Neutral Citation Number: [2009] EWHC 2186 (Admin)

CO/1207/2009 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 11th June 2009
 
B e f o r e: 

HIS HONOUR JUDGE MACKIE QC
(Sitting as a Judge of the High Court)
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Between: 
THE QUEEN ON THE APPLICATION OF WOOD 
Claimant

v 

SECRETARY OF STATE FOR COMMUNITIES 
Defendant 
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Computer‑Aided Transcript of the Stenograph Notes of  
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The Claimant appeared in person
Mr C Banner (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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J U D G M E N T
1.	HIS HONOUR JUDGE MACKIE:  This is a claim by the claimants, Mr and Mrs Wood, against the Secretary of State and East Hampshire District Council, under section 288 of the Town and Country Planning Act 1990.  They seek to challenge the decision of the Inspector who determined their appeal against the refusal of a planning application by East Hampshire.  That application had sought permission for the development of the claimants' property, Willow Cottage, Binsted in Hampshire without the claimants having to comply with a condition imposed earlier.
2.	In about 2004 the claimants were granted planning permission.  They demolished an original cottage and erected a larger replacement.  On 7th December 2005 an enforcement notice was issued in respect to what was said to be the new unauthorised dwelling, requiring amongst other things it being demolished. The claimant successfully appealed the enforcement notice following an inquiry.  The inspector issued his decision on 16th April 2007.  It is accepted by the claimants that this dwelling is materially different to that permitted by the 2004 permission and was unauthorised.  That is what the inspector said.  He dealt with various other matters before allowing the appeal, quashing the enforcement notice and granting planning permission for the previously unauthorised dwelling but subject to a condition known as condition 5 relating to the removal of the staircase.
3.	In December 2007 the claimants applied for a fresh planning permission offering instead of compliance with condition 5 offering a unilateral undertaking under section 106 to limit the use of the second floor and requiring the removing of the roof lights.  That application was refused by the council and the matter came before the inspector, whose decision is the subject of the appeal today.
4.	In his decision of 5th January 2009 Mr John Chase, the inspector, dismissed the appeal of 5th January 2009.  He identifies at paragraph 5 the main issue:
"As indicated above, the need to exclude the upper floor from living accommodation was fully dealt with in the previous appeal, and the merits of this did not form part of the representations in the present case.  I consider that the main issue is whether the deletion or modification of Condition 5, or its replacement with a unilateral undertaking, to allow a staircase to serve the second floor level, would meet the objective of providing a range of dwelling sizes in the countryside, as referred to in Local Plan Policy H16."   
So it is clear, on which issue the inspector had his eye.  He then goes on to set out in paragraphs 6, 7 and 8 his reasons for reaching the conclusions which he did.  Summarising he felt the roof lights were relatively small and would not determine the use of the room for habitation.  The proposed unilateral undertaking would in his judgment not overcome problems of monitoring and forcing the use and floor space.  He says at paragraph 8: 
"As for the appellants' reasons for keeping the staircase, I acknowledge that it is purpose built joinery, integral with the house construction.  However, it was installed without permission and at the owners' risk and, despite some inconvenience and cost, it would be possible to carry out the work of removing and reinstatement without detriment to the remainder of the property. With respect to the ease of access, I appreciate the benefit of a staircase by comparison with a ladder. However, a loft hatch is normal in the majority of dwellings, and would be satisfactory for occasional access to a storage area.  This may be more difficult as the owners become elderly or infirm, but their circumstances in this regard are not so exceptional as to outweigh the other considerations, and access to loft storage would not be a fundamental requirement for maintaining satisfactory living conditions."  
He then concludes in paragraph 9 that condition 5 meets the tests or the relevant circular and it is necessary to enforce them.
5.	Before turning to the particular challenges made by the claimants, it is important to be clear what a claim under section 288 actually is.  It is a claim that may only be brought on judicial review grounds against the decision of the inspector.  It will often be the case that the decision of an inspector is different from what a claimant expects.  Inspectors from time to time reach decisions that other inspectors would not.  But that is not the point.  The question put broadly, is whether the alleged flaws in the inspector's decision are outside the range of generous discretion which the courts recognise is open to an Inspector.  As counsel for the Secretary of State points out there are some well‑known legal principles.  The first inspector's decision should be approached with a degree of flexibility and not read like a statute or contract.  Secondly, the courts accord substantial reference to the planning judgment or inspectors and a section 288 challenge is not an opportunity to a review of an inspector's decision.
6.	The grounds of appeal put forward by Mr and Mrs Wood, at least in their written grounds of claim, are these.  The first refer to paragraph 14 of the first decision in which the inspector accepts that the original plans showed a staircase giving access to the roof and planning permission is granted to show the staircase gives access in section A.  The claimant argues that in paragraph 8 of the second appeal decision the inspector incorrectly asserts that the staircase to the second floor has been shown in the plans to which the original planning permission has been granted and it relies on that as a basis for decision.
7.	But in fact the first inspector is referring to the approved plans under the 2004 permission the staircase and up to the second floor as shown.  However, this permission was never implemented.  The claimants are also in error in submitting that the inspector says in paragraph 8 that no staircase to the second floor had been shown on the plans for which the original planning permission has been granted.  What he said at paragraph 8 was the second floor staircase "was installed" without permission and at the owner's risk. He was entirely correct.
8.	So as a matter of fact, there does not seem to have been an error.  Even if there had been, it does not seem that any such errors would have been at all material to the inspector's decision.  He was, as I have said earlier, concerned with a planning judgment about whether or not the deletion of modification of placing condition 5 met the objective to provide a range of dwelling sizes in the countryside as referred to in plan policy H16.
9.	The second attack on the inspector's reason is the submission of claimants that what he says in paragraphs 7 and 8 is "confused, prejudicial and predisposed".  The claim is not backed by detailed submissions.  As is evident from what I have read out from paragraphs 7 and 8, those passages are classical planning inspector's evaluations exercising judges from particular problems.  It may be that others will take a different view ‑ most obviously Mr Wood who is a professional man in this area as well as being a claimant.  That is not the point.  The Inspector is not "predisposed", he is giving reasons for his evaluation of the main considerations and explaining why he has formed a particular view.   
10.	The third point put forward by Mr Wood this morning is a submission that the house should properly have benefited from planning permission, as it did not differ materially from the plans and that the inspector's decision was somehow invalidated as a result.  But as is clear from what is said by the first inspector and the defendants themselves, this was simply not an issue before the inspector, Mr Chase.  There is no basis upon which the court could or should properly interfere over a matter which has not arisen before decision by the Inspector. 
11.	I recognise the attempts by Mr Wood to settle this but the material which is before the court in relation to that is not relevant to the central issue.  
12.	So for those reasons, I reject this application and the inspector's decision will not be quashed.
13.	MR BANNER:  My Lord, I am very grateful for that.  I do have an application for costs.  Does your Lordship have our schedule of costs? 
14.	HIS HONOUR JUDGE MACKIE  :  Have you a spare copy.  Have Mr and Mrs Woods seen this? 
15.	MR BANNER:  I think they have.  Your Lordship will see that it comes to an overall total of £5,034, which is subject to one qualification which I shall make in a moment which, in my submission, is both reasonable and proportionate, both having regard to the fact that the claimant is a litigant in person which inevitably leads to a respondent having to do a little more groundwork than is ordinarily the case and also having regard to the nature of the claim.  
16.	My Lord, one point I should say is that my ‑‑ it needs to be unadjusted somewhat down, because it was listed for two‑and‑a‑half hours and has been going for a jot over 1 hour and I think it is only fair for me to point out that fee for the hearing should be rounded down to the Treasury rate is £80 per hour so whatever your Lordship deems appropriate.
17.	HIS HONOUR JUDGE MACKIE:  For counsel?   I think he is getting a bargain.   
18.	MR BANNER:  Yes.  So, my Lord, that will need adjusting so far a fraction over 1 hour.  Other than that, I think actually 1 hour attendance at the hearing ‑‑ my solicitors at half hour, in a sense that could be rounded up a jot.  Point that out as a matter that the claimant is a litigant in person.  Unless you want me to go through line by line.  
19.	HIS HONOUR JUDGE MACKIE:  Let me discuss this with Mr and Mrs Wood.  Mr Wood what do you say? 
20.	THE CLAIMANT:  Your Honour, having read the defendant's skeleton arguments, I did offer to settle immediately, only on one condition and that was to withdraw the statements which I felt they had not any proof of, which was that the building was materially different.  Because it does not say in any inspector's decision, or any of the papers that have been presented, and I offered to do that before they had spent, first of all, this morning here, and secondly, I offered that I think on 4th June.
21.	HIS HONOUR JUDGE MACKIE:  Take it out of what?
22.	THE CLAIMANT:  I asked them to withdraw the statement in their arguments because I felt it wasn't justified.  If they had withdrawn that we wouldn't have been here this morning.  We wouldn't have spent the time between the 4th June and today with various exchanges.
23.	HIS HONOUR JUDGE MACKIE:  Why was that so important to you.  It is only a skeleton argument? 
24.	THE CLAIMANT:  But it is presumably the position of the Secretary of State that the house is materially different and there is no‑‑ 
25.	HIS HONOUR JUDGE MACKIE:  Only for purposes of this hearing.
26.	THE CLAIMANT:  It is a statement which I felt was unreasonable and certainly not based either on the inspector's decision, on either of the inspector's decisions or any of the material that the defendants had before them.  I offered to withdraw from the appeal if they would just withdraw that statement, which was completely unfounded and we could have saved us a lot of time and trouble.
27.	HIS HONOUR JUDGE MACKIE:  What would have been the problem, if the document ‑‑ let me finish.  What would have happened if the document been submitted, no court would ever have seen the case?  What was your concern? 
28.	THE CLAIMANT:  A, they couldn't prove it, and B, I felt that it was prejudicial, both to any case that they might put in a future, but if they couldn't justify that statement, which they make fully over a whole page in those skeleton arguments, of their submissions and as background statements and, if it was so unimportant, I don't see why they couldn't have accepted to withdraw it.  The case would not have been heard.
29.	HIS HONOUR JUDGE MACKIE:  You brought this case and you decided to carry it through. I will see what answer they have.  What do you say about that? 
30.	MR BANNER:  My Lord, first point is the date of the letter is somewhat at the eleventh hour, 4th June which is last week, so apart from today's cost have been incurred.  The second point is to bear in mind that by letter of the same date, certainly my bundle, two pages on, there is an additional letter from the claimant, reiterating his points and saying he wants to call an expert witness et cetera.  Bearing in mind the covering letter to this offer does not have an explanation, just attached, so a somewhat mixed message and the agreement, of course, seeks the withdrawal of the statement and the essence that the development as built did not have planning permission.  That was the very nub of his claim.  In essence he was asking for us to agree the point which was at the heart of his claim.
31.	HIS HONOUR JUDGE MACKIE:  Thank you.  What about the amounts claimed.  Have you anything to say about that? 
32.	THE CLAIMANT:  I accept the amount except for the purposes of the additional costs involved in continuing with the hearing.
33.	HIS HONOUR JUDGE MACKIE  :  It is now my task to assess the costs.  Mr Wood says that he should not pay costs after the date that he made an offer to settle in the terms which he did.  While that may be a small thing for the claimants, the defendant was not under an obligation to alter the documents and make a concession relating to another matter.  All he had to do was defend this case.  Mr Wood has chosen to bring this case and carry it through. It is not the Secretary of State who brought it.     
34.	So far as the assessment of costs is concerned, it is sometimes difficult for the court to review costs when the paying party acts for itself.  Mr Wood has not challenged.  However the courts generally recognise the distinction between what largely is received from their clients and the slightly lesser standard sum which the loser has to pay.  I am going to reduce the figure to £5,250 payable within 14 unless the parties reach some agreement.  Thank you very much.