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
		Monday, 2nd September 2002

1. MR JUSTICE COLLINS: Mr and Mrs Golstein live at 22 Vista Way, Kenton. They have lived there for some 28 years. About ten years ago Mr Patel (the appellant in this case) and his family came to live next door at number 24. Extensions to the rear of both houses have been built, and in June of last year Mr and Mrs Golstein applied for planning permission to build a single-storey rear conservatory at the back of their property. The local planning authority, the London Borough of Brent, refused the application on 6th September 2001. Mr Golstein decided to appeal against that refusal and his appeal was considered on paper. On 30th January 2002 it was allowed by an inspector appointed by the Secretary of State and planning permission was granted.
2. I am now concerned with an appeal by Mr Patel against that decision of the inspector being based upon the fact that the inspector had regard to a policy document which was, as it transpired, out of date.
3. What had happened was this. There were a number of policies in the Unitary Development Plan ("UDP") which related to extensions to domestic properties. Policy E1 stated that the council would require that development contributed to the local street scene and the local landscape character and maintained an adequate outlook, and policy H22 stated that extensions to domestic properties should complement the existing house and should not normally alter its general scale and character, and should also respect the daylight and sunlight of adjoining properties. There were similar policies in what at the time was a draft replacement UDP. In addition, the council had published Supplementary Planning Guidance notes, the relevant one being note 5, which I will refer to as SPG5. This had been published originally in about 1995. It dealt with single-storey rear extensions in these terms at B1 and B2:

"Single storey rear extensions

B1 This type of extension is usually acceptable, providing it complies with the following depth limits. The depth is measured externally from the main back wall of the original house and includes the depth of bay windows...

Semi detached house - 3.0 metres."

4. (That being the material one for the purposes of this case.) B2:

"In circumstances where for example the impact on neighbouring properties is greater than usual because the properties are at different levels, the depth of the extension will be reduced. In exceptional circumstances the layout of neighbouring properties may also allow a slightly increased depth."

5. Those were the material parts of SPG5 which was in force in June 2001.
6. In October 2001 the authority produced a new SPG which was adopted on 31st October. It was a guidance document which had been put out for consultation, but it was not of the same sort of status as the UDP. That deals with single-storey rear extensions in 3.3 on page 19 of the bundle before me. What it says, so far as material, is as follows:

"Rear extensions should be designed to respect the character and size of your house. You will have to be particularly careful with the design of your extension if your home is located at the end of a terrace or is corner property as it is likely to be visible from the street. Extensions to extensions are usually not acceptable except where no material harm arises. However, any extension may be required to be set off the boundary."

7. Then later, relating to semi-detached houses, it states:

"The maximum depth permitted is 3.0 metres. However, if your neighbour's house is set at a lower level or has a different rear building line this depth may have to be reduced."

8. It is, I think, obvious from the citation of the two that the up-to-date SPG5 is somewhat more restrictive and the conditions somewhat more difficult to meet than was the original.
9. In this case the application made by the Golsteins was to build a 4.26 metre deep conservatory close to the boundary with number 24. That was to be built at the rear of an existing 1.5 metre deep two-storey rear extension, so that the total rear projection from the original back wall of the house was some 5.76 metres. This was 2.76 metres in excess of the 3 metres specified in both the SPG5s. The council's case in refusing permission was that the conservatory would therefore have an adverse effect on the rear outlook from number 24. The inspector continues in paragraph 4 of his decision letter as follows:

"The SPG does not actually say that 3m is the maximum allowable depth for single storey rear extensions to semi-detached houses, although the implication is that this is the normally accepted maximum. In fact the guidance goes on to say that, in exceptional circumstances, the layout of neighbouring properties may allow a slightly increased depth."

10. In fact, what I will call the new SPG5, that is to say the one valid from 31st October, does explicitly refer to the possibility of extensions to extensions, stating that they are usually not acceptable except where no material harm arises. The possibility of extensions to extensions was not specifically dealt with in the old SPG5, but there was the possibility recognised that in exceptional circumstances the layout of neighbouring properties might allow a slightly increased depth. In addition, the old SPG5 stated that a single-storey rear extension was usually acceptable provided it would be no more than 3 metres.
11. The flexibility referred to in the old SPG5 is not so easily detected in the new SPG5, save that, as I have said, the possibility of extensions to extensions is explicitly recognised. Accordingly, there is perhaps not an enormous amount of difference between the two, but, as Mr Golstein himself recognises, it puts a slightly higher hurdle in his path if the new SPG5 has to be considered.
12. The inspector in his decision went on to consider the effect on the neighbouring property in paragraphs 5 and 6. What he said was this:

"5. Whilst SPG5 provides sound general advice, I consider that it should be interpreted with sensitivity. For example it does not specify if, or how, the 3 metre guideline can be varied to reflect the existence of neighbouring extensions. To my mind the application of the guideline in the present case should reflect the fact that No 24 itself has a 3m deep single-storey rear extension, which projects about 1.2m beyond No 22's existing rear wall. The result is that the proposed conservatory would project only about 3m beyond this extension.

6. In discussing the 3m guideline, the Council's appeal statement says that it has been developed to minimise the impact of overshadowing on adjoining properties. However, I consider that the degree of overshadowing is more directly dependent on the distance an extension projects beyond the adjoining house than the distance it projects beyond the original rear wall of the parent house. In the present case the distance the conservatory would project beyond the rear of No 24 would be almost equal to the 3m in the guideline, and I do not consider that it would unacceptably obstruct the outlook from the rear of the adjoining property or conflict with the objectives of policies E1 or H22."

13. Mr Golstein has raised two matters in relation to the decision. First, he raised, as what he described as a preliminary point, the question whether the new SPG5 should have been relied on at all. When he made his application to the local planning authority it was at a time when the old SPG5 was the guiding principle. The LPA decided the matter on that basis. He appealed, and he submits that an appeal would normally be on the basis that what is considered is the material that was before the original decision maker. That may be the position with appeals so far as the courts are concerned in certain circumstances, but it is not the position in relation to planning. The Act makes clear that the Secretary of State on appeal is to consider the matter as if the application had been made to him in the first instance, and thus he will consider the planning situation as it exists at the time that he considers the matter before him. If policies have changed, whoever suffers or whoever gains gets a disadvantage or an advantage as the case may be. Obviously there may be suggestions sometimes that there is a deliberate and unmeritorious delay in order that a change which is forecast be taken into account. That sort of thing may in certain circumstances perhaps affect the situation, but no suggestion of that sort is or could be made in the circumstances of this case. The fact is it happened that the policy change took place before the inspector considered the matter, and, in my judgment, the preliminary point raised by Mr Golstein is not one which avails him.
14. In addition, he submits that if one reads the inspector's decision, it is perfectly clear that he has considered the impact on Mr Patel's property and has decided that there is no material detriment. Accordingly, submits Mr Golstein, if one looks at the new SPG5 and finds that extensions to extensions can be accepted where no material harm arises, it is clear that the inspector would have reached the same conclusion because he has decided that there is no material harm either to the Patels next door or (and this is dealt with in paragraph 7 of his decision letter which I need not read) to the surrounding area generally. Therefore, submits Mr Golstein, even if the point taken by the appellant is correct and the failure by the inspector to have regard to the new SPG5 does amount to an error of law, it could, in reality, have made no difference.
15. The test is indeed that it could have made no difference. It is clear that the inspector did have regard to the old SPG and regarded it as a material consideration, and was able to apply it in such a way as enabled him to reach what he considered to be the correct conclusion. It is, in my judgment, impossible for me to say that, had he had before him and considered the new SPG5, he would inevitably have reached the same result. He may well have done, and if the matter has to go back it would not necessarily be surprising if the inspector did reach the same conclusion, but he must reach it in reliance upon the proper SPG5.
16. I say "if the matter is to go back" because I come now to the main point that is argued in this appeal. That is whether I am entitled to have regard to the fact that the inspector did not consider the correct SPG5.
17. Mr Maurici, on behalf of the Secretary of State, has submitted that it is not open to me in this court to consider what effectively is fresh evidence which was not before the inspector, the fresh evidence being the existence of the new SPG5. He relies upon the principles set out in a number of planning cases which make it plain that, as a general rule, a decision of an inspector cannot be overturned because he has not considered material which was not before him. It is up to the parties to produce the relevant material, and if there is a failure to do so then that is a misfortune which cannot be overcome. That is undoubtedly a general rule because this is an appeal on law only and not on fact, and there is an obvious risk that if fresh evidence were admitted which is said to be material and which might have changed the inspector's view, there is a real danger that this court will be dealing with cases as if they were appeals on fact and not on law. But there are circumstances where a failure to consider relevant material can amount to an error of law. An example of that situation is to be found in Hollis v Secretary of State for the Environment and Others [1984] 47 PCR 351. That was a case in which the inspector had not considered material relating to whether a site in question had or had not formed part of the green belt. Glidewell J states the principle at page 358. He says this:

"I take it as general law that, if the court is considering whether to quash a decision of the Secretary of State, it should normally look only at the material put before him, which means the material put before his inspector. Indeed, Mr Brown reminded me that I so held myself not very long ago in Sears Blok v Secretary of State for the Environment. That was a case, put quite shortly, in which counsel was urging me to admit evidence that, had it been admitted, might have shown that a specific finding of fact made by the inspector was wrong. It was a finding of fact relating to the ambit of a planning permission. It was not a matter that related to evidence within the knowledge of the Secretary of State. In considering whether there may be exceptions to the general rule, I propose to confine myself to dealing with evidence relating to matters within the knowledge of the Secretary of State. There may be other circumstances in which, in exceptional cases, it would be right to admit fresh evidence, but I am concerning myself solely with the question, which, so far as I or counsel are aware, has yet to be decided, namely: 'If there is information in the Department and thus available to the Secretary of State that corrects or contradicts material put before the inspector at the inquiry, is it right when that information comes to light, that the court should allow it in evidence and thus take it into account in reaching its decision?'."

18. Hollis' case was a very limited exception to the general rule. The fact is that the Secretary of State had the relevant plans and thus they were in his possession and within his knowledge, albeit the particular inspector in that case had not been provided, it seems, with the relevant material.
19. Here there is no question that the SPG5 would have been in the Secretary of State's knowledge: it would not, and it is accepted that it would not. This case, if it is proper to have regard to the new SPG5, would be extending the principle of Hollis, but it is to be noted that Glidewell J recognised the possibility that there might be other exceptions to the general rule.
20. Mr Maurici has relied in particular upon a recent decision of HHJ Rich, sitting as a Deputy in this jurisdiction, Sharif v Secretary of State for the Environment, Transport and the Regions and London Borough of Brent. That was a case involving a question whether buildings erected without an express grant of permission should be demolished. It was an enforcement notice case. The applicant wanted the court to receive evidence of matters that could and should have been placed before the inspector, and the learned judge indicated that it was for an applicant in the planning field to put before the inspector the material upon he wished to rely. The material in question, which related to whether the residential use of building was the subject of an enforcement notice making it unlawful, was something which did not fall into the category of material which could or should be put before the appellate court. The learned judge referred to the principle in Ashbridge Investments Ltd v Ministry of Housing and Local Government [1965] 1 WLR 1320 at 1327, where it was said:

"Fresh evidence should not be admitted save in exceptional circumstances. It is not correct for the court to approach the case absolutely de novo as though the court was sitting to decide the matter in the first instance. The court can receive evidence to show what material was before the Minister; but it cannot receive evidence of the kind which was indicated in the present case so as to decide the whole matter afresh."

21. He referred also to a decision of Wien J in Glover v Secretary of State for the Environment [1981] JPL 110, which was a case where what was sought to be adduced was that a licence for a country club, whose existence was held by the inspector to justify the continuation of a car park in a residential area, had in fact been revoked. Wien J warned against an appeal on a point of law being turned into a matter of fact, and stated that that could only happen in exceptional cases such as fraud or where there had been an intentional misleading of the inspector.
22. So Mr Maurici submits that the circumstances in which fresh evidence can be admitted are very narrow, and should be limited to cases involving either fraud or which are analogous. He has drawn my attention to the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876. That was a case where, due to the incompetence of appellant's representatives, he had not had a hearing before an adjudicator (it may have been the Immigration Appeal Tribunal; it matters not), and the question was whether that decision could be set aside although there had been no error made by the tribunal, the error was that of the appellant's advisors. The Court of Appeal decided that it could and should be set aside following its previous decision Ex parte Rahmani [1985] QB 1109. The House of Lords decided that that was not correct. Lord Bridge gave the only reasoned speech. On page 895 he refers to R v Leyland Justices, ex parte Hawthorn [1979] QB 283, in which the conviction of a motorist of careless driving was quashed because the prosecution had failed to disclose that there were statements from witnesses who were not called. The question was whether that was properly to be regarded as a case based upon a failure to observe the rules of natural justice, albeit the court in that case had not been at fault; the fault was that of the prosecuting authority. Lord Bridge at page 896B said this:

"Though I do not question the correctness of the decision in Ex parte Hawthorn ... I do question whether it is correctly classified as a case depending on either procedural impropriety or a breach of the rules of natural justice. Certainly there was unfairness in the conduct of the proceedings, but this was because of a failure by the prosecutor, in breach of a duty owed to the court and to the defence, to disclose the existence of witnesses who could have given evidence favourable to the defence. Although no dishonesty was suggested, it was this suppressio veri which had the same effect as a suggestio falsi in distorting and vitiating the process leading to conviction, and it was, in my opinion, the analogy which Lord Widgery CJ drew between the case before him and the cases of fraud, collusion and perjury, which had been relied on in counsel's argument, which identified the true principle on which the decision could be justified."

23. As it seems to me, the ratio of Lord Bridge's speech is to be found on page 898, at letter E, where he says this:

"These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than a resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument."

24. Mr Maurici relies on that as supporting his contention that the acceptance of fresh evidence, and the suggestion that there can be such unfairness as amounts to an error of law, is only in very narrow circumstances.
25. However, Mr Hutchings has referred me to a more recent decision of the House of Lords, R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330. That was a case in which the Board had not had before it a material report from a police doctor and had therefore been led to proceed on wrong evidence and had not had the true facts before it. I read from the headnote:

"... in the ordinary way it was for the applicant to produce the evidence to be put before the board and there was no onus on the board or the police to obtain it or on the board to adjourn the case for further investigation if the applicant did not request it to do so; but, on the facts, and in the light of the importance of the police co-operating with the board in the obtaining of evidence, there had been unfairness and a breach of the rules of natural justice in the omission of the doctor's evidence."

26. The only reasoned speech was given by Lord Slynn of Hadley, and the rest of their Lordships who were sitting agreed with him. He considered the various authorities, to some of which I have already referred, including Leyland Justices and including too Al-Mehdawi. At page 344 Lord Slynn cites from Wade & Forsyth, Administrative Law, 7th ed (1994) at page 316, where it is said:

"Mere factual mistake has become a ground of judicial review described as 'misunderstanding or ignorance of an established and relevant fact' [that is a reference to Tameside] or acting 'upon an incorrect basis of fact'... This ground of review has long been familiar in French law and it has been adopted by statute in Australia. It is no less needed in this country, since decisions based upon wrong facts are a cause of injustice which the courts should be able to remedy. If a 'wrong factual basis' doctrine should become established, it would apparently be a new branch of the ultra vires doctrine, analogous to finding facts based upon no evidence or acting upon a misapprehension of law."

27. And in the 1995 edition of de Smith, Woolf and Jowell it is again said at page 288:

"The taking into account of a mistaken fact can just as easily be absorbed into a tradition legal ground of review by referring to the taking into account of an irrelevant consideration, or the failure to provide reasons that are adequate or intelligible, or the failure to base the decision on any evidence. In this limited context material error of fact has always been a recognised ground for judicial intervention."

28. With respect to the very learned authors, it may be that that is an observation which is somewhat more hopeful than real in the light of some of the authorities which have been cited to me, but Lord Slynn stated quite clearly that for his part he would accept that there was jurisdiction to quash on that ground in the case before him. However, he went on to say that he preferred to decide the matter on the alternative basis argued, namely that what happened in the proceedings was a breach of the rules of natural justice and constituted unfairness.
29. It is clear that in order to establish a material error of fact, or to show that there has been unfairness because of a failure to take account of a material error of fact, it is necessary to establish that there has indeed been such an error. The only way normally that that can be established is by the production of evidence to show that is the position. Here it is common ground that the new SPG5 was not before the inspector, so there is no issue as to whether there was that error. In some cases it may be that an argument is raised and an issue has to be joined as to whether there was such a material error. It seems to me that this particular jurisdiction should only be exercised if it can be clearly established and there is no dispute that such an error existed. Whether or not it was material may be in dispute, but that is a different question. It is important to remember that this court in this jurisdiction is concerned only with whether there has been an error of law, and it would be undesirable if the court had to determine disputed issues as to whether particular facts had or had not been before the inspector. This is a matter that would normally be easily established by seeing what was before the inspector, by looking at the documents and by, if necessary, receiving statements from those who were concerned, but normally, in my view, it would be undesirable that a court should be asked to go into a fact finding exercise. Equally, the Al-Mehdawi case makes it clear that mistakes by the applicant's own representatives cannot be relied on. Equally, as it seems to me, a failure by an appellant to put material which was available to him and which he could have put before the inspector but, for whatever reason, did not cannot be relied on. It is indeed for a party to establish his case, and if he fails to adduce material matters then that is his fault. There is no unfairness to him. He has created the situation himself. But it is important then to see how Lord Slynn continues to justify the conclusion reached in the A case. What he said at page 345, below letter C, is this:

"It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness. Thus I would accept that it is in the ordinary way for the applicant to produce the necessary evidence. There is no onus on the board to go out to look for evidence, nor does the board have a duty to adjourn the case for further inquiries if the applicant does not ask for one. I accept as a general proposition the statement of Hutchison J in Ex parte Parsons (unreported) ...

'Provided reasonable steps are taken to obtain material and place it before the board, and provided the material that has been obtained is fairly deployed and there is no concealment or unfair advantage taken, then the board has fulfilled its proper function.'

Nor is it necessarily the duty of the police to go out to look for evidence on particular matters.

But the police do have a special position in these cases. The applicant accepted that the police had initially been supportive, even though she later criticised [particular evidence] and there is no doubt that in the 10,000 or so decision hearings a year, the board is very dependent on the assistance of and the co-operation of the police who have investigated these alleged crimes of violence."

30. It was for that reason and because of the importance that the Board placed upon the assistance given by the police, and the knowledge of the police that that was indeed so, that that decision was reached.
31. The position here is, as it seems to me, analogous in this way. The local planning authority has an obligation, in accordance with the Town and Country Planning (Appeals) (Written Representations Procedure) (England) Regulations 2000, to submit to the Secretary of State and copy to the appellant a completed questionnaire and a copy of each of the documents referred to in it. I am told by Miss Wigley, who appeared on behalf of the London Borough of Brent, that one of the documents referred to in the questionnaire is any relevant SPG. Thus there is, as it seems to me, a recognition that there is an obligation upon the local planning authority to provide, as one would expect, copies of any relevant planning guidance documents. Those are peculiarly within their knowledge. It may well be that an applicant will also have knowledge, but that cannot necessarily be assumed, particularly where there are changes. Miss Wigley submits that at the time the written statement questionnaire was submitted the old SPG5 was properly attached, because that was done in October. I am not sure whether that is correct on the documentation that I have seen, but it perhaps matters not because she accepts that the authority should, once the change had taken place at the end of October, have sent a copy of the new SPG5.
32. Although it may be wrong to put it as high as a duty in the same terms as that upon the prosecution in a criminal case, nonetheless, as it seems to me, there is an analogy and the inspector, and indeed the appellants and any interested parties, are entitled to assume that the local planning authority have placed before the Secretary of State all material documentation of that sort, that is to say planning guidance. That did not happen in this case. As it seems to me, the approach which the House of Lords had adopted in Ex parte A is an appropriate approach to adopt in a case such as this.
33. Mr Maurici divided the matter into two, stating that the first issue was whether the court should admit evidence of the up-to-date version of the SPG5 and whether it was an error of law for the inspector to have had regard to the outdated version. As I see it, the two issues really merge into one. Adopting the approach of A, it was unfair to the interested party, in this case Mr Patel, that the inspector considered the case without having regard to the proper SPG5. That was a matter which was the fault of the local planning authority, and accordingly the inspector's decision is erroneous in law.
34. I have already referred to Mr Golstein's submission that it would not and could not have made any difference. I regard that submission as a powerful one, but at the end of the day I am not persuaded that I can properly say to myself that the decision of the inspector must have been the same had he had regard to the proper SPG5. I am bound to say that it is with some degree of reluctance, and in the knowledge that sadly a neighbour dispute will be continued, that I reach that conclusion. Accordingly, I must quash the decision of the inspector.
35. MR JUSTICE COLLINS: Mr Hutchings, why should it not go back to the same inspector to reconsider the matter in the light of the reference to the proper SPG5?
36. MR MAURICI: My Lord, I think the normal practice is to remit to the Secretary of State and the Secretary of State then determines who decides the case. The practice usually is that it is a different inspector, but, my Lord --
37. MR JUSTICE COLLINS: I know. Normally it is heard by a different -- well, that is a matter perhaps for the Secretary of State. All I want to know, Mr Hutchings, is whether you submit that I should direct that it must be a different inspector. I do not really any reason see why I should, do you?
38. MR HUTCHINGS: Certainly Harrison J indicated, without the benefit of full argument, that it should go back before a different inspector.
39. MR JUSTICE COLLINS: That is normally the case. All I am really concerned with is whether I should include such a direction or whether -- I suspect the reality is the Secretary of State will put it before a fresh inspector.
40. MR HUTCHINGS: Yes. I can think of no pressing arguments in favour of a direction.
41. MR JUSTICE COLLINS: No. I will not say anything one way or the other about that.
42. MR GOLSTEIN: My Lord, if I can, the only thing I would say is that if it goes back before the same inspector it would save the necessity of further inspections.
43. MR JUSTICE COLLINS: Of course. That is a matter that will no doubt be taken into account.
44. I take it you want some costs. You do not mind who you get it from?
45. MR HUTCHINGS: No.
46. MR JUSTICE COLLINS: Prima facie the Secretary of State will pay, but he is no doubt going to seek to persuade me that it is all down to the local authority and they should pay in the circumstances of this case.
47. MR HUTCHINGS: My Lord, I have no observations.
48. MR JUSTICE COLLINS: As long as it is one or other of them you do not mind which.
49. MR HUTCHINGS: No.
50. MR JUSTICE COLLINS: First of all, I think it is clear that Mr Patel is entitled to the costs.
51. MR MAURICI: Yes, my Lord.
52. MR JUSTICE COLLINS: You would not dispute that.
53. MR MAURICI: We would not dispute that he is entitled to costs, but the issue in this case is who should pay those costs. There may also be a question about the Secretary of State's costs, but, my Lord, the principal issue is who should pay --
54. MR JUSTICE COLLINS: Let us deal with who should pay the appellant's costs.
55. MR MAURICI: In the light of your Lordship's judgment there is an obligation plainly on the local authority. My Lord, I call it a responsibility, and we talked about a duty, but, my Lord, there is plainly an obligation on the part of the authority.
56. MR JUSTICE COLLINS: I tried to avoid the word "duty".
57. MR MAURICI: Yes. To provide copies of supplementary planning guidance. My Lord, you will have seen from the facts of this case that although the questionnaire that was put in referred to the right document, in the sense that because it was put in before 31st October --
58. MR JUSTICE COLLINS: If it was, yes.
59. MR MAURICI: If it was. My Lord, the document you were referred to was a statement of case.
60. MR JUSTICE COLLINS: That came later.
61. MR MAURICI: That came later, in November, so not only was there is an error of omission in not reporting something new, but there was effectively a further error of commission, and the inspector was referred to the wrong policy. My Lord, it is also accepted by both parties in this case, and indeed by your Lordship in the course of the argument, that there can be said to be no fault on the part of the Secretary of State or the inspector in respect of the decision.
62. MR JUSTICE COLLINS: No, but you see if you had conceded this case costs would have been small and it may be that the local authority should have paid those costs, but you chose to fight it and you have lost, and I do not see why you should not pay the costs of fighting it. The local authority had no interest in fighting it.
63. MR MAURICI: No, my Lord.
64. MR JUSTICE COLLINS: You thought there was a floodgates, or you thought there was a point of principle at stake, I am not sure whether there was, but if there was you have lost on it. It seems to me that there is no real reason why you should not pay those costs, is there, subject to the possibility that some small amount, if you had settled, might arguably be down to the local authority.
65. MR MAURICI: My Lord, two points. First of all, I would say that in circumstances where your Lordship has established there is an obligation on the local authority, the way effectively to give that obligation some bite is to order in cases like this that the local authority will ordinarily pay the costs. My Lord, I would ask you to bear in mind that the local authority is, as it always is in section 288s, the second defendant in these proceedings.
66. MR JUSTICE COLLINS: Yes, but they usually keep out of the way unless they have a particular interest of their own.
67. MR MAURICI: They usually do, my Lord, yes. The fact is, my Lord, that I do submit that notwithstanding your Lordship's judgment there was a question here about whether this was a proper case for the court to quash, so, my Lord --
68. MR JUSTICE COLLINS: I accept that, there was an issue which was of interest to you, you raised it and you lost.
69. MR MAURICI: My Lord, it is also of course of interest to the local authority because your Lordship's judgment is effectively the first judgment saying there is an obligation on local authorities in this regard. I know your Lordship had regard to the rules, but it is the first time that a judgment has said there is an obligation in this particular regard.
70. MR JUSTICE COLLINS: I would have thought that was fairly self-evident.
71. MR MAURICI: It therefore affects the local authority as well. In those circumstances my submission is the local authority, as second defendant in these proceedings, is the party which should be responsible for costs and should therefore be ordered to pay costs.
72. Now, if your Lordship's view is the Secretary of State should not have fought on, that really should deal with my second submission, which was that the local authority should pay the Secretary of State's costs. If the Secretary of State should not have fought on then the Secretary of State cannot have any of his costs from the local authority, but the question is who should pay the claimant's costs. My Lord, in the light of your Lordship's judgment it should be the local authority and not the Secretary of State. My Lord, unless I can assist you further those are my submissions.
73. MR JUSTICE COLLINS: Miss Wigley, I do not need to trouble you on the main bulk of the costs, but why should you not pay a sum which represents only that which would have been expended had this been conceded at the outset when it should have been.
74. MISS WIGLEY: My Lord, on that point the original claim form in this particular case did not actually raise --
75. MR JUSTICE COLLINS: No, they did not appreciate it.
76. MISS WIGLEY: The point which has nothing to do with the local authority, about the interpretation of the policies. As your Lordship is aware, the council did write a letter very early, I think it was B14, back in April, stating that they would not take no part in these proceedings. In my submission, it would be inequitable to hold the council responsible for the costs over which it has no control. The council obviously had no power to concede itself, to consent to judgment.
77. MR JUSTICE COLLINS: Quite.
78. MISS WIGLEY: But it decided to take no part in the proceedings. The error was in a previous set of proceedings and, in my submission, those costs should not be carried forward as such. That error should not be carried forward into a case where the council or a party has no control over the costs incurred and cannot adopt the normal route on costs and react to the risk of costs in the normal way by conceding and stopping the proceedings from going ahead. On the issue of amount of costs and --
79. MR JUSTICE COLLINS: I have the Secretary of State's details. That is the only one I have. I do not have your client's statement. Have they produced a detailed assessment?
80. MR HUTCHINGS: A costs schedule, yes.
81. MR JUSTICE COLLINS: I have one dated 4th July.
82. MR HUTCHINGS: Can I hand you the latest.
83. MR JUSTICE COLLINS: By all means, although I imagine it will be a detailed assessment. I think what the one I had lacked was most of your fees.
84. MISS WIGLEY: My Lord, I resist the principle of costs entirely. If you would like me to make submissions on amount --
85. MR JUSTICE COLLINS: Forget about the amount for a moment.
86. MISS WIGLEY: I would like to make the further submission that if you are with me on the issue of costs that the council gets its costs of attending just to defend this issue on costs because, in my submission, it was not an appropriate course for the Secretary of State --
87. MR JUSTICE COLLINS: That is a bold submission.
88. MISS WIGLEY: As he decided to fight the case and should bear the costs --
89. MR JUSTICE COLLINS: Who are you suggesting should pay them, the Secretary of State?
90. MISS WIGLEY: Yes. Unless I can assist you further, my Lord.
91. MR GOLSTEIN: My Lord, can I address you on costs because it appears to me, with no disrespect to these proceedings, that a fiasco has arisen in several circumstances. The first circumstance is of course that the London Borough of Brent omitted to serve the proper documents which has led to the Secretary of State taking this course of action. The second fiasco is because of the, I consider unprofessional co-operation of the claimant's solicitors in not notifying me, I have incurred practical costs, and I do not mean legal costs, but costs of doing work which I would never have done.
92. MR JUSTICE COLLINS: I know. I have no power. I have no power to do anything about that.
93. MR GOLSTEIN: Because it seems to me that if I had known -- I would never have commenced the works, you see.
94. MR JUSTICE COLLINS: I entirely take your point, but I am afraid that is not a matter that comes within the costs of litigation, that is a separate matter. Whether you have any cause of action in relation to that depends upon whether they owe you a duty of care.
95. MR GOLSTEIN: I think the London Borough of Brent may well do.
96. MR JUSTICE COLLINS: Well, I do not know. I am not sure that they can be blamed for the failure to notify you on the part of the Patels, and that is what led you, as I understand it, to incur the expense of doing the works. I think you will be making new law if you try to establish that a solicitor owes a duty of care to notify someone of pending proceedings which may affect them. You may be right. It may be that there is a cause of action.
97. MR GOLSTEIN: If I had been properly joined to this action, which I was not, then of course my course of action would have been wholly different to what it was.
98. MR JUSTICE COLLINS: Well, you would not have incurred the costs in all probability because you would not have thought it was worth taking the risk.
99. MR GOLSTEIN: That is quite correct, but I have now incurred the costs --
100. MR JUSTICE COLLINS: I do understand that, but, as I say, and as perhaps you understand as a solicitor -- although you are not a litigation solicitor, are you?
101. MR GOLSTEIN: I am a litigation solicitor.
102. MR JUSTICE COLLINS: You are, then you should know that this does not fall within the ambit of costs.
103. MR GOLSTEIN: That is correct. The other aspect is I am here, I am not a successful party and I am not even a party to the action, but I do think you have a discretion to award costs to me as a litigant in person or a solicitor representing himself.
104. MR JUSTICE COLLINS: I have the power, but it is not normal to award costs to interested third parties.
105. MR GOLSTEIN: The situation is that this was something which I was concerned with which has been prosecuted by the Secretary of State for their own purposes, and I would ask for an order for costs either against the losing party, which in this case is of course the Secretary of State, or against the claimant or the London Borough of Brent. I do not see why --
106. MR JUSTICE COLLINS: You do not mind who pays.
107. MR GOLSTEIN: I do not mind who pays. I would ask you to exercise your discretion.
108. MR JUSTICE COLLINS: Does anyone want to say anything about that? Mr Maurici, I think it is aimed more at you than anyone else.
109. MR MAURICI: My Lord, the normal rule is one set of costs, and the Secretary of State has done as much as possible to assist Mr Golstein in this matter. I do not know what your Lordship is minded to do in relation to the application I made, whether any proportion of costs --
110. MR JUSTICE COLLINS: What I propose to do is this, Mr Maurici. I shall direct that the Secretary of State pays the appellant's costs, and the whole of the appellant's costs. I will come to amounts in a moment and what orders should be made. So far as between you and the local authority are concerned, it seems to me that the fair course is for me to direct that the local authority pays you the costs incurred initially, and only the costs incurred initially, in considering the appeal and perhaps in seeking advice about it. No further than that. What I am getting at is that it seems to me that that the appeal was brought into existence by the fault of the local authority but that once you knew the true position you ought to have thrown your hand in immediately and no further costs should have been incurred. I hope it is clear the extent to which the local authority should contribute, a very small extent, and it only covers the Treasury Solicitor's costs in initially dealing with the application, in considering it and in seeking advice from counsel, if advice was sought, on what should be done. If it was not, then that is not payable either.
111. MR MAURICI: That will have to be subject to detailed assessment or agreement because I am not in a position to give you those costs.
112. MR JUSTICE COLLINS: I hope that makes clear the very small extent of the costs that I think you should bear.
113. MISS WIGLEY: My Lord, the only point on which I am not clear is the extent of the time period, because of course the original claim form did not mention this ground at all, so the costs for originally considering the claim form were not as a result of the fault of the local authority.
114. MR JUSTICE COLLINS: I think it is not unreasonable that you should pay them until they were aware of this point, let me put it that way.
115. MR MAURICI: My Lord, I think there is a letter from the Treasury Solicitors --
116. MR JUSTICE COLLINS: It may be in the correspondence. I appreciate that one is adopting, and one has to in these costs matters, a very broad brush approach. It is not possible to go into --
117. MR MAURICI: My Lord, I think it is D18. I think it is the first time, the Treasury Solicitors write explaining to everybody that the inspector had the wrong policy in front of him, and I think I am right in saying that is the first time that it really became clear in this case what was going on.
118. MR JUSTICE COLLINS: When was the appeal lodged, back in March, was it not?
119. MR MAURICI: Yes, my Lord. What happened then was advice was then taken, admittedly once the position was clear, so some time after that date in June advice was taken, under your Lordship's order the cut off date comes when advice is received.
120. MR JUSTICE COLLINS: Again I am going to have to adopt a broad brush approach. I think the sensible thing is to say the cut off date would be 7th June. Then we all know where we are then. It follows that you are not going to get your costs of --
121. MISS WIGLEY: I am grateful, my Lord.
122. MR HUTCHINGS: My Lord, so far as our costs are concerned.
123. MR JUSTICE COLLINS: What about amount? Are you able to agree or is it a question of detailed assessment?
124. MR MAURICI: I am not going to dispute the amount of the costs in the schedule, my Lord.
125. MR JUSTICE COLLINS: You are content that I make an order for costs in the sum of £9009.83.
126. MR MAURICI: Yes, my Lord.
127. MR JUSTICE COLLINS: Fine.
128. MR MAURICI: The one remaining factor is obviously the Secretary of State has to consider your Lordship's judgment, but to protect the position I would ask for permission to appeal. Whether your Lordship refuses or grants it could I ask your Lordship to extend the time for the notice of appeal going to the Court of Appeal to 14 days after the transcript becomes available.
129. MR JUSTICE COLLINS: I am told the transcript can be produced tomorrow. I should have corrected it by the end of the week. I will make that order, but I will refuse leave to appeal. Although you say this is all new stuff, I really do not think I am doing more than applying existing principles, nor do I think that there is any real prospect of success on an appeal.
130. MR GOLSTEIN: My Lord, in case the Secretary of State wishes to appeal, which obviously is going to take further time, is it necessary for you to direct in any event that the Secretary of State deals with my appeal against the refusal of the planning authority in any event.
131. MR JUSTICE COLLINS: I see.
132. MR GOLSTEIN: Because otherwise I could be waiting --
133. MR JUSTICE COLLINS: If he appeals and wins you will not need it.
134. MR GOLSTEIN: And if he loses I have lost another few months.
135. MR JUSTICE COLLINS: I am afraid, yes. I follow that.
136. MR GOLSTEIN: As it is I have already had problems with contractors, as you appreciate.
137. MR JUSTICE COLLINS: Mr Golstein, I have a lot of sympathy for you, but I am sorry I do not think there is anything I can do in that respect for you. It is a matter for you and the Secretary of State. If you can persuade him to get things moving in the meantime, obviously that is a matter between you and him.
138. MR MAURICI: My Lord, Mr Golstein could make another planning application to the local authority which would then not be affected by any of these proceedings.
139. MR JUSTICE COLLINS: He could do that, I suppose, but then you have to pay for it.
140. MR GOLSTEIN: And it would take time as well. It would be much quicker to go straight to the --
141. MR JUSTICE COLLINS: And I suspect, unless Brent change their minds, which they may do, you will find yourself refused and having to appeal against that. That is a possible course. That must be for you to decide which is the way ahead. I forgot to say that I am afraid I am not awarding you any costs.
142. MR GOLSTEIN: I thought that might be the case.
143. MR JUSTICE COLLINS: I am sorry. I am afraid you have not had a very productive day.
144. MR GOLSTEIN: No. That is the way things go, my Lord.
145. MR JUSTICE COLLINS: You know better than anyone the hazards of litigation.
146. Thank you.