England and Wales High Court (Administrative Court) Decisions

IN HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT

		Royal Courts of Justice Strand London, WC2A 2LL
		27th February 2015

1. THE DEPUTY JUDGE: This an appeal ("the second appeal") under section 289 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision dated 25 February 2014 ("the second decision letter") of an inspector ("the second inspector) appointed by the Secretary of State for Communities and Local Government. The London Borough of Waltham Forest ("the Council") issued an enforcement notice ("the enforcement notice") on 25 May 2011 in respect of property at 61 Lincoln Street, Leytonstone, London E11 4PZ ("the property").
2. The enforcement notice alleged that there had been a material change of use, namely a change of use from use as a single dwelling house to use as three self-contained flats. The notice required cessation of use of the three self-contained flats, the restoration of the property to its authorised use as a single dwelling and the removal of all structures, fixtures and fittings associated with the use of the property as three self-contained flats, including any kitchen fittings.
3. It is appropriate first to set out the background and then to refer to the relevant provisions of the Town and Country Planning (Use Classes Order) 1987 as variously amended ("the Use Classes Order") before returning to the history of the present litigation.

Background.

4. The property was purchased by the appellants, Mr and Mrs Bowring, in 1998 when it was in a substantial state of disrepair. The appellants carried out various works to the property. The original intention was to use the property as a house in multiple occupation ("HMO"). The use was changed to a HMO at some time between 2008 and early 2010 ("the first change of use"). The precise date remains obscure despite two decision letters. Then in late 2010 the property was divided into three separate flats ("the second change of use").
5. Although there was initially an appeal against the enforcement notice on ground (b), this ground was withdrawn in advance of the hearing before the first inspector. Thus there is no dispute that the second change of use required and did not have planning permission.

The Use Classes Order.

6. By section 55(2) of the 1990 Act:

"the following ... 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 purposes of the same class."

7. Whether the first change of use required planning permission depends upon whether the particular HMO fell within Class C3(b) of the Use Classes Order in its original version, which was current at the time of the first change of use. Class C3(b) then covered:

"Use as a dwelling house whether or not as a sole or main residence –

……

(b) by not more than six residents living together as a single household (including a household where care is provided for residents)."

8. With effect from 6 April 2010 Class C was amended and a new Class C4 was specified by the Town and Country Planning (Use Classes) (Amendment) (England) Order 2010, article 2(3). The former class C3(b) was refined into:

"(b) not more than six residents living together as a single household where care is provided for residents; or

(c) not more than six residents living together as a single household where no care is provided to residents (other than an use within Class C4)."

9. A new Class C4 (Houses in Multiple Occupation) was specified:
10. "use of a dwelling house by not more than six residents as a 'house in multiple occupation'."
11. The policy behind the change appears to have been a view that some of those claiming to fall within the old Class C3(b) were not really "living together as a single household" and should be reclassified under Class C4 where there is no "single household" requirement.
12. Prior to the 2010 change the term "single household" in the old Class C3(b) involved a test of fact and degree, depending on whether the six or fewer persons had sufficient stability and communality about their living arrangements to be "living together as a single household, see R(Hossack) v Kettering Borough Council [2003] 32 P&CR 34. The statutory instrument implementing the 2010 Class C3 changes states that the Housing Act definition applies "for the purposes of Class C3(a)". Miss Blackmore for the Secretary of State argued therefore that a different interpretation of single household applied to Class C3(a) from that which applied to Class C3(b) and (c). Mr Van Heck for the appellants argues that the footnote contains a typographical error and must have been intended to mean and should be construed as "for the purposes of Class C3" thus omitting (a) after C3. He contends that the effect of the 2010 change was to apply the much more restrictive definition of single household in section 258 of the Housing Act 2004 to the expression "single household" wherever that appears in the new Class C3.
13. Guidance on the interpretation of the old Class C3 and the new Classes C3 and C4 is contained in ODPM circulars 03/2005 and 08/2010, the latter of which says at paragraph 10:

"The result of this [2010 amendment] was that development previously falling under Class C3 was reclassified and now falls into either new C3 or C4 Classes. This reclassification does not amount to a change of use under planning legislation (it is not classified as development) - so no consequences arise from the reclassification in terms of the need to seek planning permission."

14. This may provide some limited support for Mr Van
15. Heck's interpretation. However, I do not need to resolve the disputed matter, the competing arguments not having been fully developed before me. It is plain that very strong grounds would be needed to displace the presumption that the footnote was intended to refer only to Class C3(a).
16. On 1 October 2010 further provision was made by the Town and Country Planning (General Permitted Development) (Amendment) (No. 2) Order 2010, so that development consisting of a change of use of a building between Classes C3 and C4 became permitted development. However, since 16 September 2014 the effect of a direction made by the Council under article 4 of the Town and Country Planning (General Permitted Development) Order 1995, as amended by the Town and Country Planning (General Permitted Development) (Amendment) (England) Order 2010, has been that planning permission is needed within the Council's area to change from Class C3 to Class C4.

Round One.

17. The appellants appealed against the enforcement notice on a number of grounds and their appeal was heard at a hearing on 13 December 2011 ("the hearing") before an inspector ("the first inspector"). By a decision dated 22 November 2011 ("the first decision letter") the appeal was rejected on most grounds, but in response to the appeal under ground (f)(excessive steps) the requirements of the enforcement notice were varied under section 176(1) of the 1990 Act so that rather than require the removal of the kitchen fittings and equipment from both the first and second floors, all that was required was removal of the kitchen fittings and equipment from the second floor. This variation was made because the first inspector acknowledged that:

"In relation to a Class 3 use, this could mean that the property could revert to a house in multiple occupation but it would still be classed as a single dwelling house." (paragraph 23).

18. He said that he accepted the appellant's contention that it was not unusual for single dwellings or for dwellings shared by more than one persons to have more than one area for food preparation; and that requiring removal of only the first floor kitchen would give the opportunity for people living in the house to use both the large kitchen on the ground floor and/or the smaller one on the second floor, which arrangement would be in line with the aims of the other requirements in restoring the property to a "Class 3 use" (paragraph 25).His several references to a "Class 3 use" must be to "Class C3. Dwelling houses" in the Use Classes Order, as amended in 2010. It would also appear that he shared Miss Blackmore's rather than Mr Van Heck's construction of single household in the new Class C3(c).
19. In an attempt to retain both upper floor kitchens the appellants then appealed against the first decision letter under section 289 ("the first appeal"). Their contention was that since the two additional kitchens were installed before the material change of use to three flats and were intended to further a different lawful use of the property, namely a use as a house in multiple occupation, the enforcement notice could not lawfully require their removal; such a notice would exceed what was required to remedy the breach of planning control. Alternatively they argued that the first inspector had not considered that issue and did not decide whether the installation of the kitchens was or was not part and parcel of the making of a material change of use.
20. In a judgment dated 3 May 2013, [2013] EWHC 1115 (Admin), Mr Clive Lewis QC, as he then was, sitting as a Deputy High Court Judge allowed the first appeal on the alternative ground and remitted the matter to an inspector to determine whether or not the installation of the two additional kitchens was integral to and part and parcel of the material change of use. (It does not appear that the learned Deputy Judge's attention was drawn to CPR 52 PD 22.6 C(13) in this respect).
21. At paragraph 16 of his judgment he said:

"... where an enforcement notice is served alleging the making of a material change of use of land and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use. On the facts of cases such as the present it will not be sufficient if the works are integral to or part and parcel of the present unauthorised use of land if the works had been undertaken for a different and lawful use and could be used for that other lawful use, even if the unauthorised use ceased."

22. At paragraph 20 he said:

"In the present case, the inspector did not address the question of whether or not the installation of the kitchens was in fact undertaken for a different lawful use or whether the works were in reality done as part of the making of a material change of use of the land from use as a dwelling house to use as three self-contained flats. There is insufficient evidence to indicate that there is only one answer to that question. The matter will therefore have to go back to an inspector for that inspector to consider all of the facts, to determine whether or not the two additional kitchens were installed for the purpose of developing the property as a house in multiple occupation or whether in fact they were installed as part of the process of converting the house into flats. That will require the inspector to look at all of the relevant facts, including, potentially, the date when the kitchens were installed, the length of time, if any, in which they were used by people living in the house prior to the conversion to flats, any evidence of the intention underlying the installation of the kitchens and any other relevant fact."

Round Two.

23. The remitted appeal against the enforcement notice was heard at a public inquiry ("the inquiry"). There was no agreed statement of common ground. The appellant submitted four written statements but none of the makers of the statements, including the first appellant, attended the inquiry. Thus their evidence as to disputed matters of fact could not be subject to cross-examination. The Council called three witnesses whose evidence was given on oath and who were cross-examined by counsel for the appellants.
24. The second inspector did not confine his consideration to the matter identified by Mr Clive Lewis QC. As he said in paragraph 6 of the second decision letter:

"The order of the High Court is dated 3 May 2013. As a result of it this decision supersedes that issued on 22 December 2011. Since the first decision is superseded it is necessary for this Decision to re-examine each of the appeal grounds taking into account any material changes in circumstances, including relevant changes in planning policies."

25. Amongst the matters re-examined by the second inspector was whether the first change of use without express planning permission had been lawful. The inspector said that this issue was pertinent to consideration of which policies were relevant under ground (a) and to some aspects under ground (f). Having summarised some of the appellants' evidence he said at paragraph 10:

"On the appellants' evidence the change from a single dwelling house (C3) to a HMO began in October 2008, well before these changes to the UCO and GPDO. That was a material change of use. The residents were not living as a single household and there would have been material planning effects, for example with regard to the effect on comings and goings and on the supply of family dwellings. At that time the use of a dwelling house as a HMO would have required planning permission, which was not obtained. There was no provision in the amendments to the GPDO for retrospective approval of a change of use that had occurred before 1 October 2008. The HMO use is to have taken place for a period approaching two years, so that it did not become immune from enforcement action. The HMO use was not a lawful use."

26. He went on to reject the appeal on ground (a), before turning to ground (f). He then summarised the evidence of the appellants as to when the kitchen fittings were installed before turning to that of the Council's witnesses. In respect of the matter remitted by Mr Clive Lewis QC, his findings were set out at paragraphs 27 to 29 of the second decision letter:

"27. The loft conversion was complete by January 2010, which would have given a period of more than a year before the second floor was let as a flat. It was in the appellants' interest to make use of it and I find it credible that it was used as a HMO during that period. The second floor kitchen fittings are very limited in extent and are positioned away from the dormer window. Although Mr O'Donoghue suggests that the property was uninhabitable when he visited in September 2009 it was not the function of his visit to check whether kitchen fittings were present. Mr Bramwell was unable to gain access to the top floor. I consider on the balance of probabilities that the kitchen fittings present on the second floor when the enforcement notice was served were those installed for the HMO use. They were not part of the conversion to three flats so that a required for their removal would be excessive.

28. I take a different view with regard to the first floor kitchen fittings. It is likely that some kitchen fittings were installed at first floor level for the use of HMO tenants. However, Mr Bramwell's evidence is that there were no kitchen fittings there on the 2 August 2010. This is confirmed by his photographs and is not surprising, as extensive building works were ongoing. At that time there was a door in one of the walls against which kitchen equipment is now fitted. Mr Bramwell's visit was made within one month of the ground floor flat being let and within three months of the first floor flat being created and let. The kitchen fittings must have been installed some time after his visit. It is likely on the balance of probability that the installation of the kitchen fittings, which were in place when the notice was served, were carried out as part and parcel of the conversion to flats. This conclusion submission is consistent with submissions of the appellants at the inquiry that available rooms were let as part of a HMO use up to mid 2010, when it was finally determined to divide the house into three flats.

29. I have already found that the HMO use was not lawful. It follows from that conclusion that the first floor kitchen fittings should not be retained on the basis of a return to that use as a lawful use. The installation of the first floor kitchen fittings was an integral part of the breach of planning control. I am satisfied that their removal is a necessary and proportionate requirement to ensure that the unauthorised use does in fact cease."

27. The appeal on ground (f) therefore succeeded in respect of the second floor kitchen but failed in respect of the first floor kitchen, an outcome virtually identical to that in the first decision letter, though achieved by different reasoning.

Grounds of Appeal.

28. The subsequent notice of appeal is a sorry document containing no grounds but referring to an attached skeleton argument prepared by the first appellant, who is a solicitor. They were, however, sufficient to obtain permission to appeal. For the hearing of the appeal Mr Van Heck prepared two skeleton arguments, in the first of which he described the initial grounds as "somewhat lengthy and discursive".
29. As reformulated without objection from Miss Blackmore for the Secretary of State, Mr Van Heck put forward three grounds. (1) The second inspector erred in law in concluding that the previous use as a HMO had been unlawful, in particular by retrospectively applying the terms of the 2010 amendments to the Use Classes Order to the situation that prevailed in 2008. (I interpose that 2008 is the date that the appellants' claimed that the HMO use had begun and thus the first change of use had occurred).
30. (2) The second inspector erred in that he failed to assess the question of whether the requirements set out in the enforcement notice that the first floor kitchen fittings should be removed were excessive on the basis that the previous use of the property as a HMO had been lawful.
31. (3) The second inspector erred in law in failing to recognise that he was differing from the first inspector's conclusion on the lawfulness of the HMO use and failing to reach the same conclusion.
32. In the course of argument it became clear that there were only two issues, since ground three is better considered as part of ground one. The first issue is whether the second inspector should not, for a variety of reasons, have concluded that the HRO use (and thus the first change of use) had been unlawful. The second issue is whether his erroneous conclusion on the first issue materially contributed to his decision to maintain the requirement that the first floor kitchen be removed. Mr Van Heck conceded that if he did not succeed on the first issue, the second issue fell away.

Issue One.

33. Contained within the first issue are three distinct matters. The first is the suggestion that the second inspector should not have strayed beyond the scope of the matter remitted by Mr Clive Lewis QC, so that it was wrong of him to have revisited at the inquiry and in the second decision letter the lawfulness of the HRO use. The second is that on the material before him his conclusion was erroneous and he should have reached the same conclusion as the first inspector (which seems to have been accepted without query by Mr Clive Lewis QC). The third is that if he disagreed with the first inspector on so important a matter he should have expressly recognised in the second decision letter that he was so disagreeing and should have given more detailed reasons for doing so.
34. In his supplementary skeleton argument Mr Van Heck contended also that the appellants had been "ambushed" by the way the Council at the last minute had put in issue the lawfulness of the HRO use. But when Miss Blackmore drew attention to various passages in one of the witness statements on the appellants' behalf which showed that the appellants were aware several weeks before the inquiry that the issue of lawfulness was likely to be raised, and also to the fact that at the inquiry there was no request for an adjournment to allow more time to address the question of lawfulness, even though the appellants were represented by counsel, Mr Van HecK made it clear that he was not alleging "procedural unfairness which materially prejudiced the applicants" (to use the "pedestrian phrase", use of which Jackson LJ recommended in this sort of case in Hopkins Developments Limited v Secretary of State for Communities and Local Government [2014] PTSR 1145 paragraph 49).
35. In my opinion the second inspector was right to reach his own conclusion on the basis of the latest evidence on the question of the lawfulness of the HRO use. As he himself said, this was relevant to both grounds (a) and (f). In considering whether the requirements were excessive, the inspector necessarily had to consider not merely what was required to undo the breach of development control identified by the enforcement notice, but also whether the HRO use could lawfully be resumed. As provided by section 57(4) of the 1990 Act:

"Where an enforcement notice has been issued in respect of any development of land, planning permission is not required for its use for the purpose for which (in accordance with the provisions of this Part of this Act) it could lawfully have been used if that development had not been carried out."

36. Further, the appellants' counsel had every opportunity at the inquiry to make submissions on this issue and it is clear from her outline closing submissions which are contained in the court bundle that she did so.
37. On the material before the second inspector, which included also all of the evidence given to the first inspector, the conclusion reached on the lawfulness issue was one which in no sense was Wednesbury unreasonable. There was a mass of evidence in the statements on behalf of the appellants that the HRO had not been used by "persons living together as a single household", the requirement of the old Class C3(b), but had rather been used by persons "forming different households". That was the description by the first appellant in his own statement. His managing agent Mr Rodrigues referred to the property as "a single dwelling house in multiple occupation with five separate bedsits" each with a "separate lockable door". He described at least two of the bed sits as having "internal kitchen facilities". Whilst an old Class C3(b) use could include bedsits, as probably could the new Class C3(c) use, the Secretary of State has long made it clear that "Uses as bed-sitting room accommodation if the occupants share some communal facilities within a building, such as a bathroom or lavatory" are likely to fall outside Class C3, see ODPM circular 03/2005, paragraph 72 and ODPM circular 08/2010, annex A paragraph 11. On the evidence before him, the second inspector was entitled to find as he said in paragraph 10 that "the residents were not living as a single household". There was no reason for him to reach the same conclusion as reached by the first inspector, particularly as he had additional and much more detailed information as to the HRO use than was before the first inspector. Nor was he required expressly to state that he appreciated he was differing from the view taken in paragraphs 23 and 25 of the first decision letter, of which he was plainly very well aware. I regard Mr Van Heck's reliance on what was said in the very different circumstances of North Wiltshire District Council v the Secretary of State for the Environment & Clover [1993] 65 P&CR 137 at 145 as misconceived.
38. There is a further point. The first inspector did not expressly state that the HRO use had been lawful and that there was right to revert to it under section 57(4) of the 1990 Act. What he said, in paragraph 23 of the first decision letter, was that return to a single dwelling house "could mean that the property could revert to a house in multiple occupation" (italics added). That was no more than to recognise that if the HRO use had been "as a single household" then there could be a right to revert to that use. It was not a finding that the HRO use had been "as a single household" or that the HRO use had certainly been lawful.
39. In his skeleton argument Mr Van Heck sought to rely upon the content of a witness statement by the first appellant dated 17 June 2014 in which Mr Bowring purported to rehearse some of the evidence given to the two inspectors by the appellants' witnesses, including himself. Unfortunately Mr Bowring also strayed beyond this and included new evidence relating to the nature of the HRO use that had taken place at the property, including cleaning arrangements he and his wife had made with the student occupants. He also alleged that Mr Rodrigues had stated on his statement on the second appeal that the property was originally rented to students. Mr Rodrigues's written statement to the second appeal is in the trial bundle but neither counsel has been able to trace any reference in it to students occupying the property. It is impermissible in section 289 proceedings to introduce further evidence; see Clarke v the Secretary of State for the Environment [1992] 3 PLR 146, CA, where it was stressed that the court should not of itself receive evidence on the appeal unless it was argued that the inspector at a planning inquiry had not properly summarised the evidence or had disregarded the evidence. Much of the first appellant's latest witness statement offended that principle and Mr Van Heck properly accepted that no reliance should therefore be placed on those parts. Therefore I reject all Mr Van Heck's arguments on the first issue.

The Second Issue.

40. I reject Miss Blackmore's bold argument that the first part of paragraph 29 of the first decision letter can be disregarded in considering the conclusion by the second inspector that the kitchen on the first floor should be removed. It plainly formed part of his reasoning and it was partly because he considered there was not a lawful right to revert to the original HRO use that he did not consider it appropriate for the first floor kitchen to remain. As Mr Van Heck rightly contended, if the second inspector had found the HMO use lawful rather than unlawful it would "follow", to use the inspector's word in the second sentence of paragraph 29, that he would or might well have concluded that the first floor kitchen could remain. However, this does not help Mr Van Heck because he sensibly recognised that the second issue did not arise if he was wrong on the first heading, as I have held him to be.

Reverter to Class C3(c).

41. I have also considered, although this was not specifically argued by Mr Van Heck, whether the second inspector ought to have addressed under ground (f)the possibility and lawfulness of a future use under the new Class C3(c) in which there might be a role for a first floor kitchen. However, as Miss Blackmore argued, it is clear that at the second inquiry the appellants' first choice if the enforcement notice were upheld was to use the property as two rather than three flats. This, as was pointed out in paragraph 3 of the second decision letter, would need planning permission. Apart from this first choice, all of their evidence to the inquiry related to a Class C4 use, there being no indication that they had in mind a future Class C3 use at all. Therefore there was no need for the second inspector to take a future possible Class C3(c) use into account in considering the ground (f) appeal, whether that be the wider Class C3(c) use which Blackmore argued is still available or the narrower Class C3(c) use for which Mr Van Heck argues. That was particularly so given the second inspector's finding that the first change of use had been you unlawful.

Disposal.

42. For these reasons the appeal is dismissed.
43. Yes Mr Dale Harris.
44. MR DALE-HARRIS: My Lord, the Secretary of State applies for his costs. I have handed up today an up to date schedule. There was a previous schedule served on the 23rd but this adds a modest amount, Sir, for dealing with the further note.
45. THE DEPUTY JUDGE: Let me just look at -- have you seen this, Mr Van Heck?
46. MR VAN HECK: I have my Lord, yes.
47. THE DEPUTY JUDGE: The grand total there, does that include counsel's fees?
48. MR DALE-HARRIS: It does, my Lord.
49. THE DEPUTY JUDGE: The grand total there is £14,748, a sum which is remarkably modest compared with the sum which Mr Van Heck was going to have claimed had he succeeded which would have been in the sum of £58,671. Mr Van Heck, is there anything you want to say about this rather modest claim for costs?
50. MR VAN HECK: My Lord, there are just a few submissions I can make on the reasonableness of specific aspects of the statement of costs. The first is on the third page under "attendance at hearing." There are two sets of tables there, the second set --
51. THE DEPUTY JUDGE: Wait a minute. Yes.
52. MR VAN HECK: The second set refers, under the grade A fee earner, a claim for 2.3 hours travel and waiting time. But it appears from the set of tables above that, that only the grade B fee earner has come to court. So I am at a loss to understand --
53. THE DEPUTY JUDGE: Just take it a bit more slowly. Where do I find that? I have the 2.3 hours and so forth.
54. MR VAN HECK: If my Lord looks above that at the first set of tables on the page.
55. THE DEPUTY JUDGE: Attendance at hearing. I can't see --
56. MR VAN HECK: Attendance of 6 hours claimed, or rather 8 in the new schedule for a grade B fee earner.
57. THE DEPUTY JUDGE: Where do I see the reference to the grade B? Oh, the (b).
58. MR VAN HECK: Yes, the (b).
59. THE DEPUTY JUDGE: 8 hours for the grade B, yes.
60. MR VAN HECK: And yet if you look into the lower set of tables, travel and waiting is claimed for both a grade A and grade B fee earner. I do not know how that can be in light of the attendance of only a grade B fee earner.
61. THE DEPUTY JUDGE: Yes. I have that point, yes.
62. MR VAN HECK: The second is with respect to disbursements as regards counsel. The statement is opaque as to how the £4,900 odd were incurred in respect of advice/conference/documents. We can work out from comparing the old statement to the new statement what the figure incurred is in relation to further note by the Secretary of State produced this morning.
63. THE DEPUTY JUDGE: How much has it gone up by?
64. MR VAN HECK: Gosh, I haven't worked it out, I am afraid, my Lord. £787.50.
65. THE DEPUTY JUDGE: 787?
66. MR VAN HECK: Yes.
67. THE DEPUTY JUDGE: Yes.
68. MR VAN HECK: In my submission, my Lord, that sum should be disallowed because the Secretary of State did not produce the note in compliance with my Lord's directions to do so within 24 hours of the hearing. It was done very much at the last minute only in response to my note, which was done the next day. But in any event it is impossible for the court to tell what the balance of £4113.34 is comprised of on the basis of the statement of costs.
69. THE DEPUTY JUDGE: We do know that this was a case where you did not prepare the bundle of documents, the Secretary of State incurred the costs of that.
70. MR VAN HECK: Yes, that's right.
71. THE DEPUTY JUDGE: And produced a very efficient and very clear bundle of documents.
72. MR VAN HECK: Indeed, I was going to mention that in due course.
73. THE DEPUTY JUDGE: I guess much of the time on that was spent by counsel sifting through the documents and putting them in order, that is a possibility.
74. MR VAN HECK: I don't know about that. If you turn to the schedule of work done on the documents, which is the last page of the statement, it may be that there is some duplication as between counsel and solicitors, in particular as regards item 2, drafting minute of advice.
75. THE DEPUTY JUDGE: Sorry, which page are we in? I think we are going to have to number these.
76. MR VAN HECK: Yes, my Lord.
77. THE DEPUTY JUDGE: Let me just number the pages so I know we are on the same page, right. We have five pages. You are taking me now to which page?
78. MR VAN HECK: Page 5.
79. THE DEPUTY JUDGE: Page 5, yes.
80. MR VAN HECK: Which is the schedule of work done on documents. And I would like to draw my Lord's attention first of all to item 2, drafting minute of advice. Now, without knowing what proportion of counsel's fees consisting of advising, I can't say whether this is duplicative or not, but one would have thought if a grade B fee earner had spent 7.2 hours drafting minute of advice, it would not be reasonable for counsel to spend time drafting an advice in addition; one advice ought to be enough.
81. THE DEPUTY JUDGE: I presume there was a conference and then it took 7.2 hours to write it up. I see your point there.
82. MR VAN HECK: The second point is that there appears to be a duplicative element as between items 1 of the case papers and 8, reviewing bundles, because the bundles would have contained documents within the category of case papers, so I do question whether it was necessary or reasonable for the grade B fee earner to review both the case papers and the bundles, taking 5.7 hours the first time and 5.9 the second time.
83. THE DEPUTY JUDGE: It is a separate matter, isn't it, first of all going through all of the case papers and making a preliminary selection for the bundle and reviewing the bundle afterwards, but I see your point. So you have your first point generally on the sum of counsel's fees.
84. MR VAN HECK: And what they are for, yes.
85. THE DEPUTY JUDGE: And then let us just go through. The last matter was that duplication of 1 and 8. I think I have missed the middle point.
86. MR VAN HECK: Yes, advice, whether there was a duplication of advice as between counsel and the grade B fee earner and there is one final point which is with respect to item 4, drafting instructions to counsel, 1.8 hours in my submission is on its face excessive, particularly so if there was, as my Lord suggests, a conference with counsel because it wouldn't have been necessary to draft counsel's instructions in great detail if a conference had already taken place.
87. THE DEPUTY JUDGE: Let me just make sure. Do we have four points on five points? The first point you are taking is on counsel's fees generally.
88. MR VAN HECK: Yes.
89. THE DEPUTY JUDGE: The second is the duplication of advice. The third is the duplication on perusing the documents and the last is that point. Do I have it right or have I left out one? Before you got to duplicating and advice.
90. MR VAN HECK: Yes, the first point, which is attendance at the hearing.
91. THE DEPUTY JUDGE: Oh yes, that's right. There are five points.
92. MR VAN HECK: Yes.
93. THE DEPUTY JUDGE: Mr Dale Harris, do you need some instructions on those five matters?
94. MR DALE-HARRIS: My Lord, I think there are a couple of points I might just --
95. THE DEPUTY JUDGE: What I am inclined to do is rise for five minutes for you to fully acquaint yourself -- because I don't imagine you have had any warning of these matters -- with the position. It may be that in negotiation with Mr Van Heck there can be a happy compromise in any event but I think that for me to hear a great deal of further submission is unlikely to be helpful until you have given the matter a bit of further consideration.
96. MR DALE-HARRIS: I am grateful my Lord.
(a short break)
97. THE DEPUTY JUDGE: Yes Mr Dale Harris.
98. MR DALE-HARRIS: My Lord, I am grateful. I have taken instructions. Just dealing with my client accepts that the first issue raised as to the attendance, apparently the grade A fee earners, that is a typographical error.
99. THE DEPUTY JUDGE: Which page are we on?
100. MR DALE-HARRIS: Page 3, my Lord. The 2.3 hours, apparently, attending the hearing, that should be 2.3 hours by a grade B fee earner.
101. THE DEPUTY JUDGE: And should be added to the 0.6.
102. MR DALE-HARRIS: And should be added to the 0.6, my Lord. I suspect that has gone in in the wrong column.
103. THE DEPUTY JUDGE: And does the figure still work out right, £200?
104. MR DALE-HARRIS: My Lord, there is a £92 difference.
105. THE DEPUTY JUDGE: What should that 2.3 lead to, instead of £200?
106. MR DALE-HARRIS: So my Lord, it is it should be 2.9 hours.
107. THE DEPUTY JUDGE: The total should be 2.9.
108. MR DALE-HARRIS: 2.9 hours at £160 which is a total of £464, my Lord, and at the moment £460 plus £96.
109. THE DEPUTY JUDGE: Is what?
110. MR DALE-HARRIS: Is £556.
111. THE DEPUTY JUDGE: How much is there to be deducted?
112. MR DALE-HARRIS: £92, my Lord.
113. THE DEPUTY JUDGE: Yes.
114. MR DALE-HARRIS: My Lord, my client considers all of the other costs are eminently reasonable. I have not had an offer from the other side, so my Lord if it is convenient I will make brief submissions as to why those costs are reasonable.
115. THE DEPUTY JUDGE: What about the fact that as far as your statement, it was provided, the first note, certainly counsel said £787 I am told for that. I don't know if there are any other element included for solicitors within that, and that was supplied late. I suppose you say if they had been supplied on time it would have been the same amount of costs.
116. MR DALE-HARRIS: Yes, my Lord. That was a point which required reference to the policy team at the department. My Lord, there was some difficulty, some issue as to points that were raised that were not brought to counsel's attention by copying into the original emails, my Lord.
117. THE DEPUTY JUDGE: What I was expecting was in 24 hours to have an independent response from each party. As it is it looks as though the Secretary of State took the view they wouldn't put in anything unless something was put in by Mr Van Heck.
118. MR DALE-HARRIS: My Lord, that is not the situation. What happened is that it was a point of some complexity, of some importance, and it needed to be referred to the relevant parts of the government department which, my Lord, took extra time which was not compatible with the timetable that had originally been intended.
119. THE DEPUTY JUDGE: But as far as the other matters, you simply say they were all perfectly reasonable.
120. MR DALE-HARRIS: Yes, my Lord. Just to deal with a couple of points, for the information of the court there was no conference with counsel, which explains why instructions were an independent item.
121. THE DEPUTY JUDGE: Am I right in saying that the Secretary of State wasn't represented at the permission hearing or does this include the costs of the permission hearing?
122. MR DALE-HARRIS: My Lord, I will take instructions, if I may.
123. THE DEPUTY JUDGE: I am not clear on that.
124. MR DALE-HARRIS: My Lord, I am afraid I don't have clear instructions on the point. It doesn't appear from the face of the costs schedule, my Lord.
125. THE DEPUTY JUDGE: Very well. Well, Mr Van Heck you are being offered £92 off, nothing else. What do you say to that.
126. MR VAN HECk: I am not in a position to accept that, my Lord.
127. THE DEPUTY JUDGE: No.
128. MR DALE-HARRIS: My Lord, the main points I would emphasise is it is right, as your Lordship recognised, that the documents were dealt with by the Secretary of State in this matter and that in large part explains why the counsel fees are a large proportion of the total costs of the Secretary of State. That being said, my Lord, they are clearly well below commercial rates, well below the costs that were being claimed by the other side and my Lord in my submission they were clearly in no way excessive. While I accept the point that the counsel fees in particular haven't been particularised in an extremely detailed way, my Lord, in my submission it would not be proportionate for considerably more detailed particularisation to have taken place.
129. THE DEPUTY JUDGE: Very well.
130. The Secretary of State claims £14,748.34 which has been reduced to £14,656.34, if my mathematics are correct, by the deduction of £92, which it is agreed has been incorrectly claimed for waiting time by a fee earner of a different grade. That in its revised form is still challenged by Mr Van Heck on a number of grounds, namely that counsel fees appear excessive and that a number of items in the solicitor's schedule appear excessive. I am bound to say that this court can only take a broad view of the matter and it does not seem to me that in a relatively complicated case as this was, involving sorting through a mass of papers from a previous hearing, a previous court hearing, and a previous inquiry, these costs are in any way excessive and they do stand to be compared with the fees which have been incurred by the appellant and which were claimed in the sum of £58,671, which is of a totally different order of magnitude. In the circumstances I am not in a position to find these costs unreasonably high and I make an order for costs in the sum, as I say, of £14,656.34.