QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PEARTREE WELL LIMITED||Appellant|
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT||Respondent|
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MR L BUSH (instructed by Treasury Solicitors) appeared on behalf of the Respondent
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1. MR. JUSTICE COLLINS: There are two claims before the court. One is pursuant to section 288 of the Town and Country Planning Act 1990 against the refusal by an inspector on 12th March 2009 to grant planning permission or to allow the appeal against the refusal by the local planning authority of permission for the construction of a dwelling house at the particular land in question, Paygate Farm, which is just on the outskirts of or just outside Uckfield in Sussex. The other is a claim pursuant to section 289 of the same Act against the dismissal of an enforcement appeal, the enforcement relating to the presence on the land in question, the same land as that involved in the section 288 claim, of a caravan or mobile home. That was said to be a breach of planning control. That decision was made on 21st May 2009.
"the proposed development would detract neither from the rural character and amenities of the area nor from the safety and convenience of highway users and that accordingly it can be permitted."
"the building shall not be used until the parking and vehicular turning spaces indicated on the approved drawings have been provided and they shall thereafter be permanently retained and used for no other purpose."
"new permanent dwellings should only be allowed to support existing agricultural activities on well-established agricultural units providing:
(i) there is a clearly established existing functional need;
(ii) the need relates to a full-time worker, or one who is primarily employed in agriculture and does not relate to a part-time requirement;
(iii) the unit and the agricultural activity concerned have been established for at least three years, have been profitable for at least one of them, are currently financially sound and have a clear prospect of remaining so."
"authorities should take a realistic approach to the level of profitability, taking account of the nature of the enterprise concerned. Some enterprises which aim to operate on a subsistence basis, but which nonetheless provide wider benefits (e.g. In managing attractive landscapes or wildlife habitats), can be sustained on relatively low financial returns".
"... although a simple fault might be repairable by a resident site manager I consider it likely that a more serious fault in a pump would need professional help. As I understand it, a failed pump would need to be restarted within half an hour and I consider it unlikely that a professional engineer could attend to the site in this rural location within the relevant time."
"this seems to be the case here. If a dwelling were genuinely needed for the success of the enterprise I would have expected the appellant to retain the cottage and explore other ways of meetings debts. I have no evidence that this has happened, so conclude that this test is not met",
"secondly, a financial test is necessary, showing that the enterprise has been established for at least 3 years, has been profitable for at least one of them, is currently financially sound and has a clear prospect of remaining so."
"in reaching that view I appreciate that my decision could be seen as inconsistent with the March 2009 decision. However, that appeal related to a proposal for a permanent dwelling, which would at this stage in any event be in clear breach of policy, and there appears to have been far less evidence before the previous inspector as to need. Accordingly, I do not consider that my decision should be seen as incompatible with that decision or as casting doubt upon the correctness of that decision".
"the use was to be carried on by the appellant or other employees of Peartree Well Limited in connection with the production of natural mineral water at the site but for a period only of three years from the date of this decision, or the period during which the premises are occupied as specified above, whichever is the shorter. When the premises cease to be occupied by any such persons or at the end of three years whichever shall occur first, the use ... shall cease and the mobile home shall be removed."
The second condition was:
"The use should cease within 28 days of any of the following requirements not being met:
(i) within two months of the date of this decision there shall have been submitted for the approval of the local planning authority details of a scheme for the access, parking and turning of vehicles" et cetera, with a timetable:
(ii) within six months the scheme and timetable must have been approved by the local planning authority or, if they failed to give approval or a decision within the prescribed period, an appeal should be lodged and (iii) no external lighting shall be installed at the site other than in accordance with details to be submitted to and approved in writing by the local planning authority.
(iv) within three months the pre-existing caravan shall be removed."
36. MR. JUSTICE COLLINS: Thank you for the way you have presented it. I am sorry that I have had to come down against you there. The issue of costs.
37. MISS BUSCH: Mr. Pursglove has a copy of our statement of costs.
38. MR. JUSTICE COLLINS: The rule is generally that if your claim fails you have to pay the other side's costs. It does not automatically follow and I can consider the amount. Do you have any observations about costs in principle?
39. MR PURSGLOVE: We did make efforts throughout the best part of a year to get counsel to represent us. We were advised that if we won we may not get costs.
40. MR. JUSTICE COLLINS: You would have had costs if you had won.
41. MR PURSGLOVE: She seemed to say otherwise.
42. MR. JUSTICE COLLINS: Normally the rule in this court is that the loser pays the winner, normally. That is the general approach. If you had won it is difficult to see that you would not have got your costs. Miss Busch would have been hard pressed to resist an order. There might have been a question. There are technically two claims. You might have succeeded on one and failed on the other. I think that you have had the wrong advice there. That is by the way. The only question possibly you could raise is that I have not been entirely happy with at least part of Mr. Mumford's decision, albeit at the end I have decided that he should be upheld. Therefore, it might be that any order for costs should reflect that. There should be a small reduction in the overall amount. It is not possible to isolate one claim from the other. Is that right?
43. MISS BUSCH: Yes, that is right.
44. MR. JUSTICE COLLINS: That is probably the best I can do. Let us look at the amount. The Treasury Solicitor is usually relatively reasonable. One of the problems you have is that the more paper you generate the greater costs the other side incurs in reading it. 21 hours or thereabouts does seem a lot.
45. MISS BUSCH: It is a comment often made in respect of the Treasury Solicitors that they tend to do a belts and braces job. I would say that in this case the hours that have been spent are not unreasonable given the amount of paperwork.
46. MR. JUSTICE COLLINS: A lot of it was frankly not especially relevant. The Treasury knows what is relevant to these appeals.
47. MISS BUSCH: I appreciate that. There was a lot of it. The documents are tightly drafted. The matters are relevant. I myself could have spent twice as long as I did. I gave up in despair.
48. MR. JUSTICE COLLINS: I think that your remuneration is reasonable.
49. MISS BUSCH: The fact that I spent relatively little time is counterbalanced by the Treasury Solicitor. The overall costs are not excessive. The charge is five hours for the hearing. It is getting on for four but less than five.
50. MR. JUSTICE COLLINS: The best I can do on reduction is to knock this down. The claim is 8,300. I am prepared to reduce that. I do not think I can go below 7,500. In order to reflect the fact that Mr. Mumford's decision was not as satisfactory in all respects as it should have been, I am prepared to make a small reduction to reflect that. I think that what I propose to order is that you pay by way of costs a total of 7,000. I say you. Peartree is the technical name. I am sorry. It is a pity. I should have added that clearly you should proceed with the planning permission. You must appreciate that whatever you may think planning inspectors are independent. There is no question of collusion with local planning authorities. They are very careful, particularly since the Human Rights Act, to ensure that there is no question of any association or collusion. You will get a fair hearing. They are all human, as are all judges, and not all are the same. Some may be more sympathetic than others. You can never be one hundred per cent sure. No human system is perfect. We try our best. We like to think that we succeed most of the time. We have to recognize, those who have judicial functions, that sometimes things are not as perfect as they might be. I do recognize that you feel strongly that you have been badly treated, particularly by the planning authority. I have perhaps gone further than I should have done. It might assist you. You will get a transcript of this judgment in due course.