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
		30 November 2010

1. DEPUTY JUDGE: This is an application under Section 288 of the Town & Country Planning Act 1990 to quash the decision of the Secretary of State's inspector dismissing an appeal under Section 195 of the Town & Country Planning Act 1990. The decision letter is dated 15 January 2010, and followed an inquiry held on 17 November 2009.
2. The appeal before the inspector arose out of a refusal of Southend Borough Council to grant a certificate of lawful use for development under Section 191 (1) of the Town & Country Planning Act 1990 for the use of 23 First Avenue, Westcliff-on-Sea as a single family dwellinghouse and the construction of a rear ancillary building for the enjoyment of the host building. It should be noted that the terms in which the certificate was sought appear to have been use as a single family dwelling. This appears from the description at the beginning of the inspector's decision letter and also in paragraph 16 of the decision letter. It was accepted by counsel at the hearing before this court that that was the correct description although the certificate itself unhelpfully does not set out the description.
3. The inspector appears to have treated this as being the same use as a single dwellinghouse which is what he identified as the main issue in paragraph 5 of his decision letter in which he wrote:

"In order for the appeal to succeed and for a lawful development certificate to be issued, it is for the appellants to demonstrate that on the balance of probabilities the appeal property had been in continuous use as a single dwellinghouse for a period of at least four years before the material date, that is the application date of 15 October 2008."

4. It is agreed between the parties that the inspector had correctly identified the main issue and therefore nothing turns on the slight difference in terminology used between the main issue and the description of the certificate applied for.
5. Section 191 of the Town & Planning Act 1990 provides a procedure whereby anybody wishing to ascertain whether the use of a building or land is lawful may apply for a certificate of lawfulness of existing use of development from the Local Planning Authority. If the Local Planning Authority refuses a certificate there is provision to appeal under Section 195 of the Act. This case does not turn on the scope of those provisions, and therefore I do not propose to set them out.
6. The claimant had sought a certificate covering two matters: the use of the house and the construction of a building to the rear. The inspector found as a preliminary matter that the ancillary building could not be lawful as there was an enforcement notice in force against that building, and consequently the appeal addressed solely the use of the main building as a single dwellinghouse. No issue is taken about this. Again it is agreed that that was the appropriate course to take.
7. The decision was challenged on two grounds, namely failure to give adequate and intelligible reasons and, secondly, on the findings of fact made by the inspector his decision was Wednesbury unreasonable. Much of the argument before me centred upon the inspector's use of the term "two separate flats" in paragraph 15 of his decision letter. The Secretary of State had suggested at the outset that this was a new ground of challenge. It appears to me that the points made about the use of this term were implicit in the reasons and Wednesbury challenge in any event. Mr Dagg, who appeared on behalf of the claimant, applied for permission to add as a ground failure to consider the definition of "flat" in the General Permitted Development Order (GPDO) for avoidance of any doubt in the matter. I granted permission at the start of the hearing.

8. As the role of the General Permitted Development Order 1995 was significant in the argument before me, it is important to appreciate the background to the appeal which is summarised within the preliminary matters section of the report. The ancillary building at the rear of the property had been the subject of enforcement action by the council. That was the subject of an unsuccessful appeal. At paragraph 3 of his decision letter this inspector records.

"3 ..... in her decision [that is the previous inspector] on the previous enforcement appeal, my colleague notes that at the heart of the case was the appellant's contention that the lawful use of No 23 is of a single dwellinghouse. It was not a matter for her determination in that appeal, and she further suggested that it might be formally established through the Section 191 process. If the appellant's contention were found to be correct, then it would be open to the council to reconsider the structure as an ancillary building that might benefit from permitted development rights, and to consider withdrawal of the previous enforcement notice."

8. It can be seen that the application that was made in this case to the council appears to have been prompted by that previous inspector's suggestion that the lawfulness of the use of the premises as a single dwellinghouse could be established through the Section 191 process. That in turn was important because of the contentions that had been made about whether there were permitted development rights.
9. I should, for the sake of completeness, also refer to paragraph 4 of the decision letter which reads:

"I note also that the council have recently issued a certificate of lawful proposed use under Section 192 (1) (a) of the Act to the effect that on 29 September 2009 the conversion of the appeal property to a single dwellinghouse would be lawful. It is again open to the council to withdraw the enforcement notice and to reconsider the structure as an ancillary building that might benefit from permitted development rights. However I note that it would be considered in the light of the October 2008 amendment to the GPDO."

10. Hence, it can be seen that the attempt to establish that the ancillary building was permitted development under the GPDO was at the heart of the application before the inspector, and the parties and the inspector must all have been aware that at issue was the question whether the property qualified as a dwellinghouse for the purposes of the GPDO.
11. The terms "dwellinghouse" and "single dwellinghouse" are not defined in the Town & Country Planning Act 1990. However Article 1 (2) of the GPDO 1995 provides a partial definition of the term "dwellinghouse" in that it provides that -

"A dwellinghouse does not include a building containing one or more flats or a flat contained within such a building."

The Article furthermore defines "flat" in these terms as -

" ..... a separate and self-contained set of premises constructed or adapted for use for the purposes of a dwelling and forming part of a building from some other part of which it is divided horizontally."

12. There have been a number of authorities on what amounts to a dwellinghouse, some of which have been cited to me. The authorities establish that whether a property amounts to a dwellinghouse is essentially one of fact and degree. One must consider both the property's physical attributes and its use. Again this was common ground between the parties. Therefore I do not need to spend time setting out authority on this but it can be seen, for example, in Gravesham Borough Council v Secretary of State for the Environment [1982] 47 P & CR, 142 and Grendon v First Secretary of State [2006] EWHC 1711 Admin, paragraphs 7, 13 and 21.
13. It is common ground that these are essentially matters for determination by the inspector, and the mere fact that others might have come to a different conclusion as to whether on the facts the property was a dwellinghouse does not of itself provide any ground for challenging the inspector's decision.
14. The inspector has between paragraphs 6 and 15 a section which he headed "Reasons". It is fair to say that paragraphs 6 to 12 appear essentially to be a recitation of the facts as found by the inspector. It is the following paragraphs that are the reasons. I read first the inspector's summary of the factual background at paragraph 6:

"Reasons

6 The appeal property is a substantial two-storey semi-detached property on the northern side of First Avenue built in the early 20th century. This part of First Avenue is predominantly developed with detached and semi-detached properties of similar scale to the appeal premises, and mainly in some form of residential use.

7 At the time of my visit there were extensive works in progress - the front entrance hall and front room had been formed into a single space, sanitary and culinary fixtures had been removed, and there had clearly been alterations to a number of partition walls.

8 It is apparent from descriptions given at the inquiry, that there had been a kitchen and a shower/WC on the ground floor in the back extension. Otherwise on the ground floor was a spacious entrance hall, three principal rooms in the main body of the building, and a further room in the back extension. On the first floor there had been another kitchen above the front entrance hall, and a bathroom towards the back of the house, as well as four principal rooms. The staircase rose out of the entrance hall, and there was no physical separation such as a door or partition between the two floors.

9 Mrs Hennessy had lived in the appeal property as a child from 1962, when it was bought by her parents. She moved out in 1976. She then lived there for another period from 1978-1882 [1982], before returning to live there with her husband from 1983 onwards. They had lived on the first floor while her parents lived mainly on the ground floor, but with the father using the front first floor room as his bedroom. Their first child was born in 1983.

10 Until about 1985 Mrs Hennessy's mother continued to cook for the entire family, but in 1985 - after twins had been born - the first floor room above the front entrance was converted to a second kitchen, and what had been the father's bedroom became used as a living room for Mrs Hennessy and her family.

11 from 1995 Mrs Hennessy undertook and was responsible for all the cooking and general housekeeping, as her parents were becoming increasingly frail. Her elder son continued to use the bedroom on the ground floor. By 2006 both parents had died, at which point ownership of the property passed to Mrs Hennessy, who sold it to the family of the current appellant. I understand that for the entire period of occupation by Mrs Hennessy's family and her parents there had been no separation or separate billing of utilities, and that costs for maintenance of the building were shared.

12 Evidence for the council suggested that the building had historically been used as two flats - but that was a considerable time before the period relevant to this appeal. There was also some evidence from nearby residents to the effect that the two floors had been occupied separately, and that the cost of works to the building had been charged separately to the ground floor and the first floor occupants."

15. In the light of that factual background, the inspector's reasoning was then essentially set out in paragraphs 13 to 15 where he wrote:

"13 Paragraph 2.81 of Circular 10/97 Enforcing Planning Control: Legislative Provisions and Procedural Requirements includes the advice that 'Where a single self-contained set of premises ..... are used as a dwelling, whether permanently or temporarily, by a single person or more than one person living together as, or like a single family, those premises can properly be regarded as being in use as a single dwellinghouse for the purposes of the Act'. In this case, although those living in the premises belonged to the same family, it appears to me that the older generation living on the ground floor were leading a quite separate existence from the younger family living on the first floor. Although there was no physical separation between the floors, it appears that the intention was for the two parts of the family to lead separate lives.

14 Although there was some use of ground floor facilities by members of the family living on the first floor - the elder son used a ground floor bedroom, and the shower room was used occasionally, as was the garden - this did not to my mind amount to living together as a single family. It was rather the use of these facilities as a matter of choice and convenience. While Mrs Hennessy was clearly providing a considerable degree of care for her parents - latterly only for her mother - this appears to have been very much on the basis that she acted as a visiting carer, rather than her parents living within the same dwelling. Overall, as a matter of fact and degree, there was little sense in which the building was occupied as a single household.

15 I consider that on the balance of probabilities the building was occupied as two separate flats from the time when Mrs Hennessy moved back and established her young family from 1985 onwards, until the property was sold in 2006. On the balance of probabilities it appears to me that the property had not been in use as a single dwellinghouse for a continuous period of four years prior to 15 October 2008."

16. The inspector then concluded in paragraph 16:

"16 For the reasons given above and having regard to all other matters raised, I am satisfied that the council's refusal to grant an LDC in respect of the use of the appeal property as a single family dwelling, at No 23 First Avenue, Westcliff-on-Sea SS0 8HS was well founded and that the appeal should not succeed. Accordingly I shall exercise the powers transferred to me under Section 195 (3) of the 1990 Act as amended."

17. The claimant criticises the inspector's reasoning on the basis, first, that he does not explain how his opinions on the nature of the occupation of the premises from 1985 to 2006 led to a conclusion that the building was occupied as two separate flats. Second, it is not clear how his views on the nature of the extended family and household organisation bear on this issue. Third, the definition of "flat" for the purposes of the GPDO 1995 is, as already stated -

"' ..... a separate and self-contained set of premises constructed or adapted for use for the purpose of a dwelling and forming part of a building from some other part of which it is divided horizontally.'

It is difficult to understand how the inspector can find that there was no physical separation and there was no clear separation of use between the floors but go on to conclude that 'the building was occupied as two separate flats.'"

Fourth, given his findings of fact as to the physical arrangement and use of No 23, the reasons given are inadequate and do not enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues.

18. The law with respect to what is required of reasons for a decision is very helpfully summarised in paragraphs 35 and 36 of the speech of Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2) [2004] UKHL 33, [2004] 1 WLR 1953:

"35 It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

19. I turn to the inspector's decision letter. If one looks first at paragraphs 13 and 14 the inspector concentrates on the use and occupation of the premises and places particular emphasis on his conclusion that the older and younger generations of the family were leading separate lives or, as he elsewhere describes it, "occupying as separate households".
20. The inspector starts his consideration by drawing attention to the guidance in paragraph 2.81 of Circular 10/97 that use of part of the property by persons living as or like a single family can result in that part of the property being in use as a single dwellinghouse. Applying that advice to the circumstances of the case, he concludes that although all the occupants of the premises belong to the same family the older generation living on the ground floor were leading a quite separate existence from the younger family living mainly on the first floor. He acknowledges a number of points that could be made against this conclusion such as the absence of physical separation between the floors, the use of one ground floor room by the eldest son and other use of ground floor facilities and the care provided by Mrs Hennessy to her parents, but concludes as a matter of fact and degree that the building was occupied as two separate households.
21. If the inspector concluded that because of the former occupation of the premises the premises were not used as a single dwellinghouse, I do not consider that his decision could have been challenged even if others might have taken a different view about it. The point that gives rise for concern is the inspector's conclusion in paragraph 15 - on the balance of probabilities - that the building was occupied as two separate flats.
22. It was accepted on behalf of the Secretary of State that, given the inspector's findings of fact, if he had gone on to find the property was in use as flats - as defined in Article 1 (2) of the GPDO - such a conclusion would be wrong and insupportable. This is because his findings were that there was no physical separation between the floors and the properties were not horizontally divided. On the basis of the inspector's findings therefore, it is accepted that it could not be said that there were separate self-contained sets of premises which were horizontally divided within the property which is of course the essence of the Article 1 (2) definition.
23. The question therefore arises as to whether in paragraph 15 the inspector was finding that there had been use as "flats" within the meaning of the term for the purposes of the GPDO or whether he was using the term "flat" or "flats" in some different sense. I was invited by the Secretary of State to conclude that he was using the term in some different sense. The points made by the Secretary of State essentially are that the GPDO definition was not relevant to the question the inspector had to determine, namely whether the property was used as a dwellinghouse. He was not asked to determine whether the property was used as flats within the meaning of the term as defined in the GPDO and was making no such finding. He was aware of the lack of physical separation and indeed conceded the point but instead concentrated on the use.
24. It is correct that the inspector was not being asked to determine whether the property was divided into flats for the purposes of the GPDO and that a property used for residential purposes may still be found not to be a dwellinghouse for reasons other than that it is used as flats in the GPDO meaning of the word.

26. It is important to remember that the background to this case was that the claimant was seeking to establish that she could rely upon the GPDO for the erection of the ancillary building. It turned upon whether the property was a dwellinghouse for GPDO purposes, and of course it could not be a dwellinghouse for GPDO purposes if it were used as flats as defined in the GPDO. The council - in paragraph 15 of the statement of case - had identified the key issue in determining the appeal as whether the building had been in use as a dwellinghouse and that it would, it said, show that it had not on the grounds that it had been converted into two separate and self-contained flats. Clearly that was a substantial issue that was contended to be argued before the inspector.

25. It is also of note that paragraph 2.81 of Circular 10/97, from which the inspector quoted, specifically draws attention to the exclusion of flats from the meaning of "dwellinghouse" for the purpose of the GPDO. It is important to set out in full the paragraph because the inspector only quoted from part of it. I make no criticism of him for that particular reason. The full paragraph reads as follows:

"2.81 It is important to distinguish the term 'use as a single dwellinghouse', in section 171B(2) from what might normally be regarded as being a single dwellinghouse. Experience has suggested that, on occasion, people may adapt, or use, unlikely or unusual buildings or structures as their home or dwellinghouse. However, the courts have held that, although there is no definition of what is a dwellinghouse, it is possible for the reasonable person to identify one when he sees it. If no reasonable person would look at a particular structure used as a dwellinghouse and identify it as such, it is justifiable to conclude, as a matter of fact, that it is not a dwellinghouse. In those circumstances, while its use as a dwellinghouse might be immune from enforcement action, it is not a dwellinghouse as such and, accordingly, would never enjoy the benefits of 'permitted development' rights under Article 3 of, and Part I of Schedule 2 to, the GPDO. The Department considers that a flat may be used s a single dwellinghouse in certain circumstances, but not acquire GPDO 'permitted development' rights as such, because Article 1 (1) of the GPDO specifically excludes them from the definition of a 'dwellinghouse' for GPDO purposes. For the purposes of the 1990 Act, where section 336 (1) defines 'building' as including any part of a building, the view is taken that a flat can be used as a single dwellinghouse, whether or not it would otherwise be regarded as being a single dwellinghouse as such, (see Doncaster MBC v Secretary of State for the Environment and Dunnill [1993] JPL 565). It is considered that the criteria for determining use as a single dwellinghouse include both the physical condition of the premises and the manner of the use. Where a single, self-contained set of premises comprises a unit of occupation, which can be regarded as a separate 'planning unit' from any other part of the building containing them; are designed or adapted for residential purposes, containing the normal facilities for cooking, eating and sleeping associated with use as a dwellinghouse; and are used as a dwelling, whether permanently or temporarily, by a single person or more than one person living together as, or like, a single family, those premises can properly be regarded as being in use as a single dwellinghouse for the purposes of the Act. This interpretation would exclude such uses as bed-sitting room accommodation, where the occupants share some communal facilities within the building, such as a bathroom or lavatory, and the 'planning unit' is likely to be the whole building, in use for the purposes of multiple residential occupation, rather than each individual unit of accommodation."

26. Hence it can be seen that the paragraph of the Circular which is quoted at the beginning of the inspector's reasoning specifically makes the point that a property containing flats is excluded from the meaning of the word "dwellinghouse" for the purposes of the GPDO. It is important to remember that "flat" itself is defined in the GPDO although this definition is not referred to in the relevant paragraph of the Circular. The inspector dose not draw attention to the specific definition of the word "flat" for GPDO purposes so one is left with uncertainty as to whether the inspector had recalled that there was a particular definition.
27. Given those background facts, the use of the word "flats" in paragraph 15 of the inspector's decision letter inevitably raises concerns that the word is being used by him in the GPDO sense of the word. Unfortunately the inspector has not told us that he is not using the word in that sense or that he is using it in some different sense. I accept that the definition of the word "flat" provided in Article 1 (2) of the GPDO is not the only possible definition of the word and that the term could be used in a different sense. Indeed that seems to have been accepted by the claimant. I also sympathise with the inspector as there is no simple word to describe the rather unusual living arrangements found to have taken place at this property. However the question remains - given that the inspector has not told us that he is not using the term in the sense defined in the GPDO - whether a substantial doubt remains as to how the inspector was using the term.
28. It is fair to note that the reasoning in paragraphs 13 and 14 of the decision letter appears to be leading up to the conclusion that despite the lack of physical separation and the fact that Mrs Hennessy provided a substantial degree of care for her parents, the inspector's conclusion that they were still living as two separate households was, in his view, the determining factor. However the finding that the inspector then goes on to make in paragraph 15 is that -

" ..... on the balance of probabilities the building was occupied as two separate flats ..... "

29. For the reasons I have set out I am satisfied that the reasons given there by the inspector leave one in substantial doubt as to whether he is there using the term s defined in the GPDO or in some other way. As it is accepted that the inspector would have erred had he been finding that the property was used as flats in the GPDO sense of the word, it must follow that one is left with the form of substantial doubt referred to in paragraph 36 of Porter.
30. It follows that on those grounds the application succeeds.
31. I would emphasise that it was acknowledged by the Secretary of State that had the inspector been finding that the use of the property came within "flats" as defined in Article 1 (2) that would have been an incorrect and insupportable finding. Had that been the finding of the inspector, it would appear that the Wednesbury challenge would probably have succeeded. I would emphasise that I do not find that when this matter is redetermined, if the facts remain the same, that it could not be concluded that the property was not in use as a single dwellinghouse.
32. MR DAGG: I would ask for the claimant's costs in the usual way.
33. DEPUTY JUDGE: Yes. I do not think I have seen a schedule. I have seen the Treasury Solicitor's but I do not think I have seen yours.
34. MR DAGG: My apologies for that.
35. DEPUTY JUDGE: I think I have probably lost it.
36. MR DAGG: You should have one. So far as I was concerned, I understood you had it and the court had it. Certainly the Secretary of State has our schedule. It is to be amended.
37. DEPUTY JUDGE: Is there any issue about the schedule?
38. MISS BLACKMORE: I have a copy of it. I have some submissions.
39. MR DAGG: I pass up my copy. We have deducted a sum from that which was originally claimed because my instructing solicitor was not present today so obviously there cannot be any costs arising from his attendance. So eight hours that was originally on the schedule have been taken off, plus the VAT. Rather untidily I have amended to deduct £1,200 plus VAT from the figure originally claimed. The figure then is £8,398.82. That is the starting point for any comments which the Secretary of State - - - - -
40. DEPUTY JUDGE: £8,398.82.
41. MR DAGG: £8,398.82. I can pass my copy up. (Same handed)
42. MISS BLACKMORE: I have some points on the statement of costs handed up. Look at "Further Work not covered above" where one sees that approximately six-and-a-half hours is claimed for attending court to issue proceedings limited to letter, telephone calls and e.mails.
43. DEPUTY JUDGE: I thought it was four-and-half hours.
44. MISS BLACKMORE: If one looks at the amounts one sees both 300 and 787.50.
45. DEPUTY JUDGE: I am looking in the wrong place.
46. MISS BLACKMORE: It is not entirely clear. Reading across. I saw four-and-a half. One then sees the 150 and 787.50.
47. DEPUTY JUDGE: Are those different items though because there is written against 150, attending court; and then 787, letters telephone calls and e.mails?
48. MISS BLACKMORE: It says "Further Work not covered above" so it is not attendances on the claimants and it is not attendances on others.
49. DEPUTY JUDGE: Mr Dagg has a disadvantage that I have his schedule. It seems to me that it may be that they are two separate items. Perhaps I had better hand the schedule back to Mr Dagg so that he can tell us whether he is saying they are or not and whether that then affects what you are saying.
50. MISS BLACKMORE: The essential point is that proceedings could have been issued by post. It is not recoverable if they did come down to court to issue, to attend proceedings. And similarly further over one sees the costs of travel to court and photocopying at court.
51. MR DAGG: My instructing solicitor is not here. I cannot gainsay what has been said now on behalf of the Secretary of State. It is perfectly fair to say - - - - -
52. DEPUTY JUDGE: There are two different points. One is that there should not be recovery for attending court on those occasions because there was no need. There is the second question which I have raised - which is very unclear the way the schedule has been drawn up - as to whether all of those costs relate to attendance on court. Is that something that has been conceded by you, Mr Dagg, that they do? I appreciate you may be in some difficulty because of your absence of instructions.
53. MR DAGG: I am. I cannot ask for instructions.
54. DEPUTY JUDGE: I think that particular item is conceded effectively.
55. MR DAGG: I think I will just have to concede it.
56. MISS BLACKMORE: There is a small related point on the page over - - - - -
57. DEPUTY JUDGE: Before we go to that. That is a total of £1,087.50 to come off, is it not?
58. MISS BLACKMORE: Indeed. It has been conceded in relation to the attendance at hearing that those sums are also coming off.
59. MR DAGG: Yes.
60. DEPUTY JUDGE: I thought that had already effectively been done.
61. MISS BLACKMORE: Indeed, yes.
62. MR DAGG: That has been done.
63. MISS BLACKMORE: A small point as to the point just made that the costs of travelling to court to issue, travelling to court for hearing and the photocopying charges of the RCJ also are not recoverable. The photocopying costs are due to be included in the solicitors' hourly rate.
64. DEPUTY JUDGE: That is another £45.88, you say.
65. MISS BLACKMORE: Indeed. In relation to the fees claimed by my friend, you will be aware that this matter was at most a half-day hearing. It has not involved extensive citation of authority. Authorities cited are all well known in the planning world. The decision letter is very short in this case. It is a very slim bundle of documents. I would invite you summarily to assess those costs in all the circumstances.
66. MR DAGG: The only item I can comment upon properly is I have to concede as to what is in the box and some other expenses. I am not going to argue that. It is always rather invidious for counsel to defend his own preparatory work and fee for hearing, but this was a matter of considerable importance to my client. I can say that these figures are based upon my usual hourly rate. I am thirty years call. My usual hourly rate is £200 per hour and that is the basis on which this is put.
67. DEPUTY JUDGE: That is suggesting there was twelve-and-a-half hours on the documents.
68. MR DAGG: Yes. In fact I put together the totality. What you see so far as the bundle of material is concerned, authorities and so on, that is entirely my work. That is the explanation.
69. DEPUTY JUDGE: The compilation of the bundle?
70. MR DAGG: Yes. In fact I did.
71. DEPUTY JUDGE: Yes. I can understand how counsel end up doing that sometimes but it may be argued on the other side that it is not the most cost effective way of doing it.
72. MR DAGG: It might be.
73. MISS BLACKMORE: It may be, but it also gives rise to other work carried out by the solicitor. My Lord will be aware of the usual rates in the Administrative Court.
74. MR DAGG: Yes. It is quite clear on the face of the rules. Your Lordship has experience of these matters and you can as you see fit tax down. I have given you the explanation.
75. DEPUTY JUDGE: I do not think there is any suggestion, Mr Dagg,

that you are improperly claiming anything so I would not worry about that. No alternative figure has been put. I think I am just asked to pluck a figure out of the air.

76. MISS BLACKMORE: The Administrative Court guidance with a half-day hearing for a man of Mr Dagg's experience - £1,700 for a half-day hearing.
77. MR DAGG: Yes. We are at quarter-past three in the afternoon.
78. DEPUTY JUDGE: I have been asked summarily to assess the costs. The schedule presented to me initially claimed the figure of £9,808.82. It is accepted that £1,200 of that should be deducted immediately because it proceeded on the basis of attendance at court by the claimant's instructing solicitor and he has not attended. It is also conceded that further sums of £1,087.50 and £45.88, which related to issuing papers at court, should be deducted from the claim.
79. I am left to take a view as to the appropriate figure to provide for counsel's fees. Doing the best I can on the information I have, I am satisfied that the appropriate figure in this case would have been one of £4,000 rather than £5,000. Therefore a further £1,000 needs to come off. I have not done the maths. I assume you can all do that between you. The £1,200 Mr Dagg had already removed, the £1,087.50, £45.88 and the £1,000 need to come off.
80. MR DAGG: We will do the sums.
81. DEPUTY JUDGE: You are happy with that.
82. MISS BLACKMORE: I did ask my friend whether his client was VAT registered.
83. MR DAGG: No. She is not.