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
		27 January 2011

1. THE DEPUTY HIGH COURT JUDGE: This is an application made by the claimant, Mr Simon Green, under section 288 of the Town and Country Planning Act 1990 (the "1990 Act"), against the decision of an Inspector, Mr Robert Marshall, appointed by the Secretary of State, to determine the claimant's three appeals against planning decisions of Chichester District Council ("the Council") relating to the claimant's property at Stubcroft Farm, Stubcroft Lane, East Wittering, Chichester ("the site"). The decision was issued by the Inspector by letter of 27 November 2009.
2. The Council has played no active part in the present proceedings. Mr Green appeared in person and the Secretary of State was represented by Mr Banner of counsel.

The Factual Background

3. I deal now with the factual background. The Inspector held an inquiry into Mr Green's appeal, which took place on 22 October 2009. He made his site inspection on 23 October 2009. The site is in the countryside and has mixed use for the purposes of agriculture and seasonal tented camping. As the Inspector observed in 2007 planning permission was granted for the stationing of five caravans on the camp site conditional on their being there for holiday accommodation only.
4. The developments, which were the subject of the appeal, related first to tourist accommodation and secondly to accommodation intended to serve the camping and caravanning area with toilet and shower facilities and retail and office accommodation.
5. Mr Green had submitted an application to the Council on 3 December 2008 seeking planning permission for the first development, which was described as "Retention and alteration of building for use as 1 no tourist unit".
6. On 23 January 2009, Mr Green submitted a second application to the Council seeking planning permission for development described as "adaptation and conversion of existing building to provide shower block and camping sales area".
7. In addition to the two planning applications, on 8 December 2009 Mr Green also submitted a "Prior Notification of Development" in respect of development described as "a barn and workshop", pursuant to Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (as amended). (the "General Permitted Development Order").
8. In his skeleton argument Mr Banner, for the first defendant, helpfully sets out the relevant provisions of the General Permitted Development Order, which grants 'automatic' planning permission for the classes of development that it covers, subject to various conditions and restrictions. Class A of Part 6 of Schedule 2 to the General Permitted Development Order permits, subject to certain exceptions, the following development:

"The carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of—

(a) works for the erection, extension or alteration of a building; or

(b) any excavation or engineering operations,

which are reasonably necessary for the purposes of agriculture within that unit."

This is subject to the condition in paragraph A2 of Class A that:

"(2) Subject to paragraph (3), development consisting of—

(a) the erection, extension or alteration of a building;

...

is permitted by Class A subject to the following conditions—

(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 the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be;

(ii)the application shall be accompanied by a written description of the proposed development and of the materials to be used and a plan indicating the site together with any fee required to be paid;

(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 give 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;

(iv)(aa)where the local planning authority give the applicant notice that such prior approval is required the applicant shall display a site notice by site display on or near the land on which the proposed development is to be carried out, leaving the notice in position for not less than 21 days in the period of 28 days from the date on which the local planning authority gave the notice to the applicant;

(bb)where the site notice is, without any fault or intention of the applicant, removed, obscured or defaced before the period of 21 days referred to in sub-paragraph (aa) has elapsed, he shall be treated as having complied with the requirements of that sub-paragraph if he has taken reasonable steps for protection of the notice and, if need be, its replacement;

(v)the development shall, except to the extent that the local planning authority otherwise agree in writing, be carried out—

(aa)where prior approval is required, in accordance with the details approved;

(bb)where prior approval is not required, in accordance with the details submitted with the application; and

(vi)the development shall be carried out—.

(aa)where approval has been given by the local planning authority, within a period of five years from the date on which approval was given;

(bb)in any other case, within a period of five years from the date on which the local planning authority were given the information referred to in sub-paragraph (d)(ii)."

9. The Council refused the first planning application by notice dated 17 February 2009 and refused the second planning application by notice dated 18 March 2009. In refusing the applications the Council applied the test under section 38(6) of the Planning and Compulsory Purchase Act 2004, which provides that an application for planning permission must be determined in accordance with the Development Plan, unless material considerations indicate otherwise. In this case the development plan for the area included the Chichester Local Plan-First Review 1999.
10. The Council resolve that the development flat which was the subject of the "Prior Notice of Development" notification, was not permitted development under Part 6 and communicated its decision to that effect to the claimant by notice, dated 2 January 2009, in the following terms:

"The proposed building is not considered to be reasonably necessary for agricultural purposes within the holding by reason of its size, design, domestic appearance and excessive workshop area and therefore, by virtue of Part 6 of Schedule 2 to the Town and Country Planning [General Permitted Development] Order 1995, does not constitute 'permitted development'. Therefore, the proposed building requires planning permission."

11. The appeal to the Secretary of State was in respect of all three matters in purported reliance on section 78 of the 1990 Act.

The Inspector's Decision

12. The Inspector used his own terminology, which I shall adopt, to describe the three issues as follows: i) Appeal A was the appeal against the second refusal; ii) Appeal B was the appeal against the first refusal; iii) Appeal C was the appeal against the Council's response to the "Prior Notification of Development" notification.
13. The Inspector dismissed appeals A and B and held that appeal C was not valid. In summary the Inspector determined in dismissing appeals A and B that the proposed development would harm and detract from the character and appearance of the surrounding area, and as such would be contrary to relevant planning policies.
14. The Inspector, in dealing with appeal C, decided that it was invalid since it did not involve a refusal of planning permission, or the refusal of permission for details submitted for approval under a development order. As such there was no right of appeal.

The Issues in the decision

15. 15 The claimant has challenged the Inspector's decision and sets out his grounds in his claim form, which relate to three main issues. First, the Inspector did not use the final set of documents provided to him by the claimant; secondly, the Inspector failed to make a decision on appeal C; and thirdly, the Inspector did not take into account, or attach sufficient weight to, relevant planning policies and/or his decision was insufficiently reasoned.
16. This is not a case in which novel or controversial propositions of law arise. It is well established that a claim under section 228 lies not on the planning merits, but on grounds of law only: grounds upon which a claim for judicial review may be brought. This has been made clear by the courts on many occasions including, for example, by Sullivan J, as he then was, in the case of R (Newsmith Stainless Ltd) v the Secretary of State [2001] EWHC 74 (Admin) at paragraph 6 and paragraph 7 to paragraph 8, where he, says:

"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."

At paragraph 7 he goes on to say:

"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. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable".

Then at paragraph 8:

"Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task."

17. The following further propositions are relevant to this case: first, the weight to be given to any particular material consideration and the making of a planning judgment is a matter for the decision-maker, not the court: see, for example, Tesco Stores Ltd v the Secretary of State [1995] 1 WLR 759 where Lord Hoffmann said at page 780, under the heading "Materiality and planning merits":

"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

18. Second, the reasons given for planning decisions must be capable of being understood by the reader, but should be treated with a degree of flexibility: see, in example South Buckinghamshire District Council and Another v Porter (No 2) [2004] 1 WLR 1953, and the words of Lord Brown at paragraph 36 in which he said:

"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. The 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. Third, the position with regard to estoppel and legitimate expectation. With regard to estoppel, it is well-established that it is inappropriate to introduce private law concepts of estoppel in the public law field of planning. This was made clear by Lord Hoffmann in the decision of

R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348 in what he said at paragraph 33:

"In any case, I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment [1981] AC 578, 616, estoppel binds individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed. But these concepts of private law should not be extended into 'the public law of planning control, which binds everyone'."

20. As to legitimate expectation, it is clear law that this concept is of very limited assistance in planning cases. It was recently discussed in a judgment of Lindblom J : Flattery and Japanese Parts Centre Limited v (1) Secretary of State for Communities and Local Government (2) Nottinghamshire County Council [2010] EWHC 2868 (Admin) in which Lindblom J said this at paragraph 23:

"The law relating to the concepts of legitimate expectation and estoppel in the sphere of land use planning is clear and does not need to be set out at length.

24. As to legitimate expectation, the Court of Appeal has, more than once, made its position completely clear. In Rastrum Limited v The Secretary of State... Sullivan LJ (with whose judgment Ward and Etherton LJJ agreed) referred (in paragraph 31 of his judgment) to the Court of Appeal's decision in Henry Boot Homes Limited v Bassetlaw District Council [2003] 1 P&CR 23, as demonstrating the principle that 'there is only a very limited scope for any expectation that a waiver of the statutory requirements will be legitimate in the context of town and country planning.'"

In that case, as Sullivan LJ recalled, Keene LJ had endorsed and emphasised the proposition that:

"It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and Local Planning Authorities."

Lindblom J went on at paragraph 25 of Flattery to deal with the issue of estoppel, referring again to the Reprotech decision, and finally, in the context of his judgment at paragraph 34, he said the following:

"Informal expressions of view as to the lawfulness of a particular use of land, such as are provided from time to time by officers of local planning authorities when requested to do so, do not represent a definitive and conclusive assessment of the status of such use. Only a formal decision made by the local planning authority in the proper exercise of the statutory powers it has available to it will have that effect."

The statutory framework

21. Under section 57 of the 1990 Act planning permission is required for "development", which in turn is defined in section 55 as:

"the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land".

22. Where planning permission is required an application must be made to the local planning authority under section 62 of the 1990 Act. The determination by the local planning authority is governed by section 70 of the 1990 Act and section 38(6) of the 2004 Act. Where, in accordance with those provisions, an application is refused by the local planning authority, there is a right of appeal to the Secretary of State under section 78, which provides as follows:

"(1)Where a local planning authority—

(a)refuse an application for planning permission or grant it subject to conditions;

(b)refuse an application for any consent, agreement or approval of that authority required by a condition imposed on a grant of planning permission or grant it subject to conditions; or

(c)refuse an application for any approval of that authority required under a development order [F1or a local development order] or grant it subject to conditions,

the applicant may by notice appeal to the Secretary of State."

23. As I have already explained, the effect of the General Permitted Development Order 1995 is, subject to the restrictions and conditions it contains, to grant permission for the various classes of development that it covers. Such "permitted development" does not require a separate application for planning permission.
24. A person in this situation, who wishes to establish that the development in question is permitted development and as such does not require planning permission, has three possible available avenues. First, if the development has not yet commenced he can apply for a "certificate of lawfulness" of proposed use or development under section 1925 of the 1990 Act. The local planning authority is required to determine whether the proposed development would be lawful without the separate grant of planning permission, and there is a right of appeal to the Secretary of State under section 195. The certificate of lawfulness is conclusive of the legality of the proposed development.
25. Secondly, if the development has commenced he can apply for a "certificate of lawfulness" of existing use or development "under section 191 of the 1990 Act". The procedure and effect is identical to that under section 192: a retrospective approach.
26. The third avenue in terms is to do nothing. He could build out the development and wait to see if the local planning authority exercises its planning enforcement powers under Part 7 of the 1990 Act. Those powers can only be exercised against a "breach of planning control" as defined in section 171A. A development that is permitted under the General Permitted Development Order is not a breach of planning control and therefore enforcement action could successfully be challenged.

The claimant's issues:

Issue 1: the Inspector did not use the final set of documents

27. I have had regard to all that Mr Green has said to me about this in both his skeleton argument and his oral submissions. I have read the witness statement of the Inspector, Robert Marshall, dated 12 January 2011, in which he deals with this issue. It is clear from his statement, which is not challenged, that he had made efforts at the hearing to ensure that he had all of the correct documentation. He was provided with Mr Green's three indexes. At paragraph 9 of his statement he says this:

"It became apparent at the Hearing that I did not have the full list of documents submitted by the Claimant to the Planning Inspectorate. My recollection of what occurred is dimmed over time, but so far as I can recall the Claimant or his agent submitted the Appellant's part one Index, the Appellant's part two Index and the Appellant's part three Index (listed as documents 2, 3 and 4 in my decision letter) to ensure that I had all the documentation that I should have received. I would not have listed these documents in my decision letter unless they had been submitted at the hearing. Further, the copies of these indexes that I have retained are not initialled which suggests that the documents were submitted at the hearing because I always initial documents that I receive before the hearing."

28. At paragraph 10 of his statement the Inspector explains why it was that he had assumed that the case statement provided by Mr Green, on 2 June 2009, was a duplicate of the version which had already been provided to him, saying this:

"I received the Claimant's Statement of Case that was submitted by his agent on 2 June 2009... I received another Statement of Case with the appeal file..., although this statement was not attached to the file, which was a loose bundle of papers with an elastic band around it. On the front page was a handwritten note, I assume from PINS, which said 'Spare copy (by e-mail) for Inspector'. The documents, stated at paragraph 2 of section 1 of the Claimant's Supporting Statement, entitled Appendix 5 - Business Development Plan, Appendix 6 - CDC Agri-Building Guidance Leaflet and Appendix 7 - Workshop Index... were also only contained in the loose bundle of papers. Owing to the handwritten note, I was of the opinion that this Case Statement, including the aforementioned documents contained in the loose bundle, was a spare copy of the statement already submitted by the Claimant's agent and so did not read it. In addition, there was nothing on the Case Statement I had received on 2 June 2009 to indicate that it was only a 'skeleton argument'."

29. It is apparent that the key difference related to the merits of appeal C, which the Inspector had ruled invalid. In addition, said the Inspector, Mr Green does not demonstrate any material prejudice at paragraph 11. He says this:

"I accept that this was an oversight, albeit unintentional, on my part but I have subsequently had the opportunity to peruse the 'Final Revision' Case Statement and additional documents and do not consider that they add anything material to the documents and arguments before me at the Hearing. In particular, appendices 5,6 and 7 appear to relate to the planning merits of Appeal C; which I decided was invalid as there was no right of appeal. Furthermore, the Claimant does not assert how, specifically, he has been prejudiced by this oversight."

30. I am satisfied that there was no procedural unfairness, nor was there any failure to take into account material considerations. As I have indicated, the key differences were in relation to appeal C. In his submissions to me Mr Green made it clear that the business plan was the most significant of the documents which the Inspector did not have available to him at the hearing.
31. In my judgment, in respect of both appeals A and B, the business plan was not relevant. Mr Green had conceded that the proposals would not be farm diversification schemes in accordance with Planning Policy Statement 7. That this is the case is clear from paragraph 42 of the decision in which the Inspector said:

"The appellant's case initially indicated, on both appeals, that the proposed schemes should receive some support as a farm diversification scheme. However, no substantial evidence was provided in support of this and the appellant conceded that the proposals would not be farm diversification schemes in accordance with PPS7 guidance."

32. The Inspector, who had made a site visit, the crucial importance of which was emphasised by Sullivan J, as he then was, in Newsmith, had in appeal A identified substantial harm to the area as a consequence of the development. See, for example, paragraph 22 of the Inspector's decision:

"The appeal building looks like a small dwelling. The proposed development involves some small changes to its appearance to accommodate the proposed use. It is also proposed to replace the gable ends with a semi-hipped roof design and to reduce the height of the chimney. However, these are small-scale changes and would not greatly alter the external appearance of the building."

and at paragraph 23:

"I accept that the building is an attractive design being constructed of traditional materials to match those on the appellant's house. However, given that even as amended it would still look like a dwelling it would have an urbanising effect on the landscape. Given the character and appearance of the area referred to above this would be harmful."

In paragraph 24 the inspector said this:

"In arriving at this view I have noticed the existence of trees and hedges in the vicinity of the building. However, notwithstanding these features, the appeal building is clearly seen from the footpath to the south and from parts of the private track that leads to the campsite. As such its impact on the character and appearance of the area is substantial notwithstanding the absence of more long distance views."

At paragraph 27:

"I conclude that the proposed development would not comply with local Policies and national Guidance on the location of such development in that it would detract from the character and appearance of the surrounding area. There would be conflict with Local Plan Policy TR3, South East Plan Policy TRS5 and PPS7."

33. In appeal B there were similar findings, for example, at paragraph 36:

"There is in any event, an overriding additional objection to the proposed development. This is in terms of its effect on the character and appearance of the area..."

and later in the same paragraph:

"Thus all the considerations I have raised with regard to the effect of the proposed development on the character and appearance of the area in appeal A apply with equal, if not slightly greater, force on this appeal."

Paragraph 37:

"I accept from statements made in the Local Development Framework Submission Core Strategy (SCS) that there is demand of tourist accommodation in this part of the District. However, that does not justify a new unit of accommodation in an isolated rural area and one that would cause the harm I have outlined. Nothing that I have been referred to in the SCS suggests otherwise and in any event I can currently attach only limited weight to the document."

and at paragraph 38:

"I conclude that the proposed development would not comply with local Policies and national Guidance on the location of such development and that it would harm the character and appearance of the surrounding area. It would be contrary to Local Plan Policy T3 and to PPS7 in so far that it seeks sustainable patterns of development and the protection of the character and appearance of the countryside."

34. Against the background of those clear and consistent findings, it cannot be said that the absence of the business case made any difference. Matters of financial viability would have been irrelevant given the clear findings in respect of substantial harm to the area. In any event, as is apparent from paragraph 11 of Mr Marshall's statement he did subsequently peruse the additional documents and concluded that they did not add anything material to that which was available to the hearing. Mr Green has failed to demonstrate any material prejudice.

Issue 2: the Inspector's conclusion that appeal C was invalid

35. In my judgment it is clear that Mr Green did not have a right of appeal under section 78 of the 1990 Act. Mr Green, in submitting his prior notice of development notification, was in terms making an application to the Council for determination under paragraph A2(2)(a)(i) of Part 6, Class A of the General Permitted Development Order:

"...as to whether the prior approval of the authority will be required to the siting, design and external appearance of the building, the siting and means of construction of the private way, the siting of the excavation or deposit or the siting and appearance of the tank, as the case may be;..."

36. The Council's decision communicated on 2 January 2009 was to the effect that Part 6, Class A did not apply and that planning permission was required.
37. As I have already observed at paragraph 23 of this judgment, the claimant had three options available to him. The Inspector was correct to conclude, as he did, at paragraph 4 of his decision in the following terms:

"There was no refusal of planning permission. Nor, notwithstanding the appellant's observations to the contrary, was there a refusal of permission of details submitted for approval under a development order. As such there was no right of appeal and the appeal is invalid."

Issue 3: failure to take into account or give sufficient weight to relevant planning policies and/or insufficient reasoning

38. A careful reading of the Inspector's decision letter makes it clear that the Inspector referred to, and considered, all of the planning policies which, in his judgment, had a bearing on the case see, for example, at paragraph 19 of the decision:

"Policy T3 of the Chichester District Local Plan-First Review (1999) says that within the rural area the provision of tourist accommodation and facilities will only be permitted provided that: (1) they involve the redevelopment of existing sites for existing uses; the reuse of existing buildings or extension of existing facilities or (2) that they are small in scale and do not include the provision of new major built facilities such as theme parks or holiday centres. The Policy goes on to say that proposals should not cause adverse effect on the character and appearance of the surrounding landscape."

39. In paragraph 20 there is specific reference to Planning Policy Statement 7 and sustainable development and again in paragraph 33. In paragraph 29 the Inspector said this:

"The Council says that the shop element of the proposed development would detract from the vitality and viability of retail areas in local settlements. This it says would be contrary to guidance in Planning Policy Statement 6: Planning for Town Centres (PPS6) which seeks to focus new shopping development in existing centres."

In paragraph 32 the Inspector made reference to the Local Plan Policy T3 and at paragraph 38 he said this:

"I conclude that proposal development would not comply with local Policies and national Guidance on the location of such development and that it would harm the character and appearance of the surrounding area. It would be contrary to Local Plan Policy T3 and to PPS7 in so far that it seeks sustainable patterns of development and the protection of the character and appearance of the countryside."

40. Having regard to what was said in Tesco and Newsmith, referred to earlier in this judgment, it cannot be said that the weight to be accorded to them was irrational. The reasoning throughout, as is clear from the extracts of the decision to which I referred in dealing with Issues 1 and 2, and specifically in relation to the principal important controversial issues, was clear and consistent with the expectations set out by Lord Brown in South Bucks, referred to earlier in this judgment.

Estoppel and Legitimate Expectation

41. I deal finally with the issue raised by Mr Green in relation to estoppel and legitimate expectation. He advanced the argument that the Inspector should have had regard to this against the background of correspondence and meetings which had taken place in the past between Mr Green and/or his agent and officials from the Council. Mr Green asserted that against this background he had a legitimate expectation that planning permission would be confirmed, and that the Inspector would take that into account on the appeal. That the Inspector did have regard to this is apparent from a reading of his reasons. At paragraph 43 he said this:

"The appellant has undertaken much work on his land to create an ecologically friendly and attractive environment. However, this does not justify the proposed schemes. Nor do allegations of inconsistencies in the approach of Council Officers carry great weight. I have considered the proposals on the totality of the evidence before me."

42. I have already referred to the judgments in Reprotech and Flattery. In my judgment the concepts of legitimate expectation and estoppel do not provide any assistance to Mr Green in this case.

Conclusion

43. I conclude that none of Mr Green's challenges to the Inspector's decision in this case can succeed. I have had regard to all of the points which Mr Green has advanced, not only before me today but in the claim form itself, the case statement, the skeleton argument and the documents submitted in his bundle. I remind myself once more of what was said by Sullivan J, as he then was, in Newsmith, referred to at paragraph 16 of this judgment:

"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."

The application is therefore dismissed.

44. MR BANNER: I am grateful for that judgment. I do have an application for costs arising out of your Lordship's decision. A statement of costs has been provided to Mr Green. Does your Lordship have a copy?
45. THE DEPUTY HIGH COURT JUDGE: I have not seen a statement of costs.
46. MR BANNER: I have a spare copy which I can hand up. Perhaps, first of all, I can deal with the principle of the costs? I simply say that costs follow the event and therefore, subject to what Mr Green says, I should, in principle, have my costs. I do not know whether your Lordship would like me to deal with the figure as well now, or consider the principle first?
47. THE DEPUTY HIGH COURT JUDGE: Mr Green, in cases in these courts costs follow the event. It is the usual order that the unsuccessful party will pay the other party's costs. Where cases take a day or less it is usual to assess the costs whilst the parties are here.
48. THE CLAIMANT: I have had a brief look at the costs. They do seem rather excessive to me, bearing in mind the fairly limited skeleton argument put forward, and the work that appears to have been done.
49. THE DEPUTY HIGH COURT JUDGE: Is this the London hourly rate?
50. MR BANNER: Yes, they are the Treasury Solicitor's hourly rates, which are renowned for being particularly reasonable.
51. THE DEPUTY HIGH COURT JUDGE: The rates seem to be the usual rates that would be charged by the Treasury Solicitor
52. THE CLAIMANT: Is there a way we can get them taxed or checked?
53. THE DEPUTY HIGH COURT JUDGE: As I have indicated, the usual course is to deal with the costs on the day in these cases. This is what I am anxious to do. Do these hours claimed include all the correspondence and telephone calls?
54. MR BANNER: They do. Of course, given that in this particular case it was necessary to consider it necessary to adduce evidence in the form of the Inspector's witness statement that necessarily took time. My own fee is relatively small, largely because of a consequence of the preparatory work done by those behind me. In my submission, bearing in mind it was a litigant in person - I mean no criticism of him -- quite a lot of unfocused points were raised which did need to be investigated and dealt with. In light of that it is a reasonable and proportionate figure, subject to a very slight correction for the number of hours at court.
55. Effectively the figure should be reduced over all by £140 to reflect the fact that we have been here, over all, three and a half hours, as opposed to four. It should be £9,068 over all. That knocks a bit off mine and my solicitors. Other than that, I do ask for the full amount. What happens thereafter is a question of enforcement, which is a separate matter.
56. THE DEPUTY HIGH COURT JUDGE: Mr Green is there anything you want to say specifically? You have seen the breakdown.
57. THE CLAIMANT: I do not think there is a lot I can say; is there?
58. THE DEPUTY HIGH COURT JUDGE: In those circumstances I am going to make a summary assessment of costs in the sum of £9,068. I direct that the claimant will pay the first defendant's costs in that sum.
59. MR BANNER: Thank you, my Lord.
60. THE DEPUTY HIGH COURT JUDGE: There is of course no VAT, to be charged on these costs They would have been significantly higher had there been. Is there anything else?
61. MR BANNER: No, my Lord. Thank you.
62. THE DEPUTY HIGH COURT JUDGE: Very well. Thank you.