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
		26th October 2004

1. MR JUSTICE RICHARDS: The claimant company runs what is known as a hostess bar in the basement of premises at 26 Wardour Street, London W1. The second defendant, Westminster City Council, refused it planning permission to continue that use. The council also issued an Enforcement Notice requiring the use to cease. The claimant appealed under section 78 of the Town and Country Planning Act 1990 against the refusal to grant planning permission, and appealed under section 174 of the 1990 Act against the Enforcement Notice.
2. By a decision dated 12th December 2002 an Inspector appointed by the First Secretary of State dismissed both appeals. That decision was successfully challenged in the Administrative Court and the Secretary of State appointed a new Inspector to re-determine the appeals. Following an inquiry the new Inspector issued a decision on 12th January 2004 by which he too dismissed both appeals.
3. The claimant now challenges that fresh decision under section 288 of the 1990 Act and, in so far as it relates to the Enforcement Notice, appeals against it under section 289, permission to appeal having previously been granted. The issues in the section 288 challenge and the section 289 appeal are the same, since the only basis upon which the Enforcement Notice was resisted was that planning permission should be granted for the use in question. Accordingly the question in each case is whether the Inspector's conclusion that planning permission should not be granted was lawful.

The decision

4. In paragraph 2 of his decision the Inspector identified two main issues: first, the impact of the use of the premises as a hostess bar upon the amenities of nearby residents and, secondly, the effects of this use upon the character and appearance of the Soho Conservation Area. In paragraph 3 he dealt with the broad policy framework, including the adopted City of Westminster Unitary Development Plan. In paragraph 4 he stated that the policies in that plan were largely carried forward in the replacement Unitary Development Plan, Second Deposit Version. However, that also contained a new policy TACE 13, specifically for sex-related uses. That policy is in these terms:

"Planning permission for sex-related uses will not be granted throughout Westminster but in exceptional circumstances will be considered in the area shown on Map 8.5 [which includes the relevant part of Soho]. Within this area, applicants will have to demonstrate that there will be no adverse effects on:

- residential amenity ...

- the amenity, character and function of the area ..."

5. The Inspector took the view that TACE 13 was the only policy in either the adopted UDP or its draft replacement that was directly relevant to sex-related uses in Westminster, and that the contents of TACE 13 would be largely determinative of the outcome of the appeals. He also took the view that all the criteria in TACE 13 had to be satisfied before any judgment fell to be made about the exceptional circumstances limb of that policy. If any of the criteria could not be met, the appeals simply failed without the need to consider the question of exceptional circumstances.
6. In paragraph 7 of the decision he found that the only criteria of TACE 13 which could be argued not to be met by a hostess bar in this location were its impact upon residential amenity and its effects upon the character and function of the area. In relation to residential amenity he found, in paragraphs 8 and 9, that the hostess bar functioned in a manner that had no appreciable impact on the amenities of any resident living close to the premises.
7. In relation to effects upon character and function of the area, the Inspector examined the history of the Soho Conservation Area, including the development of Chinatown. He said in paragraph 12 that Wardour Street south of Shaftesbury Avenue (which is where the appeal premises are located) was more mixed in character than some streets which presented an almost uniformly Chinese appearance. In that respect he accepted that Wardour Street represented a zone of transition between Chinatown and its immediate surroundings where the oriental influence was much more muted or non-existent. He said that the question then arose whether the presence of a hostess bar in this transitional zone harmed the character of the conservation area, in which case the use would be unacceptable, or whether its effect was no worse than neutral, in which case these activities could remain.
8. In paragraphs 14 and 15 he observed that signation as a conservation area had not extinguished the overt sex industry in Soho, but had brought about its retrenchment. The main sex-related area remained around Brewer Street and adjoining streets to the north of Shaftesbury Avenue. Overt sex-related uses elsewhere in Soho were quite widely scattered. None were to be found at the western end of Chinatown other than at the appeal premises. The only other examples of the sex industry nearby being prostitutes' flats at the western end of Lisle Street. Their external manifestation, in the form of cards fixed to corridors, visible only when entrance doors were left open, had little or no visual impact on the street scene.
9. That brought the Inspector to paragraph 16 which is central to the present case:

"In contrast, the hostess bar at the appeal site, with its obvious outdoor advertising material and its distinctive entrance, is separated from the main sex-related area in Soho by the wide and busy thoroughfare of Shaftesbury Avenue. Even in a street of mixed western and oriental traditions and signage, in my professional judgment the appeal premises appear as an obtrusive and out of place element within the street scene. It is out of character and different in its visual form from the neighbouring properties and frontages, none of which can be described as being similar in appearance to other sex-related activities in this part of Soho. In these circumstances, I consider that this particular use in this location neither preserves nor enhances the character or appearance of the Soho Conservation Area. I also conclude that the retention of this use would not comply with the character or function of the area, (the third bullet point of Policy TACE 13) and the failure to satisfy this criterion is also fatal to these two appeals."

10. It is to be noted that no distinction in terms of reasoning is drawn between the effect on the character and appearance of the conservation area and the effect on the character and function of the area for the purposes of TACE 13. This, coupled with the way in which the main issues are identified in paragraph 2 of the decision, leads Mr Hockman QC, for the claimant, to submit that the focus for present purposes can be on the earlier part of paragraph 16 where the reasons for the adverse effects are given. As to those reasons he says that there are two essential matters identified by the Inspector, namely, the "obvious outdoor advertising material" and "the distinctive entrance" in this location. Mr Hockman submits that the decision stands or falls on whether the Inspector's reliance on those two points was lawful. I will consider them in turn.

Signage

11. As to advertising material or signage, Mr Hockman advances five points: (1) It was expressly agreed by the parties and the Inspector, at the start of the inquiry, that the question of advertising consent for the signage was not before the Inspector and that the claimant would have to make a separate application to the council for such consent. This is linked to a contention in the written grounds that there was, in effect, an implicit ruling by the Inspector to exclude the signage issue from the considerations that were before the inquiry. (2) Alternatively the claimant's advisers approached the inquiry in the belief that there was such an agreement or implicit ruling. That was the basis on which the claimant's witnesses gave evidence, the council's witnesses were cross-examined and submissions were made to the Inspector. The Inspector however proceeded on the basis of a misconception, or misapprehension, as to the claimant's position which amounted to a fatal flaw in his reasoning. (3) As a variant of (2), the effect of the Inspector's misapprehension of the claimant's position was that he failed to give the claimant an opportunity to deal with the signage issue on its merits. Thus there was, in the circumstances, a breach of natural justice in that the claimant did not have a fair opportunity to address the Inspector on what he considered to be a material issue in the appeals. (4) It was clear, in any event, that there was agreement that the signage issue would have to be dealt with under the parallel regulatory regime relating to consent for advertisements. Unless the Inspector concluded that the issue could not be dealt with satisfactorily under that parallel regime, he was under a duty to leave it to be dealt with under that regime and it was not lawful for him to rely on signage as a reason for the refusal of planning permission. (5) Either as an aspect of (4) or as a separate point, the Inspector was under a duty to consider whether signage could be dealt with satisfactorily by way of a condition, but failed to have regard to that possibility.
12. On the first point the court has before it evidence from solicitors and counsel for both parties at the inquiry. There is also evidence from the Inspector. The evidence of counsel and the Inspector was filed pursuant to an order of the court aimed at obtaining clarification or confirmation of the factual position. On the basis of that evidence I conclude that the agreement between the parties with regard to signage went no further than an agreement that advertising consent would require a separate application to the council, and that such an application would be needed even if the Inspector granted planning permission for use of the premises as to a hostess bar. There was no agreement or implicit ruling to the effect that signage was to be excluded altogether from the considerations relevant to the appeals before the Inspector.
13. It would moreover have been very surprising for signage to be excluded altogether from consideration in the planning context of this case. The council's refusal of planning permission had been based in part on the view that the design, size and location of the signage adversely affected the character and appearance of the area. The Enforcement Notice had stated in terms that the appearance of the premises, with its large neon fascia and high level projecting signs, was considered harmful to the Conservation Area and it had required the removal of all fixtures and fittings brought on to the premises for the purposes of the unauthorised use. The witness statement of the claimant's Mr Hickling, for the purposes of the inquiry before the Inspector, expressed the opinion that agreement could be reached with the council regarding the size, siting and design of advertisements and that consequently the issue of the advertisements and their visual effect on the appearance of the area was not a matter of "over-riding importance". It was not suggested, however, to be irrelevant. The witness statement of the council's Mr Pearson for the inquiry relied on the signage as a reason why the use of the premises was considered to be unacceptable. He had referred to the premises as being characterised by garish advertising. It was moreover plainly to be expected that the Inspector would have regard to the external appearance of the premises when considering the effect of their use as a hostess bar upon the character and appearance of the area.
14. In any event, I am satisfied, as I have said, that there was no agreement or ruling, explicit or implicit, that signage was to be irrelevant to the appeals before the Inspector, and that the Inspector said nothing to suggest that it was to be irrelevant.
15. Turning to Mr Hockman's second and third points, it appears from their witness statements that the claimant's counsel and solicitor had the impression that there was an agreement or implicit ruling that signage would be left out of the issues to be addressed before the Inspector. For the reasons already given, I am satisfied that this was a misunderstanding. It is regrettable that there should have been such a misunderstanding, but it does not provide a basis for challenging the lawfulness of the Inspector's decision.
16. With regard to Mr Hockman's point (2), in my judgment the Inspector was entitled, in the circumstances, to proceed on the basis that signage was a relevant consideration. He is not to be criticised for any misapprehension under which the claimant's advisers were labouring. Whether his reasoning was flawed is a separate issue, but his reasoning cannot be said to have been flawed by reason of the existence of a misapprehension on the part of the claimant's advisers. As to point (3), the natural justice argument, the claimant did in fact have a fair opportunity to call evidence on the point and to address the point in submissions, even if because of the misunderstanding it did not avail itself of that opportunity, or at least did not do so to the same extent as it might otherwise have done so. It cannot be said that the Inspector acted in a procedurally unfair manner. It was not incumbent upon him to invite specific submissions on the subject. The issue was referred to in the evidence before him. It was for him to form a judgment upon it: a judgment that was heavily dependent, as he confirms in his witness statement, on the assessment made during his site inspections.
17. Although it was not incumbent upon the Inspector to invite specific submissions on the subject, there is some evidence that he raised it in the course of the closing submissions of the claimant's counsel. The second witness statement of Mr Bruce, for the defendant council, exhibits a contemporaneous note recording an exchange between the Inspector and council. Counsel made the point that the use of the premises could not be seen. The Inspector is recorded as saying: "WCC [the council] say signs, ladies, physical manifestation", to which the response was "whether can see or not is not proper land use distinction". So the Inspector did raise the question of signage, which not only tends to confirm the absence of an agreement that it was irrelevant, but also seriously undermines the argument that the claimant was not given a fair opportunity to deal with the issue. In any event, for all the reasons I have given, I reject the argument that there was a breach of natural justice.
18. That brings me to Mr Hockman's point (4). It is necessary to elaborate the submissions made on this issue. Mr Hockman pointed to passages in the witness statement of Mr Pereira, the barrister who represented the council at the inquiry. Mr Pereira says in his statement that the agreement that a separate application would be needed in relation to advertising consent was uncontroversial, but that he did not understand this as rendering signage wholly irrelevant. He also said that the council's case emphasised the other characteristics of the use of the premises in case the Inspector were to decide that signage was not a key consideration because it could be addressed through another process. But the council nonetheless emphasised the overt nature of a hostess bar, and cross-examination included questioning upon the visual impacts associated with the hostess bar use.
19. Mr Hockman picks up the reference to addressing signage through another process. This is the separate regime under which it was agreed that advertising consent would need to be dealt with. The need for a separate application for such consent is also mentioned in the Inspector's own witness statement. The relevant regime is contained in the Town and Country Planning (Control of Advertisements) Regulations 1992. Regulation 4 provides that:

"1) A local planning authority shall exercise their powers under these Regulations only in the interests of amenity and public safety, taking account of any material factors, and in particular-

(a) in the case of amenity, the general characteristics of the locality..."

20. Thus it is submitted that there was here a genuine parallel regulatory regime in relation to signage.
21. In Gateshead Metropolitan Borough Council v Secretary of State for the Environment [1994] 1 PLR 85, it was held that the existence of a parallel regime, in that case relating to the control of pollution, was a relevant consideration in the context of a planning application. The Secretary of State had been justified, on the facts of that case, in concluding that the areas of concern which had led the Inspector to recommend refusal of planning permission were matters which could properly be decided by the pollution authority, and that the authority's powers were adequate to deal with those concerns (see especially per Glidewell LJ at 96F). In the light of that principle it is submitted that the Inspector in the present case had to ask himself whether the issue of signage could be dealt with adequately under the 1992 Regulations, or whether there was no conceivable form of advertisement which would be acceptable, that being the only basis upon which he could properly take signage into account as a reason for refusing planning permission. Reliance is placed here too on Mr Hickling's evidence to the inquiry that in his opinion agreement could be reached with the council regarding the size, siting and design of advertisements. It is submitted that the Inspector plainly disregarded the existence of a parallel regime, to which he made no reference, and did not reach the conclusion, which anyway would have been a very unlikely conclusion, that no signage decided on under the parallel regime would be acceptable in planning terms. Thus his reasoning was flawed and his decision was unlawful.
22. It is convenient also to deal here with the elaboration of the argument under Mr Hockman's point (5), the question of conditions. Mr Hickling had suggested in his evidence that planning permission be granted on condition that there be no advertisements on exterior walls of the premises without express consent. It is submitted that the Inspector disregarded the possibility that any objection could be overcome by adopting a form of signage compatible with the council's requirements. This brings one back to the parallel regulatory regime, though it is also advanced separately as a contention that the Inspector failed to have regard to whether signage could be dealt with by a suitable condition.
23. The first difficulty facing Mr Hockman in relation to points (4) and (5) is that they are not covered by his written grounds or particulars of claim. He contended that they arose out of the generality of what was already pleaded, but I am wholly unpersuaded that these points were raised at all. By the particulars of claim I refer to the amended particulars. The claimant was given, and availed itself of, an opportunity to amend the particulars of claim by order of Harrison J when the matter came on before him on 14th July of this year, but was adjourned.
24. The amendments made pursuant to that permission did not include points (4) and (5), nor was any separate skeleton argument or other document raising the points served or filed in advance of the hearing before me today. They emerged for the first time in the course of Mr Hockman's oral submissions this morning. If an amendment were required Mr Hockman sought leave to make one, though without producing an amended document or identifying precisely the form of an amendment sought. The substance of any amendment is apparent, however, from the submissions that I have outlined. Mr Sharland, for the Secretary of State, objected to these points being raised, with or without formal amendment, saying that the Secretary of State was prejudiced in dealing with them, and that prejudice to the council also had to be considered.
25. The council had been keeping a close eye on these proceedings, as is clear from the documents that I have seen, but decided that it was not necessary for it to be represented at this hearing. Mr Sharland pointed out that the council might have wanted to be represented or to draw matters to the attention of the court if it had had notice of the points now raised by Mr Hockman. Mr Sharland did not himself apply for an adjournment and he dealt with the new points briefly and robustly in his oral submissions. In relation to the council, Mr Hockman submitted that an adjournment was not necessary, but that if the court took a different view and considered that an adjournment was called for the court should order an adjournment rather than refusing the claimant leave to amend.
26. In my judgment it would be wrong for me to entertain a significantly new case for the claimant in the absence of notice to the council or representation on behalf of the council in court. If I were to allow the new points to be advanced by Mr Hockman it would have to be on the basis of an adjournment to allow the council to consider its position. But I have asked myself whether it is appropriate for the court to allow these new points to be entertained at such a late stage and in circumstances where they would necessarily trigger an adjournment. In general it is true this court is very flexible in its willingness to admit new arguments and not to take too strict a view of the limits imposed by written grounds, or written particulars of claim, but in this case the claimant has had every opportunity to get its case in order prior to today's hearing. It has already had permission to amend. I do not accept that the matters now raised arise only out of the evidence of Mr Pereira for the council and the evidence of the Inspector, which is something I understand Mr Hockman to suggest. In my judgment the points were there to be taken if the claimant was going to take them from the outset. In any event, the evidence of Mr Pereira and the Inspector was served some two or three months ago. In the circumstances, it is wholly unacceptable that a new case should be advanced at the hearing without any prior warning.
27. I take into account not only the position of the defendants and of the court and the efficient use of its resources, but also the claimant's own interests in the pursuit of this litigation. In the exercise of my discretion, and having regard to the balancing exercise required in pursuit of the over-riding objective, I refuse permission to make the amendments that, in my view, would be required if these points were to be advanced before the court.
28. Let me go on, however, to indicate briefly that even if I had allowed the points to be advanced, and subject to any further matters that the council might have drawn to my attention, the points would not have found favour with me. I would reject the submission that the Inspector failed to have regard to the parallel regulatory regime relating to consent for advertisements. It is clear from his witness statement that he appreciated that there would have to be a separate application for consent in respect of the signage even if planning permission was granted. But, as he also states in his witness statement, signage was still a relevant consideration for the planning decision. The reality of the matter is that no one was suggesting that there would be no signage for these premises. That was not suggested by Mr Hickling in his evidence, nor was it suggested, for example, when the Inspector raised the issue of signs in the course of closing submissions by the claimant's council.
29. In my view the Inspector was plainly entitled to proceed on the basis that there would still be signage relating to the identity of these premises as a hostess bar, and indeed on the basis that there would be obvious outdoor advertising material. It would inevitably be obvious, whether or not it would come within the description of the garish advertisement which, in one of the documents to which Mr Sharland referred me, is said to be one of the characteristics of a hostess bar. In my judgment it was not incumbent on the Inspector to deal in terms with the parallel regulatory regime in his decision. He does not appear to have been directed to the detail of that regime and the issue now raised by Mr Hockman was not a principal important controversial issue before him. I think it sufficient that he made clear his conclusion as to the continuing significance of the advertising material for the planning issues he was dealing with. I do not think that the point about conditions adds anything material. If the Inspector was entitled to take the view he did about the advertising material, then plainly he did not consider, and was reasonably entitled not to consider, that the matter could be dealt with adequately by way of conditions attached to the grant of planning permission. For those various reasons I reject the claimant's case in relation to signage.

Distinctive Entrance

30. I move to the second main component of the claimant's case, namely the challenge to the Inspector's conclusion that the entrance was distinctive. What is said by Mr Hockman is that the entrance consisted simply of a doorway to the basement premises. The evidence also refers to the presence of a single female standing in the ground floor entrance lobby. The claimant does not appear to dispute the previous Inspector's description of that single female standing in a sensual manner designed to entice customers in, though it is to be noted that this Inspector did not observe that and did not see anything approaching touting for custom. In his witness statement the Inspector does make a reference to touting for custom, but this appears to be a mistake which is not reflected in the reasoning in the decision letter, or is simply a reference to the presence of the single female in the entrance lobby. I regard the witness statement as strictly inadmissible on the point, in any event.
31. Mr Hockman submits that even the presence, let alone the behaviour, of a single female in the entrance cannot be encompassed within the expression "distinctive entrance" used by the Inspector. I disagree. In my view the Inspector was entitled to look at all aspects of the matter when assessing whether the premises had a distinctive entrance and whether they fitted into the street scene or were out of place in it.
32. More generally Mr Hockman submits that there was simply no evidential basis for the conclusion that the premises had a "distinctive entrance". Apart from signage, and leaving aside the question of the female in the entrance lobby, with which I have already dealt, he says that there was, on the evidence, nothing distinctive about it. It seems to me, however, that this was pre-eminently a matter of professional judgment for the Inspector and a judgment which had to be made, to a large extent, on the site inspections which he carried out. In my view he was fully entitled to find overall that these premises were sufficiently distinctive from the outside as to be obtrusive, out of character and different in visual form from the neighbouring properties and frontages. I am wholly unpersuaded that such a conclusion was irrational. In particular he took great care to identify the characteristics of this transitional area and the absence of overt sex-related uses in it. It is not necessary to go as far as Mr Sharland's submission that the premises stuck out like a proverbial saw thumb. It is sufficient that there was, in my judgment, an adequate basis for the reference to the premise's distinctive entrance and, more importantly, for the wider conclusions reached in paragraph 16 of the decision letter concerning the effect of the premises on the character and appearance of the area.
33. If and in so far as Mr Hockman advanced as a separate argument that the Inspector's reasoning was deficient, which is one of the points made in the particulars of claim, I reject it. In my judgment the Inspector's reasoning is both clear and sufficient.
34. Mr Hockman did submit, by reference to Fairmount Investments and the Secretary of State for the Environment [1976] 1 WLR 1255, that the Inspector was under a legal obligation to give the claimant an opportunity to address his concerns about the distinctive entrance and its obtrusive quality. I have no hesitation in rejecting that submission too. This was far removed from the facts of Fairmount Investments, where the Inspector reached his conclusion on the basis of a technical opinion arrived at in the course of a site inspection, but which investigation might have shown to be erroneous, to the effect that the foundations of a property were inadequate. In this case the issue was known and had been the subject of evidence. It was for the Inspector to form his own judgment on the basis of the evidence and the site inspections as to the external impact of the premises on the character and appearance of the area. It was not necessary for him to invite submissions from the claimant on the views he had formed on that issue. He did in fact raise, as I have already mentioned, a point about the physical manifestation of the use of the premises, a point raised in the course of the closing submissions of the claimant's counsel. It was not necessary for the Inspector to do even that, let alone to go any further.
35. In conclusion, although paying tribute to Mr Hockman's advocacy skills, I reject the case he has advanced on behalf of the claimant. The section 288 challenge and the section 289 appeal are both dismissed.

Yes, Mr Sharland?

36. MR SHARLAND: A couple of matters: firstly, you referred to Westminster's witness as Mr Bryce, it is Mr Bruce and secondly, we would ask for our costs. Do you have a statement of costs?
37. MR JUSTICE RICHARDS: I think I have the claimant's statement of costs, but not yours.
38. MR SHARLAND: My Lord, how this has been calculated, the first two pages are the statement of costs for today's hearing, the third and fourth pages are statements of costs up to the previous hearing. You have a total of £5,340, which is calculated by adding £2,760 on the second page and the £2,580 on the fourth page. We are seeking summary assessment at £5,340. In the light of the fact that the claimant is seeking over £20,000 I would suggest our costs are extremely reasonable.
39. MR JUSTICE RICHARDS: Let me hear from Mr Hockman.
40. MR HOCKMAN: I am at a disadvantage. We have not seen this until now. I hear by a whisper it was faxed perhaps yesterday.
41. MR JUSTICE RICHARDS: It will not take you long to look at it. I doubt whether you are going to have anything positive to say about it. On the face of it, these are modest costs for proceedings of this nature. Certainly more modest than those of the claimant.
42. MR HOCKMAN: In the time it has taken me to make the comment my instructing solicitor has had the opportunity to look at it and instructed me not to seek to address your Lordship in relation to it.
43. MR JUSTICE RICHARDS: That is very sensible of him and of you. There must be an order for costs in favour of the Secretary of State. As I understand it, the council's position was no order as to costs. So far as the Secretary of State is concerned, the claimant will pay the Secretary of State's costs summarily assessed in the total sum of £5,340.
44. MR HOCKMAN: May I ask your Lordship for permission to appeal? I realise from one perspective your Lordship's decision could be said to be entirely specific to the circumstances and specific to the wording of the decision. May I respectfully suggest that from another perspective, and at least in relation to the signage issue, there is contained within your Lordship's reasoning this point which perhaps does have wider implications, namely whether when dealing with a parallel regime (which for the purposes of that argument we plainly were) it is necessary to deal with it explicitly and to go through the process of reasoning. Gateshead suggests one should go through that. Whether that needs to be fully articulated and whether, in other words, one needs to come to the view that the parallel regime could not arrive as an exceptional conclusion, or whether it is sufficient, as your Lordship has indicated, to reach the same result by a more direct route--
45. MR JUSTICE RICHARDS: There are two problems. One is, so far as concerns the section 289 appeal, I do not think that there is a further right of appeal, even with permission. Are we not at the second appeal problem?
46. MR HOCKMAN: Your Lordship I would be disposed to accept anything your Lordship said on procedure without question.
47. MR JUSTICE RICHARDS: I am not expressing full confidence about this but I think there is a problem in the Enforcement Notice cases in that there is the one appeal to the Inspector, the second appeal to this court and then there is the statutory limitation on further appeals. Mr Sharland is nodding as if I have got it right.
48. MR SHARLAND: If it may assist, it is page 1434 of volume 1 of 2004.
49. MR JUSTICE RICHARDS: Needless to say this court cannot afford a 2004 White Book. Section 55(1) of the Access to Justice Act 1999.
50. MR SHARLAND: Would it assist if I hand up my copy?
51. MR JUSTICE RICHARDS: Tell me again. It is 52.3.9? "Permission to be granted more sparingly..."
52. MR SHARLAND: Prior to that it should be entitled "Permission to be granted--
53. MR HOCKMAN: I can assist having consulted the encyclopedia it looks as though your Lordship is right in the sense, so far as the 289 appeal is concerned, that we have to go to the Court of Appeal and the Court of Appeal will give permission but only if it considers that the appeal raises an important point of principle, or that there is some other compelling reason.
54. MR JUSTICE RICHARDS: That I cannot deal with. I can still deal with the application so far as the section 288 appeal is concerned. That by itself, of course, creates an impossible position because the two appeals run together.
55. MR HOCKMAN: May I invite your Lordship to consider the matter that I have raised?
56. MR JUSTICE RICHARDS: Can I raise the second problem in relation to permission to appeal, which is on the signage issue: the parallel regulatory regime, I found against you on the primary basis by refusing permission to amend. That is an exercise of discretion. You are going to have to persuade me or the Court of Appeal that that is beyond the reasonable limits of my discretion. You will have difficulty persuading me of that, but you may have better luck at the Court of Appeal, I do not know.
57. MR HOCKMAN: I always need luck when I go to the Court of Appeal, that is for sure. I do not know whether I have to go so far as to persuade you within less than five minutes that the decision was outside reasonable limits. I think all I need to do is persuade you that it is arguable, which is a much lower test. My Lord, if I could just invite your Lordship to look at the amended grounds and to go back to those for one moment. It is tab 3 of the main bundle, in particular, I think, at paragraph 20 on the top of page 18.
58. MR JUSTICE RICHARDS: That is reflected in the natural justice argument at 36, I think.
59. MR HOCKMAN: The case we have been putting forward is that we presented matters to the Inspector on the basis that signage should be dealt with under the parallel regime and that he unexpectedly and inappropriately decided to deal with that in the planning context. In substance, what I am submitting to your Lordship on the pleading point or the adjournment point, however one wants to categorise it, is that that is the case which paragraph 20 was putting forward, but not precisely in that language. The substance of what is being said in paragraph 20 is that we put forward the case for the parallel regime, that we expected the matter to be dealt with under the parallel regime, and that instead it was dealt with in a different way.
60. I simply submit in relation to this, and I give your Lordship this indication, that the grounds upon which we would seek to argue that your Lordship's decision in relation to the adjournment may have been in error would be that, in substance, the argument that we have put forward is contained in paragraph 20 and perhaps elsewhere. Certainly, however, by way of example of paragraph 20 and that it is for those sorts of reasons that it was unnecessary for us to amend and that the argument was one which was within the scope of the pleadings. We suggest that it is at least arguable that is the case.
61. My Lord, what I would invite your Lordship to do, and your Lordship it is a customary courtesy, is to rule on that point, but if you felt able to do so to rule on the other points. In other words, to give us an indication that in your Lordship's view the question of how the Inspector should deal with the parallel regime, whether it is sufficient for him to deal with it in the way that he did, is a point that is not only arguable but worthy of consideration by an Appellate court. In my submission your Lordship's view would be valuable and your Lordship's view would be of assistance whatever occurs when we get before the Court of Appeal: whether we are arguing that we come within the criteria for a further appeal under section 289, or whether we are seeking to advance the case in relation to section 288. I fully accept that that will have to be done by the statements that your Lordship has quite rightly drawn to my attention.
62. MR JUSTICE RICHARDS: Thank you very much. I refuse permission to appeal. In my judgment there is no real prospect of success. The primary basis for my holding against the claimant on the parallel regime issue is an exercise of discretion and I do not accept that there is an arguable case that the matter was covered by the existing pleading. So far as the underlying issue is concerned, I am not satisfied that it is one of wider importance that is worthy of consideration by the Court of Appeal rather than one very much dependent upon the particular facts of this case.