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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O'Reilly, R (on the application of) v First Secretary of State & Anor [2005] EWHC 1286 (Admin) (09 June 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1286.html Cite as: [2005] EWHC 1286 (Admin)

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

		Royal Courts of Justice Strand London WC2
		9th June 2005

1. MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 "the Act" against a decision of an Inspector appointed by the first defendant dismissing the claimant's appeal against an enforcement notice issued by the second defendant and upholding the enforcement notice with corrections and variations.
2. The enforcement notice was issued on 27th February 2004 and alleged that there had been a breach of planning control at 2 and 2A-B Hassop Road London NW2 by reason of a change of use of the premises to a mixed use as a residential and a car repair business.
3. The notice required the cessation of the business use of the premises, including the use of the premises for the repair/servicing of motor vehicles, and also the cessation of the residential use of the premises.
4. The Inspector first corrected the enforcement notice by deleting the land and building, known as 2B Hassop Road, leaving a 2-storey building known as 2 and 2A Hassop Road.
5. The Inspector's conclusion that there were three distinct planning units within that 2-storey building, a flat on the first floor and two garages on the ground floor, is not challenged in these proceedings.
6. The claimant appealed against the notice on grounds (a), (d), (e) and (f) in section 174 subsection 2 of the Act. Apart from granting a modest extension of time for compliance with the requirements of the notice, the Inspector rejected all of those grounds.
7. This appeal is simply concerned with his rejection of the claimant's ground (d) appeal in respect of the use of the two ground floor garages for car repairs.
8. The relevant 10-year period for that use was between 27th February 1994 to 27th February 2004. The Inspector also considered whether a lawful use might have become established prior to 1992, but no criticism is made of his conclusions in that respect.
9. In paragraphs 15 to 18 of his decision letter, the Inspector summarised the evidence that was produced by the claimant in support of the proposition that car repairs had become an immune use.
10. So far as relevant, that evidence was as follows:

"15. Four witness statements were submitted from persons with knowledge of the use of '2 Hassop Road' for car repairs. These statements confirmed the existence of a commercial repairs business at the site at various dates after 1974. Mr O'Reilly had been aware of a Mr Scanlon using 2 Hassop Road between 1974 and 1979 when he operated a car repairs business from premises at the other end of Hassop Road. During this period he had given Mr Scanlon work as an overflow. Mr Laundy had made deliveries to these premises between 1979 and 1986, and subsequent to his retirement in 1993, had noticed 2 Hassop Road operating when passing the street. Mr Comyns had delivered vehicles for repairs to 2 Hassop Road on at least two occasions between 1975 and 1991 when he had been Sales Director for Colindale Service Station. Mr Teahan had been working at Cricklewood Coachworks between 1991 and 1994, and had started his own business at 7A Hassop Road in 1994. He had been well aware of 2 Hassop Road being used for car repairs by a Mr Tom Scanlon during his time at Cricklewood Coachworks, although Mr Scanlon had left Hassop Road about 18 months before he had begun his own business in 1994. Following a period of being closed, the premises had been opened for car repairs by a firm called Lewmark in about 1995. This firm already had premises in the street, and had used it as a back-up for their existing business. Lewmark had sold the premises in about 2000...

"17. Three of the four statements were supported by oral evidence at the inquiry given by the writers. In that evidence, Mr O'Reilly said that he had also made regular visits to the Hassop Road area between 1979 and 2000 when he bought the appeal site. Visits were not all to the appeal site, but he had had repairs done at the site over this period. Although the premises had been vacant when he had bought the property, he had known it had been in use for mechanical repairs a couple of years prior to that... Mr Laundy indicated that he had visited Hassop Road regularly between 1986 and 1993 when working for Lynx, although not the appeal site itself. Following his retirement in 1993 he had visited Hassop Road perhaps once every 2 or 3 months, again not visiting the site. If the premises had been closed over a period of years, he would have noticed. Mr Comyns said that he had visited the site on 3 occasions delivering vehicles for repair when staff shortages had been a problem. The last occasion had been in 1983/4. Over and above this, he had been receiving invoices continuously over his 16 years at Colindale from Scanlon Autos ...

"18. A bundle of 14 documents, largely invoices, were submitted at the inquiry. These had been found by Mr O'Reilly following his purchase of the site in 2000. It was said that this was solid evidence demonstrating beyond reasonable doubt a continuing commercial use of the appeal site at the respective dates. The dates on these documents began in March 1992 with items dated 1994, 1996, 1997 up to November 1999. There was no evidence that Scanlon Autos operated other than from the appeal site."

11. The Inspector then set out, in paragraphs 19 and 20, the "Contradictory information":

"19. Ms O'Connor gave evidence based upon her residence at 42 Ashford Road, whose back garden adjoins the rear wall of 2 and 2A, for 20 years. She said that until 1992 she had occupied only part of 42, the owner living in the remainder. He had used one part of the 2 storey building on the appeal site as a garage for his car until his death in 1992. Thereafter, she had bought the property at number 42 in about 1995/6. She had only noticed increased activity arising from car repairs at the appeal site about 3 or 4 years ago.

"20. Mr Sayers' evidence derived from his work as a ward councillor from 1990 onwards. Mr Sayers said that he had visited Hassop Road in his capacity as ward councillor at least once a week from 1990, just after his election, until 1999 when repair works had been begun to the premises at 2 and 2A. These visits were in response to regular complaints from constituents. Between those dates the appeal site had been in an apparently derelict condition with 2 large black doors facing the street. Occupiers of other premises along Hassop Road had placed derelict vehicles in front of the appeal site and carried out 'stripping' works in situ. He had been told that the first floor accommodation at the appeal site had been used at some point in the past as 'church offices.' He had also been told that the new owner of the site during the 1990s, 'Lewmark,' had used the building for the storage of car parts until the time of its sale."

12. The Inspector then reviewed that evidence in paragraphs 21 to 35 of the decision letter.
13. In cross-examination, Miss Freeman, the second defendant's enforcement planner, had accepted that if the invoices related to the site the subject of the enforcement notice, they constituted "compelling evidence" of use of those premises for car repairs throughout the 10-year period.
14. The Council's case was that because of confusion about the numbering of premises in Hassop Road, the invoices submitted did not in fact relate to the appeal site.
15. The Inspector did not accept that argument. So far as relevant he said in paragraphs 21 and 22 of the decision letter:

"21. Uncertainty over property numbering along Hassop Road until the Council's formal review of the street in 1988/9 was a matter of concern. The Council's recording of 2 other premises known in 1998 as '2 Hassop Road' would not invalidate the supporting evidence where witnesses were clearly able to identify the premises with which they were concerned by reference to a plan and photograph of the building. The other '2 Hassop Roads' were located at the other end of the street.

"22. I accept that the evidence was intended to relate in some way to the building now known as '2 and 2A.' What was far less clear was whether it was the whole of the building or one or more of the current constituent parts to which the evidence was intended to relate at different dates. The recollections of witnesses whose visits were said to date back mainly between 13 and 30 years, were in general terms only with reference to the building as a whole and the photograph. Some of the evidence concerned persons passing by only or visiting the site without going inside. Whether the ground floor was sub-divided into 2 separate compartments at particular dates was not dealt with by witnesses other than Mr O'Reilly. Mr O'Reilly's evidence on this matter conflicts with that of Ms O'Connor."

16. In paragraph 23, the Inspector noted that there were no formal records at any stage connected with the ownership of the land or any documents relating to tenancies by named persons.
17. In paragraph 24 of the decision letter, the Inspector dealt with the nature of Hassop Road as a whole. In summary, the Inspector's overall impression on his site visit was one of:

"... relative chaos with vehicles parked/stored seemingly indiscriminately along the street and/or verges/forecourts, including cars being worked on in such positions."

18. The Inspector made the point that there was no detailed evidence as to how the street would have looked way back in February 1994, but said:

"... it seems probable that a similar impression would have been conveyed. In such a situation the impact of activities carried out at one or two of the premises (or indeed the lack of activities at any one time) upon a visitor passing along Hassop Road, would have been rather less obvious than if the uses involved had been more unusual to the street."

19. In paragraphs 25 to 35 of the decision letter, the Inspector dealt with "use between 1994 and 2004." In paragraph 25 he noted that there was no dispute that 2 and 2A had been let as separate units for car repairs after the claimant purchased them in or about 2000.
20. The claimant's appeal focuses upon the manner in which the Inspector dealt with the invoice evidence. It is common ground that the Inspector had to consider that evidence in the context of all the other evidence, both written and oral, and form a judgment on the evidence as a whole. In order to set the Inspector's conclusions about the invoice evidence in context it is necessary to read paragraphs 26 to 35 of the decision letter:

"26. For the remainder of the 10 year period preceding issue of the notice, and indeed back as far as 1991, there was no specific first hand evidence of persons visiting and/or using the premises. The recorded comments involved persons passing the premises, but not visiting them, and having no direct trading involvement with them.

"27. Witness evidence comprised only indications by Mr O'Reilly and Mr Laundy that they had passed along Hassop Road from time to time. Mr O'Reilly's oral evidence claiming to have had repairs done at 2 Hassop Road between '1979 and 1998' cannot be related directly to the years after 1994. Cross-examined on this evidence, he was unable to specify how often he had had cause to visit Hassop Road over this time period, or how often and when repairs had been carried out for him at the appeal site. Mr Laundy was only able to indicate that he would have noticed if the premises had been closed for a period of years in the context of his knowledge of the site between 1979 and 1986. This evidence is extremely limited in its scope, and falls substantially short of discharging the ground (d) onus.

"28. Evidence of past use of land or buildings is generally more difficult to obtain and to rely on the further back it has to go from the present day. Where evidence in some form seems to be available for much earlier time periods before 1991, the absence of direct evidence for 1994 to 2000 from users of the site or neighbours is difficult to understand if the use was active throughout most or all of this period.

"29. The Appellant relied upon the 14 document copies submitted at the inquiry as evidence of a continuing commercial use. Each of the 14 items included a reference to 'Scanlon Autos', the '2 Hassop Road' address, and a date between 1992 and 1999. It was not claimed by the Council that these were fabrications. The detailed contents of the documents need to be considered, as well as their relationship to other available evidence.

"30. The majority of items were invoices to 'Scanlon Autos' for items of equipment or work carried out by other parties rather than evidence of repairs use conducted at the site. Two were invoices for small amounts of stationery. Three were invoices to Scanlon Autos for small amounts of money for vehicle parts (spark plugs, a switch, an oil filter and a vehicle exhaust). Two were invoices for parts and fitting by others rendered to Scanlon Autos. One was a sales invoice for an Ford Cortina sold by Scanlon Autos to Dollis Hill Garage. One was a sales invoice for a car bought by Scanlon Autos. One was a bodywork estimate rendered to Scanlon Autos by Willesden Green Garage. Most of these would be consistent with a firm trading in cars rather than repairing them.

"31. The copy of the 'Vehicle Inspectorate Special Notice 5/92' appeared to be an information sheet, not specifically addressed to an individual or firm, but the sheet had been overprinted with the standard stamp of Scanlon Autos. The 1992 insurance renewal invitation for a 'Motor Traders Combined - General Accident' policy was just that. There was nothing to show it had been taken up or what the particular use was. Additionally, both these documents related to a time before 1994.

"32. Only 2 items were specifically invoices by 'Scanlon Autos' for work carried out to vehicles. These were dated 1997 and 1999. As with other documents, these might be said to show the existence of a firm trading under the quoted name. Two repair items carried out during 1997 and 1999 would be an inadequate basis to draw a conclusion relating to the whole of the relevant 6 years. They could be indicative of a very sporadic use of the site, little more than a hobby rather than a continuously functioning commercial use. There was very little personal information relating to Mr Scanlon. The claim that there was no evidence to show that he had other premises from which to work is less than a positive indication that he did not have such facilities. The dating of the '11.11.99'invoice was itself problematic when set alongside Mr O'Reilly's oral evidence. He had indicated that the whole building had been unused when he had bought it in spring 2000, although he knew that it had been in use a couple of years before that."

21. [In paragraph 33, the Inspector refers to the Court of Appeal's judgment in Thurrock Borough Council v Secretary of State for the Environment]:

"34. These matters need to be placed in the context of the contradictory evidence of Ms O'Connor and Mr Sayers. Both gave evidence that they were unaware of car repairs at the appeal site until 2000. In Ms O'Connor's case she would have been unable to view into the front doors of 2/2A from her property, and her perception of a change in the year 2000 caused by vehicles spilling to the corner of Hassop Road/Ashford Road and beyond could have been explained by activities generated by other repair businesses along the street. Her awareness of machinery noise transmitted through the back wall of the garage into her private garden could not be explained so readily. Mr Sayers' evidence on the condition and lack of use of the premises through the 1990s derived from a very specific interest which he had as ward councillor from 1909 onwards. The frequency and regularity of his visits to Hassop Road in investigation of complaints by his constituents and the focus of those visits on the activities being conducted in premises along the street in my view give added reliability to his recollections relating to 2/2A. Whilst it would be possible that he had failed to observe intermittent and very low levels of repairs activity inside the building, presumably with doors closed, his evidence weighs heavily against the claim of a continuous commercial repairs business operating between 1994 and 2000.

"35. Drawing these matters together, the supporting witness evidence of use between 1994 and 2000 was limited and inadequate. The documents could be said to show only the existence of a firm known as Scanlon Autos with an address at 2 Hassop Road. The totality of the repairs activity which they might show derives from the 2 invoices dated 1997 and 1999. This is wholly inadequate as a demonstration of a continuous 6 years' use. Of the remainder the majority would be more consistent with a car trading/sales use than a repairs business. The evidence of both Mr Teahan and Mr Sayers about the involvement in the premises of a firm called 'Lewmark' adds a further layer of doubt about the principal case being advanced by the Appellant without giving substance to a claim that that firm might have been conducting a car repairs use from this site. When these matters are placed alongside the overall evidence of Mr Sayers and Ms O'Connor, my conclusion is that the onus to demonstrate the facts of a continuous 10 year use between 1994 and 2004 has not been discharged on the balance of probability."

22. On behalf of the claimant Mr Wald challenged these conclusions on two grounds: procedural fairness and perversity. Although the grounds of appeal in the claimant's skeleton argument contended that the Inspector's reasoning was inadequate, Mr Wald did not pursue a separate reasons challenge in his oral submissions before me. In my judgment, he was right not to do so. Whatever may be said as to the reasonableness/fairness of the Inspector's conclusions about the invoices, his reasoning, far from being inadequate, is both comprehensive, detailed and wholly intelligible.
23. Dealing firstly with the perversity challenge, Mr Wald submitted that it was unreasonable for the Inspector to approach the matter upon the basis that only 2 of the 14 invoices submitted were invoices by Scanlon Autos for repair work carried out to cars. They were: an invoice in 1997 to supply and fit a fan belt and a new battery to a Mitsubishi and an invoice in 1999 to carry out a full service and replace front pads on a VW Golf.
24. Mr Wald produced an analysis of the invoices and submitted that the other invoices -- for example: for a supply of exhausts to Scanlon Autos, for a supply of spark plugs and of tyres -- were so closely related to a car repair use that, when taken together with the claimant's evidence that the premises were being used for car repairs, the only reasonable inference that could be drawn was that the other invoices related to those car repair activities.
25. He asked, rhetorically, why else would Scanlon Autos have received exhausts or tyres?
26. That submission might have had some force if there had been cogent evidence, for example from Mr Scanlon himself, that car repairs were indeed being carried on at the premises between 1994 and 2004. But, as the Inspector pointed out in paragraphs 26 and 27 of the decision letter, the claimant's evidence in this respect was far from satisfactory:

"... there was no specific first hand evidence of persons visiting and/or using the premises. The recorded comments involved persons passing the premises, but not visiting them, and having no direct trading involvement with them."

27. Moreover [see paragraph 34 of the decision letter] the evidence of the claimant's witnesses had to be placed in the context of the contradictory evidence of the third parties, Ms O'Connor and Mr Sayers.
28. I accept that the Inspector might have formed the view that the proper inference to be drawn from the other invoices, even though they did not specifically refer to car repairs being carried out by Scanlon Autos, was that Scanlon Autos was in fact engaged in car repair activity at the premises; for example, fitting the tyres or the exhausts referred to in the invoices relating to those items.
29. That is not the appropriate test in an appeal under section 289. To make good the claimant's perversity challenge Mr Wald has to establish not merely that such a conclusion would have been open to the Inspector, but that it was the only conclusion reasonably open to the Inspector on the totality of the evidence.
30. That is a very high hurdle and, in my judgment, the claimant does not begin to surmount it.
31. The Inspector drew the threads together in paragraph 35 of the decision letter. Whilst he might have reached different conclusions on the totality of the evidence (including the invoices), it cannot be said that the conclusions set out in paragraph 35 were not open to him upon the evidence.
32. The Inspector did not disregard the remaining 12 invoices; he carefully considered all of the 14 invoices, and Mr Waldld did not submit that there was any factual inaccuracy in the Inspector's analysis of their contents in paragraphs 35 and 31. Rather he criticised the conclusions/reached/inferences drawn by the Inspector from the documents so described.
33. The conclusions to be drawn from those documents were pre-eminently matters of judgment for the Inspector in light of all the remaining evidence.
34. It will be noted that all but three of the invoices addressed to "Scanlon Autos" were dated between October 1994 and November 1999. In view of the evidence of Mr Teahan (that Mr Tom Scanlon had left Hassop Road 18 months before Mr Teahan had begun his own business in 1994, see paragraph 15 of the decision letter), the Inspector was entitled to observe that there was a "... further layer of doubt about the principal case being advanced by the appellant."
35. In addition, in the light of the evidence given by Mr O'Reilly himself as to the fact that the premises had been unused for a period before he purchased them in 2000, the Inspector was entitled to observe that the dating of the 11/11/99 invoice, "... was itself problematic."
36. In the light of all this evidence the Inspector's conclusion, that the claimant did not discharge the onus of demonstrating that there had been a continuous use of the premises for car repairs for a 10 year period between February 1994 and February 2004, cannot sensibly be described as perverse.
37. The claimant's principal complaint was that the Inspector had acted unfairly in concluding that the invoices did not demonstrate such a continuous use for 10 years.
38. In a witness statement, Mr Selwyn, the claimant's solicitor, said:

"8. The question of whether or not the invoices submitted provided evidence of the contended user, namely a car repair business (or some lesser user) was not raised by either party or by the inspector during the inquiry.

"9. Had it been so raised the Claimant would have had the opportunity to respond through his oral evidence and by the submission of further invoice evidence capable of putting the matter beyond doubt. The appended examples of such further invoice show the type of evidence which the Claimant would have submitted had he been alerted, whether at the inquiry or subsequently but prior to the issuing of the decision letter, to the fact that the inspector was in any doubt as to this issue."

39. The grounds of appeal contend that the Inspector's analysis of the invoices was "an unexpected point," and that if the Inspector proposed to rely on his analysis of the invoices, the claimant should, in fairness, have been given an opportunity to deal with the Inspector's concerns.
40. In support of this submission, Mr Waldld relied upon the well known case of Fairmount Investments Limited v Secretary of State for the Environment [1976] 1 WLR 1255.
41. In that case the issue before the Inspector was whether certain properties should be demolished as unfit for human habitation or whether they were capable of being refurbished.
42. The acquiring authority did not suggest that settlement was continuing or that the foundations of the properties were so defective as to make rehabilitation unviable. Indeed, the foundations of the properties were not mentioned at the inquiry.
43. However, on his site visit, the Inspector noticed that a "tell-tale" had been sheared through. From this indication he concluded that the foundations were inadequate and, because of that and other defects, that refurbishment was not a financially viable proposition.
44. The Secretary of State accepted the Inspector's recommendation and confirmed the Compulsory Purchase Order. The Court of Appeal quashed the Order and the Secretary of State appealed to the House of Lords.
45. In his speech on page 1265, Lord Russell of Killowen said this:

"For the Secretary of State it was in substance submitted that the question of stability and settlement had been raised, and therefore Fairmount should reasonably have anticipated all possible causes by leading evidence directly as to the state of the foundations; consequently it was not right to say that Fairmount had been deprived of the opportunity, as would have been the case, had the inspector at the hearing cast doubt on the foundations but refused to hear evidence designed to correct his doubt.

"This submission for the Appellant appears to me to be at the core of this appeal, and, my Lords, I do not, in the circumstances of the case that I have rehearsed, accept it. I entirely accept that such an inspector, in a case such as this, is not merely trying an issue or issues between the local authority and the objector owner and may, from his professional experience, supply deficiencies in the case as presented by the local authority. I equally accept that he is not bound to accept as established a contention in evidence for the objector owner simply because it is not, or is not adequately, challenged or contested on the part of the acquiring authority at the hearing. Part of his function lies in his own knowledge of the subject. Nor would I wish to introduce into procedures such as this -- which include, prior to report, his inspection of the site -- a rigidity more appropriate to a private issue to be decided by a judge; and in that connection I do not believe that a 'view' by a judge is to be equated in any way with such a site inspection by such an inspector, a possibility which (it was said) might have been in the mind of the Court of Appeal in the instant case.

"But in this case I am unable, consonant with the essential principles of fairness in a dispute, to uphold this compulsory purchase order. All cases in which principles of natural justice are invoked must depend on the particular circumstances of the cases. I am unable, my Lords, in the instant case, to generalise. I can only say that in my opinion, in the circumstances I have outlined, Fairmount has not had -- in a phrase whose derivation neither I nor your Lordships could trace -- a fair crack of the whip."

46. Did the claimant in the present case have a "fair crack of the whip?" In my view, there can be no doubt that he did.
47. Unlike the foundations in the Fairmount case, which had not been mentioned at all at the inquiry, the invoices were not merely mentioned at the inquiry but specifically introduced into evidence by the claimant as part of his ground (d) appeal.
48. The claimant was professionally represented by counsel, instructed by solicitors and by a planning consultant. He would thus have been made well aware that, in the case of a ground (d) appeal, the onus was upon him to establish his case on the balance of probability.
49. He had the opportunity to say whatever he wished about the invoices and what inferences, if any, should or should not be drawn from them.
50. In Fairmount, Viscount Dilhorne said this at page 1260-E:

"It was on account of his belief as to the inadequacy of the foundations that the inspector, taking that into account with the other defects, ruled out rehabilitation. So it appears that the inspector attached great weight to a factor which formed no part of the council's case, of which the respondents had not been given notice and with which they had been given no opportunity of dealing."

51. Although the invoices formed no part of the second defendant's case at the inquiry, the claimant's complaint is that the Inspector declined to attach great weight to a factor which had formed part of the claimant's own case.
52. The invoices were not mentioned in Mr O'Reilly's witness statement presented at the inquiry. As noted in the decision letter, Mr O'Reilly supplemented that witness statement by oral evidence. The Inspector says, in his witness statement, that:

"2. The claimant introduced the documentary evidence at the start of the hearing. As far as I am aware they had not been made available to the 2nd Defendants before the hearing and were placed before me as evidence that had come to light.

"3. I was not informed that there was any other documentary evidence that could be added to nor was I asked at the hearing whether I was satisfied if this evidence was sufficient for me to form a view on the continuous use. I was not informed that these were 'examples' of evidence, with other evidence available if I wished. The cases were presented on both sides as the full cases and evidence which the parties wished to put forward, as one would expect.

"4. Mr O'Reilly informed me that he found the evidence in the garage after he bought the garage in 2000..."

53. In the decision letter the Inspector fairly recorded the submission, made on behalf of the claimant, that:

"This was solid evidence demonstrating beyond reasonable doubt a continuing commercial use of the appeal site at the respective dates."

54. See paragraph 18.
55. It could reasonably have been anticipated that the Inspector would not simply take that submission at face value but would conscientiously analyse the evidence and consider it in some detail.
56. Having carried out that exercise the Inspector did not accept that the invoices provided such "solid evidence", for the reasons he set out in paragraphs 30 to 32 of the decision letter.
57. I do not accept that there was any unfairness in that process. The Inspector had to consider the evidence as a whole, he was not required to canvass what would necessarily have been his provisional views about the invoices with the claimant.
58. Whether or not an appellant has been given a fair crack of the whip will depend very much on the particular circumstances of the case. (See Fairmount).
59. In the present case, there was no suggestion before the Inspector that the invoices submitted were merely examples of a much larger number of documents. The position might have been different if, for example, Mr O'Reilly had made it clear that, in order to reduce the amount of documentation, he was producing only a small representative sample of invoices and that more invoices were available if required.
60. If the Inspector had then, without raising the issue at the inquiry, commented adversely on the limited number of the invoices, saying that such a limited number did not suggest any significant degree of commercial use over a 10-year period, the claimant could legitimately have complained that such a comment was unfair, but that was not the case here.
61. Although further invoices have now been produced in these proceedings, no explanation has been given as to why they were not produced before the Inspector. It is not even clear whether they were in fact available to be produced during the course of the inquiry, or whether they have been subsequently discovered by the claimant who, with the benefit of hindsight, no doubt feels that he might have said more about this aspect of his case.
62. The claimant emphasises the second defendant's acceptance of the proposition in cross-examination that, if they related to the appeal premises, the invoices were "compelling evidence" of the use of the premises for car repairs during the 10-year period.
63. However it is important to bear in mind that Ms Freeman was not claiming to have any direct knowledge herself of the use of the garages between 1994 to 2004; she was merely setting out the inference that she would have drawn from the invoices.
64. The Inspector was not bound to accept her view as to what conclusions should be drawn from the invoices if they related to the site. He had to exercise his own judgment (see the speech of Lord Russell at page 1265-F of Fairmount). Moreover the Inspector had to form that judgment in the light of the totality of the evidence, including the evidence subsequently given by the third parties. An enforcement notice appeal is not to be equated with private litigation between two individuals. (See, again, the speech of Lord Russell).
65. The position might have been different if, for example, Mr Scanlon of Scanlon Autos had given evidence. It might then have been unfair not to have asked him, for example, "What does the invoice in respect of the tyre relate to: were you buying the tyres for a car that you were proposing to sell or were you buying the tyres for a car that you were repairing?"
66. Unfairness might have arisen, if no questions had been put to Mr Scanlon, because he would have been able to provide an answer which might have resolved the uncertainty.
67. However, that was not the case with the witnesses who were called on behalf of the claimant. Apart from Mr O'Reilly himself, none of the other three witnesses professed any knowledge of the invoices. Mr O'Reilly merely said that he had found the invoices when he acquired the property in 2000.
68. He did not claim to have any greater knowledge, or understanding, of them. Had he been asked about the invoices in any greater detail, he would simply have been inviting the Inspector to draw certain inferences from the invoices.
69. The Inspector well understood what inference the claimant was asking him to draw from the invoices. Namely, that they were "solid evidence demonstrating beyond reasonable doubt a continuing commercial use of the appeal site ..."
70. Although he understood that this was the claimant's case, the Inspector, having analysed the documents, did not accept it.
71. The real complaint, as it emerged during the course of oral submissions, is not that any of the claimant's witnesses could sensibly have been asked any questions (for example, "What were the exhausts used for?") about the invoices, but that if the Inspector had raised his doubts, more invoices could have been produced to resolve those doubts.
72. The difficulty with that submission is that the claimant, who was professionally represented, had every opportunity to place as much or as little invoice evidence as he thought fit before the Inspector at the inquiry. There was nothing to alert the Inspector to the possibility that if he asked Mr O'Reilly questions about the invoices then Mr O'Reilly might have been able to produce further relevant invoices.
73. If the further invoices were relevant, and were available to be produced, the question has to be asked: why was that not done? There has been no satisfactory answer to that question during the course of this appeal.
74. For these reasons, and I am satisfied that there was no unfairness in the course adopted by the Inspector. It could and should reasonably have been anticipated that the Inspector would wish to consider the invoice evidence very carefully. For example: what was the import of the invoice in 1994 for stationery, did that suggest that any car repair use was being carried on at the premises? And what was the import of the invoice addressed to Scanlon Autos, on 11th November 1999, when, on the evidence of both Mr Teahan and Mr O'Reilly, Mr Scanlon had long since departed from the premises?
75. When putting the invoices forward, as part of his case, the claimant had the opportunity to say whatever he wished about them and to make submissions as to what inferences should be drawn from them.
76. Having considered the submission made on behalf of the clamaint, the Inspector did not accept it. I can see no unfairness in that. For these reasons, this appeal must be dismissed.
77. Thank you.
78. MR AUBURN: My Lord, I have an application for costs.
79. MR JUSTICE SULLIVAN: Yes. I have received a breakdown this morning. Have you had any discussion with Mr Waldld about this?
80. MR WALD: My Lord, yes, the principle is not contested, there is one figure that was contested and that was the 7 hours at the top of the second page, "Work Done on Documents." The file was prepared by the claimant in these proceedings and the time estimate for your Lordship was 45 minutes for the reading; so it is suggested that that be halved.
81. Other than that, there is no dispute on principle.
82. MR JUSTICE SULLIVAN: What would that knock it down to, if that was done?
83. MR WALD: £2,800, roughly speaking.
84. MR JUSTICE SULLIVAN: That is the area of contention, in so far as there is a contention about that; shall I just ask Mr Auburn what he wants to say about that?
85. MR AUBURN: If I can explain to you what that comprises. You will see that all the other figures are very moderate indeed. The work done on documents comprises the large part of my instructing solicitor's preparation of the case from start to finish, including preparation of the measured advice to the paying inspectorate, looking at all the evidence and advising whether it should be defended.
86. There was a witness statement from the Inspector and there had been liaison with the Inspector on that; the witness statement was useful in deciding the case.
87. There was a claim of a brief level of justice, a procedural claim, so we would rather get a witness statement and it was useful on the example points whether the documents were merely examples or not; you needed to know that to decide the case.
88. The work done on documents also includes the writing of instructions to counsel and there would have been other work in relation to the bundles, setting out the various people to liaise with in the proceedings and sending it out. That is where the 7 hours comes from; it is a large part of the preparation of the case although it is under its head.
89. The final point I will say is that the overall figure, I would submit, is very low and indeed it is about a third of the appellant's costs, on the understanding that it is often cheaper to be defending, rather than bringing an appeal, it is still substantially smaller.
90. MR JUSTICE SULLIVAN: I had not in fact seen the claim summary costs, I think. I do not know whether there are any particular turns on that? No.
91. I think Mr Auburn, doing the best I can on these figures, I do not think either of you can complain too much if we took a nice round figure of £3,000.
92. The appeal is dismissed, the claimant is to pay the first defendant's costs and those costs are claim summary in the sum of £3,000. Thank you both.