Baker, R (on the application of) v First Secretary of State

THE DEPUTY JUDGE: This is an appeal by Miss Baker, the owner and occupier of land at 8 Westfields Road, Acton, London, W3, against the decision of the defendant, the Secretary of State, made on 18th March 2003, upholding a decision of the London Borough of Ealing to compulsorily purchase the claimant's land pursuant to a clearance order made under the Housing Act 1985. The London Borough takes no part in these proceedings.

The right of appeal is provided by section 23 of the Acquisition of Land Act 1981 that provides that a person aggrieved by a compulsory purchase order can apply to the court to question the validity of the order on the ground that there was no power to make it, or a relevant requirement has not been complied with. It is common ground that as the Secretary of State, and all the previous decision makers in this matter, the London Borough of Ealing and subsequently the planning inspector, are public authorities. The power to make and confirm a clearance order, or a compulsory purchase order, has therefore to be exercised compatibly with the duties imposed on public authorities for decisions made after 2nd October 2000 by section 6 of the Human Rights Act 1998.

Briefly put, the claimant challenges the validity of the decision on the grounds that it violates her human rights. Both the right to respect for her home and private life, provided for under Article 8.1 of the European Convention on Human Rights, and the right to peaceful enjoyment of her possessions provided for by Protocol 1 and Article 1 of the Convention. Of course, both those rights are not absolute, as the terms of Articles 8 and Protocol 1, Article 1, make clear. They can be made to yield to the greater public interest in certain circumstances.

The debate in this case hinges on whether the Secretary of State, in adopting and endorsing the decision of the planning inspector, who in turn was satisfied of the council's case for compulsory purchase, has identified and explained the decision with sufficient clarity to enable the public authority to discharge the burden of justifying what is undoubtedly an interference with these rights, respectively of home and private life, and possession, occupation, and ownership of land, for compelling reasons of the public interest.

The primary facts can be identified shortly as follows: Miss Baker was originally the tenant of 8 Westfields Road under a long lease. She moved into occupation in May 1968 and has lived in the property as her home since then.

In February 1999 she acquired the freehold of the property, pursuant to her right to enfranchise under the leaseholder format 1967. The property is a semi-detached bungalow set with an expanse of garden and built as part of an interlocking estate of similar surrounding properties. She is now over retirement age.

Between 1990 and 1998 the local authority, the London Borough of Ealing, intervened on 11 occasions with notices served on the claimant under the Prevention of Damage by Pests Act 1949, the Public Health Act 1936, and the Environmental Protection Act 1990, requiring her to remove noxious accumulations of rubbish on her property that was said to have attracted rats and mice or other vermin. There is some dispute whether she complied with all of these notices or whether the local authority had to step in to give effect to them. It is unnecessary to determine that, although I note that in 2001 the council assessed that it had spent £5,000 plus in works in default which were registered as land charges.

This, however, is the background to the really critical event in this case and that is that in September 1998 there was a disastrous fire at the premises. The fire devastated the entire interior of the premises and removed the roof to the premises. In due course, the local authority inspected the premises and there is before the court a surveyor's report and photographs of the state of the premises. It is truly a devastating picture of premises which are a shell, filled with rubbish, and are clearly manifestly unfit for human habitation. It is a remarkable feature of this case that despite these appalling conditions Miss Baker has continued to effectively camp out in these premises in an unrepaired state and, of course, to date she would have lived through five winters without, it seems, any basic facilities.

The local authority's assessment was that it was unfit in every key respect of the statute; that there was no sanitation facilities and other matters going to the heart of an ability to live a normal life. It is unnecessary for me to recite in this judgment all those findings, because, essentially, the unfitness of the premises is not in dispute.

After this fire Ealing took a number of steps. It imposed an Environmental Protection Act notice on 17th November 1998 requiring works to essentially prevent the state of the premises damaging adjoining properties. It had appointed a surveyor in January 1999 who inspected the premises at their state then, and gave advice to the council. He noted that there was widespread cracking in the external walls, on both the external and internal faces, there were no metal fixings between the roof and the walls to provide stability of the construction, there appeared to be no connection between the external walls and the party wall, and his conclusions are:

In April 1999 the council served notice of intention to require the premises to be demolished. There was then a meeting with the claimant and the state of the premises and her plans for it were discussed. I note that the report provided by the council of that meeting indicates that she indicated her view that the council was harassing her and putting her under stress. She agreed that the property needed to be demolished and indicated that she would then wish to rebuild it. She was unable to satisfy the officers present that she had the necessary funds to do so. She also disagreed over the proposed timescales. Her proposal was that she would demolish the chimney stack forthwith and use the bricks to construct a garage. The remaining demolition would take place not less than 2 years hence when she would be ready to rebuild. The officers present indicated that this was unlikely to be acceptable and that the council would be progressing towards the service of a demolition order.

The matter was then referred to the council's Environment Committee in June 1999, and they took the view that the demolition order did not offer a long-term solution to the problem because, of course, it would not ensure rebuilding of the premises, and it requested further work with a view to pursuing the option of compulsory purchase.

There then follows what appears to be a period of hiatus in council activity, although clearly there were discussions going on with the claimant and members of her family, and expressions of concern as to her welfare at various times. There was also the service of at least another notice under the Prevention of Damage by Pests Act 1949 in August 1999, as it seems, once again, the property was filling up with rubbish.

Eventually, in May 2001, the council's cabinet reviewed the matter, pursuant to a full report by their staff, and decided that the most satisfactory course of action to deal with the unfitness of the premises was to make a clearance order, and, subsequently, if the property could not be acquired by consent, to make a compulsory purchase order.

In due course, having embarked upon that approach the relevant decisions were made fairly speedily. The notice of intention to include the premises in a clearance order was made in June 2001, the council's cabinet met and adopted that approach in September 2001, the council's resolution was adopted in October 2001, and they made the compulsory purchase order on 9th May 2002. The claimant objected to that, that led to a public enquiry before an inspector that was held in January 2003. On 6th February 2003 the inspector reported, and on 18th March 2003 the Secretary of State issued his decision upholding the inspector's report and recommendation that the compulsory purchase order be confirmed.

There is no doubt that the house is unfit for human habitation within the meaning of section 604 of the Housing Act 1985. It is also clear that both the structural condition of the property and the continued accumulation of rubbish in the premises have an adverse effect on adjoining residential occupiers. The state of the property was such that, in my judgment, if the clearance and compulsory purchase order was the only way of returning the property to a state of fitness for human habitation, and preventing it from continuing to pose a serious threat to the health of both the occupant and the immediate environment, it would have been amply justified in the public interest on compelling grounds.

The real debate is whether there were practical alternatives to the compulsory purchase route that could have been used to achieve the same result. The claimant suggests that there were, that they were not used, and the non use of these alternatives was not adequately explained or justified by either the council, the inspector, or the defendant. Particularly, it is said, a proper reasoned decision given on proportionality of the interference with the claimant's human rights was not provided by the Secretary of State in his decision letter of 18th March 2003. Paragraph 7 of that letter states:

Mr Colville says that this is a summary statement of a conclusion and not a reason for it. If those statements had stood alone I agree that there would be force in those submissions. But clearly they have to be seen against the context of the overall conclusions of fact and judgment in the inspector's reasoning and all the material that was before him, and that was adopted and approved by the Secretary of State.

During the course of the hearing it also became necessary to determine which particular circular guidance the local authority and the inspector were required to have regard to in order to make the assessment as to whether the compulsory purchase route was the most appropriate route to deal with the statutory unfitness. As the argument developed it became clear that there was some difference between the claimant and the defendant upon this issue. It was necessary to determine this issue because there is a duty on the local authority to have regard to statutory guidance issued pursuant to section 604A of the Housing Act 1985. That is relevant to the human rights issue in two ways.

First, the proper meaning and application of any relevant circular guidance is important because it goes to whether any interference with the rights of the owner and occupier is in accordance with law, a necessary step in any measure of justified interference with human rights under both Article 8 and Protocol 1. If the proper guidance was not taken into consideration then no question of compelling public interest could ever justify the interference, and a reviewing court would never reach the stage of whether the justification is made out on its merits. It is not sufficient, to be in accordance with the law, that the local authority and the Secretary of State have a power to act in particular circumstances. They must have exercised their power in accordance with the appropriate criteria for its exercise, laid down by the statute, or any guidance that the statute requires or permits the public authority to have regard to.

Secondly, of course, if the guidance has been properly taken into account and applied in the individual decision this will be highly material to the question of justification in the public interest and the proportionality of interference, assuming, of course, that the guidance is sufficient to give effect to human rights principles.

Neither proposition means that the guidance has to be interpreted with the strictness of the statute, or inflexibly applied irrespective of any good reason, consistent with the policy of the statute, for departing from it in the individual case. Guidance is guidance. Nevertheless, it is the starting point for considering the lawful exercise of discretion and, in most cases, will point to the proper conclusion as well, unless there is good reason to depart from it.

Mr Colville, on behalf of Miss Baker, points out that neither the local authority, nor the inspector appears to have directed himself in accordance with certain provisions of Circular 5 of 1993, which has recently been replaced by Circular 2 of 2003. I will deal with the 1993 circular first. This is general guidance in respect of compulsory purchase orders made under housing powers. Paragraph 2 of this circular says that:

The circular then moves into particular Housing Act powers and under the heading 1985 Housing Act Part II, deals with particular guidance of which paragraph 11 was relied upon by the claimant.

Paragraph 11 of the 1993 circular reads:

Paragraph 12 reads:

Similar statements appear in paragraphs 10 and 11, of Appendix D, to the Circular 02, 2003, issued from the Office of the Deputy Prime Minister. Again, heading of the circular is "Compulsory Purchase Orders". There is a similar structure to the 2003 circular which contains an introductory paragraph, and then goes on to deal with particular provisions under particular provisions of the Housing Act. The 2003 circular, in its introductory paragraphs, also in paragraphs 13 and 14, deal with justification for making the compulsory purchase order and refer to the articles here engaged of the European Convention on Human Rights, and the need to justify.

The position is, of course, that the council took their decision under the 1993 regime of the circular, that was the circular in force at the time of the planning inspector's enquiry and determination, but by the time the Secretary of State had come to confirm that the February 2003 circular would appear to have come into force.

There is, however, in addition, a circular issued in 1996 called Circular 17, 1996, that deals with the private sector renewal, a strategic approach. This replaces previous paragraphs of the circular to which this court has already made reference, Circular 5 of 1993. I was provided by counsel with the earlier terms of the circular simply to examine its structure, but it is sufficient to note that Circular 17 of 1996 states in its terms that it replaces paragraphs 19-21 of 5, 1993, but they continue to be relevant to orders made on notices served before 17th December 1996.

Essentially Annex B of the 1996 circular sets out a detailed procedure for identifying how to deal with unfit premises, and making assessments as to the need for action, and what kind of action should be dealt with. I will not read into the judgment the lengthy and detailed approach taken by that circular in its various annexes and appendices; Annex C3, as well as Annex B, being relevant to the approach adopted by this council, and Annex C3, Appendix 4.

Suffice it to say that it was the 1996 circular that the council referred to in particular in its report to its cabinet. It clearly, in my judgment, adopted the approach in the 1996 circular for making objective evaluations of which technique should be used to deal with unfit houses, and the inspector makes specific reference to the 1996 circular in his report. So the first question is whether there was a failure to direct themselves properly, both by the council and the inspector, by failing to have regard to certain provisions of the earlier circular, the 1993 circular.

It is common ground that the introductory paragraphs of the 1993 circular apply, because they are stated to be of general application to the exercise of compulsory purchase under any Housing Act power. But there is debate as to whether the specific paragraphs, paragraphs 11 and 12, of the 1993 circular actually directly applies to this form of compulsory purchase.

The circular in terms, as we have seen, applies to the exercise of powers under Part II of the Housing Act 1985. Part II of that Act deals with the provision of housing accommodation rather than merely provisions to deal with statutory unfitness. Section 17-19 of that Act enables a local authority to acquire land for such a purpose. Part VI of the Housing Act 1985 deals with the repair notices, and section 189(1), provides a power where the local authority can serve a notice upon an owner of premises that they must repair it within a particular time-frame.

Part IX deals with slum clearances and section 264(1) deals with the closure order, and guidance has to be had to it. Section 265 deals with the demolition order where there is no rebuilding. Section 289 is the test for statutory unfitness. Section 289(1) of the Housing Act 1985 provides:

One sees at once that it is in section 289(2) that one gets the statutory test of the most satisfactory course of action. Essentially put, the question is whether the local authority, in deciding to make a declaration of a clearance area of the perimeters of the property of the claimant, simply had to satisfy the most satisfactory course of action test, albeit that it needed to apply the compelling public interest test as set out in paragraph 2 of the 1993 circular, or whether it was required to adopt the paragraph 11 test of the 1993 circular, which perhaps became paraphrased in the course of argument as the "last resort test", but also appears to have required the local authority to have demonstrated that other powers have failed to achieve the housing benefit that the purpose of the powers was granted for.

I hope I have sufficiently summarised the debate and the statutory materials upon which the debate depends. In my judgment, the different parts of the Housing Act, Part II with which we are not concerned, and the parts that we are concerned with, particularly Part IX, where the declaration of the clearance area is to be found, demonstrate that the local authority and the inspector were right to have regard to the specific provisions of the 1996 circular that they did have regard to, rather than the specific provisions in paragraphs 11 and 12 of the 1993 circular, and as far as the Secretary of State is concerned, the equivalent provisions in the 2003 circular. That is because the "last resort test" appears to be directed to a problem under a different statutory context of acquiring land for housing, whereas the most satisfactory course of action test is the prescribed test for dealing with a building which is unfit and surrounded by unfit buildings, if it was an area broader than one property, and requires specific action to deal with that threat to public health and environmental problems.

I therefore conclude that the local authority and the inspector did not misdirect themselves by specifically referring to the 1996 circular and not specifically referring to certain detailed provisions of the 1993 circular concerned with Part II guidance, and therefore that there is no primary knockout blow to this decision on the basis that it was not reached in accordance with law.

This, of course, does not mean that "last resort" is an irrelevant consideration. It may well be lawful for a local authority to seek to test its justification for compulsory purchase order by analogy with considerations that arise in Part II of the Housing Act 1985 guidance. Nevertheless, as a matter of common sense, it is the compelling public interest that must be applied and that, of course, since the introduction of the Human Rights Act, must be measured against the human rights test of proportionality.

I therefore turn to the second and the principal issue in the case, which was whether this decision was a proportionate interference with the human rights of the claimant. Again, as the debate developed in this case, it seemed to this court that it was appropriate to make a distinction between proportionality of means and proportionality of ends. This is a distinction that was made in an authority of the Court of Appeal, not referred to or cited in argument, but, nevertheless, I think, reflects the essence of some of the submissions that were being made to the court. The authority is the case of Samaroo & Sezek v Secretary of State for the Home Department [2001] EWCA, Civ, 1139 and [2002] INLR, 55.

At paragraphs 19 and 20 the court was concerned with a decision to deport a non national and whether that deportation was disproportionate. Dyson LJ, giving the judgment of the court, at paragraph 19 says:

He then goes on to say that the House of Lords decision in Daly [2001] UKHL 26 is, "a good example of this." I need not deal further with the case of Daly.

Then at paragraph 20 Dyson LJ continues:

In my judgment that distinction, in two aspects of proportionality, became relevant in this case. As I have indicated, if the Secretary of State was simply faced with one means to achieve the highly desirable result of preventing the premises of the claimant from being statutorily unfit, preventing it from being the source of a nuisance to adjoining occupiers and returning the premises to residential housing in proper repair for the benefit of at least some future occupier, then, manifestly, those laudable ends would justify the means of acquiring property compulsorily from the owner. But was it the only alternative, or, to adopt the words of Samaroo, was it the least intrusive means of securing the public interest?

In my judgment, those who wrestle with section 289 in compulsory purchase orders and the test of the most satisfactory course of action, will need to take the detailed guidance on proportionality specifically into account. One literal reading of the most satisfactory course of action could be simply: it is what the council consider to be the best solution of a number of possible or potential solutions to a given problem. But real consideration has to be given to the rights of the owner and the occupier, and the potential injustice of being deprived of a potentially valuable property; the enhanced value being provided by the rebuilding and the reconstruction which then passes to the new owner, the local authority, who sells on, and in this case would make some gain upon the total activity of the repair costs, the resettlement costs, the rebuilding costs, and the expected sale price of the repaired and redeveloped house.

That consideration has to be reflected in the decision making process. Proportionality is not simply whether at the end result the balance is fair, but whether, in getting there, it has been decided that the most appropriate course of conduct is also the least interfering with human rights, having regard to the public benefit to be achieved and the different means of achieving it.

This court, of course, is concerned with an appeal on questions of law. It is not well suited to retake questions of fact by the planning inspector upon which judgments as to proportionality in fact turn. That point was made strongly by the European Court of Human Rights in the case of Chapman v United Kingdom [2001] 33 E.H.R.R 399, at paragraph 92, which I will read. There the court was considering whether the refusal of planning permission to a traveller family represented a disproportionate interference with their rights to respect for private life, the inspector having upheld the refusal of permission. The court said:

So the court is there indicating that it, as an international body, is less able to look at the expediency of the planning decisions which is a sensitive question of fact and policy, but it will instead particularly have regard to the decision-making process. Although this court does not have the same disadvantage as the international court, and is closer to the decision-making process and the national rules and circulars applicable, nevertheless it is plain that a measure of discretionary area of judgment needs to be afforded to decision makers on the question of proportionality, and the court will particularly focus upon whether those decision makers ask themselves the right question. I have indicated that they asked themselves questions appropriate under the particular circular, the 1996 circular, rather than the 1993 circular, so the remaining question is whether they did, in fact, apply the least intrusive interference approach when reaching their respective decisions on the most appropriate course of action test which is applied in this case.

As I have indicated at the outset of this judgment, if one took the language of the Secretary of State, paragraph 7 of his decision, or the inspector at paragraph 42, there might be room for doubt as to whether they had demonstrated that they have applied the proportionality test in its full range and rigour in order to reach their conclusions.

Mr Colville relied, in his skeleton argument, upon the test identified in Olsson v Sweden [1988] 11 E.H.R.R. 259, at paragraph 68. The test there was whether the court considered that the reasons given were relevant and sufficient:

So the question is whether, despite the somewhat sparse reasoning process on human rights in the two paragraphs of the decision, whether read as a whole the decision did examine, and carefully examine, whether there was a less intrusive alternative and whether service of a repair notice upon the owner might have achieved the results of obtaining housing benefit, absence of statutory nuisance, and all the other socially beneficial results that are likely to emerge from the closure, demolition and reconstruction approach adopted by the council.

In my judgment, the materials before the Secretary of State included, not merely the whole of the inspector's report, but the council's own decision-making process, transparently revealed in the papers in this case to the claimant and before the inspector.

In its report, 24th May 2001, by the Director of Housing to the cabinet of the London Borough of Ealing, the council did clearly objectively evaluate all the alternative options. I have already summarised paragraph 13 of that report in paragraph 11 of this judgment. At paragraph 19 of that report it noted:

That approach, namely that the realities were that this owner and occupier would be unlikely to be able to achieve the result of effectively knocking down what remained of the premises and rebuilding a healthy premises in its place, in my judgment, was very much in the forefront of the mind of the inspector when he reached his conclusions in this case.

He carefully considered the claimant's case that she had now found a builder who was willing to consider some share arrangements to ensure repair, but there were no coherent proposals, before the inspector, of a plan of action involving finance by the claimant of a repair plan within a particular period of time, to a standard approved by the council, that would ensure both that the premises were in a proper state, and, secondly, that accumulations of rubbish did not continue to pose a threat to the environmental health of neighbours. The inspector says at paragraph 39 of his report:

Part of the background which was common ground in this case is that Miss Baker, apart from not, of course, now being in employment and having a source of income, had no insurance upon the property which would have provided a capital sum to rebuild. There was, of course, the earlier concerns of the council that if they were to go in and do the repair work in default there may be some difficulty in co-operation with the occupier, having regard to her views that she had been harassed by them and that many of the public health notices were inappropriate or wrongly served. And, of course, a dispute as to whether her way of living in the premises, and the accumulation of rubbish was indeed causing some of the consequences which were a matter of strong complaint by her neighbours.

In my judgment, the inspector was entitled to take into account the fact that there had been no progress on behalf of the claimant to resolve these questions from September 1998 through to February 2003. He was entitled to look at the pressing representations made by adjoining occupiers, and the council's own concerns as to the state of the health of the claimant if she was continuing to camp out in, essentially, an open and unhoused premises. He was entitled to note the concerns that her continued occupation would have about the timing, manner of any repair works, and the continuing difficulties that arose from the accumulation of rubbish.

In my judgment, read as a whole, the inspector's report, accepting the case for compulsory purchase made by the council, applying the 1996 objective evaluation test, applying also the overriding test in the 1993 circular of the compelling public interest, amply meets the requirements of the Human Rights Act and the European Convention of Human Rights, that there are relevant and adequate reasons to justify why a compulsory purchase order was the necessary and proportionate way of giving effect to the public interest in this case. Once that stage is reached there is very little debate about the justification overall, as a fair balance, given the benefits that the public would achieve by the compulsory purchase of these premises.

There was, in the argument, a subordinate proposition that there had been discrimination in the treatment of Miss Baker compared to other properties in poor repair in the neighbourhood. That argument was but faintly pursued, but I deal with it summarily in the following terms. In my judgment, there was no evidence to suggest that the premises in question, 8 Westfields Road, or Miss Baker, were in an analogous situation with other premises or owners thereof. If so Article 14 does not come into play at all. But, secondly, that there was no evidence of less favourable treatment between Miss Baker and anybody else on the grounds of any Article 14 prohibited ground; nationality, sex or other status. There was simply not the makings of a discrimination argument in this case.

For those reasons, which I fear I have taken some time to explain, I conclude that this application fails.

MR MOULD: My Lord, I apply for an order to that effect and also apply for the Secretary of State's costs?

THE DEPUTY JUDGE: Yes.

MR MOULD: In the event that you are with me on that, I invite you to assess those costs summarily. The court should have a schedule provided by the Secretary of State. The effect of it is that I will be asking your Lordship to assess the costs, if that is your Lordship's intention, in the sum of £5,427.

THE DEPUTY JUDGE: Yes. Mr Colville?

MR COLVILLE: May I deal, firstly, with the issue of whether costs should be awarded. Your Lordship finds, in respect of the two issues that your Lordship raised and addressed in dismissing the claim, the first one being whether or not the circular was applicable in paragraph 11 and 12. My Lord, so far as that issue is concerned -- clearly your Lordship found against me on that point -- but as far as the arguments that were advanced on behalf of the Secretary of State, those arguments that your Lordship has now concluded against me, were not advanced by my learned friend in his rebuttal of the claimant, but was the matter addressed in response to the questions that your Lordship raised.

Your Lordship may recall, in response to your Lordship's questions, my learned friend initially started by saying, Circular 5, 93, did apply, or could be argued that it did apply, and it was argued that there was not going to be a dispute, but then felt he was not able to go as far as he ultimately concluded given the interpretation that he was able to draw upon from another part of the current 2003 circular. That being the case, my Lord, that your Lordship has found against me on a point that was not taken by the Secretary of State would be, in my submission, unreasonable to award the costs of the Secretary of State against the claimant in that regard. There should be no order as to costs.

As far as the second issue is concerned, that your Lordship found against me on dismissing the claim, that was on the issue of proportionality. Clearly your Lordship, as I understand your Lordship's judgment, as I read my notes of it, your Lordship could well understand the reason why the claim was brought and the arguments that were advanced because of the sparsity of the way the matter was dealt with by the Secretary of State in his decision letter.

Accordingly, my Lord, in the circumstances, given that there is this infringement of the right of Miss Baker, as far as her propriety rights are concerned, though that being now deemed to be proportionately reasoned and justifiable, my Lord, I would submit as far as costs are concerned there should be no order as to costs.

If your Lordship is against me on that and finds that there should be an order as to costs, my Lord, I have got a copy of my learned friend's summary assessment. My Lord, my only question on that leads to the work that was done; 14.4 hours of work done in relation to this appeal. My Lord, given that the Secretary of State was responding to the arguments that were being advanced, and to that extent the leg work was done by the claimant, I consider, my Lord, the 14.4 hours to be somewhat excessive as far as the amount of time spent in preparation. We do not know how that was arrived at. There was just one statement that was put in, that was the evidence of Miss Baker herself. There has been no -- other than my learned friend's input, I accept there was a conference -- but apart from that -- which, my Lord, can see is the attendance of counsel, 2.2 hours -- apart from that I fail to see how 14.4 hours could have been spent dealing with the claimant. But, my Lord, that is only to be dealt with if --

THE DEPUTY JUDGE: Yes, thank you. I need not trouble you in reply. In my judgment this is a case in which the defendant should have an order for costs in his favour. The overall issue was always whether the decision was proportionate, rather than the quality of reasoning in a particular paragraph of a letter, or the inspector's report. Since the claimant failed upon that, whether going through the circular route or going direct to proportionality, the order for costs should reflect the issues at the hearing. I also consider the schedule to be fit for summary assessment, and to be reasonable, but partly to reflect a round figure, I will make a summary assessment in the sum of £5,000. That is exclusive of VAT, is it?

MR MOULD: We do not claim VAT.

THE DEPUTY JUDGE: Yes.

MR COLVILLE: My Lord, can I ask for permission to appeal in respect of your Lordship's judgment? I do not wish to -- I appreciate the time, but I assume your Lordship will knock me down --

THE DEPUTY JUDGE: Yes. I appreciate these are issues of importance, and it may well be that we are breaking some novel ground, but since I consider that whichever way one precisely articulates the test your client is not going to succeed, in my judgment, I refuse permission on that basis.

MR COLVILLE: Can I ask for -- clearly a transcript will have to be obtained and I believe the Court has permission to extend the period for filing any appellant's notice to the point of being 14 days from the date of receipt of the transcript.

THE DEPUTY JUDGE: Yes, I will certainly extend any period of time for you applying to the Court of Appeal from 14 days from the receipt of the approved transcript which I hope will be done in the not too distant future, and it will probably need a bit of tidying up I suspect.

MR MOULD: My Lord, in relation to that, I think -- I am not quite sure how long the normal time is for receipt of the transcript, but certainly if your Lordship is going to make time run, to be frank with you I will invite your Lordship to make an order that time be extended for a fixed period of say 28 days, rather than from the date of the transcript. Unless your Lordship were to order, as the alternative, that the transcript should be provided with expedition.

THE DEPUTY JUDGE: I see. Perhaps, on reflection, I should have invited your assistance before making that order. If I replace that with an order that I extend time by another 14 days -- or the time will begin to run in 14 days time, we hope that in the normal course of events that you should get it back, corrected, round about then. That is a target rather than a promise, but I would certainly hope that you would be able to at least give consideration to the question of an application for leave to appeal on what you have already heard today. If you need something before that I think that is a preferable course given that people need to get on with doing things.

MR MOULD: I am concerned about the fact that the property is there and --

THE DEPUTY JUDGE: Of course, I understand that, so I am grateful for those observations which helped me with that.

MR MOULD: Thank you very much.