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
		8th December 2008

1. MR JUSTICE PITCHFORD: This is an application by Mr Nabil Omar Shaikh seeking to quash the decision of a Planning Inspector issued on 21st December 2007. Mr Shaikh appears in person and has presented his application with commendable brevity and focus. The Secretary of State is represented by Mr Richard Kimblin. The second defendant local planning authority has not taken part in the hearing.
2. Mr Shaikh lives in Hammerstone Lane, Northampton. His is one of several properties comprising what is described as an "open plan housing estate". That is certainly how it was designed and how it would have appeared when constructed. He has erected a wrought iron fence on the boundary between his property and that of his immediate neighbour. This divides the two driveways, from the road surface to the property occupied, in the form of a dog leg or L-shape.
3. It was a condition of permission originally granted that the estate should remain open plan. The second defendant issued a breach of condition notice. That caused Mr Shaikh to make a late application for planning permission which was refused on 26th February 2007. He appealed that decision under section 78 of the Town and Country Planning Act 1990. The matter was considered by the Planning Inspector on 4th December 2007 and the appeal was dismissed.
4. Mr Shaikh challenges the decision of the Planning Inspector primarily because, he submits, the second defendant local planning authority has acted inconsistently, if not incomprehensibly, in its decision to enforce the planning conditions. He has produced to me photographs of several properties in the area of his own home, and it is demonstrated, as indeed it was demonstrated to the Planning Inspector, other residents have, by different forms of construction, created boundary fences between their properties. Mr Shaikh informs me that, to his knowledge, the second defendant has taken no similar enforcement action against any other resident.
5. On the face of it, therefore, the court can do nothing else but express sympathy with Mr Shaikh's predicament. However, the proceedings in which he is currently engaged are not in the form of an application to challenge the reasonableness of the local planning authority's decision to enforce. They are in the form of a challenge to the decision of a Planning Inspector exercising a planning judgment on an appeal under section 78.
6. I should record, before passing to the merits of that challenge, that Mr Shaikh explains that the reason why he erected the fence was to provide a measure of security between himself and his next door neighbour, and it was his intention to provide a greater measure of safety for his children, who are, he tells me, the only children residing in the immediate area. Whether that information discloses a reasonable ground for the erection of the fence I am not in a position to decide since, as I have indicated, my consideration is limited to an assessment whether the Planning Inspector erred in law or reached an irrational decision in planning terms in dismissing Mr Shaikh's appeal.
7. The Planning Inspector rightly concluded, in my view, that he had to assess the effect of the fence on the character and appearance of the area and on the safety of users of both Mr Shaikh's drive and his neighbour's drive. In his reasons set out at paragraph 5, the Planning Inspector found that what Mr Shaikh had done was to introduce a boundary feature which was out of character with the open plan nature of the estate in general, and was therefore contrary to policy GS5 of the Northamptonshire County Structure Plan. Mr Shaikh submitted to me that since GS5 makes no specific reference to boundaries, it cannot therefore be relevant to the Inspector's consideration of the development on planning grounds. I am afraid he is wrong about that. Policy GS5 applies to all development, including that such as the Planning Inspector was considering on this occasion.
8. In considering the development itself, he visited the site, viewed the adjoining and surrounding properties, and in particular made an assessment of the driveways between which this boundary had been erected. He came to the conclusion that the drives were, before the erection of the fence, inadequately designed. As he put it:

"The original layout of the drives is poorly designed and the erection of the fence has created inconvenience and made a poor design worse."

In paragraph 7 of his reasons, the Planning Inspector came to the conclusion that the fence was, on planning grounds, unacceptable.

9. It seems to me that on planning grounds the Inspector's decision is plainly unobjectionable. As I have attempted to explain, there may be reasons personal to Mr Shaikh and his wider neighbours as to why it might be that the second defendant could be challenged on its decision to enforce the planning condition, but that is not a matter in respect of which I am able to give Mr Shaikh any relief. Since I have only heard one side of that argument, I should not hold out to Mr Shaikh any unrealistic expectation of any success in other proceedings. The obvious proceedings are yet another application to the Magistrates' Court, in which Mr Shaikh is perfectly entitled to make the points to the Magistrates that he has made to me this morning.
10. For the reasons I have given, I am afraid that I am bound to dismiss Mr Shaikh's present claim.
11. MR KIMBLIN: My Lord, did a statement of costs reach your Lordship?
12. MR JUSTICE PITCHFORD: I think so.
13. MR KIMBLIN: There is an application for costs in the sum of £7,496. A schedule can be handed up if one has not reached you. I see that one has.
14. MR JUSTICE PITCHFORD: Yes, I did have one. It is a very large sum of money, Mr Kimblin, for a comparatively straightforward matter.
15. MR KIMBLIN: I can take my Lord from the top of the first page. In respect of the fee earners there described, there is no duplication in the sense that more than one lawyer was working on it at any one time. It is a question of the matter being passed from one person holding the file and one person then moving on elsewhere within the Treasury Solicitor's department. There is not a duplication in that sense.
16. MR JUSTICE PITCHFORD: There is or is not?
17. MR KIMBLIN: There is not. The largest single sum in terms of Treasury Solicitor's costs is the top of the second page which is work done on documents. That is a sum of just over £3,000 which has been spent on preparing a minute of advice. Those are my instructions on where that time was spent. It comes to £3,700. The remaining items speak for themselves.
18. MR JUSTICE PITCHFORD: Well, I am troubled about the claim made in respect of the documents. This is the file. (Indicated). All I can do is express the fact that I am troubled. If you do not respond --
19. MR KIMBLIN: My Lord, with respect, the file that my Lord has is the file prepared by the first defendant, who sought to deal with this case knowing that the claimant was representing himself. It is not the entirety of the papers in the case. The work on documents is the generation of further documents of advice from the Treasury Solicitors to the Planning Inspectorate about the various matters which were raised both within Mr Shaikh's affidavit and within the documents, which are a series of letters. This case started off by way of a complaint to the Planning Inspectorate. So the minute of advice deals with the various grounds and points which Mr Shaikh has taken in respect of the decision letter. The file which the court has is one that has been prepared for the hearing, knowing that the other side was not represented.
20. MR JUSTICE PITCHFORD: All right. I take it that you have served this statement on Mr Shaikh.
21. MR KIMBLIN: Mr Shaikh had it during the course of last week.
22. MR JUSTICE PITCHFORD: Mr Shaikh, you have heard what Mr Kimblin has said. There is an application for costs. Do you have anything to say to me about that application?
23. MR SHAIKH: The Planning Inspectorate had been paid their fees. All the documentation during that period was paid for. There is another period for which the enforcement notice appeal was ongoing and the fees are paid, £150 to each party again. There is a bundle which is a lot more bigger than my learned friend has prepared and these costs are vastly miscalculated. I think that it is enormously -- it is no more than a day's work and it is enormously calculated on there. I personally am a site manager dealing with day in, day out construction matters. We do lots of paperwork and this file can be put together within half a day, if I was to do it.
24. MR JUSTICE PITCHFORD: Thank you very much, Mr Shaikh. The Treasury Solicitor seeks an order for costs against Mr Shaikh, which in principle the first defendant is entitled to. There has been provided to myself and to Mr Shaikh a statement of costs in which, for a matter which has taken some hours to complete, argument and judgment, a claim for £7,496 has been made. This includes 19.6 hours at £160 an hour for working on documents.
25. I cannot be expected to carry out a detailed examination of each item, as would a costs judge on a detailed assessment, and it does seem to me to be in the interests of both parties that I should make a summary assessment if I possibly can.
26. In my view, the statement of costs is significantly inflated beyond what is reasonable. I am not saying that the Treasury Solicitor was not entitled to provide work of a high quality. I do say that work of a quality which required well over 24 hours of work on documents that I have seen, and perhaps a few others, was excessive in party on party litigation. I shall make an order that Mr Shaikh shall pay the costs of the first defendant in the assessed sum of £4,000. Thank you.