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
		15th January 2009

1. MR JUSTICE BEAN: The defendants are a district council who are both the Local Planning Authority and the burial authority for the Bexhill area. Bexhill has an existing cemetery, which the defendants wish to expand. To the west of the present cemetery is a plot of agricultural land which the Council intends to acquire for the purpose of extending the cemetery. I shall call it "the extension site". To the west and southwest of the extension site lie a quarry and brickworks operated by the claimant company. It is proposed that part of the claimant's site will be used for the purposes of landfill.
2. A development plan is in force in the defendant's area. It comprised at the material time the Structure Plan, a Waste Local Plan, a Minerals Local Plan and a District Local Plan. By section 70(2) of the Town and Country Planning Act 1990 the Council was obliged to have regard to the provisions of the development plan, so far as material, when determining planning applications in its district; and, by section 38(6) of the Planning and Compulsory Purchase Act 2004, if regard is to be had to the development plan, the determination of such a planning application must be made in accordance with the plan unless material considerations indicate otherwise. A planning permission may, of course, be granted subject to conditions and those conditions may require the submission and approval of details; see section 70, 72 and 78 of the 1990 Act.
3. The Waste Local Plan applicable in this case was approved by the East Sussex County Council and Brighton and Hove City Council in February 2006. Waste policy is a county council function. Policy WLP 5 of that plan states that development proposals which would prevent or prejudice the use for waste management purposes of certain sites will be resisted. Two types of sites are identified: existing waste management sites with permanent planning permission and the preferred sites and areas of search identified in the plan for strategic waste development. Policy WLP 10 identifies two specific sites where proposals for non-hazardous waste disposal to land will be permitted, subject to other policies of the plan where relevant. One of those two is the claimant's brickworks site, to which I have referred. I accept the submission of Mr Harwood for the claimants that in those circumstances policy WLP 5 was a matter to be taken into account in the present case.
4. The Waste Local Plan had followed a local inquiry held by an Inspector in 2004. In his report, among many other matters, he considered the claimants' brickworks site in section 27. He concluded at paragraph 27.6 that the long-term need for waste disposal to land was established and that this site had been correctly identified in the plan as potentially suitable for landfill. (At this stage the extension site had been identified as a candidate for planning permission for cemetery use but the matter had not been the subject of a planning application nor planning permission.) The Waste Local Plan Inspector said this at paragraph 27.8:

"An extension of the cemetery is also shown in the Initial Deposit Draft of the Rother District Local Plan to include part of the northernmost field. Despite the Ashdown landfill proposal in this Waste Local Plan, a further extension of the cemetery over the whole of this northernmost field and stretching towards the brickworks boundary is shown in the more recent Towards a Planning Strategy for Rother District (CD10.06) to cater for longer term needs. The District Council expresses concern about the preservation of the tranquillity of the cemetery, so it is not clear why the field adjoining the cemetery to the south-east was not preferred for a future cemetery extension. At the time of the inquiry, the Strategy was set to become the Revised Deposit Local Plan (see policy BX10) in November 2003.

27.9. Notwithstanding the above, as the fields are outside the identified site area in Inset Plan 8 I cannot consider them as part of the Plan proposals. [I interpose to say that he is referring to the fields adjoining the cemetery to the south-east as opposed to the extension site adjoining to the west.] Even so, the fields could still form part of any future planning application for waste disposal in connection with the brickworks site. Indeed, in my view, the temporary use of the westernmost part of the northern field for stockpiling clay and as a future cemetery in the longer term might not be incompatible. This is because some of the stockpiled clay might remain for up to 20-30 years, i.e more than the expected life of the landfill. It may be feasible to landscape this clay mound and use it to screen the landfill operation from the cemetery and housing to the east, provided the positioning and height of the stockpile was acceptable aesthetically. As the clay stockpile diminished and the landfill progressed, the vacant land could then still form part of any future cemetery extension."

At paragraph 27.24, the Inspector said:

"Screening of most of the nearer properties and the cemetery to the east by planting would be possible for the life of the landfill. This would be easier to carry out if parts of the fields between the quarries and the cemetery were also used for long-term stockpiling of clay."

Finally at paragraph 27.26 he said this:

"Any noise from the site would be likely to emanate from heavy mobile equipment working near the landfill face and disposal vehicles moving to and from the site ... There may be occasions when heavy equipment is audible as far away as the cemetery, but this noise could be reduced by silencers and the use of baffles or noise barriers. Landscaped stockpiles of clay in the area between the cemetery and the quarries, if feasible as suggested above, would be particularly beneficial for this purpose ... Under policy WLP35, any planning application would have to include adequate mitigation measures for these and all the other impacts considered above, and they would be strictly controlled by conditions of a planning permission and landfill permit."

5. It is plain from the context that in the last sentence the Inspector is referring to any planning application made by the owners of the claimant's site. The mitigation measures to which he refers are therefore mitigation measures to be carried out by the applicants for the landfill planning permission, and the planning permission and landfill permit referred to at the end is the planning permission which the claimants or their successors are entitled to obtain, not a planning permission for a site outside the claimants' boundaries. At paragraph 27.36, the Waste Local Plan Inspector said he had examined all the main issues arising out of the proposed use of Ashdown Brickworks as landfill site and found nothing of sufficient weight to justify the removal of the site from the Waste Local Plan.
6. Meanwhile, a process of local inquiry by an inspector was going on into the Rother District Local Plan. The Inspector reported in late 2005 or early 2006. (I have not been given the exact date and I doubt whether it matters.) At paragraphs 10.155 to 10.162 he considered the extension site under the heading "Proximity of proposed cemetery extension to the brickworks/proposed landfill site". He said at 10.156:

"... the Council has provided me with an extract from the [Waste Local Plan] Inspector's Report. In it he recommends that the landfill allocation at Ashdown Brickworks be confirmed for non-hazardous waste and recommends various provisions including a limit on the annual tonnage until an improved access is available. On the basis of more information than has been provided to me, he also concluded that the cemetery development would not be in conflict with clay working and brick manufacturer and that any conflict with the proposed landfill operation could be satisfactorily ameliorated. A possible alternative location for the cemetery extension that was referred to by the Inspector is considered by the Council to be unacceptable due to a high water table and there is no contrary evidence before me.

10.157. No further evidence has been submitted in relation to the further processes of the Waste Local Plan. However it appears likely that the landfill allocation will survive to the adoption stage. The Council questions the practicality and effectiveness of using clay stockpiles as a buffer and points out that the proposed cemetery land is not itself allocated for either minerals or waste purposes. I consider there to be a good prospect that a suitable landscaping buffer, whether or not it included a temporary clay stockpile, would satisfactorily ameliorate any adverse impact of the brickworks or landfill on the cemetery extension."

7. At 10.160 he recommended that Policy BX10 should be modified to indicate the landscaping or other mitigation measures to be carried out and that the supporting text is amended to refer to the proximity to the proposed landfill site. He noted at 10.161 that the claimants had objected to a number of references to the Ashdown Brickworks site in the Initial Deposit version of the local plan. However, the text related to matters which were the concern of the Waste Local Plan and not to any policies in the District Local Plan.
8. The District Local Plan itself, following the Inspector's report, came before the Council and was approved by them in July 2006. The section relating to the extension site reads as follows:

"10.49. The Council, as burial authority, has recently reviewed cemetery provision for the District. It has resolved that a westward extension to the existing Bexhill Cemetery, is most appropriate to provide for the burial needs of the area. It requires minimal change to the infrastructure in terms of work and pathways.

10.50. It is anticipated that the existing cemetery will be at capacity in certain respects within the next 2/3 years. The area identified is considered appropriate for the longer term and to accommodate diverse burial requirements. In bringing forward detailed proposals, regard will be had to the proximity of the proposed landfill site and the consequent need for appropriate screening and noise mitigation measures.

Policy BX10 Land to the west of Bexhill Cemetery, as shown on the Proposals Map, is allocated for cemetery purposes. Proposals should incorporate appropriate landscaping or other mitigation measures."

9. On 30th November 2006, the Council in its capacity as burial authority applied to itself in its capacity as planning authority for planning permission. This is a process which might have appealed to the legendary Sir Humphrey Appleby, and he would not have been surprised to learn that the application was successful. However, it is not suggested that there is anything wrong in principle with a council applying to itself in this way.
10. On 29th December 2006, a letter was written on behalf of the claimant's parent company lodging what was described (in capital letters, bold type and underlined) as a "strong objection" to the proposed development. It says:

"The single use of the whole site proposed at this time is excessive and does not provide the best use of the land in its Local Plan(s) context in accordance with the principles of Sustainable Development and should be considered as contrary to good planning and refused...

...

The application contains no details, as required by the Council's Local Plan policy BX 10 (see above), in relation to landscaping or other mitigation measures with regard to existing or allocated adjoining land uses nor does the application include a Design and Access Statement that should accompany the application.

The application is incomplete and inconsistent with Local Plan policy and should therefore be refused."

11. The matter came before the planning committee at its meeting of 15th February 2007. An Officer's report and recommendation was before the committee. It contained the full text of the claimants' objection letter as an appendix. It recorded that consultations had taken place with the Highway Authority, with Southern Water, with the Environment Agency, with the Environmental Health Officer, without material objection for present purposes. The letter of objection from the claimant's parent company was, as I have said, appended.
12. The Officer's report records that, in response to the objection, the Principal Planning Officer for Strategy and Environment of the defendant council had made the following comments:

"The respective demands on the land were considered at both the Waste Local Plan and the subsequent Rother District Local Plan Inquiries. The key points are:

• The Waste Local Plan does not allocate the land in connection with waste uses.

• The Rother District Local Plan took full account of the WLP Inspector's report issues in making the allocation of the application site for cemetery extension as can be seen in paragraphs 10.155-10.60 of the Inspector's report.

• In supporting the cemetery use, the Rother District Local Plan Inspector considered that a suitable landscape buffer was practicable, but that this did not necessarily include a temporary clay stockpile.

Hence, I do not believe that there is a justifiable case for resisting the application on grounds of prematurity. In fact, the cemetery use is clearly supported by a recent adopted Local Plan, through which the good planning of the area has been considered. I agree that Policy BX10 includes provision for 'appropriate landscaping or other mitigation measures' to be incorporated within proposals for the cemetery usage.

While it does not necessarily follow that these need to be detailed within a change of use application, the inclusion of the layout drawing does (if approved as part of the application) pre-determine the form and effectiveness of such measures.

At present, it is not clear that the issue of screening to the planned future landfill use (as well as to the existing brickworks) has been adequately considered, with potential implications for amenities of the cemetery extension. Neither should the layout unduly constrain the allocation in the Waste Local Plan.

Either the landscaping/mitigation treatment should be elaborated upon within the application or the detailed layout omitted and made subject to conditions."

What in fact happened is that the first edition of the layout plan had shown a scheme of paths within the boundaries of the extension site, of a conventional character familiar to anybody who has been to a cemetery. The amended version of the layout plan omitted the paths and consisted of little more than a rectangle in the appropriate place on the map. Inside the rectangle a small area is cordoned off as representing a small clump of trees or wetland area or both: it is well away from the boundary of the claimants' site and is not material. Essentially all details of the layout plan were omitted.

13. The officer's recommendation was that full planning permission should be granted as sought, subject to the standard condition of time, a drainage condition and two other of what I understand to be the Council's standard conditions relating to landscaping and the implementation of landscaping.
14. The planning permission, as granted, included the following conditions:

"2. No development shall take place until there has been submitted to and approved by the Local Planning Authority a scheme of landscaping, which shall include accurate indications of all existing trees and hedgerows on the land, and details of any to be retained, together with measures for their protection in the course of development.

Reason: To maintain the characteristics of the locality and to accord with Policies S1, S5 and S6 of the East Sussex and Brighton & Hove Structure Plan 1991-2011.

[Policy S1, headed "Strategy for a more environmentally sustainable future", includes the need for proposals for development to demonstrate, where required, how far they contribute to the achievement of various criteria, including disposing of waste in an environmentally acceptable and economically practical manner by reducing waste generation, increasing the re-use and treatment of waste, minimising disposals of land and protecting mineral resources and land with potential for filling with waste.]

15. Condition 3 requires that all planting, seeding or turfing comprised in the approved details of landscaping is to be carried out in the first planting and seeding seasons following the occupation of the buildings or the completion of the development, whichever was the sooner, and made provision for the replacement of trees or plants which died or became diseased within five years. Condition 4 is not material. Condition 5 required that:

"Prior to the commencement of any works on site, a plan indicating the proposed layout of the cemetery shall be submitted to and approved by the Local Planning Authority. The development shall be carried out in accordance with the approved details." [Again, there was a reference to policy S1.]

Condition 6 reserved the use to be carried out only by the District Council, as was obviously necessary since they were the burial authority.

16. On 2nd May, the claimants sent by fax a letter before action and on 11th May 2007 this application for judicial review was launched. The claim form and grounds, a substantial document settled by Mr Harwood, contained nine grounds for judicial review. On 24th July 2007, Mr George Bartlett QC, President of the Lands Tribunal, sitting as a Deputy Judge of the Administrative Court, refused permission on the papers on all grounds. The claimants renewed the application before Blake J in open court on 23rd January 2008. He granted permission on the following three grounds only.

"Ground (3): The Defendant could not reasonably conclude that the application complied with Local Plan Policy BX10 given the absence of any information on landscaping and mitigation measures;

Ground (4): The defendant failed to have regard to Waste Local Plan WLP5;

Ground (5): There was insufficient information on which the Defendant could reasonably grant planning permission in all the circumstances, including adopted policy.

The statement of facts and grounds went on to say that these three grounds arise out of the failure of the Council to consider the effect of the extension on the proposal to landfill the adjacent land. Blake J refused permission for judicial review on grounds 1, 2 and 6 to 9. There was no appeal from that decision and, quite rightly, Mr Harwood has not sought to persuade me to exercise what would be an exceptional discretion to allow the other grounds to be revived in those circumstances.

17. I shall consider first the effect of the conditions imposed on the planning permission, in particular conditions 2 and 5. Firstly, it is common ground that these do not require the defendant as burial authority to leave any part, and specifically the western part, of the extension site unused or to eliminate part of the site from use for cemetery purposes. To do so at a later stage would be inconsistent with the grant of planning permission for cemetery use for the burial site; see for example the judgment of Glidewell LJ in Cadogan v Secretary of State for the Environment [1993] JPL 664. Secondly, and, again, this is common ground, the conditions do not require the Council as burial authority to erect an earthwork barrier or bund at the western end of the cemetery site as a measure of screening of noise mitigation and, since the conditions do not spell out that requirement, it cannot be implied later; see the judgment of Sullivan J, as he then was, in Sevenoaks District Council v First Secretary of State [2005] JPL 116. Thirdly, as a matter of construction of the document, condition 2, even taken alongside condition 3, does not require a specific degree of landscaping by planting, for example, three rows of trees or the planting of trees of a particular kind. Again, such a specific requirement cannot be imposed later, as the Sevenoaks judgment shows.
18. But what the conditions do require is that no development of the extension site for cemetery purposes is to take place unless a layout plan has been submitted to and approved by the planning authority and the development must be carried out in accordance with the approved details of the layout plan. Moreover, no development is to take place unless a landscaping scheme has been submitted to and approved by the Council as local planning authority. Mr Pereira accepted that any such landscaping scheme must have regard to the matters set out in policy BX10 of the local plan, that is to say that it must have regard to the proximity of the landfill site and the consequent need for the landscaping to provide appropriate screening and noise mitigation. It seems to me that, if the landscaping proposals did not have proper regard to policy BX10, any approval of such proposals would itself (in contrast to the enforcement notice at issue in the Sevenoaks case) be susceptible to attack by judicial review in this court. Indeed, I understood Mr Pereira to accept as much.
19. I turn now to the claimant's grounds of attack. Firstly, they say, the Council could not reasonably conclude that the application complied with the Local Plan Policy BX10 in the absence of any information on landscaping and mitigation measures. The question on this issue is whether the principal planning officer was right to advise the Council that the landscaping and mitigation issue could be tackled by being elaborated upon within the application, or the detailed layout could be omitted and the issue dealt with by way of conditions. I accept the submission of Mr Pereira that it was lawful for either of these two options to be followed. The obligation is not to proceed with the development without regard to the policy as set out in Local Plan Policy BX10. Since a further decision of the Council will be required in accordance with condition 2 and condition 5, it is lawful for the details of the landscaping not to be spelt out at this stage.
20. That brings me on to the second and similar criticism, not as spelt out verbatim in the pleaded grounds, but as Mr Harwood has put it in argument, that the defendants have failed to have regard to the critical issue of the relationship between the two sites: the cemetery, with its extension, and the brickworks and quarry, with its proposed landfill use. Mr Harwood argues that the Council did not adequately consider this question and, had they done so, they might have come to a range of conclusions: one end of the scale being that planning permission should not be granted for the extension site to be used at all, or that only part of it should be used, or that all or part of it could be used but only if a bund was erected on the extension site itself, and so forth.
21. I note in this context that none of the policy documents, and neither the Waste Local Plan Inspector nor the District Local Plan Inspector, took the view that the proposed uses of the two adjacent sites, that is the extension site and the claimants' site, are incompatible in principle, nor did any of the policy documents nor either Inspector say that landfill on the claimants' site would only be practicable if mitigation measures, general or specific, were taken on the extension site itself. On the contrary, as Mr Pereira has pointed out, in a part of the Waste Local Plan Inspector's report (paragraph 27.26) to which I have already referred, it is noted that any planning application for landfill would have to include adequate mitigation measures (plainly envisaged to be taken by the claimants on their site) and the measures would be strictly controlled by conditions of planning permission and landfill permit for that site, if one were granted. He does not say that landfill would be impracticable or even seriously impeded in the absence of measures being taken on the extension site side of the border.
22. Local Plan BX10 itself does require that when detailed proposals are brought forward, the should incorporate appropriate screening or other mitigation measures. I have already indicated that in my judgment it is sufficient that those issues are addressed in the details of the landscaping proposals. I do not in any event accept that the relationship between the two sites was not something fairly and squarely before the Council. As Mr Pereira has rightly pointed out, the documents before the planning committee relating to this item in their agenda of 15th February 2007 were not extensive. The claimants had set out their stall in a letter which was before the committee (the emphasis of which was somewhat different from the emphasis of the cases put before me); the relationship between the two sites was addressed in the Principal Planning Officer's response and the committee can hardly have failed to be aware of it. So in my judgment that ground also fails.
23. Finally, there is the issue of policy WLP 5 in the Waste Local Plan. I have already said that this policy is in my judgment applicable. Notwithstanding the established view in the case of (see R (on the application of Springhall) v Richmond on Thames London Borough Council [2006] EWCA Civ 19) that councillors must be afforded a broad measure of leeway in the weight to which they attach to anterior considerations and that a planning decision maker's approach to policy will only be interfered with if it goes beyond the range of reasonable meanings that can be given to the language in question, it seems to me plain, as I have said, taking WLP 5 and 10 together, that these policies are relevant. But I also accept Mr Pereira's submission that in reality policies WLP 5 and 10 add nothing to local Plan Policy BX10. Local Plan Policy BX10 has a very specific paragraph requiring the Council as burial authority in bringing forward its detailed proposals to have regard to the proximity of the proposed landfill site. WLP 5 neither adds to nor subtracts from that significant consideration. I have already indicated that it does not lead to a conclusion that the details of the mitigation measures had to be addressed at the stage of the grant of planning permission.
24. Mr Pereira in his skeleton argument criticised the claimants for what he described as a thinly veiled attempt to rerun planning merits issues which were argued by the claimant and rejected through the process leading to the adoption of the Waste Local Plan and the Local Plan. I think that there is force in that submission, certainly as regards any contention that all or even part of the extension site should simply not be used for cemetery purposes on the grounds of its location. As to the more specific points, I have already given my view.
25. Accordingly, on each of the grounds for which permission is given, I dismiss the application for judicial review. I am very grateful to Mr Harwood and Mr Pereira for their helpful submissions.
26. MR PEREIRA: My Lord, I am grateful. There is a costs schedule that was put in yesterday. I do not know if it is agreed. I hope it is.
27. MR HARWOOD: It is not agreed.
28. MR JUSTICE BEAN: How would you like to deal with it, gentlemen?
29. MR HARWOOD: My Lord, there is one minor issue in respect of principle on costs and then there will be a number of issues on the detail of it. The point on principle is -- firstly my Lord, we accept we cannot avoid the general principle that the Council should recover its costs, having been successful. I do, though, suggest that the Council, having misconstrued WLP 5, albeit escaped quashing on that basis because of relying on several policies, a little bit, only a little bit, should be knocked off out of their award for full costs. In terms of the summary assessment schedule, I have about four points on that schedule.
30. MR JUSTICE BEAN: Right. Would you like to say anything else about the WLP 5 policy point?
31. MR HARWOOD: Well, my Lord, simply this: that the court, of course, is concerned to ensure that public authorities act lawfully, properly construe their obligations and so on. One of the points we took is that WLP 5 was relevant and had not been taken into account. My Lord has found, even though the Council strenuously resisted it, that we were right it was relevant and it had not been taken into account. My Lord has excused that failure on essentially an exercise of discretion because there were policies. We have not succeeded on that but, rather than award a hundred per cent of the costs, a little reduction, 20 per cent, say, should be taken off because the Council have not got it wrong there. If they were found to have got it wrong, we would not have had to deal with that point. I do not say further on principle than that.
32. MR JUSTICE BEAN: Thank you. Well, I am against you on that, Mr Harwood, firstly, because I do not think the WLP 5 point added more than a few minutes to the length of the argument and, secondly, because it was not raised in the letter of objection of 29th December 2006.
33. Now, the other points, roughly how long are we going to need for this?
34. MR HARWOOD: Five or ten minutes, I would have thought.
35. MR JUSTICE BEAN: Well, we will press on, Mr Harwood.
36. MR HARWOOD: Does my Lord have the summary schedule?
37. MR JUSTICE BEAN: I have the defendant's and the claimants'.
38. MR HARWOOD: My Lord, before Mr Pereira says it, the claimant's schedule is a considerably larger sum. There is different work involved --
39. MR JUSTICE BEAN: I had noticed.
40. MR HARWOOD: I am, of course, not concerned with whether that sum is reasonable, the question is whether the sum put forward by the Council is reasonable and I make just these four points. First of all, attendance on others, on the first page, down as 11 hours. In contrast, our figure is about three hours. There are no interested parties in this case. The time that would be taken for correspondence with the court would be very limited indeed, particularly as the Council did not turn up at the permission hearing. So, my Lord, that figure seems to be unreasonably high and we suggest substituting three hours, taking eight hours off there. Work not covered above, five hours: hard to see what that might be. Attendance at the hearing, the travel time is given as ten hours. The train from Bexhill from Victoria takes one hour, 54 minutes -- even with a cab over from Victoria, a travel time each way of two and-a-half hours -- so five hours in total would be realistic, rather than a ten hour figure. So five hours off there. So, my Lord, that is a total of 18 hours off at that point and then the final matter on the second page is that in terms of the other costs included is the figure of £1,080 for not only the travel expenses of council planning officers but also their time involved in attending conferences and preparing statements. Now, whilst, of course, the Council's in-house solicitor is able to recover costs on a profits basis, the parties to the proceedings do not normally recover payments for their time, let alone whatever rates that is; but, whilst the travel costs of the planning officers we are prepared to accept in terms of going to a conference, say about a hundred pounds, the planning officer's time is, we say, not recoverable. That would take off, my Lord, 18 hours at £191, plus about £900. A quick bit of mathematics, that would take off something to the order of £4,300. So, my Lord, I suggest that the total, prior to VAT should be reduced for 4,300. (pause)
41. MR PEREIRA: My Lord, can I just --
42. MR JUSTICE BEAN: Do take instructions, Mr Pereira. (pause)
43. MR PEREIRA: My Lord, despite what my friend says, I will make the point that my friend anticipates I might make, which is that it is very modest. It is less than a third, I think, of the schedule put in and one assumes that the claimant put in what it considered to be a reasonable schedule, to make a reasonable claim for costs.
44. MR JUSTICE BEAN: Yes, I have that point, Mr Pereira. It had occurred to me. Mr Harwood has prudently not painted with a broad brush and has made four specific points and if you would like to address each of those four, then I will do what I think right.
45. MR PEREIRA: My Lord, yes. I was taking instructions at the time as Mr Harwood was speaking.
46. MR JUSTICE BEAN: I realise it is slightly unsatisfactory that you have to get hurried whispered instructions and I could put it off, but the trouble with putting it off is that it will involve everyone in extra costs more than the amount that Mr Harwood is putting at stake. So let us try to deal with it now, even in rather abrupt form.
47. MR PEREIRA: My Lord, I will go through the schedule then, if I might. The 17 hours at the start --
48. MR JUSTICE BEAN: That is all right.
49. MR PEREIRA: -- is agreed, I think. The attendance on others includes attendance on myself. So there was a conference with counsel.
50. MR JUSTICE BEAN: I see. Yes.
51. MR PEREIRA: And my solicitor frankly says maybe it should be in a different box but --
52. MR JUSTICE BEAN: Yes, I see that.
53. MR PEREIRA: So that was a conference in London.
54. MR JUSTICE BEAN: What is "work not covered above"? (pause)
55. MR PEREIRA: My Lord, also an attendance on others. There was contact with East Sussex, who are the county council, the waste planning authority, because at one time, I am told, the claimant said that it was looking out for -- is the expression that was given to me, looking out for -- the interests of the county council and my solicitor contacted the county council to see if they had a view on the claim. My Lord, those are the main items under --
56. MR JUSTICE BEAN: Travel?
57. MR PEREIRA: The travel includes travel to the conference with me and then travel to court today. So there are two return journeys.
58. MR JUSTICE BEAN: I am sorry, I have asked the wrong question. Attendance at hearing, bottom of page 1, five hours for the hearing. It has been more than that. Ten hours travel and waiting. (pause)
59. MR PEREIRA: My Lord, that includes the travel and waiting today and the travel and waiting in relation to the conference.
60. MR JUSTICE BEAN: Yes. Right, and the final point, which is, perhaps unlike the others, a point of principle, the time of planning witnesses, not lawyers, attending the conference and preparing statements.
61. MR PEREIRA: My Lord, I do not know if there is any law on that in terms of the CPR. That is what is set out there in that box. I do know that, certainly in the criminal courts, there is a case called Associated Octel, a decision of the Divisional Court, which does hold that salaried officers -- the costs, the time of salaried officers -- is a claimable expense when it is comes to recovering costs of, for example, a local authority prosecution.
62. MR JUSTICE BEAN: Yes.
63. MR PEREIRA: It is R v Associated Octel. I do not have the White Book with me. (pause) My Lord, the £105 is my solicitor's expense. It is only the 1,080 which relates to the -- and, again, for two journeys. My Lord, I cannot see why there ought to be a difference in principle between an officer who is a lawyer and a officer who is officers who are assisting the Council, providing instructions and preparing the witness statements and so on, who are also involved in the case. Both are salaried, all are salaried. If my Lord wished to defer this point --
64. MR JUSTICE BEAN: Well, again, we are talking about potentially a thousand pounds and we could have a very interesting discussion on it but --
65. MR PEREIRA: My only point, my Lord, was that I could fax you a copy of the Octel case when I go back to chambers.
66. MR JUSTICE BEAN: No, I am familiar with that. The question is whether the same rule applies in civil proceedings. I thought it did, I must say. I do not think there was any longer a prohibition on recovering lost time by somebody who was neither a barrister nor a solicitor, but I do not know. Anything else?
67. MR PEREIRA: My Lord, no.
68. MR JUSTICE BEAN: Mr Harwood, anything to add?
69. MR HARWOOD: No, my Lord.
70. MR JUSTICE BEAN: I am satisfied that the claim for attendance on others is properly made but the work was actually incurred and reasonably so. The hourly rate is not challenged. I take the same view of "work not covered above" at five hours. I was a little puzzled by the claim for ten hours travel and waiting, because it was under the heading "attendance at hearings", but it has been explained to me that it includes solicitors' costs of attendance at a conference with counsel, which was obviously reasonable. Indeed, as it is now 5.15pm, the costs of the attendance at the hearing has proved to be an underestimate, so perhaps it balances out.
71. Part of the final claim of £1,080 is the time of two planning witnesses, as they are described, attending the conference, preparing statements and their travel expenses. I see no reason in principle why such people's costs in the loss of time to the Council should not be recoverable. The amount claimed is reasonable.
72. I note finally that, while one would expect a claimant's costs in a case like this to be somewhat higher than the defendant's, the claimant's costs in this case are more than three times the defendant's. That does not preclude Mr Harwood from raising any points on costs but it is something to be borne in mind. I therefore allow the claimant's costs application in full as claimed and I summarily assess the amount to be paid, inclusive of VAT on solicitors and council's fees, as £21,472.
73. Once again, I am very grateful to both of you for your assistance.
74. MR HARWOOD: My Lord, can I just ask for permission to appeal? I will be 15 seconds. I simply say, with respect to your Lordship's judgment, you did not deal with the limitation in the landscape provision by reason of permissions 2 and 3 to planting only, as distinct from other forms of landscaping, and I ask permission to take that point to the Court of Appeal.
75. MR JUSTICE BEAN: Well, Mr Harwood, that was very politely put. I believe I did deal with it. Whether I dealt with it satisfactorily or not is for others to say. The case is fact specific and does not, in my view, raise a point of general principle and I think it must be for a Lord Justice or the Court of Appeal itself to say whether or not the Court of Appeal wish to take the case. So I refuse permission.
76. MR PEREIRA: My Lord, on behalf of my clients, can I thank you for sitting late? I have been instructed to.
77. MR JUSTICE BEAN: It is kind of you to say so. I am afraid you will all have to sit here while I fill in the leave to appeal form because otherwise it will go astray.