CO/2063/2010 
Neutral Citation Number: [2012] EWHC 3704 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 13 December 2012
 
B e f o r e: 

TIM CORNER QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
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Between:

HANCOCK
Appellant

v 

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
ROYAL BOROUGH OF WINDSOR AND MAIDENHEAD
Respondents 
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Mr J Powell (instructed by Aston Bond LLP) appeared on behalf of the Appellant
Mr C Buttler (instructed by the Treasury Solicitor) appeared on behalf of the First Respondent (Mr C Zwart appeared for the read out judgment only)
The Second Respondent did not attend and was not represented

Hearing date: 12 December 2012
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Judgment
THE DEPUTY JUDGE:  
INTRODUCTION 
1.	This is a challenge under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") to a decision by the Secretary State's Inspector, Mr Brian Cook BA (Hons) Dip TP MRTPI, on appeals in relation to land ("the Land") at Potter's Yard, Drift Road, Hawthorne Mill Maidenhead SL6 3ST. Permission to appeal was given by His Honour Judge Birtles, sitting as a Deputy High Court Judge, on 10th June 2010.   
2.	The decision is dated 15th January 2010. The following appeals were before the Inspector. First, an appeal under section 174 of the 1990 Act against an enforcement notice issued by the Second Defendant ("the Council"), and issued on 9th July 2009. 
3.	The breach of planning control alleged by the notice was without planning permission the rebuilding and extension of light industrial units located along the south side of the yard, the approximate position of which was marked blue on the plan attached to the notice.  
4.	The requirements of the notice were to demolish the buildings shown on the plan attached to the notice, and remove from the land all the materials used to construct the buildings. 
5.	The period allowed by the notice for compliance with the requirements was three calendar months.   
6.	The second appeal before the Inspector was an appeal under section 78 of the 1990 Act against a refusal to grant planning permission for the rebuilding and enlargement of light industrial units for the storage of plant/vehicles.  There was in addition a deemed application for planning permission, pursuant to section 177(5) of the 1990 Act.     
7.	The background to the appeals was as follows. In 1993, the Appellant was granted conditional planning permission to use the Land for "a mixed use of agricultural contractors and the storage, repair, maintenance, servicing and hire of motor vehicles (including industrial and commercial vehicles) and fork‑lift trucks, together with ancillary offices/rest rooms". 
8.	One of the conditions attached to the 1993 permission was that 
"no repairs or maintenance of vehicles, plant and equipment shall be carried out in the open within any part of this permission" (condition 5).
9.	There was a terraced building to the southern boundary of the Land comprising 11 bays. In or around 2008, the Appellant demolished the Western four units ("the original buildings") and erected four replacement units ("the new buildings") which were larger than those they replaced.  
10.	On 3 March 2009, the Appellant applied retrospectively for planning permission for the erection of the replacement units. The application was refused by the Council as local planning authority, principally in the light of the restrictions on erecting buildings in the Green Belt.  An appeal against that refusal was the subject of the appeal under section 78 of the 1990 Act which came before the Inspector.  
11.	On 9 July 2009, the Council issued the enforcement notice which is the subject of this challenge.  
12.	The Appellant appealed against the enforcement notice. The grounds of appeal were under section 174 (2) (a), that planning permission should be granted for the development enforced against, and section 174(2)(f), that the steps required by the notice (ie demolition of the four new units) exceeded what was necessary to remedy the breach of planning control. 
THE DECISION 
13.	The appeals proceeded under the written representations procedure. The Inspector dismissed all the appeals. Paragraphs of the decision letter are hereinafter referred to as "DL1" and so on.  
14.	At DL 5 the Inspector identified the main issues before him as being 
(a) whether the proposal is inappropriate development for the purposes of Planning Policy Guidance: Green Belts (PPG2) and development plan policy;
(b) the effect of the development carried out upon the openness of the Green Belt and the purposes of including land in it;
(c) whether appropriate provision is made towards infrastructure, services, facilities and amenities made necessary by the development; and 
(d) if the development is inappropriate, whether the harm by reason of inappropriateness, and any other harm, is clearly outweighed by other considerations, so as to amount to the very special circumstances necessary to justify the development. 
15.	At DL 6‑9 the Inspector considered the question whether the proposal was inappropriate development in the Green Belt. He said at DL8 that 
"...the appellant's evidence is that the end four bays were in need of total rebuilding and the opportunity was taken to provide a more efficient space by raising the height by some 0.5 m and extending to the rear by about 2.5 m. The total increase in the net internal floor space is agreed by the parties to be 40 square metres."
16.	The Inspector decided (DL9) that the development was inappropriate development in the Green Belt, a matter to which he attached substantial weight "by reason of inappropriateness". 
17.	At DL 10‑11 the Inspector considered the effect of the development upon the openness of the Green Belt and the purposes of including land in it. He found that this effect was marginal, and accordingly attached limited weight to this additional harm. 
18.	At DL 12‑13 the Inspector considered whether appropriate provision was made towards infrastructure, services, facilities and amenities made necessary by the development. He found that there was a conflict with policy in this regard, but he afforded it very limited weight. 
19.	At DL 14‑16 the Inspector considered whether there was additional harm arising from vehicle movements and noise, as local residents contended. He found that there was not. 
20.	At DL 17‑19 the Inspector considered "other considerations" and said 
"17 I agree that the evidence indicates that, not unlike other buildings, repair and maintenance of the fabric was required. However, although I can see that it was convenient while effecting those repairs to increase the height of the building to accommodate the higher door needed to allow entry the particular vehicles, there is no evidence (such as a lack of alternative suitable premises) as to why it was necessary to do so. I therefore attach little weight to this consideration.  
18 I accept that there is no evidence that the appellant sought to depart from the approved uses on the site. However, compliance with an extant planning permission is not a matter that I believe should be considered as justifying the development.  
19 The appellant also draws attention to the small overall increase in floor space and the negligible, if any, impact on openness. However, this is a matter that I have already addressed. No other considerations have been put forward by the appellant." 
21.	At DL 20 the Inspector considered whether very special circumstances had been shown in order to justify the development in accordance with policy, and found that they had not.  
22.	He therefore concluded (DL 21) that the appeal under section 78 of the 1990 Act, the ground (a) appeal under section 174, and the deemed application for permission under section 177(5) did not succeed.  
23.	He went on to consider the section 174 appeal under ground (f). He said 
"22 The gist of the appellant's case on this ground is that the complete demolition of the buildings is excessive when four units have been accepted by the Council since 1993. The maximum requirement should be to return to the position in 2007. To do otherwise would deprive the appellant of valuable structures and space that he lawfully possessed before the recent works took place.  
23 While I appreciate the position that the appellant is now in, he chose to demolish the previous structures and then erect the new buildings that are the subject of the notice. My understanding is that the purpose of the Council in issuing the notice is, in part at least, to remedy the breach of planning control. I have set out under my consideration of the ground (a) and s 78 appeals that the erection of these new buildings in the Green Belt is not justified by those special circumstances. The Council's purpose therefore can only be achieved by the requirements set out in the notice rather than by some form of under enforcement as suggested which might be appropriate to remedy an "injury to amenity" purpose. The appeal on ground (f) therefore fails."
STATUTORY BACKGROUND ‑ ENFORCEMENT APPEALS 
24.	Section 174(2) of the 1990 Act provides in part 
"An appeal may be brought on any of the following grounds‑
 (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted...
 (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by such breach."
25.	Section 177(5) provides 
"Where an appeal against an enforcement notice is brought under section 174 and‑
...
 (b) that land is in England and the statement under section 174(4) specifies the ground mentioned in section 174(2)(a),
the appellant shall be deemed to have made an application for planning permission in respect of the matters stated in the enforcement notice as constituting a breach of planning control."
26.	Section 174(4) provides 
"A person who gives notice under subsection (3) shall submit to the Secretary of State, either in writing when giving the notice or within the prescribed time, a statement in writing ...
Specifying the grounds on which he is appealing against the enforcement notice." 
27.	Section 289 of the 1990 Act provides in part 
"(1) Where the Secretary of State gives a decision in proceedings on an appeal under Part VII against an enforcement notice the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according as rules of court may provide either appeal to the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court. 
...
 (6) No proceedings in the High Court shall be brought by this section except with the leave of that Court..."
THE GROUNDS OF CHALLENGE 
28.	The Appellant does not argue that the Inspector erred in his decision on the section 174(2)(a) appeal, the section 78 appeal, or the deemed application under section 177(5). His submissions are, first, that the Inspector erred in his treatment of the Appellant's ground (f) appeal, and secondly that the requirements of the enforcement notice are insufficiently specific. 
The ground (f) appeal 
Appellant's submissions 
29.	His main complaint is about the Inspector's treatment of the ground (f) appeal. In order to understand this aspect of the Appellant's case, it is necessary to set out what he said in his appeal notice, in relation to ground (f); 
"It will be seen that the requirements of the Notice were expressed in paragraph 5 as complete demolition of the buildings and removal of all materials used to construct them. This relates to the units at the western end of a larger block ‑‑ see Notice Plan.
It will also be noted that the allegation relates to 'rebuilding and extension'. The earlier application covered re ‑‑ building and enlargement ‑‑ altered by the LPA to rebuilding and extension.  
The appellant will show that the units were in place in 1993 and becoming dilapidated by 2007. He determined to replace them and proceeded to raise the roof height at the front to permit the introduction of roller shutter doors that would permit entry of a 'Transit' sized van, where previously only cars or light vans could be driven in. Also, the rear wall of the block ran at an angle to the rear boundary of the land. This was changed to provide rear walls to the units that are at right angles to the division wall making the interior space more regular. The additional floor area was shown in the application plans ... as adding 40 m² overall. ...  
Under this ground of appeal the appellant will argue that the most LPA can properly complain of is the additional space is created. Therefore to completely demolish and clear the site is excessive in the extreme as 4 units have been accepted without let or hindrance by the LPA since 1993. The maximum that should be required of him is to return to the position in 2007. Otherwise the compliance required deprives him of valuable structures and space he was lawfully in possession of before commencing the recent works. It is quite unreasonable of the LPA to issue the Notice in these terms when all the facts were ready before them in connection with the application referred to above."
30.	The Council's response to this ground of appeal was contained in a letter dated 23rd September 2009, in which it stated 
"The appeal is also under S.174(2)(f) wherein it appears to be agreed that the buildings as referred to in the Enforcement Notice require permission, but that there is a 'fall back' position to the floorspace, height and position of the former buildings. This is not agreed in this instance, as it is the buildings as existing that are unauthorised, and in the Council's opinion, should be removed." 
31.	The Appellant's counsel, Mr Powell, argued that the Inspector did not address the question of the protection of the existing lawful use rights despite the fact that it was raised before him and he provided no explanation and gave no reasons for failing to do so. 
32.	Mr Powell referred to the case law dealing with the need to protect lawful uses, including Mansi v Elstree RDC [1964] 16 P&CR 153, John Kennelly Sales v Secretary of State for the Environment [1994] 1 PLR 10 and Duguid v Secretary of State for Environment, Transport and the Regions [2001] 82 P&CR 6.
33.	Mansi establishes clearly that an enforcement notice cannot require remedial action which goes beyond remedying the breach of planning control. In that case, the appellant had a right to use a glasshouse for retail sales at a level which was subsidiary to the agricultural use of the land, and therefore did not require permission. However, without permission the appellant turned the glasshouse into a shop (which constituted a material change of use, and therefore a breach of planning control). The local planning authority served an enforcement notice which required him to cease all retail trade from the glasshouse. It was held that this was impermissible because it went beyond remedying the breach of planning control, by removing not only the shop use but also the right to trade at a subsidiary level. The John Kennelly and Duguid cases follow Mansi. The John Kennelly case makes clear that in order to avoid over‑enforcement against a change of use, it is necessary to understand what the lawful use is. In Duguid, the point was that an enforcement notice which required the cessation of an unlawful change of use did not need to spell out that the appellant retained use rights granted under the General Permitted Development Order. 
34.	All the cases to which I have referred embody the principle that the terms of an enforcement notice must not go beyond what is necessary to remedy the breach of control complained of, and require it to be ensured that existing lawful uses are preserved. 
35.	Mr Powell argued that in the present case there were lawful uses which the enforcement notice should have preserved and failed to preserve.  
36.	He accepted that there was no legal right to rebuild the buildings his client had demolished ("the original buildings"). That was because, he agreed, once they had been demolished planning permission was required to reinstate them.  
37.	However, said Mr Powell, the effect of the 1993 permission was that his client had a continuing right to have buildings of some sort on the site of the original buildings. The effect of the 1993 permission was to allow repair and maintenance of vehicles, plant and equipment within buildings on the site. Once the original buildings had been demolished, if the effect of an enforcement notice in relation to the erection of new buildings were to prevent the existence of buildings on the site of the original buildings, it would prevent repair and maintenance on that part of the site. Thus, said Mr Powell, the enforcement notice would be preventing what is, pursuant to the 1993 permission, a lawful use.  
38.	Mr Powell said that what the Inspector should have done, in order to ensure that the enforcement notice did not offend the Mansi principle, was to allow a building or buildings of some description on the site of the original buildings, whether by alteration of the new building or new construction, so that the repair and maintenance use which the 1993 permission allowed at that location could continue.  
39.	Mr Powell also argued that even if I did not accept his submission about the existence of a lawful use which the enforcement notice should have protected but did not protect, the Inspector's decision on the ground (f) appeal could still be faulted, because he gave insufficient reasons for rejecting the Appellant's case. Mr Powell reminded me of the passage in South Buckinghamshire DC v Porter [2004] 1 WLR where Lord Brown stated (at paragraph 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 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 aspirations. 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."
Conclusion 
40.	I do not think the decision letter in this case failed to preserve lawful uses. 
41.	Mr Powell's reliance on the 1993 permission as being the basis for a subsisting right to have buildings of some description on the site of the original buildings was, I think, misconceived. The permission of 1993 did not grant planning permission for any buildings. It did not grant planning permission for operational development. It was a planning permission for uses. Condition 5 in effect allows repair or maintenance to take place in any buildings that are on the site, but it does not grant permission for any such buildings to be built, and the existence of the 1993 permission does not prevent enforcement action to remove any buildings that have been erected in breach of planning control.  
42.	The fact is that the Appellant had chosen to demolish the previous four buildings. There was nothing to prevent him doing so, but once he had demolished them, he needed planning permission to re‑erect those buildings or to erect any others; see Sainty v Minister of Housing and Local Government (1964) 15 P & CR 432.   
43.	It follows that at the time of the service of the enforcement notice, there were no existing rights to have buildings on the site of the four original buildings, which the enforcement notice had to protect. The Appellant draws attention to the fact that the 1993 permission allowed repair or maintenance of vehicles plant and equipment to take place only in buildings, in that it prevented such activities taking place in the open. However, by demolishing the four units, the Appellant lost the right to carry out those repair or maintenance activities in the original buildings or on the site of those buildings once they had been demolished.   
44.	It was argued by Mr Powell that to take what the Appellant did as a two stage process, beginning with demolition, and then proceeding to the erection of the new buildings, is an approach which makes "pettifogging and fine legal distinctions". I disagree. It is the correct approach in law. The Appellant chose to demolish the original buildings. Once he had done so, he had no planning permission or other right to erect new ones on the site of the original buildings, either identical to the original buildings, or different.  
45.	The only lawful use in relation to that land was the general light industrial use permitted on the site as a whole, including in the open. It was agreed that the enforcement notice does nothing to prevent such use continuing, including on the cleared site of the original buildings and that in this respect the enforcement notice could not be criticised. 
46.	If having demolished the original buildings, the Claimant were to secure planning permission for new buildings within the area covered by the 1993 permission, then by reason of the 1993 permission he would be able to use those buildings for repair or maintenance. 
47.	The Inspector dealt at length with the question whether the new buildings that were erected should be granted planning permission, and decided they should not. This aspect of his decision is not challenged. It was not argued by the Appellant, either in the written representations to the Inspector or before me, that the Inspector should have considered granting planning permission for buildings corresponding in dimensions and siting to the original ones. However, in any event, it is plain in my judgement that he would not have granted such planning permission. That is because it is clear from DL 11 and 19 that he saw the differences between the original and new buildings as being marginal only.  
48.	Even on the basis that there was no "lawful use" that the enforcement notice failed to protect, can it be said that the Inspector failed in his duty to consider the appeal under section 174(2)(f), because he gave insufficient reasons for rejecting the Appellant's "Mansi" argument? In my judgement, no.  
49.	At DL 22 and 23 the Inspector dealt adequately with the points raised by the Appellant. No criticism is made of the way he dealt with ground (f) other than to say he gave insufficient reasons for rejecting the Appellant's argument about the fall back position. In the absence of that fall back position, the Inspector's conclusion under ground (f) was inevitable, given the views he had already expressed about the unacceptability of the new buildings in policy terms. 
50.	It is true that the answer to the Appellant's argument which the Inspector gave in the first sentence of DL 23 was brief. But that has to be seen in the context of DL 22, in which he referred to the Appellant's contention that he should be allowed to return to the "position in 2007" ‑ ie to the position before he had demolished the original buildings. I think it was sufficient for the Inspector to say that the Appellant chose to demolish the original buildings and then to erect the new ones. After all, that demolition is at the root of the problem the Appellant now faces. He could have kept the original buildings, applied for permission for the new ones, and then on the refusal of the new ones, retained the originals. Instead, he demolished the original buildings, before erecting (without the requisite planning permission) the new buildings.    
51.	Even if contrary to my view the Inspector's reasoning in relation to ground (f) was defective as alleged by the Appellant, that would be no ground to quash this decision, because the decision could not possibly be different. The Appellant was raising the existence of a "fall back" position in law. Either he was right or wrong about that. In my judgement he was wrong. In those circumstances, it could not avail the Appellant even if the Inspector had not given sufficient reasons for rejecting what was in essence a legal submission. 
Specificity 
Appellant's submissions 
52.	Mr Powell also argued that the requirements of the enforcement notice were insufficiently specific. The notice required the demolition of the buildings shown on the plan attached to the notice, and marked blue. That, said Mr Powell, was insufficiently clear. It does not tell the recipient what to do in technical terms concerning the extent of the demolition. The breach is specified by reference to an illustrative drawing which does not specify units. To comply with the notice, a length of building scaled from the small, photocopied A4 plan would fall to be demolished. There may be a party wall. Should it stay or go? The Inspector does not explain, says Mr Powell. 
Conclusions 
53.	In my judgement the enforcement notice requirements were sufficiently specific. It is significant that in his appeal submissions to the Inspector the Appellant did not complain that he did not know what the enforcement notice meant, or could not tell with enough precision what it was requiring him to do. Mr Powell said that there might be a party wall, and that the Inspector did not explain whether that should stay or go. However, there was no evidence before the Inspector, let alone before me, that any such practical difficulties actually existed in complying with the enforcement notice ‑ whether concerning party walls or anything else. All parties understood that the newly erected buildings had to be demolished.  
OVERALL CONCLUSION 
54.	The Appellant's grounds of challenge are unsustainable, and this appeal must be dismissed.
55.	MR ZWART:  My Lord, in those circumstances, the first respondent asks for its costs in the summary assessment of costs, which I do not know if you had a copy.  
56.	THE DEPUTY JUDGE:  I have had it.  Thank you very much, Mr Zwart, yes.
57.	MR ZWART:  May I add also the sum of £200 representing two hours for myself to read the papers and attend this morning, so it would make it a total of £10,425.
58.	THE DEPUTY JUDGE:  Mr Powell? 
59.	MR POWELL:  My Lord, I cannot resist the principle of costs, of course.  However, the quantum of the costs does seem to be somewhat high, particularly in relation to the respondent's work done on documents.  Of course, this is the respondent's costs.  There is relatively little, in my submission, to be done on documents.  He is dealing with the appellant's bundle and so forth, and to spend, at the top of the second page, 17 1/2 hours on that does seem to be excessive.  One wonders if there has been perhaps some duplication involved between the permission stage and the hearing before your Lordship.
60.	THE DEPUTY JUDGE:  Yes.  Mr Zwart, can you help us with that?  I have to say, Mr Powell, that did occur to me. 
61.	MR ZWART:  My Lord, in relation to item A of the work done on documents, the 6 hours instructed relate to my instructing solicitor behind me who took over the case from an antecedent solicitor.  At B, the 17 1/2 hours, I understand, represents a minute of advice and going through the documents where the solicitor themselves forms a view of the case and advises the inspectorate and so forth, and, in addition, a brief to counsel.
62.	THE DEPUTY JUDGE:  That is not that far short of half a week's work.  This case ‑‑ you will not know because you were not here ‑‑ but this case took an hour and a half to argue before me, or maybe it was two hours, I cannot remember.
63.	MR ZWART:  I understand that it was half a day anticipated by all parties, and the claimants have themselves incurred costs of about £20,000, so that although on the face of it it appears to be short, it appears to have been not uncomplicated from the claimant's perspective.  Also, you will note that Mr Powell's seniority is quite high and likewise Mr Randall (As heard) at the permission stage who (Inaudible) also engaged.
64.	THE DEPUTY JUDGE:  But their fees are separately covered.  Sorry, we are at cross purposes, I realise.  Treasury counsel's fees are separately covered.  Mr Buttler is charging ‑‑ and again I am not criticising this, because no criticism has been made by Mr Powell ‑‑ but he is charging £1,728 for advice, and then there is £528 for hearing.  So I do not know what rate Government pays counsel, but it cannot be much more than £100 an hour, can it? 
65.	MR ZWART:  No, it was not in relation to that, my Lord.  I am sorry. 
66.	THE DEPUTY JUDGE:  But my point was, if I am right about what Government counsel charges, Mr Buttler spent 17 hours doing an advice and then you are telling me that somebody else, a solicitor, has spent 17 1/2 hours doing an advice as well.  Now, did it need all that?
67.	MR ZWART:  Well, you have my submissions, my Lord, in relation to 17 1/2 hours and that is the content of it.  
68.	THE DEPUTY JUDGE:  Right, okay.
69.	MR ZWART:  In relation to the number of hours, essentially it appears, if you take an 8‑hour working day, to be a couple of days on the case.
70.	THE DEPUTY JUDGE:  Yes.  You are doing well if you manage to charge 40 chargeable hours out a week, I think.
71.	MR POWELL:  If it assists my Lord, the work done on documents by my solicitors were some 6.4 hours.
72.	THE DEPUTY JUDGE:  All right.  So that was the point you wanted to make, Mr Powell, about the £2,800.  That was your point, and you have helpfully given your response, Mr Zwart.  
73.	Well, obviously with any costs bill of this kind I am encouraged to make a summary assessment.  I have the option of sending it for a detailed assessment, but I suspect all parties would prefer that to be avoided if at all possible.  I am bound to say that I am concerned at this costs bill, and in particular at the item that Mr Powell criticises, namely the £2,800 for the 17 1/2 hours a solicitor spent on the various purposes that Mr Zwart mentions, particularly in the context that that is not the only work done on documents by the solicitors for the Government.  There is 6 hours at £160 an hour, and another hour and a half at £80 an hour, and then 2.9 hours at £90 an hour.  Then on top of that, Mr Buttler has perfectly understandably charged a fee for the hearing and Mr Zwart has perfectly properly charged a fee for being here this morning.  Then Mr Buttler has charged £1,728 for advice, conference and documents.  But in the overall context of that, I am afraid I find the £2,800 simply unjustified and I do not propose to allow it in full.  I am going to allow £300 of it, which will knock £2,500 off the total costs bill.  
74.	I am hoping that the gentlemen in front of me have better arithmetic than me.  If we knock £2,500 off the total, I am hoping that one or both of them will tell me how much the costs bill should be.  
75.	I should say, I am looking at that £2,500 not in any way intending to be critical of the particular solicitor involved, but I am looking at it in the overall context of this costs bill and the overall context of the total work carried out by the legal advisors for the Treasury.  It would have been possible for me to make a reduction in the Treasury's costs bill in some other way, because it seems to me to be very substantial for a case of this relatively small compass.  I do want to emphasise I am not in any way critical of the solicitor who was responsible for the £2,800 costs, but it does seem to me to be very excessive in the overall context that we have.
76.	Right, so can somebody help?
77.	MR POWELL:  £8,715, my Lord.
78.	THE DEPUTY JUDGE:  £8,715?  Right.  In those circumstances, the appeal will be dismissed and the appellant will pay the Treasury's costs in the amount of £8,715.
79.	MR ZWART:  My Lord, just for clarity, may I also request that that amount be paid within 14 days that the CPR usually provides for.
80.	THE DEPUTY JUDGE:  Do you have any objections?
81.	MR POWELL:  28 days would be easier on my clients.
82.	THE DEPUTY JUDGE:  28 days?  
83.	MR ZWART:  Yes.
84.	THE DEPUTY JUDGE:  Very well.  To be paid within 28 days.
85.	MR POWELL:  My Lord, with respect and the usual apologises, may I trouble your Lordship for permission to appeal? 
86.	THE DEPUTY JUDGE:  You can certainly ask, Mr Powell. 
87.	MR POWELL:  The essence of my submission is that it is a matter which has a reasonable prospect of success and also one of some importance dealing the Mansi principle, a well‑known principle in planning law, and in my submission in order for this matter to succeed there will need to be an exception developed to the Mansi principle.  It is a matter which the Court of Appeal would rightly take an interest.
88.	THE DEPUTY JUDGE:  In my view, you have no reasonable prospects of success and there is no other good reason to grant permission to appeal.  I refuse permission to appeal.
89.	MR POWELL:  Thank you.
90.	THE DEPUTY JUDGE:  Thank you very much, Mr Powell; thank you, Mr Zwart.  Is there anything else gentlemen?
91.	MR POWELL:  My Lord, no.
92.	THE DEPUTY JUDGE:  Thank you very much, and thank you for your help yesterday, Mr Powell.