Neutral Citation Number:  EWHC 2799 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Thursday, 5 December 2002
B E F O R E:
MR JUSTICE MAURICE KAY
- - - - - - -
SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS
LIVERPOOL CITY COUNCIL
- - - - - - -
Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR RICHARD HARWOOD (instructed by Richard Buxton, Cambridge, CB1 1JX) appeared on behalf of the CLAIMANT
MR PAUL BROWN (instructed by Treasury Solicitor) appeared on behalf of the FIRST DEFENDANT
- - - - - - -
J U D G M E N T
(As Approved by the Court)
- - - - - - -
Thursday, 5 December 2002
1. MR JUSTICE MAURICE KAY: This is an appeal under section 288 of the Town and Country Planning Act 1990. The claimant appeals against a decision of an Inspector which is contained in a decision letter dated 11 April 2002. The appeal site is in Gresham Street in Liverpool. The planning application was to construct a four-bedroom end-terraced house which would become No 1, Gresham Street. Gresham Street is a street off Edge Lane, which is the main road leading from the M62 motorway into Liverpool city centre. It seems that at one stage the appeal site was occupied by a number of garages, but these were cleared in 1995. Gresham Street is characterised by two-storey Victorian terraced dwellings of varying design. There is no dispute that the appeal site is suitable for housing development. Indeed, it seems that permission was given for the construction of an end-terraced house on the site in 1991, but that has lapsed.
2. The claimant and his wife own the site. He is by profession an architect. She made the planning application to Liverpool City Council on 20 March 2001, but it was refused on 27 July 2001. She appealed to the Inspector. In his decision letter the Inspector referred to the appropriate policy documents:
"The emerging City of Liverpool Unitary Development Plan includes policy GEN3 which aims to encourage high standards of design for all new developments in order to protect and enhance the built environment of the City. Policy HD18 sets out general design principles applied to new housing development. The aim of which is to secure a high standard of design by reference to factors such as scale, density and massing, incorporation of characteristics of local distinctiveness and respect for the building lines and layout of adjacent development."
3. There were two issues before the Inspector, the first of which was resolved in favour of the appellant and I need say no more about it. The second issue related to the design of the building and its visual relationship to the adjacent properties. The appeal set out the way in which the case was put on behalf of Mrs Gregory, but the Inspector rejected those arguments. Paragraph 12 of the decision letter reads as follows:
"12 I am not persuaded by these arguments. It appears to me that there is substance in the Council's objection to the design and relationship of the proposed dwelling to the established context provided by adjacent development. The front elevation, particularly, would relate poorly to the strongly expressed character of the terrace at Nos 3-11 Gresham Street. The centrally placed glazed porch at ground floor and single horizontal window at first floor level have no convincing relationship to the context. I accept that the design of the proposal should not necessarily seek to recreate a pastiche of earlier architectural forms/detailing. In this case, however, it appears to me that the proposal totally ignores any contextual relevance whatsoever. The overall effect, as contended by the Council, would be to appear as an incongruous element in the street scene, at variance with the fairly strongly expressed character of adjacent dwellings.
Later, in paragraph 14, he says:
"I am satisfied that it should be possible to achieve a building design capable of successful integration with the adjacent terraced dwellings and the street scene generally. This would, however, require reconsideration of parameters such as floor levels, fenestration pattern and solid/void proportions. Such reconsideration would be a matter for the appellant and the Council to progress in the first instance."
He therefore dismissed the appeal.
4. When Mr and Mrs Gregory read the decision letter, what struck them immediately was that in paragraph 1 of the decision letter the Inspector stated:
"The plans provided to me with the appeal contain no side or rear elevations."
In fact, the plans which had been provided did contain side and rear elevations. The plans provided are at pages 62 and 63 of the bundle. The Inspector limited his consideration of plans to that which appears at page 62. It contains a proposed front elevation and a location plan and some other proposed layout plans. The plans on page 63 include the proposed rear elevation and the proposed gable side elevation, together with the existing gable elevation to No.3 and a cross-section. It seems that the way in which the plans were submitted may have been that the sheet containing the side and rear elevations was photocopied onto the rear of the sheet containing the front elevation. Be that as it may, the Inspector committed the error of not seeing, and therefore not considering, the rear and side elevations. That error is admitted.
5. At one point it seemed that Mr Harwood, on behalf of the appellant, was seeking to rely on the fact that a civil servant who admitted to the error on behalf of the planning Inspector had indicated that she did not know whether that had made any difference. However, she worked in the Quality and Assurance Unit of the Planning Inspectorate and was not in a position to express a definitive opinion on such a matter in any event. As things developed, Mr Harwood did not press that point.
6. The case which he presents is really this: an error was made in that the Inspector failed to have regard to something to which he ought to have regard. On behalf of the Secretary of State that is conceded. The issue in the case is whether that failure has vitiated his decision. The failure to have regard to parts of the plans was, in my judgment, a failure to take into account that which the Inspector was obliged by law to take into account. It is axiomatic that someone considering a planning application on appeal must consider the plans which are submitted in support of that application or appeal; although that is not expressly spelt out in the Town and Country Planning Act 1990, it is implicit in it. That puts this failure to have regard to a particular consideration into the first category referred to in paragraph 4 of the propositions summarised by Glidewell LJ in Bolton MBC v Secretary of State for the Environment  61 P&CR 343.
7. I take the approach required of this court to be that referred to by Sullivan J in Nottinghamshire County Council v Secretary of State for the Environment, Transport and the Regions  PLCR 340, where he held that, where the matter was one that the decision maker was required by statute to take into account, the test to be applied by the judge in deciding whether to quash the decision was that set out by Purchas LJ in Simplex GE (Holdings) Ltd v Secretary of State for the Environment  3 PLR 25 at 42. That test was expressed by Purchas LJ in these words:
"It is not necessary for [the applicant] to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision."
Mr Brown agrees that that is the appropriate test to apply in this case.
8. Accordingly, the question for me becomes: would the Inspector necessarily have reached the same decision in this case if he had considered the plans in full? In my judgment the answer to that question is in the affirmative: he would necessarily have reached the same decision. I say that for a number of reasons. First, his decision focused on the front elevation, and in paragraph 12, which I set out above, he expressed his views about the front elevation in strong terms. Secondly, I do not accept that the Inspector did not realise, or may not have realised, that the porch on the front elevation was designed to stand out from the front wall, or that there was a low wall at the front of the site at street level; those matters are obvious from what the Inspector did see on the front elevation and the proposed layout plans that are on the same page.
9. The only conceivable point left, in that regard, is in relation to the angle of the roof of the porch. It is not obvious from the front elevation that it was to be angled, as is apparent from the side elevation, as opposed to flat; however, in the context of the totality of views as to the front elevation as expressed by the Inspector, that seems to me to be a matter of insignificance. There is nothing in paragraph 12 to suggest that the views there expressed were conditioned by a false assumption that the porch was to have a flat roof. If that had been a matter of serious concern to the Inspector, then surely he would have suggested dealing with it by way of condition. In the event, it did not figure.
10. Thirdly, I am satisfied that the absence from the Inspector's consideration of the side elevation did not have the potential materiality for which Mr Harwood contends. He made initially attractive submissions based on Mr Gregory's witness statement about the site elevation and its visual impact, particularly in relation to those passing up and down Edge Lane. However, I am now satisfied that: (1) put at its highest, that submission would not have assuaged the Inspector's views about the front elevation, which necessarily would have remained the same; and (2) the initial attractiveness of the submission has been eroded now that Mr Brown has drawn my attention to the single storey commercial buildings which lie between the appeal site and Edge Lane.
11. Drawing this part of the case together, I am in no doubt that the Inspector would necessarily have reached the same conclusion, if he had considered the plans which he ought to have considered, because there is nothing in or upon them which would conceivably have deflected him from the strong views he expressed in paragraph 12 of the decision letter.
12. Mr Harwood also seeks to put the case on an alternative basis, which he expresses in terms of unfairness. However, as Mr Brown points out, this is not a case of unfairness in the sense of the claimant not having been given an opportunity to present appropriate material or anything of that kind. The unfairness is exactly the same as the first way of formulating the case, namely: the failure to have regard to something which ought properly to have been considered. In these circumstances, I take the view that this reformulation adds nothing to the claimant's case, and that it does nothing, of course, to shift my assessment that the Inspector would necessarily have reached the same decision in any event.
13. Mr Harwood makes one final submission which is this: he suggests that the Inspector, having erroneously presumed that there were no side or rear elevations submitted with the elevation, may have rather taken against the application and those who made it, and that may have coloured his approach to the appeal that was before him. Although he made a mistake, I can see no basis whatsoever for suggesting that it caused him to view the materials which he did consider with anything other than propriety and objectivity, apart, of course, from their being afflicted by his failure to see what he ought to have seen. In all those circumstances, this appeal will fail.
14. MR BROWN: My Lord, I am very grateful for that. In those circumstances, I would ask for an order that the claimant pay the first defendant's costs. Does your Lordship have a cost schedule?
15. MR JUSTICE MAURICE KAY: I think I do, yes.
16. MR BROWN: It has been, as I understand it, exchanged in accordance with the rules, and I would invite your Lordship summarily to assess our costs in the sum, as your Lordship will see at the back of the schedule, of £4,140.
17. MR JUSTICE MAURICE KAY: Anything to say about that?
18. MR HARWOOD: My Lord, there are two more points to make on principle in respect of costs; and then, my Lord, there are points of detail. As to the first point of principle, can I pass up the decision of the Court of Appeal on costs in the case of Berkeley v Secretary of State for the Environment and Fulham Football Club . My Lord, the first point of principle I make is that the Secretary of State should not make full recovery of costs.
19. MR JUSTICE MAURICE KAY: Because we are here as a result of his mistake.
20. MR HARWOOD: Absolutely, my Lord. The passage in Berkeley is towards the bottom of page 3 -- the final full paragraph. My Lord, Berkeley , as your Lordship may be aware, was an environmental impact assessment case. The Court of Appeal held that the Secretary of State had made an error in not screening before applying for assessment, but held that, as a matter of discretion, it made no difference to the determination. The House of Lords overturned that, but what they said on costs was that they had -- they held that the Secretary of State was in breach of his obligation:
" ... it is a matter of which it is proper the court should take account in considering an award of costs. It is appropriate for the court, which has its own interest in preserving the high standards of civil administration which we expect in this country, to mark its disapproval of that breach by depriving the Secretary of State of a proportion of his costs ... "
They made an order, in that case, for two-thirds of the Secretary of State's costs to be paid. My Lord, this is a very similar situation here: your Lordship has found that an error has taken place and that is the reason why this matter is before the court, and the court should mark its concern appropriately.
21. The second matter, my Lord, I make, as going towards principle, is that Mr Gregory had been told by the Planning Inspectorate that an error had been made but the only remedy was that of applying to the High Court. If your Lordship could please take up a bundle of evidence. My Lord, page 14 is a pre-action letter from Richard Buxton to the Treasury Solicitor, before proceedings were commenced, asking whether the Secretary of State was going to submit to judgment. The first substantive statement of the Secretary of State's position -- that the Secretary of State was contesting these proceedings -- came in a telephone conversation, which was referred to in a letter on page 21, which is a letter on 1 August from the Treasury Solicitor.
22. Now, my Lord, this is not, I appreciate, a case where -- firstly, it is not a judicial review pre-action protocol case. It is not a case where it is fair to say that the Secretary of State can re-determine the matter, but it is a case, as in many of these 288 cases, where it would have been helpful if the Secretary of State had expressed a position and, ultimately, the reasons for taking that position; so that the decision on proceedings could be taken with an informed opinion as to whether or not they were likely to be contested. Clearly, my Lord, that is important in cases such as the present where there has been an error. Different views can be taken over the effect of that error on a site which is relatively small in financial terms, and the Secretary of State has certainly, in other circumstances, indicated positions where he or she has been able to re-determine it, before proceedings have been commenced. All I will simply say on that is it would also be of considerable assistance for Mr Gregory to have known whether or not proceedings were likely to be protested. My Lord, those are the two points I make --
23. MR JUSTICE MAURICE KAY: Anyway, once he discovered that, not only were they going to be contested, but a full order for costs was going on be sought if the Secretary of State was successful (see page 23), he decided to carry on.
24. MR HARWOOD: My Lord, that point is -- you are in for a penny, in for a pound, or, more particularly, in for a fair number of pounds and potentially for a few more. By that stage, my Lord, the costs of commencing proceedings had been incurred and the Treasury Solicitor was insisting that, were proceedings to be withdrawn, their costs would have to be paid.
25. MR JUSTICE MAURICE KAY: It is the other way around. You have asked whether, if the application was withdrawn, they would do it on a no order as to costs basis, and at page 23 they said "not likely", really.
26. MR HARWOOD: My Lord, by that point costs have been incurred on both sides and then it becomes a question for a client whether or not to proceed, given the costs that will be incurred and the costs that would follow on withdrawing.
27. My Lord, the point I make simply, in respect of this correspondence, is that attempts were made at the earliest stages on the part of the claimants to ascertain the Secretary of State's position, and that was not forthcoming until much later. In terms of the overriding objective of avoiding unnecessary litigation and, necessarily, costs in litigation, it would have been of considerable assistance were that view to have been taken before he had incurred more than a very small amount of money, whether or not he was going to bring proceedings which were not likely not to be contested, my Lord -- would get fought to (inaudible) in the way in which they have been.
28. My Lord, in those two circumstances -- the legal error and the absence of an earlier indication of the Secretary of State's position -- I do ask your Lordship to consider, firstly, whether costs should be awarded to the Secretary of State and, if so, in what proportion those costs should be awarded. My Lord, I suggest it is fair in this case that both parties bear their own costs. If it is a case of a reduction in the Secretary of State's costs, that ought, my Lord, to be a substantial reduction.
29. MR JUSTICE MAURICE KAY: You are not making any point about the actual items and their quantifications; it is the principle of the thing?
30. MR HARWOOD: My Lord, I have a number of points on the detail; does your Lordship want to take the points on detail at this stage?
31. MR JUSTICE MAURICE KAY: Yes, please.
32. MR HARWOOD: My Lord, turning to the detail, what is significant is the hours taken by the Treasury Solicitor on this matter. The total hours spent are 32 hours on the case; the total hours by the claimant's solicitors are 23. My Lord, obviously the burden of putting together the evidence is one that falls far more heavily on a claimant's solicitors than on a defendant's solicitors in these cases. What is perhaps most noticeable is under "Work done on documents", the total hours of the Treasury are 16.8 hours; the total hours on documents by the claimant's solicitors -- it is in the schedule. I am not sure if your Lordship has our schedule of costs?
33. MR JUSTICE MAURICE KAY: I do not think I have. Well, I may have seen it at some stage.
34. MR HARWOOD: I will simply give your Lordship the figure: it is 5.7 hours on documents, which includes putting together the bundle which is before the court. My Lord, we have been given, outside court, the explanation that the 16 hours reflects, in large part, advice given to the Secretary of State by the Treasury Solicitor, but your Lordship will note, in respect of the advice, that advice was also given by counsel on the Treasury (inaudible) Panel, Miss Davies, and she, from her fee, would have spent four hours giving advice. Now, the period of time spent by the Treasury Solicitor on this matter does seem to be excessive in that amount.
35. In terms of "Attendances on opponents", can I just pick up the one long letter in the correspondence, which is a letter of 30 August at page 32. This is correspondence between the Treasury Solicitor and the claimant's solicitors over -- the withdrawing of Liverpool City Council has been missed out by the claimant's solicitors, in error, from the original proceedings. The Treasury wrote a two-page letter, all predicated on the basis that the claimant's solicitors were saying that the Treasury should pick up the cost of joining Liverpool City Council to the proceedings; that was a misreading which seemed to occupy the Treasury Solicitor at some length -- and then a sort of misreading also of suggesting some formality in the quashing of the decision. That was not how it has ever been put. That was answered by Richard Buxton at page 34. My Lord, that does seem to have taken up time which was, in these circumstances, not reasonably incurred.
36. My Lord, can I suggest that the total reduction should be of £1,300, primarily reflecting a reduction in the work done on the documents, and then the other smaller matters. That would also roughly reflect -- hours spent being reasonably equivalent to those spent by the claimant's solicitors on this matter. My Lord, we would suggest that a higher level of costs could not have been incurred.
37. MR JUSTICE MAURICE KAY: Thank you very much. Mr Brown, do you want to say anything about that?
38. MR BROWN: My Lord, can I deal with matters of principle to start with. My Lord, it is true in this case that the Inspector made a mistake; we held our hands up to that at a very early stage in these proceedings. I will leave it to your Lordship to decide whether there should be any sort of punitive element in the costs order -- that we should be ticked off or rapped over the knuckles for that.
39. What I do say in response to it is, though, our having held our hands up very early in the day, the claimant then had a choice about the way forward. The letter in which we admitted to the mistake made it quite clear that we could take no view on what this court would do. In my submission, it was a matter for the claimant and his legal advisers to take a view of their prospects of success. Indeed, they did that, and we have got to where we are today.
40. I do make the point, my Lord, in response to the second of my learned friend's points of principle -- he started by drawing your Lordship's attention to the fact that Mr Gregory had been told that, although an error had been made, the only remedy was to apply to the High Court; my Lord that advice was entirely correct.
41. MR JUSTICE MAURICE KAY: I do not think anything of this point.
42. MR BROWN: My Lord, proceedings in this case were begun on 17 May, and I make that point because my learned friend says that, if we had indicated at an earlier stage what our position would be, then those costs might have been saved; but my Lord they were begun early on and --
43. MR JUSTICE MAURICE KAY: I do not think there is anything in this. You do not need to worry about it. It seems to me that the Berkeley point is of some significance, and it seems to me that you may wish to say something about the details, but I am not concerned about the history.
44. MR BROWN: The point I would have made about Berkeley is that there is, in my submission, a difference between the sorts of omissions in that case, which turn on an environmental impact assessment, which, in turn, founds itself in European law -- my Lord, I appreciate that that is an area that the House of Lords reached rather stronger (inaudible) than the Court of Appeal did. Looking at the Court of Appeal's decision on costs -- there is a distinction, I think the House of Lords now recognise, as between breach of Community Law, where it is very difficult for the court to have any discretion as to what to do, and breach of other more domestic requirements where there is the rule that your Lordship is applying. Indeed, that is not the approach that the Court of Appeal took in that case.
45. As I say, your Lordship will have a view about whether you feel that there needs to be some reduction in relation to the fact that we have made a mistake, but in response to it, I do say: we made our position, in relation to the mistake, clear from an early stage. Although it is true that we did not indicate one way or another whether we were going to fight this until August, similarly, we made no concession to the other side, and the correspondence makes it clear that we were not going to. The claimants in this case had had it made clear to them from August that we were not prepared to concede and they have had the skeleton argument in this case since 11 September. So -- at least I believe -- it is certainly dated 11 September; I do not know whether they were exchanged in time for the last hearing or not.
46. MR HARWOOD: Yes, my Lord. It was received around 11 September.
47. MR BROWN: So, they have had some months in which to consider whether or not to go ahead with what would be the main costs of these proceedings. Obviously, there are costs incurred in terms of starting the case going, but those had to be incurred by them in any case once they had decided... But, when one comes to the costs of these proceedings, they have had ample time to consider their opposition, in the light of the arguments set out in that skeleton, and decide whether or not to go on. In those circumstances, my submission would be that there should be no reduction. Certainly, if there is to be any, it should be no higher than it is in the Berkeley case. My learned friend suggests that we should not have any of our costs at all, and, my Lord, I do not accept that for one moment.
48. My Lord, as far as the detail is concerned, it is important, in my submission, to look at these things in overall perspective as well as in the detail. Criticism has been made of individual amounts, but your Lordship will no doubt have noted that, even allowing for what my learned friend describes as the "excesses" in our bill, we still come in significantly under the costs which the claimants have incurred. Their claim, I think, is of the order of £7,400. So, in overall terms, my Lord, there is nothing disproportionate about our costs.
49. I note the criticism that is made of the time for "Work done on documents", but your Lordship will note that the criticism relates, particularly, to the 12 hours at £67.50 per hour, which is for a lower grade civil servant who may have to be expected to take a little longer to do it. I would also draw your Lordship's attention to the fact that part of that time would have been spent in relation to the witness statement of Mr Musgrave, which responds to Mr Gregory's indication that we had, at some stage, conceded that the decision would be quashed rather than could or might be quashed, and there is time taken up in that regard.
50. My Lord, as far as the letter is concerned, if there has been a misreading or a misunderstanding, there has -- it is a matter for your Lordship, but, in my submission, that is a matter of £100 here and £100 there. If your Lordship wanted to make some discount for that, that is within your discretion. But, in terms, my Lord, it is my submission that the overall application that I make -- the overall amount which is made -- is not at all disproportionate. Your Lordship will well know that Treasury rates are not high when compared with the open market. One only has to look at the rates -- and I am not criticising at all -- on my learned friend's schedule for costs. So, in broad terms, I would stand by my original application.
51. MR JUSTICE MAURICE KAY: Thank you very much.
52. MR BROWN: I do apologise. My instructing solicitor reminds me, my Lord, that if there are any hours over in relation to the costs on the schedule, for no one's fault -- no criticism of anybody -- the hours taken in court today have actually rather exceeded what is allowed for on the schedule. I am not applying for any extra in that respect, and it may be that there is an element of give and take.
53. MR JUSTICE MAURICE KAY: Well, what I shall do is assess the costs summarily. The figure of £4,140.25 in the schedule I shall reduce to £3,500. I make it clear that I am not, in doing that, effecting any reduction in counsel's fees -- either Mr Brown's or Miss Davies'. What I shall do thereafter is apply the Berkeley principle, although not precisely the Berkeley proportion. The net effect of that is that I shall order the claimant to pay the Secretary of State's costs in the sum of £2,500.
54. MR BROWN: My Lord, I am grateful.
55. MR JUSTICE MAURICE KAY: Thank you both very much.