CO/12815/2009 |
BIRMINGHAM CIVIL JUSTICE CENTRE
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS |
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B e f o r e :
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The Queen on the Application of DAVID SIDNEY MURRELL CHRISTINE RUTH MURRELL |
Claimants |
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- and - |
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SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT BROADLAND DISTRICT COUNCIL |
First Defendant Second Defendant |
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Mr Kolinsky (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
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MR JUSTICE BEATSON:
"Please supply a further three copies of the location plan."
It is not at all clear what location plan was provided with the original application. The one in the bundle is stamped 9 December 2008, which was the date on which the second defendant validated the application. It is not clear whether additional copies of this were supplied, and that it had been supplied earlier. The fact that there is no 1 December stamp on the document, as there is on all the other documents received then, puts that into question. At any rate, the letter stated:
"The statutory period for determination of your application cannot commence until these requirements have been fulfilled and a formal letter of acknowledgment giving details of the statutory period for the determination of the application will then be sent to you."
The writer of the letter states that, should the claimants wish to discuss the matter further, they should not hesitate to contact him.
" the surrounding landscape is relatively open and when considering the steady incline of levels throughout the site and the open nature of the eastern and southern boundaries of the agricultural holding, it is considered that the cattle shelter will be an unduly prominent form of development that represents an unacceptable visual intrusion in the countryside and does not maintain or improve the appearance of the locality, or enhance or respect the surrounding Area of Landscape Value."
The conclusion is that prior approval is required, but that approval was refused because the application did not comply with the policies to which I have referred.
"2. An application for prior approval was made on 1 December 2008. The Council requested further information before it was prepared to validate the application. For whatever reason, the Council required more information to assess the proposal and requested elevation plans, block plans showing the size and position of the building, further copies of the location plan and requested that the application needed to be on a new set of standard application forms. The Council made it clear that the prior approval application would not be valid until these documents were produced. Whilst it is clear in Circular 02/2008: Standard Application Form and Validation that use of the standard form is not required for prior approval applications, I consider that the Council needed sufficient details to judge the design, siting and appearance of the proposed building. Therefore, in my view, the Council acted reasonably in requesting this information and I consider that the correct procedure was followed.
3. The appellants provided the information requested and the application was validated on 9 December 2008. The Council issued its decision on 31 December stating that prior approval was required and, for the reasons given, was refused. I have seen no evidence to persuade me that the combination of the two matters in one decision is not permissible.
4. The appellants have stated that the procedure followed did not allow for the submission of landscaping details. However, it is clear that there was nothing to prevent the details being submitted at any time before the council made its decision.
5. For the reasons stated above, I consider that the Council followed the correct procedure and therefore the refusal notice dated 31 December 2008 is valid."
" should be strictly controlled. The Government's overall aim is to protect the countryside for the sake of its intrinsic character and beauty, the diversity of its landscapes, heritage and wildlife, the wealth of its natural resources and so it may be enjoyed by all."
Paragraph 9 sets out other policies. The policies the Inspector considered most relevant to the appeal were policy GS1, restricting development outside settlement limits; GS3, protecting the character and appearance of the surrounding area; ENV1, protecting the character and appearance of the countryside; ENV2, seeking a high standard of layout and design, respecting the wider area; and ENV8, protecting the inherent visual qualities and distinctive character of areas of landscape value. The Inspector also refers to policy EMP8, which permits agricultural development if it meets a list of criteria, including that the buildings are designed to help them maintain and improve the appearance of the locality and integrates with existing features and respects the character of the area. It is not submitted that the reference to these policies was improper; indeed, both parties in their written submissions referred to the policies.
" lies within open countryside characterised by large open fields with small woodland areas."
She states:
" the essential characteristic and appearance of the area is one of an open rural working landscape within which are farm complexes.
11. The appeal site is situated on open rising land. The proposal includes a cattle shed within a new woodland landscape setting. Whilst being designed as an agricultural building, due to its size and prominent position, I consider that it would appear as an unduly prominent form of development, which would have an unacceptably adverse visual impact on this part of the Area of Landscape Value. Therefore, I conclude that the proposal will have an adverse effect on the open character and appearance of the surrounding countryside. This would not be in accordance with the objectives of PPS7 and Local Plan Policies GS1, GS3, ENV1, ENV2, ENV8 and EMP8.
12. Whilst the landscaping details were not submitted with the application, I have been provided with details, which I consider appropriate to take into consideration in my determination of this appeal [ ] Due to the scale and position of the proposed building, it would be many years before an appropriate substantially significant screen could be established. I consider it unacceptable, due to the adverse visual impact of the proposed building, to allow such development in such an open location, which would be open to public views for a considerable time.
13. I note the presence of large modern farm buildings in the surrounding area, but these are characteristically generally within established farm complexes, rather than isolated buildings.
[ ]
15. In reaching my conclusion, I have had regard to all other matters raised but I have not specifically commented including the need to relocate an existing family beef cattle business. Whilst I recognise the operational needs of the agricultural business, it is necessary to weigh this consideration against the harm I have identified with regard to impact on the character and appearance of the area. In the light of the significant harm I have identified above, I do not consider this matter justifies allowing the appeal."
"Planning permission granted by a Development Order may be granted either unconditionally or subject to such conditions or limitations as may be specified in the order."
Subsection (2) provides that:
"Without prejudice to the generality of subsection (1), where planning permission is granted by a Development Order for the erection, extension or alteration of any buildings, the order may require the approval of the planning authority to be obtained with respect to the design or external appearance of the buildings."
"The carrying out on agricultural land comprised of an agriculture unit of 5 hectares or more in area of
(a) works for the erection [ ] of a building [ ] which are reasonably necessary for the purposes of agriculture within that unit."
Paragraph A1 and subsequent paragraphs deal with development that is not permitted and conditions. Paragraph A1 provides that no building should exceed 465 square metres, and paragraph A1(h) provides that a development is not permitted if the erection or construction would be within 400 metres of the curtilage of a protected building. There are other prohibitions.
"(i) the developer shall, before beginning the development, apply to the local planning authority for a determination as to whether the prior approval of the authority will be required to the siting, design and external appearance of a building
[ ]
(iii) the development shall not be begun before the occurrence of one of the following --
(aa) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(bb) where the local planning authority gives the applicant notice within 28 days following the date of receiving his application of their determination that such prior approval is required, the giving of such approval; or
(cc) the expiry of 28 days following the date on which the application was received by the local planning authority without the local planning authority making any determination as to whether such approval is required or notifying the applicant of their determination"
"E12. In certain cases, the permitted development rights for development on agricultural units of 5 hectares or more and for forestry cannot be exercised unless the farmer or other developer has applied to the local planning authority for a determination as to whether their prior approval will be required for certain details (General Permitted Development Order, Part 6, A.2(2) and (3)). The local planning authority have 28 days for initial consideration of the proposed development. Within this period they may decide whether or not it is necessary for them to give their prior approval to these details of development involving new agricultural and forestry buildings, significant extensions and alterations,
agricultural and forestry roads, certain excavations or waste deposits, and the placing or assembly of fish tanks in any waters. In National Parks and certain adjoining areas ('Article 1(6) land'), all extensions and alterations to buildings are subject to this procedure and the placing or assembly of fish tanks in any waters requires a specific planning application to be made to the local planning authority.
E14. The determination procedure provides local planning authorities with a means of regulating, where necessary, important aspects of agricultural and forestry development for which full planning permission is not required by virtue of the General Permitted Development Order. They should also use it to verify that the intended development does benefit from permitted development rights, and does not require a planning application (see paragraphs 3.5 and 3.6 above). There is no scope to extend the 28 day determination procedure, nor should the discretionary second stage concerning the approval of certain details be triggered for irrelevant reasons. A local planning authority will therefore need to take a view during the initial stage as to whether Part 6 rights apply.
E15. Provided all the General Permitted Development Order requirements are met, the principle of whether the development should be permitted is not for consideration, and only in cases where the local planning authority considers that a specific proposal is likely to have a significant impact on its surroundings would the Secretary of State consider it necessary for the authority to require the formal submission of details for approval. By no means all the development proposals notified under the Order will have such an impact.
E16. In operating these controls as they relate to genuine permitted development, local authorities should always have full regard to the operational needs of the agricultural and forestry industries; to the need to avoid imposing any unnecessary or excessively costly requirements; and to the normal considerations of reasonableness. However, they will also need to consider the effect of the development on the landscape in terms of visual amenity and the desirability of preserving ancient monuments and their settings, and sites of recognised nature conservation value. They should weigh these two sets of considerations. Long term conservation objectives will often be served best by ensuring that economic activity, including farming and forestry which are prominent in the rural landscape, is able to function successfully.
E22. The arrangements do not impose full planning controls over the developments to which they apply -- those developments remain "permitted development" under the General Permitted Development Order. The principle of development will not be relevant providing the Order conditions of the Order, the objective should be to consider the effect of the development upon the landscape in terms of visual amenity, as well as the desirability of preserving ancient monuments and their settings, known archaeological sites, listed buildings and their settings, and sites of recognised nature conservation value (i.e. Sites of Special Scientific Interest and Local Nature Reserves). Details should be regarded in much the same light as applications for approval of reserved matters following the grant of outline planning permission. Subject to the normal criteria governing the use of conditions in planning permission, conditions may be imposed when approval is given. (DOE Circular 11/95 gives further advice in this respect.) Developers required to submit details for approval will have the right of appeal to the Secretary of State if approval is refused or is granted subject to conditions with which they disagree, or if notice of a decision on the details submitted is not given within the period for a decision (normally eight weeks). There is no right of appeal against the decision of a local planning authority to require approval of details. No compensation is payable under Section 108 of the Town and Country Planning Act 1990 if approval of submitted details is withheld by the planning authority.
E24. Local planning authorities may concern themselves with:
-- the siting, design and external appearance of a proposed new agricultural or forestry building and its relationship to its surroundings;
-- the siting and means of construction of roads;
-- the siting of those excavations or waste deposits which individually or collectively exceed 0.5 hectare within the unit; and
-- the siting and appearance of fish tanks (cages).
E27. The siting of a new agricultural or forestry building, road, excavation or waste deposit, or fish tank can have a considerable impact on the site and the surrounding landscape. Developments should be assimilated into the landscape without compromising the functions they are intended to serve. New buildings should normally form part of a group rather than stand in isolation, and relate to existing buildings in size and colour. (New buildings of modern design may sometimes best be separated from a group of traditional buildings to avoid visual conflict.) Sites on skylines should be avoided if possible. To reduce their visual impact buildings should be blended into the landscape or, on sloping sites, set into the slope if that can be achieved without disproportionate cost.
E31. The choice of design and materials, and the relationships of texture and colour to existing development, local traditions, and the landscape, can be important considerations for both agricultural and forestry buildings and roads. For example, a single large building may have a greater impact on the countryside than one or more smaller buildings, which can be more easily incorporated into an existing group and provide greater flexibility, although the function of the building will be material to shaping its form. Roof overhang reduces apparent scale, as does the use of different materials for roof and walls. Well-designed features such as rainwater downpipes and gutters, ventilators, eaves and gable overhang emphasise the shape of a building."
"A challenge under section 288 to the validity of an Inspector's decision on an appeal under section 78 may be made only upon the grounds that the Inspector's decision (1) is not within the powers of the Act or (2) that any of the relevant requirements had not been complied with in relation to the decision."
And then at paragraph 6:
"6. An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits."
His Lordship stated that in any case where an expert tribunal is the fact-finding body, the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount, and that that difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact but reaching a series of planning judgments.
"The permitted development right is a planning permission, and as such cannot be cut down or taken away (save by the means of a direction under Article 4 of the GPDO). The effect of the GPDO is to grant a planning permission that is similar in effect to an outline planning permission granted under section 92 of the 1990 Act."
"In a prior approval case the planning permission accrues or crystallises upon the developers' receipt of a favourable response from the planning authority to his application."
Mr Blackie submitted that case and Laws LJ were primarily concerned with the exercise of rights, not the prior stage of determination.
"A reference to a policy does not necessarily mean that it played a significant part in the reasoning: it may have been mentioned only because it was urged on the inspector by one of the representatives of the parties and he wanted to make it clear that he had not overlooked it. Sometimes his statement of the policy may be elliptical but this does not necessarily show misunderstanding. One must look at what the inspector thought the important planning issues were and decide whether it appears from the way he dealt with them that he must have misunderstood the relevant policy or proposed alteration to the policy."
This passage appears immediately after his Lordship's statement that the letter must be read in good faith and not as though one is marking an examination paper. He had cited a number of cases including Seddon Properties v Secretary of State for the Environment [1978] 42 P&CR 26 at 28 where Forbes J stated that:
" it is no part of the court's duty to subject that decision letter to the kind of scrutiny appropriate to the determination of the meaning of a contract or a statute."
MR KOLINSKY: My Lord, may I just raise the question of costs? On behalf of the Secretary of State, I would seek an order for costs. I do not know if my Lord -- there are summary schedules --
MR JUSTICE BEATSON: Yes, you both come out about the same.
MR KOLINSKY: My Lord, I think there are actually two schedules on behalf of the Treasury Solicitors.
MR JUSTICE BEATSON: Oh, I only looked at one of them.
MR KOLINSKY: Well, there is the main one, which is the one you have looked at. There is also the one that was attached to the judicial review acknowledgment of service for a much smaller sum.
MR JUSTICE BEATSON: Well, £1,689 and £9,556.
MR KOLINSKY: Exactly, and that is £11,245. And my Lord, I do not know what, if any --
MR JUSTICE BEATSON: £1,689 for -- you know, the same solicitors do acknowledgments of costs in immigration cases for much less money.
MR KOLINSKY: Well, I hesitate to say that immigration cases are less complicated than --
MR JUSTICE BEATSON: But here we have a case where what is in the acknowledgment of service tracks what is in the defence to the section 288 application. I mean, I do not want to be rude, but it is almost a cut and paste.
MR KOLINSKY: Parts of it are. I accept that there is a duplication in relation to issue 3, which is the one that is addressed in the acknowledgment of service. There is more extensive argument. Well, my Lord, the position is --
MR JUSTICE BEATSON: If you claim your costs, I had better hear what Mr Blackie says.
MR KOLINSKY: I will see what he says.
MR BLACKIE: My Lord, the similarity between the two costs schedules is actually skin deep. If my Lord turns to my costs schedule, I think the figure was £9,892.43.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: That actually includes VAT of £1,300.
MR JUSTICE BEATSON: Oh, so I should look at £8,514 -- there is a real trouble with sums, you know, they are not very good at it.
MR BLACKIE: When one does the sum, my Lord, and adds the judicial review costs schedule to the Treasury Solicitor's section 288 costs schedule, one reached then a figure which is some £3,000 higher than --
MR JUSTICE BEATSON: You mean the £9,000 is plus VAT?
MR BLACKIE: My Lord, the £9,556 is plus the £1,689. My costs schedule of £8,514, one is comparing that with the --
MR JUSTICE BEATSON: But what I am asking is -- I do not know, does the Treasury Solicitor not charge VAT?
MR KOLINSKY: That is right.
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: The position is that it is net of VAT, and there is no VAT.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: Yes.
MR JUSTICE BEATSON: So yes, but your point stands.
MR BLACKIE: Yes, my Lord.
MR JUSTICE BEATSON: Yes, all right.
MR BLACKIE: So it is slightly strange, my Lord, that (a) the issues on the judicial review are so similar to the issues on the section 288.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: But secondly, that the respondents' costs should exceed the claimant's costs, and I say this glibly: the claimant does all the work, of course. He has to decide what the proceedings are about and prepare the bundles, etc.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: The difference though, my Lord, is as to the work done on the documents sections; where the Treasury Solicitors work on documents; taking the two together, it is about £4,300 against £2,700 for the claimants.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: My Lord, this is a summary assessment, a rough --
MR JUSTICE BEATSON: And actually, I must say I am amazed -- well, I suppose the costs of going for a detailed one outweigh the benefits that you might get in precision. But it is summary, it is rough.
MR BLACKIE: It is rough and ready and --
MR JUSTICE BEATSON: And you have heard what I have said.
MR BLACKIE: I have said what I have said, my Lord. So I invite my Lord to consider that point. The second point, my Lord, is as to the discretion; and ordinarily, having lost, I would find it difficult to resist a costs application.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: But, my Lord, what the claimant has effectively lost on is a letter -- a decision letter on the main matter, which does not deal with the essential question that he thought should be dealt with, Annex E; my Lord has expressed reasons why that is acceptable. And the question of the procedural challenge, on the basis that my Lord has found that the letter which the local authority sent did not expressly indicate why the local authority were taking the point that -- my Lord has inferred the point. So twice the claimant suffers, in effect, because of things that were not said. My Lord, it is only a short point, and I --
MR JUSTICE BEATSON: Yes, I mean you are stronger on the first than the second. I mean, if it was really expecting, somebody should have said something on 1 December, you are not stopping the clock. He had not gone to his planning at that --
MR BLACKIE: He had not gone to his planning -- he is a farmer.
MR JUSTICE BEATSON: I know.
MR BLACKIE: Well, my Lord has the point.
MR JUSTICE BEATSON: I have the point.
MR BLACKIE: And I therefore invite my Lord to fix the sum in a rough and ready manner.
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: Well, my Lord, I readily accept my Lord has a wide range of discretion for the purpose of reassessment, and I will not spend a great deal of time arguing about it. May I just say --
MR JUSTICE BEATSON: Just as wide as the Inspector had.
MR KOLINSKY: Indeed, and my Lord is not writing an examination paper on costs taxation, either. May I just say that the reason why there is an extensive sum in relation to work on documents is that the Treasury Solicitors, my instructing solicitor sits behind me, have a practice of preparing a detailed minutes of advice, which obviously is a necessary stage for taking stock. Although it is said that, well, the claimant does all the work, the reality is there is a correct process of appraising where a claim comes cold to Treasury Solicitors, and it is necessary to get instructions from the Inspector. But effectively, the legal review of it is a review that is undertaken by the Treasury Solicitors. So, my Lord, I plainly accept there is discretion, but it is in my submission appropriate for there to be some in-house work starting from not knowing the case to get up to whether -- how it should be pursued and whether it should; and that saves costs in many cases, because where there are -- scope for concessions there are, and that is a part of the process that is reasonably assumed on behalf of those instructing me. So, my Lord, I appreciate my Lord can take your judgment, but I urge you not to reduce too much, because the work has all been necessary.
MR JUSTICE BEATSON: Yes. I am going to make one order in respect of both; I am not going to differentiate. If you want me to make an even further rough apportionment between the two, I will do it. Do you want me to make an apportionment --
MR KOLINSKY: No, for our part one order is absolutely fine.
MR JUSTICE BEATSON: And Mr Blackie -- yes. Well, the defendant is entitled to its costs. I take into account what is said on both sides in relation to work on documents. I am surprised at the figure that is presented in relation to the judicial review, which raised substantially the same issues, although not identical ones. I am therefore going to make a global award of £9,400 in respect of costs. Thank you.
MR BLACKIE: My Lord, there is the question then of whether there should be permission to appeal.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: And I must approach my Lord for that initially. My Lord, I start from the premise that the Orange case was a case which was looked at by the Court of Appeal, and as a result of an order giving permission to appeal made in the Court of Appeal itself; in other words, the learned judge might of course either wasn't asked or declined.
MR JUSTICE BEATSON: Yes. Well, probably the latter.
MR BLACKIE: Probably the latter. My Lord, in that the Court of Appeal plainly thought that this issue was an issue which was of significance, and worth the Court of Appeal's time because of the --
MR JUSTICE BEATSON: The nature of the right.
MR BLACKIE: Yes, the nature of the right, to go back to my first issue.
MR JUSTICE BEATSON: No, no, I just want to understand that.
MR BLACKIE: And the submission I would make is that as a result the Court of Appeal might well be interested in the other side of this equation, the question of whether the right during the consideration of the details, the siting, design and appearance of the building, is caught by the same strictures which the Court of Appeal addressed. So on that issue I would submit that there is a realistic prospect of the matter being successful in the Court of Appeal. It is also a matter of significant importance generally, because so far as I am aware -- I must also have got it from my learned friend Mr Kolinsky's submissions -- there is no authority already on the subject of Part 6, and the implication of Part 6.
MR JUSTICE BEATSON: Yes.
MR BLACKIE: As to the --
MR JUSTICE BEATSON: I am going to stop you just for a minute. I want to make sure: do we have a copy of the form I have to fill out? Good. I do not want to get to the end, give you a reason, then try and write it down and not be able to write it down. Yes?
MR BLACKIE: Yes. As to the other issues in the case, my Lord has found against me essentially on the ground that the Inspector had, in fact, considered the relevant factors. But I simply repeat --
MR JUSTICE BEATSON: Counsel is always in a difficult position, but that is the nature --
MR BLACKIE: It is the nature of the thing.
MR JUSTICE BEATSON: It is the nature of the thing, and you know it and I know it, and you just have to say I have got it wrong, and that is what you will say.
MR BLACKIE: My Lord, yes.
MR JUSTICE BEATSON: We are not going to agree, but I am going to have to decide whether some other judge might agree with you.
MR BLACKIE: Yes. I am obliged, my Lord. I make the point, but will not press it any further.
MR JUSTICE BEATSON: No.
MR BLACKIE: As to the procedural point, my Lord, I would submit that I am on stronger ground there, because the procedural point plainly is a judgment as to whether the statutory regulatory regime has been applied or whether it is capable of some form of an estoppel being found against the claimant in the circumstances of the case; and in my submission, that is a matter on which there is a realistic prospect of the claimant succeeding in the Court of Appeal. Those are my submissions, my Lord, and I invite you to grant permission.
MR JUSTICE BEATSON: Thank you. Yes, do you have anything to say?
MR KOLINSKY: Well, my Lord, in relation to the first point, I would respectfully say that the nature --
MR JUSTICE BEATSON: Well, the Court of Appeal has looked at that, and the regulatory provisions are the same.
MR KOLINSKY: Precisely.
MR JUSTICE BEATSON: So yes, all right, well I do not have --
MR KOLINSKY: I respectfully say that these --
MR JUSTICE BEATSON: But what about the other points?
MR KOLINSKY: Well, in my submission, the conceptual challenge is a challenge to the exercise of a discretionary judgment by the Inspector on what my Lord has fairly characterised as a technical point arising in the context where the matter was not raised. In my submission, your Lordship's judgment is a practical solution that of course is common sense, and that there is a realistic prospect the Court of Appeal will take different course.
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: So my Lord, may I make one final --
MR JUSTICE BEATSON: But you have skipped over the main one.
MR KOLINSKY: In relation to procedural -- no, sorry.
MR JUSTICE BEATSON: No, the point as to whether, absent -- why do you say that it is not arguable that I am wrong in concluding that not mentioning any of the Annex E --
MR KOLINSKY: Because the position is that one takes a practical approach, and the issues that the Inspector addressed were plainly the issues that Annex E required her to address, and that there is no disparity between the correct approach and the actual approach. My Lord, that is my submission. May I make one practical suggestion?
MR JUSTICE BEATSON: Yes.
MR KOLINSKY: Which is that whichever way my Lord goes on permission to appeal, and this is a point I hope that is fair to the claimant, if there is going to be an application it would probably be the case that the costs award would want to travel with the 288, in which case unless my Lord actually grants permission, there will be a different regime for appealing, because it would be -- so I would invite my Lord to grant --
MR JUSTICE BEATSON: You want me to grant permission in the judicial review, and dismiss the claim?
MR KOLINSKY: Grant permission, yes, exactly, so that they are capable of travelling --
MR JUSTICE BEATSON: I think that is actually logical, because as I have said, it all depended on the appeal and as nobody suggested that what Mr Blackie was unarguable, then that must be right.
MR KOLINSKY: Yes, and that way they can travel together without the need for procedural gymnastics.
MR JUSTICE BEATSON: Right, good. Well, before I deal with permission to appeal, let me just say this, so that my learned clerk will have to draw up the order note. In relation to the section 288 appeal, the appeal is dismissed, and in relation to the application for judicial review permission is granted and the application is dismissed. Costs in the sum of £9,400. That is all that the order has to have, other than what I am going to say about -- well, it does not have to say anything about permission to appeal, because I will deal with that separately.
Mr Blackie, I am actually somebody who gives permission, so I do think on the Orange one the Court of Appeal has decided it, and the statutory regime is the same. If they want to hear that again, it is really for them to say so. Laws LJ may want to come back to it. So I am going to say no on that.
On the merits, I have concluded that there is no discrepancy between what the Inspector did and Annex E; and in those circumstances, I do not myself think that even though it is an appeal and not a review, having regard to Sullivan J's formula of what a section 288 appeal is about, I do not consider that this has a realistic prospect of success.
With regard to the procedural point, I am going to give you permission on the procedural point, because although I do regard it as a technical point, one not raised, in view of the formulation of the letter and the regulations, it must be arguable. So I will just spend a minute writing it down and I will read it to you.
MR BLACKIE: May I make one further point then, my Lord, so that when my Lord gives the decision on that it can be recorded? And that is that the time period for approaching the Court of Appeal on these issues --
MR JUSTICE BEATSON: Would you like an extension of time?
MR BLACKIE: Yes, my Lord.
MR JUSTICE BEATSON: There is Easter next week, is there not? What would you like?
MR BLACKIE: What I would request, my Lord, is 21 days from the transcript being available. I think that although my Lord has given an extensive judgment.
MR JUSTICE BEATSON: Yes, well, 21 days from the transcript might take you into 2011. That is just a realistic comment. What do you say, Mr Kolinsky? It seems reasonable to --
MR KOLINSKY: I think it is entirely reasonable to have some form of an extension. Some judges are concerned about the uncertainty of when the transcript is available.
MR JUSTICE BEATSON: Well, I am concerned. I mean, it is possible for you to approach and ask for expedition.
MR BLACKIE: Yes.
MR JUSTICE BEATSON: But you would have to pay for it, I'm having monthly, for costs, I am not I am not going to do that. But what I think I am going to do is this: I am going to give a fixed time with liberty to apply if you cannot get the transcript, and I will reserve the liberty to apply to me. I will be in London, but -- does that make sense?
MR BLACKIE: Yes, my Lord, the reason for the request being particularly pertinent here is because we have a lay claimant, as it were --
MR JUSTICE BEATSON: Yes.
MR BLACKIE: -- and therefore -- it is very significant, the costs issue.
MR JUSTICE BEATSON: No, no, I know. Right.
(Pause)
MR JUSTICE BEATSON: What I have got down is that I have said that the application for permission to appeal is allowed in part, permission to appeal is granted on the question whether the 28-day period for the second defendant's decision had expired before the decision was made. (2) Permission to appeal on the nature of a permitted development prior to receipt of a response by the planning authority, and on whether the Inspector's decision failed to take account of a relevant consideration is refused, as the requirements of CPR 52 are not met. And I will just say for the benefit of my clerk, I will add to the order that time for lodging an appeal is extended for 28 days, and liberty to the claimant to apply for a further extension if a transcript has not been received. But then the onus is on you to try and get the transcript and sort that.
Thank you both.