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 April 2006

1. SIR MICHAEL HARRISON:

Introduction

2. This is an application under section 288 of the Town and Country Planning Act 1990 by the claimant, Sager House (Chelsea) Limited, to quash a decision of the First Defendant, the First Secretary of State, made by his Inspector dated 20 January 2005 when he dismissed the claimant's appeal against the failure of the Second Defendant, the Council of the Royal Borough of Kensington and Chelsea, to decide within the prescribed period its application for planning permission for the development of the site of a redundant electricity transformer station known as the Power House, Alpha Place in Chelsea. The proposed development involved the demolition and rebuilding of the buildings on the Chelsea Manor Street frontage of the site and the remodelling and extension of the Power House building itself to create 61 residential apartments with associated parking, amenity areas and a health suite at basement level.
3. Subject to the lodging of the claimant's appeal, the second defendant resolved that the proposed development would have been refused for the following two reasons:

1. The proposed extensions, and resulting height, bulk, scale and mass of the building constitute an overdevelopment of the site which results in harmful impacts on occupiers of adjoining properties in particular in terms of increased sense of enclosure and loss of privacy, contrary to policies set out in the 'Conservation and Development', 'Housing' and 'Leisure and Recreation' Chapters of the Unitary Development Plan, in particular Policies CD47, CD44, CD36, CD35, CD46, CD27, CD28, H19, H7, CD38, LR14, LR15 and LR40.

2. The resulting height, bulk/scale and mass harm views from the adjoining Cheyne and Royal Hospital Conservation Areas, contrary to policy set out in the 'Conservation and Development' Chapter of the Unitary Development Plan, in particular Policy CD63."

In paragraph 5 of his decision letter, the Inspector identified the two main issues as the impact the development would have on:

"a) the character and appearance of the locality, including with respect to its effect on the Cheyne and Royal Hospital Conservation Areas;

b) the living conditions of the occupiers of neighbouring residential properties."

4. The Inspector dismissed the claimant's appeal on the grounds that it would cause significant harm, firstly to the views from and the setting of the Royal Hospital Conservation area and, secondly, to the privacy and sense of enclosure of neighbouring residential properties. The Inspector's reasons for those conclusions are contained in a 12-page decision letter.
5. The grounds of the claimant's section 288 application run to some 33 pages containing 7 grounds, but with almost 100 different sub-grounds, several of which overlap. The claimant's skeleton argument runs to over 50 pages together with a 29 page appendix relating to discussions between the claimant's experts and Council officers prior to the inquiry. The application has generated a very significant amount of paperwork including a witness statement from one of the claimant's expert witnesses, Mr Cooper, running to 128 pages which is longer than his proof of evidence at the inquiry and which contains a significant amount of new evidence and diagrams which were not before the inquiry.
6. I find this approach to a relatively straightforward 12-page decision letter to be wholly unacceptable. It has resulted in a hearing lasting five- and-a-half days when it should not have taken more than half that time, even bearing in mind that a Wednesbury perversity argument was being raised on one of the two main issues. I do not propose to deal with all the points that have been raised but the proliferation of points does mean that this judgment necessarily has to be longer than would other otherwise have been the case.
7. I start by briefly describing the site and its surroundings. The site is bounded on the west side by Chelsea Manor Street, on the north side by Alpha Place and on the east side by a terrace of houses fronting on to Flood Street. To the south side lies Chesil Court which is a block of flats. The eastern boundary of the Cheyne Conservation Area comes up to the west side of Chelsea Manor Street opposite the appeal site, and the western boundary of the Royal Hospital Conservation Area comes up to the east side of Flood Street opposite the appeal site where Redesdale Street and Redburn Street run off Flood Street towards the east.
8. The proposed development includes the demolition and rebuilding of the existing buildings on the west side of the site fronting onto Chelsea Manor Street, and the remodelling and extension of the existing Power House building. The remodelling involves an extra storey together with a curved roof whilst the extension involves the demolition of some lower level transformer housing attached to the east side of the Power House and the extension of the Power House further to the east towards Flood Street Terrace which consists of 10 terraced houses comprising basement and four floors above, which back directly onto the appeal site with rear gardens about 7 metres deep. The eastern extension of the Power House would have an undulating facade with windows on the inner curves rather than the outermost parts so that the typical horizontal window to window distances between the development and Flood Street Terrace would be about 17-18 metres. The current eastern facade of the existing Power House building is about 24 metres from the windows of Flood Street Terrace.
9. There were lengthy discussions and negotiations over a period of about a year prior to the inquiry between the claimant's experts, Mr Gough, an architect, and Mr Cooper, a planning consultant and Council officers, in particular Mr Coey, the area planning officer, and Ms Benes, a senior planning officer in the design and conservation team. Those discussions led to a number of amendments being made to the scheme. The claimant's experts thought that Ms Benes was satisfied with the scheme so far as design and conservation area issues were concerned. However, a few weeks before the inquiry the claimant was served with the proof of evidence of Mr McCoy, a planning consultant, dealing with those matters on behalf of the Council because Ms Benes was on holiday at the time of the inquiry. As a result of concern being expressed by the claimant's experts, the Council served on the claimant a short statutory declaration made by Ms Benes stating that she agreed with both of the Council's putative reasons for refusal.
10. At the inquiry there was a considerable dispute about what had been agreed by Ms Benes, the Council claiming that she had agreed detailed matters of design but not issues arising from the bulk, height and massing of the proposed development including their effect on the views out of the Conservation Areas. There was also an objection on behalf of the claimant at the inquiry to the admissibility of Ms Benes' statutory declaration but the Inspector allowed it to be admitted into evidence.
11. I mention those matters because they are referred to in the grounds of this application. The only other matter that I should refer to at this stage is that the local residents were represented at the inquiry by counsel who called two expert witnesses, Mr Levrant, an architect and Mr de Lotbiniere, a planning consultant. The inquiry lasted a total of ten days from 27-30 July, 2-5 and 8 November and 13 December 2004. The Inspector, Mr Phillimore MA, MCD, MRTPI, carried out a site inspection on 8 November 2004.
12. In his decision letter, the Inspector, having set out the putative reasons for refusal and the two main issues, to which I have already referred, dealt with planning policy between paragraphs 6 to 18. Most of that section was taken up by referring to the policies of the Royal Borough of Kensington and Chelsea Unitary Development Plan ('the UDP'), but paragraph 17 dealt with the 'Planning Guidelines' issued by the Council in 2003 relating to this site, to which the Inspector gave significant weight. That aspect forms the subject matter of the claimant's first ground of this application.
13. Between paragraphs 19 and 24, the Inspector described the site and its surroundings, followed by paragraphs 25 to 27 which described the proposal. Between paragraphs 28 to 37, the Inspector dealt with the first issue, namely the effect of the proposal on the setting of the Conservation Areas. His conclusions on that issue form the subject matter of the claimant's second and third grounds of this application.
14. Between paragraphs 38 to 49, the Inspector dealt with the second main issue, namely the effect of the proposal on neighbouring living conditions, in particular privacy and sense of enclosure. His conclusions on that issue form the subject matter of the claimant's fourth ground of this application.
15. The Inspector then dealt with some other matters between paragraphs 50 and 56 followed by his conclusions in paragraphs 57 and 58.
16. The claimant's fifth ground of the application is directed to the way the Inspector dealt with the expert evidence, but it is, in effect, repetitive of some of the matters raised in earlier grounds.
17. The claimant's sixth ground of the application alleges that the Inspector was biased, and the seventh ground , in effect, alleges unfairness from the inquiry procedure.
18. As I have mentioned, the grounds of the application have so many sub-points that it is unrealistic to deal with all of them. In some cases, the claimant has simply relied on large chunks of Mr Cooper's lengthy witness statement. Many of the sub-points, particularly in ground 4, are put in every conceivable way - failing to take matters into account, failing to give adequate reasons, unfairness, irrationality and perversity, the latter meaning Wednesbury unreasonableness.
19. The general thrust of the case for both the first and second defendants is that this application is an attempt to re-run the merits of the case and that the issues were primarily issues of planning judgment with which the Court should not interfere. I turn then to deal with the grounds of the application.

Ground 1 - Planning Guidelines

20. The first ground of the claimant's application is directed primarily at the Inspector's conclusions in paragraph 17 of his decision letter where he stated that he gave significant weight to the Planning Guidelines. In paragraph 17 of the decision letter the Inspector stated:

"17. The February 2003 the Council issued 'Planning Guidelines' on the site. These were approved following consultation with, among others, local residents and associations and the site owners. The appellant has criticised the document for, what is contended to be, its overly prescriptive approach, unsatisfactory response to consultee comments on the draft, and inconsistency with UDP policies. It is also suggested that the guidelines were not prepared on the basis of being supplementary planning guidance but, even if they are accepted as such, they should not be given substantial weight for the above reasons. I note that the relevant Council report leading to approval of the guidelines dated 2 December 2002 did refer to them as supplementary planning guidance. In my view the preparation of the guidelines generally followed the principles on such guidance set out in PPG12, and I consider that they allow scope for a variety of approaches to development of the site rather than excluding alternatives to the options identified. The alleged shortcomings in terms of references to relevant policies in my opinion have some substance as regards precise wording and omissions. However, in my view this largely reflects an application of the principles of the UDP to the characteristics of the site, as I would expect to find in such guidance, rather than a material deviation from its policies or pre-judging of future proposals. Having regard to the advice in paragraph 5.22 of PPS12, together with UDP policy CD90, I therefore give significant weight to the Planning Guidelines."

21. The claimant raises some 13 sub-points under this ground, some of which re-appear under subsequent grounds. The first point is that the Inspector failed to make it clear whether he attributed to the Guidelines the status of Supplementary Planning Guidance ('SPG').
22. Whilst it is true that the Inspector did not expressly state that the Guidelines had the status of SPG, it is clear to me that he considered that they did have that status. Having referred to the claimant's contention that they had not been prepared as SPG, he noted that the Council had referred to them as SPG when adopting them. He then referred to their preparation as generally following the principles of PPG12. That is plainly referring to paragraphs 3.15 and 3.16 of PPG12 which deal expressly with SPG. Furthermore, in the last sentence of paragraph 17 of the decision letter the Inspector refers to the advice in paragraph 5.22 of PPS 12. That is a paragraph which is dealing with SPG and which makes it clear that the advice in paragraphs 3.15 and 3.16 of PPG 12 remain in force. It is therefore not surprising that the Council's own witness, Mr Cooper, in paragraph 2.8 of his witness statement referred to the Inspector's conclusion that the Guidelines constituted SPG.
23. The second point is that the Inspector perversely found that the Guidelines had been generally prepared in accordance with PPG12. Paragraph 3.15 of PPG12 states that consultation should be undertaken and that the status of the SPG should be made clear. Paragraph 3.16 states that there should be a Council resolution to adopt it as SPG and that a statement on the consultation should be made available with each copy, either as an annex or in a separate document. It also states that the Secretary of State will give substantial weight to SPG which is consistent with the Development Plan and which has been prepared in the proper manner. The claimant's case is that the status of the SPG was not made clear on consultation so that there was not proper consultation, and that the Council's statement of the consultation undertaken was not made available with each copy of the Guidelines either as an annex or in a separate document.
24. It would appear that the status of the Guidelines as SPG was not made clear on consultation, although there is no suggestion that any prejudice was caused as a result. There was full consultation on the Guidelines and it is clear from the officer's report on consultation that there were full and lengthy responses from a number of associations, bodies and persons including lengthy responses by professional consultants on behalf of local residents and on behalf of the site owners. It is difficult to conceive that those responses would have been any different if it had been made clear that the Guidelines were SPG. The Council expressly adopted the Guidelines as SPG and, although it would appear that the statement on consultation was not handed out with the SPG, the report on consultation was a publicly available document.
25. The position therefore is that there were some shortcomings in the preparation of the SPG but that there was compliance with the important requirements of consultation and of adoption as SPG. The Inspector stated that the preparation of the Guidelines "generally" followed the principles of the guidance in PPG12. He did not suggest that there was complete compliance. Whilst other people might take a different view as to the extent of compliance, I do not accept that his conclusion on this aspect can be said to be perverse.
26. Next, it is suggested that the Inspector failed to take into account that no breach of the Guidelines was alleged in the reasons for refusal. It was, however, quite clear in the Council's own evidence that they were relying on the Guidelines. I do not attach any importance to that point.
27. The next point is that the Inspector irrationally, perversely and for unintelligible reasons refused to take into account, in the claimant's favour, the claimant's criticism that the Guidelines did not accord with policies in the UDP. What is said is that the Guidelines are more restrictive than the UDP policies. The following examples were given: UDP policy CD63 is "to consider" the effect on views out of conservation areas, whilst paragraph 4.5 of the Guidelines is "to improve" the views from the Cheyne Conservation Area; policy CD35 requires development "to ensure sufficient visual privacy" of residents, whilst paragraph 4.6 of the Guidelines requires the design of new buildings "to safeguard the privacy" of adjoining residents; and policy CD36 is to resist development that "would result in a harmful increase in the sense of enclosure" to nearby properties whilst paragraph 4.6 of the Guidelines requires that new development "should ... not increase the sense of enclosure" to nearby properties. It is submitted that the Guidelines should be no more restrictive than the UDP policies require, otherwise they would not be consistent with the UDP.
28. The Inspector clearly took the claimant's criticisms into account in paragraph 17 of the decision letter when he referred to the claimant's criticism that the Guidelines were overly prescriptive and inconsistent with UDP policies. He then dealt with those criticisms by accepting that the alleged shortcomings in references to relevant policies had some substance so far as precise wording and omissions were concerned, but he took the view that it largely reflected the application of the principles of the UDP to the characteristics of the site, as he would expect to find in such guidance, rather than a material deviation from its policies or prejudging of future proposals.
29. I do not accept that those conclusions are irrational or perverse, nor do I accept that the reasoning is unintelligible. The UDP policies apply to the whole of the Royal Borough. The way in which they are applied to particular sites will vary according to the particular characteristics of the site concerned. The purpose of the Guidelines is to give more detailed guidance on the way in which the general UDP policies apply to the particular circumstances of this site. It has to be borne in mind that this was a very particular site which had on it a large Power House in juxtaposition to residential properties. It is not surprising that the Guidelines were restrictive when applying the UDP policies to the site, but the Inspector was, in my view, entitled to take the view that, whilst there were some shortcomings in the wording of the Guidelines compared to the UDP policies, they were not overly prescriptive such as to amount to a material deviation from the policies, nor did they pre-judge future proposals. There certainly were restrictions on future proposals contained in the Guidelines, but it was, in my view, a matter of judgment for the Inspector to decide as a matter of degree whether they went so far and were so over-prescriptive as to be inconsistent with the UDP policies. The reasons he gave in paragraph 17 of the decision letter were sufficient to explain why, whilst accepting some shortcomings, he gave significant weight to the Guidelines. It is pre-eminently a matter for the Inspector to decide what weight to give to the Guidelines and I do not consider that there are sufficient grounds for the court to interfere with that judgment.
30. In coming to that conclusion I have taken into account the other points made in this ground about the Guidelines, for instance, the statements in paragraphs 4.1 and 4, 2 that replication of the height of the existing building would be inappropriate and that a height not exceeding five storeys or lower would be appropriate. There certainly are paragraphs of the Guidelines which have redevelopment in mind but, as was agreed at the enquiry (see paragraph 28 of the decision letter), the Guidelines do not require demolition and, as the Inspector remarked in paragraph 17 of the decision letter, they allow scope for a variety of approaches to development of the site rather than exclude alternatives to the options identified. That was a conclusion properly open to the Inspector on the evidence that he heard. Although redevelopment was the preferred option of the Guidelines, they do not rule out alternative options, including retention.
31. The only other matter raised under the first ground of the application to which I should briefly refer relates to paragraph 37, rather than paragraph 17, of the decision letter in which the Inspector stated:

"37. I therefore find on the first issue that the proposal would have some positive effects on the character and appearance of the locality, but would be detrimental to the setting of the Royal Hospital Conservation Area in terms of longer views. It would not fully meet the requirements of the relevant UDP policies and Planning Guidelines."

32. The claimant contends that the Inspector erred in concluding that the requirements of the Guidelines would not be met because of the detrimental effect on the longer views from the Royal Hospital Conservation Area when the Guidelines do not contain any requirement relating to those views. I do not consider it right to link those two sentences in paragraph 37 of the decision letter in that way. Paragraph 37 is a summary of preceding paragraphs. Paragraphs 34 to 36 of the decision letter deal with the long views from the east. The only mention of the Guidelines in those paragraphs is in paragraph 36 where reference is made to the expectation of the Guidelines that the height of the existing building will not be replicated and that the height not exceeding five storeys or lower would be appropriate. It seems to me that the reference in paragraph 37 to not meeting the requirements of the Guidelines is a reference to that part of the Guidelines referred to in paragraph 36.
33. Having considered all the matters raised under the first ground of this application, I do not consider that the Inspector erred in law in applying the Guidelines or in the weight that he attached to them.

Ground 2- Views out of Royal Hospital Conservation Area

34. The second ground of the application relates to the Inspector's conclusions on the first main issue relating to the longer views from the Royal Hospital Conservation area. I have already quoted his overall conclusion in paragraph 37 of the decision letter, but it is necessary to refer to his more detailed conclusions in paragraphs 28 to 36 of the decision letter.
35. I have already mentioned that, in paragraph 28, the Inspector stated that there was agreement at the inquiry that the Guidelines did not require demolition of the existing buildings on the site. In paragraph 29, the Inspector considered the long oblique views of the site along Chelsea Manor Street and Flood Street and concluded that the proposal would not be significantly out of character. In paragraph 30, he concluded that, in overall terms, the design of the building fronting onto Chelsea Manor Street was carefully considered in relation to the surroundings. In paragraphs 31 and 32, he considered views from the Cheyne Conservation Area. He concluded that the overall effect would be a limited enhancement of the view from the north leg of Oakley Gardens within that Conservation Area and that the change in view from the southern leg of Oakley Gardens would not be to the detriment of that Conservation Area. In paragraph 33, he considered the views from the north side of the east end of Alpha Place and its junction with Flood Street and westward along Redesdale Street and Redburn Street leading off the east side of Flood Street. He concluded that the effect of the changes on those views from the Royal Hospital Conservation Area would be neutral.
36. In paragraphs 34 to 36, the Inspector considered the more distant views from the east. Those paragraphs give the reasoning for his conclusion that the proposal would be detrimental to the setting of the Royal Hospital Conservation Area in terms of longer views. Those are the paragraphs to which the second and third grounds of the application are primarily directed. It is therefore, necessary to set them out in full:

"34. In more distant views from the east the central block is seen rising above the height of the Flood Street terrace, with the north tower forming a strong geometric termination at the end of Redesdale Street. The existing bulk and unattractive features of the building in my opinion become less apparent by virtue of the effects of distance and the congruity of its brickwork with other buildings. In these views I consider that the added bulk of the proposal at the upper levels, while remaining below the height of the service towers, would be very apparent in terms of extension both upwards and towards the Flood Street houses. In addition, I consider that the expanse of curving metal roof with its large recessed openings would appear alien in form and scale to the surroundings, having neither the existing industrial nor a clear residential character. While the proposed materials would be of lighter tone than the existing brick, they would in my opinion create a greater contrast with the prevailing surrounding materials. The existing relatively successful termination of the Redburn Street vista by the Flood Street terrace would in my assessment be eroded by the added bulk seen above the roofs of the houses. I consider that any aesthetic benefit of viewing roof against roof would be outweighed by the reduced separation distances between the buildings and the contrasting materials.

35. I do not accept that the relatively small field of vision affected by these changes and the architectural robustness of the Conservation Area terraced housing would neutralise any impact, since the site is a focal point to which the east-west terraces visually converge. I regard these skyline views as an important aspect of the setting of the Conservation Area. Although I acknowledge that views of contrasting forms of development beyond the boundaries of Conservation Areas are common, and some are apparent locally, in this case I consider that the effect would be to the detriment of the setting of the Royal Hospital Conservation Area that the site closely abuts, which would be neither preserved nor enhanced in terms of its character and appearance.

36. There are differing interpretations as it applies to this case of part d) of policy CD44, which seeks to resist additional storeys and roof level alterations on buildings which are higher than surrounding neighbours. This is in terms of whether the proposal is exempted from this criterion by virtue of the existing building being lower than Chesil Court. Regardless of this, I find the proposal to be in breach of part e) of this policy in that the roof line is exposed to long views from public spaces and there would be an intrusive impact on that view. Furthermore, the general approach of the UDP is restrictive towards such development. I also consider policy CD47, dealing with other types of extension, to be applicable in spite of the degree of alteration to the building that would be carried out and the design quality. I find the proposal to be in breach of part d), in that it would not be visually subordinate to the parent building. It is also contrary to the expectation of the Guidelines that the height of the existing building will not be replicated and that a height not exceeding five storeys or lower would be appropriate. Given my findings above, I do not consider that the proposal has successfully demonstrated that an increase in height could acceptably be accommodated. The impact on views from the Royal Hospital Conservation Area is in conflict with the requirement of policy CD63. As such, in terms of the wider surroundings I consider that the proposal also breaches the second part of policy CD27 by virtue of elements of its scale, height, bulk and materials."

37. The claimant raises some 13 sub-points in the second ground of the application. First, it is said that the Inspector failed to take account of the reduction in the negative impact of the existing buildings on the setting of, and views from, Conservation Areas. It is suggested that the Inspector, having recognised some beneficial effects of the proposal on visual amenity, failed to consider whether, overall, the harm outweighed the benefits.
38. In paragraph 24 of the decision letter, the Inspector expressly recognised the negative impact of the existing buildings on the site on the setting of, and views from, the Conservation Areas. As I have already mentioned, he identified a limited enhancement of the view from the north leg of Oakley Gardens in the Cheyne Conservation Area and, in his concluding paragraph 37 on this aspect, he found that the proposal would have some positive effects on the character and appearance of the locality but that it would have a detrimental effect on the longer views from the Royal Hospital Conservation Area. Those observations are taken forward in paragraphs 57 and 58 of the decision letter where he set out his conclusion on the benefits in paragraph 57, expressly referring to some enhancement in the views and setting of the Cheyne Conservation Area, and the harm in paragraph 58 including the significant harm in the views from and the setting of the Royal Hospital Conservation Area. He concluded that paragraph by saying that the benefits of the proposal do not, in his opinion, outweigh the harm that he had identified.
39. The Inspector therefore carried out a balanced assessment which included the benefits and the harm relating to the setting of, and views from, the Conservation Areas. There is no merit in this sub-ground of the application.
40. Next, it is said that the Inspector failed to take into account that no Environmental Impact Assessment ('EIA') was required because the proposal was not of a scale or type likely to have a significant effect on the environment. This was not a point relied on in closing submissions on behalf of the claimant at the inquiry which is not surprising because the requirement for an EIA involves the application of statutory criteria in the Town and Country Planning (Environmental Impact Assessment) Regulations 1999 and the application of indicative thresholds and criteria which are quite separate from consideration of the question whether planning permission should be granted. The fact that a proposal does not require an EIA does not mean that it cannot be refused permission on account of harm that it does.
41. Next, it is said that the Inspector failed to take into account that the views from the Royal Hospital Conservation Area were not identified in the UDP in the Guidelines, or in any Conservation Area Statement, as being of importance, whilst the Guidelines identified the views out of the Cheyne Conservation Area as requiring improvement.
42. Policy CD8 of the UDP requires important views in and around the Royal Hospital to be protected. Some of those views are listed in the lower text and they do not include the view identified by the Inspector, but the list is inclusive and not exhaustive. Policy CD63 requires consideration of the effect of proposals on views identified in the Council's Conservation Area Proposals Statements "and generally within, into and out of Conservation Areas". The Inspector was therefore required by policy CD 63 to consider the views out of the Royal Hospital Conservation Area even though it was not identified in the Conservation Area Proposals Statement.
43. Furthermore, as the Inspector said in paragraph 18 of the decision letter, the Proposals Statements for both the Cheyne and Royal Hospital Conservation Areas were of some age and do not fully comply with current best practice, in particular with regard to identification of important views into and out of those Conservation Areas and their setting. The Inspector was obviously well aware of what views were or were not identified in the relevant documents and there was no reason why he should not identify the long views out of the Royal Hospital Conservation Area as important. Furthermore, in paragraph 35 of the decision letter he explained why he considered those views to be important. He stated that the site was a focal point to which the east-west terraces visually converge and he said that he regarded the skyline views as an important aspect of the setting of the Royal Hospital Conservation Area. The Inspector was exercising his planning judgment and he gave adequate reasons for the conclusion that he reached.
44. Next, it is said that the Inspector failed to take into account, first, that Ms Benes did not identify the views from the Royal Hospital Conservation Area as important and, second, that her statutory declaration was inadmissible. I have already mentioned the dispute at the inquiry about what Ms Benes did or did not agree in the discussions prior to the inquiry. The various memoranda relating to those discussions were exhibited to Mr Coey's proof of evidence, including a memorandum of 29 January 2004 by Ms Benes in which she described the design as "inspired, ingenious and striking" and stated that the reduction in the bulk on the Chelsea Manor Street side resulted in a proposal that would not harm, and may even enhance, the views from the Cheyne Conservation Area. The claimant relies on that memorandum as showing that she must have been responsible for assessing views from the Conservation Areas.
45. Mr Coey stated in his proof of evidence that Ms Benes' views as expressed to him were that the revisions to the detailed design were satisfactory but that her objections on design grounds to the height, bulk and massing of the scheme remained. Mr McCoy said in his proof of evidence that Ms Benes had told him that her negotiations latterly had related to the proposed new building fronting onto Chelsea Manor Street because it was plain that the claimant was unwilling to reduce the height of the Power House building.
46. Although these matters were ventilated at the inquiry, they were subsequently relied on in an application by the claimant for costs based on the second defendant's alleged unreasonable behaviour. A separate costs decision letter was issued by the Inspector on the same day as the appeal decision letter. In paragraph 48 of the costs decision letter, the Inspector stated:

"I have carefully considered the criticisms made by the appellant relating to the consistency and other aspects of the design advice given by the Council on the proposal. It is far from easy to reconcile the positive tones of the design officer (Ms Benes) as recorded in her later written memoranda with the views expressed in her statutory declaration. If the former were conveyed in the same way to the appellant, and meeting notes suggest that to have been the case, I can understand why a belief could have been reached that the design officer was content with the scheme following the completion of her negotiations. Nevertheless, some difference in opinion between the design officer and her colleagues was recorded in the notes of the meeting of 15 October 2003. Furthermore, the Council's letter of the same date clearly indicated wider concerns on, among other matters, the effect of height and bulk on views from both Conservation Areas, as did the Committee report of 17 February 2004."

47. The Inspector was, therefore, well aware of the dispute between the parties over the memorandum and the statutory declaration and he made clear that he could understand why a belief could have been reached that Ms Benes was content with the scheme following the completion of the negotiations. He clearly took those matters into account but, at the end of the day, he was concerned with the members' decision and the expert evidence that was called at the inquiry, including not only the claimant's expert witnesses, but also Mr McCoy on behalf of the Council, and Mr Levrant and Mr de Lotbiniere on behalf of the residents. He visited the site and decided for himself what the effect of the proposal would be on the long views from the Royal Hospital Conservation Area. In those circumstances, there was no need for him to spell out in the appeal decision letter the dispute concerning Ms Benes, nor was he wrong to admit her statutory declaration. That was an inevitable decision bearing in mind what he already knew from the proofs of evidence; it was a matter for him to decide what weight to attach to it.
48. Next, it is suggested that the Inspector failed, when considering the views from the Conservation Areas, to take into account that the appeal site was in the zone between Flood Street and Chelsea Manor Street where there were a number of tall buildings and that the proposed development would accord with the character of that zone.
49. That point is unsustainable. In paragraph 23 of the decision letter, the Inspector expressly concluded that the claimant's "Urban Context Appraisal" correctly identified the strong presence of apartment blocks of varying types and ages in the vicinity of the site and he went on to identify a number of those apartment blocks. Furthermore, he would have seen those apartment blocks when carrying out his site visit and he would have been aware of them when assessing the impact of the proposal on the longer views from the Royal Hospital Conservation Area. It is inconceivable that he failed to take them into account.
50. The final point with which I need to deal under the second ground of the application relates to a letter of support for the proposal from the Commission of Architecture and the Built Environment ("CABE"). In paragraph 55 of the decision letter, the Inspector stated:

"55. I recognise the record of achievement of the scheme's architect, Piers Gough, and the support the proposal has attracted for the Commission for Architecture and the Built Environment (CABE). I have taken full account of the views expressed by CABE in its letter of 20 November 2003, much of which I agree with. However, whether or not this was written with knowledge of the contents of the Council's Guidelines, I am unable to agree, given the intended degree of extension and alteration of the main building, that the proposal in this respect is modest and would retain the integrity of the building. I also note that the letter makes no specific reference to the Conservation Area views and impact on neighbouring amenity on which I have reached unfavourable conclusions."

51. The claimant's complaint relates to the last sentence of that paragraph where the Inspector remarked that CABE's letter makes no specific reference to Conservation Area views. The claimant contends that it was irrational or perverse for the Inspector to proceed on the basis that CABE had not taken those views into account, given the nature of CABE's responsibilities and the material supplied to it, which included a letter from the Council which raised a large number of matters including harm to views out of neighbouring Conservation Areas.
52. It is quite clear from paragraph 55 of the decision letter that the Inspector took full account of what CABE said in its letter. Indeed, he agreed with much, but not all, of its content. In the last sentence of that paragraph he is simply remarking that CABE's letter makes no reference to the matters upon which he reached unfavourable conclusions. That is a factual statement which is correct and from which he makes no assumption or implication. He is simply making the factual point that CABE's letter did not deal with the matters that concerned him. I see nothing wrong with that at all.
53. I have had regard to all the other matters raised under the second ground of the application, but I am satisfied that they do not disclose any error of law on the part of the Inspector in reaching his conclusion that there would be significant harm to the views from, and the setting of, the Royal Hospital Conservation Area. He visited the site and made a careful assessment of something which was pre-eminently a matter of planning judgment.

Ground 3 - planning policy relating to views from the Royal Hospital Conservation Area

54. This ground of the application arises out of the Inspector's conclusion in paragraph 37 of the decision letter, which I have already quoted, that the proposal would not fully meet the requirements of the UDP policies and the Planning Guidelines so far as the effect on the longer views from the Royal Hospital Conservation Area is concerned. There are some 18 sub-points raised under this ground of the application.
55. The first point raised is that the Inspector failed to take into account the advice in paragraph 19 of Planning Policy Guidance Note 1 ('PPG1') that design policies and supplementary design guidance should recognise that the qualities of an outstanding scheme may exceptionally justify departing from them.
56. There is no mention of paragraph 19 of PPG1 in the proof of evidence of Mr Cooper or Mr Gough or in the closing submissions on behalf of the claimant. It does not appear therefore that this was a matter raised by the claimant at the inquiry. In any event, paragraph 19 of PPG1 is basically concerned with balancing the good against the bad which is exactly what the Inspector did in this case. I have already described the process that he went through, culminating in paragraphs 57 and 58 of the decision letter where he summarised the benefits of the scheme and the harm caused by the scheme and concluded that the harm outweighed the benefits. I can see no merit at all in this point.
57. Next, it is said that the inspector misapplied policy CD63 by concluding in paragraph 36 of the decision letter that the impact on views from the Royal Hospital Conservation Area was in conflict with the requirement of policy CD63. The point is made that policy CD63 only requires the decision-maker "to consider", inter alia, the views out of Conservation Areas and that, as such consideration was given, the policy was not breached. It is submitted that policy CD63 does not require planning permission to be refused merely because harm would be caused to a view out of a Conservation Area.
58. The claimant is correct in saying that the Inspector was technically wrong in saying that there was conflict with policy CD63 insofar as it only requires consideration of the views out of the Conservation Area and that such consideration was given. However, the whole purpose of requiring consideration of views out of the Conservation Area pursuant to policy CD63 is to ascertain whether they would be harmed and if so, whether they would be harmed to an extent which justified the refusal of planning permission. The Inspector concluded that there would be harm to the views from the Royal Hospital Conservation area which, taken together with his conclusion on privacy and sense of enclosure, would justify the refusal of planning permission. This point is therefore a technical point rather than a point of substance.
59. Leaving aside points raised under this ground which have already been raised under an earlier ground, the next point is that the Inspector failed to take into account that the proposal would be unobjectionable under policy CD61, which requires that development in Conservation Areas should preserve and enhance the character and appearance of the area itself, because the appeal site is outside the Conservation Area. It is also alleged that the Inspector failed to take into account the different emphasis in policy CD61 compared to policy CD63.
60. Policy CD61 is not relevant because the site is not in a Conservation Area. It is adjacent to two Conservation Areas and policy CD63 is therefore the relevant policy. The difference in emphasis between the two policies was not a point relied upon by the claimant in closing submissions at the inquiry, and, in any event, paragraph 4.14 of PPG15 states that the desirability of preserving or enhancing a Conservation Area should also be a material consideration in the planning authority's handling of development proposals which are outside the Conservation Area but which would affect its setting or views into or out of the area. In this case, the Inspector stated in paragraph 35 that the proposal would be to the detriment of the setting of the Royal Hospital Conservation Area which the site closely abuts, and which would therefore be neither preserved or enhanced in terms of its character and appearance. I find no merit in these points insofar as they are comprehensible.
61. The next point taken by the claimant relates to the Inspector's conclusion in paragraph 36 of the decision letter that the proposal would be in breach of policy CD44(e) in that the roof line would be exposed to long views from public spaces and that there would be an intrusive impact on that view. It is contended that in coming to that conclusion the Inspector failed to have regard to a number of matters, the first being that the public spaces were public highways rather than spaces to which the public resort for rest and relaxation.
62. That is a bad point. The Inspector's conclusion involved a straightforward application of the words of policy CD44(e) which simply refers to public spaces. Public highways are public spaces just as much as the places to which the public resort for rest and relaxation are public spaces.
63. It is also suggested that, in considering the significance of the breach of policy CD44(e), the Inspector failed to have regard to the fact that the existing building intrudes detrimentally on the views that the policy does not give guidance on views which are already the subject of detriment.
64. Whilst the policy does not give guidance on views which are already detrimentally affected, the Inspector was well aware of the negative impact of the existing buildings on the setting of, and views from, Conservation Areas because he expressly referred to it in paragraph 24 of the decision letter and he would have had it in mind when assessing the effect of the proposed development.
65. Next, it is said that the Inspector, when finding a breach of policy CD44(e), failed to take into account that the proposal would be architecturally sympathetic to the existing building and would comply with policy CD45(b), and that paragraph 4.4.2 of the UDP requires policies CD44 and 45 to be read as a pair.
66. Policy CD44(e) is dealing with the effect of additional storeys and roof level alterations on views from public places, whilst policy CD45(b) is dealing with the effect of additional storeys and roof level alterations on the building itself. So far as the latter is concerned, the Inspector when balancing the benefits against the harm in paragraphs 57 and 58 of the decision letter, expressly stated in paragraph 57 that he had no doubt that the proposal had been designed with flair and skill and with a commitment to achieving a high quality development. He was well aware of the quality of the design, but, as paragraph 4.4.2 of the UDP states, policy CD44 sets out the circumstances in which planning permission will be refused, one of which is when the additional storeys and roof level alterations would have an intrusive impact on long views from public spaces. It is therefore not surprising that the Inspector concentrated on the breach of policy CD44(e) whilst at the same time acknowledging the quality of the design of the building itself.
67. The next point under this ground of the application is directed to the Inspector's conclusion in paragraph 36 of the decision letter that policy CD47 was applicable in spite of the degree of the alteration to the building and the design quality, finding the proposal to be in breach of policy CD47(d) in that the proposal would not be visually subordinate to the parent building.
68. Policy CD47(d) is to resist proposals for extensions if the extension would not be visually subordinate to the parent building. It is contended by the claimant that it was irrational and perverse for the Inspector to conclude that the part of the building visible in the views in question was to be regarded as an extension. It was, it is said, a remodelling of the retained building, not an extension of it. It is suggested that policy CD47(d) is directed at extensions of buildings where there will remain two legible elements one of which will remain a dominant element. It is also said that the Inspector failed to consider whether the policy could apply to a building of good design quality.
69. So far as the latter point is concerned, the Inspector expressly decided that the policy was applicable despite the design quality. He clearly took that aspect into account. He also took into account the degree of alteration to the building. As to whether or not it amounted to an extension of the retained building, I can understand how different people might take a different view on that. It is a question of fact and degree. In paragraph 34 of the decision letter, the Inspector stated that the added bulk of the proposal at the upper levels would be very apparent in terms of extension both upwards and towards the Flood Street houses. The retained building was being extended vertically with an extra storey and a curved roof and extended horizontally closer to Flood Street Terrace. Whilst policies CD44 and CD45 apply to additional storeys and roof level alterations, paragraph 4.4.9 states that policy CD47 applies to all proposed extensions. The policy does not require there to remain two legible elements, one being a dominant element. It simply requires the extension to be visually subordinate to the parent building. If it does not, it falls foul of the policy.
70. In this case, the Inspector concluded that the extension to which he referred would not be visually subordinate to the parent building. In my view, it was open to the Inspector to treat the proposed development as involving an extension of the retained, or parent, building in the way in which he did. Whilst, as a matter of judgment, there may be others who would take a different view, I do not consider that his conclusion on this aspect to be irrational or perverse or as involving a misunderstanding or misapplication of policy CD47(d). It is not a matter upon which the court should intervene (see R v Derbyshire County Council, ex-parte Woods (1997) JPL 958).
71. The final clutch of matters raised under this ground of the application relate to the assertion that the Inspector wrongly and irrationally relied on the parts of the Planning Guidelines which refer to the expectation that the height of the existing building will not be replicated and that a height not exceeding five storeys or lower would be appropriate. However, the matters relied upon in support of that assertion are essentially matters to which I have already referred when dealing with the assertion under the first ground of the application that the Guidelines did not accord with the UDP policies. Suffice it to say that I do not consider that it was irrational for the Inspector to refer to the height expectation in the Guidelines, particularly when what was being proposed was higher than the existing building, a matter which was relevant to all three grounds upon which he dismissed the claimant's appeal - longer views from the Royal Hospital Conservation Area, privacy and sense of enclosure.
72. I have had regard to all the other matters raised under the third ground of the application, but I do not consider that there was any material error of law in the way in which the Inspector applied planning policy to the issue of the effect of the proposal on longer views from the Royal Hospital Conservation Area.

Ground 4 - Privacy and Sense of Enclosure

(a) introduction

73. I turn now to the fourth ground of the application which concerns the Inspector's conclusions relating to the effect of the proposal on the privacy of the occupiers of the Flood Street Terrace houses and on the sense of enclosure of both those properties and Flat 5, Chesil Court.
74. The claimant contends that the Inspector's conclusions on both privacy and sense of enclosure are perverse. Although some of the numerous points raised under this ground of appeal are also put in other ways, such as irrationality and inadequate reasoning, the consistent ground advanced is one of perversity or Wednesbury unreasonableness. Mr Cooper and Mr Gough, the claimant's two expert witnesses, feel strongly that the Inspector's decision on the issues of privacy and sense of enclosure was perverse and they cannot understand how he came to his decision. They have made witness statements upon which the points raised in this ground of the application have been based. As I have already mentioned, Mr Cooper's witness statement runs to 128 pages, of which some 80 pages relate to privacy and sense of enclosure. Over 30 of those pages are devoted to a detailed analysis relating to sense of enclosure based on a volume of 82 diagrams which were not before the inquiry, the purpose of which is said to be to illustrate what should have been apparent to the Inspector from the evidence of Mr Cooper and Mr Gough.
75. In my view, the introduction of that evidence was wrong and unacceptable and cannot be justified as being necessary to explain the perversity argument. In R (on the application of) Newsmith Stainless Ltd v the Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 Sullivan J stated at paragraph 10:

"There will seldom be a need for anything beyond purely formal evidence to produce the decision letter and the material before the Inspector relevant to the grounds of challenge in section 288 applications. In exceptional cases, as described in paragraph 288.21 of the Encyclopedia, it may be necessary to produce additional evidence, for example to show that "some matter of real importance has been wholly omitted from the Inspector's report." But such cases will be rare, and even in those cases applicants should firmly resist the temptation for their evidence to stray into a discussion of the planning merits. The court is sometimes prepared to stretch a point and look at, for example, an ordnance survey plan if the parties agree that it helpfully and, in an entirely non-controversial manner, illustrates an aspect of the grounds of challenge. But additional, contentious illustrative material, of the kind produced by the Claimant in the present case, should not be produced in support of applications under section 288. To admit such material in evidence would merely open the door to challenges upon the planning merits."

I entirely agree with those views.

76. Sullivan J also dealt in the Newsmith case with the general approach to Wednesbury unreasonableness in planning cases. He stressed that an application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision and that the court must be astute to ensure that such challenges are not used as a cloak for a re-run of the arguments on the planning merits. He also remarked that the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount and that it is made more difficult in planning cases which often involve a series of planning judgments. He described it as a particularly daunting task in cases where the Inspector's conclusions are based on impressions received on a site inspection.
77. The claimant contended that that approach by Sullivan J was too restrictive and that I should adopt a more liberal approach. I decline to do so because I agree with the views he expressed. It is particularly relevant to this case because the issues of privacy and sense of enclosure are essentially matters of planning judgment in which the Inspector's site visit will have been particularly important. That does not mean that the claimant cannot succeed on a perversity argument, but it will be a daunting task.
78. I appreciate that the claimant has to go into a level of detail in order to explain why the decision on those issues is alleged to have been perverse, but it cannot justify the extreme level of detail gone into by the claimant in this case. There are about 24 points raised under privacy and almost 30 points raised under sense of enclosure. The court cannot be expected to go into that level of detail on what are comparatively simple issues.
79. It is necessary, first of all, to refer to the relevant paragraphs of the decision letter declining with those issues, namely paragraphs 38 to 49. In paragraph 38, the Inspector stated that he had viewed the site from three of the Flood Street Terrace houses, namely 56A, 60 and 64. Having described the interior layout of the houses, he expressed the opinion that their outlook towards the appeal site was a major factor in the amenity of the accommodation. In paragraph 39, he said that the outlook was dominated by the central building and attached rear structures which he described, giving their existing distances from the houses. In paragraph 40, he described the relevant distances resulting from the proposed development, namely 16 to 17 metres separation between the majority of the Flood Street houses at first floor level from parts of the development, and typical horizontal window to window distances of around 17 to 18 metres because windows in the new elevation would be on the inner curves rather than the outermost sections.
80. In paragraphs 41 to 43 he stated as follows:

"41. The UDP in the reasoned justification for policy CD35 does not prescribe fixed standards with respect to privacy distances, and recognises that some loss of privacy as a result of development may be unavoidable. However, it indicates that a distance of about 18m between opposite habitable room windows reduces inter-visibility to a degree acceptable to most people. It suggests that this distance may be reduced if windows are at an angle to each other. Other factors identified as relevant are the prevailing general standards of privacy in the local environment, the 'good neighbourliness' of existing property, that people generally look for better standards of privacy now than in the past, and that a common cause of loss of privacy is the construction of terraces or balconies above garden level. In addition, it is suggested that these policy aims do not stand in isolation, but must be weighed with other planning objectives.

42. In this case many of the nearest proposed windows would to varying degrees be angled away from perpendicular to the line of sight to windows in the Flood Street properties. However, in my opinion these angles would not be such as to prevent the occupants of much of the new accommodation having relatively direct views towards the Flood Street windows and parts of the gardens, including having regard to the indicated layout of the proposed accommodation with its undivided 'shell' type spaces. The appellant's survey of the locality indicates that back-to-back distances between terraces of properties are commonly well below 18m, and this point was specifically acknowledged by the Council at the inquiry. Some new developments in the area with limited spacings between buildings have also been identified. Nevertheless, with the current proposal the number of new windows closer to Flood Street, the multiple levels of these (including potential from many windows for downward views), and the single aspect nature of the accommodation they would serve, are to my mind relevant factors in assessing the degree to which they would be perceived as intruding on existing levels of privacy. While most proposed rear terraces have been omitted in the amended scheme, I consider that the 'Juliet' balconies attached to the large opening windows on the inner curves would exacerbate the degree to which the occupiers would be drawn to these, outweighing any screening effects of the balconies. I also consider that intermediate tree planting in these circumstances is likely to have limited benefits as a screen. I recognise that the Flood Street properties are sited less than half of the 18m distance from the common boundary, but I do not regard them as being very close or imposing significant and unreasonable constraints on the development of the appeal site, which are the UDP's tests on the neighbourliness of existing properties.

43. Drawing these factors together, I find that the proposal would overall fail to ensure sufficient visual privacy for the occupiers of the Flood Street properties, and therefore is in beach of policy CD35."

81. Having dealt with the issue of privacy, the Inspector then turned to the issue of sense of enclosure. In paragraph 44, he referred to the fact that the UDP suggested that on-site judgment would be the best starting point and he stated that he had made such an assessment as part of his visit to the Flood Street properties. He also had regard to what he described as "the appellant's written academic evidence that attempts to introduce an empirical research and theory basis into consideration of the subjective matter of sense of enclosure".
82. In paragraphs 45 and 46, he dealt with the issue of sense of enclosure relating to the Flood Street properties. He stated:

"45. I recognise that the proposal incorporates a number of measures that this evidence suggests can mitigate a negative sense of enclosure. As well as maintaining the existing sky line, these include the use of curved forms and edges, lighter coloured and reflective materials, and intermediate planting. I also acknowledge the significance of height-distance ratio in addition to distance alone in affecting perceived enclosure. However, the evidence records a paucity of relevant research and lack of quantitative measures. It indicates that, where factors operate in different directions to both increase and decrease sense of enclosure, it is difficult to predict the overall outcome, which has to be a matter of judgment. In my assessment the degree to which the main part of the building would be brought closer to Flood Street is a key factor in this case due to the overall width and height of the extension. I am also persuaded that the roof would not be perceived as a dominant element, given its extent, angle and form. While at its nearest points the extension would be of similar height to the parapet of the Flood Street houses, there would be higher elements behind these. Moreover, this would be combined with the negative effect on privacy that I have found would result, which the appellant's evidence suggests can increase a sense of enclosure. Taking into account my observations from various positions, both standing and seated, within potentially affected rooms, I consider that the development would overall have a significantly oppressive effect in this respect on much of the Flood Street accommodation, despite the proposed removal of existing structures and the change from an industrial-type to residential use.

46. Although the Flood Street properties are large houses, in my opinion the increased sense of enclosure would amount to an unreasonable burden on the occupiers of the type that the UDP seeks to prevent, and would be contrary to policy CD36."

83. In paragraph 47, he dealt with the issue of sense of enclosure relating to Flat 5, Chesil Court. He stated:

"47. At my visit I also viewed the site from Flat 5 in Chesil Court. This is at ground floor level and faces towards the south end of the site, where the distance of the nearest part of the building would be reduced to some 18m. The accommodation of this flat is relatively limited in size and of a single aspect, and therefore in my opinion of the type that the UDP highlights in terms of the potential impact of development on sense of enclosure. With the extension I accept that there would be no significant overlooking or reduction of light to this flat. However, in spite of the use of chamfered and curved edges, the introduction of a lighter material and trees, and a reduction in the number of windows, I consider that the proximity of the building would be intrusive due to its size. This effect would be exacerbated by the loss of parts of the visible sky present to the sides of the existing building. Although my visit to Flat 65 in Chesil Court suggested that flats on higher levels would not be affected to such a degree, in my assessment the impact on the occupiers of Flat 5 would amount to an unreasonable burden and breach policy CD36."

84. Finally, in relation to both privacy and sense of enclosure, the Inspector stated in paragraphs 48 and 49 as follows:

"48. I have taken full account of the appellant's study of building separation distances in the local area. Taken together with the 18m distance referred to in the UDP, this indicates to me that a lesser distance than that which currently exists between the main building on the appeal site and the neighbouring properties would not be inconsistent with such separations prevailing in the area. However, with the appeal scheme I consider that there are particular circumstances relating both to the size, form and detail of the proposed enlarged building and the layouts of the Flood Street properties and Chesil Court that would create an individual relationship between the buildings in this case. In my assessment the proposal would unreasonably reduce levels of privacy and increase sense of enclosure to the neighbouring properties, which is an outcome that the UDP policies and the Planning Guidelines seek to prevent.

49. I conclude on this issue that the proposal would significantly harm the living conditions of the occupiers of neighbouring properties by way of overlooking and sense of enclosure, and is contrary to the development plan in this respect."

(b) privacy

85. I start by dealing with the claimant's case relating to the Inspector'S conclusions on the effect of the proposal on the privacy of the occupiers of the Flood Street Terrace Houses.
86. The main thrust of this ground of the application is that the Inspector's conclusion on privacy was perverse and inadequately reasoned. Considerable importance is attached by the claimant to the statement in paragraph 4.3.23 of the UDP, that a distance of 18 metres between opposite habitable rooms reduces inter-visibility to a degree acceptable to most people which can be reduced if windows are at an angle to each other. Importance is also attached to the statement in paragraph 4.3.21 of the UDP that the extent to which proposals affecting the privacy of adjoining property involve a significant and unreasonable worsening of overlooking will be assessed taking account of the prevailing general standard of privacy in the local environment. Reliance is understandably placed on the claimant's study of building separation distances in the local area which showed that the back to back distances between terraces of properties are commonly well below 18 metres. It is therefore contended that the distance of the proposed development complied with the advice in the UDP and that it was perverse for the Inspector to conclude that the proposal would unreasonably reduce the level of privacy for the Flood Street Terrace houses.
87. Whilst I can understand the claimant's disappointment with the Inspector's conclusion on this issue because Mr Cooper produced more detailed evidence on this issue than Mr Coey on behalf of the Council, and because the distance of 18 metres mentioned in the UDP favoured the claimant, particularly in the light of the claimant's study of separation distances in the local area, at the end of the day it boils down to a planning judgment to be made by the Inspector having regard to the evidence and having regard to his site visit.
88. It cannot be said that he failed to have regard to the relevant provisions of the UDP or to the claimant's study of building separation distances. In paragraph 41 of the decision letter, he expressly referred to the provisions of the UDP which I have just mentioned. Importantly, he also referred to the fact that the UDP does not prescribe fixed standards relating to privacy distances. That is a reference to paragraphs 4.3.21 of the UDP which states that in considering development proposals, the Council will not be seeking to ensure that they meet any particular minimum or maximum standard. I stress that point because there was a tendency in submissions on behalf of the claimant to regard the distance of 18 metres as necessarily being acceptable.
89. The Inspector expressly took the claimant's study of building separation distances in the local area into account in paragraph 48 of the decision letter. In fact, he accepted that, taken together with the 18 metre distance referred to in the UDP, it indicated that a lesser distance than that which currently exists between the main building on the appeal site and the neighbouring properties would not be inconsistent with separation distances in the area. That is criticised by the claimant because the distance from the main building to the Flood Street Terrace houses is 24 metres, the contention being that the Inspector should have said that a lesser distance than 18 metres would not be inconsistent with separation distances in the area. Whilst the latter statement may well be correct, the fact is that what the Inspector said was factually correct and I see no objection to him stating it as he did.
90. The important thing is that the Inspector has to deal with the particular case in front of him, whilst bearing in mind the provisions of the UDP and the claimant's study of separation distances. He certainly took those factors into account, but his conclusion was based on the particular circumstances of this case which involved the enlargement and remodelling of a large and unusual building in juxtaposition to residential properties. That was why the Inspector, in paragraph 48 of the decision letter, stated that there were "particular circumstances relating both to the size, form and detail of the proposed enlarged building" and the layout of the Flood Street properties that would create an individual relationship between the buildings in this case.
91. In referring to the "particular circumstances of the size, form and detail of the proposed enlarged building" the Inspector is referring back to his conclusion in paragraph 42 of the decision letter when, after referring again to the claimant's study of the locality and to the 18 metre distance, he concluded that the number of new windows closer to Flood Street, the multiple levels of them (including potential for many windows for downward views) and the single aspect nature of the accommodation they would serve were, in his view, relevant factors in assessing the degree to which they would be perceived as intruding on existing levels of privacy.
92. The claimant contends that that reasoning is flawed, irrational and perverse, but I do not accept that contention. It is said, for instance, that the number and levels of the windows and the aspect of the accommodation cannot matter if the windows are at a distance judged in the UDP to protect privacy to a degree acceptable to most people. That cannot be right. It is common sense that the greater the number of windows overlooking a dwelling the greater the impact on its privacy. Indeed Dr Marcel's report produced by the claimant at the inquiry accepted that the number of windows affected the sense of being overlooked.
93. In my view, those conclusions of the Inspector to which I have referred provide clear and coherent reasons for his overall conclusion on the issue of privacy. I do not accept that they were inadequate, irrational or perverse. They comply with the requirements for the giving of reasons laid down by Lord Brown in paragraph 36 of his opinion in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953.
94. There were also other criticisms of the inspector's conclusions on the privacy issue. I will deal with some of them briefly.
95. It is said that the Inspector did not identify the dwellings, and the position within them, whose privacy would be affected to an unacceptable degree. But it was not necessary for him to go into that level of detail. He identified the dwellings as being the Flood Street Terrace houses and he stated that he had viewed the appeal site from within numbers 56A, 60 and 64 of that terrace. It can be seen from a plan that they comprise one property in the middle of the terrace and one towards each end of the terrace. That is a sufficiently representative spread from which to form a view about the degree to which the privacy of the terrace was likely to be invaded.
96. Next, complaint is made in various ways about the Inspector's conclusion in the last sentence of paragraph 42 of the decision letter that the proximity of the Flood Street Terrace properties to the common boundary did not impose significant and unreasonable constraints on the development of the appeal site. The complaint basically is that the Inspector should have found that point in favour of the claimant and that no reasons were given for the conclusion.
97. That conclusion is, however, one of pure planning judgment and does not need any further elaboration. The fact that the claimant thinks the decision on this point should have gone the other way is simply disagreement on the merits. The claimant suggests that a subsequent planning permission granted for a lesser number of apartments on the site leaving a distance of 24 metres from the main building to the Flood Street Terrace houses shows the unreasonable constraint of the proximity of that terrace, but that planning permission was not before the Inspector. It was a subsequent event and does not, in any event, lead to an inevitable conclusion that the inspector was wrong. The Inspector was expressly applying the "good neighbourliness" test in paragraph 4.3.22 of the UDP using the test of "significant and unreasonable constraint" mentioned in that paragraph and he reached a conclusion based on the exercise of planning judgment which does not disclose any error of law.
98. Another complaint is that the Inspector failed to consider whether a terrace on the appeal site 18 metres from the rear of Flood Street Terrace would be objectionable, but no such alternative was before the Inspector. In any event, that was not a main issue at the inquiry, although the claimant sought to emphasise it in the new diagrams which were not before the Inspector and which should not have been introduced into this case.
99. Complaint is made that the Inspector did not consider whether the apartments in the proposed development facing Flood Street Terrace would have unacceptable levels of privacy. But that was not a point which the Inspector was asked to consider. It is therefore not surprising that he did not do so.
100. Finally, it is contended that the Inspector acted irrationally and perversely in relying on the evidence of Mr Coey whose assessment the claimant alleges was manifestly defective, biased and unfairly influenced by the opinions of local residents. In the separate costs decision letter the Inspector had stated that Mr Coey's evidence reflected a full and proper assessment of the likely impact of the proposal by an experienced officer. The claimant is very critical of Mr Coey. Some 20 pages of Mr Cooper's witness statement is devoted to the subject. Most of it is devoted to the period prior to the inquiry. The main complaint relating to his evidence at the enquiry was that it comprised a series of assertions without resort to the use of technical analysis.
101. Whilst there may or may not be some force in some of the criticisms relating to the period before the inquiry, it was for the Inspector to reach a conclusion based on the evidence of all the witnesses at the inquiry, including the evidence called by the residents. He did not accept some of the points made in evidence by the Council and showed himself well able to judge for himself what to accept and what not to accept. More importantly, his conclusion was also based on his site assessment. I do not consider that the Inspector's assessment of Mr Coey's evidence in the costs decision letter shows any error of law in his overall assessment on the issue of privacy in the appeal decision letter.
102. Other points are raised relating to such matters as the angles of windows, Julie balconies and tree planting, but they do not effect my overall conclusion that the Inspector's decision on the issue of privacy was not perverse and that it does not disclose any error of law.

c) sense of enclosure

103. I turn next under the fourth ground of the application to the issue of sense of enclosure which affects Flood Street Terrace and Flat 5, Chesil Court. The relevant paragraphs of the decision letter are paragraphs 45 to 47, together with the conclusions in paragraphs 48 and 49, all of which I have already quoted.
104. Perversity is also raised in respect of the Inspector's conclusions on sense of enclosure. There is an extensive critique of the Inspector's conclusions on this aspect in Mr Cooper's statement. He plainly feels very strongly about the lack of reasons given by the Inspector and by the Inspector's failure to deal with a number of matters raised in his own evidence and in the written report of Dr Marcel. To an extent I have some sympathy with Mr Cooper because his evidence contained a very detailed assessment of the impact of the proposal on each level of the Flood Street Terrace houses. The points raised under this ground of the application largely reflect an alleged failure to deal with several of the matters that he and Dr Marcel raised.
105. I do not propose to deal with all the points raised because they are numerous and detailed, but the main thrust is in the first two points raised, namely that the Inspector arbitrarily and perversely preferred his own judgment to the claimant's expert evidence and secondly, that he failed to understand and take properly into account Dr Marcel's evidence or to give adequate reasons for rejecting it.
106. There was agreement between the parties at the hearing of this case that the Inspector is entitled to use his own expertise and that he may use it to arrive at conclusions contrary to those reached in the technical evidence (Westminster Renslade Limited v Secretary or State for the Environment (1983) JPL 454) and that he is not obliged to accept uncontradicted expert evidence (Kentucky Fried Limited v Secretary of State for the Environment (1977) 245 EG 839. Reference was also made to Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 1 All ER 354 to the effect that an expert tribunal can use its own knowledge and impression if, at the last analysis, it finds the expert opinion unsatisfactory. Reliance was placed on that part of the judgment to show that it was only after the Inspector had evaluated the expert evidence that he could stand back and use his own expertise.
107. In this case, the Inspector arrived at conclusions contrary to those of the claimant's expert witnesses but consistent with the expert evidence of the Council and the expert evidence on behalf of the residents. I do not accept that the Inspector arbitrarily preferred his own judgment. He had regard to the claimant's expert evidence - indeed, he accepted a number of points that arose from that expert evidence as is clear from the first three sentences of paragraph 45 of the decision letter. However, in the remaining sentences of that paragraph he gave his reasons for concluding in paragraph 46 that there would be an increased sense of enclose which would amount to an unreasonable burden on the occupiers of the Flood Street Terrace houses, contrary to policy CD36. The reasons that he gave are not arbitrary, nor, in my opinion, are they perverse. I can understand the criticism that they are not adequate in the sense that they do not deal with the myriad of points raised in the claimant's expert evidence, but, in my view, it was not incumbent on the Inspector to go into that level of detail.
108. So far as Dr Marcel's written report is concerned, the claimant, through Mr Cooper, took exception to the last sentence of paragraph 44 of the decision letter which is a reference to Dr Marcel's report. It is said to be a dismissive reference to his evidence, the words "academic" and "theory" being said to be derogatory. That is simply nonsense. Dr Marcel is an academic and his own report is stated to be based on sound empirical research and theory. The last sentence of paragraph 44 of the decision letter is factually correct.
109. The Inspector plainly had regard to Dr Marcel's report because in the fourth and fifth sentences of paragraph 45 of the decision letter he expressly adopted what was said by Dr Marcel in the prefatory remarks of his report dealing with sense of enclosure, namely that there is a paucity of relevant research and a lack of quantitative measures and that where factors operate in different directions to increase and decrease sense of enclosure it is difficult to predict the overall outcome which has to be a matter of judgment. He cannot be criticised for describing sense of enclosure as a subjective matter, as he did in paragraph 44, because that is how Dr Marcel described it. Indeed, Mr Cooper described it in his evidence as a more nebulous concept than privacy and as a somewhat intangible concept although there are a number of factors which can have an impact on it. In those circumstances, it is not surprising that the Inspector relied on his own assessment. Indeed, as he remarked in paragraph 44, the UDP suggests that on-site judgment will be the best starting point for assessment. He carried out such an on-site judgment and he also had regard to the evidence on sense of enclosure as is clear from paragraphs 44 and 45 of the decision letter. I appreciate that it is contended that he ought to have dealt in much greater detail with points raised in the claimant's expert evidence, but, as I said, I do not consider that he was obliged to do so on such an intangible and subjective matter as sense of enclosure. It was classically a matter for planning judgment and the reasons that he gave were adequate.
110. Much the same kind of points are raised in respect of the Inspector's conclusions relating to Flat 5, Chesil Court. That is dealt with in paragraph 47 of the decision letter, which I have already quoted. Once again, he gives adequate reasons for his conclusions which cannot be said to be perverse. There is no merit in the suggestion that his conclusion was incompatible with his acceptance that there would be no unacceptable effect on the flats above Flat 5. He visited Flat 65, Chesil Court, and concluded that it would not be affected to such a degree. That shows how sense of enclosure is a matter of degree and judgment.
111. Finally on this subject, it is suggested that the Inspector failed to take account of the fact that the UDP Inspector recommended against the inclusion in the UDP of policy CD36 relating to sense of enclosure. Whilst it is right that the UDP Inspector did so recommend, the Council did not accept the recommendation, as it was entitled to do under the legislation. It therefore adopted policy CD36 which is now part of the development plan for the purposes of section 54A of the Town and Country Planning Act 1990. The UDP Inspector's recommendation is now history. As Macpherson J said in Jeantwill Ltd v Secretary of State for the Environment [1993] JPL 445, it would be confusing to require the Secretary of State to consider Local Plan Inspectors' recommendations that had been rejected because otherwise decisions on policy would never be settled.

d) Article 8

112. The claimant, by consent, re-amended the claim at the hearing to include some grounds relating to Article 8 of the European Convention on Human Rights ("ECHR") relating to the Inspector's consideration of the privacy and sense of enclosure issues. It was submitted, first of all, that the Inspector failed to take into account that the degree of harm on privacy and sense of enclosure alleged by the Council and the residents was not such as to lead them to allege that there would be a breach of their rights under Article 8. If that was wrong, then it was submitted secondly, that either the Inspector failed to ask himself whether the degree of harm would be such as to breach the resident's Article 8 rights or, alternatively, he failed to give reasons to show that he had asked himself that question.
113. I was referred to the case of Lough v First Secretary of State [2004] EWCA Civ 905 which involved a planning inquiry where the Inspector had weighed the degree to which the proposed development had failed to comply with a UDP policy relating to daylight, sunlight and overshadowing against the advantages of the proposal, and decided that the advantages justified an exception to the UDP policy. In that case, the residents had raised the issue of a breach of their human rights under Articles 1,6 and 8 of the ECHR and the Inspector had decided that those rights had not been violated. The appeal to the court related to the part of the decision on the Article 8 issue. Pill LJ stated at paragraph 45 that Article 8 made no significant impact on the task to be performed by the Inspector. In paragraph 49 he stated that the concept of proportionality is inherent in the approach to decision-making in planning law. Keene LJ stated at paragraph 55 that the balancing exercise of the kind conducted in that case was sufficient to meet any requirement of proportionality.
114. In the present case, the issue of Article 8 rights was not raised at all at the inquiry either by the residents or by the claimant. Whilst it would primarily be a matter for the residents to raise, it would have been open to the claimant to have prayed in aid of its case that the residents had not alleged violation of their Article 8 rights. In any event, the issue was not raised at all at the inquiry and it is therefore unsurprising that the Inspector did not deal with it and he cannot be criticised for failing to do so. It is pure surmise why the residents did not raise an Article 8 issue and it would have been wholly wrong for the Inspector to assume that they had not raised it because they thought that the degree of harm on privacy and sense of enclosure was insufficient to allege breach of their Article 8 rights.
115. In any event, even if the Inspector had considered whether there was a breach of the residents' Article 8 rights, the outcome would have been exactly the same because proportionality requires a balancing exercise which was exactly what the Inspector in this case did at paragraphs 57 and 58 of the decision letter. In paragraph 57 he set out the advantages of the proposal and in paragraphs 58 he set out the harm that would be caused in conflict with the UDP. In the last sentence at paragraph 58 he concluded:

"Although there are other UDP policies that are complied with, this and the benefits of the proposal do not in my opinion outweigh the harm that I have identified."

That is precisely the sort of balancing exercise that the issue of proportionality would have required under Article 8 if it had been raised and the result would have been the same.

116. For all those reasons, I do not accept that the points raised under Article 8 have any force. I should just add that the balancing exercise takes into account the public interest, which is another matter which the claimant alleged the Inspector failed to consider.

Ground 5 - expert evidence

117. I turn next to the fifth ground of the application. This ground relates to the way in which the Inspector dealt with the expert evidence, in particular the evidence of Mr Coey and Dr Marcel, as well as the views of Ms Benes and her statutory declaration. It is, in reality, a reformulation of matters raised under previous grounds of appeal with which I have already dealt. This is already a long judgment and I do not propose to make it any longer by dealing with those matters again.

Ground 6 bias

118. The sixth ground of the application alleges that the Inspector's decision was infected by bias so as to be unlawful. That is a serious allegation but there are no particulars of the allegation at all contained in the claim form. That is wholly unacceptable. A serious allegation of that kind should have been properly particularised in the claim form. At the hearing, the claimant sought to rely on section 11 of Mr Cooper's written statement. That is a section of his witness statement which, as I have mentioned previously, contained some 20 pages constituting a detailed critique of Mr Coey and his evidence. It is quite wrong to leave the parties and the judge to have to pick through a witness statement in that way to seek to deduce how the case of bias is put. The claimant's skeleton argument does, however, specify the acts of the Inspector which are alleged to show bias. They are the Inspector's failure to raise with the claimant during the inquiry matters troubling him, the CABE saga, the facts relating to ground 2 (xii), the failure to criticise the privacy of the proposed apartments and the reliance on Mr Coey's assessment of privacy.
119. Those are all matters which are the subject of independent grounds of challenge. I find it extraordinary to allege that those matters either singularly, or cumulatively, show bias on the part of the Inspector. I have had regard to Mr Cooper's witness statement and I have read the decision letter as a whole. I have also had regard to the test of Porter v Magill (2002) 2 AC 357, namely whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Inspector was biased. The answer to that question is 'no'. Although I appreciate that the claimant and their expert witnesses feel very aggrieved by the Inspector's decision, it is unfortunate that this ground of appeal was raised at all.

Ground 7 - fair trial

120. I turn then finally to the seventh ground of the application. In this ground it is asserted that it is essential to the fairness, openness and efficiency of the appeal process that an Inspector should disclose to the parties the time he has spent preparing for the inquiry, the extent his understanding of the proposals and his provisional opinion of the key issues so that the parties may have a fair opportunity to direct the presentation of their cases. It is said that the Inspector did not conduct the inquiry in that manner and that, as a result, the claimant did not receive a fair trial. A number of instances were given from previous grounds of the application where it was said that the Inspector should have raised his concerns with the claimant at the inquiry so that it could have dealt with them. They included his alleged uncertainty whether CABE had taken into account the impact on views from the Conservation Areas, his concerns identified in the decision letter which led to his conclusions on the Conservation Area issue, his concerns on the privacy issue including "the particular circumstances" on which he relied, and his concerns over angled windows, balconies and tree planting. Also, complaint is made that the Inspector did not reveal to the claimant his assessment on sense of enclosure from his site visit which was made during the inquiry and before final submissions, so as to give the claimant an opportunity of dealing with it.
121. This was acknowledged as being a novel ground which would be making new law. It is none the worse for that, but it is asking the court to make significant changes to the procedure of planning inquiries up and down the country. That is quite unwarranted by the facts of this case, nor, it seems to me is this the right forum for such changes to be advocated. There would need to be widespread consultation before they could be implemented. In any event, I do not consider that there should be an obligation on an Inspector to disclose the time he has spent preparing for an inquiry - it would be quite invidious to do so. The same applies to the suggestion that an Inspector should disclose the extent of his understanding of the proposals. If he wishes to do so, he can, but there should not be any obligation on him to do so. The same applies to the suggestion that an Inspector should disclose his provisional opinion on the key issues. Sometimes a judge does these things in order to try and save time, but there is no obligation to do so. It must be left to the discretion of the Inspector.
122. It follows that there was no obligation on the Inspector to raise with the claimant his various concerns mentioned in the grounds of the application which I have just summarised. I appreciate that, unusually, the site visit took place during the inquiry rather than at the end of it, but that does not mean that the Inspector has to inform the parties about the view that he provisionally formed as a result of the site visit. If he based his view on something new which had not been referred to by the parties at the inquiry, the position might be different but that was not so in this case. Whilst, therefore, I admire the boldness of this ground of the application, I reject it for the reasons I have given.

Conclusion

123. It is evident that the claimant and the claimant's experts feel strongly that this is a wrong decision. They spent a lot of time and money trying to produce a scheme which was acceptable. However, their case in reality involves rearguing the merits of the case. This is a case where the issues were, par excellence, issues involving planning judgment, having regard to the evidence given at the inquiry. The Inspector plainly had regard to the evidence given at the inquiry, although the claimant would have liked him to have dealt with many more of the numerous and detailed points made by its expert witnesses. It found it galling that the Inspector should prefer what it considers to be the inadequate evidence of Mr Coey to its own more professional evidence. It may be right to say that its evidence was more thorough and professional than Mr Coey's evidence, but that does not mean that it was right. A judgment as to who was right depends crucially on the site visit. It was a matter of informed subjective judgment. The Inspector gave reasons for his decision which were adequate and intelligible and dealt with the main issues. Whilst it may be that another Inspector may have reached a different conclusion, the Inspector's conclusions in this case, cannot, in my view, be said to be irrational or perverse. I conclude that there was no error of law involved in the decision and that this application should therefore be dismissed.
124. MR BROWN: I am grateful. It follows from the application being dismissed that in those circumstances I have an application for the first defendant's costs. My Lord, can I take it in stages, first, because this has taken five days and no schedule has been exchanged? We have asked for summary assessment. Costs will need to be taxed, if not agreed. I am going to ask that the costs in the case be awarded on an indemnity basis.
125. I need to explain why that should happen because I recognise that is not the normal route. Does your Lordship have the White Book to hand?
126. SIR MICHAEL HARRISON: Yes.
127. MR BROWN: If so the relevant principles in relation to assessment start at page 1115 in the context of CPR 44.4.
128. The basic power to assess is set out in rule 44.4. The rule itself does not indicate, or give, any particular guidance on whether your Lordship should assess on the standard basis or the indemnity basis. To find that one needs to go to the commentary. If I can take your Lordship over to page 1117 under the heading "Costs on the indemnity basis".
129. SIR MICHAEL HARRISON: Page 1117? I am in the 2006 book.
130. MR BROWN: Sorry, I do not know what I have done. I have the wrong one. I will take your Lordship to pages 1157 and 1156 for rule 44. The rule itself gives your Lordship the power. Then at paragraph 44.4.2 of 1157 your Lordship will see a reference to the Court of Appeal's decision.
131. SIR MICHAEL HARRISON: I am being a little bit slow. Which paragraph number?
132. MR BROWN: Paragraph 44.4.2.
133. SIR MICHAEL HARRISON: Down the bottom of the page.
134. MR BROWN: It may be helpful to ask your Lordship to read that paragraph over to the next page.
135. SIR MICHAEL HARRISON: Give me a moment.
136. MR BROWN: I can take your Lordship there. It may be a first summary to say that there are no particular rules. It is a matter for your Lordship's discretion. The note then goes on to deal with situations where offers to settle have been made, which is plainly not appropriate in the present case. I can take your Lordship on to the top of page 1157, a paragraph starting with "Through litigation". Halfway down page 1157 a paragraph which starts with:

"If a judge considers that a parry has acted unreasonably in connection with the litigation in breach of a direction of the court, it might be appropriate to make an order for costs on the indemnity basis against that party, or to exercise the power to award an interest on damages at a much higher rate than usual. Baron v Lovell, The Times, September 14,1999, CA.

The decisions of the Court of Appeal in Raja v Rubin and Baron v Lovell (above) show that the court had been concerned with some part of the paying party's conduct of the litigation which merited the disapproval of the court. The usual order on the standard basis should be made unless there is some element of a party's conduct of the case which deserves some mark of disapproval. It is not just to penalise a party for running litigation which it has lost. Advancing a case which is unlikely to succeed or which fails in fact is not a sufficient reason for an award of costs on the indemnity basis: Shania Investment Corp v Standard Bank London Ltd, November 2, 2001 (unreported)."

137. Those are, I think, the principles that apply. I made the application broadly (I will give your Lordship the details about it in a moment) on the basis that the way this litigation has been conducted has been unreasonable. It goes beyond simply losing the case. It is in the territory of the case that should never have been brought and should not have been litigated in the way it has. In that respect I make the following observations: the first is that most of the grounds on which this application was brought were not simply found by your Lordship to be wrong, but were, in my submission, fundamentally misconceived. In that respect I refer you to the submissions I made at the substantive hearing about the inappropriateness of turning a section 288 application into a hearing on the merits. That is an observation which in large measure your Lordship has (if I understand your Lordship correctly) effectively upheld.
138. In the course of argument I pointed out that the inquiry itself with live evidence, cross-examination, and indeed another party, that is, a local resident, represented by Council, that entire process had taken only ten days. Bearing in mind the fact that the appeal lies to this court -- I say it speaks volumes that your Lordship has had to sit through five-and-a-half days of legal argument. In my submission that is completely inappropriate and your Lordship in his judgment indicated that this could have been dealt with in a much shorter period of time.
139. I make the observations against the background of Sullivan J in Newsmith. In my submission a very significant part of the claimant's case in this application flies in the face of the principles which are set out in Newsmith.
140. Secondly, and as a result of the first point, the parties and the court in this case have been overburdened with significant amounts of new evidence which have not been before the Inspector, were irrelevant to the legality of the Inspector's decision, and which your Lordship in the judgment described as being "wrong", "unacceptable" and "cannot be justified". The result of that, my Lord, is not only that at the moment there are the costs associated with producing it, but also the costs associated with digesting it and the court being required to sit through it (?).
141. The third point, my Lord, there was a serious allegation of bias made against the Inspector. It was not particularised in the claim form which, in my submission, should never have been made bearing in mind the only real basis for it was that the claimant ineffectually disagreed with the Inspector's decision. Again the judgment described the fact it pleaded at all as unfortunate.
142. Fourth, my Lord, this was a case where given the complexity of the argument there ought to have been a proper skeleton argument on the claimant. It was served in accordance with the normal court rules setting out the way the case was to be argued. Significantly that skeleton should really be received in time to be of benefit to the court and to the defence. Your Lordship will recall that that did not happen. Both Mr Cosgrove and I had to prepare our skeleton without sight of Mr Horton's skeleton. The first draft that we saw from Mr Horton of this skeleton argument (I understand his difficulties) was received late on Friday before the hearing.
143. Fifthly, your Lordsip may recall that while that set out the background, when it came to the grounds it simply referred Mr Cosgrove and I to the ground as pleaded. There was no explanation as to the way those grounds would be advanced. The full skeleton argument was something that was not received until the morning of the hearing. In the note of this hearing you, yourself, described that as lamentable.
144. Fifthly, when the skeleton was served it was clear it was sought to pursue new arguments that had not been pleaded and for which permission to amend was required. I need to put that point in context. This was a case of which a claim was made originally in March 2005. There were significant extensions of time given to the claimant.
145. SIR MICHAEL HARRISON: Could you just repeat that again?
146. MR BROWN: I put the point about an application to amend the trial in the context of the time scale of this litigation. The original claim was made in March 2005. The claimant then had the benefit of various extensions both in terms of putting in its own evidence -- and your Lordship will recall that there was a substantial amendment to the grounds as originally drafted. It may be a bad point because in my submission with regard to the length of the hearing there was simply no excuse for an amendment at the door of the court.
147. My Lord, sixthly, and finally, the hearing of this case is, in my submission, inordinately a long time. Even the estimate which was provided by the claimant was grossly inadequate. Your Lordship has already referred to the fact that this is not a 12-page decision letter. The matter was initially set down for four days. There was no indication that I am aware of, or advised by Mr Horton, that will be inadequate. Your Lordship will remember that Mr Horton then took three-and-a-half of those four days in addressing your Lordship at the opening. Indeed he achieved that only after your Lordship made clear, on the morning of the fourth day, you expected him to conclude by lunchtime. Again the under-estimate, with respect to the amount of time, was something you, yourself, described on that Friday as lamentable.
148. In summary it is my submission that this case has not been litigated as it should. It has taken up a completely unnecessary amount of court time. Indeed, in respect to the defendant's time, a ground which should never have been pleaded has been displayed heavily in the skeleton argument and it could have been dealt with succinctly. As a result of that the defendants have a significant addition of time and, in my submission, the court should indicate its view of this.
149. SIR MICHEAL HARRISON: Thank you very much. Yes, Mr Easton, is there any application from you?
150. MR EASTON: There is an application. I was about to rise. I am in your hands as to whether to do my application now.
151. SIR MICHAEL HARRISON: I think it might be easier if you made your submissions first.
152. MR EASTON: Our submission is that in a formal application such as this, but for much of the same reason as my learned friend has explained the basis on which he applies for indemnity costs, we apply for our costs from the way in which the case was prepared.
153. SIR MICHAEL HARRISON: You are applying for what?
154. MR EASTON: For the Royal Borough's costs against the claimant. Our position is this: we needed to be here; we were required to be here. The first reason being that in the evidence, and in the claim form submitted on the evidence, a number of applications were made, an allegation was also made in evidence, as I understand it, pursued at the hearing against the Council for the local authority. Given the way in which the allegations were made and their seriousness, the local authority had no option but to respond in the way of submissions. That is a discrete and separate point.
155. Your Lordship has referred to a large number of attempts to reargue the planning merits to this application. The local authority was at the inquiry and a number of points have been raised about the case: the way in which the inquiry was run and the evidence given by a number of the witnesses. The local authority again had no option but to respond to the submissions and also the specific evidence by the defendant in this application.
156. So essentially, for those reasons, we needed to be here to respond to this and also, as I understand it, Mr Horton dealt with the two points.
157. SIR MICHAEL HARRISON: I see. Thank you very much. Yes, Mr Horton?
158. MR HORTON: May it please you, my Lord, in my respectful submission it would be cruel indeed, given that this challenge has failed entirely, despite the occasional word of sympathy that even your Lordship has been able to express towards the claimants, if costs were to be awarded on an indemnity basis. I do not understand the Royal Borough's application to be seeking costs on that basis, but this is the basis upon which the Treasury Solicitor has instructed my learned friend to seek costs. I resist an award on that basis.
159. As an introductory observation I know nothing of the practice, as I have no professional experience of this in over 35 years at the Bar, of having such an application made against me. But my instructing solicitor tells me that it is her understanding in other fields of practice, of the Family Division at least, where such applications are made for the applicant to give an indication of the order of the costs incurred so that the court may have in mind what the total sum might be if indemnity costs were awarded. I am asked to draw that to your Lordship's attention. Without that figure you cannot judge obviously what the effect of such an order would be in money terms. I have been asked to draw that to your attention.
160. My Lord, the kernel of the basis of the application, as I understand it, is that this challenge should never have been made and was (although I am not sure it is my learned friend Mr Brown's term) hopeless. Clearly I submit that that assessment is wrong. If I assume that at this stage it is correct then, of course, the Treasury Solicitor had every opportunity, since the original challenge was lodged in March of 2005, to draw to the attention of the claimant that that was the view of the first defendant. There was never any such indication given, let alone was any indication given that if the challenge were pursued costs would be sought on an indemnity basis.
161. I have not found any authority on the point. However, I would respectfully submit that where the basis of an application is from the outset that it was apparent that it was doomed to failure, then a party who seeks indemnity costs should have made that clear to the party, against which such costs are sought, so that it may have a fair opportunity to consider its position.
162. My Lord, if I can now look at the points in the order in which Mr Brown took them in support of his application, because I only have to deal with those, as I understand it. Having said that this is a case which should never have been brought: effectively the hopeless point which I have just made, he submitted that it is an attempt to turn a section 288 application into an application on the merits. With great respect, it is plainly not fair to so describe it. Although in the end I have lost there were a very large number of grounds (I am sorry that I have not counted them up for your Lordship) which, of course, were not based on an allegation of perversity. They were based upon grounds which, whatever else is taking place in front of your Lordship, remain perfectly respectful in this court: of failure to take into account matters; of taking matters wrongly into account; of inadequate reasons and of unfairness, to take the four broad heads.
163. Your Lordship knows that the claimant indeed has a right and does not need to seek permission to bring those concerns before this court. Indeed the claimant has the right, despite the limitations which Sullivan J, and, as I understand it, of which you approve, has sought to place upon the opportunity for a right to bring a perversity challenge. In principle, therefore, in the field of public law where there are matters of public interest involved, and, my Lord, public interested pursued by the claimant -- because of course let us not forget that the claimant brings forward this development as something which would have been excellent in the public interest. The public interest in its view was harmed by not being permitted, but also, of course, there is very substantial private financial commitment at stake. The court, in my submission, should be extremely slow to award costs on an indemnity basis where a challenge, in due course, fails. My Lord, all the more so in a case such as this which my learned friend seeks to suggest is in some way out of the norm.
164. The Court of Appeal in a case of Excelcior (?), which you may or may not have heard of (in so far as it is of any assistance it is referred to in the White Book), did refer to the possible basis of the award of indemnity costs in a case which is out of the norm. If the case is out of the norm then it is out of the norm because not one but two extremely experienced, and with respect, distinguished independent consultants, having been advised of the nature of the perversity test (and no one has suggested they were incorrectly advised by the claimant) it was in their professional opinion that the division in relation to certain issues was perverse. Now for a claimant in those circumstances to be criticised for bringing that challenge, with great respect, would be very harsh. No one has suggested that the analysis undertaken by Mr Gough and Mr Cooper, the witness statements which they solemnly affirmed to and put before this court, were of no substance or ill-considered, or patently flawed. On the contrary, if there is any criticism of them it is that they were too detailed and too carefully considered for the exercise which the court was being asked to do.
165. So, with respect, where a claimant is independently advised in that way so that a decision, in some respects, is perverse (and you will remember that it was very carefully considered) but it is not suggested that it was perverse in all respects, and there was no claim in the judgment in relation to the Conservation Area issue as a whole being perverse, the perversity claim of those two witnesses was concentrated upon the price and the sense of enclosure, then it would be again very harsh to milk the claimant in indemnity costs. The court would have carefully considered, as your Lordship has been good enough to do, those statements and my own attempts to persuade you of their force, does not agree. That is not a proper basis for indemnity costs. It is just that a challenge, which was very carefully presented and supported by material, failed and costs follow the event on a standard basis.
166. Therefore, the reference to Sullivan J, with respect, does not assist. Although, of course, claimants must have regard, at all times, to what is issuing from this honourable court, and indeed higher courts, about the basis upon which such challenges as these can be pursued, the very fact that this was a challenge in which there was such distinguished support from two independent consultants makes this a case entirely different from the sort of case that Sullivan J was referring to. My Lord, I have well in mind, of course, the passages, if I may respectfully say so, not for the first time to be found in a judgment of this division, that these matters were one for planning judgment and that site inspection was important, and so on, and so forth. I hope that you will accept that the approach that was taken was an entirely responsible and intellectually respectable one. There is a stage, prior to those judgments, where one can gather together a whole range of factors which are less open to dispute: measurements and so forth, and that therefore the judgment stage arises after that.
167. The perversity challenge, which I accept, was carefully directed to endeavour to persuade your Lordship that when you considered what the Inspector did he did not make the final judgment in that manner. Your Lordship had disagreed, of course, that it was not a wild perversity challenge that thrashed about with any structure to it. It was very carefully considered, I respectfully submit, in relation to development, which indeed I imagine, although your Lordship has not expressly said so, is very important for London. It is a site of importance for London and London being a world city, therefore, of even greater importance than that.
168. My Lord, that takes me, of course, to the complaint that the court has been overburdened. It is inevitable, and I apprehend your Lordship would, with respect, have difficulty in disagreeing with it, that a perversity challenge necessarily involves, in its wake, a lot of detail because essentially it is reviewing the evidence which was given. That is why that material had to be produced. The matter could not have been pursued without it. Indeed, with respect, your Lordship might have complained if you did not have the benefit of that material before you so that you could look at it, if need be, in order to evaluate what was said in the witness statements and by way of submission by myself.
169. There is one aspect of that evidence which I have to deal with separately, that is the diagrams that your Lordship has been highly critical of. Since in the end, I suppose, it was my responsibility, when it was proposed for them to be prepared, to decide whether or not they should be used. I am, therefore, at fault, I suppose. I made an error of judgment. I have to respect your Lordship's judgment, which I always do. With respect, the reason for putting those diagrams in was that, as I endeavoured to explain to your Lordship, and if I have failed, they were not properly described as new evidence. They were merely crystallising in a form that was thought would be helpful to the progress of the argument and to speed matters up.
170. Otherwise, with respect to yourself, my Lord, I, as an advocate, would have to attempt to visualise as to what might have been in the Inspector's mind as to what could be seen from any particular dwelling, any particular floor and any particular place within such a floor. Whether or not that could, in the centre of London location, fairly be regarded as an unacceptable sense of enclosure. They were intended as an aid in that way. It was new evidence in the sense that they were not before the Inspector, but they were not dealing in any way with a new issue. They went right to the heart of the very matter which, I respectfully submit to your Lordship, the Inspector necessarily had to visualise in his own mind to reach his judgment. Obviously it is of great assistance to know the guidance that your Lordship has given upon the use of the material in that way, but, as I said during my submission, that was their purpose.
171. May I again, in this connection, draw to your attention that at no time prior to this case being argued was any objection taken to that material. Again it could have been raised at an earlier stage. It could have been dealt with actually on an interlocutory application. It was not done. There is no suggestion issuing from either party that those diagrams would be objected to on that as material that should not be before the court.
172. My Lord, I move to bias again. This is, in the light of your Lordship's judgment, a matter for regret because, of course, an allegation of bias is serious and your Lordship has said that it was unfortunate that it was made. May I respectfully remind your Lordship that it was not made casually? It was not actually an allegation that was made under (?) the original grounds. I think I am right in saying it was a matter that emerged from Mr Cooper's study of the material.
173. SIR MICHAEL HARRISON: If I can just interrupt you for a moment. I am looking at page 243 of the bundle and there is no red. It seems to suggest it was not an amendment.
174. MR HORTON: Just forgive me because I was actually doing the same thing. My Lord took me by surprise. Yes, you are right it is not in red there, but it should be. I think that is the point. You have in the bundle the original claim form. On page 1818 it should all have been red, I think.
175. SIR MICHAEL HARRISON: Where do I find the claim form?
176. MR HORTON: Sorry, in the bundle. It starts at page 1 and the grounds start at page 3 through to page 28. My friends think I am right and it is my recollection; can I tell you why? It was raised as a matter for me to consider in the course of the emergence of Mr Cooper's witness statement. The long section of his witness statement was the horse to which bias was the cart. My Lord, I am sorry to have to stick to my guns, but there it is. That, as I understand, is the tradition at the Bar.
177. MR HORTON: Although the challenge has failed I respectfully submit that that section of Mr Cooper's witness statement is very forceful. Your Lordship has not seen it as amounting to bias, but it was not an allegation that was made without proper consideration and deliberation. Although, of course, I have to accept that it is your Lordship's judgment and that it was unfortunate that it was made. Your Lordship also criticised me because it is not particularised in the grounds. That is absolutely right. I am bound to say it did not occur to me, given the particularity of the witness statement, because, as I say, the amendment was made in the light of the witness statement. It may not be apparent to your Lordship because it appears to be in the original grounds. So it was not in red. However, because I took the view that it was fully particularised in the witness statement therefore it was not necessary, perhaps your Lordship might be surprised, to repeat it in the grounds, but obviously I know better now should it arise next time. I apologise if that has caused difficulty.
178. Your Lordship made the point that neither you nor the parties should have to read 20 pages to understand the basis. That is my fault. It never occurred to me that reading those 20 pages would not make the basis absolutely clear. I apologise to your Lordship and to my friend. Of course I do.
179. Regarding the matter of the skeleton argument (where Mr Brown is generous enough to indicate he makes no particular criticism of me) you may remember the circumstances, and I hope I do not need to repeat them, as you know, skeleton arguments had to be launched three weeks before the case was due to be heard. When this date was fixed, which was not until 2 February, my diary was such that it gave no opportunity to prepare the skeleton three weeks before. I am, of course, at fault because members of the Bar are supposed to liaise with their clerks, I suppose, in these matters. I was simply told that it had been fixed. When I remonstrated, which I did, I was told it would be very difficult to re-fix it. I was put in an impossible position with regard to the preparation of it.
180. My Lord, that is not satisfactory. I do not pretend that it is. That is factual and it was not assisted by the fact, as I told your Lordship on the first day, that when I did get down to do it I was laid low by a particularly unpleasant flu, I know not, which made it very difficult to work at all. Again one has duties to the court and I apologise.
181. More importantly, if I may say, with great respect, this is a case where I respectfully submit a skeleton argument was less critical than other cases. As your Lordship has, with a slight pointedness, if I may say so, referred to how detailed the grounds are and indeed how full the witnesses statements are, particularly Mr Cooper's, I, too, submit that therefore it was very easy to understand the way the case was to be put.
182. If you read Mr Brown's skeleton argument you can see that he did not have any difficulty in understanding how the case was to be put. He provides an extremely full skeleton argument, which he did not need to depart from in significant respects, in my submission, in the course of addressing your Lordship. That is an indication of the value to him of the detailed grounds and the detailed witness statements.
183. Usually, as I understand it, if a skeleton is late a party, if prejudiced, would seek an adjournment because they are prejudiced and there would be costs to that. On one basis it would be standard or indemnity, I do not know. I have never encountered the situation. In this case neither of my learned friends sought an adjournment because of the absence of the skeleton argument. You may think that is because they were, with respect, so assisted by the detailed grounds and the detailed witness statement. I certainly hope that is the case.
184. As for the skeleton argument pursuing the arguments, well it is only the Article 8 matter and I do not pretend to be Homer but I certainly nodded because the Article 8 point did not occur to me until the course of the proceedings, as your Lordship knows. We can all do that. Your Lordship has great experience in practice and on the bench and it is not unusual that amendments are made because a case proceeds and certain points occur that have not previously occurred. With great respect, my Lord, as was said to me years ago by David Wilken QC (?), he never ceased to wonder how different a case looked when it got to the Lords compared with how it was argued at first instance. It is an iterative process. So it is just an example of the way that the mind works in the course of endeavouring to be intellectually rigorous in constantly analysing and re-analysing matters to present to the court. The amendments were not resisted. They did not result therefore in an adjournment. It is difficult, I submit, to see how therefore that could be a proper basis for indemnity costs.
185. I then come lastly to the length of time in your Lordship's court. I did tell your Lordship, in the course of argument, that my time estimate was at least four days, but it was put in for four.
186. SIR MICHAEL HARRISON: That was when there was talk that there was going to be oral evidence; was it not?
187. MR HORTON: No, you saw it mentioned.
188. MR BROWN: It was my understanding, and it was in good faith because I had no other basis on which to work, but if Mr Horton tells me that it was based on a misconception or misunderstanding, I am happy to accept that.
189. MR HORTON: I am grateful for that. I, as my friends know, never suggested that it was necessary for me to cross-examine.
190. SIR MICHAEL HARRISON: If you say so I too will accept it.
191. MR HORTON: I know, and wish it were not the case, that I am not regarded as the speediest advocate in the land. I hope I am a good one, but I am not the speediest and that is just me. I am sorry. In this particular case it was not assisted by the fact that the difficulties which I had in preparing the case led to the difficulties with the skeleton. However, also forgive me for saying this: it is always a difficulty for an advocate (I imagine you may recollect your time at the Bar) that one does not know when one stands up to open a case, essentially one of this complexity, how much time a judge has had to read it. Therefore, I open on the basis, because I had been told and I do not inquire, I do not wish to be impertinent in any way, that the case had not been allocated to you until very late in the day, that I would assume, unless told otherwise, it would help your Lordship for me to explain a number of general matters and go through a certain amount of material before coming to the individual points of challenge. If I misjudged that I apologise. I did it genuinely on the basis that I thought that would be the best way forward and knowing that cases speed up if one lays the ground well.
192. Actually I am not sure that did not result in me spending a day. If I understood you to have had it allocated to you earlier I need not have spent -- yes I did, in the end, address your Lordship for three-and-a-half days. I know fortunately those instructing me regarded that presentation as, from their point of view, a thorough and good presentation. After all Mr Brown, with respect, addressed you for a day-and-a-half.
193. MR BROWN: My Lord, it was somewhere between a day and a day- and-a-half. My recollection is that it was closer to a day. I am not going to quibble about that with my learned friend.
194. MR HORTON: Of course, by the time he was addressing you he had far less to do. My Lord, in some ways it is suggested that because the inquiry only lasted 12 days--
195. SIR MICHAEL HARRISON: It was ten days.
196. MR HORTON: Sorry, I am looking at a 12-day decision letter. Ten days. It was a 12-page decision letter. It is disproportionate. I am sorry but with great respect the law is not mathematical in that way. This case raised a very large number of points. Points have failed alas, although some of them have attracted sympathy from the court. It takes time to present them, bearing in mind that my obligation is not only to present them but to do my best to persuade your Lordship of their force. If there is any comment to be made about the length of the inquiry, alas the comment is that my client wishes, and indeed so do I, that we had spent longer at the inquiry.
197. Whether or not we think that there is any suspicion of sympathy from your Lordship in this respect, we believe that if we had presented more than in the actual evidence, rather than relying on the Inspector to understand documentation such as the material relating to privacy and sense of enclosure, and if we had spent more time cross-examining (you will remember that the Inspector effectively was put on a guillotine where all cross-examination by the claimant had to be completed by the end of the first week), then the result might have been different. So it was an inquiry conducted in that respect, we think, with undue expedition, although a huge pressure, as you know, is put in relation to all proceedings these days.
198. SIR MICHEAL HARRISON: I see the time, Mr Horton, how much longer are you going be?
199. MR HORTON: I am just about at the end. I am sorry.
200. SIR MICHAEL HARRISON: Continue.
201. MR HORTON: Therefore, although your Lordship in his introduction did refer to that contrast between the time taken at the inquiry and the time taken before your Lordship, I would ask you to be wary of that comparison. It makes the assumption that the inquiry was not conducted any more speedily than in retrospect it would have been desirable to do.
202. In any event, the fact that a case takes longer, not actually that much longer, than any estimate, as I said at least four days and it took five-and-a-half, is not a basis for indemnity costs. Those extra costs are recovered on a standard basis. Everybody knows the difficulty of estimating the length of time. If an indication had been given, which it never was, that my estimate was inappropriate, then, of course, before this case ever came to you consideration could have been given to that. But that was never raised and so it was not regarded as an inappropriate estimate for whatever reason. As I say, the fact that it overran, in my experience it is not just in cases in which I appear but it happens. It is very difficult to estimate accurately, although highly desirable to do so, of course.
203. In short, so far as Mr Brown's application is concerned, I respectfully submit that it is not a basis. This is not a case for indemnity costs.
204. As far as the Borough's application is concerned, I can take that quite shortly. As you know the usual order is only one set of costs is awarded. It is not sought on an indemnity basis. Having a duty to the court I think I have to acknowledge that there is some force in my learned friend Mr Easton's submission that the Borough needed to be here, although of course my formal position is that it should not have its costs. It should have been one set in the ordinary way. First, there is the complexity that this was always envisaged as the case where the judicial review runs on after the substantive challenge. Although it was not certain that it would because there would be the difficulty of not knowing the judgment of the court before running on with the judicial review. But the court, not entirely with the agreement, I think, of the parties, wanted to list them together.
205. Therefore, as long as that was the court's decision, right or wrong, it is understandable, I think I am bound to acknowledge, that the Borough could have been disadvantaged if it was not present to hear the argument on the substantive issue before it had to address you on the costs application which concerned it, and not as the party against which the costs would be awarded.
206. Furthermore, as Mr Easton rightly points out to you, there were allegations against Mr Coey which were part of the background. I do not know if there were allegations against Mr Benes on the contrary, but we sought to pray in aid what we understood to be Miss Benes' decision and the Borough having a different view on that, and having been present at the inquiry, it is said, needed to be present before your Lordship. I made it clear when I addressed you that I was not seeking to make an allegation against Mr Cosgrove, but I can understand how that was thought at the time. Again, as my duty to you I have to acknowledge that.
207. So I do not think I could properly submit that there was nothing that could justify the Borough seeking to be present. My Lord, nonetheless I ask that you should follow the usual rule and only award one set on the standard basis.
208. SIR MICHAEL HARRISON: Thank you very much. Are there any replies?
209. MR BROWN: No, I think you have my submission. I may be over-sensitive about it. My learned friend rightly makes the point that I do not think the Treasury Solicitor ever wrote to the claimant that they would make an application on an indemnity costs basis. I would not want your Lordship to think I bounced the point on my learned friend. I did give him advanced notice that I would be making it. I appreciate that is not an answer to the point he makes and I am probably being overly sensitive about it.
210. MR HORTON: I am sorry. I should have drawn it to your attention. As you know, I was talking about a much earlier point in time.
211. MR BROWN: You have my submissions on that.
212. SIR MICHAEL HARRISON: Yes, I see.
Judgment on costs

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213. SIR MICHAEL HARRISON: Mr Brown, on behalf of the first defendant, has asked that the claimant should pay the first defendant's costs on an indemnity basis. He says that most of the grounds have been found to be wrong and were, in his submission, fundamentally misconceived, and that this was a case of a section 288 application turning into a hearing on the merits. He relies on the overburdening of documentation, particularly as a result of the new evidence, that is to say the diagrams and Mr Cooper's evidence relating to them. He relies on the fact that the allegation of bias was not particularised and, in his view, should not have been made. He reminded me that a proper skeleton was not forthcoming in this case until the day of the hearing. He also criticises the fact that despite the length of lead in time that there was in the case, there was still a substantial amendment made at the hearing relating to Article 8. He refers to the length of the hearing as being far too long and that Mr Horton has taken between three and three-and-a-half days of the total length of the hearing.
214. Mr Horton, on the other hand, suggested that it was not fair to describe this as a hearing on the merits. He says that, so far as the perversity grounds are concerned, if this is a case that is out of the norm then it is because of the advice of two experienced experts, and that those grounds were matters which were carefully considered. He submits that the new diagrams were intended as an aid and were not really to be viewed as new evidence.
215. The bias allegation was not casually made and was not in the claim form in its original state and it was thought that it need not be particularised because of the content of Mr Cooper's witness statement. The skeleton was late because he, Mr Horton, had no opportunity to do it earlier because of his work load and that in this case a skeleton was less critical than in other cases because there were detailed grounds.
216. As far as the Article 8 point is concerned, he says that amendments are frequently made. This one was not resisted and there was no extra expense needed in relation to it. So far as the length of time is concerned, he said that his estimate was at least four days and, not knowing how long I had to read the papers beforehand, he had to open it in a lengthier way than might otherwise have been the case.
217. The question whether costs should be awarded on an indemnity basis is a matter for the discretion of the court. During the course of my judgment I made a number of remarks which were critical of the claimant's case. Overall, as I think I made clear in my judgment, if not I make clear now, in my view this case lasted much longer than was necessary. This was not a complex case, as has been stated, it was a relatively simple case involving views out from a Conservation Area, privacy and sense of enclosure, involving an inquiry that lasted ten days and which resulted in a decision letter of 12 pages.
218. No way should a case such as that take up five-and-a-half days, or however long it is of the court's time that it has taken. That is due, in large measure, to the over-detailed grounds that were put in chasing every conceivable point. It has also resulted in an over-burdening of documents, in particular, the documents relating to the new diagrams and Mr Cooper's witness statement relating to them which should not have been put in, as I made clear during the course of my judgment. Although it may have been well intentioned in the way Mr Horton has described, it was new evidence and should not have been put in.
219. Also, whilst there should not be discouragement of raising allegations of bias if they are thought to be well-founded, I did make the remark in my judgment that it was unfortunate that this allegation was made because, in my view, there was no evidential basis for it. Furthermore, it is even more unfortunate that that allegation of bias was wholly unparticularised in the claim form.
220. Although I appreciate that counsel, and successful counsel like Mr Horton, have a large work load, it is nevertheless incumbent on them to ensure, by one means or another, that the skeleton argument is put in in time. In this particular case it was particularly important because of the very detailed way in which the case had been put in the grounds. I appreciate that point goes both ways.
221. From one point of view one has the grounds in a detailed way and that is obviously of assistance. However, there is no knowing about the way it is finally going to be put until the skeleton argument is produced. The full skeleton argument was not produced until the day of the hearing.
222. I do not particularly criticise the fact that there was yet a further amendment during the hearing to include the Article 8 point, because I do not think a lot of extra work was involved with that and there was no objection to that amendment. However, what I have to do is look at the matter in the round and the matter is within my discretion. For the reasons that I have just mentioned, many of which were mentioned during the course of my judgment as well, I do consider that this is a case where the claimant should pay the first defendant's costs on an indemnity basis.
223. Mr Easton has asked that the claimant should pay the second defendant's costs. He accepts, as does Mr Horton, that usually only one set of costs is ordered. However, in this case there are particular reasons why that should not be so because allegations were made against Council officers. An application for costs was being made against the second defendant which would, in turn, depend on how the arguments went on the substantive issue, as Mr Horton has very fairly recognised. It was, in my view, necessary that the second defendant were here represented to hear those arguments and indeed to intervene in them if it was thought necessary to do so. This is a particular case because of those allegations and for that reason, although not conceded by Mr Horton but really recognised by him, I think it is right that the claimant should pay the second defendant's costs, but that is not on an indemnity basis. Is there anything else arising?
224. MR HORTON: Two matters: first, the application for judicial review of the costs decision. You may remember that I think it was agreed last time that it would not be sensible for any hearing of that to proceed immediately after your Lordship's judgment. Plainly I am going to have to consider your Lordship's judgment. There are certain respects in which the application for costs was not dependent upon winning the appeal. It is only in those respects, of course, that the claimant will need to consider whether it wishes to take it any further. I would be grateful if that could be stood out, if that is the right expression, until the claimant's have had the opportunity to consider that. So that is the position I want to make on that.
225. The other matter is I am not in any doubt about what the answer will be, but, for reasons your Lordship knows, I think I ought to formally ask for permission to appeal? I do not propose to particularise it because my Lord your Lordship's judgment has been very forthright, but, as I understand it, if one wants to pursue it anywhere else it is best to have dealt with it on the day before your Lordship. I am certain one can renew it elsewhere if need be.
226. MR BROWN: On the judicial review, as Mr Horton indicates, I think it was common ground, in the course of argument, that whichever party was unsuccessful would need a little time in which to consider the implications of your Lordship's judgment for the judicial review. In principle, I do not have a difficulty with the way my learned friend is just dealing with it. I would suggest that there be a fairly tight time scale put upon that. This is a matter which is already quite an old challenge by the standards of section 288. Those instructing me would not want it to go on for much longer.
227. I would suggest my learned friend (?) might want to hear what your Lordship has to say about it, but the order be given something of the order of 14 days in order to decide what its position on the judicial review is. My Lord, in the event that the decision is to continue with the judicial review, bearing in mind the extensive background to this, I would ask that the matter, if it is to go ahead, be listed to come before your Lordship again. I appreciate your Lordship is not sitting all the time and I do not know how easy that would be to arrange. Obviously your Lordship has familiarity with the documents which would be extremely helpful. It would save both time for the court and indeed expense for the parties. Those are the only two observations I have to make about judicial review.
228. In terms of leave to appeal it goes without saying that I oppose the application. In my submission it has no prospect of success. Bearing in mind your Lordship's judgment, while it is obviously a big and expensive scheme it raises no point of general importance that would excite the Court of Appeal.
229. SIR MICHAEL HARRISON: Thank you very much. So far as time scale is concerned, Mr Horton, does 14 days sounds reasonable?
230. MR HORTON: Yes, although I do not know whether within that time we can get a transcript of your Lordship's judgment. It is always preferable to have it rather than our notes. I am told by my instructing solicitor it takes a minimum of 28 days to get a transcript out of the system. It has to be transcribed and then your Lordship has to approve it of course. With respect, although I appreciate this is a long outstanding case, I do not think, in the scheme of things, it can matter assuming 28 days is sufficient time rather than 14.
231. SIR MICHAEL HARRISON: What I am going to say is that the claimant should notify the Administrative Court Office within 28 days if they intend to pursue the claim for costs. If you require any extension of that time, because you have not received the transcript of the judgment, then you would have to apply to the Court Office for an extension of that time. I am sure that can be done informally. Does that seem a sensible way of dealing with it?
232. MR BROWN: My Lord, yes.
233. SIR MICHAEL HARRISON: Are you happy with that? I will also say that if the claimant does decide to continue with the application for costs, or any part of it, then it is desirable, if possible (I use those words advisedly) that it should come before me. I cannot guarantee that it will because there are sometimes other countervailing circumstances. I go that far. It does seem sensible.
234. MR HORTON: I did not say expressly but I support Mr Brown's submissions. It was very helpful.
235. MR BROWN: I want to make it clear that on the judicial review, as I understand it, the order was originally for a rolled up permission and substantive hearing. I anticipate that your Lordship imagines it will be dealt with in that same way if it comes back before your Lordship.
236. SIR MICHAEL HARRISON: Having completed this hearing what is there left to roll up?
237. MR BROWN: The permission and the substantive.
238. SIR MICHAEL HARRISON: Sorry, I understand what you were saying. I would have thought that desirable. If permission is granted, the substantive hearing to follow at the same time.
239. MR BROWN: Thank you.
240. SIR MICHAEL HARRISON: There is one further application that remains outstanding for me to decide, which is the application for permission to appeal. As rather is expected by Mr Horton, that application is refused.