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
		12 November 2008

1. MR JUSTICE PITCHFORD: This is an application by the claimants, Mr and Mrs Connolly, to quash the decision of a Planning Inspector under section 288 of the Town and Country Planning Act 1990. Their next-door neighbour at No. 2 Whitmore Avenue, Harold Wood is Mr Michael Cullen. He applied, on 4 May 2006, to the London Borough of Havering for planning permission to carry out alterations to his home at that address. His application number was P0772.06.
2. Mr and Mrs Connolly say that they were unaware of the application and for that reason they did not object. Nevertheless, permission was refused by a Planning Officer with delegated powers, on 29 June 2006, and Mr Cullen lodged an appeal. His appeal documents are dated 28 December.
3. The Planning Inspector, Jacqueline North, held an appeal under section 78 of the 1990 Act. She allowed the appeal in part, and otherwise dismissed the appeal in part. Mr and Mrs Connolly contend that the Inspector made a fundamental error in misunderstanding the position of the London Borough of Havering on the merits of the proposal, and that no reasonable Inspector could have reached the decision she did.
4. It is first necessary to understand what the proposal involved. Number 2 Whitmore Avenue is a detached corner property. To one side on the left, as one looks at the front of the property from Whitmore Avenue, is a single storey garage set back from the road. Mr Cullen proposed to construct a room, referred to as a "study", over the garage and over the carport to be erected in front of the garage at ground level, to revise the profile of the existing porch and create a rear patio cover. These extensions and alterations would have joined Mr and Mrs Connolly's boundary at No.4. On the right side of the house, referred to in the papers as the "south side" (the boundary which adjoined Mr Allen (?) ), Mr Cullen proposed to create a covered storage area.
5. In the officer's report forming the statement which Havering later submitted to the Planning Inspector, he described his response to the garage conversion as follows:

"ENVIRONMENTAL IMPACT

The acceptability of a residential extension depends upon its effect on the general street scene and neighbouring properties. The extension should be carefully designed and sympathetic in character and appearance to the original dwelling and neighbourhood.

Front extensions can have an intrusive effect on the streetscape; therefore front additions should not normally be 1 metre in depth from the front facade. Although the proposed carport is to project 1.5 metres past the existing front facade it is not considered that the extension will have detrimental impact to the street scene as it will not be enclosed.

It is believed that the proposed first floor side extension, carport and porch would be a good design response as it would appear subservient to the original dwelling and would not cause material detriment or affect the character of the surrounding area.

However, it is Council policy that side extensions should not normally be extended up both flank boundaries since this would involve closing the characteristic gaps between dwellings which will be detrimental to the street scene and leave no access to the rear.

...

It is Council policy that for any projection beyond the rear wall of the original dwelling on or close to a flank boundary should not be more than 4 metres in depth at ground floor level for a detached dwelling. Any greater depth required should be within an angle of 45 degrees at ground floor level. The proposed rear extension at ground floor meets the above setbacks and angles."

As to impact on neighbours' properties, the officer's report continues:

"Consideration has been given to the impact of the proposal on the side and rear properties primarily, in respect to privacy and overshadowing.

Given the orientation of the site and siting of the dwellings, overshadowing to the adjoining properties private open space is minor, with the shadow generally cast over the subject site itself. It is noted that the development will cast a shadow into adjoining properties however it is believed that adequate sunlight will still be received to the secluded open space areas of the properties throughout the day.

It is considered that there would not be a significant change in relation to overlooking as existing conditions already have the potential to overlook into adjoining properties open space. There would be no overlooking into adjoining habitable room windows.

It is not considered that the proposal would unacceptably affect any adjoining properties."

6. Thus it will be seen that the officer's report was, in general, favourable to the proposal for conversion on the garage side of the house. The officer's report was not, however, favourable to the proposal to cover the yard and garden on the opposite side of No. 2 Whitmore Avenue.
7. As to environmental impact, the officer stated:

"Although there would still be access to the rear of the property via the exiting garage, it is not considered that the design response has allowed for appropriate spacing/gaps between boundaries in particular given the subject site is located on a corner. This is reinforced as Council policy also states side extensions must be setback at least 1 metre from a highway and the proposed undercover area to the side of the dwelling is to be constructed right on the boundary which is an infringement of policy."

In his conclusions, the officer having had nothing to say about the impact on the south side, continued:

"The proposal in particular the side undercover enclosure to the south of the dwelling would have a detrimental impact to the street scene and the character of the surrounding area due to the lack of setback from the adjoining highway, contrary to the Havering Unitary Development Plan notably policies ENV1 and the Supplementary Design Guidance (Residential Extensions and Alterations)."

And approval was refused accordingly.

8. In its submission to the Inspector, dated 13 March 2007, Havering said this in its opening two paragraphs:

"The London Borough of Havering is forwarding the questionnaire with the officer's report which forms the Council's statement of case. The Council will not be sending a further statement as the reasons for refusal are set out within the report.

The relevant planning history is included in the statement. With reference to question 21B(ii), there are no supplementary reasons for the decision on the application. In regard to question 21B(iii) the Council would draw the Inspector's attention to the characteristic spacing between dwellings on this estate at the site visit".

9. The submission continued to examine the relevant planning policy for the site and to set out, in terms similar to those contained within the Planning Officer's report, Havering's attitude to the merits of the appeal. In particular, the detrimental impact attributed to the proposal applied, almost exclusively, to the undercover enclosure to be erected on the south side of the subject property. It was, therefore, on all fours with the reasons given by the Planning Officer for his decision to refuse permission. Unknown to the Inspector, however, the relevant planning history had not been included in the statement.
10. On the first page of the officer's report, which accompanied the submission, under the heading "Relevant History", appears the following:

"There is no relevant recorded planning history for the site".

In fact, on 22 August 2006, Mr Cullen submitted a second planning application given the number P1651.06. In so far as it related to the proposal for the garage side of his property, it was almost identical to that contained in application P0772.06. This time Mr and Mrs Connolly did obtain notice of the application and made objections. The application was refused on 17 October 2006. It is not known whether the decision was made by the same, or a different, Planning Officer. What is clear is that the decision-maker was solely concerned with the environmental affect of the first storey garage extension on the left side of No.2 Whitmore Avenue. The reasons for refusal given were as follows:

"The proposal development would, by reason of its excessive depth, height and position close to the boundary with number 4 Whitmore Avenue, would result in a loss of natural light and will unacceptably overbear and dominate the outlook of this property contrary to the provision of ENV1 of the Havering Unitary Development Plan and supplementary Design Guidance Residential Extensions and Alterations."

11. In their submission to the Planning Inspector against the first refusal of planning permission, Mr and Mrs Connolly did identify both planning applications by number. However, they did not in their objection spell out the specific decision made in their favour on 17 October 2006. Neither did they, in their objections, descend to the detailed observation that by two different Planning Officers the proposals relating to both sides of the house had been disapproved on planning grounds. The reason for that is that they were told the Council would be specifying the planning history for the Inspector, which, of course, as I have observed, the Council did undertake to do in its letter of submission to the Inspector.
12. Although the appeal and the submission of the Council related to the proposal as a whole, the Inspector discovered that the real objection revealed by Havering, in its submission, was to the covered area on the Lister Avenue side of the property. Through no fault of her own the Inspector was completely unaware of the decision, made on 29 June 2006, refusing permission for the first floor garage extension on its own merits.
13. She described her reasons for allowing the appeal concerning the garage conversion as follows:

"5. The Council raises no objections in relation to the room over the garage, carport, revised porch and patio cover. It considers that these elements of the proposed development are well designed, would appear subservient to the original building and not cause material detriment or affect the character of the surrounding area. The Council have adopted supplementary Planning Guidance on Residential Extensions and Alterations (SPG). This has been subject to public consultation as part of its adoption process in 2004 and I shall give it considerable weight.

...

7. Guidance in the SPG requires that front extensions should not normally be more than 1m in depth from the main front wall of the original dwelling. The proposed carport would be located to the front of the existing garage and would project approximately 1.5m from the front facade. This exceeds the projection generally permitted by the SPG but as this projection is the same as the existing porch on 2 Whitmore Avenue and the carport would be open at the front, I do not consider that it would be detrimental to the street scene and in my opinion it would comply with the requirements of UDP Policy ENV1.

8. The extension above the garage and carport would be set back from the front of the house in accordance with the SPG. In my opinion these additions to the house would appear subservient to the original dwelling due to the setback and lower height of the roof and is of a design complimentary to the existing house. The alteration in the design of the porch aims to compliment the roof above the carport, it is no deeper or higher than that existing and I do not consider that it would have any significant effect on the street scene."

On the other hand, comparing the proposed covered storage area of planning policy the Inspector said this:

"6. The covered storage area to the side would project forward of the existing gates. The proposed structure would be higher than the existing boundary feature and would fill in the space between the existing house and the boundary with Lister Avenue. I consider that the corner location of this structure would increase the visual impact of this extension and that it would appear as an intrusive and incongruous addition to the street scene in a visual prominent corner site. In my opinion the covered area to the site of No.2 Whitmore Avenue would not be compatible with the character of the area and contrary to the Policy ENV1 of the adopted Havering Unitary Development Plan (UDP) stipulates that new development will not be permitted where, inter alia, it would be visually intrusive or incongruous."

The Inspector then went on to consider objections and concerns regarding issues of overlooking, overshadowing and poor outlook. She concluded:

"9 ... Given the orientation of the site and siting of dwellings I consider that the overshadowing of adjoining properties will be minor and would not significantly harm the occupants' living conditions as adequate daylight and sunlight would reach the rooms and garden areas for most of the day. I also consider that there would not be any significant change with regard to overlooking as the existing dwellings overlook the gardens of neighbouring houses and the proposed development would not change this situation nor would it result in overlooking of habitable rooms. The main change in outlook would be a view from No. 4 over a covered area in the garden and, in my opinion, this would not result in any significant harm to the living conditions of the occupiers of No. 4. I consider that the extension and carport would comply with UDP Policy ENV1 and the SPG."

14. At the request of the London Borough of Havering the Inspector imposed conditions requiring materials to be approved by the Council and that the carport should be permanently available for private parking at No. 2. Accordingly, the Inspector allowed the appeal with respect to the proposal concerning the garage side of the house, but dismissed the appeal in respect of that part of the proposal which concerned the covered area on the south side of the house.
15. The claimant's challenged the Inspector's decision on the ground that it was reached under a fundamental misapprehension as to the planning history. While the court will not ordinarily permit evidence to be admitted which was not before the Inspector, evidence of this quality is wholly exceptional and should be received. The response, on behalf of the Secretary of State, is that this is new evidence which should not be admitted. Even if it is admitted, the planning Inspector was exercising her independent planning judgment which should not be disturbed.
16. My attention was drawn by Mr Whale to some of the observations of Sullivan J on the subject of new evidence in R v (on the application of New Smith Stainless Limited) and the Secretary of State for Environment, Transport and the Regions [2001] EWHC (Admin). Sullivan J observed:

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

17. The judge's attention had been drawn to the decision of Mr George Bartlett QC, sitting as a Deputy Judge at the High Court, in South Oxfordshire District Council v the Secretary of State for the Environment, Transport and the Regions [2000] 2 All ER 667. The effect of the decision was that there was no general rule that a party to a planning appeal was to be prevented from raising an argument that had not been advanced in representations made on the appeal. If the Inspector had omitted a material consideration the decision could be unlawful, notwithstanding that the matter had not been raised in those representations. Sullivan J observed that it was important that that decision should not be regarded as a licence to introduce new material that was not before the Inspector. He continued at paragraph 16:

"Whilst I accept that there is no general rule preventing a party from raising new material in a section 288 application, it will only be in very rare cases that it would be appropriate for the court to exercise its discretion to allow such material to be argued. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgment (matters which are for the Inspector not the Court)."

18. The London Borough of Havering was not merely a party to the section 78 appeal, but it was also the custodian of the public interest in that it was expected to draw to the Inspector's attention planning considerations which may be of relevance to her decision. It seems to me that a recent and separate refusal of permission on discrete and relevant planning grounds was undoubtedly information with which the Inspector should have been provided by the Council, but was not.
19. Mr Whale took me carefully through the Inspector's reasons so as to demonstrate that she had indeed made a planning judgment. He reminded me correctly of the opinion of Lord Hoffmann in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 at 780 that:

"If there is one principle of planning law more firmly settled than any other it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

20. Mr Wolman submitted that the Inspector failed in making her judgment to take into account a material consideration, namely that a professional Planning Officer had reached the conclusion that the relevant part of the proposal, as it affected No. 4 Whitmore Avenue, was in fact in breach of ENV1 of the Havering Unitary Development Plan and Supplementary Design Guidance (Residential Extensions and Alterations). While it is correct to recognise that the Inspector did indeed carry out her own assessment of the site and the proposal, and reached a judgment about them, she also recorded that the Council raised no objections in relation to the room over the garage, the carport and the patio cover. Had she been aware that the Council had in fact raised very substantial objections to a materially identical proposal for the same property, I have no doubt that her approach to the planning issues and planning judgment would have been more circumspect than it was.
21. I cannot conclude that had she been provided with this knowledge her decision would have been different. I can conceive of previous planning decisions which would be of no materiality whatever to the Planning Inspector's decision. I can, at the other end of the scale, anticipate planning decisions, like this one, in which the content of the reasons for refusal may be of significant materiality to the exercise of the planning judgment. While I cannot conclude that her decision would have been different, I can conclude that it might have been.
22. Accordingly, I reach the conclusion that entirely without fault on her part the Inspector failed to take account of the material consideration. This has the effect of vitiating her decision, which, in my view, must be quashed and the matter remitted to the Secretary of State for further consideration.
23. MR WOLMAN: I do not know whether you have had handed up a costs schedule in relation to the matter?
24. MR JUSTICE PITCHFORD: I have no additional document, Mr Wolman.
25. MR WOLMAN: I understand it was emailed last night. If I may, perhaps I can hand it up to you to have a look and to consider? Mr Collins asked me to point out that the standard form does not quite deal with the situation where a solicitor is acting in person. That is why he has put his address under the name of the solicitors. That is not his firm, just his personal address.
26. MR JUSTICE PITCHFORD: You dropped your voice.
27. MR WOLMAN: I apologise. The standard form does not allow for the situation where a solicitor is acting in person, so what Mr Connolly has done is put his own home address under the name of the firm of solicitors, but in fact he has been acting in person as a solicitor, but not as part of any constituted firm. Originally he was at Ellis Taylor. You will see that Ellis Taylor has done most of the work that a solicitor would be expected to do, and has been done in this case, but Mr Connolly has recently left the firm and that is why he has not signed it as a solicitor at Ellis Taylor.
28. MR JUSTICE PITCHFORD: Mr Whale, do you have any point to make about this?
29. MR WHALE: I do not know yet if we are the subject of a costs application.
30. MR JUSTICE PITCHFORD: I think you are about to be.
31. MR WHALE: I am not sure I am in the light of the discussion I had outside.
32. MR JUSTICE PITCHFORD: What is the situation, Mr Wolman?
33. MR WOLMAN: It is correct to say we are seeking our costs, I think, of my skeleton. The position which I discussed with my learned friend outside is whether the other defendant, Havering, should be, in any sense, held liable. As I think you have indicated, the fault and the mix up must be really attributed to them, rather than the Secretary of State.
34. MR JUSTICE PITCHFORD: What are you inviting me to do?
35. MR WOLMAN: I am inviting you to consider that point. We say we should be awarded costs from the defendants ideally jointly or separately any way. How you allocate it is a matter for my learned friend. As you raise the point, I did indeed canvass it with him beforehand for something for you to consider. Certainly we say that the claimants ought to be awarded their costs from one or other of the defendants, or both.
36. MR JUSTICE PITCHFORD: Mr Whale?
37. MR WHALE: The proposition that the claimants should be awarded their costs from somebody is a proposition I would not quarrel with. The proposition that they ought to have some of them, or all of them, from the Secretary of State is a proposition I would quarrel with. After all you have, as my learned friend rightly says, quashed this decision, notwithstanding your judgment that there was no fault at all on the part of the Inspector. It seems to me, in those circumstances, entirely inappropriate for the Secretary of State, acting on their behalf, to have to bear the costs of these proceedings. Moreover, it seems inappropriate that Mr Connolly should have to go away bearing his own costs.
38. MR JUSTICE PITCHFORD: On the other hand, you have been aware of the point at issue since the claim was served.
39. MR WHALE: Is that right? In my submission it is not right. Let us take up the Particulars of Claim. Does my Lord have those?
40. MR JUSTICE PITCHFORD: Yes.
41. MR WHALE: Paragraph 2 encompasses a range of complaints really, one of which was that there was, if you like, a Wednesbury irrational conclusion. That has failed in any analysis. Secondly, that the Inspector has taken into account matters she ought not to have taken into account. That failed on any analysis. In fact I do not recall it ever being pursued.
42. The principal point was that the Inspector was wrong in concluding that the authority had no objection beyond the side covered area. She was right about that, on the face of the evidence before her. The proposition that the Inspector failed to take into account a relevant consideration, and that her decision is vitiated as a result because her result might have been different, is a proposition that I cannot discover, or discern, within these particulars. It is, in fairness, a proposition that emerged for the first time really when I was given the skeleton argument at half past 10 this morning. Unless somebody can put me straight on that, that is my position as to the way in which this claim has unfolded.
43. MR WOLMAN: (pause) Sorry, I did not know my learned friend was waiting for me to intervene.
44. MR JUSTICE PITCHFORD: The point being made, as I understand it, Mr Wolman, is that the precise basis for the decision I have just announced in my judgment was not formulated in the Particulars of Claim, at least not in the terms in which I have expressed them.
45. MR WHALE: My Lord, if I can just take you to those particulars. I suppose the key bit is in paragraph 19, which specifically refers to the application of 16/51.
46. MR JUSTICE PITCHFORD: It does. What it does is to criticise the Inspector's judgment. What it does not say is that unknown to her there was another decision and accordingly she failed to take into account a material consideration.
47. MR WOLMAN: I accept it does not say that. It does say also at paragraph 17, "He failed to take into account the Council's objections", but obviously it does not explain why that failure took place. Of course, also my learned friend suggested that we were not suggesting, and indeed we must fail on the submission, that the Inspector had taken into account factors that she should not have taken into account. That of course is a mirror image of what we are saying. It must be true she did take into account and she says that the Council raised no objections to the planning application. But in fact that was not correct, as you rightly pointed out, not through any fault of her own. That was a factor she took into account and it was a wrong factor to take into account because it was not factually correct, just the opposite.
48. MR JUSTICE PITCHFORD: The fact is they did not object. What they did not do is disclose the planning history, which they had undertaken to do, which showed that on a more recent occasion they had refused.
49. MR WOLMAN: Had refused, had objected. I understand that.
50. MR JUSTICE PITCHFORD: Where are we getting to? Why should you receive your costs against him?
51. MR WOLMAN: My Lord, there is clearly no issue of solvency here. What our primary submission is, is that we should get our costs. This was a wrong decision, as you found. It seems to be a wrong decision. We would submit it is an oversight of the first defendant. Therefore, if you are minded to make a costs order against the first defendant it should be in entirety rather than the second course.
52. MR JUSTICE PITCHFORD: These are both public bodies. I might be minded to make an apportioned order for costs half against them and half against the Secretary of State.
53. MR WOLMAN: My Lord, I submit whatever you suggest.
54. MR JUSTICE PITCHFORD: Could I repeat my question: do you in fact take any objection to the form in which the statement of costs is set out?
55. MR WHALE: I do not take any objection to its form, after all Mr Connolly has just done his best with the format that is prescribed. I do not take any objection to its form at all. What I might do is go through some of the detail of it because what it appears to reflect is work done by a firm of solicitors up to 23 September 2008, charged at grade A rates of £275 per hour. Then thereafter it reflects work done by Mr Connolly in person and he has billed his time at that same rate, presumably to reflect work he has done in his own study at home, or something of that kind. I do not know. What I would submit about that is this: firstly, for the entirety of the work, be it through solicitors or at home, to be done at grade A level is inappropriate; secondly, it is not the correct measure for litigants in person doing work at home to put in costs statements on the same basis as if they were in practice. In other words, just charging out their normal hourly rate. In my experience the court affords litigants in person a far smaller figure than grade A at £275 an hour.
56. MR JUSTICE PITCHFORD: Because they do not have the overheads.
57. MR WOLMAN: Exactly. What we do not know from the statement really, in any detail, is in attendance of work done, etc, which was the bit done in the firm and which was the bit done at home. The long and the short of all of that is that there should be some inroads into this amount. I have no quarrel with the amount claimed on behalf of Mr Wolman.
58. MR JUSTICE PITCHFORD: Where did you get the cutoff date from?
59. MR WHALE: The very start of the statement of costs. Under the costs for the work done by Ellis Taylor up to 23 September, and for the claimants, in person, thereafter. Mr Connolly I am sure can clear up some of these mysteries, but whatever he does it seems to me that you ought to reduce the grand total claimed, for the reasons I have indicated. Then there is a question of apportionment, or whatever.
60. MR WOLMAN: I have just been instructed, in fact, that Mr Connolly has not charged for any of his time since September 23 when he left the firm. He only charged for some of his time and some of Peter Taylor's time when he was at the firm.
61. MR JUSTICE PITCHFORD: This is all firm time?
62. MR WOLMAN: This is all firm time. The time he has had to spend he has not charged for at all, even though he could have charged for some, with one exception and that is the £13.20 travelling expenses.
63. MR JUSTICE PITCHFORD: Therefore, £3,107.50 is what Mr Connolly owes the firm?
64. MR WOLMAN: That is correct. That is what he owes the firm. If you compare that figure together with my costs, bearing in mind clearly he had to make the running on this as the claimant, they are pretty close to the statement of costs submitted by the Secretary of State, which are £4,560. We submit it is not excessively high or disproportionate costs, taking a broad view of it.
65. MR WHALE: It may be dancing on pinheads. In terms of making the running the Treasury Solicitor had to be engaged on the preparation of the bundles, as a matter of fact, of making enquiries to obtain some of these documents like the officer's report. If providing a skeleton argument at 10.30am is making the run in, you have the point. A skeleton argument, which if I may say so, is clear, included a new point on which they have succeeded.
66. MR JUSTICE PITCHFORD: Yes. Thank you very much.
Ruling on costs
67. MR JUSTICE PITCHFORD: I propose to make an award of costs against the defendants in favour of the claimants. I have received submissions on behalf of the first defendant to the effect that the number of hours should be scrutinised and having regard to the fact that some of the work would have been conducted in Mr Connolly's home. Since he is, by profession, a solicitor, the rates charged, certainly in respect of some of the hours are said to be attributable to the claim. I am assured that Mr Connolly's personal time has not been charged in respect of any of the work done in preparation, and that such work for which a charge will be made relates to work done in his capacity as a solicitor employed by the firm, Ellis Taylor, as in respect of the time spent by Mr Peter Taylor, both of them being grade A solicitors.
68. That being the case, as I accept, it seems to me that the global figure of just over £3,000 is reasonable and I do not propose to make any discount from that sum.
69. No exception is taken on behalf of the first defendant by Mr Whale to the size of counsel's fee and accordingly I accept the statement of costs in the full sum claimed of 4,945.76. I shall therefore make an order for costs in a sum, which I shall summarily assess. Ordinarily I would make an order in respect of the whole sum against the defendants jointly and severally, however, it seems to me, these being public bodies, it is unnecessary to go to those lengths. I shall make an order for payment of the claimant's costs against the first defendant in the apportioned sum of £2,477.88.
70. In respect of the London Borough of Havering I shall make this order, that the defendant shall pay the claimant's costs in the sum of £2,477.88, unless within seven days the London Borough makes representations in writing to the Administrative Court Office as to why such costs should not be made. In the event that those representations are made, the claimant shall have the opportunity to reply in writing within a further period of 14 days. The matter shall then be placed before a Single Judge, preferably me, for a decision on the papers.
71. MR WHALE: I have three further matters, if I may: the first is the one of those points that counsel is always hesitant to mention, but in my experience judges do welcome it, earlier in the course of your judgment, just before reciting the officer's recommendation at the end of his or her report, you said, "the officer having had nothing to say about the impact on the south side". I just wondered if actually you meant to say the "north side".
72. MR JUSTICE PITCHFORD: No, I did mean the south side, because that is how I read the report.
73. MR WHALE: The Lister Avenue side?
74. MR JUSTICE PITCHFORD: Yes.
75. MR WHALE: If that is how you read it, that is how you read it.
76. MR JUSTICE PITCHFORD: What I meant was the impact on neighbours. Maybe I can make it clear if I am required to check the transcript.
77. MR WHALE: The second point is an application for permission to appeal on this basis: as I understand your Lordship's judgment it turns really on two critical findings, firstly, that, notwithstanding New Smith this court should, and did, admit the fresh evidence. In my submission it is arguable that you were wrong so to find and that affords a prospect of success. The second point, and perhaps more importantly, is, as I hear your judgment, your Lordship has effectively found that the Inspector failed to take into account a relevant consideration in a Wednesbury sense, albeit that she knew nothing about that consideration. In my submission, that is, with respect, developing that area of Wednesbury judgment and again gives a real prospect of success on appeal. For both reasons I invite you to grant permission.
78. MR JUSTICE PITCHFORD: Mr Wolman, I am tempted to say that your second argument may have weight, while the first does not. On reflection I think I should say that you should have leave to appeal, without confining you to any particular argument.
79. MR WHALE: I am grateful for that. My Lord, my next point is unusual. I think I am bound to raise it. I did elude to it in my skeleton argument, that is that your Lordship has quashed, subject to the sealing of this judgment, a planning permission for which Mr Cullen is the beneficiary, and which runs with the land, in circumstances where he has not been made a party to these proceedings and ordinarily he should be. I just canvass with you the suggestion that before this judgment is actually sealed and takes effect, or the order is made, that an opportunity ought to be afforded to Mr Cullen to see, first of all, if he actually knows anything about these proceedings, because the quashing may come as a great shock to him. Secondly, whether he would like to make any representations if he was unaware of them.
80. I should also say that on 29 September the Treasury Solicitor wrote to Ellis Taylor's solicitors (the Connolly's previous solicitors on the record) and said as follows:

"I also note that Mr Cullen has not been made a party to these proceedings, even though he has a clear interest in them."

Then a point about the costs of any adjournment as a result of a failure to notify. It seems to me.

81. MR JUSTICE PITCHFORD: Was there any response to that letter?
82. MR WHALE: Not that I am aware of, although I see it was sent out six days after the date at which Ellis Taylor stopped incurring costs on Mr Connolly's behalf. Whether they forwarded it to him, I do not know. Whether Mr Connolly still works for Ellis Taylor, I do not know. There is an issue there, my Lord, I think you can probably see.
83. MR JUSTICE PITCHFORD: Yes, I can. Mr Whale, does Mr Cullen have notice of these proceedings?
84. MR WOLMAN: Could I just see. (pause) My Lord, as I understand it, Mr Connolly sought the guidance of the court offices, but more importantly you will see that in the Practice Direction at Part 8 it does deal explicitly with these applications. What it says is that the claim form should be served on the appropriate Minister or government department, and on the authority directly concerned with the decision. It does not suggest any other party affected by the planning decision.
85. MR JUSTICE PITCHFORD: Does he have notice of these proceedings, or not?
86. MR WOLMAN: I do not think he has, no. That is why he was not served or made a defendant.
87. MR JUSTICE PITCHFORD: Why was he not informed of this claim?
88. MR WOLMAN: Mr Connolly tells me that he thought all he had to do was make the local authority a party, given that the local authority would tell Mr Cullen that he still could not -- and that he would need to await the outcome of this appeal and therefore he did not tell him. Of course, what your Lordship has proposed, and what is the inevitable consequence of what your Lordship has found, is for there to be a fresh consideration of the whole matter. Of Course, Mr Cullen will, at that stage, have an opportunity to put in further submissions dealing with these points, or just to repeat the submissions he has already made. I do not, therefore, see what prejudice he might have suffered, although I can see it would have been better if he had been informed.
89. MR JUSTICE PITCHFORD: It certainly would have been better if he had been informed because he could have applied to become a party to these proceedings, could he not?
90. MR WOLMAN: He could. It is perhaps fortunate he has not as he might have got a costs order against him. He may have made some fresh points. The Practice Direction Guidance, if that is the view of the court as to how these matters should be considered, is very misleading. It does not make any suggestion at all that in fact the other party that has asked for planning permission, and who would be affected adversely by a successful appeal, should be made a party. It specifically limits it to parties it mentions in the table in that Practice Direction.
91. Mr Connolly also asked me to point out that the defendants have not raised this point before the earliest, which is the date of the letter they sent on 29 September, which Mr Connolly does not recall seeing, therefore it is not clear. It obviously should have been forwarded to him. It perhaps was not. Certainly before that there was no objection raised, or any suggestion, that Mr Cullen should be made a party, or at least informed by Mr Connolly or by Havering Borough Council.
92. MR WHALE: As things stand, it seems to me that out of the Connollys, the London Borough of Havering, Mr Connolly's previous solicitors, and the Secretary of State, the only one of them to emerge from these proceedings is the Secretary of State, save for your judgment. I do ask you to bear in mind that if this order or judgment is sealed, and there is the prospect now of this going off to the Court of Appeal, in circumstances where Mr Cullen does not know about it and may apply to set aside, or something of that kind, it seems to me the court ought to be very wary indeed about putting the seal to the order before the bottom is got to of all of those things.
93. MR JUSTICE PITCHFORD: Yes. Mr Whale, what step do you suggest I should take?
94. MR WHALE: I would suggest that before the order is drawn up that Mr Cullen ought to be notified of the claim and the events of today, and he ought to be invited to make representations as to what he would like to happen. This all may be academic. He may come back and say, "I have lost interest in this planning stuff. I am moving house next week. I don't care", or he may write back and say "I would like to put the following submissions to the court in writing on Wednesbury relevant considerations, or something like that, or he may like to say, "I would like this hearing to be relisted and for it to be heard afresh and for me to be represented, through counsel, as a joined party". Obviously I do not know this, but at the very least he ought to be given an opportunity to make representations as to his position.
95. MR JUSTICE PITCHFORD: Do you disagree with the observation made by Mr Wolman about the need to serve Mr Cullen?
96. MR WHALE: I do disagree. I do not have the benefit of the Practice Direction in front of me. Could I just find the salient part? On a very cursory reading this appears to tell claimants upon whom the claim form must be served, as opposed to saying who should be the parties to the claim. That might be a fine distinction, but there is a distinction there. I think we perhaps need to look somewhere else to find an answer as to who is to be a part to the claim. I have in mind planning judicial review proceedings where a local planning authority grants planning permission to, let us say, Mr Cullen. Somebody like Mr Connolly brings a judicial review claim. They are obliged to join the beneficiary of the planning permission as an interested party or defendant. That is the analogy that I have in mind. Of course these kinds of applications, although they are statutory applications, are really judicial review proceedings in all but name. That is why I cannot, for the moment at least, agree with the simple proposition that because one must serve on the two main people Mr Cullen ought not to be a party.
97. MR WOLMAN: My Lord, there is another section which I think deals with it slightly, but I do not think it assists.
98. MR JUSTICE PITCHFORD: Mr Wolman, I am a bit concerned that this has been done on the hoof.
99. MR WOLMAN: Mr Connolly tells me that he did look also not only at the White Book, but at the website of the court service which does deal in some detail, I am told, with these kinds of applications and that too says that. Mr Connolly's first inclination was to make as defendants the Secretary of State and Mr Cullen, and not to make Havering a defendant at all, but in fact his mind was changed around completely both by speaking to the court service and looking at the court service website. It may be before any order is sealed worth checking those. It is, I accept, a little counter-intuitive that Havering should be the second defendant, or the obvious other target, apart from the Secretary of State, rather than Mr Cullen. Nevertheless that does appear to be the position. I think there is something in CPR 19 which deals with the situation as well. If I may have a moment I will see if I can find it.
100. MR WHALE: If I can be of a little assistance: the Planning Encyclopedia in section 288 is likely to be the best place to go to find the answer to this question (I do not have it before me but in chambers), rather than routing around in the White Book.
101. MR JUSTICE PITCHFORD: I think the best thing I can do is to say that the order shall not be sealed without my leave. Mr Wolman, I suggest that you consider this over night and come back tomorrow, because if it transpires that Mr Cullen should have been made a party, or at least been given notice, then I shall have to give him the opportunity of being heard.
102. MR WOLMAN: Yes, my Lord.
103. MR JUSTICE PITCHFORD: If, on the other hand, there is no requirement that he be made a party, then there is no obvious reason why I should invite him to be heard. It does not seem to me that you are in a position to consider that in detail immediately. Would you consider the matter and make an application before me on either Thursday or Friday morning for the order to be sealed?
104. MR WOLMAN: Should I just speak to your associate to see whether I should attend, or would you like me to make an application in writing first?
105. MR JUSTICE PITCHFORD: I think you should appear before me.
106. MR WOLMAN: Very well.
107. MR JUSTICE PITCHFORD: Of course, Mr Connolly has it in his power to tell Mr Cullen himself what has happened in case he wants to appear.
108. MR WOLMAN: Shall I try and ensure that has happened and find out in response--
109. MR JUSTICE PITCHFORD: I think you should because the consequences, if they are fatal, will end up being at your client's expense. Mr Whale, do you want to be notified of when this application is going to be made to me?
110. MR WHALE: Yes, please. I may, with my experience, be able to assist in some regard.
111. MR JUSTICE PITCHFORD: I shall direct that Mr Wolman give you notice of any application he intends to make to me for the order to be sealed.
112. MR WOLMAN: Just one other point. As my learned friend corrected what he thought was one statement in your judgment that may be wrong, could I point out another possible? I believe you said that the second rejection of the second application made by Havering Borough Council, I believe you said that second rejection happened in June. That was the date of the first rejection. The second rejection was in October 2006.
113. MR JUSTICE PITCHFORD: Did I say that?
114. MR WOLMAN: I believe you did. If I am wrong I apologise.
115. MR WHALE: I think you may have said June.
116. MR JUSTICE PITCHFORD: Did I? I would be surprised if I did in view of the note that I have, but I will make a mark so as to draw my attention to it.
117. MR WHALE: Thank you. I think this is the last thing, and I know it is dark, given the permission to appeal that has been granted and on the premise that the order may, in due course, be sealed reflecting that fact, could I ask that a transcript be prepared in expedited form, because if this is pursued that will have to be before the Court of Appeal in the appeal bundle with the appellant's notice.
118. MR JUSTICE PITCHFORD: Yes, what sort of timescale are you talking about. It may not be necessary for me to order expedition.
119. MR WHALE: I think we have 21 days from the date of your judgment, unless you give some longer time. Given this doubt about the order, I would ask then for a transcript within 14 days of the order having been sealed, and in due course that the order says we have 21 days from the sealed date to put in our appellant's notice.
120. MR JUSTICE PITCHFORD: Yes. Thank you I have made a note of that on the form giving you leave to appeal. Mr Wolman, I believe I am sitting tomorrow in the Administrative Court. I will be available. I am not quite sure where I am on Friday morning. You will have to make enquiries.
121. MR WOLMAN: Will you allow me to be robed?
122. MR JUSTICE PITCHFORD: I know where I am supposed to be on Friday morning, so if you do want to make an application to me I would prefer it to be tomorrow. Thank you.