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 October 2014

1. MRS JUSTICE ELISABETH LAING: The Claimant applies for various declarations that two enforcement notices which were made in 2009 and 2010 are nullities. The application was made by a claim issued on 4 September 2014 under Part 8 of the CPR. It has not been made by an application for judicial review. It has been listed urgently because it is said that the question whether these enforcement notices are valid or not must be decided before an appeal against the refusal of planning permission for the site which these enforcement notices affect. That appeal is due to start on 28 October 2014.
2. The Claimant was represented by Mr Crean QC and Mr Rudd and the Defendant by Ms Sheikh QC.
3. Mr Crean was apparently taken aback when I asked at the start of the hearing on 23 October why this claim had been made under Part 8 rather than under Part 54, although this point had been made by Ms Sheikh in her skeleton argument. He eventually accepted that this claim should have been made under Part 54, that it was significantly out of time and that he was able to advance no explanation for the delay in bringing it. He nevertheless asked me to treat the Part 8 claim as if it had been made under Part 54, to grant permission to apply for judicial review and to make the declarations for which he asked.
4. The facts
5. I take the facts largely from the helpful skeleton argument which was prepared for the hearing by Mr Crean and Mr Rudd. The Claimant owns land at Pineridge, Nine Mile Ride, Crowthorne, Berkshire, RG40 3ND, which is described as Pine Ridge Park Homes ("the Land"). The Land is in an area of open countryside about two kilometres northwest of Crowthorne and in the Defendant's area. The site is bounded to the north, south and west by woodland and to the east by an existing caravan park. The area on the Land is 0.671 hectares.
6. The Claimant has developed the Land to accommodate 22 hardstandings and the installation of utilities and services associated with those hardstandings. The enforcement notice dated 26 June 2009 ("the first enforcement notice") states that these activities are operational development and need planning permission. It also states that the development was carried out without planning permission and must therefore be removed.
7. The Claimant then stationed 22 caravans on the 22 hardstandings and made a close-boarded fence around the Land supported by posts inserted into the ground in concrete-filled poles. The enforcement notice dated 11 February 2010 ("the second enforcement notice") was issued by the Defendant on 11 February 2010. It referred to a material change of the use on the Land without planning permission "for the stationing of mobile homes for the purposes of human habitation ... and without planning permission the erection of a timber fence...". On 7 December 2009, a planning application was submitted by the Claimant to the Defendant asking for planning permission for the 22 caravans, hardstandings and associated utilities and fencing. That application was refused by the Defendant in a decision dated 30 March 2010.
8. The officer's report gives details of the Defendant's consideration of the relevant issues. It refers to the impact on the Thames Basin Heaths Special Protection Area ("the TBH SPA"), on slow-worms, badgers and various bird species. It is said that the caravans are mostly used to house single people who, it is said, would otherwise be homeless. All of the occupiers are or would be considered a low priority on the Defendant's housing list and all might be considered to be vulnerable. Several have been waiting for more than seven years to be housed by the Defendant.
9. Both the first and the second enforcement notice and the refusal of planning permission were appealed by the Claimant. There was a public inquiry which sat initially in July 2010. All three appeals were dismissed in a decision dated 1 April 2011. The Defendant relied on ecology evidence from Mr Andy Glencross at that inquiry. This set out the ecological impact on grass snakes, slow-worms and badgers.
10. That decision was appealed under sections 288 and 289 of the Town and Country Planning Act 1990 ("the 1990 Act"). The section 288 application and the section 289 appeals were dismissed by Belinda Bucknall QC sitting as a deputy judge of the High Court on 22 October 2012 (Cash v Secretary of State for Communities and Local Government and Wokingham Borough Council [2012] EWHC 2908 (Admin), [2013] JPL 420). On 12 December 2013, after an oral hearing, the Court of Appeal refused permission to appeal that decision.
11. On 2 May 2013 a further application for planning permission for the mobile home park was made to the Defendant. On two separate occasions the Defendant unlawfully refused to decide that application. After the Claimant sent a letter before action under the Pre-action Protocol for Judicial Review, the Defendant conceded that the refusal to determine the application was unlawful. It then determined the application and refused permission in a written notice dated 27 November 2013. The officer's report sets out the Defendant's reliance on the same ecological impacts to the TBH SPA and to protected species as the earlier report.
12. The refusal was appealed under section 78 of the 1990 Act. The appeal is due to be heard at a public inquiry listed to begin on 28 October 2014. The compliance period for the first and second enforcement notices expires on 12 June 2015.
13. Mr Crean draws attention to the following submissions or statements which were made by the Defendant about this development. Firstly, the Land is within 5 kilometres of the TBH SPA and the development on the Land has the potential to have a detrimental effect on the TBH SPA. That was the fifth reason for issuing the second enforcement notice. Secondly, introduction of residential development on the Land "...is considered to present a significant effect on this nationally and internationally protected area...", referring to the TBH SPA, in the officer's report for the planning application of December 2009, and in the officer's report for the planning application of May 2013. Thirdly, the Defendant "has received an objection to this development from Natural England on the grounds that the proposal will have an adverse impact on the nearby TBH SPA. The council believes that Natural England's case should be given considerable weight" (ecology evidence at the previous public inquiry). Fourthly, grass snakes and slow-worms have been identified as being on the site (again, ecology evidence to the previous public inquiry.)
14. There is also a witness statement dated 22 October 2014 from Andrew Glencross, the Defendant's countryside officer. He has prepared it in order to explain whether compliance with the requirements of the enforcement notices is likely to have an adverse impact on the TBH SPA. Paragraphs 5 to 8 of his witness statement read as follows:

i. "5. The SPA extends over a number of local planning authorities in Surrey, Berkshire and Hampshire and comprises a network of 13 Sites of Special Scientific Interest (SSSI) of predominantly lowland heathland and woodland. The Thames Basin Heaths SPA was designated due to the presence of breeding populations of three bird species: Dartford Warblers, Woodlarks and Nightjars. These birds nest on or near the ground and as a result they are very susceptible to predation of adults, chick and eggs (particularly by cats, rats and crows) and to disturbance.

ii. 6. Natural England has identified that net additional housing development (residential institutions and dwellings) up to 5km from the designated sites is likely to have a significant effect (alone or in combination with other plans or projects) on the integrity of the SPA. There is extensive objective scientific evidence that net additional housing development within 5km of the TBH SPA will result in a likely increase urban effects [sic] including recreational pressure which has been shown will in turn have an adverse effect on the breeding success of the populations of three heathland species of birds - Dartford Warbler, Nightjar and Woodlark (Hall 1996, Liley 2004, Terence O'Rouke 2004).

iii. 7. The implementation of the enforcement notice would result in a reduction of 22 dwellings within 5km of the TBH SPA and a consequent reduction in urban effects including recreational pressure resulting from this development. I think it would reasonable [sic] to conclude on the basis of objective evidence that the implementation of the 'project' (the enforcement notice) would not have a significant adverse impact on the TBH SPA either alone or in combination with other projects.

iv. 8. This conclusion is further borne out by the fact that not upholding the enforcement notice would have an adverse effect upon the SPA either alone or in combination with other projects, unless appropriate avoidance measures are delivered (full contributions towards Council's SPA Avoidance solution)."

15. The arguments
16. Mr Crean argues that the enforcement notices are invalid. He says in his skeleton argument at paragraph 18:

i. "In this case matters of third party consent arise in relation to European protected habitats and species said by the Defendant to be impacted upon by the development on the Land."

17. I do not think I need to set out all the provisions on which he relies. In short, he argues that the works to remedy the breach of planning control which are required by the enforcement notices (that is, removing 22 hardstandings and associated utilities and the caravans) and which would restore the Land to its previous condition, are works which are "plan or project", which engages regulation 36 of the Conservation of Habitats and Species Regulations 2010, SI 2010 No 490 ("the Habitats Regulations"). This is so, he argues, because the works are likely to have a significant effect on the European site (that is, the TBH SPA) and are not directly connected with, or necessary to, the management of the site. This means, he says, that there must be a detailed appropriate assessment of those works. The works can only go ahead if the appropriate authority decides that there would be no adverse effect on the integrity of the site. If it does not reach that view, the work can only go ahead if there are imperative reasons of overriding public interest and no satisfactory alternative.
18. His submission in his skeleton argument is that the enforcement notices are nullities because they impose obligations to carry out work which can only be carried out lawfully with the consent of the third party or by reference to other legislation. He submitted that the enforcement notices put the Claimant in an impossible position because he could not comply with them without breaking the law. In short, Mr Crean relied on the reasons given by the Defendant for opposing this breach of planning control as reasons why it should not be enforced against. He argues that the removal of the hardstandings, fence, caravans and their occupants will disturb the environment for the protected species and would not be permitted by Natural England or by the Defendant for those reasons. At first blush, this argument is highly paradoxical. But he submitted that I should not be beguiled by the apparent common sense of a view, based on the evidence of Mr Glencross, that the only significant adverse effect on the TBH SPA is that which has been and is still caused by the Claimant's breach of planning control, a breach which compliance with the two enforcement notices would remedy. Finally, he submits that the Article 8 rights of those for whom the caravans are their home are a powerful reason for granting the declarations he asks for.
19. Ms Sheikh reminded me that the terms of the enforcement notices were clear. Their requirements were not ambiguous, and neither enforcement notice was invalid on its face. She submitted first, that any challenge to the enforcement notices should have been brought by judicial review. Any such application would now be considerably out of time, no explanation has been given for the delay and I should refuse permission on that ground alone.
20. She submits, second, that in any event the argument that the enforcement notices are nullities is hopeless. She refers to the decision of the Court of Appeal in South Hams District Council v Halsey [1996] JPL 761. That decision, she argues, makes clear that the fact that compliance with an enforcement notice may entail obtaining a consent from a third party under a different legislative scheme does not make the enforcement notice a nullity. If, in fact, such consent is sought and not obtained, that would provide a defence pursuant to section 79(3) of the 1990 Act.
21. Third, and in any event, she submits that on the facts it is not remotely likely that either the Defendant, or English Nature, would suggest that compliance with the enforcement notices engaged the provisions of the Habitats Regulations: see the evidence of Mr Glencross, and the fact that English Nature opposed the Claimant's application for a grant of planning permission to legitimise his unlawful activities on the Land. This was a self-invented difficulty, she submitted, but if the Claimant were really concerned about an apparent conflict between his obligations under the enforcement notices and under the Habitats Regulations, he could consult both Natural England and the Defendant about this and no doubt his concerns would be allayed.
22. Mr Crean's written response to Ms Sheikh's argument was to say that her reliance on South Hams was "too simplistic". He said that it was "clearly distinguishable from the circumstances of this claim by references to the nullity/invalidity dichotomy and the factual context". What this meant, I think, was that an earlier decision of a Deputy Judge of the High Court in McKay v Secretary of State for the Environment [1994] JPL 806, which the Court of Appeal in South Hams expressly declined to follow, and which does not refer to section 179(3) of the 1990 Act (possibly because it was not in force at the material time) is still good law. He submitted that it was certain both that the Claimant would have to apply for a derogation under the Habitats Regulations and that such a derogation would not be granted. In that situation, he submitted, the enforcement notices were nullities.
23. He went on to submit that the claimant would not be able to rely on a section 179(3) defence in the magistrates' court as that would be prevented by the decision of the House of Lords in R v Wicks [1998] AC 92. The House of Lords decided in Wicks that an enforcement notice cannot be challenged in the magistrates' court on the grounds that it is invalid. If the Claimant were to rely on the absence of consent under the Habitats Regulations as a reason for not complying with the enforcement notice, that, he submitted, would be a challenge to the validity of the enforcement notices.
24. The relevant statutory provisions
25. The submissions in this case ranged fairly widely, but I do not need to say much about the law. Part VII of the 1990 Act deals with enforcement. Section 172(1) confers on a local planning authority a power to issue an enforcement notice where it appears to them that there has been a breach of planning control and that it is expedient to issue the notice, having regard to various matters. Section 173 provides for the contents of an enforcement notice. Section 174(1) confers a right of appeal to the Secretary of State against an enforcement notice. Section 174(2) sets out what the grounds of appeal are. They include that planning permission ought to be granted for the breach of planning control stated in the enforcement notice, that the steps required by the enforcement notice exceed what is necessary to remedy any breach of planning control, or that the compliance period is unreasonably short. Section 176 gives the Secretary of State power to amend an enforcement notice.
26. A person who does not comply with an enforcement notice by the end of the compliance period commits a criminal offence. Section 179 of the 1990 Act is headed "Offence where enforcement notice not complied with." So far as relevant, it reads as follows:

i. "(1) Where, at any time after the end of the period for compliance with an enforcement notice, any step required by the notice to be taken has not been taken or any activity required by the notice to cease is being carried on, the person who is then the owner of the land is in breach of the notice.

ii. (2) Where the owner of the land is in breach of an enforcement notice he shall be guilty of an offence.

iii. (3) In proceedings against any person for an offence under subsection (2), it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice..."

27. Section 285 is a preclusive provision. Subject to section 285(2), section 285(1) provides that the validity of an enforcement notice shall not be challenged other than by way of an appeal under Part VII of the 1990 Act in any proceedings whatsoever on any of the grounds on which an appeal may be brought. Section 288 confers a right to apply to the High Court on various grounds in relation to various decisions, including decisions of the Secretary of State refusing planning permission. There is no requirement to apply for leave. Section 289 confers a right of appeal to the High Court against an enforcement notice where the Secretary of State has given a decision on an appeal under Part VII. The appeal is on a point of law, with the leave of the High Court.
28. Section 285 does not exclude a challenge to the validity of an enforcement notice on what have been called "residual" public law grounds, such as bad faith, bias or procedural impropriety, as is recognised, for example, by Lord Hoffmann in Wicks at page 120B-D. Such a challenge, if it is to be made, must be brought by an application for judicial review. But an application for judicial review must be made promptly and in any event within three months of the date on which the grounds of challenge arose, unless there is good reason for the delay, and the court extends time: see Part 54 of the CPR. The provisions of Part 54 are a valuable protection for public authorities, and attempts to circumvent those protections by bringing an ordinary civil claim are an abuse of process: see O'Reilly v Mackman [1983] AC 237.
29. Discussion
30. As Mr Crean conceded, this claim should have been brought by judicial review a considerable time ago. The bringing of a Part 8 claim in this case is, in my judgment, an abuse of process. Mr Crean cannot explain the delay. Planning enforcement is a context in which it is essential for the relevant time limits to be observed (see Wicks at pages 120H to 121D per Lord Hoffmann). I have, despite the Claimant's abuse of the court's process, considered whether I should, nonetheless, grant permission to apply for judicial review. I do not consider that on the facts of this case there is any possible justification for allowing such a claim to proceed. I refuse permission.
31. I have, nonetheless, in case that approach is wrong, considered whether there is any arguable merit in this claim. For this purpose I assume, without deciding, that Mr Crean's challenge is not precluded by section 285 of the 1990 Act. In that context, I note that arguments about environmental matters were canvassed in the course of the statutory appeals, but Mr Crean, when asked, accepted that his current argument had not been relied on and was unable to explain why not.
32. In my judgment, the decision in South Hams makes it clear that arguments such as those relied on by Mr Crean are bound to fail. Obtaining any third party consent which is essential to enable a person to comply with an enforcement notice is no more or less than an aspect of complying with the enforcement notice. If an enforcement notice expressly or by implication requires a person to get such consent, it is not, for that reason, invalid. If, for any reason, despite proper attempts to get it, a necessary consent cannot be obtained, that is very likely to provide a defence under section 179(3) of the 1990 Act. Moreover, it is hard to see how a local planning authority, faced with such a situation, could reasonably start enforcement action.
33. I should deal with Mr Crean's submission that if the Claimant tried to rely on the section 179(3) defence by arguing that he had sought a derogation and failed, the magistrates would be bound to reject that defence on the grounds that such a defence would be an attack on the validity of the enforcement notice and would be precluded by Wicks. The two matters he submitted were "necessarily elided". He could not, he said, run a section 179(3) defence without impugning the validity of the enforcement notices. I reject that submission. In my judgment, it assumes that by advancing such a section 179(3) defence the claimant would be attacking the validity of the enforcement notices. But that assumption is simply wrong, as South Hams shows. Clearly, in testing such a defence, the magistrates will have to make a factual inquiry about what the Claimant has and has not done to comply with the enforcement notices. But that is Parliament's will: it is a necessary consequence of the amendment to section 179 which inserted the section 179(3) defence. That inquiry assumes that an enforcement notice is valid, rather than that it is not. It does not entail any assertion that an enforcement notice is invalid.
34. That deals with the principle.
35. In any event, on the facts, I accept Ms Sheikh's submission that it is not remotely likely that the relevant "competent authority" for the purposes of the Habitats Regulations would consider that compliance with the enforcement notices would be "likely to have a significant effect" on the TBH SPA. To put it another way, it is certain that the relevant competent authority would conclude that it would not have such an effect. The Habitats Regulations implement Council Directive 92/43/EEC ("the Directive"). They must be given a purposive interpretation. The Directive's purposes can be deduced from its recitals. Were it otherwise, the Habitats Regulations, instead of being a shield to protect fragile environments and species, would become a sword to attack them. I reject Mr Crean's submissions that in the relevant passages of his witness statement Mr Glencross has misdirected himself in law, and that for that reason his professional opinion about this should be ignored. Mr Crean had accepted in oral argument that there was no objective evidence that complying with the enforcement notices would have any adverse effects on the environment.
36. Finally, Mr Crean submitted that complying with the enforcement notices would entail throwing people onto the street, and that that should weigh heavily with me in the exercise of my discretion. I of course take into account what I assume are the Article 8 rights of the occupants of the caravans to respect for their homes. But these are qualified rights. Any interference in this case, as I have already held, would be in accordance with law. It would be manifestly proportionate to the legitimate aim of controlling development in this area close to the TBH SPA. I therefore reject the argument that the Article 8 rights of the occupants of the caravans could, on the facts of this case, be a reason for granting the declarations the Claimant seeks.
37. Conclusion
38. For these reasons, this claim fails. In short, the Part 8 claim is an abuse of process. I have nonetheless considered whether I should allow it to continue as an application for judicial review. I have concluded that I should not because I would refuse permission on the grounds (i) of inordinate and unexplained delay and (ii) lack of merit.
39. Any applications?
40. MS SHEIKH: My Lady, I am grateful. Yes, there are. There is an application for costs on behalf of the Defendant. I will just pass up the schedule, if I may.
41. MRS JUSTICE ELISABETH LAING: I think I might already have a copy of it.
42. MS SHEIKH: My Lady, it has been updated because of today.
43. MRS JUSTICE ELISABETH LAING: I see. All right.
44. MS SHEIKH: I do not know if your Ladyship has got the Claimant's costs schedule? Sorry, I have given you the wrong one. (Handed). I have passed them both up in any event. My Lady, the Woking one obviously is ours. It seeks just over £18,000 costs.
45. MRS JUSTICE ELISABETH LAING: Golly, that is a lot.
46. MS SHEIKH: Well, my Lady, if you look at the Claimant's application it is around £52,000.
47. MRS JUSTICE ELISABETH LAING: Goodness gracious.
48. MS SHEIKH: Yes, indeed. I know. But, my Lady, I do submit that the costs incurred in this case are reasonable. I also ask that the application I make is made for costs on an indemnity basis, my Lady. Your Ladyship has found that this was an abuse of process, which I submit your Ladyship was right to do. Proceedings should not have been brought and there were other aggravating factors, such as not drawing your Ladyship's attention to the relevant case law or statutory provisions. There was no justification, no explanation advanced for the delay in terms of judicial review, so I ask in the first instance that the application of the costs be made on an indemnity basis and I seek the amount in the schedule.
49. MRS JUSTICE ELISABETH LAING: Yes. Can you just remind me what the test is for granting indemnity costs, please?
50. MS SHEIKH: Yes. It is just to do with conduct.
51. MRS JUSTICE ELISABETH LAING: But what kind of conduct?
52. MS SHEIKH: Conduct before, during and after. I will pull up the relevant provisions. It is Part 44. 44.3 sets out the principles. Then 44.4 just talks about having regard to all the circumstances and having regard to the conduct of the parties.
53. MRS JUSTICE ELISABETH LAING: It does not seem to explain where the guideline(?) is, which is a little bit surprising.
54. MS SHEIKH: No, I have to say it does not. I do not know if this latest version of the White Book just does not, because I am pretty sure that the text did used to say the considerations.
55. MRS JUSTICE ELISABETH LAING: Is there anything in the Practice Direction?
56. MS SHEIKH: There is the indemnity principle at 44.2(5).
57. MRS JUSTICE ELISABETH LAING: I am more interested in knowing when it (Inaudible) rather than what it is.
58. MS SHEIKH: Indeed. Well, my Lady, in fact 44.2 might be the best place. 44.2 says "Court's discretion as to costs" and then at 44.2(4), which in my book is page 1385 and then over the page at (5), it explains what conduct is. So (5)(a), (b), (c) and (d), those are the relevant factors.
59. MRS JUSTICE ELISABETH LAING: Yes.
60. MS SHEIKH: I would say, my Lady, that this case falls within all of those factors, in fact.
61. MRS JUSTICE ELISABETH LAING: Well, it exhibits factors like that.
62. MS SHEIKH: Yes, it exhibits factors like that. Indeed. I do not make the application lightly, but this is, in my submission, a case where this type of application is well made.
63. MRS JUSTICE ELISABETH LAING: Yes. All right. Okay, well, I have your submission. Thank you. Is there anything that you would like to add?
64. MS SHEIKH: My Lady, I can respond. I do not know yet if the principle or the amount is accepted.
65. MRS JUSTICE ELISABETH LAING: No, exactly, so you will have a right to reply to anything that Mr Rudd has to say.
66. MS SHEIKH: My Lady, the only other application I was going to make is, I have not taken instructions, but what I think would be appreciated is an expedited transcript. I am getting a nod from behind. Just so that the inspector, at least, can have your Ladyship's judgment.
67. MRS JUSTICE ELISABETH LAING: Yes. Whether it will be available as quickly as -- I do not know how long this inquiry is likely to last.
68. MS SHEIKH: It is running for two weeks, my Lady.
69. MRS JUSTICE ELISABETH LAING: I do not know how long an expedited transcript takes, but anyway, yes. I think that is a sensible application.
70. MS SHEIKH: I am grateful, my Lady.
71. MRS JUSTICE ELISABETH LAING: Shall we deal with that just as a discrete point?
72. Mr Rudd, presumably you do not have any objection to an expedited transcript being ordered?
73. MR RUDD: No, my Lady. In fact the inquiry is almost certainly going to run into the middle of December.
74. MRS JUSTICE ELISABETH LAING: All right. So I will start by making an order for an expedited transcript, please. So that is agreed. Yes, Mr Rudd. Costs?
75. MR RUDD: My Lady, in terms of the principle and the amount, I cannot really take any issue. The costs of both parties in this case seem higher than one might expect.
76. MRS JUSTICE ELISABETH LAING: I suppose that the Defendants perhaps reasonably have taken the view that they are facing an application made by leading counsel so they had better instruct leading counsel themselves. They have saved money by only instructing a leader and not instructing a junior.
77. MR RUDD: Yes, my Lady.
78. MRS JUSTICE ELISABETH LAING: All right. So you do not take issue with amount?
79. MR RUDD: I do not, my Lady.
80. MRS JUSTICE ELISABETH LAING: All right. That is helpful. What about the application for indemnity costs?
81. MR RUDD: I do take issue with that, my Lady. I do say that the application is not made out, and I am not quite sure on what basis it is being made for that matter. My Lady, your Ladyship and my learned friend may not like the merits of the application, but in my submission it was not wholly unmeritorious. There is a basis of concern. My learned friend says, "Well, the Claimant has not made reference to the appropriate case law." Mr Crean has been clear in his reliance on Wicks, which post-dates South Hams and deals with the issues, and he is entitled to deal with his application and the Claimant's application on the basis that Wicks addresses it. There is a whole wealth of case law that has not been brought to the court's attention because it was not felt by either party necessarily relevant in that South Hams and/or Wicks or Wicks and South Hams deal with the matters.
82. On top of that should be the global context of the individuals who this application is brought to seek to protect. That is the 22, as said, vulnerable individuals on the Land who cannot speak for themselves in these circumstances, who are largely low-priority individuals on the housing list, and the Claimant is seeking to protect their interests, as well as admittedly his own.
83. So, my Lady, it does seem to me that the application is made. In my submission there cannot be any criticism of the conduct of the Claimant. This is a matter of, I say, and will say in due course, significant public importance in terms of the 2010 Habitats Regulations and how they should be viewed in the specific context of those regulations when dealing with an enforcement notice. The Claimant quite properly has sought to deal with that, admittedly out of time. The conduct, in my submission, should not be criticised.
84. I would ask your Ladyship not to exercise her discretion to grant costs on an indemnity basis.
85. MRS JUSTICE ELISABETH LAING: Right. Okay. Anything you want to add?
86. MR RUDD: There is not. I will be asking for permission to appeal in due course.
87. MRS JUSTICE ELISABETH LAING: Okay.
88. Yes, Ms Sheikh?
89. MS SHEIKH: I am grateful. My Lady, I am struggling with those submissions, first because looking at the issue of conduct, the question of, I am afraid, the situation of the occupants is, with respect to Mr Rudd, not relevant. They have exercised the rights that they have been given through Parliament and continue to exercise them through further appeals. The court and Parliament has adjudged the manner in which their rights should be considered and they have been considered through the appeal process and the court process. It is not open to Mr Rudd or to anyone else to simply come along and say, "Despite all of that, we still want their rights to be looked at again," through what is, as your Ladyship, in my submission, has rightly judged to be an abuse process, otherwise that would turn the entire statutory regime and the whole system, in my submission, of law on its head. So that is no answer, in my submission. You cannot just say, "I am coming along because I feel sorry for them, and that is not an abuse of process." It is.
90. My Lady, in terms of (b), (c) and (d), which my learned friend has not addressed, it was not reasonable for the Claimant to raise, pursue, or contest the issue here for the reasons that you have said. The manner in which it was pursued through an out-of-time -- well, through a Part 8 claim, not through judicial review, and then no explanation at all as to the delay, despite it all being flagged up in the skeleton argument, and despite leading counsel having been instructed and solicitors. I do not think (d), that is something different. That is to do with whether they succeed or not.
91. So, in my submission, if ever there was a case where the conduct of the party justifies an indemnity costs order it is here. I do not understand Mr Rudd in any case to be objecting to the amount, so in a sense I am not really sure where his point goes. But I do say these are classic indemnity costs points.
92. MRS JUSTICE ELISABETH LAING: Yes, all right.
93. MS SHEIKH: I am grateful. My Lady, I will wait to hear about this application for appeal, but I have something to say about that.
94. MRS JUSTICE ELISABETH LAING: I am sure you will have. Shall we just deal with one thing at a time?
95. MS SHEIKH: Yes.
96. MRS JUSTICE ELISABETH LAING: So I will deal with the costs application.
97. Ms Sheikh, having succeeded, applies for summary assessment of the Defendant's costs in the total of £18,013.20. That may seem quite a lot of money for a one-day hearing, but I note that it is only slightly more than a third of the costs that would have been claimed by the Claimant had the Claimant succeeded, and in any event Mr Rudd takes no issue with the amount. So I will order the Claimant to pay the Defendant's costs in that amount.
98. Ms Sheikh also asks, I think perhaps out of an abundance of caution, that I should make an order for indemnity costs, although, as she has just pointed out, if in fact I have ordered the amount claimed to be paid not much may turn on whether this is an order for indemnity costs. But in any event, dealing with it very briefly, in deciding whether or not to make an order for costs on an indemnity basis, under CPR 44.2(4) the court, in deciding what order to make about costs, will have regard to all the circumstances, including the conduct of the parties. At paragraph (5) the conduct of the parties includes conduct before as well as during the proceedings, and whether it is reasonable for a party to raise, pursue or contest a point. It seems to me that, if it is necessary to decide that the costs should be awarded on an indemnity basis, I would so decide. For the reasons given in my judgment, this was a wholly unmeritorious claim; the bringing of it by a Part 8 claim was an abuse of process; any application for judicial review was well out of time; and the arguments, for the reasons given in the judgment, were completely hopeless. So, if it is necessary for me to make an indemnity costs order, I do so.
99. All right. Application for permission to appeal, Mr Rudd?
100. MR RUDD: I make it just to check my client's position, my Lady, but I say regardless of the fact that it was significantly out of time as a Part 54 application it is of significant importance in the context of the overall planning system. These European protected sites have been in place for a limited number of years. It is not something the planning system has wrestled with, particularly in an enforcement context. In that capacity, I do say it is a matter that the Court of Appeal should be seized of and it is a matter of significant public importance.
101. MRS JUSTICE ELISABETH LAING: All right.
102. Ms Sheikh?
103. MS SHEIKH: I am grateful. My Lady, I am not clear what Mr Rudd is seeking to appeal, because as I understood your Ladyship's judgment you Ladyship, although you went on and dealt with everything, declined to treat this as a Part 54 claim. Was I correct?
104. MRS JUSTICE ELISABETH LAING: Yes.
105. MS SHEIKH: So then it is not clear to me what is being challenged: the refusal to treat it as a judicial review, because --
106. MRS JUSTICE ELISABETH LAING: Well, I suppose that entails dismissing the Part 8 claim, because I have held it is an abuse of process.
107. MS SHEIKH: So it is an appeal to the Part 8, that dismissal.
108. MRS JUSTICE ELISABETH LAING: Yes.
109. MS SHEIKH: Appeal to the dismissal of the claim, so a procedural appeal then?
110. MRS JUSTICE ELISABETH LAING: Well, it is more than that, because essentially I have dismissed the claim and that is the end of the road for them.
111. MS SHEIKH: Well, my Lady, first of all if it is a Part 8 appeal to the Court of Appeal then it does not, in my submission, meet the tests for going up to the Court of Appeal at all in any respect. If it is going to also be bound up in a sort of out-of-time judicial-review-type challenge, then I would ask that it is -- I do not think it matters now if it is totally without merit, because it still has to be an appeal to the Court of Appeal.
112. MRS JUSTICE ELISABETH LAING: Yes.
113. MS SHEIKH: For the abundance of caution again, my Lady, if it needs to be dealt with as totally without merit, I would ask your Ladyship to mark it as such, if that has any meaning for the purposes of an appeal here. But I would oppose it for the reasons that your Ladyship has given in the judgement, which is extremely clear, and that there is no prospect of the Court of Appeal considering that its tests are met for an appeal.
114. MRS JUSTICE ELISABETH LAING: Okay.
115. Mr Rudd, do you want to add anything?
116. MR RUDD: I do not think I can assist any further, my Lady.
117. MRS JUSTICE ELISABETH LAING: All right. Thank you both very much.
118. Mr Rudd applies for permission to appeal against my decision. He argues that this case raises a point of law of public importance about the Habitats Regulations.
119. I dismiss that application. It seems to me that there is no arguable point of law anywhere in this case, and, if the analysis I have adopted in the judgment is correct, there is no point of law of public importance in this case either. If it is necessary to do so, I would indicate that I consider this case to be totally without merit.
120. MS SHEIKH: I am grateful, my Lady.
121. MRS JUSTICE ELISABETH LAING: Thank you both very much. Is there anything else I can usefully deal with?
122. MR RUDD: No, my Lady.
123. MRS JUSTICE ELISABETH LAING: All right. Thank you very much.