Thier v. London Borough of Southwark

Transcript date:

Wednesday, May 29, 2002

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Ouseley J

Neutral Citation Number: [2002] EWHC 1668 (Admin)

IN THE HIGH COURT OF JUSTICE CO/1486/02

QUEEN'S BENCH DIVISION

(THE ADMINISTRATIVE COURT)

Royal Courts of Justice

Strand

London WC2

Wednesday, 29th May 2002

B e f o r e:

MR JUSTICE OUSELEY

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THE QUEEN ON THE APPLICATION OF TRACY THIER

-v-

LONDON BOROUGH OF SOUTHWARK

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(Computer-aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited,

190 Fleet Street,

London EC4A 2HD

Telephone No: 020-7421 4040

Fax No: 020-7831 8838

Official Shorthand Writers to the Court)

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MR P HARDY (instructed by Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Claimant.

MR T COMYN (instructed by the Legal Department of the London Borough of Southwark) 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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1. MR JUSTICE OUSELEY: This is a renewed application for permission to apply for judicial review to quash a planning permission granted on 6th September 2001. The claimant is the owner of land and dwellings known as Beltwood, which is a Grade II listed building set in substantial grounds in a conservation area in Sydenham Hill within the London Borough of Southwark. She purchased it recently for a very substantial sum of money and is in the process of restoring the house, its grounds and the lodge.

2. At the time of the events in question here, however, she was not residing at the lodge or the main house. The planning permission, granted on 6th September 2001, was for the erection of a new two storey building comprising a ground floor kitchen and bar and a first floor manager's flat with a single storey link to the existing public house, called the Dulwich Wood Public House, which is a property neighbouring the grounds of Beltwood. This development would replace, though be considerably larger than, an existing barbeque and shaded area.

3. The application for judicial review was lodged on 22nd March 2002 and was therefore some six months after the date of the decision being challenged. The claimant first knew that permission had been granted on 20th February 2002 when she saw works being undertaken to implement the permission.

4. The claim for permission to seek judicial review was refused on paper by Sullivan J. In refusing permission Sullivan J commented that although the complaint of Miss Thier, that she should have been notified of the application as a neighbour but had not been, was justified, there had not been a total failure of the consultation process because there had been a press notice and a site notice in Crescent Wood Road and consultation of a number of residents in Crescent Wood Road. I should point out that the entry to the lodge and Miss Thier's property appears to be off Sydenham Hill Road which meets Crescent Wood Road to its west.

5. The learned judge, when refusing permission on the paper, pointed out, however, that the photographs that were provided with the papers showed that development had not merely commenced but was well underway on 2nd April 2002 (that is the date of the photographs). He commented that:

"You acted without delay as soon as you became aware of the permission but the reality has to be faced, the horse has bolted."

6. So far as the state of development is concerned, it is clear that by 2nd April 2002 the walls of the extension were largely complete, the openings for the windows were in place, although the window frames were not in place in each window, and the roof structure, though not the tiling finishes were also in place. Plainly, as at 22nd March, something less would have been apparent on the ground.

7. The claim is based upon a breach by the London Borough of Southwark of the claimant's legitimate expectation that non-statutory consultation of neighbours would be undertaken. Had such consultation been undertaken, Miss Thier says that she would have objected to the development and sought to make representations which would have encompassed not just the assertion that the extension to the public house, by overlooking the grounds and the lodge, interfered with the residential amenities for such accommodation, but also that the extension would bring noise, smell, disturbance and a want of security to her expensive property.

8. She also complains that the development was begun in breach of planning control in that two conditions on the permission, which required the provision of certain details to the local authority for approval before development was commenced, had not been complied with. It indeed appears that that complaint is well made in that development did commence without those details being approved. It appears also that it was only in consequence of Miss Thier's complaining in February and March about the procedural deficiencies of the council that the council required the developer to submit for approval the relevant details.

9. Nonetheless, the council tells me, through Mr Comyn, that although in respect of those approvals the claimant and other residents were specifically notified when they were retrospectively sought, it would not have been the normal practice of the council to notify residents of the applications of approval for reserved matters. The process was only undertaken in this case because of the concerns being raised by Miss Thier and the failure of the council hitherto to comply with its normal practice in relation to notifying residents of applications.

10. It is quite plain that the council did not comply with its normal policy in relation to notifying all residents of the application for permission for the extension to the public house. The council indeed has accepted, and accepted as soon as the point was raised by Miss Thier, that it had failed to do what it normally would have done by way of notifying her as a neighbour of the application.

11. That is a non-statutory obligation but it is one which is capable, because of the local authority's practice and the advice given by government as to non-statutory consultation, of amounting to a legitimate expectation which in this case was not satisfied.

12. There appears to be, notwithstanding a certain suggestion to this effect, no basis for an arguable case that the statutory obligations in relation to consultation were breached. There was a site notice on a lamp post, although one can debate which road precisely it should have been in, and there was a press notice. Other residents were also consulted. So as Sullivan J said there was not a total failure of the consultation process and indeed the statutory provisions were complied with.

13. Nonetheless I conclude that Miss Thier has an arguable case that the council has breached her legitimate expectation. I also consider that at present the matter has to be approached on the basis that had Miss Thier been able to make the representations she would have wished it is possible that the design alterations, which she says she is seeking and which would have altered the location of the windows in particular, together with certain other forms of amenity protection, for example, the form of tree screening, might have been imposed. She disclaims any desire to see the building demolished in total and is concerned, she says, with changes to it which could affect her amenity beneficially. Of course, formally the position if permission were to be granted, and the planning permission were subsequently to be quashed, would be that the whole development would lack planning permission and would be vulnerable to varying degrees of enforcement, depending on the views which might be taken as to whether the amenity changes could be made, or should be made, and what their consequential effects actually were. It is not to be supposed that there is no consequential effect on the rest of the building from the sort of changes which Miss Thier has been seeking.

14. However, the principal problem in the way of Miss Thier's case is not whether she has an arguable case on the merits (because she has); it is whether there is a good reason for extending time bearing in mind the extent of the delay, the reason for the delay and the impact which the grant of relief and permission would have upon the development: a development which is now complete except for the provision of certain ventilation.

15. The principal point which Miss Thier relies on, by way of saying that there is a good reason for an extension of time, is that she did not know of the development, notwithstanding the compliance with the statutory consultation procedures, until 20th February 2002: a point which I accept as a matter of fact.

16. She secondly says that thereafter she acted with due expedition and promptness. Mr Hardy has sought to point out that the proceedings were issued within four weeks, or so, of her finding out what the position was. He draws my attention to certain passages in the decision of the House of Lords in R v London Borough of Hammersmith and Fulham ex parte Burkett [2002] UKHL 23 in which Lord Steyn refers to the burdens that are cast upon an applicant for permission to apply for judicial review, in terms of the papers that have to be assembled for compliance with the rules.

17. However, I have had the advantage of analysing what has happened in that period: an advantage which Sullivan J, who concluded that she had acted promptly after discovering of the development, did not have. I accept that in certain circumstances, and indeed in most circumstances, where an applicant does not know that a permission has been granted, that is a strong starting point for contending that there is a good reason for extending time. The force of that is to a degree diminished in this case because this is not a case where the council has been responsible for any concealment of the grant of permission.

18. The statutory obligations in relation to consultation were complied with. Although Mr Hardy makes the point that had the applications for approval been made before development had commenced his client would have known of the existence of the permission rather earlier than she did, the force of that is removed by the assertion from Mr Comyn, which I again accept, that the council would not, at that stage, have consulted neighbours about the approval of the reserved matters and only did so because of the procedural defect which they had already had drawn to their attention by the claimant. Nonetheless there is an important point for consideration here. That has to be weighed against the responsibility of the council.

19. The council made it clear, on 21st February 2002, that it did not think that the points being raised by the claimant had merit in terms of their impact on the grant of planning permission and said so in a letter responding to her telephone conversation, dated 21st February 2002. They also sent to the claimant, with that letter, the documents that would have been most relevant to any judicial review proceedings, namely the approved drawings, the committee report and the decision notice. It is in that letter that the local authority says that it thinks it:

"... most unlikely that there would be any impacts on your premises which would have led to a recommendation other than to grant permission."

20. After receipt of that letter there was no notification at all given to the local authority that judicial review proceedings were contemplated and none were started until 22nd March 2002. No application for interim relief was made either. During the whole of that period it was evident to the claimant that building works were proceeding at pace and indeed it has been evident ever since that they were proceeding at pace.

21. The claimant took some steps to investigate matters with planning aid: an organisation called the Covenant Movement. Indeed the Covenant Movement wrote a letter, dated 7th March, to the London Borough of Southwark raising various issues concerning the merits of the grant of permission. However, there was no suggestion in that letter that judicial review proceedings were contemplated. Further documents were received on the 15th and 19th March.

22. At some point towards the end of February, a Mr Huck, a councillor with some experience of consultation and legal matters, was involved. Notwithstanding his involvement and the assistance of the Covenant Movement, no proceedings were notified and no proper legal advice was taken until on about 15th February, I am told, when Miss Thier received from the council the Government Circular of 1992 dealing with public consultation in relation to planning applications. On this document she instructed solicitors she tells me, and I accept, on 15th March 2002, to write the letter which appears on 21st March 2002 to have been written by Dawson and Company to Southwark and received by them, I am told by Mr Comyn, on 25th March 2002.

23. Effectively, so far as the council was concerned, although requests for certain documents were being made, there was nothing to suggest that judicial review proceedings were underway. There is no evidence of any communication at all to the developer to say that judicial review proceedings were contemplated.

24. It appears that Dawson and Company were able to act extremely quickly after being instructed, on 15th March, and proceedings were lodged within one week. The essential feature of the claim, as I have said, is that Miss Thier was not consulted in the way that normally she would have been. That is a point which was known to her on 21st February because the London Borough of Southwark make that point to her in their letter. It would have been open to her, with legal advice, to have taken proceedings claiming a breach of further legitimate expectation on that day. I therefore, having analysed what has been done, do not consider that thereafter Miss Thier acted as promptly as is required.

25. By this stage the planning permission was already of the order of five months old. She could see it was being implemented and nothing was done to institute proceedings or to seek any interim relief for a period of four weeks. It does seem to me that where time has expired, and good reason is said to exist for an extension of time, that it is fair to say that there is an onus on the claimant to act very quickly to give proper notice as to what is being done to the local authority and the developer and that was not done here. As I said as well, the claimant knew the basis of her application on 22nd February, namely that she had not been consulted as a neighbour because the council admitted to her that they ought to have done so.

26. But in addition to those points, which, in my judgment, show that there is not a sufficient basis for an extension of time, I consider that prejudice would arise from the grant of permission and the grant of relief, in respect of which there is no satisfactory answer. The development is now very nearly complete. The development was being undertaken through February, March and April 2002. It is inevitable, if the grant of relief is to have any purpose, that I have to contemplate that the local authority might take the view that the building had to be, at the very least, re-designed according to Miss Thier's wishes.

27. To have to do such works to a building that has been completed is plainly prejudicial to the developer. It is a significant degree of prejudice. Whilst it can be said that there came a point at which, following the lodging of judicial review proceedings, it is fair to infer that the developer must have known that there was a risk that these proceedings might lead to a quashing of the permission and could have stopped, nonetheless it is to be borne in mind that there was no suggestion of interim relief being sought such as would have afforded protection to the developer in the event of the proceedings failing.

28. I accept, of course, that for a litigant the necessary undertaking as to damages in relation to such an application is a very daunting process. But I am less inclined in this case to be sympathetic to such a submission in view of the expensive property which, at very considerable expense, this claimant has acquired. I appreciate that that may leave her (I think, these were her words, if not I apologise for the colloquialism) strapped for cash; nonetheless it has to be recognised that somebody who has that degree of asset cannot be afforded the same degree of leeway as might be afforded to somebody who had no resources at all. So I consider that there is significant and over-riding prejudice.

29. Finally, I do take into account this, that although I have accepted that Miss Thier has an arguable case and I recognise that it is debatable whether there would be any change in consequence of her success in these proceedings to the actual design of the building, the matter was considered by the local authority with a proper officer's report. Of course it can always be debated whether or not an officer's report is as full and complete as it should be and one can always debate, as Miss Thier sought to do, whether the tree screening was as extensive, or otherwise, as he described. I am nonetheless entitled to take into account that the case, though arguable, is not one which is so strong as to add a further basis for requiring the permission to be put in jeopardy. It does seem to me that I have to take into account the assertion in the letter of 21st February, which I have already referred to, that the officer did not think that the points as to the merits of the permission raised by the claimant would lead to any different result.

30. For all those reasons I consider that this is a case in which it would be inappropriate to grant the necessary extension of time to enable these proceedings to be brought and accordingly I refuse permission.

31. MR COMYN: My Lord, we have applications for the counsel's costs both at the paper stage and at this stage. The ground essentially is that there was never--

32. MR JUSTICE OUSELEY: This is, I think, going to be disputed. I appreciate it is inconvenient but you will have to come back after lunch. I am going to rise now.

(Adjourned)

33. MR COMYN: As I indicated prior to the adjournment, I seek an award of costs both in relation to the Acknowledgment of Service at the paper stage and in relation to the costs today. As far as guidance is concerned, there is some in the Civil Procedure White Book at page 1176 in the Practice Direction at 8.6. It says:

"Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."

34. I am that party and that appears to be the general rule. No justification is given for it. There is no explanation as to why that should be the case, but there it is.

35. MR JUSTICE OUSELEY: It is not always entirely clear. The thinking, I think, is that because this is a sieving process which the court imposes and somebody is being prevented from proceeding further with the case, and it is intended to be a straightforward and simple sieving process, it is not appropriate for defendants to make claims for costs which would be normally appropriate where there has been a full hearing of an action. That is the thinking.

36. MR COMYN: I gather that might be the thinking from reading the rule. There is clearly some guidance in the case of Leach which I have had copied. I do not know if you have a copy available to you. That is a case where Scott Baker J refused permission on grounds of delay and a matter of costs came before Collins J. He makes the point, in paragraph 3 of the judgment, that the rules require that the defendant must be served with the claim form and indeed must respond with an Acknowledgment of Service if he wants to take part in the judicial review.

37. I act for the London Borough of Southwark, which is the local planning authority, and in these proceedings it has been under challenge. It has a responsibility clearly for the proper planning of the area. In my submission it has no real option, if it is going to act responsibly, but to take part in the judicial review proceedings at the earliest moment. I accept that if one looks at rule 54(9) not taking part at the permission stage is not necessarily fatal, but if one then wants to take part in the full judicial review one has to ask permission. In my submission it would be wrong for a local planning authority, or indeed the local authority, to wait for a full hearing before it enters the firing range. It has a duty, in my submission, to nip matters in the bud.

38. MR JUSTICE OUSELEY: The costs note almost suggests that. If you have a good point and leave it to a later point to take you may not be successful in getting all your costs.

39. MR COMYN: That is a point that Collins J acknowledges certainly at paragraph 14 of his judgment in Leach. In my submission the London Borough of Southwark is in that position where it does need to get involved to dismiss these proceedings if it is possible to do so at the earliest moment and stop it effectively in its tracks. Paragraph 54(9) is, in so far as it warns about the possibility of failure to serve an Acknowledgment of Service having implications of costs, is an incentive for the authority to become involved at an earlier stage. In that case the application was out of time, exactly the same position here.

40. This case also has aspects of severe prejudice decision, in my submission, attached to it and indeed in your Lordship's judgment there is no indication that the matter, if it had been taken for judicial review, would have led to a different outcome at the end of the day. No good reason for extending time was given before Sullivan J on the papers. My Lord, the way that case, which I did have passed up to you and my friend has, demonstrates that a failure of consultation does not inevitably lead to judicial review being issued, in my submission--

41. MR JUSTICE OUSELEY: This is the Richmond case.

42. MR COMYN: Yes, that is the Richmond case. It is the pelican crossing case where there was a failure to consult the people who might be affected by the pedestrian crossing. The court looked at the matters and decided that indeed there had been a failure to consult. One letter had been pushed through the letter box where there were four flats - not totally dissimilar to the situation here. The court decided that despite that failure of consultation nevertheless the decision should not be quashed because it was unrealistic to suggest that there would be a different outcome had proper consultation gone through.

43. As far as the application on paper is concerned, the London Borough of Southwark submits that there was no good reason for extending time shown to Sullivan J and he indeed also, I would submit, found that there was prejudice. He talked about the horse bolting. What effectively he was saying, in my submission, was that the development had gone ahead and it was too late to do anything about it. There would have been prejudice following from any intervention. Turning to the costs of today, we do have, as I say, that guidance in 8.6. The word is generally and obviously not exclusively.

44. This is a case, in my submission, where there was no good reason for delay; where the claimant is clearly a woman of some means; where the claimant is someone who had the advice of lawyers prior to issuing proceedings; where the claimant made no attempt to seek interim relief so as to prevent prejudice running; and she failed to seek interim relief in circumstances where she plainly had legal advice. One may speculate as to what that advice might have been. It is plain if one reads the Dawson and Company's letter that suddenly those solicitors were well aware that delay was a very big problem in this case. They spent some time trying to suggest that it is excusable.

45. We are not dealing here with impecunious neighbours or a pro bono amenity group, but we are dealing with a neighbour who, as I say, plainly has substantial means and a neighbour who has shown no good reasons for the delay. Where such a claimant seeks to take on, in my submission, a local authority, the court should indicate, by an award of costs, that discipline must enter into these proceedings. Such persons must, in my submission, take advice and must act with discipline when they are considering whether or not to bring proceedings. The way to ensure that they do so act is by awarding costs.

46. In this case, as your Lordship knows, we indicated right at the outset that we were at fault. We also gave our best view as to whether or not our failure would lead to a different outcome. We would suggest it did not. I have not taken your Lordship through the officer's report but if your Lordship was to have an opportunity to read that, as I am sure your Lordship has already, you will see in that report that indeed the lodge is mentioned on a number of occasions. The principle concern that Miss Thier had is in relation to overlooking - yes she raised other points - her principle concern is about overlooking. If you look in the skeleton argument that is what she wants to go back and deal with: this question of overlooking. Overlooking is dealt with in detail in that officer's report. The fact of the matter is at the end of the day fair consideration was given to the points that she wants to raise when one looks at that broadly. Those are my grounds for the application.

47. MR JUSTICE OUSELEY: Mr Hardy?

48. MR HARDY: I think an application for costs is wholly unjustified. Sullivan J described what had happened between the two parties as "apparent maladministration". Certainly your finding has been that she has an arguable case. These are the legitimate expectation. What was not mentioned in your judgment, but was certainly mentioned in the claimant's grounds, the letter before claim and in my skeleton argument, is that she also complained that section 66 of the Planning (Listed Buildings Conservation Areas) Act 1990 had not been heeded whatsoever and there is no mention in the officer's report to considering the effect of this proposal on the setting of a listed building. That was her second ground of complaint. As far as costs for this hearing are concerned, it is plainly clear from rule 8.6 of CPD 54 that:

"Where the defendant or any party does attend a hearing, [that is a permission hearing] the court will not generally make an order for costs against the claimant."

49. There is a clear presumption envisaged by those who draft the rules that for this hearing the claimant should not pay costs for the attendance of the defendant.

50. It is germane that that rule was not even mentioned in the case of Leach in which the claimant, the then Respondent, was unrepresented and no mention is made by Collins J to that rule.

51. MR JUSTICE OUSELEY: There is no practice direction in relation to Acknowledgment of Service.

52. MR HARDY: I ought to take you through Leach. Before I do can I hand you up an article which has been written on Leach. Firstly, Leach is an extemporary judgment. What it says, quite clearly, is that costs should be limited to actually producing the documents required in an Acknowledgment of Service.

53. MR JUSTICE OUSELEY: Can you take me to that?

54. MR HARDY: It is paragraphs 15 and 16 of Leach. Then at paragraph 18 Collins J says:

"It is obvious that the Rules Committee is going to have to consider in detail the implication of this decision, as it seems to me, it ought to be dealt with by the judge when he deals with the permission application, and that can only happen if the application for costs is made in the body of the acknowledgment and an indication is given as to the amount of costs which are being requested."

55. Clearly that, first of all, has not happened in this instance. There is no mention of an application for costs in the Acknowledgment of Service and clearly if there was it would have to be limited to the costs incurred at that stage and not the costs incurred for the London Borough of Southwark's representation today. Secondly, I was put on notice of the costs application this morning. It is certainly mentioned in the skeleton argument and the break down of costs was handed to me this morning. The requirements in paragraph 18, as set out by Collins J, have not been complied with.

56. Thirdly, at paragraph 26 - and I rely on this to distinguish this case - Collins J referred to the fact that Scott Baker J--

57. MR JUSTICE OUSELEY: The problem that he indicates, in his view, is it lacked merit but it is true that essentially it was because it was out of time. Again I say that this is an application which at the permission stage Sullivan J found, as a fact, that the claimant should have been notified. He referred to an apparent maladministration, but it was a question of prejudice and the horse having bolted which stopped him granting the permission. What I say in that regard is this, that the question of prejudice, as I have raised today, is very much tied in with the fact that the development as implemented, I say, was unlawful. In all the circumstances this is not an appropriate case where the claimant should be penalised, as it was put by my learned friend. She was entirely justified in seeking to renew her application.

58. MR JUSTICE OUSELEY: There is not, I think (I regret if I am wrong) an application in relation to the Acknowledgment of Service.

59. MR COMYN: The conclusion is on page 5, paragraph 16:

^^unchecked

"The court is further invited to award the London Borough of Sutton its costs for the preparation and filing the Acknowledgment of Service."

60. MR HARDY: I apologise as I do not have a copy of page 5 within my bundle.

61. MR JUSTICE OUSELEY: What he says is right though. It says: ^^unchecked

"The Court is further invited to award London Borough of

Sutton its costs for preparation and filing the

Acknowledgment of Service."

62. MR HARDY: I am grateful. I pray in aid the views of--

63. MR JUSTICE OUSELEY: I am not interested in the views. You make submissions for me.

64. MR HARDY: The submission is this, that the rules and the Practice Direction do not contemplate the costs being awarded for the Acknowledgment of Service. It is only this judgment of Collins J which has considered that. It has certainly not gone before the Rules Committee.

65. MR JUSTICE OUSELEY: Are you saying there is no jurisdiction?

66. MR HARDY: No, I am not. I am saying it is a matter of discretion. In this instance the discretion should weigh very much in favour of the claimant. Has your Honour the breakdown of the costs claimed? Your Lordship will see that at point (1) those are costs claimed for preparing and drafting the Acknowledgment of Service, but at (2) that is work in relation to the claimant's renewal for application for judicial review. Collins J limits the scope of costs to work involved in drafting the Acknowledgment of Service. Therefore, I would ask you, with due respect, to make that distinction.

67. If you turn over the leaf to the fees of my learned friend you see fees accumulated to settling the draft Acknowledgement of Service and note. Again I would ask you to make that distinction not to include, if you are minded to order an award of the costs, the settling of the skeleton argument and the brief on application for leave because an award of those costs would go clearly against the terms of rule 8.6 of CPD 54. Those are my submissions.

68. MR JUSTICE OUSELEY: Thank you. Do you want to say anything else?

69. MR COMYN: The breakdown is plainly that the first item is in relation to the Acknowledgment of Service claim. That is what Collins J was dealing with. He was not dealing with subsequent costs relating to a renewal hearing and the other figures relate to the renewal hearing. What we are saying is that this claimant was told, in terms, by Sullivan J that she was out of time and her case was effectively hopeless and yet decided to press on. In those circumstances, in our submission, it is a case where she should pay the costs of this London Borough and those costs should not fall upon it. I am grateful.

JUDGMENT ON COSTS

70. MR JUSTICE OUSELEY: I am not going to make an award of costs and I will explain briefly why. There are two areas of costs which are plain. The first relates to the costs incurred in drafting the Acknowledgment of Service and the associated documentation, and a claim to that effect is included in the Acknowledgment of Service. It is accepted that there is a jurisdiction in the court to make an award of costs. Mr Hardy submits that my discretion should be exercised against making such an award. There is no provision in a Practice Direction or rules that indicate the way in which that discretion should be exercised.

71. The second component of Mr Comyn's application is for the costs incurred in relation to the oral renewed application. There is a Practice Direction in relation to that. It provides that the costs should not generally be awarded in favour of a successful defendant. The reason why I do not propose to award costs in relation to the latter, which I shall take first of all, is that the circumstances do not appear to me to be exceptional enough to warrant an award of costs. It is generally going to be the case that upon a permission hearing orally the claimant will have failed on paper.

72. Therefore, the fact that the claimant has failed twice would be the general circumstances in relation to an application for costs, but is the set of circumstances in which the Practice Direction must be taken as saying that generally costs will not be awarded. There would have been no need for such a direction if costs were to follow the event upon an unsuccessful renewed oral application. There are circumstances one can envisage which would be exceptional. This would include, for example, the feebleness of the case that has been put forward, the irresponsibility with which it has been pursued and the failure to deal with the points which have been raised by the judge refusing permission on paper. That is not intended to be an exhaustive list, but in this case there are no such exceptional circumstances.

73. The points relied upon by Mr Comyn are points which would be good in the generality of cases. He urged an award of costs to protect the residents and council taxpayers and to encourage the application of self-discipline to claimants. He said that the claimant had had legal advice and was a woman of means, had not suggested interim relief and no good reason for delay had been shown. However, these are all matters which seem to me to reflect the general position rather than to constitute exceptional circumstances. I do not regard the case as having been so weak either in relation to the merits of the application, or in relation to an extension of time, as to mean that it was in all probability inevitable that the oral application would fail.

74. The position in relation to the Acknowledgment of Service may be, and perhaps logically from one point of view or logically from another, different. An Acknowledgment of Service, unlike an appearance at an oral renewed application, is an important part of the Administration of Part 54 claims and is a necessary threshold through which defendants have to pass in order to participate in cases and is one which if not followed can, in turn, lead to defendants facing difficulties as to costs.

75. As Collins J points out in the case of in the case of Application by Leach [2001] EWHC Admin Court 55, the existence of the Acknowledgment of Service performs an important role. There is not, however, in this instance, evidence before me which indicates that the material presented by the claimant to the court was significantly deficient in the sense that it required an Acknowledgment of Service in order to bring to the attention of the court, papers which it ought to have had (an important function) nor, and this is no reflection on counsel, was it material that put a rather different light on points that were being made in the claim form. Again another important aspect of an Acknowledgment of Service.

76. Whilst I would, in many circumstances, regard it as appropriate to grant an award of costs for an Acknowledgment of Service, I still consider that there ought to be some component of reluctance, perhaps not as much as in paragraph 8.6 of the Practice Direction, against making a costs order for the Acknowledgment of Service. The benefit in a sense being taken is the elimination of the proceedings at an early stage. In this particular case it seems to me that the real issue was a question of time and all the issues in relation to that are points which have been explored essentially, again I say this in no way disrespectfully, without really drawing on the contents of the Acknowledgment of Service. That is not in any way to suggest that there is some deficiency in the Acknowledgment of Service, it simply reflects the nature of the case.

77. For that reason I do not consider it appropriate to make an award. I have, as I say, not quite the same degree of force as one might derive from paragraph 8.6, but there still requires to be a case for an award of costs in respect of an Acknowledgment of Service that is a little more than simply the success that it has achieved. For those reasons I do not propose to make an order as to costs.

78. MR HARDY: I am grateful. I have one further application and it is this: I apply for your leave to appeal to the Court of Appeal. I know I do not need your leave but in order for the Court of Appeal to consider this matter properly, and if necessary to go to the House of Lords, I make that application.

79. MR JUSTICE OUSELEY: Do you need my permission?

80. MR HARDY: Technically I do not.

81. MR JUSTICE OUSELEY: Then why do you ask for it?

82. MR HARDY: In due course if I had your permission an appeal to the House of Lords could be made in any event, otherwise the application has to be resubmitted.

83. MR JUSTICE OUSELEY: Resubmit your application to the Court of Appeal?

84. MR HARDY: Yes.

85. MR JUSTICE OUSELEY: Why do you want my leave when you do not need it?

86. MR HARDY: It is so that we cannot be turned away point blank by the Court of appeal.

87. MR JUSTICE OUSELEY: You mean you would like me to pre-empt the Court of Appeal exercising the powers it has?

88. MR HARDY: If you are minded to grant us leave then the matter would be considered fully and properly by the Court of Appeal.

89. MR JUSTICE OUSELEY: You mean they will not consider it fully and properly?

90. MR HARDY: No, not necessarily. There are three points of public importance.

91. MR JUSTICE OUSELEY: Tell me what they are?

92. MR HARDY: Firstly, it is the effect and consequences of Burkett on these kinds of applications: applications for extension of time in judicial review hearings, and really that as your Lordship - the English and Scottish approaches to judicial review--

93. MR JUSTICE OUSELEY: I know Mr Buxton is a great enthusiast for the House of Lords. I think you might have to take that one to the Court of Appeal. The next one?

94. MR HARDY: The next one is this: that in your Lordship's judgment there was no consideration of the illegality of the implementation of the planning permission in the context of prejudice to a defendant or to a third party.

95. MR JUSTICE OUSELEY: I think there was. I made the point that you had said that had you been told at the due time of the applications for approval of details you would have been alerted to the existence of the permission at an earlier stage, which seems to me a point of some importance. That is why I asked Mr Comyn what the position would have been and he said, and I accept it, that if the normal practice had been followed the application for the approval of the matters under conditions (2) and (4) would not have been the subject matter of notification to you, so you would not have known that. The only reason that you were told was because by the time that happened everybody knew that there was scope for a good deal of - I am trying to avoid using a colloquialism - everybody knew by that time that matters were getting hot.

96. MR HARDY: That is notwithstanding notification or whether it was a common procedure of the local planning authority. The point raised was this, that when weighing up the prejudice to a third party and prejudice to the claimant it must be material that the state of construction (in other words its nearness to completion) was in fact a development. I made this point in my skeleton, that it was unlawful because it was implemented in contravention of those two conditions.

97. MR JUSTICE OUSELEY: I do not think much of that. It would become lawful.

98. MR HARDY: So be it. Thirdly, it was this, there was no mention in your judgment of the argument under section 66 of the Listed Buildings Act and what effect that might have had on your view as far as prejudice was concerned, because your Lordship made comments on the merits of the claim for legitimate expectation. Clearly the second ground was claimed and that was that the local planning authority were under a statutory duty to consider the setting of Belt Wood in relation to this proposal. There was no mention made of that in your judgment.

99. MR JUSTICE OUSELEY: There certainly was not. It is an entirely fair point. I do not think that it had struck me that there was anything of significance in that I am afraid. I am not going to grant you permission. You must take those points to somewhere else.