England and Wales High Court (Administrative Court) Decisions

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

		Cardiff Civil and Family Justice Centre 2 Park Street Cardiff South Wales CF10 1ET
		22 January 2015

1. MR JUSTICE GILBART: This is an application under section 288 of the Town and Country Planning Act 1990, as amended, by Lear Investments Ltd, to quash a Decision Letter of an inspector appointed by the Welsh Ministers, the decision being taken on 30th September 2014.
2. The claimant owns the Lon Hir Industrial Estate, Pontardawe, within the area of the Neath Talbot Council. The land consists of a large industrial building and associated parking, delivery areas and landscaping subdivided into eight units, three of which are vacant.
3. On 11th January 2013 the claimant applied for outline planning permission to demolish and replace the existing eight industrial units with up to 34 residential units. On 10th December 2013 the defendant, Neath Talbot Council, refused the application for planning permission giving a single refusal reason, which read as follows:

"The proposed development would result in the unjustified loss of existing viable industrial units to a non employment use and the displacement of five existing local businesses that would have difficulty finding alternative premises in the local and wider area. This would result in reduced employment opportunities and would be to the detriment of economic development objectives of the county borough. As such the proposed development would be contrary to policies GC1 and EC1 of the Neath Talbot Unitary Development Plan, paragraph 7.1.3 and 7.2.2 of Planning Policy Wales and the broad thrust of Draft Technical Advice Note 23 on economic development."

4. The claimant appealed against the refusal under section 78 of the Town and Country Planning Act 1990 and the appeal was conducted by way of written representations.
5. The issue that arises before me is whether or not the case being made by the claimant firstly, that the buildings were no longer economically viable within the market place, and secondly, that there had been a long and unsuccessful campaign to market them, were properly treated by the inspector.
6. To understand those issues it is necessary to understand the case that was put forward by the parties in the written representations procedure. The claimant submitted what were entitled "Grounds of appeal". At paragraph 1.4 it said this:

"With reference to national and local level planning policy and background evidence the grounds of appeal demonstrate that (i) the Alltwen Industrial Estate is no longer viable as an industrial estate. Evidence is provided on the condition of the buildings on the estate and rental levels. It is confirmed that the rental levels are not sufficient to warrant the repair, refurbishment or maintenance of the state buildings making the existing employment use unviable.

2. The significant over supply of employment land in the local authority area. There are therefore opportunities for the existing occupiers to relocate. The significant over supply and employment land, ensures the redevelopment of the site for housing would not have a detrimental impact on the economic objectives of the council.

3. Vacant units on the site have been the subject of a lengthy and robust marketing campaign. However, it has not been possible to find new occupiers.

4. The appeal site has the potential to be "a bad neighbour" to the surrounding residential properties given that there are no restrictions on noise or its hours of operation.

5. There are a number of significant material benefits associated with the grant of planning permission. The council have a significant five year housing land supply shortfall and in accordance with government policy this waits [I am sure it was meant to say weighs] in favour of planning permission being granted."

7. Those grounds of appeal, it will be noted, referred to the contention that the rental levels were not sufficient to warrant the repair, refurbishment or maintenance of the estate buildings. At paragraph 2.6 of the document it was contended that the building on the site was developed over 30 years ago and the property had now reached the end of its economic life span, resulting in what was called economic and functional obsolescence. It went on:

"It is in a secondary location constrained by a poor access. The building is obsolete due to its construction type, material and age. The building has inadequate insulation, out of date heating and electrical systems and an asbestos cement roof. It requires extensive maintenance and repair. There are better properties located in the vicinity of the site and there is limited demand for units of this size and type in this location. The appellant cannot justify the required level of investment in the site in economic terms."

Paragraph 2.7:

"The costs of refurbishing the building to meet current energy performance requirements and to comply with building regulations has been established. It is estimated that this will cost £1,100,000 plus fees and VAT. The cost of clearing the site and redeveloping it for small workshops is also being reviewed. It is estimated that developing the site would cost £2,650,000 plus VAT and expenses.

2.8. As referred to above average rent achieved is 2.36 pence per square foot which made the upkeep and maintenance of the building uneconomic. The cost of refurbishment £1.1 million plus fees and VAT equates £25.50 per square foot. The cost of redeveloping the site £2.65 million plus fees and VAT accounts to £61.50. The rental levels that could be achieved do not justify the building's refurbishment or their redevelopment."

Just pausing there it will be noted that the claimant was putting forward three different contentions:

(i) that the upkeep and maintenance of the building and its current state was uneconomic.

(ii) the cost of refurbishment was prohibited.

(iii) the cost of redevelopment was prohibited.

8. The appeal documents also referred to the uses of the buildings. It is to be noted that although the issue was joined about whether or not the buildings were to be used for industrial purposes the evidence showed in fact that some of the interests for the buildings had come not from industrial uses but from other users. For example there was evidence before the inspector, in an expert report on behalf of the claimant, that so far as the interest in the buildings have been concerned, two of those expressing interest in floor space had been for those running children play centres and another had come from a major house builder who wanted to use a building at the site as a site office for a nearby housing development.
9. The evidence from the claimant also referred to an extensive marketing campaign which it was contended had been carried out over the previous 7 years. It said this:

"The leases on the five occupied units will all expire by the end of 2015. The average rent currently achieved 2.36 pence per square foot which makes the upkeep and maintenance of the building uneconomic. If new tenants are not found when the existing lease has expired this will reduce the viability of the industrial estate further and experience in the marketing of the vacant unit suggest it will be extremely difficult to find new tenants. This position is explained in detail in the case for the appellant's chapter of the grounds of appeal.

2.4. The vacant units on site have been widely marketed for the last years by [it then names three well-known firms of large commercial agents]

The marketing of the vacant space has been ongoing and there has been wide exposure to the local and regional market. Despite a lengthy and robust marketing campaign inquiry levels have been very limited.

2.5 The marketing agents have explained the lack of interest/demand occupiers (industrial/manufactures and distributors) due to the size and condition of the vacant space and the availability of more modern stock in better location close to M4 motorway corridor."

10. I should refer also the grounds of appeal also set out the fact that (this is at paragraph 16) the Alltwen Industrial Estate is not a financially viable industrial estate. A schedule of costs to refurbish and rebuild the estate has been undertaken by chartered building surveyors. These costs are detailed in the letter from Knight Frank which was set out in appendix 2. In summary, the refurbishment specification required to meet current energy performance requirements and to comply with building regulations are as follows. It then set out items of work for refurbishment: overcrowding elevation walls; to improve weathering insulation; removing and replacing RSD with an insulated type; stripping existing and re-roofing including asbestos removal, stripping and renewing light and power; removing fitting new heating, general internal refurbishment coming to £1.1 million plus fees and VAT. It is said the they break back to an overall figure of £25.50 per square foot which costs are not economically viable as the projective rental income shows little or no improvement to rental income potential.
11. In short it is said that the cost of refurbishment is significantly greater than the rental levels that could be achieved. It then set out the cost of demolition and construction of a small workshop development; demolition including asbestos removal would cost £250,000 and rebuilding to the same footprint would cost £2.4 million, totalling £2,650,000 plus fees and VAT which would equate to a cost of £61.50 per square foot, but gave no value for the existing site or land which would be uneconomical with a return of investment providing a negative value.
12. The document referred to the extensive marketing campaign that had been carried out for 8 years by Lambert Smith Hampton and since 2012 by other surveyors Knight Frank and Jenkins Best. It recorded the fact that over 50% of the space remained vacant and referred to the interest that had been expressed. One was for a children's play area for 7000 to 8000 square feet, one was for a limited letting for 3 months for machine assembly. One was for another play area. One was from a motor repair concern on budget terms which has not progressed. One was from an existing tenant of 4,882 square feet, who were discussing terms to relocate into another units of almost 5,000 square. Terms had been agreed for a 12 month lease in January 2014, with rolling mutual breaks thereafter. Then, as I have already referred to, a large house builder had enquired about having a 12 to 18 month lease for their site office while constructing phase 2 of a nearby housing development.
13. It was contended that there was a mismatch between supply and demand on employment sites and that primary investment decision factors related to the ability to attract and retain the quality of staff, especially skilled workers and to create an appropriate working environment.
14. The grounds of appeal set out at paragraph 6.28 that there were significant water ingress taking place in the buildings. It also set out from 6.34 onwards that there was an over supply of industrial land in the relevant market area which included not merely land within the area of the council, the local planning authority by also land in Swansea.
15. The document also attached an appendix from Knight Frank who are specialist commercial agents dealing with commercial and industrial property. That report set out the basis for the figures that had been sited in the grounds of appeal with regard to the costs of buildings. It also referred to a mismatch between the supply of existing units and demand in money locations and referred to the availability within the market place of premises in Swansea. It referred also to marketing that had taken place and the interest from occupiers to which I have already referred.
16. There was also a report prepared by another firm of chartered Messrs Jenkins Best dealing with the condition of the premises and of market overview. During the course of that document it set out the fact that there was a trend of increased vacant aging stock and what it called an emergence of an underclass of secondary assets that few wish to occupy and few can afford to hold, and made the point that where larger industrial sites were being reoccupied the income and occupier is rarely of the same quality as the departing company with short-term overflow warehousing and alternative uses being more prevalent.
17. It referred to the fact that occupiers were now looking to commit to lease terms on such estates of not more than 3 years. There was a demand for smaller starter units and workshops below 1500 square feet which had improved over the last 24 months but that demand for mid range units from 3,000 to 5,000 square feet remained very limited. The increase in size resulted in higher occupational costs of rent, service charges, business rates, building insurance and services including heating. It also said that in terms of quality, occupiers are seeking modern units for greater energy efficiency and many will now disregard properties with asbestos cement roofs.
18. The report identified the size of units at the premises. There were eight units totalling 43,369 square feet varying in size between 3,440 square feet and almost 9,000 square feet but the bulk of units fell on the range of between 4,000 and 5,000 square feet.
19. It referred to the extensive marketing campaign. It said that there was a large supply of vacant industrial floor space in Wales and said this:

"On take up, business failures fuel the increase in the overall availability of secondhand stock particularly in secondary locations. The secondary markets in general experience larger falls in capital and rental values."

It then set out a schedule of 220,000 square feet of vacant and completing floor space in close proximity to the appeal site. It stated that the increase in secondary supply in the last 5 years had resulted in negative growth and rental values and decreased capital values. It said that investment returns had been squeezed and values diminished and that the trend was set to continue and deepen in secondary locations especially where the property was nearing or at the end of its economical life span.

20. The report referred to a poor level of inquiries and interest and said that taken together with the diminishing lease terms of the existing occupiers that was likely to result in an increase of voids in the estate in the short to medium term. It said that from a business and investment perspective it would be detrimental to maintain an upkeep and economical asset to retain one or two tenants. It then set out why the costs of £1.1 million were justified for the refurbishment option and why the costs of £2.65 million were justified for the demolition option. In both cases it set out reasons why they would not be viable.
21. It recorded its conclusion in summary form:

(i) Demand. Limited demand for industrial units in the specific location;

(ii) Supply. Better located and higher quality units available elsewhere.

(iii) Building. Obsolete inefficient and increasing liability.

(iv) Refurbishment/subdivision not financially viable. It will be noted that again there was a distinction drawn between the maintenance of the building and refurbishment or demolition.

22. The local authority put in their written representations. The local authority of course did not have commercial surveyors acting for them. They were able to draw on the information from their own estates department. The local authority referred to the claimant's report, referring firstly to the site no longer being suitable for Class B planning use because of its site and construction configuration; secondly, the absence of demand for units of this size in the area as asserted by the claimants; and thirdly, opportunities for improving the industrial estate saying that refurbishment and demolition were not viable in the absence of marketing. It will be noted that the local authority never dealt with what had been said by the claimants so far as the fact that maintenance of the buildings was not viable.
23. The local authority then set out its contention that there was a high demand for industrial units in the area and that there was not a significant over supply of existing floor space. Then it said:

"The applicant raises issues relating to the unsuitable design of the application building, financial constraints of improving the existing building and also its unsuccessful marketing. The local authority also acknowledged that long-term protection of employment sites, where there is no reasonable prospect of the site being used for employment purposes should not be supported. However, the fact remains that five out of the eight units currently occupied indicating that they are functional fit for purpose and suitable for continued industrial employment use."

I note again that the local authority did not refer to what had been said about maintenance. The local authority went on to say this:

"Despite the fact that some units within the application building are not currently occupied it is not considered that given the current economic situation this will be sufficient justification for the loss of this employment generating industrial floorspace. The local planning authority therefore consider that this site still has the potential to offer current and future employment uses, assisting in creating more sustainable self contained locality through delivering jobs locally. It is considered therefore that there are strong economic reasons to refuse this application and that the proposals would conflict with employment land policy within the unitary development plan."

24. The claimant put in a response to that document. Much of it consists of a reiteration of the case it had already made about marketing, to which I need not refer again. It contained a detailed schedule of what it said were the locally available floor space. It then referred to the date of construction of the premises on the site in the early 1970s, so that five of the units were occupied and three are vacant. It referred to the marketing campaign that had been undertaken and then it said this:

"The site marketing agents have advised that modern occupiers require high quality sites and premises in prestigious and prominent locations. A detailed breakdown of the costs associated with repairing and maintaining the units is included within our original statement. The council do not contest the maintenance and refurbishment figures detailed in our statement. The council's response to this is simply that five of the units are occupied therefore they are fit for purpose. This takes no account of the fact that the buildings will continue to deteriorate and it is not cost effective for the owners to maintain them given the rental levels which are being achieved. Furthermore the tenancies expire next year and there is no guarantee that they will be renewed."

Then in a section headed "other matters" it said this:

"Furthermore the council has not commented upon the practical issues of the site and its building which make a poor quality employment site these are repeated below. Firstly, it dealt with what was a poor location, then it said physical constraints refer to low eaves height and trust frame construction restricting clear height and that instead of the 4.2 metres existing there occupiers in South Wales were looking for units with a minimum eaves height of 6 metres rising to a clear height of 8 to 9 metres."

It is said that the lighting, heating and electrical systems were dated and in need of upgrading and then it said this:

"Condition. There is inadequate insulation and asbestos roofing which require maintenance and further expenditure. That expenditure cannot be justified by the rental income which is being achieved."

25. The inspector produced a Decision Letter:

"1. For the reasons set out below I dismiss the appeal.

Procedural Matters

2. The application seeks outline permission. Although it included details of the proposed means of access, the appellant has subsequently confirmed that all matters are reserved for future approval and, accordingly, I have dealt with the appeal on this basis.

Main Issues

3. The main issues in this case are:

(i) the effect of the proposed reduction in available employment land on the local economy, having regard to local and national planning policy; and.

(ii) whether the proposed contribution of the scheme to the supply of local housing would outweigh any harm identified in relation to the first main issue.

Reasons.

Loss of Employment Land.

4. The Lon Hir (also known as Alltwen) Industrial Estate occupies a peripheral location within the built up area of Alltwen, Pontardawe, in a mixed use area of mainly industry and housing. The site comprises a large industrial building and associated parking, delivery areas and landscaping. The building is subdivided into 8 units, each providing a workshop area, offices and employee welfare facilities.

5. The appellant draws my attention to policies in the deposit version of the Council's Local Development Plan. However, as the formal examination into its soundness has yet to be commenced, I attach little weight to these policies given the existence of the up-to-date, adopted Neath Port Talbot Unitary Development Plan (UDP). The most relevant policy of the Plan in relation to this main issue is EC1. Notwithstanding that 3 of the units are vacant, and thus not in active use, I consider that for the purposes of Policy EC1 the whole site constitutes an 'existing employment use'. The policy seeks to ensure that there is sufficient employment land available within the Borough to support the local economy by protecting both existing sites and those sites allocated as employment land in the Plan.

6. In relation to existing employment uses, the protection afforded by EC1 is subject to the use being lawful and that it does not constitute a non-conforming use which is also a 'bad neighbour' to neighbouring residential or other sensitives uses. I have noted the proximity of new housing on neighbouring land, and am mindful that the authorised industrial activity on the site is not governed by restrictive planning conditions. Although the Council's Environmental Health team has received a few complaints in the past, following investigation none of these were found to be substantiated. The available evidence indicates that the site is not a bad neighbour. Given the proximity of housing, including that which has recently been approved to the rear of the site, it is likely that in the future the industrial units would attract new operations which would be similar to present uses in terms of their ability to co-exist with nearby residences without giving rise to complaint.

7. Taking into account the purpose of EC1 and the advice in national policy, I now consider whether the protection of the appeal site for employment use would be likely to serve the interests of the local economy. In establishing whether there is a reasonable prospect that the site would continue to be used for employment purposes, in the event that the appeal is unsuccessful, there are two main considerations: whether the availability of alternative local employment sites means that the loss of the appeal site would not materially affect local provision; and secondly, whether the particular characteristics of the site in question is such that it would not continue to serve as a useful employment site in the future.

8. As the appellant points out, the UDP provides a generous over provision of allocated employment land. However, it does not necessarily follow that this over provision should justify the loss of this existing employment site. For many occupiers of employment units within existing sites, the financial and logistical costs of developing an allocated, but undeveloped, site means that it would not be a practical alternative to their existing premises. In this respect it is notable that, in addition to ensuring that there are sufficient opportunities provided to facilitate the provision of ne employment sites, Policy EC1 also seeks to offer protection to existing employment sites.

9. When compared to numerous other existing employment sites in the area, both within the Borough and in the neighbouring County of Swansea, the appellant points out that the appeal site is not as attractive to many prospective occupants because of its distance from the nearest motorway junction, its dated appearance and the standard of its accommodation. For instance, the workshop areas have relatively low headroom which will limit their potential market, and the electricity supply and thermal insulation do not meet the latest standards for new buildings. However, whilst I note that the greatest growth in demand for employment sites in the area is for prestigious, modern premises there remains a demand for medium-sized, low cost units from more local businesses, as is demonstrated by the presence of tenants in more than half the units at Lon Hir. Indeed, since the surveyor's report that was prepared in October 2013 to support the subject planning application, Unit A has been occupied.

10. The units would undoubtedly benefit from cosmetic maintenance. The failing render finish which exposes brickwork over large sections of the walls harms the building's appearance, though otherwise the building has the appearance of being in a reasonable condition and is enhance by mature landscaping within and on the periphery of the spacious grounds. The appellant has provided estimated costs for complete refurbishment to modern standards as well as a scheme to demolish and provide new units, but there is no evidence that a more modest, lower cost option has been considered. The width of the access road, Lon Hir, and the presence of parked cars means that it is not ideally suited for use by larger lorries. However, it is only a short drive from the A4067 which provides direct access to junction 45 of the M4. Despite deficiencies in the existing provision, it provides a lower cost alternative to modern, more prestigious units and, as such, it presently provides a valuable contribution to the local mix of employment sites.

11. The appellant's surveyor refers to an upturn in the local demand for smaller units over the past 3 yeas or so, and I noted during my visit to the nearby Alloy Industrial Estate the high occupancy rate of its small-sized units. I share the Council's opinion that it is necessary to provide a stock of medium-sized that could allow some of these locally based operations to grow.

12. The appellant argues that there is no demand for the vacant units, and has provided evidence of extensive marketing efforts of these units over 8 or so years. However, this extends over a particularly subdued period for the local economy, following the downturn in the global economy. The appellant refers to the possibility of losing the remaining occupiers when their leases expire at the end of 2015. There is no information before me to indicate that any of the occupiers would choose to leave at the end of this period whilst there is evidence that one occupier is committed to remaining. This engineering business has recently invested heavily in new machinery and has plans to invest further. It has indicated that it may not survive if it was forced to relocate, which could result in the loss of at least 8 jobs.

13. On this main issue I conclude that the scheme would harm the provision of local employment sites, and runs counter to national planning policy and the council's strategy to protect and promote local employment opportunities, specifically policy EC1 of the UDP."

26. The case put forward by the claimant is that in paragraph 10 of the Decision Letter the inspector has failed to take account of the evidence which related to simply maintaining the building and that the claimant has not limited itself to options of, on the one hand, refurbishment or on the other demolition. Alternatively, it is contended that the inspector should not have taken the point he did relating to a more modest low cost option without inviting representations from the claimants on what in essence is contended was a new point. Alternatively it is said he gave inadequate reasons or took into account an immaterial consideration namely, that far from there being no evidence of adopting a more lower cost option in fact there had been evidence that simply maintaining the buildings itself could not be justified economically.
27. Mr Flannigan, on behalf of the Welsh Ministers, says that it was for the claimant to prove its case and all that the inspector was doing here was to say that it had not done enough to convince him that the resistance to other uses for industrial estates should be overcome.
28. So far as the other ground of the claimant is concerned, it says that so far as paragraph 12 is concerned the inspector had taken it upon himself to give evidence of his own that this had been a particularly subdued period for the local economy following the downturn in the global economy. He said that was an immaterial consideration. It is said that it is new point which he had not invited comment on.
29. Mr Flannigan says about that, that if you look at this as a whole what the inspector was saying is: you have not proved your case. He gave ample reasons why in his judgment there could be a continuation of industrial use.
30. The starting point is to remind oneself of the duties on an inspector when dealing with a planning appeal. The inspector must have regard to the statutory development plan pursuant to section 70(1) of the Town and Country Planning Act 1990. Second, he must have regard to material considerations (also see section 70(1)). Thirdly, he must return the proposal in accordance with the development plan unless material considerations indicate otherwise (see section 38(6) of the Planning and Compulsory Purchase Act 2004). Fourth, he must give his decision in writing and he must give proper intelligible and adequate reasons which deal with each of the substantial points raised by the parties. (c) Save British Heritage No 1 Poultry [1991] 1 WLR 153 and South Buckinghamshire District Council v Porter No 2 [2004] 1 WLR 1953.
31. I have also had regard to the case of Hopkins v Secretary of State [2014] EWCA Civ 470, [2014] PTSR 1145, which deals with the question of the degree to which an inspector is entitled to have regard to matters which have not been put before him by the parties. While an inspector is not required to invite submissions from the parties if he adopts a line of reasoning open to him on the issues which have been raised at the inquiry he should not rely on an issue which has not so been ventilated. It remains the duty of the inspector to conduct proceedings so that each party has a reasonable opportunity to adduce evidence and make submissions on the material issues whether identified at the outset or emerging during the course of the appeal. Hopkins is actually a case about a public inquiry but one can apply its precepts to a written representations case. Hopkins also shows that any party to a planning appeal is entitled firstly, to know the case which he has to meet and secondly, to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case. Lastly, of course, if there is a procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the inspector's decision.
32. The last general principle I would refer to is it has shown the decision maker had regard to immaterial consideration or has failed to regard a material one, the decision will be quashed unless the court is satisfied that the decision would necessarily have been the same - see Simplex GEE Holdings Ltd v Secretary of State for the Environment [1988] 57 PNCR 306.
33. I now take the two grounds. So far as the first ground is concerned, which relates to paragraph 10 of the Decision Letter, this is a case in which the claimant had put forward evidence. It was not confined to the cost of refurbishment or the cost of demolition but it concerned maintenance. While I accept Mr Flannigan's submission that the claimant had not paraded a set of rentals which could go along with the cost of maintenance, the fact is that the inspector had the case clearly before him from the claimants, and unchallenged by the local planning authority, that the rental value to be obtained did not justify even the cost of maintaining the buildings in the current state. Given that the cost of maintaining the buildings in their current state was unviable and given that refurbishment was unviable, it follows that anything in between which is limited but more extensive maintenance is a matter of speculation, so far as potential rental value is concerned. But if the inspector had said: you have not demonstrated to me to my satisfaction that the building is unviable if you simply maintain it, that would be one thing. What he said is: there is no evidence that a more modest lower cost option had been considered. He never addresses anything other than the issues of refurbishment on the one hand and demolition to provide the new units on the other.
34. It may be that because of the way in which the claimant's case had been written, perhaps the maintenance case was displayed less prominently than the refurbishment or demolition case but it was undoubtedly there. It was undoubtedly there in the original case. It was also undoubtedly there in the response case to the local planning authority's case.
35. I should mention one other matter to which Mr Jones drew my attention. The case put before the inspector had indicated that refurbishment would give a maximum extra rental of between 50 pence and £1 per square foot. It follows, in my judgment, from all of that that the inspector has not grappled with the case that was being put before him, which was the building as it was really had reached the end of its useful life. Had the inspector gone on to say: well, I have looked at the building; it could provide a valuable contribution and you have not satisfied me that the maintenance cannot be paid for; that would be another matter. What he has done is to treat this on the basis that he had no evidence before him about anything other than refurbishment or demolition. That was patently not the case. It was in my judgment a substantial issue which he had to grapple with and he has not done so. Ground 1 succeeds.
36. So far as ground 2 is concerned, although I think it close to the line, ground 2 does not succeed. I have read paragraph 12 as referring to the inspector wanting to be convinced that the evidence he had on marketing was sufficient to be able to rely on to show that the industrial units should lose their use. While I think he was unwise to delve into his own knowledge and understanding of the downturn in the global economy, I cannot say that in my judgment it would have made a difference to his approach.
37. So although I regard his delving into these matters as getting close to the line of being procedurally unfair so far as the Hopkins authority is concerned, in my judgment, it did not make any difference to his overall decision.
38. I then stand back and ask the question whether the inspector's failure to address the relationship between maintenance costs and the viability of rent would have affected his overall decision. In my judgment it is obviously the case that if the building was not viable in its current condition that had a major impact upon his process of reasoning. I am unable to say as per apply Simplex that the decision would have been the same. Ground 1 therefore succeeds.
39. Mr Jones?
40. MR JONES: My Lord I apply for costs. Schedules have been exchanged.
41. MR JUSTICE GILBART: I know but I have lost my copy.
42. FOR THE RESPONDENT: Of course my Lord if I may hand that forward.
43. MR JONES: The start figure is £11,000 and something.
44. MR JUSTICE GILBART: Have you been able to agree the figures?
45. MR FLANNIGAN: My Lord, I am afraid not my Lord. I have two points.
46. MR JUSTICE GILBART: If I give you until 2 o'clock will you be able to agree the figures?
47. MR FLANNIGAN: I suspect not. They are pretty short points.
48. MR JUSTICE GILBART: I will hear what your points are and ask Mr Jones for his comments.
49. MR FLANNIGAN: The first point is Mr Jones brief fee and I say somewhat (inaudible), but I do say that £4,000 for half-a-day is overly generous, especially in this case where there are two relatively straightforward grounds. I say that should be at least a third less.
50. My short second point is that the Treasury's costs, which I appreciate are often less in the event about however in this case of what the claimants are saying. I say standing back and applying a global approach I say that a deduction should be made on that basis also.
51. MR JUSTICE GILBART: Thank you. Mr Jones do you want to say anything?
52. MR JONES: My Lord, no. So far as the brief fee is concerned --
53. MR JUSTICE GILBART: You need not address me on the brief Mr Jones.
54. MR JONES: I do not propose to.
55. MR JUSTICE GILBART: It is not because I do not like getting involved in these areas, I do not think it will be possible to say that is an unreasonable brief fee in 2015.
56. MR JONES: I am grateful my Lord. In comparison with the Treasury, the Welsh Ministers and Treasury Solicitor, that is the normal situation my Lord.
57. MR JUSTICE GILBART: Thank you. Do you want to say anything about the level of costs otherwise?
58. MR JONES: No, my Lord. I think that was the only point which was put in issue, specifically put in issue. It was specialist planning solicitors and they are reasonable for such solicitors.
59. MR JUSTICE GILBART: Thank you.
60. Mr Jones has succeeded on ground 1 of his claim. There is a claim for £9,672.80 plus VAT and other expenses it totals £11,511.37. Included within that are the solicitors costs of £4,218, counsel fees of £875 for a conference and £4,000 on the brief and court fees.
61. Mr Flannigan says that the brief fee is too high. He says that overall the figure should be reduced by about a third because he says the Treasury Solicitor's bill of costs is a third less. As far as the brief is concerned, I do not accept that is an unreasonable fee in 2015 for counsel of Mr Jones' experience.
62. So far as the level otherwise is concerned, Mr Flannigan has been unable to point to any item of the bill which he says is unreasonable. Having looked at the bill I consider it to be reasonable and I therefore assess costs in the sum of £11,511.37 which includes VAT.
63. MR FLANNIGAN: My Lord there is a short application for permission to appeal for myself. I put it on the basis respectfully that there is a real prospect of success regarding construction of the Decision Letter on ground 1.
64. MR JONES: Your Lordship will have formed your views on the prospects of success. I do not wish to raise any matters in respect of that, as far as the importance of the case is concerned. My Lord, I do not think I can add anything which will assist your Lordship. I do oppose the application on the basis that your Lordship's judgment is, in my submission, unassailable.
65. MR JUSTICE GILBART: I always try to think they are unassailable Mr Jones.
66. I am not going to grant you permission to appeal Mr Flannigan. If you want it, you have to apply to the Court of Appeal. I think this was a fairly straightforward decision to reach on the material before me.