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
		15 June 2016

1. DEPUTY JUDGE: In this claim the claimant seeks to quash the decision of an inspector on behalf of the first defendant dismissing the claimant's appeal from the decision of the second defendant refusing permission for an extension to 41 Ashcroft Avenue, Sidcup, Kent ("the Property"). Permission was granted by Mr Justice Hickinbottom on 14 March 2016.
2. The claim involves as its the principal issue the meaning of the enlarged part of a dwellinghouse for the purposes of the Town and Country Planning (General Permitted Development)(England) Order 2015 Part 1 Class A (the GPDO), which I am told is of potentially wider importance in the application of that Order. Mr Jonathan Wills, who appears for the claimant, also seeks an order quashing the decision refusing costs.
3. The Property is a two-storey semi-detached dwellinghouse. On 9 February 2000 planning permission was granted for a part one and part two-storey rear extension, which was thereafter implemented. On 16 April 2015 the claimant applied for prior approval in respect of a further single-storey extension, relying on the deemed permission under Part 1 Class A of the GPDO. The application was refused on the basis that the proposed extension would be excepted from the permitted development under paragraphs A.1(f) and (g) of Class A.
4. It is convenient at this point to set out the statutory provisions which are relevant to that decision and the subsequent appeal. The Town and Country Planning Act 1990 (the 1990 Act) provides in Section 58 that planning permission can be granted by a development order or by the local planning authority on an application to the authority. Article 3 of the GPDO permits classes of development in Schedule 2 subject to the exceptions and to the conditions there specified. Schedule 2 Part 1 deals with development within the curtilage of a dwellinghouse. Class A provides as permitted development 'the enlargement, improvement or other alteration of a dwellinghouse'.
5. By paragraph A.1:

" Development is not permitted by Class A if -

.....

(f) subject to paragraph (g), the enlarged part of the dwellinghouse would have a single storey and -

(i) extend beyond the rear wall of the original dwellinghouse by more than 4 metres in the case of a detached dwellinghouse, or 3 metres in the case of any other dwellinghouse, or

(ii) exceed 4 metres in height."

Exception (g) provides, until 30 May 2019, for a similar extension substituting eight metres and six metres respectively for the extension beyond the rear wall for a detached or any other dwellinghouse.

The Claimant appealed. The appeal was dismissed by decision letter dated 17 December 2016. In paragraph 6 of the decision letter the Inspector identified as the main issues whether the proposed single-storey rear extension would be permitted development and, if so, the effect on the amenity of neighbouring occupiers. At paragraph 7 he continued:

"7 The proposed single-storey rear extension would project some 2.3 metres beyond the existing rear wall of this previously extended semi-detached house. As the proposed extension, together with the existing extension, would project some 5.1 metres to the rear of the rear main wall of the original dwelling, the overall enlargement of the house would not exceed six metres. On this basis, and because the maximum height of the new extension would be around 2.8 metres, the appellant submits that it would be permitted development.

8 There is, however, some disagreement between the parties concerning the enlarged part of the dwellinghouse. There is no dispute that the existing extension includes both two-storey and single-storey elements. As such, the council maintains that even though the additional extension now proposed would have only a single storey the enlarged part of the house would include more than a single storey, whereas the appellant contends that the enlarged part would have a single storey."

He continued at paragraph 12:

"12 Moreover, the question of whether existing extensions are part of the enlargement of a building was examined in Kensington & Chelsea Royal Borough Council v SSCLG [2015] EWHC 2458 (Admin). It was held that the 'enlarged part of the dwellinghouse' does not include the 'original' building, but does include previous enlargements.

13 In this appeal, the proposed extension would, taken together with the existing extension, not be a single-storey enlargement to the dwellinghouse. It would not, therefore, be permitted development under the terms of Part 1 Class A.1(g)(i) of the GPDO. Furthermore, as the enlarged part of the house would exceed 4 metres in height on account of part of the existing extension having two storeys, the proposal would not be permitted development under the terms of Part 1 Class A.1 (g)(ii) of the GPDO.

14 Since the proposal would not be permitted development, it is not necessary to consider the effect on the amenity of the neighbouring occupiers in this case."

6. In a separate decision letter of the same date he refused the application for an award of costs on the grounds that there had not been unreasonable behaviour resulting in unnecessary expense on the part of the second defendant in refusing the application and contesting the appeal.
7. Mr Wills, on behalf of the claimant, challenges that decision on the basis that the 2000 permitted extension should not have been included as part of the enlarged part of the development for the purposes of the exceptions to Class A. Mr Wills submits that on a straightforward application of the reference to the enlarged part it should relate to the proposals for enlargement under Class A. It is clear, he submits, that when the Secretary of State wanted to include earlier enlargements he has done so expressly under the Order, for example, by referring to the original dwellinghouse. The natural meaning of the exception should be applied so as to relate to the proposed works.
8. So far as the decision on costs is concerned, he submits that if his challenge to the main decision succeeds the issue of costs should be revisited because the decision on the main issue had formed the basis of the decision on costs.
9. Mr Jack Parker, who appears for the Secretary of State, submits that confining the proposed enlargement to the works to be permitted under Class A would encourage piggy-backing, by which an applicant could abuse the planning tolerance by carrying out a series of incremental extensions which would not have been permitted as a single extension but could be claimed to be permitted on a disaggregated basis. He submits accordingly that the enlarged part should include the earlier enlargements to the original dwelling, including, in this case, the extension permitted in 2000.
10. On costs, Mr Parker submits that there is no error of law disclosed in the decision which was made. The decision was made on the basis of the Inspector's finding that the authority had not conducted itself unreasonably, which went to the submissions made at the inquiry , a conclusion that was altered as a result of the particular decision reached on the main issue.
11. Against that background, I can turn to consider the relevant statutory provisions in a little more detail. I have already referred to the relevant provision in the 1990 Act and to Article 3 of the GPDO. The GPDO sets out definitions in Article 2, including a definition of "dwellinghouse" that it -

" ..... does not include a building containing one or more flats ..... "

"Flat" is defined as meaning -

" ..... a separate and self-contained set of premises constructed or adapted for use for the purpose of a dwelling and forming part of a building from some other part of which it is divided horizontally."

"Existing" is defined as

"in relation to any building ..... (except in the definition of 'original') existing immediately before the carrying out, in relation to that building ..... of development described in this Order."

"original" is defined as -

"(a) in relation to a building, other than a building which is Crown land, existing on 1st July 1948, as existing on that date;

(b) in relation to a building, other than a building which is Crown land, built on or after 1st July 1948, as so built;

..... "

12. As I have already noted, Schedule 2 Part 1 deals with development within the curtilage of a dwellinghouse. Class A grants permission for the enlargement, improvement or other alteration of a dwellinghouse. That permission is therefore concerned, among other things, with enlargement. In principle, that is permitted where it concerns a dwellinghouse as defined unless it is subject to one of the exceptions to that description of development. What comprises in this respect the relevant operational development comprising the enlargement would be determined in each case as a matter of fact and degree approached on a holistic basis. In each case it would be important to consider what was the particular operational development being carried out in considering whether that development as a whole falls within the scope of this class of permitted development.
13. On that basis it is then appropriate to consider the exceptions set out in paragraph A.1. By paragraph A.1 (k), the development would be excepted if -

"(k) it would consist of or include -

(i) the construction or provision of a verandah, balcony or raised platform,

(ii) the installation, alteration or replacement of a microwave antenna,

(iii) the installation, alteration or replacement of a chimney, flue or soil and vent pipe, or

(iv) an alteration to any part of the roof of the dwellinghouse."

Those exceptions are made because they are specifically addressed under other classes within Part 1.

Other specific exceptions are provided under the preceding subparagraphs in paragraph A.1. In my view it is relevant to look at a number of these on the basis that one can reasonably assume that generally the draftsman would use similar terms in the same statutory instrument with a similar meaning.

14. By paragraph A.1 (b), development is excepted where -

"(b) as a result of the works, the total area of ground covered by buildings within the curtilage of the dwellinghouse (other than the original dwellinghouse) would exceed 50% of the total area of the curtilage (excluding the ground area of the original dwellinghouse)."

15. By definition, the original dwellinghouse is the house existing on 1 July 1948 or as built. The dwellinghouse is the dwellinghouse as it would become as a result of the works of enlargement to be permitted under Class A, including the extensions carried out since the original house was built as defined. It is then a simple matter of measurement of the floor area of all the buildings as a percentage of the total area of the curtilage, excluding the ground area of the original dwellinghouse.
16. By paragraph A.1 (c), the exceptions address the case where -

"(c) the height of the part of the dwellinghouse enlarged, improved or altered would exceed the height of the highest part of the roof of the existing dwellinghouse."

17. In this case the "existing" dwellinghouse is defined as the dwellinghouse as it existed immediately before the enlargement, the subject of the Class A permitted development. That would necessarily include any earlier extensions, whether under permitted development or a specific planning permission, and in the present case would include the 2000 permission extension . The comparison would then be with the proposed enlargement to be permitted under Class A to see whether its height would exceed the highest part of roof of the existing dwellinghouse as so defined.
18. Mr Parker accepts, on behalf of the Secretary of State, that the expresssion "part of the dwellinghouse enlarged" in the context of that exception would relate to the proposed works and would not include any earlier extension. That would also be consistent with the use of "would" as the future conditional.
19. The exception in A.1 (d) relates to the case where the height of the eaves of the part of the dwellinghouse enlarged would exceed the height of the eaves of the existing dwellinghouse. Mr Parker accepts, as is clearly correct, that a similar analysis would apply to that exception.
20. Under paragraph A.1 (e), the case is excepted where the enlarged part of the dwellinghouse would extend beyond a wall which -

"(i) forms the principal elevation of the original dwellinghouse; or

(ii) fronts a highway and forms the side elevation of the original dwellinghouse."

21. In this case one is comparing the relevant elevations of the original dwellinghouse as defined with the enlarged part of the dwellinghouse. I do not consider that there is any difficulty in treating the enlarged part of the dwellinghouse as relating to the part which is proposed within Class A as the enlargement of a dwellinghouse which is then to be compared to the relevant walls of the original dwellinghouse. It does not seem to me that that is affected by whether, since the original house, there may have been other extensions permitted under the GPDO or, indeed, by specific planning permission. If the proposed enlargement under Class A would extend beyond a relevant wall of the original dwellinghouse as defined, the exception is engaged. It does not matter whether any earlier extension has previously extended beyond that wall.
22. Mr Parker, for the Secretary of State, sought to distinguish the phrase "enlarged part of the dwellinghouse" from the earlier reference in the exceptions to "part of the dwellinghouse enlarged" in exceptions (c) and (d). He qualified that submission to the effect that enlargements to different parts of the original dwellinghouse would not form part of this enlarged part and, as such, would not need to be taken into account. As a matter of general approach, in my view one would expect that the exception would focus on the proposed works. This is also supported by the use of the word "would" (as I have indicated). Where the Secretary of State has intended some other approach, he has made it clear by reference to the original dwelling or otherwise. That in my judgement would tend to support an approach consistent with exceptions (c) and (d) that the "enlarged part" and the "part enlarged" are referring to the same development, that is to the proposed work to be permitted under class A subject to the engagement of any of the specific exceptions.
23. I have already referred to the exception under paragraph A.1 (f). In this exception, applying the same approach, one would ask whether the enlarged part, the subject of Class A, would have a single storey. If it does, the first comparison will be with the rear wall of the original dwellinghouse, complementing the exception under paragraph (e) which dealt with the principal and side elevations, to see whether it extends beyond the rear wall by more than three or four metres, as the case may be. Again, I see no difficulty in that approach notwithstanding that there may be between the original rear wall and the part to be enlarged, a more recent extension, whether as permitted development or under a grant of planning permission. The enlarged part would still be extending beyond the original rear wall by more than the three or four metres, as may be relevant.
24. The other test would be whether the enlarged part would exceed more than four metres in height. Again, that can apply straightforwardly and, to my mind, relevantly to the part of the dwellinghouse, the subject of the proposed enlargement under Class A.
25. The concern raised by Mr Parker on behalf of the Secretary of State in this respect is the potential for piggy-backing. This is directly addressed in respect of the overall extension from the rear wall of the original dwellinghouse, which limits the overall extension to the relevant distance. It is not clear to my mind why there is any enhanced risk of piggy-backing in that respect.
26. So far as the height limit is concerned, that would apply to the proposed extension. It was not explained why that also needs to apply to development that has taken place. If the proposed extension is one storey, again to my mind it is not clear why it becomes unacceptable because an earlier two-storey development has taken place, which either met the necessary limit or was granted specific planning permission which did not limit by condition further extension. It does not seem to me accordingly that there is any established public policy issue engaged in that respect. Moreover the application of the expression "enlarged part" consistently with the earlier reference to "the part of the dwellinghouse enlarged" lends further support for what I regard as its straightforward application to the proposed development.
27. As I have indicated, it will always be a question of fact in any particular case what, on an holistic basis, is the operational development by way of enlargement that is in fact taking place and whether or not on the facts that included earlier extensions as part of the single operational development.
28. I have also referred above to the exception under (g). In my judgment the same approach can and should apply to that exception. I also note in that respect that as part of the conditions that apply to development permitted by Class A pursuant to the further tolerance in paragraph A.1 (g), under A.4 (5):

"(5) The local planning authority must notify each adjoining owner or occupier about the proposed development by serving on them a notice which -

(a) describes the proposed development, including -

.....

(ii) the maximum height of the enlarged part of the dwellinghouse; and

(iii) the height of the eaves of the enlarged part of the dwellinghouse."

29. In the context of that notice it would seem surprising if the notice in respect of a description of the proposed development included what was the maximum height of earlier development which on the Secretary of State's approach would be included as part of the "enlarged part of the dwellinghouse" for this purpose. In my judgment the natural meaning of this requirement would be in accordance with the approach that I have set out above, that is that it refers to the maximum building or eaves height of the enlargement then proposed to come within class A.
30. Under paragraph A.1 (h) exception is made of a case where -

"(h) the enlarged part of the dwellinghouse would have more than a single storey and -

(i) extend beyond the rear wall of the original dwellinghouse by more than 3 metres, or

(ii) be within 7 metres of any boundary of the curtilage of the dwellinghouse being enlarged opposite the rear wall of the dwellinghouse."

31. Again, this seems to me consistent with the approach set out above addressing the different implications of a two-storey extension. The first condition for exception is where the enlarged part, the subject of Class A, would extend beyond the rear wall of the original dwellinghouse by more than three metres. The same approach to that should be taken as above, whatever earlier extension may have intervened.
32. The alternative condition does not address the original dwellinghouse as defined but the rear wall of the dwellinghouse in the context of its curtilage, which is the qualifying description of all development in Part 1. That, in my judgment, plainly refers to the whole dwellinghouse as it existed, including any alterations by way of extension or otherwise to the original dwellinghouse as defined. The identification of the relevant curtilage boundary is then the part which is opposite the rear wall of what is the dwellinghouse "being enlarged". In context, that must in my judgement refer to the proposed enlargement under Class A. The question is whether the part of the dwellinghouse which would be enlarged under Class A would be within seven metres of that boundary. That is not affected by whether there had been earlier extensions; it is simply the relationship of the part which would be within Class A with that boundary.
33. The exception under A.1 (i) excepts the case where -

"(i) the enlarged part of the dwellinghouse would be within 2 metres of the boundary of the curtilage of the dwellinghouse, and the height of the eaves of the enlarged part would exceed 3 metres."

This is, again, complementary to the earlier exceptions. The distance is reduced to within two metres and applies to the part of the dwellinghouse that would be enlarged under Class A where the eaves of the part being enlarged pursuant to the permitted development would exceed three metres. This seems to me consistent with principle as an approach. I see no material risk of piggy-backing or other difficulty. On the contrary, it seems to me a straightforward and logical approach.

34. The exception under A.1 (j) excepts the case where -

"(j) the enlarged part of the dwellinghouse would extend beyond a wall forming a side elevation of the original dwellinghouse, and would -

(i) exceed 4 metres in height,

(ii) have more than a single storey, or

(iii) have a width greater than half the width of the original dwellinghouse."

That test would be straightforward to apply in comparing the proposed Class A enlargement of the dwellinghouse with the side wall of the original dwellinghouse, as defined, to see whether it extends beyond it. If it does, then the exception will apply, if the Class A enlargement would exceed four metres in height or be more than one storey or if it would have a width greater than half the width of the original dwellinghouse. There is nothing absurd about applying the tests on that basis which can be applied objectively and consistently with the remainder of the Class A exceptions.

35. On this analysis I am of the view that the Class A exceptions can be consistently applied by treating the enlarged part of the dwellinghouse as relating to the proposed Class A development.
36. Moreover in my judgement that approach is also supported when one considers other classes within Part 1.
37. Class B provides for -

"The enlargement of a dwellinghouse consisting of an addition or alteration to its roof."

Paragraph B.1 provides exceptions to that permitted development:

"Development is not permitted by Class B if -

.....

(b) any part of the dwellinghouse would, as a result of the works, exceed the height of the highest part of the existing roof."

As defined, the existing roof is that existing before the Class B enlargement is carried out. Thus the exception is to be applied by considering the part of the dwellinghouse, which is the subject of the proposed Class B enlargement and comparing that to the highest part of the dwellinghouse as it existed immediately before the proposed development, whether extended under the permitted development or otherwise.

38. Paragraph B.1 (c) provides for cases to be excepted where -

"(c) any part of the dwellinghouse would, as a result of the works, extend beyond the plane of any existing roof slope which forms the principal elevation of the dwellinghouse and fronts a highway."

Again, the same approach is to be taken comparing the proposed works under Class B with any roof slope of the dwellinghouse as existed immediately before those works, whether the original dwellinghouse or as extended or altered.

39. Paragraph B.1 (d) excepts the case where -

"(d) the cubic content of the resulting roof space would exceed the cubic content of the original roof space by more than -

(i) 40 cubic metres in the case of a terrace house, or

(ii) 50 cubic metres in any other case."

This exception again focuses on the enlargement of the roof forming part of Class B.

I should also note that in this respect Mr Wills drew attention to the definition of the resulting roof space in paragraph B.3 as:

" ..... the roof space as enlarged, taking into account any enlargement to the original roof space, whether permitted by this Class or not."

Mr Wills submitted that, in so far as it was thought necessary to specify that earlier enlargement is to be taken into account in this case , in the exceptions relevant to the present claim, where that has not been specified, it should be assumed that it was not intended that earlier extensions should be taken into account. However, while the submission is consistent with the approach which I have adopted, I am not persuaded that in itself it is of particular weight as an argument.

40. The general approach in the conditions on Class B relate to the existing dwellinghouse or the original roof and makes it clear that comparison is with the proposed enlargement of the roof as such under Class B.
41. Class C deals with other alterations to the roof of the dwellinghouse on a basis which is consistent with the approach in Class B. My attention was not drawn to any other provision in Part 1 which would be inconsistent with the approach that I have set out above.
42. I have also been referred to the decision of Mrs Justice Patterson in Royal Borough of Kensington & Chelsea v Secretary of State for Communities & Local Government [2015] EWHC 2458 Admin In that case Mrs Justice Patterson was concerned with the construction and application of the exception under A.1 (f) of Part 1 of the GPDO in respect of a basement to what was an original dwellinghouse, as defined. She stated as her first issue in paragraph 23:

" ..... whether the phrase 'the enlarged part of the dwelling house would have more than one storey' in paragraph A.1 (f) is referring to the dwelling house as enlarged by development, i.e. to include the original dwelling house, or whether it is referring to that part of the dwelling house permission for which is given by Class A of the GPDO."

43. Mrs Justice Patterson set out her considerations and conclusions from paragraph 29, including the following:

"[29] Within paragraph A.1 (f) the draftsman has drawn a distinction between 'the enlarged part of the dwelling house' and the 'original dwelling house'. That has clearly been done with a purpose and, in my judgment, is to clarify the interpretation of the paragraph.

[30] They refer to two different things. The 'enlarged part' is referring to the development permitted under the GPDO. The 'original dwelling house' is the dwelling house as defined in accordance with Article 1 of the GPDO. 'Original' is defined in Article 1 of the GPDO:

''Original' means, in relation to a building existing on 1 July 1948, as existing on that date and, in relation to a building built on or after 1 July 1948, as so built.'

[31] The Claimant's submission that 'enlarged part' incorporates the original is artificial and, in my judgment, offends the natural language used in Class A.1(f).

[32] Further, when Class A is read as a whole it is clear that 'it' refers either to the subject immediately preceding, i.e. the enlarged part of the dwelling house, or back to the opening words 'development is not permitted by Class A.1 (f)'.

[33] The purpose of the GPDO is to compare what is proposed with what existed prior to the proposal to ascertain whether the exceptions are engaged. That is why it is important to have a definition of the 'original' under Article 1.

[34] The Claimant contends that such an approach will not catch 'piggybacking' or incremental development. I reject that submission. Article A.1(f) is dealing with the enlargement or alterations to the original dwelling house. Each step of incremental development has, therefore, to be judged against that baseline so that incremental development is caught each time it is proposed.

[35] I accept the submissions of the Defendant that 'part' cannot be characterised as meaning the whole of the dwelling house as enlarged. The original dwelling house and the enlarged part of the house may combine to make a dwelling house as enlarged, but they are two separate components. That interpretation has the advantage of being both straightforward and consistent with the language used."

The judge concluded in paragraph 43:

"[43] It follows that the 'enlarged part of the dwelling house' is referring solely to that which is the subject of permission granted under the development order. The first issue, therefore, I determine in favour of the Defendants."

44. Mrs Justice Patterson was not dealing in that case with an earlier extension but simply with the question whether the enlarged part of the dwellinghouse included the whole of the original dwellinghouse. She rejected that approach as artificial and offending the natural language used. In paragraph 33 she stated that the purpose of the GPDO was to compare what was proposed with what existed prior to the proposal. In that case that meant looking at the original dwellinghouse. In paragraph 34, while the issue only concerned whether the enlargement was single-storey, I consider that "each step of incremental development has, therefore, to be judged against" the original baseline is entirely in accordance with the approach which I have set out earlier. Importantly, at paragraph 43, she found in terms that the enlarged part of the dwellinghouse is referring solely to that which is the subject of the permission granted under the development order.
45. In so far as there is anything to be drawn from paragraph 35 in respect of the extent of the enlarged part of the dwellinghouse in the context of an earlier extension, that was not part of the essential reasoning as part of her judgment, which concluded that the enlarged part of the dwellinghouse referred solely to the development which was the subject of the permission under the development order, and to that extent was obiter.
46. In light of the above I have concluded that for the purpose of the exception under Class A, paragraph A.1(g) of the GPDO "the enlarged part of the dwellinghouse" refers to development comprising the enlargement of a dwellinghouse proposed to be carried out under Class A. The proper question is, therefore, whether that proposed development would be single-storey.
47. On the facts of the present case, the Inspector's conclusion in paragraph 13 of his decision letter that the enlarged part included the extension carried out pursuant to the 2000 planning permission was incorrect in law. Given his earlier findings on the extension and its overall height in paragraph 7 of the decision letter, that error of law was material and the decision should be quashed.
48. On the costs decision, the claim for costs was in respect of the conduct of the second defendant in refusing the application and opposing the appeal. The Inspector found nothing in the circumstances that amounted to unreasonable behaviour in that respect. There is nothing in this application that has to my satisfaction established that that conclusion was wrong in law and that part of the claim is, accordingly, dismissed.
49. In the circumstances I allow the claim in respect of the main decision, and the claim in respect of the costs decision is refused.
50. MR WILLS: I am grateful. In your concluding remarks your Lordship referred to the matter which is seen as the main matter and that must be right. In those circumstances I would make an application for the claimant's costs from the first defendant. If your Lordship is satisfied as to the principle of costs, my friend and I have had an opportunity to discuss quantum. There are a number of matters to which I could alert your attention. I could do it now or I would allow my friend to address you on the principle.
51. DEPUTY JUDGE: Principle first. But there should be a summary of costs.
52. MR WILLS: If that has not found its way to you, I apologise. I have a - - - - -
53. DEPUTY JUDGE: Let us deal with principle first.
54. MR PARKER: My Lord, I appreciate that the vast majority of the argument has been taken up dealing with the substantive issue of law and that they should be entitled, as a matter of principle, to those costs. The question in respect of that part of the claim which failed, namely the claim in respect of the costs decision, I say there should be some small reduction as a matter of principle in the level of costs to which the claimant is entitled. I appreciate that was a less significant part of today's hearing and, indeed, the proceedings thus far.
55. DEPUTY JUDGE: (To Mr Wills) I need not trouble you.
56. I am satisfied here that the burden of costs was really entirely in respect of what I have described as the principal issue.
57. MR WILLS: I am grateful. I hand up a schedule of costs. One was sent to the court yesterday; it was fairly late in the afternoon. There was acknowledgement of emails, just so your Lordship is satisfied that my solicitor has not been entirely dilatory in that respect. I hand up a copy. (Same handed)
58. DEPUTY JUDGE: Let me have a look at this. Then let me know to what extent it is in issue, unless you can help me now on that.
59. MR WILLS: I can help you now on that. I understand there is, in essence, agreement. My friend correctly points out that those instructing me are not present today and their attendance is, in fact, listed on the schedule in error. The other matter was some fairly small items on the last page in the box entitled "Others" (printing and postage). I have absolutely no problem with removing those. The consequential figure, as I recall, therefore, was £10,742.40 which takes into account those matters to which I have alerted your Lordship.
60. DEPUTY JUDGE: There is nothing in that figure that makes me think it should go to any sort of assessment. Are there any other applications?
61. MR PARKER: I make an application for permission to appeal. I think I have to do that now as your decision has been given now. In my submission the plain reading of the statute goes the other way to my Lord's findings. But, in any event, I say the interpretation of the statute is not clear cut. Although my Lord has found against me on that point, I say there is reasonable prospect of the Court of Appeal reaching a different view.
62. In respect of the piggy-backing argument, it was as you recall both myself and my friend's joint position that in so far as there had been previous extensions permitted by the Order those should be included in the enlarged part of the dwellinghouse. One of my lines of argument was that there is no difference between what has been permitted under the Order and what has been permitted expressly. Given what was at the outset at least my friend's concession in respect of that point, again I say there is a reasonable prospect of the Court of Appeal reaching a different conclusion on that issue.
63. In respect of the decision of Mrs Justice Patterson, I understand my Lord's findings in respect of that. But again I would say the decision is not necessarily a clear-cut one, and there is sufficient indication in Mrs Justice Patterson's decision that what is required is a straightforward comparison between proposed and original dwellinghouse. My Lord has referred to those passages in his judgment. But I say there is enough there to persuade the court that there should be a real prospect of success.
64. In terms of the consistency of the Order overall, particularly references to Class B, in my submission they should be treated separately from the interpretation of Class A.1. So in line with my earlier submissions, they are of no bearing in relation to paragraph A.1 (f) and the other paragraphs at which we have been looking, the meaning of enlarged part of the dwellinghouse.
65. For those reasons I say that there is a real prospect of success. These matters, as I pointed out to my Lord although I do not think you dealt with them specifically in your judgment, would run counter to the Secretary of State's own guidance. So for that reason I say there is, in addition to there being a real prospect of success, some other reason to grant permission in relation to this matter.
66. DEPUTY JUDGE: I am not going to give permission on the grounds. In my judgment the Order is entirely clear on its language, and there is not therefore a reasonable prospect of success notwithstanding the points that you have made.
67. I will sign the form on that. Any other applications?
68. MR WILLS: Certainly not from me. Would you like me to draw up and order? Would that be of assistance?
69. DEPUTY JUDGE: Yes. To be clear, I allow the claim in respect of what I call the principal issue (the decision dismissing the appeal). I refuse the order against the application for costs. I grant costs of this challenge to the claimant in the sum I assess at £10,742.40.
70. I refuse permission to appeal.