England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2002

Mr Justice Ouseley:

1. The Claimant, Mr Braun, and his wife own 137 Talgarth Road, London W14, in the London Borough of Hammersmith and Fulham. They bought it quite recently. 137 Talgarth Road is one of the eight studios known as St Paul's Studios which form a distinctive group of listed buildings on the south side of Talgarth Road. They were listed in 1970. Mr Braun made a number of alterations to the interior of this house, and in July 2000 sought retrospective listed building consent for the alterations which he had made. He was, he said, repairing and rehabilitating the house from a previous office related use.
2. Before issuing an enforcement notice, Hammersmith and Fulham LBC laid an information against Mr Braun in August 2000, alleging that a number of the alterations which he had made required but lacked listed building consent, because they affected the character of 137 Talgarth Road as a building of special architectural or historic interest; this was contrary to section 9(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. In April 2001, the District Judge dismissed the information.
3. In November 2000, Hammersmith and Fulham LBC issued a listed building enforcement notice in respect of the alterations but failed to determine the application for listed building consent. The enforcement notice alleged in its major controversial parts, that in the ground floor rooms and hall, the majority of the one piece timber skirting had been removed and replaced with skirting placed on top of a new wooden floor covering, that a recessed arch and display cabinet had been covered over, that a new timber flooring had been screwed to the lower part of an internal staircase and the bottom tread cut and that in the first floor studio, timber wainscot boarding had been removed from the eastern wall. The notice required in summary that these alterations be reversed. A number of other alterations were alleged but were not the subject matter of a remedial requirement e.g. affixing a desk to the wall and installing a replacement kitchen. The listed building consent application in July 2000 had covered most of the alterations subsequently dealt with in the enforcement notice, together with other items of fixed furniture and new services.
4. Mr Braun appealed against the listed building enforcement notice on the grounds, so far as material, set out in section 39(1)(c)(e)(g) and (i) of the 1990 Act. These are in brief that (c) the alterations were not a contravention of listed building control, (e) that if they were, listed building consent ought to be granted for them, (g) that the requirements of the enforcement notice exceeded what was necessary for restoring the building to its condition before the carrying out of the works and (i) that the steps required would not restore the former character of the building. Mr Forsdick for the Secretary of State pointed out that no appeal had been made on ground (b) namely that the matters alleged to constitute a breach of planning control have not occurred. The Inspector was accordingly entitled, he submitted, to approach the enforcement appeal on the basis that that was not an issue.
5. Mr Braun also appealed against the non-determination of what in July 2000 was in fact his second application for consent. Before the appeal was heard, the Council, through an officer, determined that the application would have been refused, because most of the alterations were objectionable or in one respect insufficiently described.
6. An Inquiry was held into both appeals in November 2001, following which, by a decision letter dated 10^th January 2002, both appeals were dismissed on all grounds, although in a number of respects the enforcement notice was varied.
7. Mr Braun's application for permission to appeal against the enforcement notice decision was adjourned to the substantive hearing of the challenge to the decision on the consent application. I heard both substantively. I grant permission to appeal against the enforcement notice decision.
8. Mr Braun, who appeared in person as he did at the Inquiry, spoke excellent English and had some professional assistance. He claimed that the decision was vitiated by actual or apparent bias on the part of the Inspector, that the Inspector ignored or failed to give any adequate reasons for rejecting the decision of the District Judge in his favour, that the Inspector ignored relevant evidence about the condition of the building before the works were carried out, and failed to explain adequately why he had rejected certain submissions related to PPG15, and why certain works, as works of repair, required listed building consent. Additionally, in respect of the consent application, Mr Braun contended that the Inspector had ignored, or rejected with inadequate reasons, the willingness of the Council to grant listed building consent for some of the works.

Bias

9. Mr Braun referred to the fact that the Inspector, at the start of the Inquiry, had declared that he had been the last remaining partner in the architectural practice started by Frederick Wheeler before it closed. Frederick Wheeler had been the architect of the St Paul's Studios, built in 1891. The Inspector, in his witness statement, said that he had explained that he had not known either of the early partners, Frederick Wheeler or Charles Goodman, both of whom had died before the Inspector started in practice. He had had no previous professional interest in the building and had not seen it before. He said that he felt that he ought to refer to what he described as "this very tenuous connection". In his witness statement, he said that he had never even heard of the studios before this Inquiry.
10. Following the Inspector's remarks, there was no objection from anyone including Mr Braun to the Inspector conducting the Inquiry. Indeed, it was common ground that Mr Braun thanked the Inspector at the end for the fair way in which he had conducted proceedings. Mr Braun did not resile from that comment. But he complained to me that the notification of this connection had come too late for him to be able to object effectively without more considerable delay in the resolution of an issue of real importance to him.
11. What appears to have fuelled Mr Braun's concern thereafter was the dismissal of the appeal, contrary to his expectations following the Magistrates' Court decision, in terms which were seen as personally quite critical and in a number of respects inaccurate. There is no doubt but that the Inspector in dealing with the changes to the skirting, stair covering, some wainscoting and a new floor covering expresses himself in strong language in favour of original features and is caustic, unusually so for an Inspector in my experience, about what Mr Braun had done in quality, and in his "cavalier" approach, even though supported with professional advice and evidence of some distinction. The consent application was rejected in part because of a whole litany of missing details, lack of which by and large had not troubled the Council. The Inspector, said Mr Braun, had agreed to visit a neighbouring studio restored in a way which the Council contrasted with what Mr Braun had done and owned by someone who had complained about Mr Braun's works, but had declined to visit other studios which Mr Braun had invited him to visit which he said had been refurbished without objection or consent in a manner more akin to Mr Braun's tastes.
12. There was a dispute of fact as to whether such an invitation had been offered by Mr Braun. Mr Braun and his planning consultant state that such an invitation was offered on the last day of the Inquiry just as it resumed after lunch, as a result of the Inspector expressing a desire to see this other property as the Council was urging him to. The Inspector simply states that he was invited to visit just that one property and had no power to enter private property without the owner's permission. Mr Beresford, the Council's Assistant Head of Legal Services and its advocate at the Inquiry states that it was the neighbouring owner who asked the Inspector to visit his house and that no similar request or arrangements were made by any other neighbouring owner. To Mr Braun, there was a conflict of evidence between Mr Beresford and the Inspector as to who proffered the invitation, which on Mr Beresford's evidence suggested a private chat between the owner and the Inspector, because that owner did not attend the Inquiry.
13. Mr Braun's anxieties were again later heightened by what he described as a member of the public who spoke at the Inquiry declaring "that they were well known to the Inspector". Mr Griffiths' first witness statement and his contemporaneous note refer to this as a Mr De la Mere; he is not listed as appearing at the Inquiry. The Inspector has no recollection of any such statement and neither did a Ms Dixon, whom both she and the Inspector thought was the only interested party who spoke.
14. The test to be applied for apparent bias, which is all the Claimant would have to show, is whether "the relevant circumstances, as ascertained by the Court, would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal had been biased;" Porter v Magill 2002 2 AC 357, 2001 UKHL 67. Even were I to accept without qualification all that Mr Braun and Mr Griffiths say, I would not conclude that there was any apparent let alone actual bias.
15. The connection between the Inspector and the architectural practice, previous partners in which had long ago designed the building but whom he never knew and of which he had been unaware, was far too tenuous to lead to a real possibility of bias. The fact that no objection was taken when the Inspector, out of a great abundance of caution, referred to it shows how little it weighed with Mr Braun. I accept his point about the disadvantage of an adjournment but he registered no concern at all and recognised the fairness of the conduct of proceedings.
16. Mr Braun's understandable resentment at the strength of the Inspector's comments on what to Mr Braun were more matters of personal taste needs to be tempered by two factors. First, the specialist Inspectors who deal with listed buildings have an entirely proper, indeed necessary, interest and expertise in listed buildings and architecture. This can find expression in a strength of language which betokens respect or enthusiasm for a building which is born of expertise not bias. If this is a presumption in favour of preservation and restoration, it is one which is reflected in the statutory protection accorded to such buildings and in the relevant policies. Second, while many Inspectors may use language designed to be less harsh, an Inspector gives no evidence of bias in using trenchant language; that readily represents a firmness of view after fair consideration of the issues. I appreciate that the Inspector appears to have concluded that even just fixing a desk to a wall altered the character of the listed building. However surprising that may be, it is a legitimate planning judgment and however punctilious or purist is not an indicator of bias.
17. In view of the evidence as to the way in which the neighbouring house had been restored, there is nothing surprising in the Inspector accepting the invitation to visit it, and no objection was taken to him doing so. Again, it is inevitable, in an area where professional expertise and judgment are part of the aesthetic appreciation and assessment of listed buildings including their domestic interiors, that some restorations and repair will seem appropriate to one eye and inappropriate or unnecessary to another. In so far as the Inspector was influenced adversely to the Claimant by what he saw next door, that is the consequence of his appraisal of relevant material, and not of bias.
18. I consider that what probably happened in relation to the Claimant's counter-invitation to the Inspector to view other studios as well, is that it was not made with sufficient preparation for the Inspector to register it seriously. I accept that it was made. I am not sure from the Inspector's witness statement, in the last two sentences of paragraph 3, whether he is saying that Mr Braun was entirely silent, or that Mr Braun was not in a position to offer an effective invitation to visit other people's houses. Either way, an Inspector could reasonably require, in order to give any serious consideration to such a request, that there be clear evidence that that owner, and not just the Claimant, was prepared for a visit by the Inspector and the necessary entourage, and that arrangements were in hand for that to be undertaken efficiently in the course of a post Inquiry view. It is quite clear from Mr Braun that no such consent had yet been sought or obtained by Mr Braun and that no arrangements had been made. It was his riposte and not an organised request with the relevant owners' consent. I am not surprised that it did not register, or register as a serious point, with the Inspector. His non-acceptance of Mr Braun's point is not objective evidence of bias, in these circumstances.
19. I do not consider that Mr Braun's suspicions of a private chat between the Inspector and the neighbouring owner constitute such objective evidence either. True it is that Mr Beresford's and the Inspector's statements differ as to how the visit was raised, and the owner's presence is not recorded on the appearance list. I do not intend to try to resolve that point. It is clear that the issue of a visit was expressly raised in the Inquiry by someone, and the owner had made the request directly or indirectly. Both say the issue was raised publicly, as it clearly was at some stage, and make no reference to any private conversation. It is a commonplace for a Council to raise such a point on behalf of a resident. It is not uncommon for Inspectors to be approached privately by residents outside the formal session and the almost invariable practice is for them to be told to speak to the Council or to raise matters when the Inquiry resumes. There is no evidence of any untoward private conversation. Again there is nothing of significance in this point.
20. The same goes for the intervention of Mr De la Mere. Even if he said what Mr Griffiths noted him as saying, I can see no reason to reject the Inspector's evidence. Although he is referring to another person, it is plain that he recognised no one at the Inquiry and has no recollection of the incident, a recollection which I believe he would have had, if he had recognised Mr De la Mere. The Inspector, by virtue of his position, may have made more of an impression on Mr De la Mere than vice versa, on some previous occasion.
21. Neither individually nor cumulatively do these points provide a factual basis which would lead the fair-minded and informed observer to conclude that there was a real possibility that the Inspector had been biased.

The Magistrates' Court decision

22. The Claimant faced one information which alleged that the removal of wainscoting, the infilling of an arch and recessed cupboard in the ground floor front room, the renewal and relocation of skirting and the alterations to the stairs were works affecting the special character of the building and which had no listed building consent.
23. The District Judge concluded that the removal of the wainscoting was an alteration which affected the studio's character, though whether for better or worse was a matter of opinion. He concluded that the character of the building was altered by what had been done to the arch and recessed cupboard, and to the stairs. He was not satisfied that the works to the skirting affected the character of the building; he explained why. Mr Braun had installed a new timber floor on top of the old floor; he had put the replacement skirting on top of the new floor so that it was as high above the new floor as the old skirting had been above the original floor. The Council said that he should put the new skirting on the old floor, leaving a narrow gap at the edge of the new floor to accommodate it; but this would mean that the new skirting was lower in relation to the new floor than the old skirting had been in relation to the original floor. A third way was considered of having higher skirting than the original placed on the original floor, which if the new floor were ever removed, would be as evident an alteration as the others. The District Judge concluded that the Council's approach was inconsistent and unsustainable because it would affect the character of the building as much as Mr Braun's actions.
24. The District Judge was also not satisfied that Mr Braun had instructed his workmen to execute a cut to the bottom stair, or that all the works were carried out between the dates specified in the information.
25. He therefore dismissed the information because the matters on which he was satisfied could not be separated from those on which he was not satisfied, as they had all been dealt with by way of a single information.
26. Mr Braun submitted that there was an element of double jeopardy in his thereafter having to appeal against an enforcement notice which covered the same ground. But that is a misunderstanding, as I believe Mr Braun recognised. The 1990 Act has criminal sanctions in section 9 which require a criminal court, applying the criminal burden and standard of proof, to be satisfied that, amongst other matters, the unauthorised works affected the special character of the listed building. By itself, such criminal sanction could not bring about sufficient remedial action, and in respect of a number of the ingredients of the offence of which the impact on the special character of the building is the obvious one, would impose a burden and standard of proof which could prove too strict for effective listed building control. Section 39 provides for appeals against enforcement notices where an Inspector, usually a specialist, hears the evidence on the wide range of relevant matters and can exercise the remedial powers given to him pursuant to his own judgment on the evidence laid before him. Dismissal of an appeal leads to no criminal sanction of itself; it is only subsequent non-compliance with the notice requirements which has that effect. There is no double jeopardy.
27. It was also only in respect of one aspect of the alterations that the District Judge reached a conclusion favourable to Mr Braun; there can be no rationale for the happenstance of the way in which the information as a whole came to be dismissed, to create any procedural protection in respect of those alterations where the conclusion on character was adverse to Mr Braun. The Inspector cannot be bound either by any favourable conclusion on character.
28. Mr Braun however submitted that the District Judge's conclusions on character, albeit helpful to him only in respect of the skirting, had been ignored by the Inspector.
29. The Inspector said in dealing with the appeal under ground (c), i.e. that the works did not affect the special character of the listed building, that he was not concerned for those purposes with whether the effect was positive, negative or neutral. He continued, in paragraph 12 of the Decision Letter:

"All of the works alleged in the listed building enforcement notice, as corrected, are works which affect the character of the listed building. They involve extensive alterations throughout the building. Amongst these were alterations to the skirtings, a new finish applied over the treads to the staircase, the loss of a recessed arch and of a display cabinet, damage to a stair tread to fit a new covering, the loss of the Studio wainscot, a new fireplace surround in the Studio, a new kitchen in the Studio, and a strip of wood applied to a Studio window to mask the removal of the wainscot. This is a substantial list of matters, every one of which requires authorisation, because every one of them affects the character of the building as one of special architectural or historic interest."

30. He also said in paragraph 14:

"They properly require authorisation, as they are all works affecting the character of the building. No evidence was put to me to indicate otherwise, and there can therefore be no dispute about my conclusion on this ground, in the light of the law as set out in the 1990 Act as amended. As a matter of fact and degree, the ground (c) appeal does not therefore succeed."

31. He dealt with the merits of the alteration to the skirting at paragraphs 32 to 34, saying at paragraph 34:

"However, it is also necessary, so that the listed building and its features are preserved, of which the skirting is clearly one, that it is replaced at its correct and original level. Its cavalier replacement, at a higher level than it was, solely to allow for a new timber floor, in my view causes irreparable damage to this part of the building's character. The skirtings were bold and substantial, and reflected the quality of material and detail which the architect wanted to achieve in these Studios. Their replacement with built-up and plywood faced modern skirtings, which do not reflect the character or style of the likely original skirtings, nor their position on the wall relative to the original floors, can in no way be said to be preserving the listed building, nor to be repairing or re-instating that building. It is plainly a new and entirely unrelated detail, and is only necessary because of the discordant change to the flooring, brought about more by fashion than a healthy respect for the original listed building."

32. The Inspector required the removal of the new skirting and its replacement with skirting "fixed to the wall in its original location in a manner whereby it sits on top of the original timber floorboards". This applied to the hall and two ground floor rooms. There was no requirement that the new timber floor be removed. The requirement involves the original type of skirting being placed in part below the actual new floor level, so that it reflects the Council's position as put to the District Judge, and in respect of which he commented as I have set out. The difference in height of the skirting against the wall as between what the Inspector required and what Mr Braun had done is of the order of 20-25mm, in a room with a ceiling height of more than 3 metres. The effect is that the original relationship of floor, skirting board and ceiling will not be visible unless the new floor is removed; but were a later owner to do that it would again be visible – meanwhile the skirting board would appear to be lower than the original.
33. The Inspector rejected Mr Braun's arguments that the requirements were excessive or ineffective for reasons which add nothing to this point.
34. He then dealt with the Magistrates Court decision under the heading "Other Matters," in paragraph 52 saying:

"I have taken account of all the other matters raised. These have included the fact that the Council had taken action against the appellant in the Magistrates Court, under section 9 of the Planning (Listed Buildings and Conservation Areas) Act 1990, as amended, prior to my Inquiry. The matters addressed, and the conclusions reached, in the Magistrates Court are not directly related to these appeals. The appeals have been made under section 39 and section 20 of the 1990 Act, as amended, and that is the basis on which I have determined them, in accordance with planning law and the facts of the case. The decision in the Magistrates Court, which is based on different considerations, has no bearing on my conclusions in these appeals."

35. In support of his contention that the District Judge's conclusion was relevant to the Inspector's consideration of matters, Mr Braun referred me to a 1991 Ministerial planning decision in which the Secretary of State accepted the decision of the Crown Court on a prosecution, instead of his Inspector's views.
36. Mr Forsdick submitted that the Inspector was right to reject the relevance of the District Judge's decision, because of their differing roles. The District Judge had misdirected himself in law in comparing what the Council proposed with what Mr Braun had done, instead of comparing the latter with the building as it had previously been. In any event the Inspector had reached the view, as he was entitled to, that the alteration affected the character of the building, was inappropriate and should be rectified in the way proposed.
37. In my judgment, although the Inspector was entitled to regard the fact of acquittal as irrelevant in view of the differing roles of the criminal courts and the Inspector on appeal, an issue on which he had heard much from Mr Braun, he was not entitled to regard the District Judge's views as irrelevant. He had the District Judge's considered and recorded views after a 2 day hearing. They raised an issue as to the relative effects on the character of the building of the works complained of and of the remedial works required. It is irrelevant that the District Judge may have been wrong in his approach to the assessment of the effect of an alteration : a view on the relative effects of the problem and the solution still has a role to play in the overall enforcement decision.
38. However, the crucial issue for the Inspector was his appraisal of the significance and the appropriateness of the alteration to the skirting and of the remedial requirements in the enforcement notice. He reached a clear view as to the significance of the skirting alteration and as to its appropriateness in paragraphs 12 and 34. He cannot have been unaware of the small difference in height and has plainly rejected the evidence on behalf of the Claimant that the difference in height was insignificant. The acuity of his vision and the refinement of his judgment do not show an error of law : those are matters of degree and expert judgment for him.
39. He cannot have been unaware of the District Judge's judgment as to the relative effects of the problem and solution when he deliberately disregarded it. He had the written note before him and Mr Braun relied on it. In requiring the replacement skirting board to be placed on the original floor, it was clear that the Inspector saw that as valuable, in agreement with the Council, because it would mean that the original relationship or proportions would remain, ready to be uncovered should a new owner decided that the new timber floor was not to his taste. He is clearly disagreeing with the Claimant's witnesses' contrary views and in substance thereby disagreeing with the District Judge's view. It could make no difference to his view if another non-specialist had been added to the Claimant's side. Accordingly, the Inspector's error made no difference to his decision.

The previous condition of the building

40. The Claimant argued that the Inspector had erred in effect in his treatment of all four grounds of appeal because he had ignored evidence given on behalf of the Claimant, or had failed to give any adequate reasons for any conclusions which he reached on that evidence, about the condition or extent of the skirting, wainscoting and the flooring to the stair.
41. Mr Braun also made more general comments that the house had been in a very poor condition when he bought it and that the effect of the Council's acts and omissions would be to cause the house to be returned to an uninhabitable state.
42. Put in that broad and general way, the Inspector was entitled to reject the material upon which Mr Braun relied as insufficiently clear. From paragraph 42 of the decision letter, it is clear that the Inspector considered the evidence as to general condition given by Mr Braun and Mr Stent, who is the other witness referred to, but considered it insufficient to support the very strong assertion, not just that the house had been uninhabitable but that the requirement to carry out the steps in the enforcement notice would return it to an uninhabitable state.
43. Mr Braun took me to the relevant passages in his evidence and submissions and in Mr Stent's. I am quite satisfied that the Inspector was entitled to reach that general conclusion. He was not saying in paragraph 42 that there was no evidence at all; he was commenting that the quality of that evidence was insufficient for the task for which Mr Braun had sought to deploy it.
44. However, the evidence and argument of Mr Braun and Mr Stent was not confined to that general point. They, and other witnesses drawing upon what those two could say from their own knowledge, referred to the extent and condition of the skirting, wainscoting and staircase. The limited extent and poor condition of the original skirting and wainscoting in particular was referred to in the context of whether the alterations had affected the character of the listed building, or had done so adversely, or whether the remedial steps were excessive for the restoration of the building to its previous condition or would be effective in restoring its character.
45. Mr Forsdick said that the matter had not been raised in that narrower way. However, I am satisfied from my reading of the evidence and submissions that those points were plainly raised before the Inspector and, in the light of his conclusions, were issues which he needed to consider. I derive that in particular from the statements of Mr Braun to the Inspector as to the extent and condition of the skirting and wainscoting in his opening and closing submissions at pp101, 104-5, 109-10, from his Statement of Facts, and from Mr Stent's statement at pp 92 and 93 where the "generally butchery of surface elements" before the Brauns' purchase, was referred to. Mr Braun's other witnesses, notably Mr Griffiths e.g. at p 67 drew attention to the significance of this for the Council's requirements. It may not have been at the forefront of the Claimant's case but it was very relevant to the rather more focussed step by step approach of the Inspector. I reject Mr Forsdick's submission that it was only the general issue which was raised.
46. I also consider that this complaint, though elaborated by Mr Braun in his oral submissions before me, was sufficiently raised in the fourth and fifth particulars of the enforcement notice and consent challenge respectively and in paragraph 2.5 of the details of the latter. They are also specific aspects of the more general claim. For the purposes of my consideration, I have taken account of what was said in written evidence and submission to the Inspector, recognising that that is only part of what he heard. And, as Mr Forsdick said, it would be wrong to rely on new material from Mr Braun.
47. In considering this issue, I accept Mr Forsdick's point that there was no ground (b) appeal and the Inspector, notwithstanding what Mr Braun was saying to him, did not suggest that it should be added. Accordingly, I accept that the Inspector was entitled to accept as correct the factual allegations in the enforcement notice as to what had been done and to judge the other grounds of appeal on that basis. But that point is of no real assistance to Mr Forsdick.
48. There was no dispute of fact over what had been done to the staircase. The allegation of breach in relation to the wainscoting simply refers to "Removal of timber wainscot boarding". It is quite unspecific as to where it was, or its extent. It was perfectly open to Mr Braun to accept that he had removed what there was whilst contesting how much in fact there had been. It is clear from the way in which the Inspector amended the related requirement of the enforcement notice that he accepted that it had only existed on and had been removed from the eastern studio wall, but even then he specifies the extent of replacement by reference to the original position of the wainscoting. That still does not resolve any dispute as to what the extent of that original was – did it or did it not cover extend the whole length of that wall? The Inspector had some evidence from Mr Griffiths, Mr Stent and Mr Braun that the wainscoting that did remain was itself incomplete and damaged and did not cover the whole length of the eastern wall. He also had more generalised evidence about the poor condition of the stairs.
49. Mr Braun's evidence about the extent of the original skirting was that it had been present in the ground floor hall and rooms but had covered only a small proportion of the walls; see p10 and his Statement of Facts; there were other walls entirely without skirting; at p 109 he said the house was largely devoid of skirting when he moved in. The Inspector had evidence as to its serious disrepair. The notice as upheld alleged a breach of listed building control by the removal of "majority of floor skirting made of one piece of timber" and by its replacement, and required the "removal of replacement skirting and replacing" this with skirting of the appropriate type in the appropriate location. It is not clear from that allegation of breach or from anything else in the Decision Letter, what factual basis the Inspector had in mind as to the extent of either original or indeed any other skirting removed by Mr Braun. It is not clear whether the "majority of floor skirting" refers to the majority of the original part removed or whether it was thought that that constituted the majority of the total skirting or whether it just related to the one piece skirting, or whether it was thought that there was a complete skirting although not original. The allegation of breach is not incompatible with what Mr Braun said. Accepting the allegation in the enforcement notice provides no answer to what exactly was accepted or assumed. The absence of a ground (b) challenge is of no assistance in assessing the factual basis for the Inspector's conclusions. But it is clear from the notice and decision that however much was removed or newly installed, it all had to be taken out and replaced, because the replacement skirting was complete and not partial, and the Inspector found all the replacement skirting objectionable.
50. It was not in dispute before me that a requirement pursuant to section 38(2)(a) of the 1990 Act for restoring the building to its former state, which cross-refers to the ground of appeal in section 39(1)(i), relates to the state of the building prior to the alterations alleged in the enforcement notice.
51. It is not concerned with the state of the building at the moment of listing, the timing of which can be quite haphazard, nor with the state of the building when it was originally complete. The same is true of the reference in sections 38(2) and 39(1)(g) to requirements exceeding what is necessary for restoring the building "to its condition before the works were carried out". Mr Forsdick's suggestion that damage post 1970 was neither here nor there is wrong.
52. The relevance of the previous state of affairs is not confined to those grounds. The state of the building or its features may be relevant to judging the significance and acceptability of any alterations for the purposes of grounds (c) and (e). If there is a factual dispute as to what the condition or extent of those features is, the Inspector must resolve it before he can deal with those grounds or else he must explain why that factual issue is irrelevant in any particular case to the character judgment which he has to make.
53. The Inspector said at paragraphs 42-43 in relation to ground (i):

"42. The appellant asserts that the building was uninhabitable when he moved in, and that to return it to that state would be a retrograde step. However, he has produced no evidence to corroborate that statement. One of his witnesses knew he building when it was occupied by its previous owners, but was not able to produce clear evidence that it was uninhabitable, and that to restore it to that state would render it uninhabitable. There was no evidence that the previous owners found it uninhabitable, nor were they called to give evidence to support that view. The requirements seek to reinstate the building to match the original.

43. There is no time limit on the issue of listed building enforcement notices, after the alleged works have taken place, unlike enforcement notices issued under the Town and Country Planning Act 1990, as amended. The requirement is not, therefore, to reinstate it to a claimed but unproved uninhabitable condition, but to its condition before the works were carried out, which is likely to be its condition at the time of listing in June 1970, unless listed building consent has been subsequently granted for alterations. Again, no evidence of poor condition was put to me, and I must therefore rely on the list description, and on the other evidence put to me."

54. He relied on that same point in relation to ground (g).
55. The Inspector did not discuss the condition of those three items or their extent at any other stage in the decision letter, or in dealing with grounds (c) or (e). Nor did he rely on the absence of a ground (b) appeal to reach any conclusion of fact.
56. Such an approach is wholly insufficient for dealing with the specific points upon which Mr Braun relied. There was some evidence on Mr Braun's behalf as to the condition and extent of the skirting, wainscoting and stairs. The significance of that for the notice requirements and indeed for the other grounds of appeal was raised before the Inspector even though he considered condition only in relation to the remedial requirements. His approach to the condition of the items before the works, as being presumptively that which pertained 30 years before at the time of listing, ignored that other evidence. He says that he had no evidence of poor condition; but that is wrong. The "other" evidence to which he refers in paragraph 43 is clearly not the evidence from Mr Braun's side. He identifies no evidence which supported the assumption he made that there had been no change in 30 years, let alone that that was the "likely" condition. The Inspector does not rely on Council witnesses whose evidence as to condition, beyond an expert judgment that the skirting, had been one piece skirting was limited by their lack of knowledge of the previous condition. If he was rejecting the evidence on behalf of Mr Braun he had to explain why. But he does not appear to reject it; rather he overlooks it in the course of the many and not always sound points raised by the Claimant.
57. If he had considered the evidence given on behalf of Mr Braun as to what had been removed, then depending on his acceptance of that evidence, he would have had to consider the contribution which the skirting removed by Mr Braun made to the special character of the building, which would include its nature, extent, original quality and condition. It is against that character that the Inspector had to judge the degree of alteration and its acceptability or otherwise. But he ignored relevant evidence and without any obvious or reasoned justification appears to have fastened on a supposed condition 30 years before. His conclusion on ground (c) cannot stand. Likewise, his conclusion on ground (e) omits a relevant comparison: that between what Mr Braun had done and what actually was there beforehand.
58. However, whatever view the Inspector took of the extent or condition of the original or other skirting, he could have concluded that the replacement skirting affected the character of the listed building and did so adversely and should be removed. It is a fallacy to suppose that because an interior feature is in disrepair or incomplete, and its replacement desirable that the replacement does not require listed building consent, or that its impact on character cannot be regarded as adverse. The poor quality or absence of original skirting did not of itself mean that this specific replacement could not also be seen as an alteration and an undesirable alteration.
59. But it does not follow that because the replacement is objectionable that it should be refused consent. It may be that the legitimate extent of remedial requirements would lead to something worse if it could only require the replacement of an incomplete hotch potch of types of skirting in varying degrees of disrepair. Although in reality practical compliance with a lawful remedial requirement may involve an uncovenanted improvement, that may not always be so and a remedial step cannot be required simply in order to bring about such an improvement.
60. If the Inspector had decided that the replacement skirting was objectionable and should be removed, he then had to consider whether he could require anything and if so what to be put back or replaced. Would a requirement of the sort he was minded to uphold be excessive or effective for restoring the pre-alteration state of the building? If so, would there be any value at all in any lesser remedial requirement? Whilst Mr Forsdick is right to say that a restoration to the previous state necessarily restores the previous character, even if there had been some damage which might or might not be made good as an incidental part of the remedial works, I do not wholly accept his submission that it is irrelevant for an Inspector to ask whether there is value in any particular case in requiring something which has been removed to be reinstated. It rather depends on what would be reinstated.
61. His requirement in relation to the skirting goes beyond removal of the replacement skirting; and it goes beyond requiring the replacement on the original floor of the original skirting which Mr Braun had removed, or all or the majority of the skirting removed or of the one piece skirting. He requires the complete replacement of all the skirting installed by Mr Braun (whether that replaced original, modern or no skirting at all), with new one piece skirting resting on the original floor.
62. The Inspector cannot impose such a replacement requirement consistently with section 38 and dismiss the ground (g) and (i) appeal in relation to the skirting without reaching the prior conclusion that Mr Braun had removed the whole of the skirting and that none had been removed before by previous owners.
63. Had he considered the specific evidence of Mr Braun and his witnesses, he might have accepted that evidence, and the replacement requirement could not then have been so extensive. In those circumstances he would have had to consider whether the steps which could be required would restore the former character of the building. He might or might not have concluded that, unhappily as he saw it, Mr Braun's alterations were the least worse option. He might have concluded alternatively that for consistency's sake, Mr Braun would in the end replace the rest of the skirting conformably with the original part removed, replacement of which he could require in the manner proposed. There may be other options. This is not requiring the Inspector to devise a scheme but he does have to recognise the limits of what his powers are as to reinstatement and reach a view about the effect on the character of the building of the limits of those powers in the light of what was likely to happen. However he ignored that evidence and his conclusion in relation to grounds (g) and (i) on the skirting are flawed.
64. The Inspector plainly thought the wainscoting very important, even though it had only remained on one or part of one studio wall. He does not refer to its limited extent on that wall or its condition as Mr Braun contended for. Had the Inspector reached the view that it was in the condition and as limited as Mr Braun's evidence to him suggested, he might but by no means necessarily would have reached a different conclusion on whether its removal altered the special character of the building or did so adversely. If he still reached the same conclusion, then the fact that the replacement wainscoting might be an improvement would be the inevitable and legitimate consequence of the only practical remedial steps. However his consideration of grounds (c) (e) (g) and (i) was flawed. Relevant evidence was ignored.
65. As for the stair covering, the Inspector in paragraph 31 was plainly hostile to the new covering and it is clear that, whatever the underlying condition of the original stairs which obviously still existed, this was to him an objectionable covering. He was entitled to require its removal even if a poor quality stair case in part was the consequence. An appropriate but different repair or alteration could be proposed by Mr Braun. I do not consider that his conclusion was affected by his ignoring the evidence as to the stairs' condition.
66. For the avoidance of doubt, none of these conclusions are of any assistance to Mr Braun in relation to the arch and recessed cupboard. It is rightly irrelevant to the conclusions of the Inspector that the recesses, once opened up, could again be concealed from view by putting large bookcases in front of them.
67. It will be apparent from what I have said that Mr Braun's contention that works of repair did not need listed building consent depends on what is being repaired and how. It is not even a useful generality, let alone an axiom.

PPG 15

68. Mr Braun submitted that the Inspector had misinterpreted or ignored passages in PPG 15 "Planning and the Historic Environment" dealing with the interiors of listed buildings. He placed particular reliance on a passage in paragraph C63 "Interior paintwork and decoration" which states:

"Although strict adherence to historical forms is not normally a requirement in buildings whose interiors are of a "private" rather than a "museum" character, the use of historically appropriate decoration can greatly enhance most listed buildings."

69. Mr Braun submitted that this showed that the Inspector had adopted far too rigid or purist an approach to the interior of his house and its décor.
70. I consider that Mr Braun has taken the extract out of context, not just of paragraph C63 which deals only with paintwork and similar decoration like wallpaper rather than the range of features which this case concerns, but also out of context of the whole section of PPG 15 on interiors, which emphasises the importance of interior features. Indeed paragraph C 63 puts emphasis on features of décor and it is clear that the passage relied on does not offer any encouragement to the removal of wainscoting or skirting boards.
71. It may be that the Inspector should have given reasons for rejecting Mr Braun's submissions but they would only have been that Mr Braun was putting over much weight on a particular passage and ignoring the thrust of the rest by failing to appreciate the context. That possible omission involves no error of law or procedure.

Other matters

72. Mr Braun complained that the Inspector's assessment of his witnesses had been unfairly prejudiced by his mistake in paragraph 13 of his Decision Letter in which he attributes the erroneous advice as to whether listed building consent was required, to a witness rather than to a Mr Gossing who had been the adviser but who was not a witness. But be that as it may, it is clear that the Inspector was being critical of the views actually being expressed to him in written and oral evidence by the Claimant's witness. He was not devaluing correct views because of past errors; he was disagreeing with the views now expressed to him and, perhaps erroneously but not in such a way as to affect his decision or its fairness, attributing those same views to a previous adviser. This is supported by the last sentence of paragraph 13 of the Inspector's separate Decision Letter rejecting the Claimant's application for costs.
73. The Claimant also raised before the Inspector, and sought to support the point before me with new material, the alleged inconsistent actions of the Council in its approach to whether consent was necessary or should be given, as between different studios. In general, this is a not uncommon form of complaint. But even if the truth as to inconsistency is established, an Inspector has to decide the case on the merits before him as the Inspector inevitably pointed out in paragraph 53. There is no error of law.

The refusal of listed building consent

74. There were differences between the subject matter of the ground (e) appeal, that consent should be granted for the works alleged in the enforcement notice to be in breach of planning control, and the matters which were the subject of the undetermined listed building consent application. The Inspector identified them in paragraphs 16 and 17 of his Decision Letter. The renewal of services was only in the latter.
75. It is to be noted that in a number of respects the enforcement notice allegations as to a breach of listed building control were upheld, the ground (e) appeal in respect of them was dismissed, but no remedial requirements were imposed: these include the fixing of the desk and the installation of the replacement kitchen. The Inspector said:

"The ownership of a listed building brings with it responsibilities for its care, as well as liabilities under the law. The desks have damaged the walls, whereas a more appropriate choice could have prevented such damage. The water tank ceiling hole has damaged the historic ceiling, and without need. The fireplace surround has affected the character of the Studio. The Studio kitchen is out of keeping with the Studio. The strip of wood has been planted on solely because the wainscot has been removed, to mask the gap. Thus, they all harm the listed building.

None of these matters in the ground (e) appeal are to my mind items which preserve the listed building. They all seek to impose a different and unconnected style on a building of special interest, and in the process weaken its architectural and historic integrity, contrary to the thrust of national and local policy. I shall therefore not grant consent."

76. Consent on the ground (e) appeal was refused in fact for every single item alleged in the corrected enforcement notice, including the fixing of the desk to the wall, and was refused for all those items for which consent application had been made.
77. The Inspector refused the consent application, not merely because of the strong adverse view he had formed on the merits but also because of the lack of necessary supporting details and drawings. He said in paragraphs 38-39, having described the purpose of the requirements for details and drawings as being to ensure "that the authority has a full understanding of the impact of the proposal on the character of the building …, :

"38. Turning to the drawings submitted for the listed building consent application. (Plans A/1 to A/9), they contain virtually no information on, for example, dimensions, materials, specifications, holes, chases, fixings, finishes, making good, or decorations. There is no information on routes of services. They do not show the present situation, only a very simplified and unclear diagram of a possible result. There is no information on why these works are considered desirable, or necessary, or justified, in terms of the preservation of the listed building, although I do not deny that they may be considered advantageous in terms of the appellant's lifestyle. However, that is not a criterion for determining the acceptability of works to listed buildings, which I have set out earlier.

39. Because of this very substantial list of omissions, and because of my concerns that damage might be caused to the listed building, without a very clear and detailed set of drawings and specifications for the works, I do not consider that I can grant consent for the works. The lack of clarity and detail on the inadequate drawings does not give me the assurance that such works would satisfactorily preserve the listed building, or its features, and they would therefore be contrary to policy."

78. Mr Braun submitted that the Inspector had ignored the willingness of the Council to see consent granted for some of the items rather than to seek an all or nothing approach to them. The Council in its Report to Committee and in its evidence had said that certain items did not "significantly adversely affect the character" of the building. Those included the kitchen fittings, and the installation of fixed furniture. He said that this showed that the Council had no objection to the grant of consent for those two items. The Council's evidence said that the kitchen fittings and fixed furniture were among those which were acceptable. He also submitted that the Inspector had ignored the Council's satisfaction with the level of detail and drawings supplied save in respect of the renewal of services. He referred to Annex B.10 of PPG 15 which states:

"The authority must always be satisfied that it has adequate information to assess the effect of proposed works on the listed building before granting consent: the extent of the work, the method to be used, and the materials involved are all important. However, section 17(2) of the Act permits authorities to impose conditions requiring the subsequent approval of specified details of the works (whether or not these had been set out in the application). This provision is not in any sense an 'outline' listed building consent: it is simply intended to speed up the consideration of applications. It avoids the need for the authority to refuse consent if it is satisfied that the remaining details can safely be left for subsequent approval; but it should never be used unless authorities are satisfied that they have enough details to assess the impact of the proposals on the building as a whole."

79. Mr Braun also pointed out that most of the items were plainly visible. He complained that after the Council had simply failed for some months to determine his application, it had concluded in his favour in a number of respects, and that the issue as to the inadequacy of the material was not raised by the Council except in respect of services. It was therefore of the order of 18 months before the extent of this problem was brought home to him in the Inspector's decision, during which time he could have been doing something about it, had he known.
80. Mr Braun did not put his argument forward as one involving procedural unfairness on the part of the Inspector, the overturning without warning of a position previously agreed with the Council. It is perfectly clear though that the Council's attitude in the Report affected the focus of his contentions at the Inquiry. Nor does he suggest that he argued for a consent in certain respects even though the works were to a degree harmful, because e.g. the need for homeowners to have certain readily removable items according to their tastes should outweigh that harm.
81. The Inspector in assessing, as he had to for himself, whether there was an adverse impact warranting the refusal of consent, was entitled to reach a more negative view than even the Council had done. However in so doing, he ought to have expressly dealt with the Council's partially differing evidence which was more sympathetic to the Claimant. He might have just said that he disagreed with it but bearing in mind the extent to which the Council's view would influence the nature of the debate and the detail, it is very surprising that he did not specifically identify the fact and extent of his rejection of it in reaching a view yet more adverse to the Claimant. Taking explicit account of that view might have tempered his own view. He ought to have explained why that degree of comfort was denied to the Claimant.
82. I recognise that in the Inspector's separate Decision on costs in paragraphs 13-17, he specifically refers to that Report; he quotes the passage which states that a number of matters were not considered adversely to affect the special character of the property, such as the kitchen fittings. He puts that in the context of his rejection of the Claimant's criticism of the Council that it could not reasonably have maintained its position that the works required listed building consent, and his conclusion that it was the Claimant and his witnesses who had failed to appreciate that any change affecting character required consent whether adverse or not. He does not attribute significance to the attitude of the Council on the merits of the kitchen and fixed furniture. Indeed in paragraph 17 of that Decision Letter, he goes out of his way to praise the Report and indeed much of it is reflected in his Decision. He does however misread it in paragraph 15 of the Costs Decision where he says that the absence of detail for the renewal of services was stated in the Report to be an example of that problem. It is in fact the only instance in respect of which that comment is made in the Report.
83. I find it difficult to understand why the Inspector, who was clearly aware of the Report, did not refer to it in relation to the merits of the kitchen units. I do not know whether he appreciated that he was in that respect differing from the Council in the light of his praise for it in paragraph 17. His error in paragraph 15 shows that he did misread it in fact. It may well be that he erroneously thought it to be irrelevant to ground (e) and the consent either because he thought that any insignificant degree of adversity warranted refusal or that the baseline for comparison was not the immediately preceding units but some condition existing in 1970 or some more appropriate units which could be envisaged.
84. However, whatever speculation there may be, I do not consider that the reference in the Costs Decision Letter to the Report is a sufficient basis for inferring that on the relevant issue he had regard to it and disagreed with it, especially in the light of his apparent agreement with it. In any event, he ought to have said why he disagreed with something to which the Claimant attached some importance, though focusing his arguments on the features in issue, and regarding those not regarded as significantly adverse as having been accepted for consent, however reluctantly.
85. The Claimant is prejudiced not merely in not knowing whether the Report in this respect was ignored, but also because if he applies for consent with all necessary details, he does not know nor does the Council whether its views in relation to the items which it thought insignificantly adverse were overlooked or rejected. To the Inspector these may be lesser items. To a householder as Mr Braun fairly pointed, uncertainty as to whether the kitchen units are vulnerable to enforcement or permitted can affect saleability and peace of mind in the home.
86. It is not difficult to understand the frustration which Mr Braun feels at the inconsistent approaches of Inspector and Council to the level of detail and drawings necessary. Again, the Inspector is not bound, however unsatisfactory it may be, by the Council's general satisfaction at the level of detail. However, in view of the Council's position, and the passage of time in relation to the interior of a private home, it is again surprising that the Inspector took the view so strongly that all the material provided was inadequate, most of which related to changes which he could see or which could have been the subject matter of a condition requiring the submission of details to reflect what existed. I do not know again whether the Inspector simply ignored the Council's position or disagreed with it. It may be that he erroneously thought, as his Costs Decision letter suggests, that it applied to items other than the services. It is strange too that given the guidance as to the need for details in order to assess impact, that the Inspector, unlike the Council, was able to reach an adverse conclusion on impact and also to conclude that the information was insufficient. The Inspector's reasoning on that ground of refusal is legally inadequate. The Claimant is thereby prejudiced.
87. The Inspector's error on the skirting board and wainscoting could have affected his view in relation to whether permission for the renewal of the skirting and the removal of the residue should be granted. The baseline is relevant to that issue as well as to ground (c), (g) and (i), and that error is a further reason for quashing his refusal of consent.

Conclusion

88. For the reasons given, I quash the section 20 decision refusing the listed building consent application and I allow the appeal against the enforcement notice.
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MR JUSTICE OUSELEY: For the reasons which I have set out in the judgment which has been handed down, the decision in relation to the listed building consent application is quashed and I allow the appeal against the enforcement notice.

Are there any other matters?

MR FORSDICK: I do not know whether Mr Braun wishes to make any applications.

MR BRAUN: Yes, I do. I would like to make two applications, one in regard to this proceeding here and one in regard to the public inquiry.

MR JUSTICE OUSELEY: You cannot make any application for costs relating to the public inquiry before me.

MR BRAUN: Yes.

MR JUSTICE OUSELEY: But you make an application for costs.

MR BRAUN: Yes, sir.

MR JUSTICE OUSELEY: Do you have a list of what those are for a litigant in person?

MR BRAUN: They are principally costs of advisory -- Mr Alan Griffiths served as a McKenzie to myself, and I also had, at the beginning of the proceedings, some advice by Denton Wilde Sapte and (inaudible).

MR JUSTICE OUSELEY: Yes.

MR FORSDICK: My Lord, 48.6.3 of the White Book is the rules on litigants in person.

MR JUSTICE OUSELEY: Thank you, Mr Forsdick. It appears that so far as Mr Griffith's assistance is concerned, that is not a recoverable cost. Legal costs which you may have incurred in relation to the conduct of these proceedings you may be able to recover, but I have no feelers and no estimates of time or costs from you in relation to Denton Wilde Sapte.

MR BRAUN: I have the invoice with me.

MR JUSTICE OUSELEY: What did they do for you?

MR BRAUN: They prepared a brief and there was a conference with Charles Whitehouse(?).

MR JUSTICE OUSELEY: Have you provided any figures for Mr Forsdick in relation to this?

MR BRAUN: No I have not. The figures for Denton Wilde Sapte, including VAT, amount to £5,200. That is including the conference --

MR JUSTICE OUSELEY: Yes. So far as your own time, have you provided any estimate of the amount of time that you have spent?

MR BRAUN: It was the District Judge --

MR JUSTICE OUSELEY: Forget the District Judge, just for the case after the decision was received by you from the Inspector. I am not interested in any costs other than those that were incurred in relation to you bringing the proceedings here.

MR BRAUN: Yes.

MR JUSTICE OUSELEY: So whatever was done as far as the District Judge is concerned, forget about. Whatever happened before the Inspector, forget about.

MR BRAUN: I spent about 60 hours on this case.

MR JUSTICE OUSELEY: 16 or 60?

MR BRAUN: 60.

MR JUSTICE OUSELEY: Mr Forsdick, I do not think this is going to be a very easy one to resolve with regard to the time that has been spent and the way in which Mr Braun is going to want to deal with it. In many ways I think the best thing is to go off for a detailed assessment.

MR FORSDICK: My Lord, I object in principle to a costs order in this case.

MR JUSTICE OUSELEY: All right.

MR FORSDICK: Which I would like to deal with first.

MR JUSTICE OUSELEY: I will hear the objection to costs.

MR FORSDICK: My Lord, could we just start with an understanding as to what the context of this challenge was. It was a bias challenge, raising points about the significance of the magistrates' court's acquittal and predicated upon the factual assertion that the premises were uninhabitable and would be so if the enforcement notice was upheld. On all of those substantive points -- and those were certainly the points that the Secretary of State understood were being brought against him -- the claimant has failed. My Lord will be well aware that where natural justice allegations are raised, including allegations of bias, the Secretary of State defends his inspectors, and quite rightly so. Witness statements are prepared and these are dealt with with a heightened degree of concern in those sorts of cases. My Lord, on all of those cases the claimant has failed, and my Lord will recall that during the hearing the way in which the specific skirting board point arose and the specific wainscotting point arose was through questioning that my Lord raised --

MR JUSTICE OUSELEY: I think that is pushing it a bit far, as I think I explained in the judgment.

MR FORSDICK: I understand that it is said in the judgment, and I accept this for the purposes of the costs application, I accept my Lord finds that in the papers there are indications that the point was being pursued, but it certainly was not pursued as a principal controversial issue in the claim form itself or in the skeleton produced by Mr Braun or in his submissions to the Inspector. His case was bias, magistrates' court's acquittal, premises uninhabitable, that was the substantive point and on all of those points I have persuaded my Lord not to quash. In those circumstances, my Lord, the rules of this court are now much more flexible than previously in relation to costs following the event.

MR JUSTICE OUSELEY: Yes.

MR FORSDICK: As my Lord will be well aware, and the court should take account as to the degree of success of a party and what could have happened if the party had restricted his submissions to the points upon which he was ultimately successful. My Lord, here we now know that Mr Braun had the advantage of a conference with counsel and yet the Secretary of State was still faced with major arguments which had no hope from day one.

Therefore, I say, as a matter of principle, it is inappropriate to make an order for costs against the Secretary of State. If that is wrong, then I say that there should be a split order with Mr Braun getting the costs of a half day judicial review, very simple judicial review, on two short points, and the Secretary of State getting his costs of much more serious issues relating to bias, uninhabitable condition of the premises and so on. Even a broad brush assessment of that shows that the consequence of that would be at least a payment being made to the Secretary of State.

My Lord, I go one stage further and say that the inappropriateness of a costs order here is stark because whilst I accept that a degree of leeway should be given to litigants in person as to how they put their case, that degree of leeway should not extend to the Secretary of State being punished for not understanding the way in which the case is being put. In those circumstances, I resist, as a matter of principle, any order for costs.

MR JUSTICE OUSELEY: Yes. Do you want to say anything about that, Mr Braun?

MR BRAUN: Yes, my Lord. We had a hearing set before the hearing with yourself and prior to that I had received (inaudible) fax from the Treasury Solicitor, the second defendant had sent me a letter which arrived also the day before because it was not stamped, so at that time the hearing was deferred, and I would like to ask for the costs for that date because at that time I made a costs application which was deferred to final judgment. Secondly, I believe, as a litigant in person, I have kept costs to a minimum. If I would have used Denton Wilde Sapte for the proceedings all along, I had costs of £4,500 after the second conference, we would now be talking about a very significant amount indeed. (inaudible) more needs to be available to people. It would have not been possible for me to proceed with this matter continuing to use counsel, given the cost of the matter.

MR JUSTICE OUSELEY: Explain to me this deferred day. I have no recollection at all of seeing a deferred day. Did you turn up to make a permission application in relation to the enforcement notice?

MR BRAUN: Yes.

MR JUSTICE OUSELEY: That was deferred to the substantive hearing?

MR BRAUN: On that day I made an application, because I had received (inaudible) material just prior to the hearing, and not three weeks.

MR JUSTICE OUSELEY: You were granted --

MR BRAUN: An adjournment.

MR JUSTICE OUSELEY: What was the adjournment that was granted?

MR BRAUN: The adjournment was so that I had three weeks to read the materials and prepare myself.

MR JUSTICE OUSELEY: For the first hearing before, was it, Richards J?

MR FORSDICK: If I could explain, my Lord. The position was there was a hearing before Harrison J, I cannot quite recall the true ambit of that hearing, whether it was a full substantive hearing and 288 as well. My skeleton argument for that was late. I resisted an adjournment on the basis that all my skeleton argument said was what was in the Inspector's decision letter. Harrison J granted an adjournment, saying that a litigant in person ought to be given more time. I then made an application for the costs of the adjournment on the basis that there was no need for an adjournment, having the relevant documents, and I asked that that be reserved, that application for costs be reserved to see whether or not anything had come out of the woodwork as a result of my skeleton. In fact, nothing did come out of the woodwork as a result of my skeleton, so, if anything, this point goes to the submissions I have already made, that the Secretary of State has been put in a position where a litigant in person has pushed at every opportunity on points that do not get him anywhere, and there was one point that the Secretary of State did not understand to be taken.

MR BRAUN: My Lord, at the time of the first hearing Mr Forsdick said that he was ill and therefore could not hand in the document --

MR JUSTICE OUSELEY: That was his reason for being late with the skeleton.

MR BRAUN: I received it the day before, the night before at about 8 o'clock or something. I had no time to prepare.

MR JUSTICE OUSELEY: What Mr Forsdick is saying is that, in reality, you gained nothing from his skeleton. Although he had to produce one, in fact there was nothing in there that you would not have been aware of from reading the material that was already before the court in the form of the decision letters and the witness statements, so he was really just drawing the threads of those together.

MR BRAUN: Guidelines for this court call for a three week notice period.

MR JUSTICE OUSELEY: Yes. You may have been guided to look at it, but in fact did you gain anything from the delay? He says, no. What do you think you gained from the delay?

MR BRAUN: Mr Forsdick also on the day of the hearing, not prior (inaudible) presented me with two cases, 40 pages long, which he wanted to refer to. I received them at five to ten prior to the hearing. I think Judge Harris(sic) felt that I was prejudiced by this and objected.

MR JUSTICE OUSELEY: He says he adjourned Mr Forsdick's costs application, but you did not make one; is that right?

MR BRAUN: I did make one.

MR JUSTICE OUSELEY: Costs reserved.

MR BRAUN: At the end of the day it was me, it was not to my fault that the hearing was adjourned, but to the fault of the Secretary of State.

MR JUSTICE OUSELEY: Anything else, Mr Braun?

MR BRAUN: I would like to add that I have been guided by literature on the subject.

MR JUSTICE OUSELEY: Yes, I am just dealing with the principle. Mr Forsdick says he should not pay any costs, so just the principle, not that he incurred costs.

MR BRAUN: Sorry to reply as a layman, but as a layman it seems to me that I have won the hearing and that I therefore should have costs incurred in that time. I have now had to be in court seven times on this matter and I have won every time. The District Judge gave me my costs and I was under the impression that I would receive them today as well.

I would also like to make the point that points made on bias et cetera were not rejected outright by yourself but were put aside as not substantially proved. I still assert that the bias was there.

MR JUSTICE OUSELEY: Thank you, Mr Braun.

I am going to make an order for costs in this matter. I am going to award Mr Braun 25 per cent of his costs, into which I will roll up the costs of the deferred day.

Mr Forsdick challenges the award at all of any sum in costs because he says Mr Braun has lost on the three major points which the Secretary of State thought were being raised, and in particular lost on the assertion of bias, which naturally causes the Secretary of State to incur investigating costs and witness statement costs from not just in this case the Inspector, but also from other people. Indeed, Mr Forsdick suggests that there could be a costs order of some substance made in the Secretary of State's favour against Mr Braun with a comparatively small costs order the other way in respect of the limited matters upon which Mr Braun succeeded.

I take the view that the case which Mr Braun raised in relation to bias should not have been raised, and there is some legitimacy in the assertion that costs have unjustifiably been put to the Secretary of State, but rather than have a sequence of costs orders, one in favour of the Secretary of State and one in favour of Mr Braun, I consider that depriving Mr Braun of all but a quarter of his costs properly reflects the fact that he has succeeded on some points raised, and it would not be normal to deprive somebody of their costs if in the course of their argument they raised one or two matters which did not take particular time, for example a general habitability point, and which they fail on. So I reject Mr Forsdick's submissions that there should be no order for costs, and I regard a 25 per cent costs order as a proper reflection of the costs that were incurred.

I have real reservations about the extent to which Mr Braun has in fact saved himself time and money through proceeding in the way he has done, but so far as the costs of the deferred day are concerned, at this distance, where the skeleton comes in late, it may very well be that an advocate would have had no difficulty at all in picking up the skeleton and recognising that no new point was raised in it that they could not have readily picked up from the papers that had already been provided, but, nonetheless, Mr Braun is a litigant in person, and litigants in person do get some leeway from the court, and I think that for Harrison J to grant an adjournment on the grounds that the litigant might be prejudiced means that the Secretary of State's side has to bear some responsibility for the costs.

So that leads me to my conclusion that the total costs incurred by Mr Braun, subject to assessment, should be added together and one quarter of them paid by the Secretary of State.

So far as the assessment of those costs is concerned, having heard just a little of what Mr Braun seeks to claim in relation to legal assistance and his time spent, it seems to me that the matter can only justifiably be dealt with by way of a detailed assessment, and the matter can go off for detailed assessment.

Any other matters?

MR FORSDICK: My Lord, there is an application under section 288 for permission to appeal. I have to apply to the Court of Appeal for permission, but my Lord will recall that during argument I, on a number of occasions, suggested that the way in which my Lord was putting the points to me was a counsel of perfection, and, in my respectful submission, the way in which my Lord's judgment overall, but also on the section 288 point, is a counsel of perfection in the sense that the Secretary of State, on a 288 application, is criticised for not dealing with a slight difference of view between himself and the Council on the need for plans. My Lord, on that issue, in my respectful submission, it is quite clear from the decision letter that the Inspector did not come to a balancing exercise, oh, I just think I might need plans here, he came to a clear view (paragraph 38 of the decision letter) that there was a need for plans in order to assess harm.

MR JUSTICE OUSELEY: I do not understand how he came to that view in the light of his ability to see what there was.

MR FORSDICK: I apologise, my Lord --

MR JUSTICE OUSELEY: I do not understand how the Inspector reached that decision in the light of what he could see. He cannot one and the same time say, I can assess harm and I need plans to assess it except in respect of what he cannot see.

MR FORSDICK: Well, my Lord, the position in relation to the services on the first floor level kitchen, for example, is that the question before him was, if these works had not happened would permission have been granted to, for example, install services, behind, obviously behind, because, by definition, services are behind walls, and so on. The question for him on a retrospective application for permission is just the same, would he have granted permission in those circumstances, and, in my respectful submission, the fact that he has no idea on the front building, standing in the kitchen and looking out, what is behind, does not effect the basic proposition, which is to say, well, in order to determine whether I would allow this in the first place I would want to see the plans as to what is going on behind.

MR JUSTICE OUSELEY: Absolutely nothing could possibly be granted permission because he did not have a plan, for example, of a desk being fixed to a wall. If anybody was engaged in a counsel of perfection, it was this Inspector. He requires perfection of Mr Braun and his advisers. He went through it in a very careful way, in the way he had to, looking at the individual items. I entirely accept that Mr Braun's arguments before him would not necessarily have been as focused as they ought to have been, and there was a lot of clutter and the Inspector had to deal with that, but nonetheless if he is going through it, as he has to, in what I regarded as a step by step way, he had to focus on the individual points, he just did not. He did not focus on the difference between what he could see --

MR FORSDICK: Yes.

MR JUSTICE OUSELEY: -- when he came to the plans and what he could not see.

MR FORSDICK: But, my Lord, again, in my respectful submission, I will not press it further, with hindsight -- at the time he was perfectly entitled to say, taking a broad brush view of these matters, and he does not need to go through each and every point and say, no, I need a plan precisely on that, he can take a broad brush view that he is not satisfied that on an application for planning permission he would have granted those matters on the plan without more detailed plans.

MR JUSTICE OUSELEY: I appreciate it is a limited way here, but I do not think that is arguable.

MR FORSDICK: Can I then raise one further point, that is that the way in which my Lord gets to that argument in, I think it is paragraph 81 of the judgment, is after having considered all the matters as to where the Inspector has been coming from all the way through.

MR JUSTICE OUSELEY: Yes.

MR FORSDICK: And whilst I accept that section 289 matters are a matter for the Court of Appeal to decide, in my respectful submission, when one reads the judgment as a whole, the test that my Lord has adopted is simply too high, it is putting too high a burden on the Secretary of State's inspector, at each and every stage of the analysis it is saying he should have gone further or he should have explained that more or he should have done that in a different way. In my respectful submission, that is not what the law requires of inspectors, it is a counsel of perfection, and that counsel of perfection, in my respectful submission, has impacted upon the way in which my Lord has dealt with the 288 application. Unless I can assist my Lord further.

MR JUSTICE OUSELEY: No, I am not going to grant leave. I regard the decision specifically in relation to the plans as clearly wrong. This was a case in which the Inspector discussed having a split decision. It is quite clear that there were certain things which Mr Braun regarded as colloquially "in the bag" and which were important to him, and where the Inspector adopted an approach in which he could both assess harm and claim that he did not have the material before him upon which to grant permission, even a conditional permission, and at the same time not require items to be removed. I regard that as an inconsistent and unfair position for him to have adopted.

I also take the view, in relation to the underlying point, that the judgment is a counsel of perfection as failing to have regard to the fact that the Inspector dealing with the appellant undoubtedly was faced with a lot of clutter in the (inaudible), but the Inspector himself was adopting an approach of looking at, as he had to, the individual items in the enforcement notice, and although there were a lot of items in the enforcement notice, he had to go through the same intellectual process in relation to each one, each one of which required him to ask himself, what is the position in relation to this item in terms of its past impact on character, and what is the evidence I have in relation to it, and if he has evidence in relation to it he has to have regard to it. The fact that it may be that he has a lot of clutter does not excuse him from the task of looking at the evidence he has, rather than just saying, there is no evidence. That is the basic problem: the Inspector said there was no evidence when there plainly was. So the counsel of perfection point I do not accept. I simply required the Inspector to deal with the evidence he had.

Thank you very much.