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
		6th August 2002

1. MR JUSTICE RICHARDS: The applications before me today arise in the context of a claim under section 288 of the Town and Country Planning Act 1990, challenging a decision dated 30th April 2002 of an inspector appointed by the Secretary of State.
2. The present applications are to strike out that claim for failure to comply with the time limit as to service or to strike it out as an abuse of process of the court, and/or for summary judgment dismissing the claim on the basis that it has no real prospect of success.
3. The applications are made by the local planning authority, Ashford Borough Council, which is the first defendant in the proceedings. It is supported by the Secretary of State, the second defendant, although the Secretary of State has not thought it necessary to be represented at this hearing. The council has been represented by Mr Lewis.
4. The first matter I should deal with is that there is no appearance by or on behalf of the claimant, Manticore Holdings Limited. I shall say a little more about Manticore in due course. At this stage, however, I should indicate that the court received yesterday (5th August) a letter from a Mr Newfield seeking an adjournment of today's hearing. Mr Newfield claims to be the appointed agent on behalf of Manticore. He it was who made a witness statement in support of the section 288 claim. He has featured in the earlier history of this matter as well in ways that I shall come back to.
5. Mr Newfield does not claim to be a director or employee of Manticore. There is indeed no evidence before the court, and the council has been unable to find any evidence, about the directors or employees of Manticore. What this means is that Mr Newfield would not be entitled to act as advocate for Manticore pursuant to rule 39.6, even if he had sought to do so. He has not so sought. What he says in his letter is that he had intended a firm of solicitors, Messrs Holden & Co, to appear for Manticore in these proceedings. He states that Mr Holden, of that firm, had been instructed to act and the documents had been sent to him in connection with today's hearing but that the solicitors had failed to respond and had failed to prepare the case. In the circumstances, it is said, through no fault of the company it has been placed in an impossible position without representation for this hearing. That is the basis upon which the adjournment was sought.
6. I do not regard those representations as having sufficient weight or evidential support to justify any adjournment. There is in fact nobody present in court today to seek an adjournment on behalf of Manticore. Nonetheless, I have considered, in the light of the letter of 5th August, whether it is right to proceed. I am satisfied it is. Manticore has had ample opportunity in which to instruct a solicitor to act on its behalf. There is no witness statement or affidavit to support what is said in Mr Newfield's letter as to attempts having been made to instruct Messrs Holden & Co. I am informed by the Administrative Court Office that Mr Holden himself telephoned the office yesterday afternoon, to state that he was not instructed and had never been instructed to appear in these proceedings on Manticore's behalf. There is no solicitor on the record as acting for the company. My concerns as to the correctness of what is stated in the letter of 5th August are heightened by the fact that something not dissimilar seems to have occurred previously, in relation to other related proceedings in Canterbury County Court, to which I shall again return. In connection with those proceedings Mr Newfield, then acting as an agent for a company called Elmsbourne Security Limited, stated that he had been let down by solicitors and, at a late stage, requested an adjournment of those proceedings.
7. Having regard to the various matters to which I have referred, and bearing in mind that the reason for the present applications by the council is a degree of urgency in the case, I have come to the firm conclusion that the application should be allowed to proceed today.
8. I turn to consider the background to the present case. It concerns the construction of a rear extension at 22 Sprotlands Avenue, Ashford. On 30th June 1998 the council served enforcement and stop notices relating to the construction of that extension, which did not have planning permission.
9. On 3rd August 1998, an appeal against the enforcement notice was lodged by Miss Charlotte Foad, who it appears occupied the premises under an informal arrangement, the precise nature of which was and is unclear but which has endured under successive changes of ownership of the property.
10. On 20th April 1999, before the determination of the enforcement notice appeal, the property at 22 Sprotlands Avenue was acquired by Elmsbourne Security Services Limited, to which I have already referred. (I am uncertain whether it is Elmsbourne Security Limited or Elmsbourne Security Services Limited but nothing turns on that). Elmsbourne had been incorporated in March 1999 and Miss Foad became a director of it on 14th April 1999, just before the company acquired the property. She subsequently, in December 2000, resigned as director. In the same month an international business company registered in Belize, the name of which is Pan Pacific Corporation SA, was appointed a director.
11. The enforcement notice appeal by Miss Foad was dismissed by the Secretary of State's inspector on 2nd July 1999. That brought to an end the first stage in what proved to be a lengthy saga.
12. On 28th November 2000 the council commenced injunction proceedings against Elmsbourne under section 187B of the 1990 Act, requiring demolition of the unlawful extension. Before that application for an injunction was determined, Elmsbourne submitted an application for planning permission in respect of the extension. That application was dated 23rd February 2001. It was refused by the council on 24th May 2001. In the meantime, on 26th March 2001, His Honour Judge Poulton, at Canterbury Crown Court, granted the council the injunction sought against Elmsbourne requiring demolition of the extension by 31st July 2001.
13. A day before the expiry for time for compliance with that order, the property was acquired from Elmsbourne by the claimant in the present proceedings, Manticore Holdings Limited. That fact was not known at the time and emerged, I think, only in the course of the later planning appeal, to which I will come.
14. Manticore is an international business company registered in the Dominican Republic. Despite efforts that have been made, virtually nothing is known about it.
15. The refusal of planning permission by the council was appealed by Elmsbourne, the appeal being dated 31st October 2001. A public enquiry into that appeal was held on 4th and 5th March 2002. At that enquiry Mr Newfield acted as agent or as an advocate for Elmsbourne. The appeal was eventually dismissed on 30th April 2002. That is the decision challenged by Manticore under section 288 of the 1990 Act.
16. Proceedings continued in the County Court while that appeal was in progress. On 4th October 2001 His Honour Judge Poulton granted the council an order, appointing the council in place of Elmsbourne to carry out the works required to achieve compliance with the court's previous order. That was the occasion of the letter by Mr Newfield requesting an adjournment on the grounds that solicitors had let down the company in that case, Elmsbourne.
17. The council, having been put in a position, where it could proceed to secure demolition, gave notices in October to Elmsbourne and Miss Foad requiring that the property be vacated by 8th January 2002. In November, an application by Mr Newfield on behalf of Elmsbourne for permission to appeal the order of 4th October was struck out. On 8th January 2002, when the council attempted to gain access to the property, turning up together with police and builders, it was not possible to obtain such access or, therefore, to proceed with the demolition work.
18. On 11th April 2002, an application to commit Miss Foad for breach, or aiding and abetting the breach, of the order of 4th October 2001, was adjourned by the County Court, given the pending decision on the planning appeal. It is right to say that, on that occasion, Manticore appeared and was represented by Mr Holden of Messrs Holden & Co. It applied to be joined in the County Court proceedings, but that application was deferred pending better evidence as to the nature of the company and the identity of its directors. On 13th May 2002, the application to commit Miss Foad was again adjourned in her absence. Mr Holden attended on behalf of Manticore but no evidence was filed by that company.
19. On 24th May 2002, the County Court proceedings were finally resolved by the giving of an undertaking to the court by Miss Foad to vacate the property on 2nd September 2002, so as to facilitate demolition of the unlawful extension. On that occasion there was no appearance by Manticore.
20. So far as the County Court proceedings are concerned, therefore, the position is that the way has been cleared for the council to gain access to the property on 2nd September or immediately thereafter, so as to carry out the relevant works. The council is understandably anxious to move quickly in September in order to bring to an end the breach of the planning regime that has been on going since June 1998.
21. What now stands in its path is the section 288 application by Manticore challenging the appeal decision of 30th April 2002. By today's applications the council seeks to dispose of that section 288 claim, by any one or more of the three routes to which I have referred at the outset of this judgment.
22. The first ground of application is that there has been a failure to comply with rules as to service of the section 288 claim and that the court should exercise its power under CPR rule 3.4(2)(c) to strike out the claim for that failure. The rule in question is in CPR schedule 1 RSC 94 rule 2, that is to say the preserved rules of the Supreme Court that still have effect under the CPR regime. RSC 94 rule 2, paragraph 1, provides:

"The claim form must be filed at the Crown Office [now the Administrative Court Office] and served within the time limited by the relevant enactment for making the application."

In this case a time of 6 weeks was laid down by the 1990 Act for making the application. The claim was made, in the sense of being filed in the Administrative Court Office, just within the six week period, but the claim was not served on the council until two weeks later, 24th June. In that way it was served in breach of the requirement of the rule.

23. It seems to me, and Mr Lewis, for the council, accepted, that the question of striking out for breach of that rule or failure to comply with that rule could not sensibly be considered without examining the substantive merits of the section 288 claim. Mr Lewis referred me, for example, to a decision of Lightman J in Commissioners of Custom & Excise v Eastwood Care Homes, a decision of the 18th January 2000, in CO/482/99, in which it is stated in paragraph 8 that in deciding whether an extension of time is to be granted, each application must be viewed by reference to the criterion of justice and taking into account a number of other factors, in particular, the length of delay, the explanation for the delay, the prejudice occasioned by the delay, the merits of the appeal, the effect of delay on public administration and the importance of complying with time limits, as well as the resources of the parties. Plainly, the merits of the claim are an important element in that list. It is because the third of the bases upon which the council seeks to dispose of the section 288 claim takes one four-square into the merits that I have thought it better to concentrate on that third ground and to come back to this first ground, that is to say strike out for non-compliance with the rules, only if and to the extent necessary in the light of my consideration of that third ground.
24. The second ground advanced by Mr Lewis is that the claim should be struck out as an abuse of process under CPR rule 3.4(2)(b). What is submitted is that the proceedings are hopeless and a waste of the court's time and that this is effectively the fifth occasion on which persons interested in the property are seeking to avoid the lawful requirement to remedy a breach of planning control. I have referred already to the lengthy history that underlies that submission. In essence, what is contended is that that present claim is simply a delaying tactic. The supporting evidence refers, in some detail, to the nature and status of Elmsbourne and of Manticore and of persons connected with them, including Mr Newfield himself. The suggestion is made that Manticore is just a shell or a mask to disguise the personalties behind persistent attempts by the same basic group of people to frustrate the council's objective of having the breach of planning control at the property remedied once and for all.
25. Again I think unnecessary to deal in detail with this ground, or at least better that I should first consider the third ground, because this ground is really premised upon the absence of substance to the section 288 claim. I would observe only that there is much force in the analysis in the evidence, concerning the companies and personalities involved in this history.
26. If the section 288 claim had substantive merit, however, I doubt whether I would regard the matters advanced as sufficient to justify treating the present claim as an abuse of process. There is plainly a very unsatisfactory and somewhat disturbing history to this case involving a degree of manoeuvring so as to place repeated obstacles in the path of the council in its legitimate attempt to enforce the planning legislation. But, at the end of the day, if the decision now under the challenge, the decision of 30th April 2002, was an arguably unlawful decision, I would be reluctant to prevent Manticore from pursuing its claim to have the decision quashed.
27. The third ground advanced by Mr Lewis, for the council, is that the section 288 claim has no real prospect of success and the court should give summary judgment against the claimant for that reason. By way of general observation, it seems to me that in section 288 cases one would expect the summary judgment procedure in CPR rule 24.2 to be used very rarely. In general it is likely to be better to seek an expedited final hearing.
28. There is, however, no reason why the procedure should not be used in an appropriate case and, having regard to the procedural history and the importance of an early determination so as to allow the council to proceed with the demolition work in September, if the challenge to the decision of 30th April is unjustified I think it right to entertain the application for summary judgment. In any event, the application is before the court and it would be to cause unnecessary cost and delay to refuse to deal with it now, but to require the case to be dealt with by way of an expedited substantive hearing.
29. For the purposes of understanding the application for summary judgment it is necessary to refer, briefly, to the inspector's decision and then to go through each of the grounds of challenge that Manticore has advanced in relation to that decision.
30. The decision is a very detailed and careful decision. The inspector identified the main issue at paragraph 9 as being whether there is any material change in circumstances that would indicate a different decision to that taken in the previous enforcement appeal, that is to say in the previous decision of 2nd July 1999 in which the previous inspector dismissed the appeal against the enforcement notice.
31. In the decision of 30th April the inspector goes on to refer to relevant policies of the Ashford Borough local plan which was adopted in June 2000. She states that policy DP2 sets out a general requirement for all new development proposals, and policy EN2 resists proposals in or close to residential areas that are likely to damage significantly people's enjoyment of their homes.
32. In paragraph 12, she states that the following changes in circumstances were argued at the enquiry: the formal adoption of the policies in the Ashford borough local plan, the evidence on sunlight and daylight that was not before the previous inspector, other extensions that have been built in the immediate area, change in the personal circumstances of Miss Foad and her family as occupants of the house, and the coming into effect of the Human Rights Act. She dealt with each of those topics in sequence in her decision and concluded at paragraph 50 that there had been changes in circumstance since the previous decision, but that there was nothing sufficiently decisive to persuade her that a different decision was warranted. Accordingly she dismissed the appeal.
33. The grounds of challenge are set out briefly in Manticore's claim form and are, to some extent, expanded in a witness statement of Mr Newfield that was served in support of the claim.
34. The first ground is that the inspector failed to apply planning policies DP2 and EN1 properly or at all. One has only to read the decision to see that, in the general terms in which that is expressed, the ground is untenable. The inspector dealt with policies DP2 and EN2 in considerable detail, at paragraphs 13 and following of the decision. What she went on to say about the issues of sunlight and daylight and a further issue concerning the overbearing impact of the extension on the adjoining property arose out of the wording of the two policies. After a detailed analysis of those matters, she concluded that the development conflicted with the objectives of the policies. It is unnecessary for me to set out the lengthy passages in which she dealt with the policies. I see nothing in those passages to give rise to any arguable case of legal error on her part.
35. Mr Newfield, at paragraph 8 of his witness statement, contends that the policies did not apply to the appeal site, because they were adopted in 2000 whereas the extension was erected in or about 1998 and the policies therefore did not have the force of law at the time when the extension was erected. He points out that what was sought was retrospective consent in respect of that development. That is plainly wrong. The inspector was required to give effect to the development plan as it was at the time when she was considering the matter. Section 70(2), and of course section 54A of the 1999 Act, so required. There is nothing in the point that the relevant policies did not exist at an earlier date. It should be noted, in any event, that it would appear from paragraph 14 of the decision that the wording of the policies is substantially the same as that considered in draft form at the earlier enforcement notice appeal, no doubt considered and given such weight as was appropriate by the inspector in that earlier appeal.
36. The other point raised in this connection by Mr Newfield is the assertion that it was accepted at the public enquiry that the policies were largely satisfied by the extension and that the remaining objection as to the visual impact of the building was a purely subjective test. It is submitted that it was de minimis. There is a strong factual dispute in respect of the assertion that it was accepted at the public enquiry that the policies were largely satisfied by the extension. That is not material, however, because it was, in any event, for the inspector to form her own judgment on this matter. That is what she did and, in my view, the lawfulness of her approach cannot sensibly be questioned.
37. The second ground of challenge is that the inspector failed to take into account the local support for the application for planning permission. In Mr Newfield's evidence, both in his first and in his second witness statement, which I have also taken into account, the main focus is on a letter from the occupiers of No 24 Sprotlands Avenue. It is said that the inspector wrongly failed to treat that as a letter of support. The inspector, in fact, dealt with the letter at paragraph 25 of her decision and she said that no objection had been received from the occupants of No 24 but she was unable to assume that absence of objection should be taken to mean that the occupants supported the appeal application. In the event, she went on to say at paragraph 25 that the absence of objection is not an overriding factor because she, the inspector, had to consider whether the development unacceptably affected amenities and the existing use of land and buildings that ought to be protected in the public interest.
38. In so far as it is suggested that she misread a letter of 24th of February 2002 from the occupiers of No 24, as amounting to the absence of objection rather than positive support, the suggestion is, in my view, untenable. I have read the letter. It is plainly not a positive letter of support. In any event, having regard to the way in which the inspector rightly went on to look at the issues of public interest, nothing could possibly turn on whether it is to be categorised as neutral or as positive support.
39. So far as other representations are concerned, the inspector referred specifically, at the end of paragraph 25, to a letter from the occupiers at No 20. There were certain other representations to which she did not make express reference, although they are encompassed within the general statement of paragraph 50 that she has had regard to all other matters raised as well as the points specifically covered in her reasons. There is no basis upon which one could reach the conclusion that she failed to take any material representation into account. Nothing in the claim form or in the evidence relied on in support of the claim leads me to the view that there is any real prospect of success in relation to this issue.
40. The third ground is that the inspector failed to apply the evidence given by an expert witness on sunlight and daylight. Mr Newfield, in his witness statement, says she failed to take expert evidence into account and he refers to the substance of some of that evidence.
41. That, again, is plainly untenable. The inspector dealt at very considerable length with the expert evidence on sunlight and daylight. She considered it carefully. No arguable error has been identified in her analysis of it. The general assertion that she failed to take into account or to apply it is, as I have said, plainly unsustainable. There is nothing in this ground.
42. I would add that, in addition to the question of sunlight and daylight, the inspector considered - and lawfully considered - the question of the overshadowing or overbearing effect of the extension on the neighbouring property; and it was in the light of her conclusions on all these issues that she reached the view that the development was not in accordance with the development plan, being inconsistent with DP2 and EN2.
43. The fourth ground is that the inspector failed to consider an identical extension in the area, for which the council had granted planning permission. Mr Newfield says that she ignored this and preferred to refer to an identical extension at "No 9 (or thereabouts) Northumberland Avenue".
44. Leaving aside the fact that Mr Newfield does not seem to be able to identify with precision the extension that it is alleged the inspector failed to take into account, I can concentrate on the general points sufficiently to dispose of this ground. The inspector states in paragraph 28 that she had been provided with a list of extensions in the immediate area that the owner witness wished her to view. She made a careful inspection of the roads in question on a site visit and noted that a number of houses had been extended to the side and rear although she did not see a two storey rear extension of the width and depth of that at No 22, nor did she know the full history of the extensions. She expressed the view that the presence of those extensions did not persuade her that they provided any good reason to retain the extension at No 22, given the harm that she had identified that it caused. That reasoning is clear. It shows she did have proper regard to other extensions that were identified in the proceedings. There is no basis to ground 4.
45. Ground 5 asserts that the inspector incorrectly applied the legal criteria of the Human Rights Act 1998 and acted in conflict with decisions on similar facts. The true position is that the inspector examined the issues arising under the Human Rights Act at length. She looked at relevant authorities, including the case of South Buckinghamshire District Council v Porter which had been drawn to her attention. She had due regard to the fact that the dismissal of the appeal would result in an interference with the rights of Miss Foad to home and private family life, and possibly the right to peace and enjoyment of the property. She considered that the refusal of planning permission was necessary in a democratic society and in furtherance of the legitimate aim of planning controls. She formed the view that it did not place a disproportionate burden on Miss Foad or her family and concluded that the dismissal of the appeal would not result in a violation of Article 8. In going through that process she formed, for herself, an exercise that had been carried out by the council in its own consideration of the case, and that was separately carried out by His Honour Judge Poulton in the injunction proceedings. In my view, it is plain that she dealt with the Article 8 issues fully and properly.
46. Mr Newfield refers in his first witness statement to an alleged failure to take into account the decision in the case of New Forest District Council v Duffy. As to that, the inspector refers in terms to that decision in paragraph 48. It was an inspector's decision that was subsequently challenged in the High Court, and in relation to which the Secretary of State submitted to judgment. The inspector properly concluded that it could not provide any guidance or precedent in the case that she was considering. Again the contention that she failed to take the decision into account is unarguable.
47. Ground 6 is a contention that the inspector failed to apply the personal medical circumstances of the occupier and/or hardship caused correctly. The reference is to the circumstances of Miss Foad and her young child. Those circumstances are dealt with in depth at paragraphs 29 and following of the decision. Reference is made to the fact that Miss Foad had, during an earlier pregnancy, developed an extensive deep vein thrombosis and required lifelong anti- coagulant medication. She needed special furniture and facilities, including a special bed. She also said it would be helpful to have more space around the bed and a larger than normal size bath and shower. These and other aspects of the evidence were referred to and taken into account by the inspector. Although she expressed surprise that Miss Foad's personal circumstances had not been raised in the previous appeal, she was willing to treat them as a change in circumstances that needed to be examined. She accepted that personal circumstances can be a material planning consideration to be weighed in the balance. She stated that, from what she had seen on her site visit and heard in evidence, she was not satisfied that the personal circumstances of Miss Foad and the family were so weighty as to justify an exception to policy. She accepted that living might be more difficult if the extension were to be demolished but took the view that it would not be insuperable.
48. As to temporary dislocation during the works, she took that into account but said that there was nothing to suggest that it would be impossible for Miss Foad and her daughter to move out for the duration of works, nor was she convinced that there would be no alternative temporary accommodation available for them in the Ashford area.
49. She concluded, in paragraph 40, by pointing to the fact that Miss Foad's position was that of a tenancy (the exact basis of the tenancy was one that she had been not able to clarify), whereas the extension would remain long after the personal circumstances of Miss Foad had ceased to be material. Accordingly the inspector was not satisfied that the particular personal circumstances of the present occupant were sufficient to override the other material planning considerations; and the conflict with development plan policy, she found, weighed heavily against the proposal. All of that involves a very thorough and proper examination of the personal circumstances that were relied on.
50. In his witness statements, Mr Newfield refers to the fact that Miss Foad has subsequently been registered disabled. That is not something that can be relied on as a matter of principle as a ground of challenge to the decision; it postdated the decision and was not raised before the inspector.
51. In any event, there is nothing in the material put forward that is capable of advancing matters because it has not been shown that her disabled status adds materially or at all to her personal requirements in relation to the house or furniture or equipment as dealt with by the inspector.
52. The seventh and final ground is that the inspector failed to consider the evidence at the public enquiry that the proposed demolition of the extension would render the property uninhabitable for the occupier and her family due to her disabled condition and the need for specially adapted accommodation, which it is said could not be made available in the property without the extension.
53. As to that, the inspector stated in terms at paragraph 39 that it had been suggested that demolition of the extension might lead it to be structurally unsound and uninhabitable, but she had heard no credible evidence in support from the appellant company's technical witnesses. So far as concerns the other matters raised they were covered fully in her examination of the personal circumstances of Miss Foad and her family. Again, therefore, there is nothing in the ground.
54. I have dealt with each of the grounds relatively fully but without going into the detail of the inspector's reasoning on each. My examination of the grounds and supporting evidence, on the one hand, and the inspector's actual decision on the other hand, lead me to the firm conclusion that there is no substance in the section 288 claim. In my judgment, this is indeed a claim that has no real prospect of success. Accordingly, I take the view that this is a case where I ought to give summary judgment in favour of the council and against the claimant as applied for.
55. Having reached that view in relation to the summary judgment application, I do not think it necessary to go back into the other two grounds of application that were advanced by Mr Lewis. They are strengthened by the conclusion that I have reached on the summary judgment application, but it is not necessary to rely on them as separate matters. If I am right on the summary judgment application, that is a sufficient basis for disposing of this case. If I am wrong on the summary judgment application, that would mean that any conclusions I expressed in relation to the other grounds advanced would be based on a false premise. Accordingly, I will confine myself to the summary judgment application. For the reasons stated in the relation to it, I allow that application and will dismiss this section 288 claim.
56. MR LEWIS: I am obliged to your Lordship and ask your Lordship formally so to order.
57. My Lord, there is a costs schedule which has been produced by my instructing solicitors I would ask your Lordship to consider on the basis of summary assessment of today's hearing. Is that a document that has reached you?
58. MR JUSTICE RICHARDS: I have not seen it as far as I am aware.
59. MR LEWIS: I have a copy I can hand up. It is set out in standard form and claimed a sum in total of £5,412.90.
60. My Lord, I am informed from behind me that it does not include any sum to reflect the efforts and endeavours of the solicitors at Ashford, it is only the costs incurred as through the London agent, Sharp Pritchard. It does cover my fees. Company recovered as I understand it.
61. MR JUSTICE RICHARDS: Yes, two and a half hours is pretty much the hearing length. So I see no reason why I should not allow them. In principle you are entitled to your costs. There will be an order that the claimant pay the council's costs summarily assessed in the sum of £5,412. 90. I am sorry I took a long time over the judgment. I thought it better to deal with it fully. It may well be that the claimant would be seeking a transcript in due course.
______________________ PROCEEDINGS

Tuesday 6th August 2002

62. MR LEWIS: May I please my Lord. In this matter I appear for the applicant which is Ashford Borough Council. Nobody appears on the other side. That is a matter that I shall have to come back to in a moment or two.
63. This is my application for the Borough Council to strike out Manticore Holdings' claim or application which is an application under section 288 of the Town and Country Planning Act 1990.
64. My Lord, it is a three pronged application. I put in a skeleton argument and bundle. Perhaps before we get to that, I ought to address your Lordship on the question of what the other side's position is in the matter.
65. MR JUSTICE RICHARDS: The Administrative Court Office received yesterday a faxed letter, dated yesterday, from Mr Newfield.
66. MR LEWIS: Yes my Lord. We have received a copy, I think, of that letter.
67. MR JUSTICE RICHARDS: Stating that he had been unsuccessful in getting solicitors to act, or at least he said in the letter they promised to act and then they let him down.
68. MR LEWIS: Yes my Lord (inaudible).
69. MR JUSTICE RICHARDS: In addition it is right to state that the Administrative Court Office yesterday, at 2.10 pm, received a telephone call from the firm of solicitors in question, Holden & Co, and were informed that that firm was not acting for the claimant and never had been acting for the claimant in these proceedings.
70. MR LEWIS: If I may say so, my Lord, I think that rather solves that one. We were going to say that we had made our enquiries of Mr Holden ourselves and certainly here indicated he was not acting. He did appear once or twice, as your Lordship may have seen, in County Court proceedings but that is not to say that he was ever on the record in this case still less acting.
71. MR JUSTICE RICHARDS: There is a formal application by the company or by anybody authorised to act for the company for an adjournment.
72. MR LEWIS: No, my Lord, that is correct. Mr Newfield is a (inaudible) suspended solicitor. He is the one who signed their witness statements but he has never said he is anything more than an agent acting on their behalf.
73. MR JUSTICE RICHARDS: Yes. Is Mr Newfield in Court?
74. MR LEWIS: No my Lord.
75. MR JUSTICE RICHARDS: I see. That is right, that he purported, during the public enquiry, to be an agent for Manticore.
76. MR LEWIS: That is correct my Lord. He was careful not to say - and the inspector gave him the opportunity of laying claim to any formal qualifications - but he did not refer to the fact that he is qualified as a barrister and did practice as a solicitor but is indefinitely suspended as I have said.
77. MR JUSTICE RICHARDS: In these proceedings, in his witness statement, he refers to himself as "the appointed agent" on behalf of the claimant. At no point as he put forward by the company as Director or employee.
78. MR LEWIS: No need my Lord.
79. MR JUSTICE RICHARDS: Duly authorised to represent the company pursuant to part 39 I think it is.
80. MR LEWIS: Yes my Lord, from recollection.
81. MR JUSTICE RICHARDS: I see. In those circumstances the matter can proceed.
82. MR LEWIS: I am very much obliged my Lord. There has been a court bundle prepared which I like to think looks rather more alarming than it actually is and I sought to assist the process of your Lordship finding his way around the bundle, by producing what I call an outline of submissions.
83. MR JUSTICE RICHARDS: I am grateful for that because I was not sent the court bundle and it became rapidly apparent, reading your outline submission, that there was such a bundle and enquiries were made and searches were conducted and the bundle was found.
84. MR LEWIS: I am very much relieved to hear that my Lord.
85. MR JUSTICE RICHARDS: Let me consider the position in relation to the other application before me or substantive case before me today.
(Short Pause)
86. MR LEWIS: I am grateful, my Lord. By reference to the bundle in that case and to my skeleton argument, your Lordship will be aware, as it were, this a three pronged application to strike out on the basis of failure to comply with the rules as to service, to strike out on the basis of abuse of process, and thirdly, in the alternative, for summary judgment under CPR part 24, on the basis that the claim has no real prospect of success. As one has to establish there is no other compelling reason why the case should await disposal at trial. Your Lordship may have seen, from Mr Robinson's witness statement in support of the council's application, he is a principal legal assistant with the council. He requests expedition in the alternative to the other orders. Quite frankly, having regard to the time scale, the council is concerned to have this matter finally disposed of today. That is on the basis of the submissions which I am proposing to advance.
87. My Lord, your Lordship I presume has had an opportunity of reading, at the very least, my skeleton argument.
88. MR JUSTICE RICHARDS: I have also read the witness statements, or affidavits. Witness statements in the case of Mr Robinson any way.
89. MR LEWIS: I have indicated what the time constraint is which the council is under in this case. There are injunction proceedings embarked on at the end of 2000. Those resulted in an order at the end of March 2001, whereby the rear first floor extension in issue in these proceedings was required to be torn down by the then owner of the property, Elmsbourne Security Limited. Further orders have been sought in court and granted, whereby the council has actually been substituted for this previous owner/company, Elmsbourne, so they can carry out the demolition themselves. The council's effort in that regard have been frustrated by difficulties of service, difficulties of gaining entry to the premises concerned, resulting in committal proceedings against the occupier of the property, Miss Charlotte Foad. Those proceedings ultimately resulted in an undertaking given to the court, by - I say the court, that is Canterbury County Court - on 24th May 2002 whereby she agreed to vacate the property she occupies on 2nd September. That is really how the urgency arises in this case my Lord.
90. MR JUSTICE RICHARDS: Because the council wants to move in or get contractors immediately thereafter to get the work done.
91. MR LEWIS: Indeed my Lord. Your Lordship will appreciate there has to be some time needed for that kind of thing as well, they cannot simply wait to the eve of 2nd September to find out what the result is. That is where the urgency arises.
92. My Lord, your Lordship may have also seen that the Secretary of State supports this application. There is a letter which has been written to the court.
93. MR JUSTICE RICHARDS: They might have dealt with matters on a somewhat different basis but supports the spirit of it any way.
94. MR LEWIS: Indeed my Lord. They refer specifically to security for costs. I have to say the council entertained the thought of going for security of costs but, of course, under the rule - it is not a rule - but the discretionary principle in Bolten, the House of Lords case, which governs the making of orders for costs in section 288 applications as second respondent the council would have been so unlikely to gain any order for costs, it was not worthwhile going for security as well. As I am going to seek to persuade your Lordship, there is good enough grounds under the three prongs which I have outlined for your Lordship.
95. My Lord, I have reproduced a chronology in my outline of submissions which is more or less or broadly speaking the same as that spoken to by Mr Robinson in his witness statement but I have given the page references in the bundle.
96. MR JUSTICE RICHARDS: That was very helpful.
97. MR LEWIS: I hope so my Lord. I propose to take your Lordship back through it, if that would help now, unless your Lordship has all the points readily in mind. Perhaps if I do them as briefly as I may.
98. MR JUSTICE RICHARDS: I think probably that is the right course. I suspect I have the main points in mind but you can never be sure.
99. MR LEWIS: I am obliged. I am looking at page 3 of my outline submissions. The start date is 30th June 1998 which is when enforcement notice and a stop notice was served by the council which related to the development, which was the unlawful development of the construction of the rear extension.
100. MR JUSTICE RICHARDS: They were served on the then owner, Mr Bryan Rix.
101. MR LEWIS: He was never the then owner. That is slightly the problem. The property I think then was owned by Mr Paul Wade, who resides in Florida, and conducts a certain amount of correspondence in the course. If only it were as simple as that, my Lord, we could indicate who the personalities are in this case.
102. The enforcement and stop notice were served. Your Lordship will I think be aware a stop notice is the one which you serve when you are requiring a lawful development to cease, but nonetheless the development carried on regardless. An appeal was made by or in the name of Charlotte Foad, the then and now occupant. If your Lordship just glances at page 43 in the bundle - I have not given a cross reference for this - that is a reference back to the appeal decision letter whereby the enforcement notice appeal was ultimately was dismissed in July 1999. I am getting ahead of myself on that. Your Lordship can see from that page 43 in the bundle, under where it says "Dear Sir" in the heading of the letter, third line is "APPEAL BY MISS...", she is called C Foad. But again on that page, my Lord, importantly to note, top left hand, the decision letter is addressed to Mr Rix whose name cropped up.
103. MR JUSTICE RICHARDS: Miss Foad was, at that point, the occupier and at all material times the occupier?
104. MR LEWIS: Yes my Lord. As your Lordship may again have seen from the papers, she occupies under a somewhat obscure arrangement. It is a sort of free tenancy but there is nothing formal and her security of tenure (or however best to describe it) does not change notwithstanding successive changes in ownership of the property by companies who it is rather hard to get behind and identify who the individuals running it are. There we are, I am getting ahead of myself again.
105. So, my Lord, the third point on the chronology is 10th March 1999 the company which then acquired the property and against whom ultimately the council got their injunction, Elmsbourne Security Limited, were incorporated. Again, 14th April 1999, Miss Foad was appointed as a Director of that company.
106. MR JUSTICE RICHARDS: Yes.
107. MR LEWIS: Then that company saw fit to acquire the property. Then the next point after that is some months later - it all took a fair amount of time as your Lordship can see - it is on, I say 22nd July, that should be 2nd July 1999. But it is 2nd July 1999 "...appeal dismissed" and I have shown your Lordship the page there. Then in November, again a certain amount of delay, injunction proceedings are ultimately embarked on by the council, requiring demolition of the unlawful extension.
108. On 8th December, that is immediately after those proceedings were issued, this Pansofic(?) Corporation SA, were appointed as Director of Elmsbourne and then it seems Miss Foad relinquished her directorship. I have put in the bundle at page 93 a note about IBC's, International Business Companies. The short point on them is that they are not required to disclose any information as to accounts or directors. They are incorporated out of the jurisdiction. Again it is virtually impossible to find out who is behind any such organisations.
109. So conveniently Miss Foad resigns as the Director of Elmsbourne and that actually is one of the factors which led to the council seeking an order ultimately - again I am getting ahead of myself - in October 2001, had themselves appointed in the place of Elmsbourne. Actually there is some progress to be made because there were no directors who could be committed. Again very hard of pinning anyone down to be held responsible.
110. Then, as your Lordship will see, while the injunction proceedings were awaiting hearing, on 23rd February 2001, the application which resulted in the appeal proceedings which are the subject matter of the section 288 application which I am trying to strike out, that application for planning permission was made to the council by Elmsbourne to retain the unlawful extension.
111. Then, on 26th March 2001 His Honour Judge Poulton in Canterbury County Court granted the injunction to the council requiring the demolition of the extension and the material date there is 31st July 2001. That was the date he imposed on that for compliance. Again the judge's order is in the bundle, I do not know I need take your Lordship to that. I have not produced a note of his judgment. I think it is certain comments on the background facts, again. Only relevant as background here.
112. The 24th May, planning permission for the retention of the extension was refused by the council and that went to appeal, again, after some months. But in between that time on the eve of the expiry of the period for compliance with the injunction, that is the date at the top of page 4, 30th July 2001, the property was acquired by the claimant in these proceedings, by Manticore Holdings, who again are an international company, this time registered in the Dominican Republic and B 98 is the property register which gives you the date of their acquisition. There is a company search on them, which again the Treasury Solicitor's letters refers to. It shows they have a credit rating of nil, that they are incorporated out of jurisdiction. That is page 101 my Lord. But, again, in umpteen places, on that company search it says: "not been impossible to learn where operation of the company take place; not been possible to obtain exact nature, extent or whereabouts of trading activities. You can ask their agent but it is expected to decline to give any information relating to subject and prohibited to do so from prevailing secrecy in Dominica." That kind of thing. It is impossible to get behind this.
113. Again, in relation to the acquisition of the property, 22 Sprotland's Avenue, by Manticore Holdings, Mr Robinson, in his witness statement, refers to the fact that no company search is ever undertaken. Nobody seems to have concerned themselves as to whether the property might not actually be subject to injunctions and planning problems of the sort. Again, I make that point in passing but again it is another oddity of the case here, these companies just popping up and moving in to acquire the property in question.
114. The following day, as I said my Lord, was the date on which the compliance period set by His Honour Judge Poulton, for compliance of the injunction expired, that is 31st July. A reference back to the judge's order there. I give your Lordship the date for when Elmsbourne - I was going to call them the then owners but they were not any longer the then owners.
115. MR JUSTICE RICHARDS: The previous owners.
116. MR LEWIS: They appealed, and it was only halfway through the enquiry that that matter was sorted out, the fact of what Manticore's interest in promoting the appeal ever was. I will take your Lordship to that in due course, when we come to the decision letter.
117. The 4th October 2001, I have already made reference to this. This was where the council sought a further order from His Honour Judge Poulton again at Canterbury County Court, for appointing the council in place of Elmsbourne to enable the demolition of the extension. That is in the bundle at page 60 my Lord. Again, it is a detailed mechanism actually seeking to ensure Miss Foad could be persuaded to leave. If your Lordship sees page 60 in the bundle, it has a penal notice directed to the defendant and Elmsbourne Security Limited and says "all occupants of the property". So Miss Foad was given notice of the order there. Then, as your Lordship will see, there were certain difficulties of actually serving a copy on her. The problem there is if you cannot serve somebody with a mandatory order, they are entitled to say they have not had proper notice of it. On that basis you should not be held in contempt for noncompliance. That was another difficulty in the case, again perhaps not strictly relevant here.
118. As I have set out in the chronology, my Lord, again on 4th October there was no appearance Alan (inaudible) rather similar to what has happened today, the letter written to the court on their behalf by Newfield requesting an adjournment. That is in the bundle, but I do not think it is important your Lordship should look at that.
119. Then, various letters were sent, as I say, by the council, notice given by the council, in fact Sharpe Pritchard acting on their behalf. There is one of those letters as in the bundle at page 68, requiring vacation of the property, under the terms of the order of 4th October, by 8th January 2002. On 12th November, subsequent to that, an application was made by Mr Newfield on Elmsbourne's behalf for permission to appeal against the order of 4th October. That was struck out. Again, I will not take your Lordship to that. If your Lordship has seen the application was made in the name John Val Jon, which if your Lordship may remember is the leading character in Victor Hugo's Les Miserables, who was persecuted unfairly for many many years. Again, I suppose they may exist in Dominica or - I cannot remember where the other offshore jurisdiction is, which I think is French speaking. But there may exist such a character but again it is not clear.
120. But nonetheless, on that occasion there was no appearance by Elmsbourne and the company or Mr Newfield, but he did send a skeleton argument. Again, I have made reference to that, I will not take your Lordship to it. But, it is notable even, at that stage, there is no reference to the fact that all of this is a waste of time because the property was now in the hands of a different company. Matters went on as usual. It only cropped up later that Manticore existed let alone acquired an interest in the property.
121. Then, on 8th January 2002, the council failed to gain access to the property to allow demolition, notwithstanding their attempts to fix Miss Foad and others involved, and others concerned with knowledge of the council's intention to secure the vacation on that date. I will take your Lordship to page 122 in the bundle, if I may, which is Mr Robinson's attendance note relating to that date. Mr Robinson is the maker of the witness statement on behalf of the council. He went along on that day on an abortive attempt to gain entry and then carry out the works which the council had been appointed to do in place of the previous defendant, Elmsbourne. If I may I will just leave your Lordship to skate through that. (Pause).
122. Your Lordship can see from that just what a strange arrangement it is at the property. There is steel shuttering, there is CCTV cameras, there is this notice saying "no callers without appointment", it is virtually impossible to get into the property and very different from any ordinary suburban house on a residential road. So that is that. The council were unable to secure compliance with the order which they got in October of the previous year.
123. Then the next event was the appeal enquiry into the council's refusal of planning permission to retain the extension. That is pursuant to the application for planning permission made in February of the previous year. Again, as indicated there, Mr Newfield acted as advocate, without more for Elmsbourne, of course in a planning enquiry there are no rules as to rights of audience.
124. On 11th April 2002, the council had made their application to commit Charlotte Foad for breach of and/or aiding and abetting the order of 4th October. That got listed before we received a decision letter. It is the practice now of the planning expectorate to give you an estimation of when their decision will be published. I think they had been told the first week in April, that is why they had gone for that date. Again, that was adjourned to await the decision on the planning appeal. There was an appearance by Manticore represented by Mr Holden whom we have heard of.
125. Again, over the page, my Lord, the top of page 5, on Manticore's behalf Mr Holden applied to be joined in the County Court proceedings. He said he wanted to apply to be joined but the County Court judge said: I will be interested to know about the company. So Mr Holden said he would go and look to that. Further await evidence of the nature and the identity of its directors. Then the next date is the publication of the planning inspectorate's appeal decision which is the subject matter of Manticore's claim in these proceedings: appeal dismissed now challenged by Manticore.
126. The 13th May 2002, again there is another adjournment, the application for committal and Miss Foad was indisposed on that occasion. Mr Holden again attended on behalf of Manticore but had not produced any evidence, save for a letter which your Lordship does have in the bundle which the County Court judge described as "quite inadequate". That is at page 125 in the bundle my Lord. I do not think your Lordship needs that. It is sort of a scruff and faxed letter. If your Lordship just glances at it. The signature is chopped off at the bottom. Various individuals are named but there is no indication of who is talking about them and whether indeed any of these personalities exist. I will leave that.
127. But, again, just to make the point in passing my Lord. On these two occasions when Mr Holden appeared in front of Canterbury County Court, on the first one - fair enough that was before the planning appeal decision was published. On the second occasion, no suggestion was ever made there had been an error of law in the planning appeal decision and this was a matter which would affect committal proceedings and matters of that sort. It is more the mechanics of seeking compliance of the court orders which is the subject of discussion there. Then no evidence filed by Manticore.
128. The next date is 24th May 2002 when Miss Foad gave her undertaking on the resumed application for committal, she said she would vacate on 2nd September 2002 to facilitate demolition of the unlawful extension.
129. I just ask your Lordship to note on that - I said 72, I suspect that is a number from an old court bundle - no, 72 is correct my Lord. I am just asking your Lordship to note that on 73 there is a liberty to apply, so far as suggest there is any material changes in circumstances which may affect the justification for the council seeking to have the extension torn down. I will come back to that in due course.
130. So this undertaking was given by Miss Foad. Again no appearance by Manticore, they did not trouble themselves to appear. The 10th June is when we do get the section 288 application made by Manticore, filed in the Administrative Court Office. It appears from the claim form to be signed by Alain Harding, that is page 4 of the bundle. But I just make the point in passing that in tone it is very much in the sort of register of Mr Newfield, these points raise. Your Lordship can see it is elaborated in the same way in his two witness statements but I will come back to them in due course. We have no idea who Mr Harding is. He is referred in this inadequate letter from Manticore, at page 125 in the bundle.
131. MR JUSTICE RICHARDS: You are not putting forward the case that there was not any valid application at all. I know you take the point of service.
132. MR LEWIS: No my Lord. So it was only on 24th June that Manticore's application was received by the council under cover of a letter signed by Mr Newfield. His letter was dated 20th June 2002. His witness statement in support of the application was received by the council on 3rd July 2002. Again, there is no point on that because he did serve that within the 14 days permitting, counting from service. But the point is, as I shall come to directly, my Lord, that he was out of time on that because it was not, the application was not served within the time limited by the enactment which, under section 288 of the Town and Country Planning Act is six weeks from the date of the decision.
133. So, my Lord, coming to that I have keyed it by reference to Mr Robinson's witness statement. I am on page 6 of my skeleton argument. If I may, my Lord, I will just leave your Lordship to reread those paragraphs, 5 - 9 of the statement appearing on page 28 of the court bundle and concluding on....
134. MR JUSTICE RICHARDS: Rather than do that, let us look at the underlying material. You have provided it with your skeleton argument. You say that RSC 94 Rule 2 paragraph 1.
135. MR LEWIS: That is order 94 as preserved in schedule I of the CPR my Lord.
136. MR JUSTICE RICHARDS: - provides that service is to be within the time limited by the relevant enactment for making the application. So service within six weeks of the date of the decision. You are not saying in this case, there was a failure to make the application within six weeks because you accept that issue of the application constitutes the making of the application.
137. MR LEWIS: Mr Newfield does make reference to that but that was based on a misunderstanding. If I show your Lordship page 3 in the bundle, my photocopy does not quite do it justice I do not think. Page 3 in the bundle if your Lordship has that. If your Lordship can just about see the Administrative Court office stamp, top right. It is difficult but...
138. MR JUSTICE RICHARDS: You have accepted it is 10th June.
139. MR LEWIS: It looks like the 18th. My instructing solicitors initially thought, having only received a faxed copy of this, that in error the Administrative Court Office had stamped it, albeit it was outside the six week period. That was the basis of receiving it later than they should be doing anyway, if they had been served in the normal way. But no, my Lord, that is quite correct. There is no point on that. It is simply on the service which is the foundation of this first aspect of the council's application to strike out.
140. MR JUSTICE RICHARDS: You say that that failure to comply with the rule is one in respect of which the court has power to strike out the statement of case, pursuant to CPR rule 3.4(2)(c). It comes down to discretion.
141. MR LEWIS: Indeed my Lord.
142. MR JUSTICE RICHARDS: On discretion you make quite a lot of play of prejudice. The prejudice, as I understand it, does not arise out of the difference between serving on the 10th and serving on the 24th, it arises out of the bringing of the application at all.
143. MR LEWIS: Yes, that is correct my Lord.
144. MR JUSTICE RICHARDS: That is the difficulty, is it not, about the prejudice because, in so far as you are saying the delay has occasioned prejudice, it has not. The extra two weeks has not in itself caused you, as I understand the evidence, any prejudice. It is, if the application is allowed to proceed that you say you are prejudiced.
145. MR LEWIS: Yes indeed my Lord. Subject to this, and it is a matter touched on in Mr Robinson's witness statement. Having regard to the nature of the grounds pleaded in support of the section 288 application, which are relatively simplistic seen, if not actually to have been typed by Newfield onto the claim form, they seem very much to have come from the line he was taking in the planning enquiry. There is no reason why the challenge could not have been made any earlier. Certainly they do have a period of 6 weeks to make an application to the High Court, and in accordance with the rules, to serve that application on the parties affected, Secretary of State and the local authority directly concerned. But, in this case, my Lord, there was no good reason where, knowing of the urgency of the case from the council's point of view, the claim form should not have been served within the six weeks period and ideally, my Lord, substantially within the 6 weeks' period, so that the council would have been in a position to do what they did do ultimately in this case, which was to seek an order for an expedited hearing of the matter. It means they would have been in a position to act very much more swiftly in getting the matter before the court and in such a way as the conflict with the date, for the proposed demolition of the offending of the extension, were not so acute. That is to say my Lord-
146. MR JUSTICE RICHARDS: Yes. If this were an application with strong merits, the two week delay beyond the six weeks would not get you anywhere, would it?
147. MR LEWIS: I have to accept that, my Lord. In researching this I am afraid I did not put it with the materials which accompanied the copy of the skeleton which would have reached your Lordship, but there is a decision of Lightman J on 18th January 2000 which actually is under the new rules. I will hand that up, if it be of assistance to your Lordship, the decision of Lightman J, in the case of Commissioners of Customs & Excise v Eastwood Care Homes. I hand up a copy of that if I may.
148. MR JUSTICE RICHARDS: Thank you.
149. MR LEWIS: Broadly speaking, yes, indeed, my Lord I must accept that the court has a discretion. There are a couple of cases decided specifically under section 288 (inaudible) of that. Mr Newfield next reference to one of them which is referred to in the Planning Encyclopedia which is called Summers and there is another subsequent one decide by Schiemann J called (Inaudible) v District Council, he accepts that in a proper case there is a discretion to extend time.
150. Both of those previous cases, of course, were decided before the coming into effect of CPR, and so this case seemed to me, my Lord, to be relevant and worthwhile to put before your Lordship. Your Lordship can see the facts of the case stated briefly by Lightman J at paragraphs 124.
151. MR JUSTICE RICHARDS: Yes.
152. MR LEWIS: Then there is reference to the Commissioners having been out of time in applying for an extension. Paragraph 6 sets out what appeared in the then White Book, Supreme Court Practice, as to the position before CPR. If I leave your Lordship to read through that, if I may, it is at paragraph 8.
153. MR JUSTICE RICHARDS: It is the list of factors at paragraph 8. Ultimately one is asking what justice requires. A two week delay, albeit against the background of the urgency that you have described, would be unlikely to justify a strike out if the claim had substantial merits, looking at the overall justice of it.
154. MR LEWIS: Yes indeed my Lord. I shall come to that in due course.
155. MR JUSTICE RICHARDS: I wonder, in a sense, whether the same does not apply to your second point concerning the alleged delaying tactics and the abuse of the court's procedures. That ultimately is founded on the proposition that there is not anything in this claim. If there is not anything in this claim, your third ground ought to succeed.
156. MR LEWIS: My Lord, subject to this one qualification, yes, I will not take time by resisting your Lordship's formulation of that proposition. It is covered to an extent in Mr Robinson's witness statement at page 30 in the bundle. It is paragraph 10, where he talks about the successive stages at which the - I cannot call them the claimants because they were not the claimants in those days - but the successive stages at which persons concerned to do so could have sought to challenge, first of all, the enforcement notice of appeal decision right back in 1999. Secondly, my Lord, they could have appealed to the Court of Appeal the judge's grant of the injunction, in March 2001. Thirdly, they could have challenged in the Court of Appeal the 4th October order, which had to be made in an attempt to give effect to the previous injunction order granted in March. Then, yes, okay, we come to the planning appeal now.
157. But, my Lord, I think apart only from the rights to light point, every matter on which they now rely, the extent of compliance or not, in the extension with development plan policies, the personal circumstances of Miss Foad, the fact that there have potentially been similar offensive developments in the area, which for reasons which I do not altogether understand, should have permitted their offending extension. All of these matters have been gone through before in other proceedings. So that is the point I would make, my Lord, in addition to the general delaying tactic point.
158. MR JUSTICE RICHARDS: But still the inspector found that there had been changes of circumstances and that she had to tackle those changes and decide whether the ultimate decision should be the same as first time round.
159. MR LEWIS: Yes, that is correct my Lord.
160. MR JUSTICE RICHARDS: If she went wrong in that, then notwithstanding the history of the matter, and I understand what you say about it, then the claimant is entitled to pursue this claim, is it not? Perhaps I should say, if there is a substantial case on the merits, if there really is a prospect of this claim succeeding, it is very difficult to rely on the history as a reason for finding an abuse. One has a decision that went to appeal to the Secretary of State which they are entitled to do whether or not one regards it as a delaying tactic. If the appeal was not lawfully decided, they are entitled to have the courts so rule. The court would be very reluctant to leave standing an unlawful decision simply because, prior to that, there has been a rather unsavoury procedural history.
161. MR LEWIS: Ultimately my Lord I have to accept to that. The only two points going through my mind on that were standing and discretion under section 288 but of course that presupposes one has got to the section 288 stage.
162. MR JUSTICE RICHARDS: Come back as necessary to these other points. Let us focus on the substance of this. If you are right that there is no real prospect of success, that ought to be dispositive of your application; if you are wrong, then it casts a different light on the earlier points.
163. MR LEWIS: I have to accept that my Lord.
164. MR JUSTICE RICHARDS: All right.
165. MR LEWIS: My Lord, this is dealt with, I am going to the last page of my skeleton, page 7 and page 35 in the bundle, where, again, I very much pray in aid Mr Newfield's comments on the grounds in the application. My Lord, again to preface that with the general point which I make at paragraph 11 of my outline of submissions. First and foremost, the grounds raised are not, in my submission, proper points of law. They are generally directed to the planning merits ultimately and Mr Newfield, in effect appears to be seeking to reopen those questions, involving the exercise of a planning judgment which, in the light of the certain case, which I refer to and which I imagine is all too familiar to your Lordship, is not a proper point of view, it does not raise a Wednesbury consideration or matters of that sort similarly from failure to take account (inaudible) again under Wednesday or the Ashbridge case, which is another one of the main authorities perhaps.
166. So, my Lord, the first ground is Mr Newfield's allegation that the inspector failed to apply planning policies DP2 and EN1 properly or at all. In my submission, if one but glances-
167. MR JUSTICE RICHARDS: It breaks down, does it not, into two elements? If you take into account the witness statements of Mr Newfield as well as the grounds. What he says is that policies adopted in 2000 should not be applied because it was a retrospective application. Your case on that is that one is bound to apply the development plan as it exist as at the date of decision.
168. MR LEWIS: Indeed my Lord. Under section 70(2) of the Planning Act and section 54A of the Planning Act. You cannot sensibly say that one has to casts one's mind back in time, where a retrospective planning application is made or it would create havoc - if I can put it that way - with the decision-making process. You would always have to be looking for old policies, looking back into the situation as it existed at whatever time, the development was implemented or instructed.
169. MR JUSTICE RICHARDS: Section 54A.
170. MR LEWIS: And section 70(2). Section 54A-.
171. MR JUSTICE RICHARDS: Give effect to, yes.
172. MR LEWIS: And 72 is the one which says you determine planning applications in accordance with the development plan (inaudible). That is a question of whether or not they have retrospective effect. I sought to deal with that one. But, again, as to whether or not they were applied, they accurately formed the main subject matter of the discussion in the decision letter, from paragraph 10 and following on page 12 in the bundle.
173. MR JUSTICE RICHARDS: Yes. If I take your Lordship to that, page 12 in the bundle. This is after the inspector has become familiar.
174. MR JUSTICE RICHARDS: I have it, yes.
175. MR LEWIS: But it is paragraph 10, talks about the policies being DP2, general requirement for all new development proposals, that is the novel thing about respecting amenity and high standard of design, which are a general policy. Policy EN2 "resisting development in or close to residential areas that are likely to damage significantly people's enjoyment of their homes". Again, that is the question where impact on access to sunlight or daylight comes in as discussed by the inspector. Again, the inspector sets up the framework for her decision in paragraph 12, talking about any changes in circumstances. She deals with the adoption of the local plan as your Lordship can sees from paragraph 13 - 15 on the following page.
176. MR JUSTICE RICHARDS: Then deals with the issues to which the relevant policies give rise, in particular sunlight, natural light, on the one hand and overbearing impact on the other.
177. MR LEWIS: Indeed my Lord. So, I am just flicking back. I mean, it depends whether it is more convenient for your Lordship for me to deal with sunlight/daylight point.
178. MR JUSTICE RICHARDS: We will deal with the points in turn. You say that this general assertion has been a failure to apply the policy simply does not stand up. That the particular development of that point, in paragraph 8(a) of Mr (Inaudible) witness statement is a non starter. As to B, the notion that it was accepted that the policies were largely satisfied by the extension.
179. MR LEWIS: That is expressly disputed by Mr Robinson in paragraph 24 of his witness statement on page 36.
180. MR JUSTICE RICHARDS: Yes. In any event, you would say it is from the inspector to assess the matter and exercise her own judgment. Otherwise if it depends on a factual dispute as to what happened at the enquiry you may be in greater difficulty.
181. MR LEWIS: Yes indeed my Lord. I am reminded that there is even authority which notwithstanding a concession on behalf of an expert giving evidence, and I include with that office the local planning authority, that even if they conceded a certain point it is still open to the exercise of the inspectors's judgment. The reason I remember it, my Lord, is the memorably named case of Kenducky Fried Chicken from 1980 on that point, a report I think in the Estates Gazette. So, that is very much what I have to say about ground 1 my Lord.
182. Second ground is the allegation that the inspector failed to take account of the local support for the claimant's application and appeal.
183. MR JUSTICE RICHARDS: Yes.
184. MR LEWIS: Again, broadly speaking, this is dealt with on page 15 of the bundle, paragraphs 24 - 27. Page 15 of the bundle - the decision letter, it is at paragraph 25 my Lord.
185. MR JUSTICE RICHARDS: Yes. I suspect it is page 37 of the main bundle, is it, paragraph 25 of Mr Robinson's that he deals with it.
186. MR LEWIS: I am very sorry, that is absolutely correct. That is where he says what he says.
187. MR JUSTICE RICHARDS: I see what you mean.
188. MR LEWIS: I think again-
189. MR JUSTICE RICHARDS: It is my fault for having got the decision out. It is the absence of objection to No 24 which he deals with.
190. MR LEWIS: That is correct, my Lord. Equally your Lordship can see that at the end of paragraph 25 there is a letter of support referred to, coming from the occupants of No 20. Again, in the sort of pages following the decision letter where the inspector sets out the appearances, your Lordship can see at page 21 it is the bundle number, the circle number in the bottom right-hand corner, that various other people did speak, Mr Hayman, a Mr Brown and Mr Keevvs, whatever that name is supposed to be. We noticed subsequently that he seems to be somebody who cropped up as alleged to be an officer with the company - I say the company, the previous owner, Elmsbourne Security Limited, who are defendants against the injunction proceedings. But they have various things to say. It is true to say that their representations are not expressly mentioned in the appeal decision. But, again, my Lord, there is a general wrapping of it all up on page 20 in the bundle, paragraph 50. The last sentence of that paragraph, the inspector says: "For the reasons given above and having regard to all other matters raised, I conclude that the appeal should be dismissed." No ground for assuming that she failed to take into account any statements in support of the appeal application. Equally, and that is the point made by Mr Robinson, even support from next door was not good enough. In any event, again the capital my Lord, as your Lordship raised in relation to the last point. Ultimately, again, it goes to the inspector's judgment. She is not bound by what any local people may say in the exercise of their (inaudible) as to whether or not the appeal should be allowed or not.
191. Now there is again - I just seek to pick it up now, shall I make sure it does not come back again in later. I think it does come under ground 2. The question of no objection from No 24. What Mr Newfield says in his second witness statement is - that is paragraph 25 of his second witness statement - he alleges that the letter from No 24, which was actually was the property regarded by everyone on the planning authority's side as being the property most affected, he said that was unquestionably a letter of support. That was not taken into account. Similarly, at paragraph 9 of his first witness statement he says: "The inspector treats this as neutral when it was clearly a letter of support." The inspector again deals with this in the passages we were looking at on page 15 of the bundle, paragraphs 25 - 27.
192. MR JUSTICE RICHARDS: The letter itself is the one at the very end of the bundle.
193. MR LEWIS: That is quite clear, that is where I was going next. Your Lordship can form a view as to whether or not it is properly to be regarded as a letter of support. But, in any event, even looked at Wednesbury grounds it is a point which we hardly get off the ground. All that letter says in the last paragraph is "we felt that you should be informed of our plans" - this is in relation to the new extension, which is proposed which I am going to address your Lordship on in a moment or two "...difficulty enquiry". It does not say anything about 'we support your appeal proposal'. We are not clear as to the circumstances in which that letter was run from. Your Lordship can see, at this point, paragraph 27, second or third line, it seems this point about a forthcoming extension at No 24 was a matter raised all those years ago in the original enforcement notice. Perhaps going down another back water of the history of this matter.
194. So, my Lord, thirdly is the question of the inspector's alleged failure to apply, as it was put, the evidence of the then appellants witness, who gave evidence on impact.
195. MR JUSTICE RICHARDS: As to that you say it was all thoroughly examined.
196. MR LEWIS: Technical evidence. Ultimately it was only a consideration to being judged under the proverbial umbrella of the development planned policy of consideration and the inspector says it is a matter to be assessed for subjective judgement. Even if there were anything in the point, my Lord, the inspector said that, she would regard it the question of the overbearing impact of the development as being a factor against. That is paragraph 24, the last five or so lines. Says "given the size of the extension and its relationship to 24, also the overshadowing the neighbouring garden and overbearing effect of a large expanse of solid wall viewed from the room nearest the boundary." She had gone beyond any technical considerations there. That is a factor against-
197. MR JUSTICE RICHARDS: It is a separate issue from the sunlight/daylight point but going to the application EN2?
198. MR LEWIS: Yes my Lord.
199. MR JUSTICE RICHARDS: I see. Then there is the failure to consider an identical extension in the area. You say it is clear she looked at the whole area. She walked around and gives reasons.
200. MR LEWIS: - extension she had to look at. Mr Newfield seems a bit unclear as to which was he is talking about as the critical one. But in any event she looked at all of them. But it is a submission which one occasionally makes in planning enquiries. Even if you could not identify an offending extension which was similar or identical to the one at issue in the case of consideration, as it were, two wrongs do not make a right; that is not a reason for granting planning permission for an extension which in the exercise of this inspector's subjective judgment is offensive....
201. The next point is Human Rights Act my Lord. Again it was accepted by the council that requiring Miss Foad to move out of the property would involve an inference with her Human Rights, particularly Article 8, Article 1 of the first protocol were in issue, enjoyment of one's home and a protection for one's possession. A slight sub issue on Article 1 to the first protocol, given it was not clear whether Miss Foad actually held any formal legal interest. Again the inspector was invited to deal with it in the round, as she does so in her decision letter, in particular, at paragraph 51 and following on page 18. But that follows on from two or three pages where she goes through the personal circumstances of Miss Foad. But ultimately, my Lord, the inspector agreed with the council's case, which is that the interference, or any inference with Miss Foad's Human Rights, always bearing in mind she is not losing her home. She is being asked to move out for up to 3 months while the demolition of this unlawful extension takes place. Inference did fall within the public interest qualifications to which both Article 8 and Article 1 of the first protocol are subject and was proportionate in the circumstances. Your Lordship may have seen there is a point on the Porter v South Buckinghamshire series of appeals to which I drew the inspector's attention and the reference in that to the point in Chapman - this is page 44.
202. MR JUSTICE RICHARDS: Paragraph 44, on page 18. The South Bucks case is referred to. There is the Chapman point when considering the requirement of the individual leave his or home is proportionate (inaudible) highly relevant whether the home is established lawfully. Again that is not a point. The background for this is that the extension had been established as unlawful as long as ago as July 1999.
203. There is a reference to this New Forest District Council case which the inspector deals with at paragraph 48. I leave your Lordship to look at that. The point in that case was there is a reference in a Daily Mail article to a very surprising decision of the planning inspector, whereby it was a six bedroom house in New Forest allowed to remain on the bases of alleged undue interference with the owner's Human Rights. That was challenged by the local planning authority concerned. As appears from paragraph 48, in the inspector's decision, page 19 of the bundle the Secretary of State did not even seek to defend the decision. That disposes of that aspect.
204. Ground 6 my Lord is the alleged failure on the inspector's part to apply personal, medical circumstances of the occupier and hardship correctly. Again, as indicated in passing that is dealt with under the heading "personal circumstances", from paragraph 29 in the decision letter onwards that is page 16 and following. Again it is a matter going to the inspector's planning judgment and ultimately, my Lord, while personal considerations can be of material consideration, again it is a comparatively rare case when matters of that sort would outweigh planning considerations. That notion seems to inform the way the inspector deals with it. She says at the very end of her decision letter that there is nothing out to outweigh the objection. I am now going to lose the passage.
205. MR JUSTICE RICHARDS: This is paragraph 40?
206. MR LEWIS: It is 4 0 my Lord.
207. MR JUSTICE RICHARDS: "I am not satisfied that the particular personal circumstances are sufficient to override the other compelling considerations." That is the point.
208. MR LEWIS: That is the point I had in mind.
209. MR JUSTICE RICHARDS: What about the suggestion that she failed to have regard to the disability legislation. Well, for a start, my Lord, even if the point were not made in the enquiry, I am not absolutely sure that it was not. Okay, the letter which Mr Newfield produces does post date the enquiry, but I am not sure the generalised assertion has been heard but it was not said she was disabled and certainly, in any event, a great deal more of what was made of Miss Foad's condition would rather have subsumed any such point that her being recognised as disabled somehow made her condition materially worse.
210. MR JUSTICE RICHARDS: You say that it is not shown to be in itself a material point as a separate consideration, what matters are the individual personal circumstances which were examined.
211. MR LEWIS: Indeed my Lord. It does not actually advance matters. I have two points on that, which I seek to deal with briefly as I may. The second last page of Mr Newfield's, witness statement, the exhibits to it, is this letter from Kent County Council.
212. MR JUSTICE RICHARDS: This is the new witness statement, yes. Right.
213. MR LEWIS: 23rd May 2002. If your Lordship has a letter that looks like this. Again, noted it is addressed to Miss Foads Charlotte Rix, but there we are. It talks all about what her disabled registration means. There is a reference to section 29 of the National Assistance Act and I have looked up a copy of that.
214. MR JUSTICE RICHARDS: She has been registered disabled since is the appeal, so that according to Mr Newfield in his first witness statement and that tends to support it. You say this is all relevant as postdating the decision.
215. MR LEWIS: The rules or the circumstances in which one can adduce evidence which could or should have been available as an enquiry are very much prescribed. But in any event he does not have it. There is nothing to assume that any particular event has occurred which has brought about its registration. I am not absolutely sure from the context here and the terms that this letter is written in that it does not simply entitle Miss Foad to a disabled parking permit and matters of that sort. I do not think anything has befallen her and certainly no evidence is given by Mr Newfield to suggest that something else had happened which has changed her physical, albeit under disability legislation she may be registered disabled. I know, my Lord, because I have looked at section 29 of the National Assistance Act. I can hand up a copy, if your Lordship would like to see that. All that seems to say in subsection (1) my Lord, very generalised duty, the local authority may - I am skipping a couple of lines - "may make arrangement for promoting the welfare of persons to whom this section applies". It goes on to say,"blind, deaf or dump" etcetera.
216. MR JUSTICE RICHARDS: Yes, I see.
217. MR LEWIS: Now, well then the only other ground is "alleged failure to take into account of the public enquiry and proposed extension, proposed demolition of the extension to render the property inhabitable." All the inspector says about that, it is paragraph 39 on page 18, she heard nothing credible to that effect. Again that is the conclusion she was plainly entitled to reach on the basis of the material adduced before and the one that goes behind and subject only to Wednesbury criteria. Then disabled condition which is also pleaded under this ground 7, the need for special adaption accommodation is all dealt with under the personal circumstances. I have been addressing your Lordship on the Registered disabled point, the question of her bed that is dealt with on length.
218. MR JUSTICE RICHARDS: Yes. There is nothing in Mr Newfield's further witness statement that touches on any of these points.
219. MR LEWIS: I will just double check that, my Lord, but I do not think so....
220. There is one matter I said I would come back on my Lord. The only other matter which Mr Newfield does raise, albeit it is not covered in any of the grounds here, that he makes the point about No 24, the neighbouring property that was most effected having now made a planning application for their own extension. Various allegations that make a lot of difference. First and foremost that is not the matter pleaded as part of the section 288 challenge. Secondly, my Lord, in my submission, this is why I took your Lordship to the undertaking given by Miss Foad on 24th May 2002, page 72 in the bundle. It is a matter which goes to the injunction not to the section 288 challenge. There is a liberty to apply as I indicated to your Lordship on page 73 of the bundle. In so far as that is a point which makes any difference. Again, it is rather like the disable registration. It was an argument raised in the appeal but it was not a matter put before the inspector. It cannot very well be raised now as a challenge to her decision, and in any event it falls for determination in other proceedings.
221. MR JUSTICE RICHARDS: Yes I see. If I am with you on that, you do not need the other matters?
222. MR LEWIS: That's correct, my Lord. As I say, I do not have in mind the points about standing and discretion to quash and section 288 but plainly it is a matter for other freehold owners. I am in difficulty alleging that they are not persons aggrieved under the terms of section 288. There is the question of whether, what your Lordship called the unhappy procedural history of this matter, whether that might affect discretion to quash under section 288. Again I am caught, as it were, in the loop of the fact, that to that extent your Lordship (inaudible) there was anything in any of the points that may weigh against the exercise of your Lordship's discretion. So I am caught out, as it were, on that point. Subject to that that is right.
223. MR JUSTICE RICHARDS: You say the summary judgment procedure of Part 24 or 24(2) applies in the context of this kind of claim. There is a question as to whether it applies in judicial review because it has its own procedure code if part 54. But one does not have to worry about that here because this is a part 8 claim.
224. MR LEWIS: Part 8 claim my Lord. Subject the rules I have already addressed your Lordship on. I am also conscious, albeit I do not think it resulted ever in a final determination, but I am conscious there was an application made in front of Turner J, in relation to the development by Canterbury College, in the last 6 months or so, and that was under part 24. It did not ultimately result in a final order because I think the Secretary of State indicated that he would be prepared to submit to judgment. Certainly there was never any suggestion, so far as I know, (inaudible) that the procedure simply did not apply on its permit and in the light of the stance ultimately adopted by the Secretary of State. The application made by - there was a developer in that case seeking to knock out a local residents challenge. They did not succeed. Again, nobody took the point that it was not open to anybody under part 24.
225. I might also add to that your Lordship has the letter from the Secretary of State which I included with the bundle materials accompanying my skeleton argument. Again, in that letter, there is no - support is indicated for the council's application but there is no suggestion on the Secretary of State's behalf that there may be problems procedurally with that.
226. MR JUSTICE RICHARDS: Yes I see. Thank you very much.(Judgment Given)