R (oao Havard v. South Kesteven DC

Transcript date:

Friday, September 9, 2005

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Leveson J

CO/2186/2005

Neutral Citation Number: [2005] EWHC 2060 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

 

Friday, 9th September 2005

B E F O R E:

 

MR JUSTICE LEVESON

 

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THE QUEEN ON THE APPLICATION OF HAVARD

(CLAIMANT)

-v-

 

SOUTH KESTEVEN DISTRICT COUNCIL

(DEFENDANT)

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Computer-Aided Transcript of the Stenograph Notes of

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MR G JONES (instructed by Richard Buxton) appeared on behalf of the CLAIMANT

MR R KIMBLIN (instructed by Sharpe Pritchard) appeared on behalf of the DEFENDANT

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J U D G M E N T

(As Approved by the Court)

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Crown copyright©

 

1. MR JUSTICE LEVESON: The claimant lives in a flat backing onto a proposed development site and seeks to bring proceedings for judicial review of the grant of planning permission for the erection of three flats and a two-storey dwelling on that site. He objected to the development on the ground that it would cause a loss of privacy and create a boxed in feeling. Of course, whether the development can be attacked on legal grounds requires more than the claimant's understandable personal objection. He must identify arguable errors of law before being able to challenge it. In these proceedings a number of errors of law were put forward. Permission was refused by Sir Michael Harrison and, following that refusal, one of the grounds has been abandoned but another additional ground, revealed in documents now placed before me, has been added.

 

2. In order to understand the challenge it is necessary to record something of the history. A previous application for planning permission was refused in May 2004. That refusal was by officers under delegated powers. This application was placed before the Development Control Committee which consists of some 17 councillors. The councillors had the benefit of the assistance of their officers and for the first meeting of the relevant committee there was a report which said of the previous application that it was for a similar development to that proposed but that it incorporated certain features that were considered inappropriate to the sensitive location, and they were accordingly refused. The report goes on:

 

"The current proposal together with additional ones agreed with the developers address most of the design concerns."

 

The point is made that there is no evidence of any additional proposals agreed with the developers subsequent to the submission of the current proposals. Neither is it clear from this document precisely which design concerns were addressed and which were not.

 

3. The report then goes on to recommend approval in these terms:

 

"It is considered, having regard to the relevant provisions of the development plan, that the proposed development will result in the enhancement of the character and appearance of the area, will not adversely affect the setting of the listed building and will not have a materially adverse impact on the amenities of the neighbouring occupiers."

 

That last is particularly important given the claimant's objection, although it is to be noted that there was no other objection.

 

4. The Committee originally considered the matter and deferred it in order to inspect the site. It came back before them on 16th November 2004, at which time there was clearly a spirited discussion. The upshot, as was made clear in the minutes, was that the decision was deferred further. The decision is recorded in these terms:

 

"Noting of report of site inspection, comments from the highway authority and community archaeologist, no objection from Stamford Town Council and an objection from a neighbouring resident, for the submission of amended plans, showing the main building to be lowered to two-storey approximately half a metre above the smaller building, access for all at the southern end of the site and the elimination of the balcony at the rear together with obscure glazing to the rear windows facing the flats to the west."

 

5. That request for amended plans was passed to the developer whereupon it is abundantly clear that there was correspondence and some discussion, the result of which was that the applicants requested that the application be determined in its current form as was made clear was a stance they were entitled to take. That request was reported to the Committee in the officer's report for the meeting on 11th January as a paragraph added on to the previous report, in these terms:

 

"They [that is the applicants] considered the amendments requested by the Committee would be detrimental to the appearance of the scheme. They also wish members' attention to be drawn to the fact that Stamford Town Council and Stamford Civic Society consider the schemes currently proposed acceptable."

 

I ought to add that in addition to correspondence an artist's impression of the proposed development was also submitted.

 

6. On this occasion, that is when the Committee met again on 11th January, permission was granted. The summary of reasons for approval were:

 

"The proposal involved the redevelopment of a site positioned in the Stamford conservation area and adjoining a listed building. It is considered, having regard to the relevant provisions of the development plan, the proposed development would result in enhancement of the character, appearance of the area, will not adversely effect the status of the listed building and will not have a materially adverse impact on the amenities of neighbouring occupiers."

 

It is perhaps not without significance that these words follow very closely, if not identically, the summary proposed by the officers in their original recommendation.

 

7. In this court now Mr Jones takes two points. First, he argues that the members of the November 2004 meeting had regarded the proposal to be unacceptable unless a series of amendments were made. Having done so, they were required to give reasons, he submits, for their change of mind when it came to the January decision. This ground was advanced and considered by the single judge. It was rejected by Sir Michael, an extremely experienced planning judge, in these terms:

 

"Whilst I can consider that you may feel aggrieved, the defendant's decision was not irrational. The decision on 26th October 2005 to defer to a site inspection was in no way indicative of what the ultimate decision would be. The decision on 16th November 2005 to defer to the submission of amended plans for a lower building was not a decision that planning permission be refused if such amended plans were not submitted. Ultimately, it was for the defendant to decide, following the interested party's decision not to submit further plans, whether its concerns would sufficiently warrant refusal of planning permission. Plainly, it decided, in the light of the further information supplied by the interested party, that those concerns were not sufficient to refuse planning permission. I see nothing wrong at all with that. The summary of reasons for the grant of planning permission complied with the statutory requirements."

 

8. I entirely agree with that analysis. In my judgment, to characterise the invitation following the November meeting as a determination or decision that unless there was a change the plans would be refused, such as to give reasons for the change of mind when granting planning permission without a real change, is to put far too high a gloss upon what transpired. Neither do I consider it necessary for the officers to have concluded within their report the additional words, such as Mr Jones submits would have been sufficient, that "In the light of these plans and notwithstanding the concerns expressed at the previous meeting, we do not alter our opinion". By placing their recommendation in the way in which they did place it before the committee that was, in my judgment, clearly implicit. In my view, the first ground is not arguable.

 

9. The second ground, new in these renewed proceedings, concerns the way in which the planning history was reported. Mr Jones submits that there is clear authority for the proposition that the Planning Committee must have regard to earlier decisions in relation to the same site and demonstrate that they are paying attention to consistency and all relevant matters. He refers to the decision in R (on the application of) Rank v East Cambridge District Council [2003] JPL 454 in which Mr George Bartlett QC sitting as a Deputy Judge observed:

 

"In my judgment this conclusion [ie, a conclusion of an Inspector on appeal in relation to the relevant site] was of such obvious relevance to the determination that the Council had to make on the 2002 application that their failure to have regard to it was an error of law that vitiates their decision. The same goes for the Council's own refusal in 1988. It should have been taken into account, although the force of the Inspector's conclusion, given that it was a reasoned statement by the appellate authority is clearly greater."

 

10. Mr Kimblin on behalf of the local authority makes it clear that in the Rank decision there was a mere reference to the existence of the previous decision, whereas in this case the officer's report identifies the issues that had been of concern to the officer. He argues that the claimant essentially seeks for the decision to deal with each area of concern and that is neither required in the system as it works or by a requirement to provide a summary of reasons.

 

11. I have absolutely no hesitation in accepting that the Committee did have to have regard to the planning history and were required to take into account the earlier refusal. However, that earlier refusal is itself identified in the report and it is abundantly clear from the way in which it is expressed by the officer who prepared the report that at least most of the design concerns had been considered, such that they were then in a position to recommend approval. To such extent as the Committee required to be alerted to the planning history, they were alerted to it. The reasons given for the approval are those set out both in the remainder of the report and as provided. In my judgment, provided the Council have made it clear that there was a previous refused application and that the officers were in a position to answer such questions as might be addressed to them in relation to the earlier history, they have had proper regard to it. In my judgment, this point also does not erect an arguable case for judicial review.

 

12. In those circumstances, this renewed application is refused.

 

 

NOTE: This decision on permission was reversed by order of the Court of Appeal (Mummery LJ) dated 28th October 2005 with permission granted and the matter ordered to proceed back in the High Court (Administrative Court.

 

 

13. MR KIMBLIN: May I address my Lord on the question of costs?

 

14. MR JUSTICE LEVESON: Yes.

 

15. MR KIMBLIN: Would my Lord be in a position to provide a summary assessment of costs at this stage? A statement of costs has been served upon the claimant. I do not know if it has made its way to the court.

 

16. MR JUSTICE LEVESON: Yes, I have seen that. There is also the question of costs of the interested party.

 

17. MR KIMBLIN: My Lord, there is. That is why I deal with that with some hesitation.

 

18. MR JUSTICE LEVESON: The interested party did not need to get involved, did they?

 

19. MR KIMBLIN: My Lord, I must say that that is a matter for them. I do not wish to seek to hold any brief for them. If they wanted to come along here they could.

 

20. MR JUSTICE LEVESON: Yes.

 

21. MR KIMBLIN: My Lord, to assist the court, any interested party becoming involved in circumstances where it wishes to protect its position. For example, suppose the Council consented to judgment, it may be that in those circumstances the interested party would then wish to take up the principle. To that extent one can understand why the interested party is joined. But clearly that is a matter for them to argue.

 

22. MR JUSTICE LEVESON: Yes.

 

23. MR KIMBLIN: My Lord, the statement of costs is set out. It is in sum of £5,522. Could I make some observations on that. I have not had an opportunity to discuss this with my learned friend but, to get his points in first, it struck me as odd that a trainee solicitor and counsel spent 12 hours on this, having regard to the paper that I have seen. So if he has any observations on that --

 

24. MR JUSTICE LEVESON: What sum do you think is reasonable for me to assess them as?

 

25. MR KIMBLIN: In total? My Lord, in the original grounds of opposition there was a sum which was sought as a result of the work on paper. My Lord, that came to £1,960.

 

26. MR JUSTICE LEVESON: Yes.

 

27. MR KIMBLIN: That is what the position was on paper. My Lord, the question then arises as to how much in excess of that I can properly argue to recover. The Council took the view that it was necessary to amend the grounds of opposition because the first ground was put in a different way. The second ground was entirely new. For that reason I seek the fee for the grounds of contesting the claim. That is £750 on the schedule, but that includes both that work and three telephone conferences.

 

28. MR JUSTICE LEVESON: There has been another barrister involved as well so there is double counting there.

 

29. MR KIMBLIN: There has. My Lord, there is no double counting.

 

30. MR JUSTICE LEVESON: No, but the two barristers have to read into it.

 

31. MR KIMBLIN: My Lord, the advice is in respect of advice for the letter which was sent in May.

 

32. MR JUSTICE LEVESON: Before you justify it, do I gather your £2,000 is in addition to your £5,500?

 

33. MR KIMBLIN: My Lord, no.

 

34. MR JUSTICE LEVESON: So of the £5,500, what is it you claim? Come to a figure, Mr Kimblin.

 

35. MR KIMBLIN: Without the costs I have already conceded, I would seek £5,000.

 

36. MR JUSTICE LEVESON: Now, Mr Jones, first of all, principle.

 

37. MR JONES: My Lord, I take point of principle in respect of costs if they are being claimed of the oral attendance today as opposed to the costs in settling the summary grounds and response to summary grounds.

 

38. MR JUSTICE LEVESON: I am not so sure about that because you have changed your tack. Changing your tack requires them to address all that, does it not?

 

39. MR JONES: My Lord, yes. I am dividing up, first of all, the principle of the costs claimed for their response to our first ground and the response to the revised ground, the change of tack. That is on one side. I will come to the details of that. I am not questioning the principle on that. The change of tack, so far as that is dealt with, it has been dealt by my learned friend in the ordinary way by updating his summary grounds of resistance.

 

40. MR JUSTICE LEVESON: I see. £750 fee for grounds of contesting the claim, and indeed for hearing. Is that it? So you object to the £800 for Mr Kimblin's attendance today?

 

41. MR JONES: That does not flow out of any change of tack because change of tack was dealt with --

 

42. MR JUSTICE LEVESON: I have it, yes.

 

43. MR JONES: Therefore we are just into Mount Cook Court of Appeal authority at the back of my bundle, which your Lordship is probably aware of. The Court of Appeal made clear that whilst the general proposition is, as a matter of principle, my learned friend's costs for filing summary grounds of resistance, and in this case amended grounds, are recoverable in principle, the opposite applies in so far as coming along.

 

44. MR JUSTICE LEVESON: It is always very difficult to have to do this. I am delighted that when I was at the Bar I never had to. You want to argue £1,000 less. £800 for Mr Kimblin and for attendance today.

 

45. MR JONES: That goes because there is no exceptional case. If Mr Kimblin wants to put it forward it has come outside Mount Cook . Then can I turn to the question of detailed costs. I have some short submissions, if I may, in respect of those.

 

46. MR JUSTICE LEVESON: By all means, but first of all tell me how much you concede is appropriate.

 

47. MR JONES: Can I say what I think is not appropriate. I am sorry, my Lord. Ultimately, it is a matter for your Lordship how much. My Lord, the additional cost, there is no justification, in my submission, of the costs of the Queen's Counsel in addition to my learned friend. This was a case that could and should have been dealt with by one counsel, and my learned friend is appropriate.

 

48. MR JUSTICE LEVESON: I did not appreciate Mr Dove was Queen's Counsel.

 

49. MR JONES: It is no doubt flattering to my solicitors, but not so flattering to my clerk.

 

50. MR JUSTICE LEVESON: The local authority clearly felt that your solicitor was on the job and they had to take it very seriously.

 

51. MR JONES: As to Queen's Counsel, there is no explanation. As your Lordship says, there is inevitably extra costs incurred.

 

52. MR JUSTICE LEVESON: Yes.

 

53. MR JONES: We would take issue as to the need for the local authority to instruct London agents, not to attend court but to handle the case. There seems to have been a total of six solicitors involved in this case by the local authority when one totals them up. Every time they do papers they get £250 odd an hour. We accept that the local authority could instruct London agents in order to come to this court, but to have six solicitors, quite apart from two counsel dealing with this, involves duplication. We do not know exactly what they were doing but it seems to us excessive. That should be cut down.

 

54. In so far as the amendments, yes, there was a change of tack. If one looks at my learned friend's summary grounds there are some amendments to it. Obviously I accept that the additional costs incurred in dealing with ground 2, but if one looks on ground 1 there does not really seem to be very much different in the way my learned friend has responded to it.

 

55. MR JUSTICE LEVESON: Right.

 

56. MR JONES: I think, subject to instructions --

 

57. MR JUSTICE LEVESON: So you are knocking off £600 for Mr Dove, £800 for Mr Kimblin, and some unknown sum in relation to solicitors but rather more than the £500 Mr Kimblin concedes?

 

58. MR JONES: Yes. My difficulty is that it is all under the heading "Other Work". It is not specified when one looks at the schedule. I say that unless there is some particular justification given for it, the other work should not be recoverable.

 

59. MR JUSTICE LEVESON: There is a fair amount of reading to be done, is there not?

 

60. MR JONES: My Lord, yes, but you have reading by one or two solicitors at the most which is reasonably recoverable, not six people reading it.

 

61. MR JUSTICE LEVESON: I understand the six people. But the other work, that is obviously the reading, that is 24 hours. I can see why you might feel upset.

 

62. MR JONES: It is quite a lot, particularly being dealt with by counsel. Although we have two bundles, they are pretty modest and the issues are pretty narrow.

 

63. MR JUSTICE LEVESON: Alright. Now, what about the costs of the interested party?

 

64. MR JONES: The costs of the interested party, my Lord, they are not entitled to recover those costs.

 

65. MR JUSTICE LEVESON: What about for the acknowledgment of service?

 

66. MR JONES: Not for the acknowledgment of service. I can hand your Lordship up a transcript from the Court of Appeal in the Barclay case. I do so for two reasons. One, because you have conveniently at the headnote a very short report on the case of Bolton which deals with the House of Lords. It is on page 4 of the transcript I am handing up. (Handed ). The House of Lords gave guidance as to planning cases where the statutory appeal for judicial review, whether the interested party should get their costs. Prior to Bolton what was said was that it was all very well for the local authority being the defendant as they have a public interest in defending their decision, but the people who really suffer are us because we have a valuable planning permission. That practice was rejected by the House of Lords in Bolton and the headnote is set out at page 4.

 

67. MR JUSTICE LEVESON: Hang on. Page 4 of this note?

 

68. MR JONES: Of the transcript. It is the transcript of the Court of Appeal decision in Barclay. It sets out the headnote in Bolton.

 

69. MR JUSTICE LEVESON: One second. He does say a second set of costs is more likely to be awarded at first instance.

 

70. MR JONES: That is right, but the principle is that they ordinarily, even at first instance, should not get their costs. The mere fact that you have an interest in it does not bring you out of the general proposition. The case of Barclay itself was a case where the court at first instance ordered costs and there the Court of Appeal accepted that they did bring different arguments to the Secretary of State but even then did not get their costs.

 

71. When my Lord comes back to the principle on the acknowledgment of service, the reason why ordinarily in principle the first defendant gets its costs of the acknowledgment of service is that it participates as the main player in the game. As part of that participation it now has to file an acknowledgment of service. The interested party, as a matter of principle, is not entitled to its costs. If it wishes to come along and participate, whether orally or putting in an acknowledgment of service, that is up to it, but it is still governed by the Bolton principles in respect of the acknowledgment of service in the same way as the other documents. So it has to show something out of the ordinary.

 

72. MR JUSTICE LEVESON: Thank you. Do you want to say anything else about your costs?

 

73. MR KIMBLIN: In respect of the advice from Queen's Counsel, that was a discrete matter. There was no duplication in respect of what I would call Round 2. We dealt with the matter on paper --

 

74. MR JUSTICE LEVESON: Whether it was justified for the local authority --

 

75. MR KIMBLIN: My Lord, maybe it was terror.

 

76. MR JUSTICE LEVESON: -- having to deal with the submissions of Mr Buxton to go as far as leading counsel is perhaps a different question.

 

77. MR KIMBLIN: My Lord, clearly that goes to the amount. Then in respect of attendance here today, my Lord will have seen that the case continued to develop from May to August up until, effectively, yesterday. In my submission, it was entirely appropriate for the local authority to have been here. If the decision had been otherwise, there would have been a number of matters which would have been applied for, and on which we would have had a considerable amount to say, in respect of other decisions which are not challenged. While it has not in fact been necessary because of the outcome of this case, it would have been just to deal with Mr Buxton's letter of 7th September.

 

78. MR JONES: My Lord, I think it is right my learned friend would want you to know also that at this stage that before Mr Buxton's letter of 7th September, the Council said from day one they would be attending. This date was arranged for the mutual convenience of myself and Mr Kimblin. Your Lordship should not have the impression that my learned friend's presence has been --

 

79. MR JUSTICE LEVESON: He has just come because of this letter.

 

80. MR KIMBLIN: If I gave that impression, I apologise.

 

81. MR JUSTICE LEVESON: That is alright. Summary assessment of costs is always difficult because one tries to balance, on the one hand, the fairness to the winning party against, on the other, the importance of ensuring that a failing party is not being met with costs which are higher than would otherwise be considered reasonable if there were a detailed assessment. Doing the best I can, and making such allowance for the points that have been argued before me, I order the claimant to pay £4,000 towards the cost of the defendant. That is the only orfer that I make.

 

82. MR JONES: My Lord, there is just one matter. We will obviously want to reflect upon your Lordship's judgment. I would ask if your Lordship would order an expedited transcript. We have very strict time limits --

 

83. MR JUSTICE LEVESON: Of course you do, but you do not need my judgment because you have heard it.

 

84. MR JONES: My Lord, we have taken a note and obviously we would want to --

 

85. MR JUSTICE LEVESON: I have no problem about it because, as you appreciate, when I come to re-read it there may be things that I will express slightly differently in the interests of clarity. If it requires an order from me that it be expedited, so be it.

 

86. MR JONES: I am grateful to your Lordship.

 

87. MR JUSTICE LEVESON: Thank you.

 

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