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 WC2A 2LL
		29 July 2008

1. MR JUSTICE BEAN: The appellant, Mr Shahid, operates what is described as a "high class Indian restaurant", the Millennium Balti, in Kings Heath, Birmingham. On 14 June 1996 a previous owner of the same premises was granted planning permission following an appeal heard by an inspector for the premises to be used as a restaurant with a change of use from A1 retail to A3, conditions being imposed that the restaurant was not to have a takeaway or delivery service and was to operate between 5.00 pm and 11.30 pm daily but with no opening on Sundays. In fact, it appears that the previous owner did not comply with any of those conditions. In his witness statement in these proceedings Mr Shahid says:

"When I took over the business"

-- which is in December 1998 --

"the business opening hours were Monday to Sunday 5.00 pm to 1.00 am but I have been operating the business as an Indian Restaurant Takeaway between the hours of 5.00 pm and 11.30 pm."

He also says in the same witness statement that the previous owner, Mr Karim, had traded as both an Indian restaurant and a takeaway.

2. In 2004 it came to the attention of Birmingham Council planning enforcement section that a takeaway and delivery service was being operated at the premises, in breach of planning control, that but they were staying open beyond 11.30 pm and that a notice was displayed in the window of the restaurant advertising free home delivery within a three-mile radius, and opening hours of 5.30 pm to 12.30 am seven days a week. On the basis of this, a breach of conditions notice was served on Mr Shahid on 4 November 2004. That notice by agreement was held in abeyance pending the consideration of first, Mr Shahid's application for a variation of the conditions on the planning permission to permit seven-day opening and a takeaway service; then of an appeal to an inspector; and further, pending the outcome of the appeal to this court.
3. An officer of the council's planning enforcement section visited the restaurant on 23 October 2005 and was advised by a member of staff that the premises were open between 5.30 pm and 12.30 am seven days a week and that a takeaway and delivery service was operating.
4. By this time the council had refused to vary the conditions of the planning permission by a decision of 16 August 2005. The reasons given were:

"The proposed development considered separately and together with the existing A5 uses within the immediate locality would adversely affect the amenities of residential occupiers in the vicinity by reason of late night noise and disturbance and add to existing parking problems in the vicinity."

The proposal was accordingly said to be contrary to policy 8.7 of the Birmingham Unitary Development Plan, and the policy for the development for hot food shops, restaurants and cafes which has been adopted as Supplementary Planning Guidance.

5. Mr Shahid appealed to the Secretary of State whose inspector, Mr Jeremy Youle, conducted a hearing followed by a site visit on 21 September 2006. The claimant was represented by a solicitor. The inspector's decision was to dismiss the appeal. His appeal decision is to be read as a whole and it would be wearisome for all those involved if I were to read out every word of it, but I will note what seem to me to be the principal points. In paragraph 7, the inspector observes that the relevant section of the Unitary Development Plan seeks to ensure that hot food shops and restaurants do not cause noise and disturbance for the occupiers of neighbouring dwellings. The policy states that account will be taken of proposed opening hours and of cumulative impact wherever similar facilities exist. The development control guidelines applicable to hot food shops, restaurants and cafés do likewise.
6. At paragraph 9 onwards, he notes that the restaurant has 40 seats and is located within a shopping centre divided into two parades separated by a road, and that the majority of the premises in the shopping centre, including the appeal premises and adjoining properties, have residential accommodation at first-floor level. It is the potential noise and disturbance to those first-floor premises which he held to be relevant. Other residences in the neighbourhood were, in his view, located sufficiently far away; to make it unlikely that they would be affected.
7. Three of the units in the centre, apart from the appeal premises, were in use as hot food takeaways: the Balti 2000, the China Kitchen and the Jumbo House. There were also two off-licences. At paragraph 13 he said:

"Given the operation of three hot food takeaways, the off licences and the 40 seat restaurant at the appeal premises within the centre I consider that there is already likely to be a significant level of noise from the comings and goings of customers until late in the evenings particularly on Mondays to Saturdays. Takeaway uses tend to generate noise from people visiting the site by car and from delivery vehicles. In this context I agree with the previous Inspector that even ancillary takeaway use would be likely to significantly add to the noise and disturbance experienced by the residents of the first floor flats in both parades, particularly in the late evenings on Mondays to Saturdays and on Sundays when residents would have a reasonable expectation of a quieter environment."

At paragraph 15 he continued:

"I understand the appellant's arguments that Indian takeaway food tends to be eaten at home rather than on the street, that customers tend to be older and therefore more responsible, that the service counter would be to the rear of the shop rather than to the front and that the majority of orders would be taken by phone. The appellant has also argued that the takeaway use has operated for a number of years and that local residents have not objected on the basis of noise or disturbance. However, there is no guarantee that the use would continue to operate in this way over time. I do not consider that a condition seeking to limit the amount or proportion of trade from customers visiting the premises would be enforceable. A condition requiring the restaurant to serve only a specific type of food would be unduly onerous and therefore unreasonable. In addition, it would be difficult to devise a condition that would be precise and capable of enforcement.

16. The appellant has also argued that the appeal proposal would divert customers from the existing takeaway businesses and so would not result in overall additional activity within the shopping centre. At the Hearing the appellant argued, that over a recent period, the Jumbo House temporarily ceased trading and many customers transferred to the Millennium Balti. However, the level of trade diversion has not been substantiated and I consider it more likely that the appeal proposal would generate additional trade and activity within the shopping centre.

19. In conclusion, while there would be unlikely to be significant parking problems, I consider that the operation of an ancillary takeaway and delivery use until late in the evening for seven days a week would create additional noise and disturbance that would cause harm to the living conditions of occupants of the neighbouring flats."

8. As to proposed Sunday opening he said at paragraph 22:

"The appellant has argued that, in the years since the previous Inspector reached his conclusions in respect of the appeal premises, Sundays have become busier, particularly in terms of traffic, and therefore noisier. However, while this may be so, I still consider that the noise environment on Sundays will be significantly quieter than on weekdays."

9. Having rejected an objection based on potential parking problems, the inspector concluded that nevertheless permitting Sunday opening would give rise to additional noise and disturbance and would cause harm to the living conditions of occupants of the neighbouring flats.
10. One of the arguments put to the inspector was that the appellant had recently been granted a premises licence by the council under the Licensing Act 2003. This was necessary under that Act if the premises were to be open for the sale of food, even to customers within the restaurant, after 11.00 pm. It permitted the premises to be open until 11.30 pm for seven days a week. The inspector said:

"The appellant has argued that this was subject to widespread consultation to which no adverse comments were received. However, the licence relates to the operator and can be reviewed if the operation of the business changes. In contrast, a planning permission relates to the premises and I am required to consider the potential future operation of the use in relation to its neighbours. The appellant has also argued that the objections from local residents did not refer to problems of noise and disturbance. However, for the reasons I have outlined above that situation might change over time."

He therefore dismissed the appeal.

11. The principles of law applicable on an application to this court under section 288(1) of the Town and Country Planning Act 1990 are not in dispute, and Mr Leigh for the claimant did not really dispute the opening sentence of the written submissions of Mr Hereward Phillpot for the Secretary of State as to the appropriate decisions of law. He said:

"No novel or controversial issues of law are considered to arise in this case."

12. It is common ground that matters of planning judgment are within the exclusive province of the inspector and that an application under section 288 is not an opportunity for a review of his decision on the merits. The court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a re-run of the argument on the planning merits (see for example per Sullivan J in R (Newsmith Stainless Limited v Secretary of State Secretary of State for Environment Transport and the Regions [2001] EWHC Admin 74).
13. In principle, any consideration which relates to the use and development of land is capable of being a balanced consideration. Whether a particular consideration falling within that broad class is material in any given case will depend on the circumstances (see Stringer v Minister of Housing and Local Government [1971] 1 All ER 65 at 77).
14. Relevant previous appeal decisions relating to the same site are immaterial considerations, not least to ensure consistency in the appellate process. An Inspector must, however, always exercise his own judgment. He is free to disagree with an earlier inspector, though before doing so he ought to have regard to the importance of consistency and to give his reasons for any departure from the previous decision (see North Wiltshire District Council v Secretary of State for the Environment [1992] JPL 955 per Mann LJ).
15. The weight, if any, to be attached to a material consideration in determining a planning appeal is entirely a matter for the decision-maker (Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759).
16. The decision letter should be read in a straightforward down-to-earth way, without excessive legalism or exegetical sophistication (Clarke Homes v Secretary of State for the Environment [1993] 66 P&CR 263 at 271 per Sir Thomas Bingham, MR).
17. In ELS Wholesale (Wolverhampton) Limited v Secretary of State for the Environment [1988] 56 P&CR 69, a case dealing with enforcement action in respect of a retail shop, May J said:

"... in my judgment the proper approach to the decision letter [in] this and other similar appeals ... is to look somewhat broadly at the findings of the inspector, his reasoning and his decisions, not sentence by sentence at the minutiae but at the real sense and basic content of the decision to which he has come."

18. In Express Coffee Company Limited v Secretary of State for the Environment, Transport and the Regions [2002] EWHC 781 (Admin), Harrison J, a judge with immense experience in planning matters, adopted what May J said in the ELS case and said:

"It is necessary to look at the overall picture and take a broad approach to the findings and conclusions of the inspector."

19. Finally, as Lord Brown of Eaton-under-Heywood said in South Buckinghamshire DC v Porter [2004] 1 WLR 1953:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequate reasoned decision."

20. Although a number of points are made in the skeleton argument drafted on behalf of the claimant by Ms Sharif of counsel, Mr Leigh in oral argument before me today placed greatest emphasis on what may be called the "crystal ball" point. He submits that this is not a case where an inspector is asked to allow an appeal against a refusal of planning permission for premises where the proposed use has not occurred. In such a case, he says, inevitably the inspector, while using his skill and experience and while observing what he can on the site visit about the location, must inevitably speculate to some extent as to what might happen in the future. But here, he says, the premises have been used since 1996, and in particular by his clients since December 1998, albeit in breach of planning permission for use both as a restaurant and as a takeaway and on Sundays as well as on other days and yet there has been no objection from anyone on the grounds of actual noise or disturbance. He points to the fact that in an internal report to the Environmental Services Committee of the City Council on 14 June 2005, the writer who had examined the file advised the Committee that there were no noise complaints held on record by the department concerning the site.
21. There are in the papers two letters written by a local resident who lives very close to the site in the road, Meadfoot Avenue, which divides the two parts of the shopping parade objecting to the planning application. In the first letter the objection raised concerns parking. In the second letter the objection raised is litter, and the habit of some users of a shop in the shopping parade (though in fairness to Mr Shahid there is no evidence that it is the appeal premises) of using the driveway at the back of the shops as a toilet. But in neither letter does the resident concerned suggest that the users of Mr Shahid's restaurant or takeaway create noise or disturbance. Why then, Mr Leigh submits, should one expect the inspector to gaze into the crystal ball when there were several years of actual experience which should have led him to the contrary conclusion? The inspector failed to take into account the material consideration of the absence of complaint or objection over several years. The use sought by the proposed variation of the planning condition was not a prospective use: it was an actual use.
22. Mr Phillpot's answer to this is that the point was made to the inspector, was taken into account by him and was rejected. In paragraph 15 of the decision, the section dealing with takeaway use, the inspector notes that the appellant had argued that such use had operated for a number of years during which the residents had not objected on the basis of noise or disturbance. The Inspector's answer to this is that there is no guarantee that the use would continue to operate in this way over time. He notes that any condition seeking to limit the trade by a number of customers or by type of food served would be impracticable to operate. He therefore considers that there is a risk of the operation of an ancillary takeaway and delivery use creating additional noise and disturbance.
23. Mr Phillpot submits that it was for the inspector to weigh this consideration in the balance. It was undoubtedly a material consideration and it was for the inspector to attach such weight to it as he saw fit. I accept that submission. It is not for me to say whether I would have come to the same conclusion. I accept the submission that this consideration was material; it was for the inspector to set it against the previous history in the absence of local complaint, and the conclusion he reached was one to which he was entitled to come. The same applies to the similar conclusion about operating on Sundays.
24. A further ground of appeal against the inspector's decision is that he considered himself effectively bound by; alternatively, simply adopted uncritically the views of the previous inspector. Mr Leigh submits that not only is this wrong in principle, but it is particularly wrong here where the previous inspector, in June 1996, was looking to prospective use, whereas the present inspector had the advantage denied to his predecessor of at least eight years of actual operation.
25. It is I think an excessively microscopic and literal approach to paragraph 13 of the inspector's decision to say that he simply followed the views of his predecessor. The first two sentences of paragraph 13 clearly, in my view, derive from the inspector's experience and expertise in considering planning appeals and in particular his experience of cases involving restaurants and takeaways. Indeed the proposition that takeaway use tends to generate traffic in the forum of people visiting the site by car, amd also from delivery vehicles, is one which any layman, let alone a planning inspector, would be entitled to take. The inspector then goes on:

"In this context I agree with the previous inspector that even ancillary takeaway use would be likely to significantly add to the noise and disturbance experienced by the residents of the first floor flats in both parades..."

I do not take this to mean any more or any less than that the inspector from whose decision this appeal is brought, Mr Youle, is saying, using his own experience as he had in the previous two sentences, that in his view even ancillary takeaway use would be likely to add significantly to the noise itself experienced by the residents of the first floor flat and that he notes that the previous inspector had come to the same conclusion.

26. I do not consider, therefore, that the wording of this paragraph gives rise to any separate ground of appeal.

The next ground of appeal is that the inspector erred in law in his conclusion as to the likelihood of the proposed takeaway use generating additional trade and activity within the centre. This is based on paragraph 16 of the inspector's decision about trade diversion.

27. Again it seems to me that the Inspector had reached a conclusion to which he was entitled to come. A successful takeaway business at Mr Shahid's restaurant might attract customers who would otherwise have taken their business to, say, another Indian food takeaway a quarter of a mile away or a greater distance away. Customers visiting takeaways by car can pick and choose. Of course the Millennium Balti, to the extent that it only diverted trade from the other units in the centre, would not be increasing the trade and activity and potential noise and disturbance within the shopping centre. But it would be strange if that were the only diversion of trade which the restaurant succeeded in achieving. The inspector, as it seems to me, was entitled to form the view that the appeal proposal would generate additional trade and activity within the shopping centre. Mr Phillpot rightly refers to the observations of Lord Widgery CJ in Wholesale Mail Order Supplies v Secretary of State for the Environment [1971] GPL 163, where he said:

"It was a complete misconception to take the view that matters of professional opinion in planning require the sort of factual support in evidence which was required in proving the existence of a criminal case."

28. The next ground of appeal is that the inspector erred in law in the weight which he failed to attach to the grant of the premises licence. As Mr Leigh made clear in oral argument, this is really a different way of expressing the argument that the lack of objection to the Millennium Balti's previous activities amounted to a deafening silence to which the inspector should have attached great weight. Once again, it was a matter for the inspector what weigh he should attach. He did say at paragraph 25 that the appellant had argued that such objections as there had been from local residents did not refer to problems of noise and disturbance. Once again the inspector's response was that that situation might change over time.
29. The inspector also noted, and Mr Leigh does not dispute this, that a premises licence under the Licensing Act 2003 is personal to the operator, similar to an alcohol licence; whereas in contrast planning permission, or a variation of conditions on planning permission as sought in this case, relates to the premises and not to an individual. The inspector therefore had to consider potential future operation of the use in relation to neighbours.
30. In short, I agree with Mr Phillpot that however forcefully and elegantly put, the challenge in this case is really to the inspector's factual conclusion. I have not detected any error of law in his approach or that he failed to take into account anything which he should have taken into account. Questions of weight were for him.
31. It follows, therefore, that the appeal against his decision must be dismissed.
32. MR PHILPOT: My Lord I am grateful. I do ask for an order that the claimant pay my client's costs. There is a schedule of costs. I think a schedule may have been sent to the court. I would like to check your Lordship has the most recent one because there was a slight amendment made to the total. As far as I'm aware it is just in relation to my fees and it is a very modest adjustment, but nevertheless it is still public money.
33. MR JUSTICE BEAN: The one I have is dated yesterday and comes to £11,048.27.
34. MR PHILPOT: Your Lordship I think then has the previous version. Can I check that my learned friend has the revised version. (Handed) My Lord, as I understand it the only difference is that there is a small amount of additional work undertaken.
35. MR JUSTICE BEAN: I see what the difference is; it is a very small one. Was any statement of costs served on the claimant?
36. MR LEIGH: Yes.
37. MR PHILPOT: Yes, there was a statement of costs served by the claimant. I have seen that. I am not sure those were served on the Treasury Solicitor, but I have seen that this morning.
38. MR JUSTICE BEAN: Mr Leigh, you can't resist an order for costs in principle, can you?
39. MR LEIGH: Not in principle, no.
40. MR JUSTICE BEAN: Do you want to say anything about the statement of costs?
41. MR LEIGH: Yes, I do.
42. MR JUSTICE BEAN: I am tempted to say that I should hear from you after the lunch adjournment. You are entitled to go to this in detail if you want to. How much detail do you want to go into?
43. MR LEIGH: I have two points, really, to make on it and they will find favour or not. There is a matter of some three hours apparently spent -- it says attendance on opponents, and I have checked with my instructing solicitor, that's not a small sum.
44. MR JUSTICE BEAN: Three hours spent?
45. MR LEIGH: It says 2.2 hours and .6 hours, a total of 2.8 hours and it's rounded up, and this is on the first page: "Attendance on clients, attendance on counsel, attendance on opponents". So there are three hours apparently spent attending us, and I asked my instructing solicitor what took place in those three hours. He frankly has no knowledge really; it seems to be something he cannot account for. I am going to leave to one side attending on counsel. It says seven hours there, maybe that perhaps -- I put to one side.
46. What really troubles us is on top of the second page, effectively over 30 hours was described as being done on documents, which is frankly, if I may say so, astonishing. We can't understand, since we have carried this action and prepared the bundles -- although your Lordship does not have my instructing solicitor's statement of cost which I can hand up, the only copy I have to hand deals with the work done on documents. We have a total of 12 hours work on the documents and we are the claimant. That is a small point, if your Lordship wants to come back it to it, but that amounts to some £5,000-odd worth of almost £11,500 worth of work.
47. MR JUSTICE BEAN: I think there is a significant dispute, Mr Leigh. I don't want to try to decide it in the next two minutes, I think I will break off and come back at 2.20.
48. MR LEIGH: Your Lordship, I can hand you a copy at this stage. (Handed)
49. MR JUSTICE BEAN: Thank you very much.
50. MR LEIGH: I think it's a matter of due diligence. I am going to seek to persuade your Lordship, and I expect I know the answer, that maybe there's a legal point in your Lordship's judgment, just to anticipate, but I will make it very short.
51. MR JUSTICE BEAN: We will do that at 2.20.
(The short adjournment)
52. MR PHILPOT: I am grateful, my Lord. We had just started talking about costs, and my learned friend had raised very helpfully before the luncheon adjournment a number of queries on the schedule of costs we put in. I have taken instructions on those matters over the luncheon adjournment and what I suggest -- I understand my learned friend is content with this -- if I address your Lordship on those points and then allow my learned friend to respond with explanation to my Lord properly.
53. MR JUSTICE BEAN: Yes.
54. MR PHILPOT: Starting with attendances on counsel where there are seven hours recorded, that is an hourly rate of £160 an hour, which is less than the claimant's own rate.
55. So far as the time spent is concerned, it is important to remember that this case has been on the books, as it were, for a long time: since February 2007 I was first engaged in the matter. The hours that are set down there are all made up of recorded elements of time, it's not an approximation. The Treasury account for everything, including correspondence, e-mails, telephone calls, that sort of thing. I don't want to bore your Lordship by going through all that, and I am sure that will be helpful, but it is all recorded, time spent liaising with me. It includes, my Lord, liaison on the witness statement of the inspector, both as a necessity for that in order to recover; and then final comments on the draft received. So that is the explanation for attendance on counsel. (Inaudible) seven hours in the context of a case over a year-and-a-half are always pretty unremarkable, I would submit.
56. Attendances on opponents. Again, my Lord, all this is made up of recorded time which can, if necessary, be accounted for, telephone call, by letter or by email, should that be necessary. To make a summary assessment, that's not appropriate. It includes work up until the point, end of last week I think it was, when my instructing solicitor who had been dealing with this went away and another person took over, it has not included any of the work since then.
57. MR JUSTICE BEAN: Does it include letters as well as phone calls?
58. MR PHILPOT: Yes, my Lord, I understand it does. It includes all of those sorts of matters and it could haven't included more because there has been a little bit of discussion in recent days over the bundle of documents that was put in; so there it is.
59. MR JUSTICE BEAN: What do you say about the 30 hours or more of work done on documents?
60. MR PHILPOT: Yes, that's the bulk of documents. There is a simple explanation for it. Most of that time, save for time taken up on the witness statement, taking a witness statement from the inspector who was not dealing with me but dealing with it the other way with the client, most of that time is taken up in preparing the minutes in advance. That is a written opinion. But the Treasury Solicitors provide more of these cases to the planning inspector. Having received the challenge, they advise the inspectors on whether or not they consider it to be meritorious or whether or not to defend it.
61. Now previous cases, my Lord, I'm afraid they are not reported, I do not have them to put before you, the court has accepted that it is a perfectly reasonable and foreseeable item of expenditure to defend any challenge to advise the client of prospects of success, to do that in a written form.
62. Now my Lord, it was done in this case by the Treasury Solicitor rather than by counsel, and I submit that that is a perfectly reasonable thing to do. I'm afraid I don't have the precise breakdown as to how many of the 29.9 hours are taken up with that, as opposed to work on the witness statement, but my understanding is that it is probably the lion's share is the minute of advice, which takes some time to put together. It's a long, detailed document. It is much like a detailed written opinion rather than one which (inaudible) sign; it is quite extensive, but provides a written advice to your Lordship; it is of that sort of nature.
63. So that again, all recorded time. In fact my instructions are that longer was spent than is actually claimed for. That was reduced down to the 29.9 hours plus the other parts of the schedule. But that in fact is certainly time that was spent, and in my submission legitimately spent and foreseeably spent in resisting a challenge of this sort. Those are my instructions.
64. I submit that when one looks at the overall total of £11,357 and compare that with the overall total for the claimant of just under £15,000, understanding of course the claimant has to get the claim up, that that is a reasonable reflection of the case that your Lordship has before you. I can't go any further than that, realistically.
65. MR JUSTICE BEAN: Mr Leigh, do you want to say anything about the first two categories: attendances on counsel and attendances on the opponent?
66. MR LEIGH: My Lord, in all the circumstances, taking absolutely a proportionate approach, I am not going to take any points on that. What I will say, though, is my learned friend (inaudible) me outside of court, is that none of the time spent with counsel apparently is concerned with advising the Treasury Solicitor, which frankly I find surprising; it is solely concerned with preparing for this hearing in terms of any skeleton argument and then appearing at this hearing, and my learned friend is effectively paid on an hourly rate. So I won't embark on looking at that. And your Lordship, of course it is in comparison with both the brief fee and time spent on the skeleton and conference originally with the previous counsel on behalf of the claimant.
67. Therefore, my Lord, what does concern me, to which I do take objection, is this, if I may say so, extraordinary amount of time, 30 hours, and certainly in excess of 30 hours because we are now told that's been cut down although one does not known what mechanism was used to cut it down, but it may be there are --
68. MR JUSTICE BEAN: Does it come to this: it is about double what you would expect?
69. MR LEIGH: Exactly, it is the least -- I would imagine, with no disrespect to Treasury Solicitor staff and employees, had one gone to counsel who one would have thought it might be rather well placed to advise in these sorts of cases, if £2,500 were spent on obtaining -- frankly the brief fee, if I may say, that they pay counsel, £2,500, would be a very generous sum indeed. I am sure your Lordship has my point. Quite frankly I would probably say a third rather than a half, but I am not going to -- if your Lordship (inaudible) I am not going to quibble the point, it is clearly a very large time.
70. We are told also it has something to do with spending time preparing the inspector's witness statement. Of course witness statements from inspectors are sometimes done in these case, it is not really often one finds statements from inspectors. And in fact if one looks at that statement, with due respect to the draftsman of the statement it doesn't tell us anything, it just says: this was said, that was said, this is where you will find it in my decision letter. But that is apparent from reading the decision letter. It doesn't say, for example: and this point was expressly raised and I ask them this, and so on and so forth; or: the appellant or the claimant alleges this but in fact the following was done. So with due respect I would be so bold as to submit that a statement from the inspector probably was not necessary, documents could have been put in, certainly the timetable on the advice. I have made my point, that does seems extraordinarily long.
71. MR PHILPOT: My Lord, just so your Lordship has the full picture, so far as the inspector's witness statement is concerned, you must recall that at the time it was submitted the only evidence that had been put before the court, and the court of course requires the evidence to be put in by way of witness statement at the time or within 21 days soon thereafter, there is a witness statement of the claimant with no appendices. There was no evidence before the court at that stage as to material before the inspector, in a case where it was being alleged the inspector did not have evidence before him on which he could have reached his conclusions.
72. In due course, I have to say, I only received the bundle of papers on the 23rd of this month, which included a whole raft of papers. I make no complaint about the fact that they are there, but were before the inspector but weren't put in in any evidence. So at that stage it was vital that the court be shown the basis on which the decision had been reached, in other words the material before the inspector. Had the claimant therefore brought that item on himself -- my Lord, so far as the time spent on drafting the minute of advice, because that's not the full 29 hours --
73. MR JUSTICE BEAN: To whom was the advice directed?
74. MR PHILPOT: The planning inspectorate. The planning inspectorate has a High Court post within it and when a challenge is made the advice is given to the inspectorate, their client, as to the merits of the claim.
75. MR JUSTICE BEAN: To what purpose? Whether to resist the appeal?
76. MR PHILPOT: Indeed. Whether to resist the claim.
77. MR JUSTICE BEAN: Who makes that decision? Not Mr Youle personally?
78. MR PHILPOT: No, my Lord, it is the inspector, as I understand it, they make the decision on the basis of the advice that's been received whether or not to defend a claim. But my Lord the question of whether or not they are entitled to (a) get advice, and (b) claim the cost of that advice I say that should not be controversial.
79. MR JUSTICE BEAN: No it isn't. I think you have made these points. We are now on to the second reply --
80. MR PHILPOT: Sorry, my Lord, I stray from the path.
81. MR JUSTICE BEAN: Thank you very much.
82. I agree with Mr Leigh for the claimant that the number of hours claimed for work done on documents was staggering in particular the fact that over 32 hours are claimed. Mr Phillpot tells me that the lion's share, though not all of it, involves the drafting of a minute of advice to the planning inspectorate about the issues in this case. I do not consider that anything like that amount of time should be time in respect of which it is reasonable to expect Mr Shahid to pay.
83. I shall disallow 15 hours at £160 an hour for the work done on documents, which brings the total down, if my arithmetic is correct, from £11,357 to £8,957.
84. I do not accept any of the other points on which the statement of costs is criticised. The attendances on counsel at 7.4 hours and the attendances on opponents at 2.8 hours, I accept, were time reasonably, proportionately and actually spent.
85. MR LEIGH: My Lord, that just leaves the question of seeking permission to appeal. Clearly no disrespect to your Lordship's judgment, it seems on the facts and conclusions in your Lordship's judgment that the only evidence of harm that has effectively lead to the deafening silence, your Lordship's judgment as I understand it says even if your Lordship may not have made the same decision the decision reached by the inspector was one he was entitled to make as a matter of giving weight to the material considerations.
86. The legal point that I raise is, in a case where an inspector postulates as to the future impact of something where there is no evidence, other than the inspector postulating of the future impact and significantly there is a complete contradiction, evidence of non-harm over a significant period, namely eight years can, as a matter of law -- the inspector still give weight to his crystal ball gazing. In other words, this is outside the margin of appreciation the inspector may have in weighing up material considerations, and in my submission as a matter of law, can he be said lawfully to carry out that way exercise in the way your Lordship says he does when the evidence is going completely the other way.
87. In my submission, as a matter of law, is there a principle that says in those case he simply cannot give weight to something where there is no weight? Or if he, as a matter of law, is allowed to give weight to this non-point he has to in the time honoured fashion explain the rationale behind the decision-making process so the claimant at least knows where he went wrong and whether he can improve on his case or whether his case is dead in the water.
88. MR JUSTICE BEAN: Thank you, Mr Leigh. As I said in giving judgment, the challenge in this case, forcefully and elegantly expressed though it was, was in my view a factual challenge. The case involved no novel or controversial issues of law but the application to relatively commonplace facts of long-established principles of planning law. So it must be for the claimant to persuade a Lord Justice or the Court of Appeal to grant leave, if he wishes to pursue the matter further. I do not grant leave myself. Thank you both very much for your assistance.