England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		Monday, 7 October 2002

Monday 7 October 2002

1. MR JUSTICE SULLIVAN: The three claims before the court allrelate to land at Top Farm, Shefford Road, Beadlow in Bedfordshire. The claims are: firstly, an application for permission to appeal under section 289 of the Town and Country Planning Act 1990 (the Act); secondly, an appeal under section 288 of the Act; and, thirdly, an application for permission to apply for judicial review.
2. The relevant history of Top Farm begins for present purposes with a planning permission dated 23 June 1992, the 1992 permission, granted retrospectively on an application made under section 73A of the Act for use of land and buildings as a transport depot and for the creation of a vehicular access. Top Farm was at that time in the ownership of persons other than the present claimants. The 1992 permission was granted subject to 12 conditions. They included two conditions which featured in the subsequent decision letter which is in issue in these proceedings, conditions 2 and 6:
3. 2 "Within 3 months of the date of this permission a scheme of improvements to the public highway between the proposed new access to the site and the A507 to the south shall be submitted to the Local Planning Authority for approval and those works thereby approved carried out within three months of the date of that approval.
4. 6 "Detailed drawings of the layout [of the] transport haulage depot, including areas to be used for the parking and turning of vehicles used in connection with the business shall be submitted to and approved by the Local Planning Authority within two months of the date of this permission, and the details thereby approved and adhered to."
5. It would appear that the previous owners did not comply with any or at least very many of the conditions imposed on the 1992 permission including conditions 2 and 6, and they commenced a variety of unauthorised activities on the land.
6. The second claimant purchased the permission site in 1997. The second claimant is the first claimant's firm and, for convenience, I will refer to both the claimants as Reids. Reids extended the operational area within the 1992 permission site in a northerly direction. This northerly extension was the real bone of contention between themselves and the second defendants, the Local Planning Authority.
7. In due course, Reids made two applications for planning permission under section 73 of the Act. The first application was not determined by the Local Planning Authority and so Reids appealed. The Local Planning Authority resolved that it would have granted planning permission on this application because it had been advised that condition 2 was ultra vires. Mr Corner, on behalf of the claimants, points to the fact that the recommendation which was accepted by the council was to approve the application unconditionally.
8. The application had sought the removal of condition 2 from the 1992 permission. In order to avoid the necessity for an appeal on this issue, a second application for planning permission under section 73 was made. The application itself is not in the papers before the court, but the parties are agreed that the application is accurately described in an officer's report to the council as follows:

"Full application for retention of use of land without compliance with condition 2 (improvements to public highway) of Ref 11/90/1632 dated 23.6.92 for use of land and buildings as transport depot and creation of new vehicular access at Top Farm, Beadlow, CLOPHILL for S A D Reid Motors"

9. The report explained to members:

"This application seeks the ability to use the land as a transport depot at Top Farm, Beadlow without compliance with a planning condition that was imposed on the relevant planning permission. The condition in question is condition 2 of planning permission reference 11/90/1632, which was granted on 23 June 1992."

10. The report notes inter alia that:

"The current use of the site does not correspond with the permission that was granted in 1992."

11. By a separate application dated 27 June 2000 Reids sought retrospective planning permission under section 73A of the Act for the retention of a mixed use of private dwelling, transport depot, civil engineers contractors' depot, building contractors' depot and taxi operators' office with ancillary offices, storage containers, fuel tanks, bunkers and hard surfacing for open storage, from private dwelling and transport depot use. Permission was refused by a notice dated 21 July 2001 and so Reids appealed under section 78 of the Act (appeal C).
12. On 19 July 2001 the Local Planning Authority issued two enforcement notices against the claimants. The first notice alleged the unauthorised storage of materials and equipment and parking of vehicles. The second alleged the laying of a hardstanding. The first claimant appealed against both of those notices, appeals A and B respectively. The enforcement notice sites were within the area of the 1992 planning permission. They comprise the northerly part of the site into which the Reids had extended their activities.
13. On 15 January 2002 planning permission was granted in respect of the application under section 73 (the 2002 permission). The relevant parts of the decision notice are as follows:

"NOTICE OF APPROVAL OF PLANNING PERMISSION

Application Site: TOP FARM, BEADLOW, CLOPHILL

"Proposed Development: FULL: RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH CONDITION 2 (IMPROVEMENTS TO PUBLIC HIGHWAY) ATTACHED TO PLANNING PERMISSION REF: 11/90/1632 DATED 23.6.92 FOR USE OF LAND AND BUILDINGS AS TRANSPORT DEPOT AND CREATION OF NEW VEHICULAR ACCESS

"Application Number: 11/2001/1810

"Valid Application Received: 03 Dec 2001

"Applicant: S A D Reid Motors

"Submitted plan Nos: 9732/1

"The Council as District Planning Authority hereby gives notice of its decision to APPROVE Planning Permission for the application set out above subject to the following conditions:

"Conditions:

14. "None"
15. All three appeals, A, B and C, were heard together at a public enquiry on 12 to 13 February 2002 by Mr Paul Morris, an Inspector appointed by the first defendant. Under appeal A, the Inspector upheld the enforcement notice, but corrected and varied it so that the enforcement notice as upheld omitted any reference to parking, but required the unauthorised use of the land for open storage of materials and equipment to cease. Under appeal B, the Inspector dismissed the appeal and upheld the enforcement notice, so the hardstanding had to be removed. Under appeal C, the section 78 appeal was dismissed.
16. In a separate decision letter dealing with costs, the Inspector allowed the claimants' application for a partial award of costs but refused their application for a full award. The partial award, which is not the subject of these proceedings, was concerned with the manner in which a highway issue had been dealt with. The application for a full award was based upon the proposition that the Local Planning Authority had made serious errors in dealing with development on the site: there had been misinterpretations of the proper planning permission by the council, and the council had not considered the fallback position covering the 2002 permission.
17. It is common ground between Mr Corner QC, on behalf of the claimants, and Mr Brown, on behalf of the Secretary of State, that in determining all three appeals, A, B and C, the Inspector had to have regard to the fallback position: what was the use that was permitted by the 2002 planning permission? Mr Corner's first and principal ground of challenge relates to the inspector's approach to that question. The relevant paragraphs in the decision letter are as follows:

"The planning permissions

4" The appellants argued strongly that any consideration of these appeals had to take account of the implications of the fact that the whole of this site, including the enforcement notice land, was the subject of the 1992 planning permission.

5" The appellants further argued that the 2002 permission, mentioned above, was for the retention of the use for a transport depot without complying with condition 2 but with no conditions attached. In effect, this meant that there was now a planning permission for the transport depot with no conditions at all.

6 "I do not agree with this second proposition. My understanding is that the 2002 permission, whilst this is a new planning permission granted under the provisions of s73 of the 1990 Act, would have no meaning other than in relation to the 1992 permission. The 2002 permission specifically concerns the retention of the use without compliance with condition 2 attached to the 1992 permission and that is all it grants permission for. I fully accept, however, that as a matter of good practice, all the conditions that the new permission will be subject to should be restated so that the permission is complete in itself and so that there is no potentially confusing cross referencing to a previous permission. As it is, the Council's reference to no conditions on the 2002 permission means that this permission, as described on the decision notice, is itself subject to no conditions.

7 "The position, in my view, is that all the Top Farm site as shown on the plan with the application, and that includes the enforcement notice site, has planning permission to be used as a transport depot subject to all the conditions attached to the 1992 permission except condition 2. I have dealt with the appeals on this basis."

18. It is unnecessary to cite further passages from the decision letter because Mr Brown concedes that, if the Inspector erred in dealing with the appeals on that basis, that error would be fatal to his decision on all three appeals.
19. Was the inspector's approach erroneous in this respect? Mr Corner submits that it was, because the true fallback position was that the land had a planning permission for use as a transport depot unconstrained by any conditions. His starting point is the conditional planning permission granted in 1992. In 2002 a planning permission was granted pursuant to section 73 of the Act on an application to remove condition 2 from the 1992 permission. Section 73 provides so far as material:

"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

"(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and-

"(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly,

and

"(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."

20. Plainly, 2(b) is not applicable, and it is submitted on behalf of the claimants that what the council decided to do in response to the application was to grant planning permission unconditionally under paragraph 2(a).
21. It is common ground that the 2002 planning permission was a new freestanding planning permission, see Pye v Secretary of State for the Environment [1998] 3 PLR 72. It is submitted on behalf of the claimants that the 2002 permission was plain on its face. There was no ambiguity. The permission dealt with the question of whether it was to be subject to any conditions in the following terms:

" ... subject to the following conditions:

"Conditions

"None"

22. It is common ground that planning conditions cannot be implied into a permission, see I'm Your Man Ltd v Secretary of State [1998] 4 PLR 107. The parties were agreed that the relevant principles applicable to the use of other documents to construe a planning permission were set out by Keene J, as he then was, in R v Ashford Borough Council ex p Shepway District Council [1999] PLCR 12, at page 19c1:

"1. The general rule is that in construing a planning permission which is clear, unambiguous and valid on its face, regard may only be had to the planning permission itself, including the conditions (if any) on it and the express reasons for those conditions ...

"2. This rule excludes reference to the planning application as well as to other extrinsic evidence, unless the planning permission incorporates the application by reference. In that situation the application is treated as having become part of the permission. The reason for normally not having regard to the application is that the public should be able to rely on a document which is plain on its face without having to consider whether there is any discrepancy between the permission and the application ...

"3. For incorporation of the application in the permission to be achieved, more is required than a mere reference to the application on the face of the permission. While there is no magic formula, some words sufficient to inform a reasonable reader that the application forms part of the permission are needed, such as ' ... in accordance with the plans and application ... ' or ' ...on the terms of the application ... ", and in either case those words appearing in the operative part of the permission dealing with the development and the terms in which permission is granted. These words need to govern the description of the development permitted ...

"4. If there is an ambiguity in the wording of the permission, it is permissible to look at extrinsic material, including the application, to resolve that ambiguity ... "

23. 5 is not applicable.
24. I have omitted the authorities cited by Keene J in support of those propositions because they are not a matter of dispute between the parties in the present case. Mr Corner submits that the 2002 planning permission did not incorporate the application for permission; although it is referred to, there is no clear intention to incorporate it by reference, but even if there was such an intention, principles 2 and 3 in the Ashford case above do not extend to the incorporation of a separate planning permission, in this case the 1992 permission. If the conditions imposed on that permission were to be incorporated, then it would have to be clear that that was what the Local Planning Authority had done, and it cannot be said that that is clear because of the words "Conditions: None" to be found in the 2002 permission.
25. Given that one is told on the face of the permission that there are no conditions imposed, the 2002 planning permission is not ambiguous. Thus it is not permissible to look at extrinsic evidence. Even if there is some ambiguity so that extrinsic evidence can be looked at in order to resolve the ambiguity, to incorporate the 1992 planning permission together with all of the conditions save for condition 2 would be to go way beyond resolving ambiguity. It would be filling an omission in the 2002 planning permission which is not a permissible exercise, see the commentary in paragraph 70.71(2) of the Encyclopaedia of Planning Law.
26. Under section 73.2(a) the council was able to grant planning permission unconditionally. On the face of the planning permission, it chose to adopt that course. It is by no means clear that it would have been intended that all of the earlier conditions should have applied, since the reports, in so far as they are admissible, which Mr Corner disputes, make it clear that they have not been complied with.
27. This primary ground of challenge is equally applicable to the inspector's approach to all three of the appeals before him. It is further submitted that the Inspector erred in law when dealing with enforcement notice A because he failed to consider amending it so as to ensure that it did not go beyond that which was necessary to remedy the breach of planning control. The enforcement notice site was wholly contained by the 1992 permission site. As such the Inspector accepted:

" ... the appellants' point that storage and parking would normally be regarded as integral parts of [a transport depot] use."

28. Having accepted that point, the Inspector then went on to deal with parking separately. So far as parking was concerned the Inspector said this:
29. 21 "I find that the use of the enforcement notice land for parking is within the terms of the 1992 planning permission. There has therefore been no breach of planning control and the ground (c) appeal succeeds in respect of the parking only."
30. In due course he directed that the enforcement notice should be corrected so as to delete reference to the parking of vehicles.
31. The Inspector dealt with storage in paragraphs 12 to 18. So far as material for present purposes, he concluded in paragraph 12:

" ... I consider that the storage use, in particular, which is taking place on the enforcement notice site, is not a use which can be regarded as an element of, or ancillary to, the use as a transport depot."

32. 13 "I say this because of the nature and scale of the use."
33. The Inspector then went on to explain in some detail why he concluded that the storage use that was taking place on the site was not ancillary to the use as a transport depot. He concluded in paragraph 15:

"The type and amount of equipment stored in this size of compound is a further indication that this is not an ancillary activity to a transport depot."

34. The complaint made on behalf of the claimants is that, as corrected by the Inspector, enforcement notice A required the cessation of the unauthorised use of the land for the open storage of materials and equipment. In doing so, it was in breach of what has come to be known as the 'Mansi principle', see Mansi v Elstree Rural District Council [1964] 16 P&CR 153, because it failed to protect the ancillary storage that would be lawful as part and parcel of a transport depot use.
35. Mansi is a venerable authority; the most helpful recent authority on the way in which the Mansi principle should be applied is the decision of Mr Ouseley QC, as he then was, sitting as a deputy judge of this division in Kinnersley Engineering Limited v Secretary of State for the Environment, Transport and the Regions [2001] JPL 1082. At 1088, paragraphs 20 and 21 he said this:

"The basic approach to this problem of protecting existing use rights from the effect of enforcement notices is set out in a number of cases, the effect of which is usefully summarised in the Planning Encyclopaedia Volume 2 at P.176.05 and goes under the name of the Mansi doctrine ... Given that existing use rights are to be protected, the question of whether it is necessary to spell those out in the enforcement notice depends on how obvious it is that the enforcement notice can and will be construed so as to protect them, in the context of a criminal prosecution. It needs to be remembered that subsequent landowners are also bound by the notice, and concern over its interpretation may affect dealings with them.

21 "In my judgment, the key issue is whether it is obvious that the existing use rights as found by the Inspector would be protected."

36. In the Kinnersley case there had been an appeal against the enforcement notice on ground F, contending that its requirements were excessive. Moreover, Mr Ouseley concluded (see paragraph 22) that the inspector's reasoning, which appears to have been based on the concept of a use in one planning unit, being ancillary to another use in an another planning unit was misconceived and therefore, if one looked at the decision letter, it was unclear what existing use rights the Inspector intended should be protected.
37. In the present case there was no appeal against enforcement notice A on ground F. I accept Mr Corner's submission that that would not be fatal to the claimants' argument, but, nevertheless it does give one some indication of the extent to which this issue was a matter of real, as opposed to forensic, concern to the claimant. More importantly, the Inspector in this decision letter clearly and correctly distinguished storage which was ancillary to the permitted transport depot use and storage as a use in its own right. He said that the former would come within the terms of the 1992 permission, whereas the latter would not. He went to some trouble to explain his conclusion that the storage that was taking place on the site did not fall within the ambit of the 1992 planning permission.
38. Applying the approach in Kinnersley, it would, in my judgement, become obvious as soon as this decision letter was produced, that storage ancillary to the 1992 transport depot use was not prohibited by enforcement notice A. Clearly, the inspector's decision letter would have to be produced, since it corrects the terms of the enforcement notice. So the enforcement notice as corrected would have to be read together with, and in the context of, the inspector's decision letter. If ancillary storage was taking place pursuant to the transport depot permission, the recipient of an enforcement notice could properly say, "This is not a storage use; this is a transport depot use which necessarily involves some degree of ancillary storage. That ancillary storage is not prohibited by this enforcement notice". Accordingly, I do not accept this subsidiary criticism of enforcement notice A.
39. The third challenge is concerned with the manner in which the Inspector dealt with the application for a full award of costs. The Inspector set out the basis on which the application was made for a full award, including the proposition that the council had not considered the fallback position. The council responded to the effect that it had indeed considered the fallback position. It was never denied that the northern compound was included in the planning permission for the uses of the transport depot but the council maintained that condition 6, attached to the 1992 permission, was imposed to limit and minimise the effect of the use on its surroundings. Condition 6 lived on in the 2002 planning permission and a straightforward approval of all the uses would not have been correct against this background.
40. The inspector's response to these submissions was in paragraph 17 of his decision letter on costs:

"I do not accept that the Council did not consider the fall-back position in relation to the appeals as a whole and I have found nothing in the evidence to the inquiry to suggest that the Council had not assessed the planning history of the site to the point where it would not have taken enforcement notice action or refused planning permission. There were complex issues raised at the inquiry concerning the interpretation of the relevant planning permissions and forceful arguments were made by the appellants and the Council on these issues. As appeals were made against the enforcement notices and the refusal of planning permission, it is difficult to see that the inquiry could have been avoided or was unnecessary."

41. It is submitted that, in reaching that conclusion, the Inspector was relying upon his own flawed view as to what the proper fallback position was. Thus, his decision on costs was based upon an erroneous premise. I do not accept that criticism of the inspector's costs decision, whatever view is taken of the proper interpretation of the 2002 planning permission.
42. The Inspector found as a fact, which is not challenged, that the council had indeed considered the fallback position. The council had considered what rights were conferred by the 2002 permission and had advanced what the Inspector described as "forceful arguments" about the extent of the claimants' rights under the fallback position. The Inspector does not rely, in paragraph 17 of the decision, upon the proposition that the council's arguments were correct in his judgement. He says rather that there were complex issues and that the council had put forward forceful arguments. In short, the council had raised arguments of substance which were difficult to resolve. In my judgement, that is a perfectly proper approach which holds good whatever view one takes of the proper interpretation of the 2002 permission.
43. It is impossible to see how, even if the inspector's approach to the 2002 permission was erroneous, the council, in adopting the same erroneous view, could have been said to have been acting unreasonably. Accordingly, I reject that criticism of the cost decision and return to the key question: was the council's interpretation of the 2002 permission, which was accepted by the Inspector, erroneous?
44. On behalf of the Secretary of State, Mr Brown makes the point that the application for planning permission was not made under section 73A of the Act to retain an existing use, but under section 73. Thus the application presupposed the existence of a previous permission. If one asks the question: for what is it that planning permission is being granted, subject to no conditions? The answer is not for the use of land as a transport depot simpliciter ; that would be to ignore the wording of the decision notice:

"RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH CONDITION 2 ... ATTACHED TO PLANNING PERMISSION 11/90/1632."

45. If one asks, "Retention of what?", clearly, it is not retention of the existing use, but of the use which had been permitted in the 1992 permission, which included all the conditions imposed upon that permission, save for condition 2. He submitted that the 1992 planning permission together with its conditions was incorporated, by reference, into the 2002 grant of planning permission. If one looked at the operative words, what is it that the council approved? They:

"APPROVE Planning Permission for the application set out above..."

46. The application number is then given and that has to be coupled with the description of the proposed development, which refers to retention of a use of land without compliance with condition 2 in the 1992 permission.
47. Even if it could not be said that the 1992 permission had been incorporated by reference, there was an ambiguity upon the face of the decision notice because there was a tension between the description of the proposed development, the words "WITHOUT COMPLIANCE WITH CONDITION 2" by necessary implication demonstrating that there was at least one other condition which had to be complied with, and the words "Conditions: None". Thus it was permissible to look at the application for planning permission and, since that in turn referred to the 1992 planning permission, to look also at the 1992 planning permission and its conditions.
48. By reference to the planning officer's reports, one could see that the applicants' and the planning authority's intention was clear: simply to remove condition 2 from the 1992 permission because it was considered that that condition was ultra vires. There was no consideration of the remaining conditions and certainly no intention that they should be removed.
49. Conclusions
50. As I indicated during the course of submissions, I am content to look at the officer's report simply in order to ascertain the terms of the planning application, that document not being in the court bundle. I accept Mr Corner's submission that the question is not what the Local Planning Authority intended to grant, but what it in fact granted. While the arguments are finely balanced, I do not accept Mr Corner's submission that the 2002 planning permission is clear and unambiguous on its face, such that there can be no recourse to extrinsic materials for the purpose of construing its meaning. The council approves planning permission not for a description of a particular change of use or operational development but:

" ... for the application set out above subject to the following conditions:

"Conditions:

"None"

51. So, inevitably, one has to ask the question: what was the "application set out above" for which the council was granting planning permission? The application number is then set out.
52. If there had been no description of the proposed development, there could have been no doubt that it would have been necessary to look at the application bearing that number in order to ascertain what it was that was being permitted. Such an exercise would be squarely within principles 2 and 3 in the Ashford case. As soon as that exercise was carried out, it would become clear that the application for which planning permission had been sought was an application to develop the application site in accordance with the conditional 1992 planning permission, but without complying with one of the conditions attached to that permission, condition 2.
53. That position is not altered by the description of the proposed development that is set out in the notice of approval. It is significant, in my judgement, that the proposed development is not described as 'for use of land and buildings as transport depot and creation of new vehicular access'. The proposed development is described as:

"RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH CONDITION 2 (IMPROVEMENTS TO PUBLIC HIGHWAY) ATTACHED TO PLANNING PERMISSION REF:11/90/1632 DATED 23.6.92 ... "

54. The nature of that permission is then described as:

"[permission] FOR USE OF LAND AND BUILDINGS AS TRANSPORT DEPOT AND CREATION OF NEW VEHICULAR ACCESS."

55. Any interpretation of the notice of approval should give full force and effect to the words "RETENTION OF USE... " If one then asks, "What is the use which is to be retained?", the answer is provided by the remainder of the description of the proposed development: it is not an existing use of land, it is the use permitted, subject to conditions, by the 1992 planning permission. Any other interpretation would not give full effect to the words "WITHOUT COMPLIANCE WITH CONDITION 2". The description of the proposed development does not say 'RETENTION OF USE OF LAND WITHOUT COMPLIANCE WITH THE CONDITIONS ATTACHED TO PLANNING PERMISSION REF: 11/90/1632'. A particular condition, condition number 2, is singled out. Thus, on the face of the description of the proposed development in the notice of approval, some condition or conditions other than condition 2 in the 1992 planning permission are to continue in force.
56. While principle 3 in Ashford was concerned with the incorporation of applications for planning permission by reference, principle 2 is of general application in deciding the extent to which it is permissible to have regard to other extrinsic evidence. If it is permissible to look at the application for planning permission because it has been incorporated by reference, then it must be permissible to look at the terms of an earlier planning permission, if the new application for planning permission defines the proposed development in terms of that earlier planning permission. This applies with particular force in the case of applications under section 73, because subsection 73(3) and the regulations made thereunder enable a 'short form' of application to be made. The application must be in writing and must identify the earlier planning permission; no more formality is necessary, see paragraph 73.08 of the Encyclopaedia of Planning Law.
57. On the particular facts of this case, given the nature of the application for planning permission, which was in my judgement incorporated into the planning permission itself, it is permissible to look at the development which was permitted, subject to conditions, under the 1992 planning permission.
58. There is an apparent conflict between the description of the proposed development, which refers not to an existing use but to the retention of a permitted use without compliance with one condition in the 1992 planning permission, and the words "Conditions: None". One is left wondering what is to happen to the remaining conditions on the 1992 planning permission. Once it is accepted that both the application and the 1992 planning permission referred to in the application for permission may properly be considered for the purpose of construing the meaning of the 2002 permission, then the words "Conditions: None" mean, in that context, no additional conditions beyond those which had been imposed upon the 1992 permission.
59. I accept unreservedly that the drafting of the 2002 planning permission could have been much clearer. The inspector's observations as to good practice should be heeded by all local planning authorities. When issuing a fresh planning permission under section 73, it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross-referencing. Good practice was not followed in the present case.
60. But, on a proper interpretation of the decision notice, the answer to the question, "For what is it that planning permission is being granted subject to no conditions?" is not, "The use of Top Farm as a transport depot", but "The use of Top Farm as a transport depot in accordance with the 1992 permission, without compliance with condition 2 of that permission". For these reasons the primary challenge fails.
61. I am nevertheless satisfied that the challenge was properly arguable, as was the submission in respect of the costs decision, and so, subject to counsel's submissions, what I would propose to do would be to grant permission to appeal under section 289, but dismiss that appeal; to dismiss the appeal under section 288; to grant permission to apply for judicial review of the costs decision; but to dismiss the substantive application.
62. MR BROWN: My Lord, I am very grateful. I do make an application for our costs in respect of today. I do not know if your Lordship has seen a copy of our schedule of costs?
63. MR JUSTICE SULLIVAN: I have very recently. It was given to me this morning.
64. MR BROWN: If your Lordship has it, you should see that the total amount is £6422.25 and I apply for summary assessment in that amount.
65. MR JUSTICE SULLIVAN: Has that gone at the proper time to those instructing Mr Corner?
66. MR BROWN: It has.
67. MR CORNER: My Lord, it has gone at the proper time to those instructing me and I have no complaint on that. I do, however, make one point on the sum of costs. I am not quite sure in what order your Lordship will have the pages, but I have a tot-up of the costs, starting with a page looking like that, if you can see it from here. It has a heading:

"Statement of costs

"(Summary assessment)"

68. On the second page there is just one item, sixteen and a half hours that is worked on documents by the solicitors -- sixteen and a half hours at £142 an hour, which, I am bound to say, seems to us to be high. This is making no personal criticism, of course, of the person involved, but it did seem to us rather high, particularly because, as I understand it, the bundles were compiled by my instructing solicitor. So, we were frankly rather surprised to see £2,322.75 claimed with regard to that. There it is. That is the point I have, and it is actually quite a lot of money.
69. MR JUSTICE SULLIVAN: Yes.
70. MR CORNER: That, of course, does not include, and it far overtops in fact, even the enormous fee claimed by my learned friend, Mr Brown.
71. MR JUSTICE SULLIVAN: Yes. It is not attending on him either because there is "Attendances on Counsel" and various other things.
72. MR CORNER: So my Lord, that is the only cavil I have but, in terms of amounts, it is a substantial part of the total costs bill.
73. MR JUSTICE SULLIVAN: Yes. Do you want to say anything about that, Mr Brown?
74. MR BROWN: Three things: firstly, of course, in this case the time spent by those instructing me would not have been directed solely at, as it usually would be in a 288 or 289 appeal, preparation for this hearing; there has also been the need for a notice of appearance in relation to the judicial review.
75. A second point is a simple comparative exercise: in a similar box on the statement of costs for the claimants in this case the time spent on documents is some 22.3 hours. I appreciate, my Lord, that a claimant has a little bit more to do in preparing for a case of this sort but, your Lordship will, I know, have noted in this case that, in terms of appearances at the planning inquiry itself, the advocacy for that appeal was done by Mrs Jacqueline Backhaus of Hewitson Becke + Shaw who, of course, instruct my learned friend in this case. One can therefore assume, in my submission with some justification, that when they came to the High Court proceedings, they had some familiarity with the documents which, of course, those who instruct me would not have had -- that those instructing me would have been approaching from fresh, whereas Mrs Backhaus, Hewitson Becke + Shaw, would have come knowing the background and would therefore have hit the ground running, as it were. So my Lord therefore I say compared with the times they have spent, we are not disproportionate.
76. If your Lordship is unhappy with that, rather than this going to detailed assessment, put a figure on it that your Lordship thinks is appropriate, but I would submit that what is there is appropriate.
77. MR CORNER: Can I just make two points?
78. MR JUSTICE SULLIVAN: Yes.
79. MR CORNER: One, a notice of appearance would not take a great deal of time to produce; and two, my learned friend compares the figures on his own costs assessment with the figures on ours. My Lord, for all I know, if I were in the happy position, which I am not, of having won this case today, then my learned friend might have made criticisms of the time that we had claimed. I really would suggest, in looking at the costs assessment that is submitted by my learned friend, or indeed any other party, one actually has to look at it and say "Well, is this reasonable?" and the proposition I am making is that no doubt some time is reasonable, but really that is excessive.
80. MR JUSTICE SULLIVAN: Thank you very much. It is appropriate to assess costs summarily. Having heard the submissions, doing the best I can, it does seem to me that 16.3 hours is possibly a bit excessive and what I will do is to round the figure down to £6000. That seems to me to be fair enough. So, summary assessment in the sum of £6000.
81. MR CORNER: I do have another application which is for permission to appeal.
82. MR JUSTICE SULLIVAN: I would be minded to grant you that, subject to any submissions that Mr Brown may make, because it is quite obvious that I have found the arguments quite closely balanced.
83. MR BROWN: The only submission I would make -- and I appreciate that your Lordship has already defined the issue as being finely balanced, that is why I am not going to contest permission outright in view of that -- but it ought to be made clear that it is limited to that first issue; no permission in relation to the judicial review and no permission in relation to the Mansi doctrine.
84. MR JUSTICE SULLIVAN: I am sorry about that. Mr Corner, I meant to convey that. You would be going uphill if you wanted permission on the other grounds, but you are going downhill on the main point, if that is the right way of putting it.
85. MR CORNER: Suddenly I feel rather bifurcated. My Lord, in those circumstances I do formally make an application for permission to appeal on all the grounds, but I think there is instinct in the submissions that I made this morning all the points that I could make in relation to the grounds in respect of which you are disinclined to grant me leave, so I am not sure if it is worth my detaining your Lordship further on that. But I am taking it that you are prepared to grant me permission on what I described as the primary ground.
86. MR JUSTICE SULLIVAN: Mr Brown is not arguing against that.
87. MR CORNER: No, he is not.
88. MR JUSTICE SULLIVAN: Right, I shall grant you permission to appeal on the primary ground because there is a real prospect of success there. So far as the other two grounds are concerned, I do not think there is a real prospect of success and there is no other compelling circumstance so I will refuse you on those. May I thank you both for very interesting arguments.