasury Solicitor. The Treasury Solicitor has done his very best to point out the difficulties in the path of the appellant and to explain what the position is. In my judgment, really nothing more could sensibly have been done to try to persuade the appellant that his position really was quite hopeless.
79. In one of those letters, of 3rd May 2000, having tried yet again to explain the position to the appellant, the Treasury Solicitor says this:

"I reiterate, please consider very carefully indeed before continuing with these proceedings, and potentially incurring liability for yet further costs."

80. As I have indicated, this is not even a finely balanced case. The proceedings are wholly misconceived. Therefore, in my judgment, there is no reason why the normal course should not prevail and the unsuccessful appellant be ordered to pay the costs.
81. The basis on which Mr Bhamjee says that he should not pay the costs is twofold. Firstly, he points to his income, which is, he says, not very great. That is not a reason for not making an award of costs. As to how and the extent to which they are to be recovered, that is a matter to be taken into consideration at that time.
82. Secondly, as I understand it, he says that really the Treasury Solicitor is at fault because he did not apply to strike out the proceedings, and had the application to strike out been made, then they would not have gone on so long and so costs would not have mounted up. In my judgment, that is not a realistic proposition. In reality, the strike out application would have had to go through the whole of the material in the same way as I have had to. There would have, therefore, been a full hearing and costs would inevitably have been incurred of the same kind of order as are set out in the statement of costs before me.
83. The grand total of those costs is £9,882.50. That is a considerable sum for a relatively short hearing, but it is only right to say that the short hearing is simply the tip of the iceberg. As a result of the appellant's conduct of this appeal and the manner in which it has been conducted, there has been a enormous amount of paperwork generated. Thus I am satisfied not merely that the Secretary of State should have his costs, I am further satisfied they should be summarily assessed and that they should be assessed in the sum claimed of £9,882.50.
84. I am sorry to say that that is entirely the consequence of this appellant failing to heed the very clear warnings that have been given to him by Carnwath J and the Treasury Solicitor.
85. Is there anything else, Mr Maurici?
86. MR MAURICI: No, my Lord.
87. MR JUSTICE SULLIVAN: Thank you very much indeed.