England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		25th April 2008

1. MR JUSTICE OUSELEY: There are two matters before the court related to development carried out at a residence at 24 Village Road, Finchley in London, which is a locally listed building within the Finchley Garden Village conservation area.
2. The owner, Mr Catt, has erected a single-storey side extension to the house, an extension to the garage and a walk-in cage in the rear garden, built out of timber and wire. He sought planning permission retrospectively for the extension of the existing garage, and for what was described also as a stud house and cage, which the council amended to "retention of single storey side extension to house, extension to garage and walk in cage in rear garden, all for the use of keeping and breeding cats." This application was refused on 27th July 2006. Shortly afterwards, an enforcement notice was issued by the London Borough of Barnet Council directed to the timber and wire cage, requiring its demolition and the removal of its constituent items from the site. The period for compliance with that enforcement notice was three months.
3. Mr Catt appealed against the refusal of planning permission and the enforcement notice, and the matter was dealt with by an inspector appointed by the Secretary of State through written representations. He made his decision in a letter dated 21st March 2007, following a site visit made on 13th March 2007. By that decision he refused planning permission and upheld the enforcement notice.
4. Two challenges were made to those decisions, as they had to be. One, under section 288 of the Town and Country Planning Act 1990, challenged the decision in relation to the refusal of retrospective planning permission. The other, under section 289, challenged the dismissal of the appeal against the enforcement notice.
5. The grounds of challenge, as appears from documents which have been handed to me today, were identical. On 17th October 2007 Foskett J heard the application for permission to appeal in relation to the enforcement notice and rejected it. He could only have done so if he had concluded that no arguable point of law was raised by the grounds of challenge in relation to the enforcement notice.
6. The first matter that is before me concerns the section 288 challenge, which as I have said is based on identical grounds to those which Foskett J found unarguable. They are, indeed, unarguable.
7. The first ground raised by the challenge is that the inspector took into account an immaterial consideration. That was that the cage was readily apparent to the occupiers of neighbouring properties. The consideration is said to be immaterial because that conclusion of the inspector was factually incorrect: the structure was concealed from all but one of the neighbouring properties and he had grossly overestimated the degree to which that property could overlook the cage structure.
8. It is obvious that, taken on its face drafted by Burges Salmon LLP, that ground does not raise an error of law at all. Allowing some leeway to the draftsman and turning to the paragraph in the decision letter to which it relates, the inspector says that the timber and wire cage measured 10 metres by 8.6 metres, resembled an animal enclosure and occupied a significant part of the rear garden, and there was some justification for the view that it was more in keeping with London Zoo. The inspector said that the building was generally inappropriate to its context because of size, design and materials, lack of harmony with the character or appearance of the property or the surrounding area, and impinged on the setting of the locally listed building and diminished the openness of the rear garden. He then said:

"The incongruous nature of the structure is readily apparent to the occupiers of the neighbouring properties."

9. The judgment in that last sentence was one for him to make. All that the ground of challenge does is to disagree with it. That is plainly not an error of law.
10. The second ground takes issue with the earlier parts of paragraph 8 which I have just summarised, again in particular by reference to the degree to which this cage structure can be seen from neighbouring properties.
11. First of all, the ground raises no error of law, but continues the dispute over the factual and planning judgment which is a matter for the inspector. Secondly, it fails to take account of the range of interests which are offended by this cage, including the setting of the locally listed building and the character of the conservation area, whether or not anybody could see it.
12. The third ground relates to the alleged failure of the inspector in ignoring the request to make a split decision, that is to say granting planning permission for part of that which was applied for and refusing the rest.
13. This split related to the intended use of the structure at issue, as well as the use of the other two structures. Although planning permission was sought for the side extension, the garage extension and the wire cage, neither the local authority nor the inspector saw anything objectionable with the operational development aspect of the first two structures. The objection related to the use of the structures for the keeping and breeding of cats, and to the operational development comprised in the timber and wire cage.
14. The claimant contends that the inspector had avoided grappling with the issue that the planning application was for structures, according to the grounds:

"... designed and intended for the keeping and breeding of cats ..."

15. In his appeal to the inspector, the claimant said that he intended to do no more than keep the cat breeding and keeping activity at a level which would prevent it being more than ancillary to his use of the house. He also said that a split decision should be issued if the keeping and breeding of cats was unacceptable, but the extensions and the cage in the garden were acceptable.
16. The ground gives rise to no error of law. First of all, the inspector dealt with the question of whether he should grant permission for the application as submitted or interpreted by the local authority in relation to the keeping and breeding of cats. Be it noted that that was the specific use to which the side extensions and cage were to be put, according to that application. And it would have provided no limit at all to the level to which keeping and breeding cats within the side extension and cage could be used; it would not have limited to an ancillary use.
17. The inspector was concerned about the issue between the local authority and the appellant over what level of use might fall within the scope of residential or ancillary to residential use. He took the view that he should not grant permission for a cat-related use nor allow the structures when that use was at issue. He was in my judgment entitled to exercise his discretion to refuse to grant a split permission.
18. It has also been suggested to me that the inspector could have granted permission for the two extensions and refused permission for the cage. But that was not something which the claimant asked him to do. There was no request at all that he separate out acceptable from unacceptable building elements, although it was plain to the claimant that the local authority did not mind, simply as operational development, the extension to the side and to the garage. In my judgment, the claimant has nothing to be aggrieved about in the way that issue was handled.
19. The enforcement notice does not strike at the side extension and the position is simply this, therefore. The claimant has no express planning permission for the extensions. If he uses them for keeping and breeding cats in a way that is thought to give rise to a material change of use, he will face enforcement proceedings. If he contends that the development originally or as it now is falls within the scope of permitted development rights excluding the timber and wire cage, that is a matter no doubt that he can pray in aid should enforcement proceedings be taken or should he seek to make a further application. Either way, the operational development comprising the side extension and the garage extension are not struck at by the enforcement notice and he is not required at present to remove them. It would be for him to decide whether in relation to them, with or without cat use, he seeks again to regularise the position. But that has not been prejudiced and he did not ask for the permission which it is now apparently said the inspector should have catered for.
20. So there is nothing in those grounds and the section 288 application is dismissed.
21. That, however, is not the end of these proceedings. The effect of Foskett J's decision was that shortly afterwards the enforcement notice appeal became finally determined and, once time for compliance had run out, the failure of the claimant to remove the timber and wire cage constituted a criminal offence, and the direct enforcement powers within section 178 of the Town and Country Planning Act became available as well to the local authority.
22. The local authority considered what to do. Through correspondence early in 2008 they made it clear to Mr Catt that they were looking to invoke their direct action powers to bring an end to the existence of the cage and that they were coming under pressure from a number of local residents, quite properly concerned in the light of the inspector's decision for the well-being of Finchley Village Gardens suburb. On 19th February 2008 they resolved that direct action be taken under section 178.
23. This led to judicial review proceedings being commenced by Mr Catt against the local authority, in which it was contended that the decision of the local authority was unlawful. It was said to be unlawful because the prospects of success on the section 288 application had to be considered and the impact of success in the section 288 application had not been considered. If he were successful on the section 288 application that would give him good prospects of success on redetermination. That, the local authority, it was said, had ignored.
24. In addition to launching the judicial review proceedings on 26th March 2008, coupled with an application for urgent consideration, an application for an injunction was sought. That application was to prevent the local authority giving effect to the decision to exercise powers under section 178. Some passages from the decision in R (O'Brien) v Basildon District Council [2006] EWHC 1346 (Admin) were relied on. The application for an injunction was considered by Griffith Williams J on 27th March 2008 and he granted the order sought.
25. The application for permission, so far as I can tell, was not dealt with then. However, I treat the application for permission as being before me, together with the substantive hearing, as all parties have agreed is appropriate.
26. The injunction falls to be discharged and I discharge it, as Mr Williams for the claimant accepts is inevitable, in the light of the decision I have reached in relation to the section 288 challenge. That leaves the question of the substantive challenge to the 19th February 2008 decision.
27. As I have said, the basis of the challenge was the failure, as it was alleged to be, of the local authority to have regard to the prospects of success in the section 288 challenge and the implications which such success might have for the need to remove the building.
28. What was plain was that the local authority in its decision took full account of all the relevant factors, including the prospects of success. One factor which it is clear that the local authority were aware of in their decision was that the grounds which have been relied on in the section 289 challenge were the same as those being pursued in the section 288 challenge, and that in effect the section 288 grounds had been held to be unarguable.
29. What is also clear is that that point was not made in the grounds of judicial review challenge, nor was it made in any material, so far as I can see, placed before Griffith Williams J when interim relief was sought. If when interim relief was sought that matter had been brought to the judge's attention, that is to say that the section 289 challenge had been ruled unarguable, and the section 288 challenge raised exactly the same grounds, it is difficult to see that an injunction could have been granted.
30. Be that as it may, and I shall return to that later, it is perfectly clear that these judicial review proceedings were commenced on a false premise, proceeded on a false basis and have no merit whatsoever. The local authority knew the position. The section 288 challenge was unarguable, not merely because Foskett J in essence had said so, but it is perfectly obvious that Foskett J was right and the grounds raised are not grounds of law at all.
31. Accordingly, I refuse permission to apply for judicial review on the grounds that this case is wholly unarguable.
32. Costs.
33. MR WHALE: Yes, my Lord. I am very grateful. I think it falls to me to apply for costs first. I have a spare statement. I do not know if you have one. I think you do. If not, I have a spare.
34. MR JUSTICE OUSELEY: I do not recollect seeing one.
35. MR WHALE: Can I hand up a spare, if that be the case.
36. MR JUSTICE OUSELEY: Have you got a copy of this, Mr Williams?
37. MR WHALE: It has been served.
38. MR WILLIAMS: I believe so. If I could just have a look. My Lord, yes.
39. MR WHALE: My Lord, in fact I have to apply for less than is shown here, because it was prepared on the anticipation that we would have five hours of hearing but we have not had that. In case you are thinking about waiting and the like, that is reflected in this in any event. So I have shaved some of it off for my solicitor's anticipated attendance, leaving a figure of £3,048. I would ask --
40. MR JUSTICE OUSELEY: Including VAT? I do not know whether --
41. MR WHALE: My Lord can leave VAT.
42. MR JUSTICE OUSELEY: It is £3,048 --
43. MR WHALE: Indeed, yes. In terms of the timing, I do not see how my friend can resist that application, but in terms of timing the claimant has not yet paid the £4,500 ordered to be paid on 17th October last year, that is to say more than six months ago. So I would ask for an order for costs of £3,048 payable within three days.
44. MR JUSTICE OUSELEY: Three days?
45. MR WHALE: Yes, so the Treasury Solicitor can take enforcement if needs be, rather than having to wait 14 days. In my submission that would reflect not only the hopelessness of the claim, but also reflect the failure to pay the last order.
46. MR JUSTICE OUSELEY: All right. Mr Lopez.
47. MR LOPEZ: My Lord, I have a costs schedule. Does my Lord have a copy?
48. MR JUSTICE OUSELEY: No. (Handed)
49. Are you applying for these in relation to the judicial review or the 288 or both?
50. MR LOPEZ: My Lord, I apply for them in respect of all, which will be --
51. MR JUSTICE OUSELEY: It is rolled up, is it?
52. MR LOPEZ: Yes, including the injunction return. My Lord, you will have London Borough of Barnet's costs schedule and also by comparison the schedule that would have been relied on by the claimant. We compare extremely favourably.
53. MR JUSTICE OUSELEY: Yes.
54. MR LOPEZ: I do not know whether my Lord wants --
55. MR JUSTICE OUSELEY: No.
56. Mr Williams, what do you want to say?
57. MR WILLIAMS: My Lord, all I can say is this. The applicant was advised strongly by those instructing me about the potential outcome and accordingly I will have no grounds to resist the costs and those are my instructions.
58. MR JUSTICE OUSELEY: Yes. There will be an order for the payment of costs in the sum £3,048 to the Secretary of State within three days. There will be order for the sum claimed of £20,330 to the London Borough of Barnet.
59. I cannot let the matter rest here, Mr Williams.
60. MR WILLIAMS: My Lord, I am aware it may go further. You did not make an order in terms of £4,500, my Lord.
61. MR JUSTICE OUSELEY: No, as I understand it that has already been ordered.
62. Am I right, Mr Whale?
63. MR WHALE: Yes, it was ordered on 17th October last year. It has been paid yet.
64. MR JUSTICE OUSELEY: Yes, but you did not ask for anything in relation to that. You drew my attention to it.
65. MR WHALE: Indeed.
66. MR JUSTICE OUSELEY: Yes.
67. MR WILLIAMS: I am grateful, my Lord.
68. MR LOPEZ: Just one matter. In respect of the £20,000 figure, I do not know whether my Lord added "within 14 days"?
69. MR JUSTICE OUSELEY: 14 days.
70. Mr Williams, on the face of it Burges Salmon did not reveal something of real importance. On the face of it, counsel then appearing did not reveal something of real importance. In each instance the judicial review could have been dismissed for material non-disclosure if the facts are as I have posited, and the injunction was obtained in circumstances in which it should not have been; forget the merits, on the grounds of material non-disclosure. I do not like satellite litigation normally, but I think that the circumstances here are sufficiently troubling for it to be necessary for a full explanation to be provided.
71. Nobody has made an application for costs on an indemnity basis, but I would wish to have a full explanation from Ms Leedham, is it, who is the solicitor at Burges Salmon, and counsel appearing in relation to the application for an injunction. In the first place, I would like that in writing within seven days. If it is necessary in my view for any further steps to be taken, I will consider what order is appropriate. But the concern that I have is that they did not draw, either in writing or orally, the court's attention to the fact that the very grounds upon which they were relying as warranting a holding up of direct action were those which a court had ruled already to be unarguable and it is not adequate, subject to what they say, for a reference to the dismissal of the 289 proceedings to be made. I am imposing a seven-day limit. I want these letters by this time Friday, and I will consider in the light of that whether I should recommend any further disciplinary proceedings.
72. MR WILLIAMS: My Lord, can I just say this. The representations on my simple understanding — I do stand to be corrected, this is my understanding, I was not counsel, my Lord — in terms of the application I believe it was by phone.
73. MR JUSTICE OUSELEY: That makes it even more serious.
74. MR WILLIAMS: My Lord, in relation to that point and, secondly, in relation to counsel, my Lord, I am aware and the reason I am here is because counsel is abroad and is abroad for a month.
75. MR JUSTICE OUSELEY: Somebody made the application, and so far as I could see from the note it was counsel.
76. MR WILLIAMS: My Lord, counsel is abroad.
77. MR JUSTICE OUSELEY: Ah, sorry.
78. MR WILLIAMS: My Lord --
79. MR JUSTICE OUSELEY: How long do you think before counsel is back? It is Miss Field, is it?
80. MR WILLIAMS: Forster.
81. MR JUSTICE OUSELEY: Forster.
82. MR WILLIAMS: I believe it is Miss Forster.
83. MR JUSTICE OUSELEY: Bridget somebody anyway.
84. MR WILLIAMS: My Lord, yes. I believe Miss Forster is in Antigua for a month. My Lord, if you would like me to clarify that myself in writing for you to confirm.
85. MR JUSTICE OUSELEY: No, I will take what you say. I will have Ms Leedham, unless she is equally indisposed, within seven days, because she will know why the material is not in the papers, and I will take Miss Forster within five weeks.
86. MR WILLIAMS: I am grateful.
87. MR LOPEZ: My Lord, could I interpose? Might the London Borough of Barnet be entitled to a copy of the representations, just in case there is a discrepancy.
88. MR JUSTICE OUSELEY: If I wish for the London Borough of Barnet's assistance in relation to what, so far as I am concerned, is a matter between them and the court, I will notify them.
89. MR LOPEZ: So be it.
90. MR WILLIAMS: My Lord, as you are aware, I am bound by my instructions and I am aware of the awkward situation I am in, but my instructions are my instructions and I have been asked to seek leave to appeal, my Lord.
91. MR JUSTICE OUSELEY: Have you?
92. MR WILLIAMS: My Lord, I would have a stab in the dark as to what you may say.
93. MR JUSTICE OUSELEY: I am just going to look very briefly, Mr Williams, at.... I think you are doing all right for your pains, so I just say this: "no".
94. The letters are to come to me. Send them to my clerk, but to me not to the Administrative Court. The letter from the solicitor at Burges Salmon who is responsible and the letter from Miss Foster, they are to come to me.
95. MR WILLIAMS: My Lord, I believe I have your clerk's email address. Shall I forward that on, would that be sufficient?
96. MR JUSTICE OUSELEY: No, I want a typed letter. I am not doing this on email. Thank you very much.