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
		14th September 2017

MR JUSTICE JAY:

Introduction

1. This is an appeal by way of case stated against the preliminary ruling of District Judge (Magistrates' Court) Susan Holdham sitting at Barkingside Magistrates' Court on 21^st October 2016 that an enforcement notice issued by the London Borough of Redbridge on 19^th July 2012 was not a nullity. The parties to the appeal are the landowner, Mr Yusuf Ahmed Sarodia ("the appellant") and the local planning authority, the London Borough of Redbridge ("the respondent"). As is a standard practice, the Magistrates' Court, having stated the case following the District Judge's ruling, has taken no further part in these proceedings.

The facts

2. Both the appellant and his wife own 49 The Drive, Ilford ("the property") as their home. The property is a two-storey semi-detached house. The appellant undertook various works at the property without planning permission. The respondent, accordingly, issued an enforcement notice under s.172 of the Town and Country Planning Act 1990 on 19^th July 2012. The terms of that notice are important. By para.3 the breach of planning control alleged is described as:

"The erection of an unauthorised two storey and single storey rear extension, single storey side extension, front porch, loft conversion with rear dormer, including a hip to gable alteration together with front railings and gates."

3. These alleged breaches are illustrated, albeit not particularly clearly, in the photographs I have in my bundle, although I imagine that the District Judge had better copies.
4. By para.4 of the enforcement notice the local planning authority's reasons for issuing the notice were set out. It is stated without qualification or reservation that all the works referred to under para.3 constitute dominant and intrusive features which harm the visual amenity of the area. Reference is made to their position, size, design and external appearance. The development is said to be contrary to various policies and, finally, it is contended that planning permission should not be granted. By para.5 of the notice:

"WHAT YOU ARE REQUIRED TO DO

(i) Remove two-storey side extension and single-storey rear extension, front porch.

(ii) Remove rear dormer or set face of dormer ...

(iii) Reduce height of the railings and pillars ... to a maximum height of 1m.

(iv) Remove from the land all resulting building materials, rubble and debris ..."

5. The appellant did not exercise his right of appeal to the Secretary of State pursuant to s.174 of the Town and Country Planning Act 1990. The enforcement notice duly took effect on 30^th August 2012 pursuant to its terms. On 14^th May 2015 the local planning authority issued a summons requiring the appellant to appear before Barkingside Magistrates' Court on Friday, 12^th June 2015 to answer the Information set out in the schedule. This stated as far as is material:

"Between 31st November 2012 and 8th April 2015, you failed to comply with an enforcement notice ... in that, as the owner of land at [the property], you failed to remove the two-storey side extension, the single-storey rear extension, and front porch, to remove the rear dormer or set the face of the dormer up by 20cm from eaves and remove the parapet wall, including materials to match the existing building, and to reduce the height of the railings and pillars ... to a maximum height of 1m, contrary to s. 179 of the Town and Country Planning Act ..."

6. Before the District Judge it was submitted by Ms Megan Thomas for the appellant that the enforcement notice was a nullity because it was hopelessly vague and ambiguous, inherently contradictory and did not clearly specify that which the appellant was required to do. Mr Nick Ham for the respondent submitted that any error in the enforcement notice could be corrected without injustice. The District Judge upheld the respondent's case.
7. My understanding of the District Judge's ruling is she found that the enforcement notice was not a nullity and it contained an error which was capable of being remedied or quashed on appeal (para.20) as happened in Miller-Mead v Minister of Housing and Local Government [1962] 2 QB. Further, this was a case of "under enforcement" because the enforcement notice did not require remedy of the whole breach (para.23). Following the District Judge's ruling, the information was amended to remove the reference to the two-storey side extension and the appellant pleaded guilty.
8. The District Judge has certified two questions for the opinion of the High Court: namely (1) did I apply the correct test in deciding whether or not the enforcement notice was a nullity? and (2), did I take into account matters that I should not have taken into account or failed to take into account matters that I should have taken into account in reaching my decision?

The relevant statutory provisions

9. Under s.172 of the Town and Country Planning Act 1990 there is power to issue an enforcement notice where it appears to the local planning authority that there has been a breach of planning control and it is expedient to issue the notice. S.173 provides as far as is material:

"(1) An enforcement notice shall state-

(a) the matters which appear to the local planning authority to constitute the breach of planning control; ...

(2) A notice complies with subsection (1)(a) if it enables any person on whom a copy of it is served to know what those matters are.

(3) An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes.

(4) Those purposes are-

(a) ...;

(b) remedying any injury to amenity which has been caused by the breach.

...

(11) Where-

(a) an enforcement notice in respect of any breach of planning control could have required any buildings or works to be removed or any activity to cease, but does not do so; and

(b) all the requirements of the notice have been complied with, then, so far as the notice did not so require, planning permission shall be treated as having been granted by virtue of section 73A in respect of development consisting of construction of the buildings or works or, as the case may be, the carrying out of the activities."

10. By s.174 any person having an interest in the subject land may appeal to the Secretary of State against the notice. Grounds of appeal are as specified in s.174(2) which provides as follows:

"An appeal may be brought on any of the following grounds-

(a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged;

(b) that those matters have not occurred;

(c) that those matters (if they occurred) do not constitute a breach of planning control;

...

(f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

..."

11. By s.176:

"(1) On an appeal under section 174 the Secretary of State may-

(a) correct any defect, error or misdescription in the enforcement notice;

or

(b) vary the terms of the enforcement notice, if he is satisfied that the correction or variation will not cause injustice to the appellant or the local planning authority."

12. Finally, by s. 285:

"(1) ... the validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought."

The rival contentions

13. Ms Megan Thomas for the appellant submitted in writing that the enforcement notice contained two fundamental errors which rendered it hopelessly ambiguous. First, the notice required the removal of a non-existent two-storey side extension. Secondly, the notice in listing under para.5 the requisite steps to be taken made no mention of the single-storey side extension. One might add that there is a further error by omission in failing to require the removal of the two-storey rear extension. Examination of the respondent's reasons for issuing the notice, submitted Ms Thomas, made clear that this was not a case of deliberate under-enforcement. On the contrary, all the works individually itemised under para.3 of the notice were said to constitute a breach of planning control. It follows, submitted Ms Thomas, that the appellant did not know what he was required to do in order to comply with the notice. The notice cannot be blue pencilled, as it were, saving those more limited portions of para.5 which were consistent with para.3. Critically, Ms Thomas submitted that the District Judge asked herself the wrong question en route to her conclusion. The question was solely, is the enforcement notice a nullity rather than would the notice have been amended on any appeal. In any event, this notice could not have been amended under s.176.
14. Mr Nick Ham for the respondent sought to uphold the District Judge's ruling more or less for the reasons she gave. He submitted that the essential question was that the appellant could tell with reasonable certainty what he was legally required by the notice to do. He did not have a two storey side extension, so he could, obviously, not be required to remove one. However, he did have a single storey rear extension, front porch, rear dormer and railings, all of which were in breach of planning control and whose removal was specified.
15. In oral argument, Mr Ham amplified those submissions and relied on s.173(3) of the 1990 Act and the adverbial phrase "wholly or partly". He submitted that on an appeal, had it been brought under s.176 of the 1990 Act, the non-existence of the two-storey side extension could have been removed from the notice saving the rest of it. This was a paradigm case, therefore, of a notice which specified an excessive requirement - see s.174(2)(f) - because there was no two-storey side extension. Mr Ham relied on various dicta of Lord Denning MR in the famous case of Miller-Mead at page 221 in particular.

Discussion and conclusions

16. I did not require Ms Megan Thomas to develop her case to me orally. I am satisfied that it is correct.
17. I was referred by counsel to a number of authorities, but it seems to me that only three are relevant for present purposes. In R v Peter Wickes, Court of Appeal Criminal Division, 11 April 1995 unreported, Keene J giving the judgment of the Court held:

"There is no doubt that nullity can be raised by a defendant if a prosecution is brought for an alleged breach of such an 'enforcement notice'. The defect is evident on the face of the document. Indeed, it arises as a matter of law and no evidence is required to establish it. The defendant may therefore argue that the purported enforcement notice is no such notice within the meaning of the Act and the magistrate or the Crown Court judge can rule upon the issue."

This authority serves to place s.285 of the 1990 Act in its proper context. That section does not apply to nullities properly so called. It only applies to the more limited matters set out under s.174(2) on the assumption that those matters do not also render the enforcement notice a nullity.

18. The locus classicus in this domain remains the Miller-Mead case, a decision of a strong Court of Appeal (Lord Denning MR, Upjohn and Diplock LJJ, as they then were).
19. Some care is required properly to interpret this case, because the legislative regime has changed since 1962. In that regard, I have carefully considered the provisions of s.23 of the Town and Country Planning Act 1947 (my researches have revealed that that section was amended on two occasions in the 1950s, but not materially for present purposes) and s.33 of the Caravan Sites and Control of Development Act 1960. This is not the occasion for a close examination of the judgments of the Court of Appeal, but I do draw attention to a number of passages. Mr Ham relied on this paragraph in the judgment of Lord Denning MR:

"Take the ordinary case where an enforcement notice contains a serious misrecital which shows that the planning authority is proceeding on a wholly erroneous basis. For instance, when it complains of a breach which was not breach, as when it complains of a development without permission, whereas permission has in fact been given, or for which permission was not required, or it assumes there was a development, whereas in law there was none. You used previously to be able to raise any of those matters before the courts. But by reason of s.33(8) of the Act of 1960 you can no longer do so. You cannot raise it by an action for a declaration. You cannot raise it by an appeal to the justices. Nor by waiting until there is an attempt to enforce it by criminal proceedings. You can only raise it by an attempt to the Minister. And even if you succeed in your appeal, the Minister can at most quash it. He cannot declare it to be a nullity or hold it to be void from the beginning. In this way the legislature has disposed of the suggestion that an enforcement notice is 'nullity' on any such ground."

20. In my view, it is clear from the context that Lord Denning's reference to proceeding "on a wholly erroneous basis" is not an analogue for nullity. He was referring to circumstances where it would be clear from extraneous evidence that the enforcement notice was ill-founded in law. That would not be clear from the face of the notice itself. For example, the notice could allege a breach of planning control where further examination or investigation would reveal that there was no such breach. That would be a paradigm case giving rise to a successful appeal under the relevant provisions of the 1960 Act, but it has nothing to do with the concept of nullity with which we are concerned. Lord Denning makes that clear in the final sentences from this paragraph. Later at page 221 Lord Denning says this:

"I think that it gives the Minister a power to amend, which is similar to the power of the court to amend an indictment. He can correct errors so long as, having regard to the merits of the case, the correction can be made without injustice. No informality, defect or error is a material one unless it is such as to produce injustice. Applied to misrecitals, it means this: if the misrecital goes to the substance of the matter, then the notice may be quashed. But if this recital does not go to the substance of the matter and can be amended without injustice, it should be amended rather than that the notice should be quashed or declared a nullity."

21. In my view, Lord Denning MR's reference to "the misrecital" is to the iteration of breaches set out in the relevant enforcement notice. In our case, therefore, it is a reference to para.3 of the enforcement notice. Secondly, it is clear that Lord Denning is drawing a distinction between errors which go to the substance of the matter and therefore render the notice a nullity; and errors which do not, and which may therefore be corrected. In the circumstances of the Miller-Mead case, the error did not go to the substance of the matter. Instead of referring to "residential caravans" the notice referred more widely and therefore excessively to "caravans." It may immediately be seen that the error was not such as to invalidate the notice altogether.
22. Mr Ham dwelled on these passages from Lord Denning's judgment. In my experience, the most oft-cited passage in the Miller-Mead case is Upjohn LJ's at page 226. There he says this:

"Now, what happens if a notice does not comply exactly with those subsections? As a matter of common sense, if it does not specify the steps to be taken to remedy the alleged breach of planning permission or the alleged failure to comply with the conditions with proper and sufficient particularity, the notice will not be operative. So, too, if subsection (3) is not complied with. Now, I think, is the time to draw the distinction between invalidity and nullity. For example, supposing development without permission is alleged and it is found that no permission is required or that, contrary to the allegation in the notice, it is established that in fact the conditions in the planning permission have been complied with, then the notice may be quashed under s.23(4)(a). The notice is invalid: it is not a nullity because on the face of it, it appears to be good and it is only on proof of facts aliunde that the notice is shown to be bad, the notice is invalid and, therefore, it may be quashed. But supposing the notice on the face of it fails to specify some period required by subsection (2) or (3). On the face of it the notice does not comply with the section; it is a nullity and is so much waste paper. No power was given to the justices to quash in such circumstances, for it was quite unnecessary. The notice on its face is bad. Supposing then upon its true construction the notice is hopelessly ambiguous and uncertain, so that the owner or occupier could not tell in what respect it was alleged that he had developed the land without permission or in what respect it was alleged that he failed to comply with a condition or, again, that he could not tell with reasonable certainty what steps he had to take to remedy the alleged breaches. The notice would be bad on its face and a nullity, the justices had no jurisdiction to quash it, for it was unnecessary to give them that power, but this court could, upon application to it, declare that the notice was a nullity. That to my mind is the distinction between invalidity and nullity."

23. In my view, it is unnecessary to cite from the judgment of Diplock LJ, in particular the passage at page 239 of the Law Report that I have taken into account. On the facts of Miller-Mead, as I have already pointed out, where there had been an appeal to the Minister under s.33 of the 1960 Act, the enforcement notice was not a nullity, because all it did was to allege too much. It was not an instance, as Upjohn LJ put it, of the notice "misfiring."
24. The third relevant authority is Payne v National Assembly for Wales [2007] 1 PNCR 4 where at para.31 of his judgment His Honour Judge Wyn Williams QC, as he then was, said this:

"At paragraph 31 of his Skeleton Argument, Counsel for the First Defendant argues that even if subparagraph (f) was uncertain, nonetheless that does not have the effect of making the whole notice a nullity. He quotes no authority for that proposition. In argument he submitted that the Court or perhaps the First Defendant had the power to delete that subparagraph from the Notice. I do not accept either of those submissions. In all the cases on nullity of enforcement notices most of the notice complies with s.173 of the 1990 Act or its predecessor. I know of no case where the fact that only part of the notice was uncertain has allowed the court to conclude that the notice as a whole complies with the section. Certainly no such case was cited to me. Further, I do not see how the Court or the First Respondent can have power to delete the offending uncertain part and thereby render the notice operative. In the instant case the complaint is that the notice was a nullity when it was issued. Again, no authority was cited for this option."

25. In my judgment, this enforcement notice is a nullity and the District Judge should have so found. Para.5 of the enforcement notice is inconsistent with para.3 in two, if not three, highly material respects such that the appellant did not know what he was required to do. Para.5 apparently required him to remove a two storey side extension, but this did not exist. No one is saying that the appellant should have interpreted this as a mistaken reference to the two storey rear extension, but I cannot accept the submission that the appellant should simply have ignored this part of para.5. Para.5 is also defective in failing to refer to the single storey side extension. Para.4 of the notice is without qualification. Everything listed in para.3 is said to constitute a breach of planning control: yet, in relation to the rear of the building, the appellant is entitled to be left in a state of confusion - why just the single storey rear extension and not the more intrusive two-storey rear extension?
26. In relation to the side of the building the position is even more confusing. The only requirement is as regards the side extension which does not exist. I agree with Ms Thomas that a straightforward application of Upjohn LJ's test leads to the conclusion that this enforcement notice was hopelessly unclear and should have been treated as a nullity. In my judgment, the District Judge erred in asking herself as the first question whether the notice could have been amended on a notional appeal. Apart from the fact that the appellant did not appeal to the Secretary of State, framing the first question in that manner has a tendency to obscure the real issue. The first question was whether the enforcement notice was a nullity because it was bad on its face.
27. In any event, I agree with Ms Thomas that the notice could not have been saved under s.176, because: (1) the amendments required would have been too extensive and, therefore, well beyond the reach of the section, and (2) the amendments required could not have been effected without injustice to the appellant. He would not have known in advance the case he had to meet and the preparatory and evidential steps he should take. I return to this issue below, but at this stage note and respectfully endorse the observations of HHJ Wyn Williams QC about the inaptness of the concept of partial nullity.
28. I should address Mr Ham's submission based on s.173(3) of the 1990 Act. He submitted that the adverbs "wholly or partly" qualify the steps which could be taken to remedy the breach and, therefore, include an express, if not an implicit, reference to the concept of "under enforcement". I cannot agree. In my judgment, "wholly or partly" qualifies the purposes set out under ss.4 of s.173 and has nothing to do whatsoever with the steps to be taken to remedy the breach in that situation. The purpose of s.173(11) of the 1990 Act is to make clear that in a proper instance of under enforcement the landowner will be deemed to be granted planning permission in respect of development which has not enforced against. The present case is not a proper instance of under enforcement, because the wording at para.4 of the notice makes clear that the respondent intended to enforce against all the matters set out in para.3 , and para.5 contains two if not three mistakes.
29. Mr Ham also submitted that this was a case which falls under s.174(2)(f) of the 1990 Act, because the requirements in para.5 of the notice relating to the two-storey side extension were "excessive". On this analysis, the concept of that which is excessive covers matters which do not exist at all. In my view, that is a completely erroneous approach. The reference to the two-storey side extension properly analysed is not "excessive": that adjective cannot qualify something which does not exist.
30. Mr Ham also submitted that on an appeal the Secretary of State could have amended the notice by excising the reference to the two-storey side extension. In my judgment, there are two difficulties with that proposition. The first is that the appellant could not have known in advance of an appeal what position the local planning authority would have taken. True it is that the local planning authority might have applied to remove the reference to the non-existent two-storey side extension; but, on the other hand, and consistent with its view that all the matters set out in para.3 constituted a breach of planning control, the local planning authority might have applied to rectify para.5 so that it wholly reflected para.3. In my view it is a wholly unsatisfactory state of affairs.
31. Secondly, I ask forensically, why should the appellant have appealed a notice which was defective on its face? The appellant was entitled to know in advance what the position was, not to test the water and trouble the Secretary of State. It was incumbent on the respondent to formulate its notice correctly. If in formulating the notice he made minor mistakes, correction of which could not give rise to injustice and which did not go to the heart or substance of the matter, that would be one thing; but the errors here were fundamental. There probably could not have been an appeal to the Secretary of State seeking to achieve the objective that the notice was a nullity. It follows that this enforcement notice is a nullity, and that in the result the conviction must be quashed.
32. The two certified questions posed by the District Judge must be answered in the negative.

MS THOMAS: My Lord, I am grateful. You have answered the questions of the Court. There are really two pieces of legislation to take you to. The first of all is s.28A of the Senior Courts Act which give you a wide power to order costs. It is 28A and B and it is on page 10 para.48 of my skeleton argument. It says that you may make such order in relation to the matter, including as to costs, as you think fit.

Then the other piece of legislation is in the Prosecution of Offences Act 1985 and relevant there is 16 and 16A, but specifically it is ss.5, which says where any proceedings in a criminal causal matter are determined before a Divisional Court of the Queen's Bench, the Court may make a defendant's costs order in favour of the accused.

MR JUSTICE JAY: But I am not a Divisional Court, am I?

MS THOMAS: Well, this is where some confusion arises, I think, with costs.

MR JUSTICE JAY: You are asking for the respondent to pay the costs and therefore the 1985 Act does not apply, but you are seeking an inter partes order so why is it not s.28A?

MS THOMAS: I had thought that I could seek a defendant's costs order for payment out of central funds.

MR JUSTICE JAY: I am not too keen on that.

MS THOMAS: If that is not possible, then, yes, I would seek them against the local authority. The matter has been somewhat complicated, I think, by the Planning Court being in existence and, as I understood it, you could take case stated from a Magistrates' Court in the Planning Court and that you were sitting as a division of the Planning Court that was the ----

MR JUSTICE JAY: I do not think so.

MS THOMAS: Those were the instructions I had at the time.

MR JUSTICE JAY: It is true it does say "The Planning Court" on the papers, but the Planning Court is really the Administrative Court. It is not really a separate entity, is it, for the purposes of the Act or the rules? I do not think I am a Divisional Court. It has come to the single judge rather than the Divisional Court, although it is a criminal causal matter. It happens to be a planning case, but it is really in the Administrative Court so s.28?

MS THOMAS: A is the ruling.

MR JUSTICE JAY: There is a wide power to order costs and there has been a contest. Does the power to order the costs cover the proceedings below?

MS THOMAS: Well, I think it would be a wide discretion to do that, because it says so.

MR JUSTICE JAY: But if you had one. What happened in relation to the costs? You lost, so did you have to pay them?

MS THOMAS: We had to pay in the Magistrates' Court as well as obviously the fine.

MR JUSTICE JAY: You were fined, were you?

MS THOMAS: We were fined and then, obviously, had some costs to pay. Those have been paid. I am making the assumption that you do not have to give me an order that the fine is repaid to the appellant.

MR JUSTICE JAY: No. That flows inevitably, but had you won in the magistrates, you would have asked for your costs and you would have got them, would you not?

MS THOMAS: Yes. I think I would have got them under a defendant's cost order then technically.

MR JUSTICE JAY: Why would you not have got them against the respondent?

MS THOMAS: I would assume that s.16 of the Prosecution of Offences Act.

MR JUSTICE JAY: Is that in the White Book?

MS THOMAS: I do not believe it is in the White Book.

MR JUSTICE JAY: I do not see why you would not have applied for your costs to be paid by the local authority, because it is the obverse that had this notice been correctly framed, as it were, well, you did not appeal. You would have lost. You would have pleaded guilty and you would have to pay some costs. Why would the council taxes payers have to bear the burden? The fact is you have won. You say your costs below are £10,500. And your costs here?

MS THOMAS: They are actually below. They were including VAT, £14,610.

MR JUSTICE JAY: I have got the wrong Bill then?

MS THOMAS: You have the High Court I think. If you look at it the front one says "In the Magistrates' Court" and the other one says "In the High Court". Our High Court costs are the £10,500 and then the Magistrates' Court were higher, £14,610.

MR JUSTICE JAY: Yes. The only point you were ever going to take in the Magistrates' Court was that this notice was a nullity. You were not going to argue the merits, as it were, and say it is not a breach of planning control or I should be given planning permission?

MS THOMAS: I could not plead those, but neither was I going to take one of the statutory defences the defendant could reasonably be expected to comply with.

MR JUSTICE JAY: They were points of law. It is rather lot of money just to argue.

MS THOMAS: I will tell you why. As you can see in the steps to the notice, there were several different elements expressed and some of those elements we said had permitted development rights. We did actually have to take advice from an architect as to what we could say about that, because it was relevant mitigation so the preparation for mitigation.

MR JUSTICE JAY: So how much did the mitigation cost you?

MS THOMAS: Expensive. In terms of conferences beforehand, I think we certainly had a conference just dealing with mitigation.

MR JUSTICE JAY: It does not seem to me that the respondent should pay that.

MS THOMAS: In terms of the costs incurred, I think I would have asked for that in the Magistrates' Court, because it was all part of the preparation for those proceedings. One had to be obviously prepared. It went forward as we did and had to change our plea to guilty.

MR JUSTICE JAY: What do you say, Mr Ham, about this?

MR HAM: My Lord, these are criminal proceedings that have come to this court. In my submission, the costs below would have been entirely governed by the Prosecution of Offences Act 1985 s.16. It is for defence costs, but equally it is for the defendant to pay costs on a successful prosecution emanating from the same Act from another section of the same Act.

MR JUSTICE JAY: Which section is that?

MR HAM: I have not got that. I do not have the whole Act with me.

MR JUSTICE JAY: There is power in the magistrates to order that the local planning authority pay costs.

MR HAM: There is power, but it is a wasted costs order as opposed to the normal costs order that follows the event. In criminal proceedings costs following the event are prosecution successful, defendant pays; defendant successful, central funds pay. That is the reference in ss.5 of s.16 to any proceedings in a criminal causal matter being determined before a Divisional Court of the Queen's Bench Division. On the research I conducted that applies to case stated appeals from magistrates criminal decisions. In my submission, the appropriate order is under s.16 and I had not anticipated arguing a different case.

There is provision for a local authority to pay wasted costs, but here one is dealing with a decision of a district judge. It is an appeal against a decision of the Court which arguably should have been decided differently in the Magistrates'. In my submission, it would be unfair effectively to make the local authority pay wasted costs in those circumstances where there is a statutory regime providing for payment of costs in such matters from central funds. I can provide the section to your Lordship. I have a hard copy.

MR JUSTICE JAY: But s.28A(3) does not refer to the 1985 Act. It just says make such other order in relation to the matter, including as to costs, as it thinks fit.

MR HAM: Yes. Then of course there are the Civil Procedure Rules, the section relating to case stated appeals and the practice direction.

MR JUSTICE JAY: Where is that?

MR HAM: Which I do not have, because I had not anticipated that this would crop up as an issue.

MR JUSTICE JAY: All right. Is it Part 44 case stated appeals?

MR HAM: Unfortunately, I cannot get onto the wi-fi here, because there is not a court user wi-fi.

MR JUSTICE JAY: I think there is. It is just that we are some distance from the server.

MR HAM: In my submission, where there is a statute which provides for the costs of this hearing having come to this court from the Magistrates' Court and that is the order that, had the appellant been successful below, would have been the order that would have been made, it would have been under s.16. Just as for the prosecution it was made under the same Act under s.18 of the same Act. In my submission, that is the appropriate or where the appeal is against the decision of a district judge sitting in criminal proceedings. I will pass up the section. It is s.16(5).

MR JUSTICE JAY: That makes clear that there is power to make a defendant's costs order.

MR HAM: Yes.

MR JUSTICE JAY: Although it is unclear there is not also power

MR HAM: There is a power under the same Act to make what is effectively a wasted costs order for costs incurred as a result of unnecessary or improper acts or omissions.

MR JUSTICE JAY: Which section is that?

MR HAM: That is s.19 and that is a wasted costs paragraph effectively.

MR JUSTICE JAY: That is probably not appropriate here.

MR HAM: In my submission, it is not and the ordinary procedure should be followed.

MR JUSTICE JAY: Do you have any comment on the amount of the costs?

MR HAM: The only no observations on counsel's fees are as far as the letters of £250 each. I am not overly familiar with civil rates of costs, but it seems that £250 per hour is quite a high rate, perhaps partner level rate. It is a higher rate than one would anticipate. I do not think the hours I can complain much about, the number of hours spent.

MR JUSTICE JAY: Are you now out of time to enforce against, Mr Ham?

MR HAM: In terms of issuing a fresh notice, I have not looked into it. There has been some discussion about that.

MR JUSTICE JAY: Is it a four-year period.

MR HAM: That is my understanding.

MR JUSTICE JAY: You are out of time.

MR HAM: Yes, ordinarily. I have not looked into it in detail. The mitigation, one thing I should say is that the parties on the day of the plea were ready to deal with sentence there and then and Ms Thomas had plenty of points to make on mitigation. I have to say the District Judge ordered a very detailed investigation, including the appellant providing documents, and so in fact the District Judge did generate perhaps more work than one might have expected. So I find it a little difficult to criticise the appellant now for having spent more time in relation to mitigation in the local courts. In respect of the appeals, I do not think I have any real criticisms of the hours and the figures.

MR JUSTICE JAY: Okay. Thank you.

Do you want to come back on anything, Ms Thomas? It seems that it is out of central funds. A defendant's cost order but I should just seize them the best I can.

MS THOMAS: Yes, I would agree with that.

MR JUSTICE JAY: I am going to do that now. In relation to the proceedings below, you seek £14,610 including VAT. I am going to reduce that to £11,500 including VAT. Here you can have £9,000 inclusive of VAT.

The order is that the appeal is allowed and the conviction is quashed. The conviction would include the costs order and the fine. The questions are answered both in the negative and the costs are as I have just stated them.

MS THOMAS: And they are out of?

MR JUSTICE JAY: Central funds under s.16(5) of the Prosecution of Offences Act 1985.

Will you draw up an order and agree it with Mr Ham please and send to it to my clerk so I can approve it.

MS THOMAS: I will, my Lord. Just one other point. Under s.16A of the Prosecution of Offences Act I think you are required to say that it is stated in terms that the defendant costs order includes an amount in respect of the legal costs. It is just technical.

MR JUSTICE JAY: That is what it is really, is it not?

MS THOMAS: It is, but unfortunately it says that specifically under subsection A that you must make a statement to that effect.

MR JUSTICE JAY: The order can so provide.

MS THOMAS: Thank you very much. I will draw up an order and agree and send it to your associate.

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Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 admin@opus2.digital __________ This transcript has been approved by the Judge.