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
		21 March 2012

1. MR JUSTICE OUSELEY: The subject matter of this challenge is a decision by an Inspector appointed by the Secretary of State for Communities and Local Government on an enforcement notice appeal, given by a letter dated 26 November 2010. He allowed the appeal of Pecan Limited against an enforcement notice issued by the London Borough of Southwark on 5 October 2009 in respect of the use of land at County Street in the London Borough of Southwark as a place of worship.
2. The challenge is brought not by the London Borough of Southwark but by the occupants and owners of an immediately adjoining flat, who had given evidence at the Inquiry into the enforcement notice appeal about the harm to their residential amenity done by the noisy and late hour operation of the place of worship. The proceedings have correctly been brought by them by way of judicial review, since the language of section 289 of the Town and Country Planning Act 1990 is inapt to permit a statutory appeal by adjoining landowners who have no proprietary interest in the land the subject of the enforcement notice.
3. The appeal was made on grounds A, C, D and G of section 174(2). Ground A seeks the grant of planning permission. Ground C contends that the matters alleged in the notice do not constitute a breach of planning control. Ground D contends that, as at the date when the notice was issued, no enforcement action could be taken in respect of any breach. Ground G seeks an extension of time for compliance with the requirements of the notice.
4. It is a strange feature, but one that gives rise to no challenge, that Pecan Limited withdrew the ground D appeal, and were unsuccessful in an attempt to reinstate it before the Inspector; but nonetheless, on consideration after the Inquiry of the evidence and the allegations in the enforcement notice, the Inspector reinstated the ground D appeal. No challenge is or can be brought to his power to do so nor, given the opportunity he gave to all the parties to deal with it, to the fairness of his doing so. He then allowed the appeal on ground D, correcting the notice. But he did not go on, having corrected and then quashed the notice, to deal with the ground which sought planning permission. I have no difficulty in understanding why in the particular circumstances of this case the Inspector's consideration of ground C led him to reinstate ground D, which is often closely entwined, and in this case even more so, with ground C.
5. The terms of the enforcement notice are of some importance. In its original form, the breach of planning control alleged was "the unauthorised change of use of the land from the pre-1994 authorised B1 light industrial use to the currently unauthorised use within use class D1 ... including, but not limited to, a place of worship .... " The Inspector corrected the notice, in his endeavour the better to reflect the intentions of the local authority, so that the allegation of breach read "without planning permission the unauthorised change of use of the land to use as a place of worship with ancillary activities within class D1 of the Town and Country Planning (Use Classes) Order 1987".
6. The facts are of some significance. It was the local authority's contention that a planning permission had been granted in 1994 for use as a place of worship but that conditions precedent to that planning permission had not been complied with, so that the use as a place of worship was unlawful. The appellants contested that point.
7. The Inspector reached a conclusion in favour of the local authority in respect of its allegation that the planning permission for use as a place of worship had not been lawfully implemented. The Inspector concluded that the then occupiers had not complied with the three conditions precedent, which amongst other matters concerned a scheme to insulate against the transmission of airborne impact sound.
8. The local authority contended that the subsequent uses until the start of the use of the land as a place of worship in 2009 had included a use that fell outside the scope of use class D1 in the Use Classes Order. It contended that there had been a mixed class A2 use as an employment agency, or the other provision of professional services, mixed with use as a day centre and for the provision of education. This use was said to have taken place between 2005 and about 2009. There is no issue taken with the Inspector's conclusion that as a matter of fact and degree the use by Pecan Limited from 2005 to 2009 was a D1 use and not a mixed D1 and A2 or some other use falling outside the Use Classes Order. It was in July 2009 that the use by the Recovery Chapel commenced. This was the use of the land as a place of worship which gave rise to the harm to residential amenity and which led to the issuing of the enforcement notice.
9. Accordingly, it followed in his judgment that as from 1993 (the place of worship use having commenced before the grant of the 1994 permission), right up until the use by the Recovery Chapel, all the uses had fallen within class D1, and that the unauthorised use of the premises for purposes falling within D1 had commenced as far back as 1993.
10. Accordingly, the issue which the Inspector had to grapple with was this: given that no single purpose falling within D1 had been carried on for a period of 10 years before the issue of the enforcement notice, but that all the uses which had been carried on after the breach of planning control in 1993 had been within class D1, had enforcement action been taken within 10 years of the breach of planning control?
11. For the purposes of seeing whether the use enforced against was immune or whether enforcement action had been taken in time, the question he had to resolve was whether immunity could only be acquired by one specific purpose within the Use Classes Order being continued in breach of development control for 10 years, or whether a sequence of different D1 uses could acquire immunity such that the one being undertaken at or after the expiry of the 10 years, or was immune from planning control.
12. In the former case, that is to say where one specific use had been carried on in breach of planning control for 10 years, it was not disputed by Mr Litton QC, who appeared on behalf of the claimants, that a subsequent change of use within class D1 would also be immune from planning control. In the latter case, that is to say where reliance was placed upon a mixture of D1 uses over the period of 10 years, if Mr Litton's arguments were right, no immunity could be thereby conferred at all. If the arguments for Mr Strachan, on behalf of the Secretary of State, are correct, immunity would be conferred after 10 years on any existing or subsequent uses within class D1. Mr Litton's arguments on behalf of the claimant were supported by brief written submissions on behalf of the London Borough of Southwark but they did not take the cudgels up to the extent of being represented to pursue that point. If, of course, Southwark had succeeded in its arguments in relation to the mixed class D1 and A2 use during the late 2000s, the case would have been decided in its favour by the Inspector.
13. It is perhaps surprising that the issue before me has not arisen, it appears, directly or even very indirectly in the years now in which this structure of the Town and Country Planning Act, not new in 1990, have been in force. It is necessary to set out the statutory structure in order that the competing contentions can be understood. At the heart of the structure of development control is the requirement in section 57(1) that planning permission is required for the "carrying out of any development of land". Development is defined in section 55(1) as including the making of any material change in the use of any buildings or other land. Crucially, section 55(2) defines development further:

"(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land -

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class."

14. The order referred to is the Town and Country Planning (Use Classes) Order 1987 S.I. 764. Article 3 repeats the effect of section 55(2)(f).
15. The classes are set out in the schedule to the Order. Some of the classes use the language directly referred to in section 55(2)(f) of identifying a variety of "purposes" within the class.
16. The classes broadly divide into retail and restaurant; then businesses; then residential, both institutional and dwelling house; and then in part D, with which this case is concerned, non-residential institutions. Class D1 contains a variety of uses ranging from the provision of mental health services; a crèche, day nursery or day centre; use for the provision of education; for the display of works of art; as a museum; as a public library or public reading room; as a public hall; and, at D1(h), for or in connection with public worship or religious instruction; and, finally, as a law court.
17. The purpose and effect of the Use Classes Order is reasonably well understood by now. It was summarised fairly recently by Sullivan LJ in Tendring District Council, R (on the application of) v Secretary of State for Communities and Local Government [2008] EWHC 2122 (Admin) between paragraphs 16 and 18.
18. The purpose of the order was not to distinguish between different purposes within the individual classes of the Order but rather it was to group together uses which had similar characteristics for planning purposes so that changing from one to the other was deemed not to be development by material change of use. Some changes within a use class might amount to a material change of use in the absence of section 55(2)(f); but other changes might not; and there were others where there would be considerable doubt as to whether a change amounted to a material change of use. Sullivan LJ pointed out that in the absence of the Order such questions would have to be resolved by a detailed examination on a case-by-case basis. Further, there was the inevitability of overlap between a number of the uses.
19. I would add it is highly likely that there will be many instances were different uses are combined as one mixed use. Thus, for example, it is not difficult to envisage that although class D1 treats as separate a use for the display of works of art otherwise than for sale or hire, and use as a museum, and use as a public library, and use as a public exhibition hall, every one of those uses could be carried on within the same institution. The provision of a crèche as a non-ancillary part of an educational use is not difficult to envisage either.
20. Mr Strachan, in my judgment, was right to warn that an effect of the Use Classes Order should not be regarded as undesirable merely because of the possibility that one use within a use class might, in the way it is carried on, or, perhaps inherently, be more problematic from certain planning aspects than another. Whether that is undesirable or not is a matter for the legislature which has decided what groups have sufficiently similar characteristics to be grouped together for the purposes of section 55(2)(f), with what consequences may flow.
21. I return to the statutory structure and to the enforcement provisions. Section 171A is in the same part of the 1990 Act as those provisions which deal with certificates of lawful use. By section 171A(1) it is a breach of planning control to carry out "development without the required planning permission". The time limits for taking enforcement action in the case of a breach of planning control of the sort involved here is set out in section 181B(3):

"In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of 10 years beginning with the date of breach."

22. I have already referred to the grounds of appeal against an enforcement notice. They are set out in section 174(2). Grounds C and D are related, as Mr Litton submitted, to the lawful use provisions in section 191 of the Act. The enforcement notice must state by section 173 the matters which appear to the planning authority to "constitute the breach of planning control." The enforcement notice by subsection (3) must specify the steps which the authority requires to be taken, or the activities which the authority requires to cease, for the purposes of remedying the breach by making development comply with the terms of any permission, or by discontinuing any use of the land, or remedying any injury which it has caused.
23. The interaction between the provisions in relation to certificates of lawful use, development which is immune from enforcement control under section 171B, and the grounds of appeal in section 174(2)(d) are linked. Once development has become immune from enforcement control, it is lawful. Section 191 provides a means whereby a landowner may obtain a certificate as to the lawfulness of what might previously have been unlawful. The certificate evidences, but does not confer, lawfulness. By section 191, if any person wishes to ascertain whether "any existing use of buildings or other land is lawful" he may make an application. By subsection (2):

"For the purposes of this Act, uses and operations are lawful at any time, if -

(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason: ... )"

24. The first part of subsection (3)(a) parallels section 174(2)(c), and the second part parallels section 174(2)(d).
25. The provisions of subsection (5) have been prayed in aid by Mr Litton because of section 191(5)(b). In particular, the certificate must "describe the use, operations or other matter in question (in the case of any use falling within one of the classes specified in an order under section 55(2)(f) identifying it by reference to that class)".
26. There are no prescribed forms for making the application. There is a form published by the Secretary of State as part of Annex 8 to Circular 10/97, "Enforcing Planning Control". I shall have to return to that.
27. It is crucial to the argument of Mr Litton that section 55(2)(f) should be read as if the word "lawfully" were inserted so that it read: "in the case of buildings or other land which are lawfully used for a purpose of any class specified in an order .... " That exemplifies the case for which he contends. With the insertion of that word, it would be necessary before the Use Classes Order took effect for a use already to have acquired immunity from enforcement control. It is his submission that the only way that a use can acquire immunity, so that the provisions of the Use Class Order bite, is if the same category within a use class has endured for 10 years in breach of planning control (insofar as the 10-year limit applies to that sort of breach). He contends that such an approach is inherent in the benefits which the operation of the Use Class Order confers on a landowner. A landowner should not be entitled to take advantage of those benefits unless the use upon which those benefits hang is itself a lawful or immune use. He also contends that reading section 55(2)(f) in that way fits better with the enforcement and lawful use provisions. He supports his submissions by a reference to commentary in the Planning Encyclopedia and certain court decisions. He also draws attention to adverse effects which would flow to the operation of the planning system were the approach put forward by the Inspector and supported by the Secretary of State to be correct.
28. I mean no disrespect to the Inspector's analysis of the issue if I do not set it out. It is a clear and cogent analysis of the law which comes to a specific conclusion but it is sufficient to set out paragraph 29, and in particular I draw attention to the last sentence, which is where Mr Litton submits it all begins to go wrong:

"29. The evidence is compelling that notwithstanding the various changes of occupier from September 1998, the activities throughout have been within Class D1. It is also the case that the use has not been the same for any continuous ten year period from December 1993. There have been changes of use in September 2003 and July 2009. It is also possible that the cessation of the nursery use in March 2005 represented a material change in the character of the mixed use. Thus this ground of appeal turns on whether the changes in use which have occurred benefit from the provisions of the Use Classes Order so as not to be development under the 1990 Act and therefore are outside planning control."

29. I do not accept Mr Litton's submissions. It is, in my judgment, quite clear that the structure of the Act and its language does not permit the interpolation of the word "lawfully", nor of an construction in which a single purpose within a use class has to be undertaken for 10 years before immunity is conferred on uses within that class. The starting point is that section 55(2)(f) does not contain such a word. That is to be contrasted with section 57(4) and (5), dealing with what uses can be resumed after an enforcement notice has been issued or a planning permission for a limited period has expired without a further permission. Subsection (4) refers, in the enforcement notice case, to permission not being required for reversion to use for a purpose for which the land "could lawfully have been used" if the development enforced against had not been carried out. This is in the context of what development requires permission. Subsection (5) deals with the normal use to which land can revert after the expiry of a time limited permission. It specifically excludes from the normal use, a use begun in contravention of planning control.
30. I accept that there are some instances where courts have implied "lawful" into statutory provisions even where the word "lawful" may also have appeared in other sections of the statute. But in this context, which creates the circumstances in which development is or is not lawful, in my judgment it would be wrong to interpolate the word "lawfully", with such a change to the effect of the provision.
31. Mr Litton relied on an extract from Bennion on Statutory Interpretation Fifth Edition 2009, which makes the point that it is common for a court to treat the conferring of a right or benefit on a person in certain circumstances as requiring the preconditions for the conferring of that benefit lawfully to have been fulfilled. No authority is needed for that general proposition, but it must yield to the language of the Act. In my judgment, it must yield here.
32. Mr Litton's submission is that the Use Classes Order confers a right or benefit. I disagree. Whilst it may be beneficial to a landowner, it is not, in my judgment, a right or benefit which is conferred on the landowner. It is simply a definition of development. Parliament has provided that certain activities do not constitute development. The need for activity or buildings to be lawful to benefit from the provisions of the General Permitted Development Order exemplify Mr Litton's proposition, but have no resonance in relation to the Use Classes Order. There, certain activities do not require planning permission although they constitute development: the landowner is entitled, absent any further restriction being imposed, to carry out development without seeking planning permission. That is different from a provision which defines development and treats certain identified matters as not constituting development at all; it is a mere definition section, however much it may benefit those to whom it applies.
33. Mr Litton submits that this approach would run counter to the enforcement provisions of section 171 onwards. I do not accept that. Crucial to the operation of the enforcement provisions is the concept of the carrying out of development without planning permission. Where the very activity at issue does not involve development at all, it is not possible to turn it into development for the purposes of enabling enforcement action to be taken against it. It may be that in this case the Inspector could have allowed the appeal on his findings under section 174(2)(c) as well as on the grounds that the matters did not constitute a breach of planning control. But certainly he was entitled to conclude that after 10 years of use within class D1 no enforcement action could be taken. The effect of the sequence of changes within class D1 was not that there was a material change of use which had somehow received a statutory sanction. It was that the use that began after the place of worship initially ceased did not constitute development. The subsequent changes did not constitute development. The institution of the place of worship use by the Recovery Chapel did not constitute development.
34. The position of a local authority seeking to enforce against a sequence of uses all within a particular use class, none lasting 10 years so as to confer, on any view, immunity, but before the expiry of 10 years of unauthorised D1 uses, is not as difficult as suggested. An enforcement notice can properly strike at the existing use being carried on. On the hypothesis that there has been no 10-year use within class D1, the enforcement notice will not be quashed on ground C or ground D and the other unauthorised D1 uses could not lawfully be restarted. Whether it would be advisable for the local authority to state what the breach of planning control was in terms of a breach of planning control from B1 to the sequence of D1 uses culminating in the one struck against is a matter for the local authority. For my part, I see nothing unlawful in that. The point is to convey to the recipient of the notice what is said to be the breach which affects him. There is no difficulty in formulating a notice that strikes at the current activity because of the unauthorised nature of the predecessor D1 uses.
35. Mr Litton questioned whether such an approach could be right in the light of the comments of Schiemann LJ in the Court of Appeal in Secretary of State for the Environment and Holding v Thurrock Borough Council [2002] JPL 1278, in particular at paragraphs 28 and 61 to 62. I see no difficulty arising out of what was said in that case in relation to active and dormant uses. The enforcement notice of course needs to relate to the use being undertaken which is being struck at and should be expressly referred to, but the reference to a continued active use must be understood as meaning a use which is continued in such a way as to enable the 10-year period to continue running, and not a reference to a use which has stopped to the extent that the 10-year period can no longer run at all.
36. Mr Litton instances the following as a matter of concern: a use is started within class D1; after 2 years it is changed to a different use within class D1; that change of use does not constitute development. How then, submits Mr Litton, can an enforcement notice strike at it? And, if an enforcement notice cannot strike at it, by some such simple device somebody has been able to obtain the benefit of immunity within a far shorter period than the act contemplates. In my judgment, the answer given by Mr Strachan to that is correct. There is no immunity merely because the change of use does not constitute development. The use remains part of the continuing unauthorised D1 use, and can be enforced against. It has taken a different form. It is no different in concept from a single class D1 purpose being carried on in a different manner akin to an intensification falling short of the material change of use. Far from it being Mr Strachan's submissions which risk adversely affecting the structure of the Planning Act, it is, in my judgment, those of Mr Litton.
37. The slightly odd position would be arrived at whereby very sharp distinctions would be drawn between not very different situations. Where a specific use, carried on for 10 years, had become immune, but then immediately changed to another purpose within class D1, for example, the quiet crèche yielding to the noisy place of worship on year 10 plus 2 months, the local authority would be unable to do anything about it. It could have prevented that change if it had occurred 3 months earlier. Mr Litton accepts that is consistent with his submissions. What he says his submissions would avoid is to him the troublesome scenario of the use of premises for a variety of inoffensive D1 uses taking place over 10 years but not one of them individually for 10 years, then yielding after 10 years to the noisy and disturbing place of worship, which the local authority cannot control. Had it taken place before 10 years of varying D1 class uses, the local authority could have prevented the noisy change because the D1 use would not have become immune. It seems to me that to draw the sharp distinction inherent in his submission is wrong. His concern that a local authority might not be able to react as the 10-year period ended to a change within the class D1 uses from one which had given rise to no objection to one which did, is a problem which can arise in either situation. The problem of a succession of D1 uses within the 10-year period does not give rise to an enforcement difficulty, for the reasons which I have given.
38. Additionally, Mr Strachan is right to point to the problem that would be created in relation to uses that had been grouped together for their cognate qualities, possessing the potential for blurring and overlap, if a local planning authority had to decide when a use had become a mix of two or more purposes or categories. This sort of problem is one which the Use Classes Order is designed to eliminate rather than to exacerbate. And, of course, Mr Litton's arguments must, if good, be good in respect of all classes in the Use Classes Order and not just in what may be the more variegated variety in D1.
39. I see no assistance either for Mr Litton in the commentary to the Planning Encyclopedia at page 38754 from December 2005, which from other authorities it appears was contributed by none other than Dr Malcolm Grant rather than any of the current editors. I do not need to set out what he says save for the fact that he refers to the rights conferred by the Use Classes Order, which is a concept to be wary of in that context. It is to be noted that he says there is no requirement that the rights it confers "should be limited to the cases were the existing use is lawful." He then deals with the position where an existing use is unlawful and specifically grapples with the problem of such a use not constituting development if it is a change within the use class. He contends that it must be possible in respect of such a use, where the use is based upon an unlawful existing use, for enforcement action to be taken in respect of a change within the use class from the existing unlawful use, before a use has become immune. With respect to Mr Litton's submissions, that, in my judgment, is the only way in which that part of the commentary can be read.
40. Mr Litton also sought assistance from the Certificate of Lawful Use Provisions. I see no support for his arguments there either. The provisions only operate where no enforcement action may be taken or time for enforcement has expired. Yet, on the analysis which I regard as correct, enforcement action could have been taken in this case up until 2004 in respect of the D1 use. And if the local authority had succeeded in showing that there had been a non-wholly D1 use in the late 2000s, it would have succeeded in relation to the most recent use as well.
41. There is no assistance to be found in the detail in which Circular 10/97 Annex 8 requires an application for a certificate of lawful use to be made. The certificate provisions themselves require both the specific use and, where a use falls within a use class, the use class to be identified. The provisions of the Circular do not assist. Mr Litton referred specifically to paragraphs 8.11, 8.16 and 8.17. The theme of these is that precise details must be provided of the use in respect of which the application is made. The use description must also specify whether the use falls within a use class. The need for a specific description of the use is obvious: the local authority needs to know exactly what it is that is said to constitute the use, so that it can identify whether that use has in fact been carried on or whether it is merely a general or inaccurate description of something that has only recently begun. The need for it to specify the use class is again clear as part of an understanding of what the application is for.
42. Nothing suggests -- and indeed Mr Litton concedes that it would be unlawful if it did -- that the grant of a certificate of lawful use for use falling within a use class, although specifying clearly what the purpose or the category is, could prevent a change within the use class being lawfully undertaken. For what it is worth -- and I do not regard it as more than an indication of the way the Secretary of State has approached matters -- the published form at the back of Annex 8 in question 10.3 appears to envisage just the sort of circumstance here. It appears to be one of the grounds upon which a certificate of lawful use can be sought, that the use began within the last 10 years as a result of a change of use not requiring planning permission and there has not been a change of use requiring planning permission in the last 10 years. It is obvious that there can be a change of use that does not require planning permission where it does not amount to development, as is the effect of section 55(2)(f). There is nothing in that Circular which, in my judgment, affords any support to Mr Litton's submissions.
43. Of course, there are, I accept, difficulties that may arise for a local authority were there is a change of use or change of manner of operation of a use but, in my judgment, they do not warrant the interpretation being given to section 52(5) which the claimants must contend for. It would be quite wrong for an event which does not constitute development somehow to constitute the recommencement of the running of the 10-year period. And, if an event that does not constitute development could not do so, what other events that do not constitute development could make the 10-year period start to run again? An intensification of use falling short of a material change of use taking it outside the Use Classes Order could not do so. Local authorities know that uses can spring to life by intensification without amounting to a material change of use. They must know that uses can change within a Use Classes Order following the grant of planning permission to something which, if not free from the conditions of the permission, may nonetheless be quite different in its effect.
44. Where a local authority is faced with an unauthorised use to which it does not in itself take exception but is aware that a change could take place in its operation, it is for the local authority to take enforcement action; otherwise, if there has been no application for planning permission, the authority is at risk of uncontrolled, undesirable change. The local authority cannot point to an unfortunate consequence of inaction when there is a remedy to prevent this unfortunate consequence in its own hand. The provisions of the guidance of the Secretary of State, which are discouraging to enforcement control where there is no real value to it, must be understood against the fact that this problem exists. It cannot be said that a problem exists and on the other the guidance of the Secretary of State is to do nothing about it.
45. I recognise that things have in some ways gone wrong with the operation of the planning system, in that unauthorised development took place in 1993 but which only came to light because of the discovery later that the developer had not complied with conditions precedent. I am afraid that it is for the local authority to be astute to police its conditions. This is particularly problematic where such a permission may be on the register of planning permission and so give comfort to the purchasers of neighbouring property that the permission has been implemented, only for it to be found that it has not been. Paradoxically in this case, the appellants before the Inspector asserted, unsuccessfully, that they were bound by that permission. However problematic that may be, this claim must be dismissed.
46. Accordingly, and for those reasons, I dismiss this claim.
47. MR STRACHAN: My Lord, I seek an order in those terms, in those circumstances. In addition, my Lord, I seek an order that the claimant pay the defendant's costs. There is a costs schedule.
48. MR JUSTICE OUSELEY: I do not have it. (Handed). Have you taken note of what Collins J said about the costs of the acknowledgement of service?
49. MR STRACHAN: My Lord, so far as the costs of the acknowledgement of service, whilst the acknowledgement of service is short certainly, the costs at that point include advising on the case of the client. So although it looks like, if you judge it simply by the length of the acknowledgement of service, it seems costly but when you factor in once you receive the claim, you consider the claim, take advice and speak to the client, the costs, in my submission, are entirely in order.
50. MR JUSTICE OUSELEY: Does the costs schedule I have here include those costs?
51. MR STRACHAN: Yes. There is one further addition, my Lord. As you may know, just as when hearings go short we adjust our hourly rate, if it goes slightly longer, I seek the additional costs at the hourly rate, which is a total sum of £600. So, the costs claimed for the whole of today are £13,416.
52. MR JUSTICE OUSELEY: Mr Litton?
53. MR LITTON: My Lord, yes. Can I just take you to Collins J's order where, in granting leave -- it is at tab 6 of the bundle.
54. MR JUSTICE OUSELEY: He expresses himself in trenchant terms at times, and he did on this occasion.
55. MR LITTON: The unhelpfulness of the acknowledgement of service and the summary grounds which were served then and, as your Lordship has identified, the costs claimed, was ridiculous but then the case management directions, in which you will see the penultimate bullet point he said that the defendant and interested party must serve the skeleton argument not less than 14 days before the date of the hearing of the judicial review. Now, can I just also make this point, my Lord: that the Secretary of State's detailed grounds, which are at tab 8, as we said in our skeleton argument, although they set out the background and the matters relating to the Inspector's report and the like, the submissions comprise three short paragraphs on page 181, and essentially at paragraph 25 it is a repetition of the summary grounds that were criticised by Collins J, mainly that for the reasons the Inspector gave, he got it right. So, although they may have been longer, they are no more helpful than the acknowledgement of service.
56. MR JUSTICE OUSELEY: I know my judgment has been a bit longer but that is because I have heard more argument. Essentially, the Inspector got it right.
57. MR LITTON: The Secretary of State has plainly breached the order in relation to the requirement to serve the skeleton argument not less than 14 days; it was served 7 days beforehand and no explanation or apology has been offered in relation to that and the conduct of the parties is a matter which you have to take into account in exercising your discretion as to costs. So, what I would say is that the claimant ought not to pay any of the costs prior to the service of the skeleton argument, where, in effect, for the first time the Secretary of State has set out his case.
58. My Lord, then in terms of the figures that are contained in the costs schedule, it is not clear from the schedule to what extent the work on documents at 17.1 hours reflects the matters that Collins J was critical of and, in any event, there is time allocated for attendances on clients in the first items at 3.9 hours and then counsel et cetera. So, it is simply not clear to us that there has not been duplication of costs between the advices given by the Treasury Solicitors to their clients and the work done on documents which was, we suggest, at least in part, criticised by Collins J. So, I would ask first of all that there should not be any costs prior to the service of the skeleton argument in breach of Collins J's order and, in any event, there should be an adjustment downward to reflect his observations about the ridiculousness of the costs that were being claimed in relation to the acknowledgement of service.
59. MR STRACHAN: My Lord, can I just hand you up the claimant's costs schedule because you are being asked to deduct costs and of course you are entitled to see the proportionality of the costs bearing in mind what has been placed -- and the headline figure is in addition to be notified on the CFA, the costs claimed for the presentation of this claim are the sum of £34,000. So the starting point for your assessment, my Lord, is that the costs claimed by the defendant are indeed highly proportionate and indeed considerably lower than the claimant's.
60. My second point, my Lord: the issue of the detailed grounds; as your Lordship has identified, the Inspector set out in his decision the reasons why, in terms of law, he reached the conclusion he did. The Secretary of State in detailed grounds identified its position that the Inspector's analysis was correct. Indeed, I have appeared, and my learned friend, today to deal with such other arguments but we have followed and adopted the Inspector's conclusions and my learned friend has known and already dealt with the arguments against him as they appeared in the Inspector's decision letter as are reflected in our detailed grounds and of course as are consistently set out in skeleton argument. The skeleton argument also responds to anything the claimant is arguing. As I understand it, the claimant seeks to deprive us of any costs prior to the lodging of the skeleton argument.
61. MR JUSTICE OUSELEY: I am not going to accede to that. What do you say about the 17.1 hours?
62. MR STRACHAN: I am instructed that there is no duplication of costs in that respect. My Lord, that includes the advice given by my instructing solicitors to their clients, dealing with the documents; it includes dealing with the claim bundle; dealing with correspondence of the claimants --
63. MR LITTON: That cannot be right.
64. MR STRACHAN: Sorry, dealing with the skeleton that they received. So, it is any work done on documents. My Lord, when you compare it, as I have asked you to do so, with the claimant's costs schedule, I submit that it is an entirely modest sum, entirely proportionate in dealing with a case of this kind. It is certainly right, as your Lordship has indicated, that the issue that arose on this appeal is a novel one. There is no authority which raises either way and the Secretary of State has obviously taken it seriously as a point being raised and has taken the benefit of advice both from instructing solicitors and also is represented here today by my learned friend. The claimants, of course, are also represented by leading and junior counsel.
65. MR JUSTICE OUSELEY: He is not taking issue with two counsel.
66. MR STRACHAN: My Lord, it is in terms of the work done on documents. It is entirely right, in my submission, that those instructing me should deal carefully with the claim and advise their clients accordingly both on the documents in the files they started with and in the subsequent submissions of skeletons. So the sum of 17.1 hours overall in a claim of this complexity, in my submission, is entirely appropriate. So, my Lord, I do still seek the costs and I just ask you to stand back and look at the proportionality of that sum claimed as compared with the claimant's own costs. Unless I can assist you further on the precise quantum, my Lord, that is the application.
67. MR JUSTICE OUSELEY: Do you want to reply not on the first point?
68. MR LITTON: My Lord, simply, really, in terms of the quantum point. 17.1 hours on documents, bearing in mind that it is the claimant who prepared the claim bundle and the claimant who prepared the authority bundle -- correspondence with those who instruct me is separately dealt with under attendances on opponents -- what on earth was the Treasury Solicitor doing spending the best part of 3 days on these documents when in fact one sees from both the summary grounds of defence and then their detailed grounds of defence that their position has been summarised in a paragraph or two: that, essentially, the Inspector got it right. So I do ask the question, how is that they spent 3 days in getting to that conclusion? So I do question the baseline figure in relation to the attendance on documents.
69. MR JUSTICE OUSELEY: There will be the order for costs in favour of the Secretary of State in the sum of £13,416. I do not accept the suggestion that 7 days late in the production of the skeleton argument, absent any clear disadvantage, should deprive the defendant of costs up to that time. The overall level of costs for this case claimed does not seem to me to be one bit unreasonable. The 17 hours' work done on documents fits readily with the fact that this is a defendant and it is significantly less than the claimant's time. The only matter which requires consideration, in my judgment, is the trenchant terms of Collins J's criticism of the acknowledgement of service; criticism with which I have some sympathy, particularly when this not very helpful document was marked with a claim for over £1,000. But the crucial question to my mind is not whether that document itself was much of a document but whether the hours spent in preparing and arguing this case is a reasonable total. If the hours were spent preparing the case and were reasonable and there has been no duplication and there has been no pointless endeavour in producing the acknowledgement of service and the work would have to have been done anyway, I see no reason to deduct any sum in respect of it, having heard the benefit of Mr Strachan's comment on it. So that order will be made.
70. MR LITTON: My Lord, I am extremely conscious of the time but I do have an application for leave to appeal. I make it on two bases. First of all, in my submission, your Lordship's judgment is arguably inconsistent with the judgment in the Young case, where there the Court of Appeal had no difficulty in saying in trenchant terms that the starting point reached in relation to the general development order was then in force but was prefaced or was hinged on the use being lawful. So I say that there is authority in respect of which your Lordship's own judgment is inconsistent and that of itself provides a realistic prospect that an appeal might succeed. But, in any event, my Lord, I would also make the application on the basis of a wider public interest because, of course, as your Lordship has observed, and as has my friend, this is the first time that the point has, either directly or indirectly, come before the court notwithstanding the longevity of the legislation. There are significant, in my submission, implications for authorities in terms of how they act where they are faced with the situation of the use within a use class which is not in itself undesirable but which may have other uses within the same use class which may be undesirable.
71. MR JUSTICE OUSELEY: I appreciate it is not an issue that has been litigated but sometimes that is because in fact there is nothing, on analysis, in it. I do not think the planning encyclopedia commentary could possibly be read in the way you read it. So I do not think that that would have created any sense of anxiety on the part of local authorities, that they could not act after there had been one change with a Use Classes Order but rather they could act up to the 10 years. They might have scratched their head a bit about how to frame the notice. Essentially, I am asking for your assistance on this. It may be a novel point but is that novel because it is just not a good point or is there, lurking in the undergrowth, about which I know nothing, a genuine point of anxiety which has been troubling local authorities about this? Because there is quite a difference between that situation and one where somebody has thought of a point that nobody else has thought of.
72. MR LITTON: I cannot speak on behalf of all local authorities, being that I do not act on behalf of all of them in relation to these proceedings but what I can say is that in my experience over the last 20 years plus, I have never come across a situation where this matter has been needed to be even considered. I do not know whether my learned friend has.
73. MR JUSTICE OUSELEY: That would suggest that there is not actually a problem.
74. MR LITTON: My Lord, I would say, contrary to your Lordship's judgment, the reason why it has not been a problem is because no-one has come before the courts, or indeed an Inspector, and successfully argued that an agglomeration of individual uses none of which has occurred for more than 10 years has been a reason for requiring immunity in a Use Classes Order case. I appreciate that you and I are at loggerheads in relation to that but I would also suggest that that is one of the reasons why the matter has not come before the courts before. I appreciate that your Lordship has found against us in relation to that but certainty as to who of us is right is obviously of some --
75. MR JUSTICE OUSELEY: I have the advantage of being the judge. So, if there is an issue of certainty, there is a judgment.
76. MR LITTON: My Lord, yes. Which is why I say that perhaps a third party arbiter --
77. MR JUSTICE OUSELEY: I do not have an arbiter between you and me.
78. MR STRACHAN: My Lord, can I just raise a procedural point which is of relevance to this? Leaving aside the issue of the merits of appealing your Lordship's judgment, can I just raise this point: if this claim had proceeded as a section 289 appeal, which it is in all but name, the requirement is to seek permission from the Court of Appeal because it is a second appeal. Therefore, in my submission, by analogy, although it is a judicial review, the claimants cannot be in a better position than the local planning authority and it is appropriate in those circumstances for the Court of Appeal to decide whether or not to grant permission.
79. MR JUSTICE OUSELEY: I will tell you what I am going to do, I am going to adjourn the question of permission to appeal, partly because of the hour and partly because I think Mr Litton may want to contemplate the argument you have just raised. There may be something in your point. What I propose to do is to adjourn the application. You have started it, so time is not running against you. You may wish to wait until you have got a copy of the transcript.
80. MR LITTON: I was going to ask, my Lord, in any event, if you were to refuse permission, whether or not there could be an extension of time for making that application.
81. MR JUSTICE OUSELEY: I would certainly have granted you that but I do not think that that is going to be necessary. What I am going to do, I think, is wait and resolve your application when I have got the corrected transcript and you have got the corrected transcript. So, we will adjourn it until then, partly in view of the hour but I think I would also like your response to Mr Strachan's point on a considered basis because there is something in it as matter of, if you were the local authority, you would have a much stronger uphill task than a normal application for permission to appeal because it is a --
82. MR LITTON: (Inaudible over-talking).
83. MR JUSTICE OUSELEY: -- query how far that should enter the discretionary judgment. That apart, Mr Strachan, would you oppose permission to appeal?
84. MR STRACHAN: I do, my Lord.
85. MR JUSTICE OUSELEY: Would you rather do it in writing or orally?
86. MR LITTON: For costs reasons, it is probably better to put it in writing. I am content with that.
87. MR JUSTICE OUSELEY: Mr Strachan?
88. MR STRACHAN: I am content with that as well.
89. MR JUSTICE OUSELEY: I will receive submissions on permission to appeal, to be submitted to me in writing 7 days after you have received the approved transcript, and you have 7 days to put in your reply, and if you are really moved to add something in reply, you will have no more than 2 or 3 days to do it.
90. MR LITTON: Thank you, my Lord.
91. MR JUSTICE OUSELEY: Thank you very much.