England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4 November 2016

MRS JUSTICE ELISABETH LAING:

1. This is my decision on an appeal by way of case stated against the decision of District Judge McGarva ("the district judge"), sitting at the Cannock Magistrates' Court. He delivered his judgment on 18 March and stated the case on 17 May 2016.
2. The questions he stated for the opinion of the court were:

"(1) Were the essential ingredients of an application for a planning enforcement order under Section 171BA of the Town & Country Planning Act 1990 made out on the evidence in this case; and (2) was I right to conclude that Mr and Mrs Coles's actions amounted to the deliberate concealment to any extent of breach of a planning control."

3. On the appeal the appellants were represented by Mr Ostrowski and the respondent local planning authority ("LPA") by Mr Kimblin QC. I grateful to both counsel for their written and oral submissions.
4. The appeal is against a planning enforcement order ("PEO") made by the district judge in relation Squirrel Cottage ("the Cottage").
5. The Evidence
6. The district judge heard evidence from the appellants, from Patricia Appleby, and from Ronald Coles on behalf of the appellants, and from Mrs Hibbs and Mr Wynn from the LPA. He found that Mrs Hibbs was an honest witness. He found that Mrs Coles was a guarded witness and that some of her answers did not match the correspondence. Mr Coles's evidence was also in part contradicted by the correspondence. Patricia Appleby came across to the district judge as an honest witness. She felt greatly indebted to the appellants for rescuing her at a difficult time in her life. Andrew Coles had given brief evidence about threats he had received and about the fitting of security shutters to the cottage. The LPA did not challenge that evidence.
7. The district judge took into account written statements (see paragraph 3 of the case stated). He was also provided with two bundles of documents. Those included many letters and photographs and plans taken or made on various dates in the history.
8. The Facts
9. The district judge did not purport to set out all the evidence he had heard (see paragraph 6 of his careful judgment) but he did comment on aspects of some of it in paragraphs 7 to 12 of his judgment. I have just summarised those comments. He made his findings of fact in paragraphs 14 to 24 of his judgment. He summarised those findings in paragraph 4 of the case stated.
10. The site of the Cottage is relatively remote. It is between the West Coast mainline and the Coventry Canal. It is approached by a long track and is not readily visible save from the railway. The site has a number of buildings, some of which have been erected at different times without planning permission. It is a controversial site and the LPA have received a number of complaints alleging planning infringements.
11. The appellants have a significantly better than average knowledge of the planning system and of property in general. The district judge explained why he had made that finding in paragraph 16 of his judgment. The appellants had previously applied for certificates of lawfulness for buildings on the site. They were fully aware of the need to apply for planning permission and of the four-year time limit for enforcement.
12. The LPA received a complaint about what is likely to have been a construction of the Cottage in 2008. A letter in May 2008 said that Mr Coles was "in the process of erecting a timber building in his lake area". A letter of July 2008 referred to "yet another building" and to the doubled-glazed units going in. A letter to the LPA in August 2009 included a plan which appeared to show a property roughly in the position of the Cottage. The Cottage was described in the letter as "overlooking a wonderful pool". That letter also said that the appellants had "told everyone that it does not matter, and you can build what you want where you want and it does not matter. The council is that far-stretched it is yours in ten years anyway".
13. The response to all those complaints was that the LPA was not able to uncover evidence of unlawful development. The district judge found it probable that the appellants did tell neighbours what that letter recorded. He was "certain that had the applicants been aware of the breach, they would have taken enforcement action straightaway given the way they dealt with other complaints" (see paragraph 16 of the judgment). In paragraph 18 of the judgment he made findings about site visits by the LPA; there were several in 2008 and 2009. LPA officers saw the completed structure. When it was seen it was covered at the front with green shutters. It had no openings to the back or sides. The area around it was landscaped. There was a satellite dish lying on the ground and a flue.
14. Mrs Hibbs's evidence was that she thought it was a shed. She certainly did not identify it as residential property. A note was made on the planning officer's worksheet on 28 April 2010. It said:

"Chalet/probably over four years. Debate whether it is included as part of CLE."

15. The author of that entry, Mr Law, did not give evidence before the district judge so there was no evidence from him about whether that entry referred to the Cottage. Mrs Hibbs thought that it referred to other buildings but it was hard for her to say. The district judge said that he -

" ..... found it impossible to determine that this entry relates to what would become [the Cottage]. There were many buildings on the site, some of which were built without planning permission. The council had to deal with a number of complaints in 2008 to 2009 as the correspondence clearly showed. There was no way of knowing what property the entry related to."

16. None of the twelve examples given by the appellants as showing that the LPA knew about the building, with the exception of three photographs, show, the district judge said, that the LPA was ever actually aware of the building. And the photographs of the shuttered building did not demonstrate residential use.
17. The district judge summarised all of this by concluding that although the LPA was aware of the structure it had not realised that it was the subject of the complaints or that it was constructed as a dwelling or, indeed, that it was being lived in (see paragraph 19 of the district judge's judgment). The district judge found that the appellants did not apply for a specific address for the Cottage. They did not register to vote until after the four-year period had expired. The address was only registered for council tax after the appellants had received advice from their planning consultants. The district judge found that this was because the appellants did not want to draw attention to their occupation of the Cottage. They were far too experienced i property matters not to realise the need to pay council tax on the property.
18. The appellants gave the LPA the impression that they were still living in a property called The Dairy Annexe. They used that as their address in all their correspondence. The appellants said that it was not a deliberate deception but a reflection of their own view that The Dairy Annexe covered the whole area of the site. The district judge said he had considered this evidence very carefully. He had looked at a number of letters and assessed the credibility of the appellants' evidence on that point. He referred to Mr Coles's letter of 10 May 2010 to the LPA. The appellants were still referring to their property as The Dairy Annexe. Mr Coles explained who owned what land and attached a plan [admittedly a plan sent by the LPA to him]. This showed various properties on the site but not the cottage. He said that he and his wife were living in Thailand, that The Dairy Annexe and the granny flat were let out and that the other cabins were unoccupied. Any post directed to the appellants at The Dairy Annexe was being redirected to their daughter. The LPA had written to the appellants about the erection of a log cabin without permission. The LPA made it clear in their letter that they had not found evidence of that building.
19. In a response to a planning contravnetion notice, Mr Coles had handwritten a square with a question mark on an attached map roughly in the position of the cottage. This was very ambiguous if it was an acknowledgement of the development, and there was absolutely no explanation of it on the form.
20. The district judge also referred to a response to a further enforcement notice in September 2012. That referred to Mrs Coles as occupying The Dairy Annexe. It did not say that The Dairy Annexe was rented out to Mrs Appleby.
21. The district judge rejected the assertion that the appellants thought the site was all one big address (see paragraph 23 of his judgment). That assertion was not credible and was at odds with the correspondence in which Mr Coles had been at pains to say exactly who lived where. The district judge noted Mrs Appleby's evidence about where the mail was sent. The district judge considered the evidence about where site meetings had been held but was not able to make any findings on that issue. In paragraph 24 of his judgment he said that the Cottage looks completely different on whether the shutters are open or not. When they are open it is clearly residential; when they are closed the purpose of the Cottage is hard to make out. It could easily be a gym, a swimming pool or an office. The district judge recorded that the LPA had not put to the appellants during the hearing that the shutters were part of the deliberate concealment of a breach of planning control. In that situation, the district judge said, he had to accept that the shutters were there for security purposes when the appellants were away for long periods.
22. At paragraph 25 of his judgment the district judge set out the appellants' three arguments why he should not make a PEO. They were, first, the appellants could not conceal something that the LPA knew about. They then gave twelve examples of the LPA's knowledge of the cottage and five examples of the LPA's knowledge of its residential use. Second, if that was wrong, there had been no deliberate concealment. At its worst, there had been non-disclosure. There was no evidence of any deliberate lie being told. Third, it was not just to make the order. Mr Coles was old and infirm and the cottage was their only home. Even if the LPA did not know the use, they should have known of it and the LPA could not therefore reasonably enforce a PEO after such a long time.
23. The district judge's conclusion (see paragraph 26 of his judgment) was that that LPA was aware of the building which is now known as the Cottage but that it did not realise it was being used as a residence and did not identify it as the structure which the neighbours had been complaining about. The appellants had set about creating the impression that they still lived at The Dairy Annexe so as not to draw attention to the existence of the Cottage before the four-year period expired. For the same reasons the appellants did not register the Cottage as a separate address, they delayed going on the electoral register, and they did not register for council tax. Their conduct must be viewed, the district judge said, in the light of the previous planning history and of the multiple erection of buildings and changes of use without planning permission.
24. In paragraph 28 of his judgment the district judge summarised the law. He said that the leading case on common law enforcement was Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15; [2011] 2 AC 304. He said that that case was decided before the enactment of Section 171AB of the Town & Country Planning Act 1990 ("the 1990 Act"). The new section does not overturn Welwyn, he said. Section 171AB of the 1990 Act when further than Welwyn. The test was different and broader. He referred in that context to the decisions in Jackson v Secretary of State for Communities and Local Government [2015] EWHC 20 (Admin), [2015] EWCA Civ 1246, (both in the High Court and in the Court of Appeal). In paragraph 48 of the judgment in the Court of Appeal, Lord Justice Richards had said:

"48 ..... There are good reasons why a local planning authority may find the PEO procedure attractive in an individual case. For example, the extent of concealment may be insufficient, or arguably insufficient, to engage the Welwyn principle but sufficient to justify the making of a PEO so as to enable enforcement action to be taken outside the normal time limit in section 171B."

25. The district judge said that there was deliberate concealment in this case. The appellants sought to conceal that they were living in the cottage by deliberating creating a misleading impression that they were living in The Dairy Annexe, both in correspondence and in answers to planning enforcement questionnaires. That deception had to be viewed in the context of their failing to register an address for it and failing to register it for council tax and in the context of their putting up buildings without permission and converting buildings without permission. The concealment might not be enough to engage the Welwyn principle but, the district judge said, the statute sets a lower standard by saying "to any extent". And there clearly was positive concealment to prevent the LPA from discovering the breach within the four-year period.
26. The district judge considered the justice of the case. That involved striking a balance between competing interests. He referred to the age and poor health of Mr Coles. He had lived in the cottage since 2008 but he had spent a significant part of that time in Thailand. The threats to the appellants' safety were irrelevant because they moved only yards away from their original address and the threats post-dated that move. In paragraph 29B of the judgment [there are two paragraphs numbered 29 in the judgment] the district judge asked himself whether it was reasonable for the LPA not to have identified the Cottage within the four-year period. I remind myself that in this part of the judgment he was not purporting to apply that statutory test but instead was considering one of the appellants' arguments why it would not be just to make a PEO.
27. The district judge said that the LPA had received a large number of complaints about what turned out to be the Cottage. The LPA had investigated those. They even took photographs of the cottage without realising that it was the subject of those complaints. It was a complex situation. There was a whole series of buildings; some had certificates of lawful use, others had been built or their use had been changed without permission. It was a very complex site to make sense of. The residential nature of the Cottage was concealed by the shutters. They were put there for security purposes but they did conceal the true purpose of the property from the LPA. The Cottage was not obviously newly constructed. The shutters were relevant to the LPA's knowledge in 2008 and 2009. The appellants had lived there a long time but that was due, in main part, to their deception in concealing the development to the extent which the district judge had determined.
28. The other side of the coin, said the district judge, was the public interest in upholding the planning system. He accepted (in paragraph 31 of his judgment) that the law allows for immunity from enforcement after four years. That, he said, was an integral part of the system. This

" ..... rightly reflected the fact that breaches may occur innocently and that after so long there should be no enforcement action. This, however, is not such a case."

29. He said that the appellants were well versed in planning law and

" ..... have a history [of] acting as they please in a site which is designated green belt. In the context of that history, it would an affront to justice not to make a [PEO]."

30. The district judge was therefore satisfied on the balance of probabilities that -

"The construction and use of [the Cottage] as a residence without planning permission was concealed to an extent that it is just to make the order in all the circumstances."

31. The Law
32. Section 171B of the 1990 Act provides, in short, that the breaches of planning control to which it applies are immune from enforcement when four years had elapsed from their substantial completion. In Welwyn, the Supreme Court decided, obiter, that there was an implied proviso to this apparently unqualified immunity. The immunity does not apply if the developer has engaged in positive deception in matters integral to the planning process which had been directly intended to undermine and did undermine that process.
33. Section 171BA to Section 171BC were inserted in the 1990 Act by Section 124 of the Localism Act 2011. They are not referred to in the decision of the Supreme Court although it is possible that these provisions were in the Localism Bill as clauses by the time of the hearing in Welwyn. They provide so far as relevant:

"171BA Time limits in cases involving concealment

(1) Where it appears to the local planning authority that there may have been a breach of planning control in respect of any land in England, the authority may apply to a magistrates' court for an order under this subsection (a 'planning enforcement order') in relation to that apparent breach of planning control.

(2) If a magistrates' court makes a planning enforcement order in relation to an apparent breach of planning control, the local planning authority may take enforcement action in respect of —

(a) the apparent breach, or

(b) any of the matters constituting the apparent breach,

at any time in the enforcement year.

.....

(3) Subsection (2) —

(a) applies whether or not the time limits under section 171B have expired, and

(b) does not prevent the taking of enforcement action after the end of the enforcement year but within those time limits."

171BB Planning enforcement orders: procedure

(1) An application for a planning enforcement order in relation to an apparent breach of planning control may be made within the 6 months beginning with the date on which evidence of the apparent breach of planning control sufficient in the opinion of the local planning authority to justify the application came to the authority's knowledge.

(2) For the purposes of subsection (1), a certificate —

(c) signed on behalf of the local planning authority, and

(d) stating the date on which evidence sufficient in the authority's opinion to justify the application came to the authority's knowledge,

is conclusive evidence of that fact.

.....

171BC Making a planning enforcement order

(1) A magistrates' court may make a planning enforcement order in relation to an apparent breach of planning control only if —

(e) the court is satisfied, on the balance of probabilities, that the apparent breach, or any of the matters constituting the apparent breach, has (to any extent) been deliberately concealed by any person or persons, and

(f) the court considers it just to make the order having regard to all the circumstances.

(2) A planning enforcement order must —

(a) identify the apparent breach of planning control to which it relates, and.

(b) state the date on which the court's decision to make the order was given."

34. The Appellants' Submissions
35. Mr Ostrowski made five main submissions.
36. First, the district judge's reference in paragraph 31 of his judgment to "the fact that breaches may occur innocently" shows that he fundamentally misunderstood the law about immunity from enforcement. This misunderstanding tainted his approach to the evidence and means that his findings of fact cannot stand. The district judge's understanding of the law was relevant to his assessment of the credibility of the witnesses.
37. Second, the district judge was irrational to find that the LPA did not know about the breaches of planning control. Had the district judge made the right findings about that, he could not have found that there was deliberate concealment.
38. Third, but even if he had made findings he was entitled to about the LPA's state of knowledge, he was irrational to find that the appellants had deliberately concealed the breach of planning control.
39. Fourth, the district judge was irrational to find that the if the council had known about the breaches of planning control it would have taken enforcement action immediately.
40. Fifth, the district judge was wrong to decide that both the construction and use of the cottage were concealed as that meant enforcement action could be taken which would required the demolition of the Cottage. The district judge should only have found that the use rather than the construction of the cottage was deliberately concealed.
41. It is convenient for me to consider Mr Ostrowski's fourth submission first. I do not consider that it was irrational for the district judge to conclude that if the LPA had known about the breach of planning control it would have acted immediately. The point here is that the district judge gave reasons in paragraphs 19, 26 and 29B of his judgment for his findings that the LPA did not know about the breach of planning control earlier and that it was reasonable for the LPA not to have taken action sooner than it did.
42. It must follow from those findings that once the LPA did have enough evidence to apply for the PEO it did so. If that is right it seems to me that the district judge was entitled to find that had the LPA known about the breach sooner it would have taken enforcement action sooner. But if I were to assume that that was an irrational conclusion I do not see h ow this helps Mr Ostrowski. This is a side issue on which the district judge expressed a view. It was not essential to his conclusions on the main issues. That means that even if this finding was irrational - and I do not consider that it was - it would have been a wholly immaterial error.
43. Similar reasoning applies to Mr Ostrowski's first submission which attacks part of the district judge's reasoning in paragraph 31 of his judgment. In that passage the district judge was considering not the main factual question but whether it was just to make the PEO, having reached his decision on the facts. He was here expressly balancing the public interest in upholding planning law against the interests of the appellants. He referred to that public interest and accepted that in that context Section 171B conferred an immunity from enforcement. He accepted that "breaches may occur innocently" but - and this is the point - this case was not a case where the breaches were innocent. Given his clearly expressed conclusions about the conduct of the appellants, the district judge was entitled to contrast an innocent breach with the breaches in this case. That view informed his conclusion that it was just to make the PEO.
44. I do not read the district judge's reasoning as expressing a view that only "innocent" breaches could qualify for the statutory immunity pursuant to Section 171B. Indeed, such a view would be inconsistent with his correct understanding that the test created by Section 171BC (1) is a less stringent test than the Welwyn test. I assume, for the sake of argument only, that the district judge was wrong to refer to innocent breaches in the context of Section 171B (if that is what he meant). But this does not in any way infect or undermine his approach to the case as a whole. It is an immaterial error, if error it is. He was not concerned in this case with the application of the Section 171B immunity or, therefore, with the scope of that immunity. He was concerned, rather, with applying the test in Section 171BC. It is clear to me from reading the decision that he knew that that was the test he had to apply and that he applied it.
45. Finally, I am unable to see as a matter of logic how reasoning addressed to the justice of making the PEO can in any way taint or infect the district judge's approach to the facts. What the careful judgment shows is that he listened to and read the evidence, assessed its weight, and then considered whether the facts he had found met the test in Section 171BC (1).
46. To submit, therefore, that this error (if error it is) infected the district judge's approach to the evidence is simply to put the cart before the horse. Moreover, the view which he expressed in paragraph 31 of the judgment, that these breaches were not innocent, is a conclusion which was open to the district judge based, as it was, on the district judge's careful assessment of all the evidence. It is an end point, not a starting point.
47. I therefore reject Mr Ostrowski's first submission.
48. Mr Ostrowski's second submission is based on a fallacy. There is no equation between the LPA's state of knowledge and whether there has been deliberate concealment. A person can hide development in a thoroughly deceptive and deliberate way but simply fail to deceive the LPA. The concealment in such a case may have no causal effect, but that is a different point. The fact that the deception is discovered does not mean that there has been no deliberate concealment. It simply means that the deliberate concealment has failed.
49. The submission is also, in my judgment, based on a misunderstanding of this group of provisions. Parliament has made clear in Section 171BB when the LPA's state of knowledge is relevant and to what extent. Time for making an application for a PEO runs not from when the LPA knows about the apparent breach but from the date on which "evidence of the apparent breach of planning control sufficient in the opinion of the [LPA] to justify the application comes to the LPA's knowledge". Moreover if, as in this case, the LPA issues a certificate stating what that date is, that certificate is "conclusive" evidence of that fact.
50. The certificate may be challenged when the application for the PEO is made to the magistrates or by judicial review (see Tanna v London Borough of Richmond upon Thames [2016] EWHC 1268 (Admin), paragraph 32.) It does not appear from the district judge's decision that any such challenge was made before him. I asked Mr Ostrowski whether the certificate had been challenged before the district judge and I think his answer was that it had not been. There is no ground of appeal challenging the certificate. That, in my judgment, is the end of the knowledge issue. The LPA issued a certificate about when they knew the matters referred to in Section 171BB. That certificate was not challenged before the district judge. It is therefore conclusive of those matters. Had Mr Ostrowski sought to do so, I would not have permitted him to challenge the certificate on this appeal.
51. In short, the application for the PEO was made within the statutory time limit and that is the extent to which, under this statutory scheme, the LPA's knowledge is relevant to the application for a PEO. I should make clear in saying this that I do not suggest that the district judge was wrong to consider the reasonableness of the LPA's conduct at the stage when he was deciding whether or not it was just to make the PEO.
52. In any event, I have set out the district judge's careful findings at some length. The submission that his conclusions (expressed in paragraph 26 of the judgment) that the LPA was aware of the building which is now known as the Cottage, but that it did not realise that it was being used as a residence and did not identify it as the structure that the neighbours had been complaining about, were founded in the evidence which he accepted as true, and cannot on any view be said to be irrational. His other relevant conclusions in paragraphs 19 and 29B were, similarly, founded in the evidence which he accepted, and open to him.
53. Mr Kimblin QC, in his succinct submissions, reminded me that to show irrationality an appellant has to surmount a high hurdle. Mr Ostowski showed me various documents and photographs in the course of his submissions. They do not, in my judgment, undermine the district judge's conclusions in any way. The high points were the reference to the chalet in the working note and the effect of the correspondence, including the plan which was returned to the LPA not showing the Cottage marked on it. The district judge dealt carefully and clearly with these arguments in paragraphs 19 and 23 of his judgment. None of Mr Ostrowski's submissions satisfied me that the findings that the district judge made on those topics were wrong or irrational. They were based on the evidence which the district judge accepted, and on his assessment of the weight which it was appropriate to give to that evidence.
54. I also reject Mr Ostowski's submission that the district judge's findings about deliberate concealment are irrational. Again, I have summarised those findings at some length (and Mr Kimblin QC summarised them in paragraph 15 of his skeleton argument). The district judge was entitled to conclude, having regard to the contextual features which he identified, that the appellants did deliberately conceal what they were doing from the LPA and that they did so to an extent which made it just to make the PEO. Mr Ostrowski's extensive reliance on the Welwyn line of cases in this context does not help him, in my judgment, as those cases, as is recognised in Jackson and as the district judge himself appreciated, impose a different and higher test.
55. Mr Ostrowski's final submission is trailed by one sentence in paragraph 50 of his skeleton argument although I think it is present in his grounds of appeal. Mr Kimblin QC, anticipating that this point might be developed in argument, came to the hearing with copies of Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784. The reasoning in that decision satisfies me that it was open to the district judge to reach the conclusion which he did in paragraph 32 of his judgment (which reflected the draft order for which the LPA had applied). In short, in some cases enforcement may be directed to operational development as well as to a change of use even though the operational development may have preceded the change of use; in other words, the LPA can require, as part of its enforcement against a change of use, steps be taken which would entail the removal of a structure (operational development) which preceded the change of use which is being enforced against. I have to say that in this case, in any event, it seems to me that the operational development and any change of use coincided with each other as it seems to me that the Cottage must have been built, from the outset, for residential purposes.
56. It was open to the district judge to hold that both the construction of the cottage and its use were deliberately concealed by the appellants in this case.
57. In my judgment, in the light of the district judge's rational conclusions, the appellants will suffer no injustice if eventually they are required to demolish the Cottage rather than merely to stop using it for residential purposes.
58. Conclusion
59. I would answer the question stated in the case in this way:

The essential ingredients of an application for a planning enforcement order under Section 171BA of the Town & Country Planning Act 1990 were made out on the evidence in this case;

The district judge was right to conclude that the appellants' actions amounted to deliberate concealment to an extent of the breach of planning control.

60. It follows that I dismiss the appeal.
61. Are there any applications?
62. MR KIMBLIN: There are two points. One is in respect of my Lady's judgment there is one matter to raise by way of short amendment. Planning is particularly afflicted by three-letter acronyms. At the point in your judgment after you discussed ambiguity and about to set out paragraph 24 of the judge's judgment, there was a reference to planning enforcement notice. And I think that was in fact a planning contravention notice, a PCN.
63. MRS JUSTICE ELISABETH LAING: The reference to planning enforcement notice should be corrected to planning contravention notice. That is very helpful.
64. MR KIMBLIN: The second point is solely in respect of costs. A schedule has been served. There is an application in the sum of £18,123.60 on which, I understand, my friend has some observations to make.
65. MRS JUSTICE ELISABETH LAING: I can see two costs statements.
66. MR KIMBLIN: That is right.
67. MRS JUSTICE ELISABETH LAING: The first one was probably drafted before the hearing. Is that right?
68. MR KIMBLIN: That is right. The second one has been updated.
69. MRS JUSTICE ELISABETH LAING: The costs claim in the first one was just short of £15,000 and the costs now claimed are just over £18,000.
70. MR KIMBLIN: Correct.
71. MRS JUSTICE ELISABETH LAING: That difference reflects the extra costs which I imposed on the parties by reading out the judgment. Is that right?
72. MR KIMBLIN: That is shortly - - - - -
73. MRS JUSTICE ELISABETH LAING: I will hear no more from you at the moment. I will see what Mr Ostrowski has to say and then you of course can reply to any submissions that he makes.
74. MR OSTROWSKI: My Lady, no observations in terms of the principle. I do have two observations as to quantum, both in respect of the reasonableness and the proportionality of the costs that are claimed.
75. The first observation is leading counsel was instructed with a corresponding impact on the fees for advice and for hearing. It may not be huge assistance but the appellants' statement of costs was also served, and you can see from that - - - - -
76. MRS JUSTICE ELISABETH LAING: I am not sure that I have seen that.
77. MR OSTROWSKI: That was served some days in advance.
78. MRS JUSTICE ELISABETH LAING: It has not reached me.
79. MR OSTROWSKI: I hand forward copies to my Lady (same passed).
80. MRS JUSTICE ELISABETH LAING: I do not in any way blame you for that.
81. MR OSTROWSKI: You can see that there is a corresponding difference in the fees that are claimed for counsel's advice and hearing costs.
82. I say that in a case such as this it was not proportionate for leading counsel to be instructed.
83. The second observation that I have is on a similar note. You will have seen the seniority of solicitor that was used throughout by the respondents. It is Mr Anderton at £260 per hour. I think all the costs that were incurred were incurred through work - - - - -
84. MRS JUSTICE ELISABETH LAING: "(1)" is a reference to Mr Anderton's seniority.
85. MR OSTROWSKI: Yes. I understand - - well, (1) is a reference to how many solicitors were instructed in this case. (1) He is a grade 1 fee earner, which is I believe eight years' post-qualification experience. I say two things as to that. One is whether it was proportionate for all the work to be done by such a senior solicitor. Secondly, and again - - - - -
86. MRS JUSTICE ELISABETH LAING: What level of seniority was the solicitor that your clients instructed?
87. MR OSTROWSKI: I was instructed on a direct access basis. Plainly, some of the work was done by the clients themselves. In answer to you question, I was on a charge of £100 per hour. The volume of hours that are being claimed for by the respondents is quite significantly - particularly in terms of letters out - more significant than that incurred by myself on behalf of the appellants. It is page 2 of the respondents' costs schedule. I note that there are six hours of letters out and two hours of letters to opponents. It should be the second page of the council's costs schedule. The second section is "letters out on opponents". Then there is an "attendance on others" section where six hours are claimed.
88. MRS JUSTICE ELISABETH LAING: This is the most recent statement of costs.
89. MR OSTROWSKI: From the council. I will check with my friend but I am working off the same page.
90. MR KIMBLIN: There is a "six" in there, yes.
91. MRS JUSTICE ELISABETH LAING: Letters out, emails, six hours claimed there; attendance on others; and the two hours for attendances on opponent.
92. MR OSTROWSKI: That generates a sum of £5,500 on solicitors' costs which is, again, very significantly more than the £700 claimed on behalf of the appellants. I accept that as I was instructed on a direct access basis, inevitably some of the correspondence would have been done my clients. But there is plainly, in my submission, a difference there that suggests the amount claimed is unreasonable and/or disproportionate.
93. MRS JUSTICE ELISABETH LAING: What do you say is the right level of solicitor to be instructed in a case like this?
94. MR OSTROWSKI: The only information as to what the work done on the documents was, that is brief to counsel and considering skeleton arguments, it is unclear what the correspondence in fact consisted of. My clients do not appear to have received many letters or e.mails at all from the council. It is simply not clear what level was required. Plainly I would suggest, given that counsel was instructed, it is simply not possible for me to say what level was required.
95. MRS JUSTICE ELISABETH LAING: Would you accept that the council would have been reasonable to have instructed counsel - I see that you were called in 2009 - more senior than your level of call?
96. MR OSTROWSKI: Yes.
97. MRS JUSTICE ELISABETH LAING: Is there anything else you would like to add?
98. MR OSTROWSKI: No. There is nothing.
99. MRS JUSTICE ELISABETH LAING: That is very helpful, Mr Ostrowski. Mr Kimblin, what would you like to say to those points?
100. MR KIMBLIN: I would like to start by adding to the criticisms of Mr Anderton who, on a review of this schedule, has plainly not been doing enough. If one looks through this schedule as a whole time spent is very, very short indeed for a case of this nature. It started off by way of case stated, and so there is a case to be stated which is a lengthy process, going backwards and forwards with the district judge.
101. MRS JUSTICE ELISABETH LAING: Presumably the onus on that lies on the appellants or is that not right?
102. MR KIMBLIN: It is a process in which both parties participate. The appellants start it off. What one looks at on this costs schedule is almost nothing before the hearing - nine hours for a case which is in a specialist area, fact-heavy, the first of its kind in the Divisional Court. I would be very surprised if there are very many cases of this sort where any solicitor has managed to get to this point before the hearing spending only nine hours. If that is disproportionate, I am at a complete loss as to what it is out of proportion to.
103. MRS JUSTICE ELISABETH LAING: What do you say about the point Mr Ostrowski made about the level of seniority of Mr Anderton?
104. MR KIMBLIN: In respect of that, I say also that £260 per hour is very good value in this sphere of work.
105. MRS JUSTICE ELISABETH LAING: Is Mr Anderton an in-house solicitor or is - - no, he is not. He is from an external firm.
106. MR KIMBLIN: He is not, no. He is an external firm. I fail to get home the submission that £400 an hour is too much in a planning case. As I understand it, Mr Anderton is more than eight years in practice. His costs are extraordinarily low.
107. The point which is taken in respect of who the council chose to instruct, I submit falls away if one asks the question whether or not those fees would have been marked for a senior junior or a junior silk. In my submission they would be little different, in addition to which I make in that context the same observation that this is a case which is the first of its type in an area which is developing.
108. MRS JUSTICE ELISABETH LAING: It might be the first case of its type but, to be honest, the legal issues are quite straightforward, are they not?
109. MR KIMBLIN: I agree that the legal issues - - - - -
110. MRS JUSTICE ELISABETH LAING: Your submission to me was that this is just a perfectly straightforward rationality challenge when you boil it down to its essentials.
111. MR KIMBLIN: In the background to this case I have to say that up to the eve of the hearing I have been receiving cases of a wide variety of types on the meaning of deliberate concealment. That is not something which has emerged, happily. But nevertheless it is the sort of background to the preparation of this case which is nevertheless relevant even though we have not had to traverse it.
112. In any event, my overarching submission is that those fees are typical of senior junior.
113. Unless I can assist on any other point.
114. MRS JUSTICE ELISABETH LAING: No. I think that is very helpful.
115. MRS JUSTICE ELISABETH LAING: The local planning authority having succeeded on this appeal, Mr Kimblin QC applies for an order that their costs be paid by the appellant.
116. Mr Ostrowski does not resist that order in principle. However he submits that the costs claimed, which are a total of £18,123.60, are not proportionate. He bases that submission on three points. The first point is that the solicitor who was instructed was a grade A fee earner and it would have been proportionate to have instructed a less senior solicitor. The second point he makes is that the number of hours spent on the appeal was excessive with the consequence that the solicitors' costs of nearly £5,500 are also excessive. The third point he makes is that it was not proportionate for the local planing authority to have instructed Queen's Counsel in this case, although he does accept that it would have been reasonable for the LPA to have instructed counsel who was more senior than is he. He was called in 2009.
117. It seems to me that there is some force in all these points. In the final analysis this case, although it may be the first case on these new provisions (I think it may be the second because Tanna was also about these provisions), did not raise any difficult point of law at all. It was no more than a rationality challenge. It therefore seems to me that it would not be right to order the appellants to pay the full amount claimed. Instead, I order the appellants to pay £14,000 towards the respondents' costs.
118. Is there anything else I can deal with?
119. MR KIMBLIN: So that I can assist with the order accurately, is the £14,000 inclusive or exclusive of VAT?
120. MRS JUSTICE ELISABETH LAING: That is including VAT.
121. MR KIMBLIN: Including VAT?
122. MRS JUSTICE ELISABETH LAING: Yes, because the total sum claimed is inclusive of VAT, is it not?
123. MR KIMBLIN: That is right.
124. MRS JUSTICE ELISABETH LAING: Thank you for asking me to clarify that. Is there anything else I can usefully deal with?
125. MR OSTROWSKI: In terms of the drafting of the order and time to pay, I apply for twenty-eight days to pay.
126. MR KIMBLIN: Agreed.
127. MR OSTROWSKI: I understand it is agreed. I should make clear for your benefit, my Lady, that there will need to be discussion between the parties as to the enforcement of that costs order. I do not think that is a matter for you.
128. MRS JUSTICE ELISABETH LAING: I do not think that is a matter for me, is it?
129. MR OSTROWSKI: Quite.
130. MRS JUSTICE ELISABETH LAING: No. I thank you both very much indeed for your helpful submissions. I also thank you for coming down this afternoon for the judgment. I am very grateful for that. I ask you between you just to drawn up an order that reflects what I have decided today.