England and Wales High Court (Administrative Court) Decisions

IN THE SUPREME COURT OF JUDICATURE
ON APPEAL FROM QUEEN's BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London, WC2
		3 November 2006

1. SIR MICHAEL HARRISON: Background

2. In these proceedings Louisa Smith challenges a decision of the first defendant's inspector, dated 6th January 2006, to dismiss, in part, an appeal by her against an enforcement notice served on her by the second defendant, and to dismiss, in part, an appeal by her against the refusal of the second defendant to grant planning permission for, in effect, the same development as that to which the enforcement notice related. The first defendant's decision on the planning appeal is challenged by an application under section 288 of the Town and Country Planning Act 1990, and the decision on the enforcement notice appeal is challenged by an appeal under section 289 of that Act.

3. So far as these proceedings are concerned, the same issues arise in the application and in the appeal, and there is no need to distinguish between them in this judgment.

4. The appellant does not yet have permission to appeal against the enforcement notice decision, but it was agreed by counsel for all the parties that I should deal with the question of permission to appeal after I had heard and dealt with the substantive issues common to both sets of proceedings. I will, nevertheless, refer to her throughout as the appellant, rather than the claimant.

5. The enforcement notice appeal and the planning appeal both related to the same site, although they described the address in different ways. I will refer to it as Whin Covert, East Ayton, in North Yorkshire. The development in question involved what the claimant described as "the woodland project". It related to an area of woodland of about 12.1 hectares. The project is slightly unusual and is best described in the way in which the inspector described it in paragraph 22 of the decision letter, where he said:

i. "Her plan, as stated in evidence, is 'to turn ... a neglected, small private woodland containing trees of very low commercial value into a useful environmental and community resource'. The aims of the project set out in the business plan that accompanied the planning application are: to demonstrate that a small woodland can be managed sustainably, yet still support a viable woodland business; to actively involve the local community, including training and volunteering opportunities, improved access and by participation in the project; to educate and inform local people, schools and groups about forest gardening, permaculture, organic gardening and environment issues: and to provide and demonstrate resources which enable children and adults to see ideas and sustainable practices in action. A layout plan that accompanied the application indicates various items within the site including a forest garden, herb beds, raised beds, a tree nursery, permaculture demonstration areas, a willow coppice and birch growing areas."

6. The breach of planning control alleged in the enforcement notice, as varied by agreement at the inquiry, was

i. "Without planning permission the change of use of the land from forestry and agriculture to the stationing of residential caravans and storage containers, the construction of a track over the land and the construction of stone stands for the caravans."

7. The terms of the planning permission sought, varied as agreed at the inquiry, were:

i. "Retrospective temporary planning permission for use of the land for the siting of two residential caravans for a forestry worker, temporary retention of storage containers, erection of a storage and workshop building, polytunnel, associated improvements to access track, formation of hardstanding and the open storage for sundry agricultural, forestry and related items."

8. At the time of the inquiry, the residential caravans and the storage containers were already in place. Various items were stored on the land in their vicinity, but neither the polytunnel nor the storage and workshop building had been erected. It was made clear at the inquiry that temporary planning permission for three years was being sought, and that once the new building had been erected it was anticipated that the storage containers would not be needed and would be removed.

Inspector's decision letter

9. In dealing with the appeals under section 174(2)(a) and under section 78 of the 1990 Act, which both involved the same question, namely whether planning permission should be granted, the inspector firstly identified the relevant policies in the North Yorkshire County Structure Plan and in the North York Moors Local Plan. He then identified three main issues: firstly, the effect of the development on the character of the area; secondly, whether there was a need for living accommodation to be provided on the site; and thirdly, the implications for the claimant's human rights.

10. The issues raised by the appellant in these proceedings relate to the second and third of the issues identified by the inspector, but the inspector's findings on the first issue are important and I should first deal with them.

11. In paragraph 24 of the decision letter, he referred to the fact that Planning Policy Statements (PPS7) advises that nationally designated areas such as National Parks enjoy the highest status of protection in relation to landscape and natural beauty. He referred to the appellant's acceptance, with which he agreed, that there was a need for development in the countryside to be strictly controlled and that neither the caravans nor the containers would conserve or enhance the natural beauty of the area.

12. In paragraph 25, he said that the aims of the project had much to commend them and that the perceived benefits were not questioned by the second defendant. The evidence was that the principle of the project was not incompatible with, or inappropriate within, the National Park. Although most of the development was within wood and not readily apparent, he did not think that the relative inconspicuousness in what he regarded as a very sensitive location was a good reason for permitting development. His view was that the caravans and, more particularly, the essentially utilitarian form of the containers, would constitute a very unattractive and inappropriate intrusion into the landscape that would detract from its special quality, and that the temporary nature of the project did not outweigh his concern.

13. Turning to the outdoor storage, in paragraph 27 of the decision letter he found that the amount of outdoor storage, notwithstanding the presence of the storage containers, was striking. He described it as an unsightly and visually intrusive feature in its own right that further detracts from the character and quality of the area.

14. Turning to the proposed storage and workshop building, he remarked in paragraph 28 that it had a floorspace of some 186 square metres, and he stated that he was not satisfied that a building of that magnitude was needed for the management of a fairly modest sized area of woodland. His view was that it would tend to erode the character of the area. For essentially the same reasons, he was equally concerned about the proposed polytunnel - 5.24 metres long and 7.23 metres wide  - which he described as a sizeable structure which would impact on the area in its own right.

15. The inspector then turned to the access track in paragraph 30 of the decision letter which, for the reasons he gave, he thought would not have an unacceptably harmful effect on the character and appearance of the area. For that reason, in his final decision, he granted planning permission for the access track, and to that limited extent the appeals were allowed. However, for the other reasons given by him relating to the three main issues, the appeals were otherwise dismissed.

16. The appellant's case relates to the inspector's finding on the second and third main issues.

17. The second main issue relates to whether there was a need for living accommodation to be provided on the site. That issue was dealt with by the inspector between paragraphs 31 to 39 of the decision letter. It involved consideration of PPS7, which provides a restrictive approach to residential accommodation in the countryside, as do the development plan policies for the National Park.

18. Annex A of PPS7 deals with agricultural, forestry and other occupational dwellings in the countryside. It deals, amongst other things, with what is called "the functional test" and with the question of financial viability. The latter was not in issue at the inquiry. The issue at the inquiry related to the question of the functional need for living accommodation on the land and whether or not the appellant's accommodation needs could be met by other accommodation in the area.

19. Before dealing with the inspector's conclusions on this aspect of the matter, it is necessary to refer to the relevant provisions of Annex A of PPS7.

20. Paragraph 1 states:

i. "... there will be some cases where the nature and demands of the work concerned make it essential for one or more people engaged in the enterprise to live at, or very close to, the site of their work. Whether this is essential in any particular case will depend on the needs of the enterprise concerned and not on the personal preferences or circumstances of any of the individuals involved."

21. Paragraph 3 deals with permanent agricultural dwellings. It is necessary to refer to its provisions because subsequent paragraphs dealing with other dwellings refer back to it. It specifies five criteria which have to be satisfied. Criterion (i) requires that:

i. "there is a clearly established existing functional need (see paragraph 4 below)."

22. Criterion (iii) relates to financial viability. Criterion (iv) requires that:

i. "the functional need could not be fulfilled by another existing dwelling on the unit, or any other existing accommodation in the area which is suitable and available for occupation by the workers concerned;"

23. Paragraph 4, to which criterion (i) referred, states:

i. "A functional test is necessary to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times. Such a requirement might arise, for example, if workers are needed to be on hand day and night:

(ii) in case animals or agricultural processes require essential care at short notice;

1. ..."

24. Paragraph 8 deals with the financial test which is different from its predecessor in PPG7 in order to reflect the Court of Appeal's decision in Petter and Harris v Secretary of State for Environment Transport and the Regions, 79 P&CR 214, a case decided in 1999.

25. Paragraph 12 of Annex A deals with temporary agricultural dwellings. It states that if a new dwelling is "essential" to support a new farming activity, it should normally be provided by a caravan for the first three years and it should satisfy five criteria. Criterion (ii) is the functional need referred to in paragraph 4 of the Annex, and criterion (iv) is exactly the same as criterion (iv) in paragraph 3 of the Annex.

26. Paragraph 14 deals with forestry dwellings, and states that planning authorities should apply the same criteria as for agricultural dwellings.

27. Finally, paragraph 15 deals with other occupational dwellings for other rural based enterprises and states that the same criteria and principles should be applied to them as are set out in paragraphs 3 to 13 of the Annex.

28. I turn then to deal with the inspector's conclusions relating to the second main issue of whether there was a need for living accommodation to be provided on the site. In paragraph 32, the inspector referred to the evidence that it was not initially the appellant's intention to live on the site, but that it was now her contention that it was necessary to do so for various reasons relating to the benefits of the project; animal welfare, site security and personal safety. Whilst he accepted that it would be advantageous for the appellant to live on the site and that it would have certain benefits, he concluded:

i. "However, my view is that even when the various factors are considered together, they fall short of demonstrating that an on -site residential presence is essential for the proper functioning of the project."

29. It is necessary to quote paragraph 33 of the decision letter in full as it is the subject of one of the grounds of appeal. In paragraph 33, the inspector stated:

i. "There is nothing before me that shows that it is necessary for someone to live on site in order to be able to cultivate the trees and extract the timber on what I regard as a fairly modest sized woodland. As I see it, the perceived need in this respect arises more from the particular nature of the appellant's woodland based project. Living on site may engender a greater appreciation of impending changes in the weather and this in turn would make it easier for appropriate responses to be made and/or action to be taken accordingly. Likewise, it may provide a basis for becoming more familiar with the disposition of wildlife and the associated territories and habitats which in turn may assist in protecting wildlife during woodland activities, but I do not equate such benefits with a need to live on the land."

30. In paragraph 34 the inspector referred to three sheep, a poultry run and two horses which he saw on site, as well as to the intention to introduce some pigs. He appreciated that a residential presence could be beneficial for animal welfare. He then stated:

i. "However, while animal welfare is not a matter I set aside lightly, and I have had regard to the recommendations from the bodies referred to by the appellant, I am not satisfied that either the nature or extent of the livestock and poultry elements of the enterprise are such that they generate a compelling need for someone to be close at hand at all times. The same view applies to the intended tree and plant raising venture in the proposed polytunnel."

31. In paragraph 35 the inspector dealt with the security reasons for a residential presence on the site, stating that although a residential presence may be helpful, he did not find the reasons sufficient to warrant the provision of a dwelling on the site.

32. In paragraph 36 he dealt with the question of severe weather conditions making travelling to the site difficult, stating that there was no evidence of regular periods when it had not been possible to gain access to the land. He concluded that he was not satisfied that the likely frequency of extreme adverse weather events were such that it warranted a dwelling on the site.

33. In paragraph 37 he dealt with the issue of whether other accommodation could suffice. In other words he was dealing with criterion (iv) of Annex A of PPS7. He stated:

i. "As to whether other accommodation could suffice, it was submitted that no affordable alternative accommodation is available in the area and that the appellant has no financial resources, having invested all her money into the woodland project. I acknowledge that in an attractive village such as East Ayton, property prices are likely to be relatively high, but the much larger urban area of Scarborough is almost as close to hand. I have been provided with schedules of property for sale and to rent in the town, but while the likely income that would be derived from the enterprise might make these options difficult, I find this matter somewhat inconclusive. I say this because I heard that the appellant is involved in 2 other businesses, one of which was said to have generated a profit of around £12,000 to £14,000 in its first year of trading. It would appear that the appellant's concentration on the woodland project has taken its toll on this business somewhat, but the possibility that it may revive cannot be discounted. In the light of this, and mindful that prior to moving onto the site the appellant had apparently lived in rented accommodation in Filey, I am not satisfied that it has been demonstrated that the appellant's accommodation needs are incapable of being met in a nearby settlement."

34. Paragraph 38 is also the subject of one of the grounds of appeal. In that paragraph the inspector stated:

i. "The living conditions on the site are fairly basic. It is perhaps a testament to the appellant's commitment to, and belief in, her project that she is prepared to endure what many people probably would not wish to tolerate. I can also appreciate why support has been drawn from the appeal decisions that have been drawn to my attention and the degree of support that has been forthcoming for the project at Hill Holt Wood in Lincolnshire. However, as each case falls to be considered on its particular merits, I am not inclined to attach a great deal of weight to these other instances. Moreover, in the case of Steward Wood and Quicken Wood it seems to me that the lifestyle and living philosophy of the appellants was a weighty factor. While it is clear that the appellant holds strong ethical views, given that it was not her intention to move onto the land initially, it seems to me that her decision to do so was borne out of expediency, rather than a deep seated commitment to pursuing and putting into practice an alternative way of living."

35. Finally on the second main issue, the inspector concluded as follows:

i. "39. In the light of the foregoing, I am not satisfied that it has been shown that a functional need for a dwelling on the land  - even on a temporary basis  - has been demonstrated. Nor am I satisfied that the appellant's accommodation needs are incapable of being met elsewhere, even allowing for the possibility that additional travel may ensue. I acknowledge that personal circumstances can constitute a material consideration. But, notwithstanding the close bond between the appellant and the woodland project, I do not consider the personal factors involved in this case are sufficiently compelling that they outweigh the other considerations involved. In so saying, I am mindful that Annex A of PPS7 advises that whether it is essential for someone engaged in an enterprise to live on the site will depend on the needs of the enterprise concerned and not on the personal preferences or circumstances of an individual."

Grounds of appeal

36. The first five of the six grounds of appeal relate to the inspector's conclusions on the second main issue. I now turn to deal with them.

37. The first ground of appeal is that, in dealing with the second main issue, the inspector applied the functional test in Annex A of PPS7 too rigidly by requiring that on -site presence be "essential" or that there be a "compelling need" for the proper functioning of the development. At the hearing, Mr Watkinson, who appeared on behalf of the appellant, accepted that the inspector had been justified in using the word "essential" in paragraph 32 of the decision letter, the first defendant's skeleton argument having drawn attention to the use of the word "essential" in paragraphs 1, 4 and 12 of Annex A of PPS7. He was plainly right to withdraw that part of this ground of appeal. Indeed I am surprised that it was made in the first place.

38. In the end, therefore, issue was only taken with the inspector's reference in paragraph 34 of the decision letter to "a compelling need" for someone to be close at hand "at all times". Two points were made: first, that a "compelling" need is a stronger word than an "essential" need; secondly, that the reference to a compelling need "at all times" goes further than the first sentence of paragraph 4 of Annex A, which refers to whether it is essential for a worker to be available "at most times".

39. I do not consider that there is any force in those submissions. By using the word "compelling" need, the inspector was simply making it clear that there had to be a very strong or compelling need for residence on site in order for it to be said to be "essential" as required by Annex A of PPS7. He was plainly well aware of the "essential" test in Annex A as evidenced by his use of that word in paragraph 32 of the decision letter. In my view, this is a semantic point without merit.

40. Mr Watkinson suggested that it would be sufficient if residence on site genuinely and materially assisted the enterprise, and that a reasonable connection with the project would satisfy the functional test. I do not agree. That is contrary to what Annex A of PPS7 says. It says that residence on site must be essential, and that is the test which the inspector correctly applied. Similarly, the inspector's reference to a need for someone to be close at hand "at all times" is perfectly understandable. The requirement in paragraph 4 of Annex A for it to be essential for a worker to be readily available "at most times" is immediately followed by the statement that such a requirement might arise, for example, if workers are needed to be on hand "day and night" where animals or agricultural processes require essential care at short notice. In that context, it cannot be said that the inspector erred by referring to a need to be close at hand at all times.

41. Reliance was also placed in connection with this ground of appeal on the Court of Appeal decision in Petter and Harris as authority for the proposition that a more flexible approach than that advocated in PPS7 should be adopted in cases of this kind. However, that case was concerned with the issue of financial viability under PPG7, the predecessor of PPS7. The functional test was fulfilled in that case and was not in issue. It was held that, having regard to the underlying purpose of the policy to prevent non -agricultural residential occupation arising if a proposed agricultural occupation failed, it was not necessary in the case of subsistence farming to apply rigidly the criteria in PPG7 relating to financial viability which was designed for commercial agriculture. As I mentioned previously, paragraph 8 of Annex A of PPS7, which was published in July 2004, now reflects what the Court of Appeal held. But those considerations do not apply to the functional test in Annex A of PPS7, which relates to the essential need for a worker to live on site. That test should be applied to the type of activity proposed whether it be conventional farming, subsistence farming or the type of activity proposed in this case.

Ground 2

42. The second ground of appeal is that the inspector failed to consider that the factors he identified in paragraphs 33 and 34 of the decision letter were such that residence on site would be "ancillary and proportionate" to the proposed use. Those words are to be found in the judgment of Sedley LJ in Petter and Harris, where he said at page 225:

i. "I would add that viability itself is there for an identifiable purpose: to ensure that any residential planning permission is both ancillary and proportionate to a true agricultural use."

43. As can be seen from that dictum, those words are directly related to financial viability, which was the issue in that case. They were in no way related to the functional test. It would clearly be wrong and contrary to Annex A of PPS7 to rewrite the functional test to make it a test of whether the residential accommodation was ancillary and proportionate, rather than essential.

Ground 3

44. The third ground of appeal is that the inspector, when determining the functional test, failed to have regard to the underlying objective of the venture, which included permaculture, organic gardening and environmental issues. It was said that, in paragraph 33 of the decision letter, the inspector was regarding the project as a conventional forestry project, rather than a permaculture project, and that he failed to find that the "perceived need" referred to in that paragraph was an actual need. Mr Watkinson shrunk back, rightly, from suggesting that all permaculture projects give rise to a need for on -site residence, but he submitted that the inspector failed to have regard to the nature of this particular project.

45. In my view that submission is unsustainable. It is abundantly clear, reading the decision letter as a whole, that the inspector was well aware of the nature of the project and that he applied the functional test to it. I have already quoted paragraph 22 of the decision letter where he set out in detail the nature of the project. In paragraph 33 he referred to the aspects of the project which the appellant perceived gave rise to the need for on -site residence, and he concluded that those benefits did not give rise to a need to live on the land. He was not dealing with the project as if it was a conventional forestry project. He was well aware, as he said in paragraph 39 of the decision letter, that the need to live on site would depend on the needs of the enterprise concerned, and it is clear that he applied the functional test to the needs of the enterprise proposed by the appellant.

Ground 4

46. The fourth ground of appeal relates to paragraph 38 of the decision letter, which I have already set out in full. Under this ground of appeal, it was submitted, firstly, that it was irrelevant that the appellant did not have the same lifestyle and living philosophy as the appellants in the appeal decisions referred to in that paragraph; and secondly, that in referring to the appellant's decision to move on to the land as "expediency", he failed to take into account her reason for doing so, namely that she realised that the project could not be run from a distance and that she would need to be there full -time if the project were to get off the ground.

47. In my view, in paragraph 38 of the decision letter, the inspector was dealing with the appellant's reliance on those appeal decisions, distinguishing the circumstances of those appeals from the appellant's own position, namely that the lifestyle and living philosophy of the appellants in those appeals was a weighty consideration which did not apply to the circumstances of the appellant's woodland project in this case. He rightly remarked that each case falls to be considered on this particular merits. His finding that her decision to move on to the site was borne out of expediency was a judgment made by him, having heard her giving evidence on oath, and it is entirely consistent with his conclusion that it was not essential for her to live on site, a conclusion which he had reached after consideration of each of the main reasons advanced by the appellant. In those circumstances, I do not consider that the complaints made under the fourth ground of appeal are justified.

Ground 5

48. The fifth ground of appeal is that the inspector failed to put into the balance as a material factor the value of the enterprise to the community at large. It is admitted that it was taken into account under the first main issue, but the complaint is that it was not taken into account under the second main issue. The short answer to that point is that the value of the project to the community at large is not a matter which is really relevant to the second main issue of whether there was a need for living accommodation on the site. However, in so far as it may be said to be tangentially relevant, it is something that the inspector had well in mind. He referred to the community benefits in paragraph 22. As is acknowledged, he referred to those benefits in paragraph 25 when dealing with the first main issue, and in his overall conclusions in paragraph 41 he accepted that the project may help provide a basis for the understanding and enjoyment of the area's special qualities. There is, therefore, no substance in this ground of appeal.

Ground 6

49. The sixth and last ground of appeal relates to the third main issue  - the implications for the appellant's human rights. This was a matter dealt with by the inspector at paragraph 40 of the decision letter, where he said:

i. "The appellant has made express reference to Article 8 of the European Convention on Human Rights, now incorporated into English law by virtue of the Human Rights Act 1998, together with relevant judgments. I recognise that dismissing the appeals and upholding the enforcement notice would result in an interference with the appellant's current home and family life. However, that interest must be balanced against the public interest. The objections to the development that has taken place on the appeals site are serious ones and, for the reasons given above, I have found that the development in question would be harmful to the need to safeguard and protect the character of the North York Moors National Park. I am satisfied that this legitimate aim can only be adequately safeguarded by upholding the enforcement notice and refusing to grant planning permission. On balance, I consider that the dismissal of the appeals would not have a disproportionate effect upon the appellant."

50. The complaint that is made about that paragraph is that the inspector failed to put into the balance the hardship that would be caused to the appellant by an adverse decision in that he failed to set out the factors which showed the serious nature of the breach of her Article 8 rights, namely the loss of her home, the absence of alternative accommodation and the effect on her children.

51. In paragraph 40 the inspector accepted that there would be an interference with the appellant's rights, which he described as an interference with her current home and family life. That she would lose her current home was self -apparent. In paragraph 37 he had already dealt with the issue of alternative accommodation, referring to the fact that Scarborough was almost as close to hand, and that before moving on to the site she had lived in rented accommodation in Filey. He had concluded that he was not satisfied that her accommodation needs were incapable of being met in any nearby settlement.

52. In paragraph 47, when dealing with the period for compliance with the enforcement notice, he referred to "the implications for the appellant and her family", stating that he was mindful of the difficulties involved in finding alternative accommodation, whilst also bearing in mind that the appellant was resident in the area before she moved on to the site. He extended the period of compliance from four months to six months to give the appellant a reasonable opportunity to explore alternatives. He also expressly took into account the second defendant's power to extend that period for compliance if need be.

53. It seems to me, looking at the decision as a whole, that it was quite clear what the inspector took into account when he referred to "the interference with the appellant's current home and family life". He took into account and put into the balance the very things that were mentioned under this ground of appeal. The interference with the appellant's current home plainly includes the loss of her home and any consequential difficulties in finding alternative accommodation, and the interference with her family life is plainly a reference to her children, the appellant being a single parent with two young children. Paragraph 40 comes almost at the end of the decision letter, and I do not think it was incumbent on the inspector to spell things out in any greater detail as it was tolerably clear what he was referring to. Having considered the matter myself, I see no reason to differ from the inspector's conclusion on proportionality so far as the appellant's human rights are concerned.

Overall conclusion

54. In my view, this was a decision letter which dealt properly and clearly with all the main considerations, and in which the inspector reached a series of planning judgments which did not involve any error of law. Having considered all the grounds of appeal, my conclusion is that the application under section 288 of the 1990 Act should be dismissed. So far as the appeal under section 289 is concerned, I will reluctantly grant permission to appeal but, for the reasons I have given, that appeal will be dismissed.

55. MR STRACHAN: My Lord, first it is just for me to apologise for being slightly late this afternoon.

56. SIR MICHAEL HARRISON: I know you were in another court. Thank you very much all the time for apologising.

57. MR STRACHAN: The second matter, my Lord, is could I ask for an order in those terms?

58. THE SIR MICHAEL HARRISON: Yes, you may have that.

59. MR STRACHAN: In addition, an order that the claimant pay the first defendant's costs. There is a summary assessment schedule. I do not know if it has made its way to you.

60. SIR MICHAEL HARRISON: That has not reached me. It may be in the court file.

61. MR STRACHAN: I apologise, I know the claimants have a copy. Could I hand one up?

62. SIR MICHAEL HARRISON: Certainly. Do you have a copy, Mr Watkinson?

63. MR WATKINSON: I have. Through those instructing me, my learned friend was good enough to pass it to us on Wednesday. Can I just add an apology of my own? That is, the cold I was developing on Wednesday is now full floods, so all the coughing, spluttering and croaking that come comes from me is down to that.

64. SIR MICHAEL HARRISON: I am sorry to hear that, but I had not even noticed you were coughing and croaking. So the total is £6,968.

65. MR STRACHAN: My Lord, can I just amend that slightly. The total is in fact £7,228 to take account of the costs of attendance today  - one hour for counsel, one for instructing solicitor. So I ask for an assessment in those terms.

66. SIR MICHAEL HARRISON: Thank you very much. Mr Watkinson, can you resist that you should pay the first defendant's costs?

67. MR WATKINSON: I do not resist the payment of costs in principle, my Lord. It would of course be subject to the determination of the appellant's liability to pay on a detailed assessment of her public funding certificate costs. The appellant is in receipt of a public funding certificate.

68. SIR MICHAEL HARRISON: What is the exact terms of the order that I should make in those circumstances?

69. MR WATKINSON: My Lord, the terms of the order that I would propose would be that the appellant do pay the respondent's costs to a fixed sum of, and then I do actually propose to address your Lordships so far as the amount is concerned on two aspects: subject to detailed assessment and subject to a determination of the appellant's liability to pay those costs pursuant to section 11 of the Access to Justice Act 1999.

70. SIR MICHAEL HARRISON: Subject to determination of the appellant's liability to pay those costs?

71. MR WATKINSON: Pursuant to section 11 of the Access to Justice Act 1999, such assessment to be adjourned generally with permission to restore on notice to the appellant.

72. SIR MICHAEL HARRISON: Are you suggesting that it is necessary to have detailed assessment of this amount of £7,228?

MR WATKINSON: Your Lordship is quite right. In the first phrase that I read out, then if your Lordship delete the "subject of detailed assessment". So "do pay the respondent's costs in the sum of ... and subject to a determination of appellant's liability to pay as follows". Next I must ask for detailed assessment of the costs incurred on the appellant's public funding certificate.

SIR MICHAEL HARRISON: So what you are suggesting is the appellant pays the first defendant's costs in the sum of X and subject to determination of the appellant's liability to pay costs?

MR WATKINSON: To pay those costs.

SIR MICHAEL HARRISON: Under section 11 of the Access to Justice Act 1999, such assessment to be adjourned generally with permission to restore on notice to the appellant. Is that what you are suggesting?

MR WATKINSON: That is what I am suggesting.

SIR MICHAEL HARRISON: First of all, can we just deal with the sum itself? Are there some items you dispute?

MR WATKINSON: My Lord, yes. I do not take any issue with the item of counsel's fees at the end, or with the item "Attendance at hearing", or with the items "Attendances on client, counsel and opponents", which are on the first page. What I do raise is the item that starts on the second page, "Work done on the documents", which is 20 hours at £106 per hour. First comment is work done on the document has been carried out by a middle ranking fee earner on the ranking that we have, which is towards the top of the first page. The rankings are from £80 - - £160 to £200 per hour. The second comment is that it seems to me –

THE SIR MICHAEL HARRISON: Are you saying that is too much, or what?

MR WATKINSON: I am saying the work on the documents is work which could perfectly easily have been carried out by a third ranking fee certain earner, rather than the second ranking fee earner. Next comment is this: 20 hours seems to me to be an excessive amount of time that was spent upon the documents in this case in which the responsibility for marshalling the documents and making proposals for the documents to be put into the bundle is of the appellant's, or the claimant's, and not of the first defendant's. In addition in this case the appellant's proposals for the documents to be included in the court bundle were accepted by the first defendant, the first defendant in the additional documents to put in the bundle. I say generally the work done on documents is rather greater for the appellant's side than it would be for the respondent's side. I agree the documents have to be read, but in my submission 20 hours is an excessive amount of time for the documents in this case which, as your Lordship sees, came out at 181 pages. On my own assessment time for essential reading was two hours.

My Lord, the first thing I say about that is just to observe before I leave it that the total for that item comes to £3,560, which is around a half of the total sum which is claimed by the first defendant. The second matter is the attendance an others. This is not a great matter because the sum claimed there is only £352, but I observe that it does seem a little vague.

SIR MICHAEL HARRISON: Sorry?

MR WATKINSON: This is on the first page, and it is at the bottom, "Attendance on others". It comes up "Clients, counsel and opponents"; observation - it does seem a little vague. It does not really tell us how the others were connected with the case or why communication with them was a reasonable expense in the context of the case. My Lord, that is what I have to say.

SIR MICHAEL HARRISON: Thank you very much. Yes, Mr Strachan?

MR STRACHAN: My Lord, my first observation is it is unfortunate that, having had the costs schedule, these points are not then raised with my instructing solicitor, so that if there had been points of this kind clarification could have been provided, but I can provide that clarification to your Lordship now.

SIR MICHAEL HARRISON: If you can do it now that would be helpful, rather than have detailed assessment, because it increases costs.

MR STRACHAN: The point being I am going to explain to you now the amounts that the claimant could have raised with my instructing solicitor. The first is attendance on others. My Lord, you will be aware that there is a second defendant present and there has been clearly, as one would expect, communication with the second defendant as to the conduct of the appeal, and that may in fact save court time because the second defendant, whilst represented, did not feel the need to make additional submissions, no doubt reassured in the course of the preparation for the hearing. My Lord, so the sum of 2.2 hours to deal with another opponent is entirely reasonable time.

The other matter is work done on documents. My Lord is appearing to take issue with the 20 hours and says it is excessive time and an excessive amount for the relevant fee -earner. My Lord, the work done on the documents is not simply reading them. That is the time spent by my instructing solicitor considering the claims when they came in, and there were two claims because there was an appeal and a separately lodged section 288 application; they came separately. Considering the documents and then advising the client, in this case the Secretary of State, providing that advice to the client and dealing with documents in that way. So my Lord it is not a simply a question of reading the documents; it is actually a very reasonable sum, dealing with a claim which has taken a whole day of court time. And whilst your Lordship has come to a clear view, there were a number of detailed points taken relating to policies which had to be explained to the client and then considered as you would expect. Of course that answers the other point, that namely the fee -earner who conducted it is not a fee -earner incorporating £160 per hour. In my submission is an entirely appropriate sum and level of experience to be advising clients such as the Secretary of State on claims of this kind.

SIR MICHAEL HARRISON: Thank you very much. Do you have the form of order otherwise that is being proposed? Is that acceptable?

MR STRACHAN: My Lord, it struck me as something of a mouthful in the sense of my limited experience was that one normally asks for a section 11 costs order, which has the virtue of at least being shorter. But I understood that that in itself swept up the phraseology of my learned friend's advance. And it may be that the associate is greater experienced in that than either of us, but it struck me that it is a very long form of order for what is actually a short point.

SIR MICHAEL HARRISON: Thank you very much. On that last point, Mr Watkinson, although I am grateful to you for spelling it all out, it is a bit of a mouthful. I would be inclined to make a section 11 costs order and then the associate will make it out in the usual form.

MR WATKINSON: I do not (inaudible), as long as it has the same meaning.

SIR MICHAEL HARRISON: We are all talking the same language on that.

MR WATKINSON: Indeed. Can I make an observation? My learned friend has said just  - - just advising the client is of course a separate item, which is set out in his schedule.

SIR MICHAEL HARRISON: Mr Watkinson has taken a number of points in relation to the amount of costs. The first point is that under the heading of "Work done on documents", namely 20 hours at £106 per hour giving rise to a total of £3,200, he suggests first of all that that work could have been done by a third ranking fee -earner rather than a middle ranking fee earner. I not accept that. It seems to me that the work that was done was highly important work and it was quite right for a responsible person of middle ranking to do it.

So far as the amount of hours are concerned, 20 hours, Mr Watkinson suggested that that was an excessive amount. It is clear from what I have been told, and indeed it is what I would have expected, that that amount of time was not simply for reading the documents, but was for time spent on considering the documents, which of course related to two claims. A number of detailed points were taken and it seems to me that that 20 hours was perfectly reasonable.

The attendance on others at £352 was another aspect which Mr Watkinson has suggested may be a bit vague, but it has been explained by Mr Strachan, and I accept that explanation. I find that that sum is appropriate as well. It therefore follows that I will make an order that the appellant pay the first defendant's costs in the sum of £7,228, and I make a section 11 costs order. Is there anything else?

MR WATKINSON: My Lord, yes. Costs of course need separately detailed assessment of the costs incurred on the appellant's public funding certificates. I need that separately because a section 11 costs order deals with the costs between those instructing my learned friend and those instructing myself, but the detailed assessment deals with the costs as between ourselves and the Legal Services Commission. It is a distinction between party and party.

SIR MICHAEL HARRISON: So it is detailed assessment of?

MR WATKINSON: Detailed assessment of the costs incurred on the appellant's public funding certificates.

SIR MICHAEL HARRISON: Thank you very much. I imagine you have no observation on that, Mr Strachan. I will make that order. Detailed assessment of the costs incurred on the appellant's public funding certificates. Thank you very much.