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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 >> Snow v Secretary of State for Communities and Local Government [2015] EWHC 709 (Admin) (11 February 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/709.html Cite as: [2015] EWHC 709 (Admin)

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

		Royal Courts of Justice Strand London WC2A 2LL
		Wednesday, 11 February 2015

(1) THE DEPUTY JUDGE: This is an application made by the claimant, Michael John Snow, under section 288 of the Town and Country Planning Act 1990 ("the Act") against the decision of an Inspector Mr D R Cullingford ("the Inspector") of 29 January 2014 following an appeal conducted pursuant to the written representations procedure.

(2) By the decision the Inspector dismissed the claimant's appeal against the decision of the second defendant, Mansfield District Council, of 20 November 2012 refusing to grant planning permission under section 73 of the Act for the development of land without complying with the conditions subject to which a previous planning permission was granted.

(3) The second defendant has played no active part in the present proceedings, the claimant appeared in person and the first defendant was represented by Ms Leventhal of counsel. The development was described as:

i. "Seeking to change the opening time for public from 9.45 am to 9.15 am."

(4) The site in question is an old factory building amongst industrial units at Botany Commercial Park, in which an indoor car boot sale takes place on Sundays. The claimant has been operating the car boot sale for some 20 years.

(5) The relevant condition of the planning permission so far as these proceedings are concerned, in relation to the planning permission granted in 2006, provides as follows:

i. "Summary of reasons for decision. The proposed use is considered to be acceptable on the basis of the restricted hours of operation and conditions imposed, in the interests of the amenities of the occupiers of adjacent dwellings. Previous temporary permissions have been operated in a satisfactory manner (sic) and it is now considered that a permanent position should be granted.

(6) There shall be no setting up or associated activities of car booters before 08.00 and no opening for sales to the public before 09.45 or after 14.00 on Sundays. Reason: to protect the amenities at present enjoyed by the occupiers of nearby residential properties.

(7) Note to applicant. All activities in association with the hereby approved car boot sale shall cease by 15.00 hours."

(8) Subsequent to this the claimant made three applications for variation of the time restrictions:

i. "a. An application dated 13 December 2006 seeking permission for 'car booters' to access the site from 7.30 am as opposed to 8.00 am; that application was refused by the Council on 19 July 2007 and dismissed on appeal on 14 April 2008.

ii. b. An application seeking permission for the site to be opened to members of the public at 9.15 am as opposed to 9.45 am; permission was granted for a limited period ending on 30 June 2009 ...

iii. c. An application dated 19 November 2009 again for permission for the Site to open to members of the public at 9.15 am as opposed to 9.45 am; that application was refused by the Council on 20 January 2010 and dismissed on appeal on 2 August 2010.

(9) In essence, the claimant sought to establish the second variation to which I have just made reference permanently.

(10) As already observed, the second defendant refused the application on 20 November 2012. Following that, on 26 November 2012, the second defendant served a Breach of Condition Notice as there had been a continuing failure to comply with the terms of condition 1.

(11) In determining an application or appeal a decision-maker is required to do so in accordance with the development plan unless material considerations indicate otherwise, section 38.6 of the Planning and Compulsory Purchase Act 2004. It is well established law that a challenge may only be brought on the grounds of an error of law, grounds upon which judicial review may be brought, not on the planning merits. See, for example, the judgment of Sullivan J, as he then was, in R(on the application of Newsmith Stainless Steel Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74 where he said this:

i. "(6)An application under section 288 is not an opportunity for review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

ii. (7) In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? Et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable."

(12) In the same case Sullivan J also made it clear that a section 288 challenge was not an opportunity to advance an argument which was not advanced before the Inspector, saying at paragraph 16:

i. "Whilst I accept that there is no general rule preventing a party from raising new material in a section 288 application, it will only be in very rare cases that it would be appropriate for the court to exercise its discretion to allow such material to be argued. It would not usually be appropriate if the new argument would require some further findings of fact and/or planning judgment (matters which are for the Inspector not the Court)."

(13) The crux of this case, as set out in the claimant's grounds of challenge, is that the claimant seeks to argue that the Inspector misinterpreted condition 1 as prohibiting the public from entering the site before 9.45 am when, in fact, he suggested that it permitted admission before 9.45 and prohibited only sales before that time. That is not a matter which the claimant raised in his written submissions to the Inspector, nor, indeed, to the Council, in this and previous applications.

(14) At paragraph 5 of the decision letter the Inspector summarised the claimant's submissions as follows:

i. "The claim now is that this proposal would accord with the key aim of the 'new' planning policy propounded in the Framework (NPPF); in particular, that it would foster sustainable development and reflect the Government's commitment to encourage economic growth and local business. In the light of that guidance and evidence both from a previous 'trial run' (when the start of selling operations at 09.15 hrs elicited no objections) and from a recent permission (granted by the neighbouring Chesterfield Borough Council) for car boot sales to commence at 08.00 hrs in spite of opposition from the Environmental Health Officer and local people, permission should now be granted for the earlier start time sought here. There are no formal objections from neighbours to the current proposal. On the contrary, several letters from local people, including a petition, positively support the earlier start of selling operations on the grounds that it might ease initial and subsequent 'congestion' while also reducing expectant customers congregating in anticipation of 'doors opening'."

(15) In my judgment, it is not appropriate to allow the claimant to introduce a new argument and in applying the principles set out in Newsmith I decline to do so. In any event, the defendants argue that the claimant's suggestion that the Inspector misinterpreted condition 1 is without foundation.

(16) In my judgment, the proper interpretation is that it prohibits admission of the public before 9.45 am, not simply sales, as opposed to sellers, "car booters", who arrive earlier to prepare their pitches before that time. As the Inspector recorded in the decision letter, the application was "to change the opening time for public from 9.45 am to 9.15 am." There is no merit in the claimant's suggested approach to interpretation.

(17) Furthermore, it is clear from a reading of the decision letter that the Inspector reached his conclusions on the basis of the available evidence and reached a conclusion which was properly open to him and I refer now to the relevant paragraphs from the decision letter:

i. "(6)I have carefully considered those matters. It seems to me that reasonable balance must be struck between the commercial benefits of an earlier start to selling operations and the amenity of nearby residents. The Framework seeks to do just that. It does not aim to encourage untrammelled economic development. Indeed, one of its 'core planning principles' is that planning decisions should 'always seek to secure ... a good standard of amenity for all existing and future occupants of land and buildings'. In this case, some dwellings stand immediately beside the industrial estate and a previous proposal to extend 'selling times' in 2010 did elicit objections. The concern was that the 'pause' between the 'setting up' activity (beginning at 08.00 hrs) and the on-set of selling to customers at 09.45 hrs would be diminished by an earlier start to selling operations at 09.15 hrs, resulting in a practically continuous period of activity throughout the whole of Sunday morning from this car boot fair. I agree with my colleague (in the 2010 appeal) that residents on this suburban estate might reasonably expect some relief from the noise and activity emanating from commercial operations on Sunday mornings. And, indeed, the current time limits imposed by the disputed condition have been upheld in the two previous appeals cited.

ii. (7) In any case, I see very little tangible benefit in beginning selling operations half an hour earlier. Clearly, the enterprise attracts a large number of 'car booters' and many customers under the current regime. And, although revenue would almost certainly be generated in the extra half hour of selling currently sought, no evidence is adduced to show that the success of the enterprise or the revenue generated would be significantly enhanced by the change envisaged. Moreover, as sales continue over more than a four hour period, ample provision is made for customers to search, sample and seize those items that specially appeal to them. Of course, I appreciate that aficionados of car boot fairs might well want to be the first on the scene to root around for the best bargains or to acquire some illusive or unusual article. But, I agree with my colleagues that an earlier start time is likely to simply entail the earlier arrival of such people; a 'staggered' arrival would imply being 'second at the stall' for some, who would thus be confined to a choice from only the 'second best' items there. Hence, I do not agree that an earlier 'opening time' would be likely to easy 'congestion' or reduce customers congregating in anticipation of 'doors opening' at the on-set of selling operations.

iii. (8) I note the references to permissions for car boot fairs at Chesterfield Football Club and at Mansfield Civic Centre. The characteristics of neither location are comparable to those at Botany Commercial Park. Moreover, not only is the Chesterfield case a matter for a different local planning authority, but also it involved the transfer of an existing car boot fair to that football stadium.

iv. (9) Taking all those matters into account, I consider that the careful balance struck by the Council, evident in their determination of this and previous applications, is appropriate here. It reflects the balance endorsed by the Framework in providing scope to realise an economic opportunity while ensuring some relief for residents from the consequent noise and disturbance on Sunday mornings. The proposal, in upsetting that balance by starting selling operations half an hour earlier, would exacerbate the disturbance likely to be endured by nearby residents, as indicated above. Hence, and in spite of considering all the other matters raised, I conclude that this condition should not be varied. It follows that this appeal should be dismissed."

(18) In essence, the claimant disagreed with the Inspector's conclusions. He submitted that the decision was unlawful in the face of support from local residents and that his approach flew in the face of localism. As is apparent from the decision letter at paragraph 5, the Inspector clearly had in mind the fact that there were no objections from neighbours to the current proposals and that, indeed, there were letters of support and a petition in support. At paragraph 6 of the decision letter the Inspector made it clear that he had carefully considered those matters.

(19) As I have already observed, an appeal to this court lies not on the planning merits but on grounds of law only. There is no legal basis to interfere with the Inspector's decision. He clearly dealt with all matters raised by the claimant and there is nothing to demonstrate an error of law.

(20) For all of these reasons I am satisfied that there is no error of law on the part of the Inspector in reaching the decision he did. I dismiss the claim.

(21) MS LEVENTHAL: Thank you, my Lord. I am hoping that a costs schedule has reached your Lordship.

(22) THE DEPUTY JUDGE: I do not believe that it has.

(23) Have you had a costs schedule, Mr Snow?

(24) MR SNOW: It was on the email at work. Because I came down yesterday.

(25) THE DEPUTY JUDGE: Is that another spare copy?

(26) MS LEVENTHAL: Yes. (Handed).

(27) THE DEPUTY JUDGE: You have that one.

(28) MS LEVENTHAL: My Lord, we do say that the Secretary of State should be entitled to his costs in principle and, in my submission, there can be no real objection to the principle.

(29) As to the quantum, you will see that the total sum comes to £8,119. In fact, there was a previous Costs Order.

(30) THE DEPUTY JUDGE: There was, from Mr Ockleton.

(31) MS LEVENTHAL: So that needs to be deducted and that was £1,000, I believe. I do not have a copy of the Order in front of me. I understand that has been paid in full.

(32) THE DEPUTY JUDGE: Mr Snow you recall, do you not, that on the previous Order there was £1,000, which I assume you have already paid?

(33) MR SNOW: Yes.

(34) MS LEVENTHAL: So effectively the total then should be £7,119.

(35) I should note, just so the court is aware, that Mr Snow does have a number of outstanding Costs Orders in favour of the Secretary of State in relation to different claims. So we are quite keen to get a Costs Order which is paid within 14 days in order to ensure that this does not run and run like some of the other Costs Orders have. I simply raise that so that the court is aware of it but I would ask for an Order in those terms, my Lord.

(36) THE DEPUTY JUDGE: Yes.

(37) Do you understand, Mr Snow, that costs follow the event in cases of this nature?

(38) MR SNOW: Yes.

(39) THE DEPUTY JUDGE: So in terms of the principle of costs is there anything you want to say as to why you should not pay the costs? I am not talking about the figure at the moment, I am talking about the principle of paying costs.

(40) MR SNOW: It is the trying to have the right to, sort of -- it does not want to be financially, financially -- to stop people coming here.

(41) THE DEPUTY JUDGE: No, but those are the rules and if you bring a case and you do not succeed then the other party --

(42) MR SNOW: I would ask not to pay this in 14 days.

(43) THE DEPUTY JUDGE: Let us take it in stages. I hear what you say but the rules are clear that the losing party pays.

(44) MR SNOW: Yes.

(45) THE DEPUTY JUDGE: In terms of quantum, the hourly rates do not seem to me to be out of line with what one would expect to see being charged for work of this nature.

(46) The only area I was concerned about, Ms Leventhal, was the 8.1 hours attendance on others.

(47) MS LEVENTHAL: I had anticipated that might raise an eyebrow with the court. Those sitting behind me have only recently taken over so I am not able to give you much detail on the detail of that other than to say that particularly because of the nature of the adjournment and various points that came up there was a need to correspond, I think, quite heavily, with Mr Snow, but other than that --

(48) THE DEPUTY JUDGE: It seems a large amount.

(49) MS LEVENTHAL: I would not dissent from that. It does seem high. So I am more than happy for your Lordship --

(50) THE DEPUTY JUDGE: Mr Snow, I am looking at points that you might have otherwise made. I have to take a view on this on what is called a summary assessment. In some cases there is a much more detailed process but it is inappropriate for these sorts of figures. Looking at the case overall it seems to me that most of the time claimed seems in line with the nature of the case and the work that was necessary but I do think the 8.1 hours is on the high side and unless Ms Leventhal seeks to persuade me otherwise, or you do, I was proposing to allow half of that amount. So that would reduce the bill by just short of £650.

(51) MR SNOW: I have not had a chance to study this in any ...

(52) THE DEPUTY JUDGE: If you want a moment to look at it, do. It is basically a breakdown of the work done, the hourly rates charged by the various people involved in the case and, as I say, the one which Ms Leventhal anticipated might attract some comment was the 8.1 hours.

(53) MR SNOW: What is that in relation to?

(54) THE DEPUTY JUDGE: That is, as it is described, in relation to letters out and emails. So I am minded to reduce that by four hours, by 4.1 hours actually, to four hours. But in other respects it seems to me that the figures charged were appropriate.

(55) MR SNOW: The costs schedule I got initially was £5,000 previously.

(56) THE DEPUTY JUDGE: Yes. Then the case was adjourned so there has been more work to do to prepare for today's hearing.

(57) MR SNOW: I think the skeletal argument is exactly the same.

(58) So I do not see any reason for any addition to that. I think the first lot was about £5,600 and there is no difference to the skeletal argument which I got first off which came last year.

(59) MS LEVENTHAL: Mr Snow is correct to say that the skeleton argument was prepared for the last hearing but that is encompassed within the £1,000 reduction. There is, of course, a need to attend today and, of course, to do some refresher preparation. I understand there has been a need to liaise with Mr Snow on various things to ensure that the papers were appropriate before the court and so on and so forth and that the documentation was provided.

(60) MR SNOW: I think within that scenario I sent all the papers anyway by email and by letter within the three weeks. I do not think there is much need to go above that figure which was previously sent to me.

(61) THE DEPUTY JUDGE: Ultimately the decision is for me.

(62) MR SNOW: Sorry, yes.

(63) THE DEPUTY JUDGE: I hear what you say. I take the view that across the piece the bill is appropriate with the exception of the item that I have mentioned and I am going to reduce that by 4.1 hours. Ms Leventhal's solicitors will recalculate, I am sure, while we are here and then the £1,000 which has already been paid will be deducted. Because it is a Treasury Solicitor bill of course there is no VAT.

(64) MS LEVENTHAL: That is right. So we need to reduce the £1296 figure, that needs to be reduced to £640, and I am about to be told what that is and then we would need to reduce the total figure by that amount. So the total figure should be £6,463. That represents the £7,119 figure reduced by 4.1 hours worth of time.

(65) THE DEPUTY JUDGE: £6,463?

(66) MS LEVENTHAL: Yes.

(67) THE DEPUTY JUDGE: I am not making any order in respect of time to pay, the default provisions will apply, but I think questions of applications for more time to pay or enforcement are matters for another day. I am simply ordering that the claimant is to pay the defendant's costs, which I have summarily assessed in the total sum of £6,436, giving credit for the £1,000 which has already been paid.