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
		14 March 2008

MR JUSTICE SULLIVAN:

Introduction

1. This is an application under section 288 of the Town and Country Planning Act 1990 (the Act) to quash a decision of an Inspector appointed by the first respondent dismissing the applicant's appeal under section 78 of the Act against the second respondent's refusal of the applicant's application for planning permission for the erection of four detached houses on land at Brook Cottage, Cannock Wood Street, Hazelslade, Cannock (the site).
2. The application for planning permission had been recommended for approval by the second respondent's officers, but the members had disagreed and had refused planning permission for the following reason:

"The proposal constitutes over-development of the site, which would have adverse impact on the character and appearance of the site and the locality contrary to policies B8 and H5 of the Adopted Local Plan."

3. The applicant appealed to the first respondent, who appointed an Inspector to determine the appeal. The Inspector heard the inquiry on 27 June 2006 and carried out a site visit on the same day. Her decision letter is dated 4 August 2006. In paragraph 2 of the decision letter the Inspector identified the main issue as "the effect of the proposed development on the character and appearance of the appeal site and surrounding area, which lie within the Cannock Chase area of outstanding natural beauty". She dismissed the appeal for one reason only, the effect of the proposed development on one of the trees on the northern boundary of the site, tree T7, which was one of the trees which was subject to a Tree Preservation Order. Her conclusion to that effect is contained in paragraph 20 of her decision letter:

"I conclude that, subject to conditions, the proposed development would be acceptable in terms of density, garden size, siting and design. Its layout, however, would jeopardise the long-term health and stability of the protected tree T7, which enhances the appearance of the appeal site and adjoining footpath. Consequently, I take the view that the proposed development would cause unacceptable harm to the character and appearance of the site and surrounding area, and the benefits of the scheme would neither outweigh nor justify that harm ..."

4. The reasoning which led her to that conclusion is to be found in paragraphs 10 to 15 of the decision letter:

"10. It is proposed to retain a protected beech tree (T7) on the northern boundary of the site. I understand that the tree was originally part of a beech hedge, but it has been crowded by other plants and grown tall and prominent. It is not a veteran tree or a rare species but it is healthy and capable of further growth; in my view, it makes a positive contribution to the appearance of the appeal site and the public footpath. The submitted plans suggest that the tree is currently 10m high with a 8m crown diameter.

11. I estimate that the proposed dwelling in the northwest corner of the site (Plot 4) would lie approximately 3.3m from the centre of the tree - less from the edge of the trunk. The Council's Landscape Officer expressed concerns about the proximity of this dwelling to the tree in his memos of 25 February and 8 March 2005. In my view, the proposed house would be so close to the tree as to impede the growth of the roots and lower branches. The proposed dwelling would also lie to the south of the tree and deprive it of light. Upper branches would seek to grow over the proposed roof but with its roots curtailed there would be a clear potential, to my mind, for the tree to develop an unbalanced shape and die back or become unstable.

12. The proposed house at Plot 4 would include no habitable room windows near to T7 so harmful overshadowing would be unlikely to arise. However, trees growing over houses can create problems of leaf fall and storm damage and I heard that the canopies of beech trees can grow up to 40m in diameter. The appellant suggests that it is common for trees to grow over houses but, given its potential instability, T7 would be liable in my view to cause such a nuisance to future occupiers of Plot 4 that the Council would find it difficult to refuse requests for it to be felled. I consider that the proposed development would pose a clear threat to the long term health of this protected tree and, as a result, cause unacceptable harm to the character and appearance of the appeal site and surrounding area.

13. It is proposed to raise the crown of T7 to 4m. I heard that the Council's Landscape Officer would agree to this pruning and be content for the tree to be kept trimmed to the same size. I have no objections to T7 being pruned to enable construction, but the proposed dwelling would be approximately 7.8m high to the ridge, so crown lifting would neither ensure room for lower branches to grow nor (subject to root growth) prevent the spread of higher branches over the roof. I also consider that beech trees do not normally require frequent pruning, save to remove dead branches, and since pruning can encourage further growth, this would neither be desirable nor effective long-term means to protect T7.

14. The Statement of Common Ground suggests that a condition could be imposed on any permission granted requiring a scheme for tree protection to be submitted and approved to the Council before development commences. I accept that T7 could be protected by fencing during construction, as the condition would require and submitted plans suggest. However, paragraph 51 of Circular 11/95: Use of Conditions in Planning Permission suggests that conditions should not be imposed to secure the long-term protection of trees. In my view, the proposed house at Plot 4 would represent a continued threat to the protected tree and the suggested condition would not prevent such conflict.

15. In relation to other plants on the site, the existing hawthorn hedgerows (G1 and G3) are overcrowded, as are the beech trees at G2. I consider that replacing the hawthorn and removing five beech trees would improve arboricultural health and enhance the appearance of the site. I have no objections to the proposed felling of other protected trees, none of which have great merit and most of which are deformed. Replacement planting could be ensured by means of condition and I allow that the proposed development could provide for improved landscape management. Nevertheless, it would still cause a reduction in mature tree cover and as a result T7 would become more visually prominent. To my mind, the landscape benefits of the scheme would not justify the threat to T7."

5. The applicant made an application for costs against the second respondent. The Inspector rejected that application in a costs decision letter of the same date. The applicant challenges the Inspector's costs decision in an application for judicial review. It was agreed by Mr Kimblin, who appeared on behalf of the applicant, and Mr Auburn, who appeared on behalf of the first respondent, that the costs decision stands or falls with the Inspector's decision on the section 78 appeal.

Factual background

6. As part of the second respondent's consideration of the planning application it sought internal advice from its own arboricultural officer. He responded in two memoranda dated 25 and 8 March 2005 respectively. So far as material, the memoranda said:

"Have concern re closeness of the new detached dwelling on the northern side of site, to the [existing] young beech tree. The latter has capacity to grow considerable and therefore impact on the proposed building. The usual quart into pint pot syndrome!

...

Concern re closeness of the new detached dwelling on the northern side of site, to the [existing] young beech tree. The latter has capacity to grow considerable and therefore impact on the proposed building. This has not been taken into account."

7. Those concerns however were not repeated in the officer's report to members, which recommended that planning permission should be granted subject to conditions. In that report it was said that the "significant trees and hedgerows on the boundaries are to be retained and managed".
8. The applicant served a brief pre-inquiry statement. It is understandable that the statement was brief given the brevity of the reasons for refusal. Despite being requested to do so by the applicant, the second respondent failed to serve a statement of case under rule 6 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 (the Rules).
9. In its response to the Inspectorate's questionnaire prior to the appeal, the second respondent included the landscape officer's memoranda. About a month before the inquiry, the applicant received the proof of evidence of the second respondent's witness, Ms Antrobus, a Chartered Town Planner. Under the heading "Landscaping and Screening", she said that there were a number of landscaping concerns. Having referred to one of those concerns in paragraph 8.8, she said in paragraph 8.9:

"Secondly the dwelling located on the northern side is located next to a young beech tree. This tree has the capacity to grow considerably and therefore would have an impact on the proposed dwelling and may in time result in the tree having to be felled. This has not been taken into account in the design and layout of the proposal. This is another indication of the cramped nature of the development."

10. Under the heading "Consultations", she said that she agreed with the objections that had been made by local residents. Those objections had included "tree preservation orders, protection of trees and hedgerows and loss of wildlife".
11. In paragraph 8.15 of her proof, she said:

"In my opinion this gives further weight to the Council's reason for refusal in relation to the cramped nature of the development and the conflict between the siting of the dwellings and existing trees and hedgerows which form an important characteristic of the site contributing to the visual amenity of the locality."

12. The applicant's planning consultant, Mr Timothy, a Chartered Town Planner, also produced a proof of evidence. In that proof he dealt with the issue of trees in paragraph 3.18:

"There are a number of trees within the appeal site that are covered by a Tree Preservation Order ... The majority of the significant trees and hedgerows are to be retained. The trees that are to be retained will assist in assimilating the proposed development within its surroundings and ensure that it is not visually prominent within the street scene. Although the appeal site has a right of way along its northern boundary that adjoins Public Open Space to the west, the retention of existing trees and hedgerows will ensure that the proposed development is not unduly conspicuous when viewed from these Public Vantage Points."

13. He also said in paragraph 3.24:

"The appeal site will not require the removal of any trees that are protected by the Tree Preservation Order; all significant trees and hedgerows are to be retained. These trees and hedgerows will reduce the visual impact of the development and ensure that the character and appearance of the area is safeguarded."

14. Pausing there, although the applicant rightly criticises the inadequacy of the second respondent's reason for refusal and its failure to serve any rule 6 statement explaining its objections to the proposed development in any more detail, had the second respondent said nothing further in respect of the trees on the site beyond what is said in Ms Antrobus's proof, the applicant could have had no reasonable complaint as to the fairness of the Inspector reaching the conclusion set out in paragraph 12 of the decision letter:

"... T7 would be liable in my view to cause such a nuisance to future occupiers of Plot 4 that the Council would find it difficult to refuse requests for it to be felled. I consider that the proposed development would pose a clear threat to the long term health of this protected tree and, as a result, cause unacceptable harm to the character and appearance of the appeal site and surrounding area."

15. That conclusion is, in effect, the point being made by Ms Antrobus in paragraphs 8.9 and 8.15 of her proof (see above). The applicant was thus on notice, even if belatedly, that the point was to be made and had sufficient time prior to the inquiry to obtain arboricultural evidence in order to deal specifically with the issue whether or not tree T7 could be retained.
16. Unfortunately, the matter is not that simple, because at some time prior to the inquiry, it is not clear precisely when or whether the document preceded, was contemporaneous with, or followed service of, the proofs of evidence, the applicant and the second respondent agreed a statement of common ground (the statement) in accordance with Rule 15, which provides so far as material:

"15(1) The local planning authority and the appellant shall -

(a) together prepare an agreed statement of common ground; and

(b) ensure that the Secretary of State and any statutory party receives a copy of it, not less than 4 weeks before the date fixed for the holding of the inquiry."

17. So far as material, the statement said:

"2. There are a number of trees within the appeal site. These trees are covered by a Tree Preservation Order.

...

23. The majority of the trees covered by the Tree Preservation Orders can be maintained and protected. The loss of any protected tree can be mitigated against through the planting of replacement trees that can be secured by condition."

18. While it is true, as Mr Auburn pointed out, that paragraph 23 does not expressly deal with tree T7, which was shown on the application plans as to be retained, there is no doubt that the applicant understood, as a result of the pre-inquiry discussions leading up to the agreement of the statement, that the second respondent had agreed that the retained trees, including T7, could all be sufficiently protected by the imposition of conditions, ie the applicant understood that it was not being suggested by the second respondent that tree T7 would have to be removed because of its proximity to the northernmost of the proposed dwellings of the site.
19. I will deal with the second respondent's understanding of the effect of the statement in respect of tree T7 below.
20. Rule 16(2) provides that:

"(2) At the start of the inquiry the inspector shall identify what are, in his opinion, the main issues to be considered at the inquiry and any matters on which he requires further explanation from the persons entitled or permitted to appear."

21. As part of her opening remarks, the inspector said:

"I would also like to hear discussion of the importance, or otherwise, of trees and hedges on the site, and the impact of the proposed development upon them. I would like it to be confirmed whether any or which protected trees would be felled."

22. The Inspector says in her witness statement that Ms Antrobus responded to her (the Inspector's) question:

"... by suggesting that the site was in a prominent position and that the proposal to maximise development on the site, with trees and vegetation removed, would not comply with local plan policy B8, which requires development to be in sympathy with the character and appearance of the local area. Her emphasis was on the prominence of the site as much as the loss of trees."

23. When Ms Antrobus came to give evidence she did not read the summary of her proof of evidence. In breach of the Rules she read from a different and longer document. In respect of tree T7, she told the Inspector:

"The plot position at the rear right of the site will be affected by a beech tree which is currently covered by a TPO. It is proposed to alter this tree to allow for the development but this does not take into account the future growth of the tree which will eventually grow and overshadow/overhang this dwelling. This will block out daylight to the dwelling and will result in the potential inhabitant continually complaining/applying to the Council to have the tree cut back."

24. She then went on to canvass an alternative development of three dwellings which she said "would allow for further retention of the existing landscaping features including the hedge to the front left of the site and the TPO beech tree to the rear right of the proposal".
25. The Inspector did not receive a copy of the written statement from which Ms Antrobus read, but the Inspector recorded Ms Antrobus's evidence in her notes as saying:

"To the rear of the site plot 4 and a beech tree (TPO). Proposed to be trimmed not removed but over time tree would grow and overhang plot 4. Residents ask for tree trimmed."

Ms Antrobus also said:

"Main concern of landscape officer protection of features ... to be retained - hedge at front - TPO beech by plot 4. Proposed landscaping statement of common ground cover major concerns but still issues front hedge and TPO beech."

26. Ms Antrobus gave evidence on a number of other matters that had not been raised or had not been particularised in her proof of evidence. This led Mr Kimblin, who appeared on behalf of the applicant at the inquiry, to ask the Inspector for an adjournment upon the basis that, in summary, the applicant had been taken by surprise by the new evidence that was being advanced by Ms Antrobus in breach of the Rules. The object of the Rules is explained in paragraph 17 of DETR Circular 05/00: Planning Appeals: Proceedings Etc:

"17. The statement of case should contain the full particulars of the case which a party proposes to put forward at the inquiry; ie it should set out the arguments (planning and legal) that a party intends to put forward at inquiry and describe, but not contain, the evidence, and possibly cite the statutory provisions and case law, that a party intends to call in support of its arguments. It should also include a list of all the documents that a party will rely on when presenting their case at the inquiry and refer to in their proofs of evidence. This enables the parties to know as much as possible about each other's case at an early stage and will help the parties to focus on the matters which are in dispute. It can also help the parties assess whether there is scope for negotiation while there is still time for this to lead to a satisfactory outcome. Starting negotiations early can help avoid late cancellations of inquiries or requests for postponement."

27. Rule 16(10) provides that:

"The inspector may allow any person to alter or add to a statement of case received by the Secretary of State or him under rule 6 so far as may be necessary for the purposes of the inquiry; but he shall (if necessary by adjourning the inquiry) give every other person entitled to appear who is appearing at the inquiry an adequate opportunity of considering any fresh matter or document."

28. Mr Kimblin's application for an adjournment was based in part on what Ms Antrobus had said about the trees. The Inspector noted that Mr Kimblin submitted:

"Trees (para 8.9!)

Not rely - condition."

29. To paraphrase, it was being contended on behalf of the applicant that the local planning authority was resiling from the applicant's understanding of the statement, namely that, notwithstanding what was said about tree T7 in paragraph 8.9 of Ms Antrobus's proof, its retention could be dealt with by way of condition.
30. The Inspector refused the application for an adjournment, saying in respect of the trees that that issue was not a new one because it had been addressed in Mr Timothy's proof of evidence. The inquiry then proceeded and Ms Antrobus was cross-examined. The Inspector's notes record:

"- the landscape officer withdraws objections excluding the beech tree.

- Mr Scholes (landscape officer) did not consider there should be a refusal.

The concerns do not amount to a reason for refusal - content to deal by condition.

The landscaping condition is in the statement of common ground.

Para 8.8 ... no reason for refusal relates to trees? Only concern is beech tree to back - no, landscaping = condition.

Para 8.9 - effect of beech, overhanging could be dealt with by condition.

LPA content beech tree should be trimmed to allow construction and be kept trimmed at approximate size."

Ms Antrobus was not re-examined on that issue.

31. Thus, the position seems to have been reached that by the end of the second respondent's case that (a) the applicant's understanding of the effect of the statement in respect of tree T7 had been correct; and (b) whether or not Ms Antrobus's further evidence had differed from the agreed position in the statement, the respondent was now endorsing the position set out in the agreed statement.
32. It was against this background that Mr Timothy gave his evidence. He was asked questions in cross-examination by the local planning authority's advocate about tree T7. He replied that it was about ten metres high. It was pointed out that it could grow to 25 metres high, and he replied that its retention could be dealt with by way of condition. The Inspector herself also asked Mr Timothy about tree T7, as she had asked Ms Antrobus. In her witness statement, the Inspector said:

"The Claimant's counsel ... questioned the authority's witness Miss Antrobus on this point. Miss Antrobus stated that T7 could be kept trimmed at approximately its existing size. I disagreed with her views on this. The matter was certainly canvassed."

33. In respect of Mr Timothy she said:

"In cross-examination, it was put to Mr Timothy that the crown of a beech can grow up to 25m in diameter. He said that the matter could be dealt with by condition and that trees grow over houses all the time. I asked Mr Timothy how he would ensure the future survival of T7, if there was [to] be a physical conflict. He said the Council's landscape officer accepted that a condition could be imposed, the tree could be pruned to enable construction, to take account of roots/foundations, and it would not affect principal windows. I was entitled to disagree with Mr Timothy and my conclusion that the house could impede the growth of roots follows evidence canvassed at the inquiry."

Discussion and conclusions

34. Mr Kimblin challenged the procedural fairness of the Inspector's decision on two partially overlapping grounds: (a) that it was unfair to refuse the request for an adjournment given the second respondent's repeated failures to comply with the Rules so as to enable the applicant to know the case it had to meet; and (b) important parts of the Inspector's reasoning in paragraphs 11 to 15 of the decision letter were not canvassed in evidence, and were matters on which arboricultural expertise was required and on which the applicant would have wished to call arboricultural evidence if it had known that the retention of tree T7 was to be in contention. In summary, it was submitted that the applicant had been denied thereby a fair crack of the whip: see Fairmount Investments v Secretary of State and Southwark Borough Council [1976] 1 WLR 1255, per Lord Russell at pages 1265H to 1266A.
35. In respect of the adjournment, what principally matters is whether Ms Antrobus in her evidence at the inquiry was saying anything "new" about tree T7 which the appellant did not and could not have reasonably anticipated: see Castleford Homes v Secretary of State for the Environment and the Royal Borough of Windsor and Maidenhead [2001] EWHC Admin 77; [2001] PLCR 29 per Ouseley J at paragraph 52:

"The relevant law ... is to be found in cases such as Fairmount ... and H. Sabey & Co. Ltd. v The Secretary of State for the Environment [1978] 1 All E.R. 586. Did the Claimant have a 'fair crack of the whip?' Was the Claimant deprived of an opportunity to present material by an approach on the part of the Inspector which he did not and could not reasonably have anticipated? Or is he trying to improve his case subsequently, having been substantially aware of, or alerted to, the key issues at the Inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence fail to put forward his fall-back case? Those are the sort of questions which can be used to guide a conclusion as to whether the manner in which a particular issue was dealt with at an Inquiry involved a breach of natural justice and was unfair."

36. I say that in respect of the adjournment what principally matters is whether Ms Antrobus was saying anything "new" about tree T7 because, whether or not she produced new material in respect of other issues, the Inspector did not rely on those matters when deciding that planning permission should be refused and the appeal dismissed. As I have stated above, this appeal was refused on one ground only: the impact of the development on tree T7. However, the lack of specificity in the second respondent's case prior to the reception of Ms Antrobus's proof is nevertheless relevant. Up to that time there was nothing whatsoever to suggest that the retention of tree T7 was reasonably likely to be a significant, much less the critical, issue in the appeal.
37. Although Mr Auburn referred to the two memoranda from the Council's arboricultural consultant, it is not uncommon for such internal consultation responses not to be relied upon when reasons for refusal are being advanced, and there was nothing in the exiguous reason for refusal to suggest that an inability to retain tree T7 was a proper basis for refusing planning permission. In the absence of any pre-inquiry statement from the second respondent, that continued to be the position until the applicant received Ms Antrobus's proof. Until then, there was nothing to suggest that the retention of tree T7 was reasonably likely to be even a significant, much less the critical, issue.
38. Once Ms Antrobus's proof had been received, although there was nothing to suggest that tree T7 might achieve the importance ascribed to it by the Inspector, the appellant was on notice that it was an issue which had to be addressed. It is important when considering the question of fairness to appreciate that the applicant did not simply ignore the issue once it had been raised. It addressed the issue in an entirely reasonable way, in accordance with the Rules and with the Department's own advice in Circular 05/00 on identifying issues in advance, and if possible agreeing matters in advance of an appeal. Thus, the applicant sought to deal with the issue of trees in the statement agreed with the second respondent, and given its own, and the second respondent's understanding of the statement, as eventually revealed in the cross-examination of Ms Antrobus, the applicant not only believed, but reasonably believed, that it was agreed that tree T7 could be retained by the imposition of conditions.
39. I accept Mr Auburn's submissions, firstly, that the Inspector was entitled to use her own planning expertise and form her own judgments using that expertise: see Westminster Renslade Limited v Secretary of State for the Environment [1983] JPL 454 at page 455; and secondly that the Inspector was not bound by the statement and was entitled to form her own view subject to giving the applicant a fair opportunity to comment: see Wigan Metropolitan Borough Council v the Secretary of State for the environment [2002] JPL 417 at page 40; [2001] EWCA Admin 587.
40. However, it is most important when deciding whether the parties at an inquiry have had a fair opportunity to comment on an issue raised by an Inspector of his or her own motion, and whether they could reasonably have anticipated that an issue had to be addressed because it might be raised by an Inspector, to bear in mind the highly focused nature of the modern public inquiry where the whole emphasis of the Rules and procedural guidance contained in Circulars is to encourage the parties to focus their evidence and submissions on those matters that are in dispute.
41. Paragraph 40 of Circular 05/00 deals with statements of common ground. It refers the reader to Annex 3(ii) to the Circular as a guide to the function of statements of common ground. That Circular contains the following advice (so far as material):

"2. The statement of common ground is a written statement prepared jointly by the local planning authority and the applicant (or appellant). The purpose of the statement of common ground is to set out the agreed factual information about the proposal. The inclusion of agreed material in the statement of common ground should result in shorter proofs of evidence and shorter inquiries.

3. The statement of common ground should complement the proofs of evidence and both should be received by the Secretary of State no later than 4 weeks before the inquiry. The main parties will therefore need to meet before that date to try to narrow the areas of dispute and agree on what should go in the statement. It is the responsibility of the applicant (or appellant) to send the statement to the Secretary of State.

...

5. In all cases agreement can be reached on some matters: the precise nature of the proposal before the inquiry, the description of the site, its planning history and the relevant policies can all be agreed.

6. Evidence on technical matters and topics that rely on basic statistical data can often be fruitful areas for pre-inquiry agreement.

...

7. The statement of common ground, by clearly identifying the matters which are not in real dispute, may save time and cost at the inquiry. It may also be useful for the statement to identify areas where agreement is not possible.

8. Time can also be saved at the inquiry by seeking to agree beforehand the conditions that any permission granted should contain and any planning obligations being considered. The Rules reinforce the established presumption against taking into account material submitted after the inquiry is closed ..."

42. If a party to an inquiry reasonably believes that a matter which was in dispute has been dealt with by way of agreement in a statement of common ground, it may well be unfair to allow the apparently agreed issue to be reopened without giving the party a proper opportunity to address the issue, if necessary by calling appropriate expert evidence.
43. The older authorities dealing with fairness in the context of public inquiries should now be read with the modern inquiry procedure rules in mind, where the parties are now not expected to cover every conceivable eventuality in their proofs of evidence in circumstances where, as used to be the case, the procedural rules did not require the issues in dispute to be identified, or sufficiently identified, well in advance of the inquiry.
44. Mr Auburn referred to the Inspector's obligation, whatever may or may not have been agreed between an appellant and a local planning authority, to take account of representations made by third parties. I accept that an Inspector is bound to take into consideration arguments raised by third parties, but the imperative in the Rules requiring the principal parties to focus their attention on the issues that are in dispute would be wholly frustrated if appellants and local planning authorities were unable to place any degree of reliance on matters that had been apparently resolved in a statement of agreed facts. It would be entirely unsatisfactory if, having agreed such matters, the principal parties to an inquiry would still have to prepare their evidence on the basis that the Inspector might wish to pursue a particular line of reasoning that departed from the agreed statement. While of course it is open to an Inspector to do so, whether of his or her own motion or in response to third party representations, if there is not to be a return to the "bad old days" where proofs were prepared to cover every conceivable eventuality, it is essential that inspectors recognise that if they do intend to depart from what is the agreed position between the principal parties, it may be necessary to accede to applications for adjournments to enable the parties to address the (now disputed) issue or issues properly by way of expert evidence. It may not be good enough to ask a witness who happens to be at the inquiry for his or her view. By definition, that witness may well not have the professional expertise which is relevant to the matter which has been agreed between the parties as set out in the statement of common ground.
45. In deciding whether there has been unfairness, all such factors should be taken into account. Among them, the importance of the issue in respect of which the Inspector is differing from the position agreed in the statement of common ground. In this case, as it turned out, the question whether tree T7 could be retained was not simply an important issue; it was the determining issue. Given the statement, it is clear that the applicant not merely did not anticipate, but could not reasonably have anticipated that the retention of tree T7 would be in issue at all, let alone that it would be the determining issue.
46. On the evidence before her, the Inspector, as I have indicated, was entitled to use her planning judgment and Mr Kimblin properly conceded that on that (inadequate) evidence she was entitled to reach the conclusions that she did. However, I accept his submission that if the statement was to be departed from on technical arboricultural grounds, then the applicant should have been given a reasonable opportunity to call the kind of arboricultural evidence that it would have called if it had known that this matter continued to be in issue prior to the inquiry. I say "continued to be in issue", because the only document in which the matter was placed in issue following the refusal notice was the proof of evidence of Ms Antrobus. The matter was in contention for a very brief period because that proof of evidence was overtaken either contemporaneously or shortly before or shortly afterwards by the statement of common ground.
47. It is important to recognise that this is not a case where the Inspector was simply being asked to make an aesthetic judgment: would the removal of a particular tree cause unacceptable harm to the character and appearance of the appeal site and the surrounding area? There was a "technical" issue which had to be addressed, namely whether the retention of tree T7 could be secured by the imposition of an appropriate condition or conditions. Although the Inspector asked Mr Timothy in very general terms how tree T7 could be retained, he was not an arboricultural expert and could respond only in general terms. Perhaps unsurprisingly given the statement of common ground and what Ms Antrobus had already conceded could be achieved by way of conditions, he merely reiterated her view that conditions would be sufficient to protect the tree. The generality with which he dealt with the matter in his answers is entirely unsurprising given his particular professional expertise and the extent to which the matter had appeared to be in issue at the inquiry.
48. If one looks at paragraphs 11 to 15 of the decision letter, Mr Kimblin submitted that there were a number of important matters which were not canvassed in evidence, namely the Inspector's view that the proposed house would be so close to the tree as to impede the growth of roots, as well as impeding the growth of lower branches, and the fact that the proposed dwelling would lie to the south of the tree and deprive it of light. Mr Auburn points ought that it is perfectly obvious from the plan that the dwelling would be to the south of the tree. I accept that, but the question is what would be the effect of having a house to the south of the tree and thereby depriving it from light? Would it have any harmful effect on the tree or not?
49. The Inspector's view was not merely that the upper branches would seek to go over the proposed roof, but that "with its roots curtailed there would be a clear potential to my mind for the tree to develop an unbalanced shape and die back or become unstable". The Inspector's comments about trees growing over houses creating problems of leaf fall are fairly described as matters of commonsense. It is particularly unfortunate that she mis-recorded the evidence when she said: "I heard that the canopies of beech trees can grow up to 40m in diameter". In her witness statement she acknowledges that in fact the evidence before her was that the canopies of beech trees can grow up to 25 metres in diameter. In her witness statement she states that this discrepancy would have made no difference to her conclusion. I accept that, given her conclusion as to the effect of impeding the growth of the tree's roots which could lead it to die back and become unstable. That was the principal basis, it would appear, for the Inspector's conclusion that the development would "pose a long-term threat to the health of the tree". She also set out her view on pruning:

"I also consider that beech trees do not normally require frequent pruning, save to remove dead branches, and since pruning can encourage further growth, this would neither be a desirable nor effective long-term means to protect [tree] T7."

50. It is perhaps unsurprising that there was no discussion of those issues at the inquiry given the manner in which the second respondent was putting its case in respect of tree T7. It is not suggested that any interested party presented any more detailed case in respect of tree T7. These are all matters, in my judgment, in respect of which the applicant, if it had realised in advance of the inquiry that the ability to retain tree T7 by means of an appropriate condition was in dispute, could and would have sought appropriate arboricultural advice. It is most important to appreciate that the whole thrust of today's inquiry procedure rules is to ensure that an issue such as the issue relied upon by the Inspector is clearly flagged up well in advance of the inquiry. This did not occur in the present case for the reasons set out above.
51. I am satisfied therefore that there was procedural unfairness in the manner in which the Inspector determined the appeal upon the sole basis of the effect of the development on tree T7. This application is allowed, and it follows that the related application for judicial review of the costs decision must also be allowed.
52. Yes?
53. MR KIMBLIN: My Lord, there is an application for costs.
54. MR JUSTICE SULLIVAN: Yes, of course.
55. MR KIMBLIN: My Lord, a costs schedule has been provided to my learned friend and I trust a copy of that has made its way to the court. If not I will --
56. MR JUSTICE SULLIVAN: No. Quite often they do not.
57. MR KIMBLIN: If I may hand up a copy. I respectfully invite the court to summarily assess costs. If I could ask my Lord to turn to the second page where there is a summary of costs.
58. MR JUSTICE SULLIVAN: Yes.
59. MR KIMBLIN: My Lord, in respect of solicitor's profit costs and counsel's fees, there is an application there which amounts to £10,645. I arrive at that figure by adding the £3,995, the £6,650, to which is to be added VAT, the disbursements which appear above on the second page which is court fees et cetera, and there is a success fee applied in respect of the profit costs and counsel's fees. The last matter to draw the court's attention to is in respect of After the Event Insurance for which a fee has been paid. It is in that way that the total comes to £30,172.25.
60. MR JUSTICE SULLIVAN: Yes, this is effectively no win, no fee-type arrangement. I am slow because I have only just seen this.
61. MR KIMBLIN: My Lord, I should have said that this is subject to a CFA --
62. MR JUSTICE SULLIVAN: Yes.
63. MR KIMBLIN: My Lord, I have been told by my learned friend that he has not agreed the costs, so if I may deal very briefly with my submissions in respect of them?
64. MR JUSTICE SULLIVAN: Yes, of course.
65. MR KIMBLIN: The Secretary of State has served a statement of costs in the sum of £8,580. Of course, the Secretary of State has not had to bear any of the disbursements or travel which the claimant has had to bear. My submission would be that the Secretary of State having a little less work to do has spent really more or less what we have. We have spent £10,645; the Secretary of State £8,580. So working then from that basic starting point, in my submission that is entirely appropriate for a one day case of this nature, which is complex on the detail.
66. MR JUSTICE SULLIVAN: Yes, I mean if the Secretary of State's costs are £8,600-odd, you would expect, absent any conditional fee arrangement, it would not be at all unusual, since the claimant as it were bears most of the legal burden of the day and has to get the bundle together and all that sort of thing -- certainly it would not be in the least surprising to see something like £12,000-odd, but then you have the conditional fee agreement in respect of that.
67. MR KIMBLIN: My Lord, yes.
68. MR JUSTICE SULLIVAN: Yes.
69. MR AUBURN: My Lord, we do not dispute the principle obviously, but in relation to the quantum the first point we say is that, although this has come in at just under a day's case, given the very large amount, the £30,000 in issue, we think it is appropriate that it is dealt with by way of detailed assessment. My Lord, obviously the borderline between summary and detailed assessment is whether it is a day case or not. This has come in just under, but a sum of £30,000 is a very, very large amount to be dealing with on assessment for a one day matter.
70. MR JUSTICE SULLIVAN: Yes.
71. MR AUBURN: My Lord, that is one reason why we think it is appropriate in this case. In fact, if I go on a little bit longer, we will have gone over one day of court time. But we say it is appropriate --
72. MR JUSTICE SULLIVAN: I do not think that will get you too far. It might actually encourage me to rack up the costs as we go along.
73. MR AUBURN: My Lord, as it is already on the borderline of whether it is summary or detailed, the amount does swing it over considerably because it is a very large amount.
74. MR JUSTICE SULLIVAN: Some judges might have taken longer than a day, you never know. If you had had to go over the planning authorities they probably would have done.
75. MR AUBURN: I am not aware that you are one of the slower judges determining planning appeals, if I can say that. My Lord, the other matter is that the percentage increase -- I accept that the appellant is entitled to an uplift, but they have set it at the maximum possible. I have relatively limited experience with CFAs of this nature, but my understanding is that within the CFA there is to be some justification for the amount of uplift. Now, we have not seen the CFA and presumably that is relevant to looking at whether or not the maximum uplift is in fact justified.
76. MR JUSTICE SULLIVAN: Yes, I confess I do not have a great deal of experience of them in this court. They are not that common in this court.
77. MR AUBURN: My Lord, can I say that, looking at the White Book, I have found a passage which says that a CFA provides for a success fee and it must briefly specify the reasons for setting the percentage increase at the level stated in the agreement. Now, this CFA has apparently specified the maximum. So it is relevant because I am entitled to say: well, you should not necessarily get the maximum; you might get an uplift, but not the maximum.
78. MR JUSTICE SULLIVAN: I simply do not now in detail how it works, but I imagine the riskier your case is the higher the uplift you are entitled to demand. So if you have something that is barely a runner you can say: well I will do it, but --
79. MR AUBURN: Yes.
80. MR JUSTICE SULLIVAN: On the other hand, if you think it is a slam dunk certainty as someone unfortunately said in another context, then you would have a lesser uplift. I do not know.
81. MR AUBURN: My Lord, while I would not contend that this case was a certainty obviously, I also would not say that it was at the other end of the spectrum to justify the very maximum of uplift. So there are certainly issues there, and I say they are best ventilated once everyone has seen the CFA and what is stated and reasons given, and there can be brief submissions on points made as to the appropriate success fee.
82. MR JUSTICE SULLIVAN: I understand the point. Thank you very much.
83. MR AUBURN: That is my point on detailed and summary assessment.
84. MR JUSTICE SULLIVAN: Do you want to say anything further on that, Mr Kimblin?
85. MR KIMBLIN: My Lord, if my Lord is at all with my learned friend on the question of detailed assessment, what I would ask for, since my Lord has had the opportunity to hear the whole case and given judgment in it, my Lord gives some indication as to whether or not -- indeed, perhaps that has already been done -- that base costs are acceptable. There then leaves perhaps for detailed assessment the question of whether or not 100 per cent is appropriate. That is not something from my point of view that I am, if I can put it this way, troubled about, because it is an absolutely standard approach that where the parties have between them made it quite clear by having the matter heard, each party has drawn the line in the sand and said: I am going to fight this, each party has decided it has a reasonable prospect of succeeding, and the invariable outcome in that situation is a 100 per cent success fee. That is not something which I can give the court chapter and verse to back that up at the moment and I can see that my Lord might not be provided with sufficient information in that regard. May I assist any further?
86. MR JUSTICE SULLIVAN: No, I think that is very helpful, thank you.
87. For the reasons given by Mr Auburn I am going to say that it is more appropriate for this to be dealt with by detailed assessment than summary assessment, but if it is of any assistance, in a case where the Secretary of State's own costs are a little short of £8,600, it does seem to me that, in broad terms -- I emphasise "in broad term" because we have not had a chance to go through the detail -- the base costs in the claimant's case are not unreasonable, if I can put it that way. They seem to be in the right sort of ballpark. I do not exclude the possibility of detailed argument, but they are not the sort of things that would particularly surprise me given the fact that, as one day planning cases go, this was actually quite a heavy case that involved quite a bit of evidence rather than just looking at the decision letter, and also of course there was the related judicial review which would have added a little bit in any event to document preparation but not much. So if that helps you, Mr Kimblin, I think you are in the right sort of ballpark with that, but the issue on which I would seek further representations on were I doing it myself would be the appropriateness of the 100 per cent uplift. I do not decide that simply because, to be blunt about it, I do not have experience of it. It is unusual for claimants in these cases to do that because usually they just pay up anyway. So those are the reasons. Does that help?
88. MR KIMBLIN: My Lord, I am very grateful. I am bound to say this is the first time I have done it on that arrangement and it may well be the last.
89. MR JUSTICE SULLIVAN: It might be encouraged, of course.
90. MR AUBURN: Can I make clear, so there is no confusion by any costs judge, that you have not determined individual items.
91. MR JUSTICE SULLIVAN: I have not.
92. MR AUBURN: Thank you very much.
93. MR JUSTICE SULLIVAN: I have made it clear that it seemed to me to be the right ballpark, but that did not exclude argument about finessing around the edges on that.
94. MR KIMBLIN: I am grateful.
95. MR JUSTICE SULLIVAN: Any further application?
96. MR AUBURN: No.
97. MR JUSTICE SULLIVAN: No, thank you very much indeed.