Hayter v First Secretary of State & Anor

Mr Justice Collins:

The claimant seeks pursuant to section 288 of the Town and Country Planning Act 1990 to quash a decision of an inspector appointed by the first defendant whereby on 21 August 2002 he dismissed an appeal by the claimant against a refusal of planning permission. The claimant had applied for permission to erect a four bedroom dwelling in the garden of his house at Beeches Hill, Bishop’s Waltham in Hampshire. Permission was refused on 14 March 2002 because the development would be contrary to the Countryside and Environmental policies of the Hampshire County Structure Plan and the Winchester District Local Plan in that, putting it generally, it represented an unjustified additional building and intrusion in the countryside which failed to enhance or preserve the countryside. In addition, it was said that there was no adequate provision for public recreational open space.

Gilberts Knapp is a house which has Georgian features situated on the north side of a junction itself at the north end of the settlement of Beeches Hill. The house is in the south east part of the garden: the proposed development is in the north east, fronting the road which runs north towards Winchester. The inspector stated in paragraph 3 of his decision that he considered that the main issue in the appeal was ‘the effect of the proposed development on the character and appearance of the surrounding area and on the setting of the settlement of Beeches Hill’. Mr. Hayter attacks that statement on two grounds. First, he submits that the main issue was whether the proposed development was indeed in the countryside or, as Mr. Hayter contended during the written representations and before me, within an area designated in the Local Plan as one where development would normally be permitted. Secondly, he submits that it showed that the inspector had in effect prejudged the issue.

The second point I can deal with quickly. The inspector’s decision letter must be read as a whole and in it he makes it plain that he regards the claimant’s contention that the appeal site was not in the countryside but within the area where development should be permitted to be wrong. That being so, the main issue clearly was as he stated it to be. It is no indication that the inspector had in any way prejudged matters.

The inspector had produced before him what he believed to be the relevant extracts from the Winchester District Local Plan which had been adopted in 1998. The Hampshire County Structure Plan, adopted in 2000, defined in C1 the countryside as ‘the area outside existing and proposed built up areas delineated in local plans’ and C2 require that any development in the countryside must promote the conservation and enhancement of the countryside. The local plan severely restricts development in the countryside to that which will protect and facilitate the enhancement of the character of the countryside and the setting of settlements. I need not go into further detail since Mr. Hayter recognises that, if the inspector was correct to regard the development in question as being in the countryside and so subject to the policy constraints applicable to such developments, he cannot succeed in persuading me that there was an error of law. The inspector was exercising a planning judgment.

The local plan has annexed to it a proposal map covering the whole of the area of Hampshire governed by the plan. On this is shown a number of inset areas covering settlements for which particular policies are material. These are predominately housing policies and the relevant one for this case is H2. This reads, so far as material:-

“Residential frontage development or redevelopment will normally be permitted within the defined development frontages of:-

[There are then set out a list of settlements including Beeches Hill]

Provided that development proposals:

(1) reflect the curtilage sizes and character of the locality;

(ii) avoid development of plots in depth, such as backland or tandem development (or proposals which would place existing properties in a backland situation);

(iii) provide for vehicles to park and turn within the curtilage of the sites;

(iv) combine access points wherever possible to avoid the proliferation of accesses;

(v) comply with proposals EN.5, EN.13, T9 and other relevant proposals of this plan.

Proposals for terraced or other dwellings suitable for small households will normally be permitted where they would reflect the nature of the area or achieve a positive improvement of the street scene”.

The full proposal map was not before the inspector. Instead he had a copy of a part of the proposal map containing the relevant part of the inset No.42 which covered Bishops Waltham / Beeches Hill. Included was the notation which showed that outside the inset the west side of the road where the appeal site was situated was subject to countryside policies. There was also a copy of the relevant part of inset 42 itself which showed that Policy H2 was applicable to the west side and the northern part of the east side of the Winchester road.

Mr. Hayter contended that because the inspector only had copies of parts of the proposals map and of inset 42, there was no proper evidence that the countryside policies applied. That I am afraid is unarguable. There is no doubt that the proposals map and the insets in the local plan show quite clearly that countryside policies apply outside the boundary of the inset. That the inspector, no doubt to save burdening himself with unnecessary paperwork, had copies only of the relevant portions cannot mean that he had to disregard reality. He was in any event not bound by any rules of evidence and it would have been quite sufficient if he had been informed of what the position was since there was and could have been no dispute about it.

Mr. Hayter then argues that the notation on the map does not accord with Annex A of PPG 12. He draws attention to paragraph 26 in particular which reads:-

“26. The proposals map should illustrate each of the detailed policies and proposals in the written statement, defining sites for particular developments or land uses and the areas to which specified development control policies will be applied. Boundaries of locally or nationally designated areas such as heritage coasts, conservation areas, Areas of Outstanding Natural Beauty and Sites of Special Scientific Interest should be shown to illustrate that a range of particular development control policies apply there. The map must be on an Ordnance Survey base, with the scale and an explanation of two notations given. It can comprise one or more sheets and may be accompanied by insets on a larger scale where it is necessary to show certain proposals more clearly …[E]ach inset must illustrate all the proposals for the area covered by the inset. The boundaries of each inset must be shown precisely on the proposals map and the proposals shown on an inset must not appear on the main map”.

Paragraph 27 provides that in the event of a contradiction between the written statement and the proposals map, the provisions of the written statements prevail.

The proposals map and insets comply with Paragraph 26. The inset boundary is clearly shown to be at the crossroads immediately to the south of the appeal site. Thus there can be no doubt that H2 cannot apply. Any complaints based on the manner in which H2 is illustrated on the insets are therefore immaterial and irrelevant.

In any event, they are misconceived. Mr. Hayter refers to the explanatory paragraphs which followed H2. In particular, he draws attention to 6.17 and 6.19. In 6.17 he emphasised the reference to existing gaps having been excluded from the frontages. He submits the crossroads are just such a gap and that the settlement and so the ambit of H2 should extend to cover his house. 6.19 commences thus: -

“The notation for development frontages is intended to show the road frontages on which development is, in principle, acceptable. It is not intended to imply that new buildings must fall within the width of the notation. The style of the development should be appropriate to the character of existing development, in accordance with the criteria of proposal H2 and its explanation above. These are intended to avoid development of more than one dwelling depth …”

There is nothing obscure nor any breach of the PPG12 criteria in any of this. Thus even if H2 applied, and it clearly does not, no suggestion that its scope is unclear could possibly prevail.

Mr. Hayter has also relied on the need to provide for housing on previously developed sites. His garden is such a site. He links this with a contention that the local plan, insofar as it deals with housing need, is out of date and that further development will be required to meet such need. That may or may not occur but can be no possible basis for disregarding the clear policy of the existing plan. Mr. Hayter has sought to bolster his points by suggesting that PPG 3, which directs the use of previously-developed land rather than Greenfield sites for new housing, has superseded H2. (see PPG 3 Paragraphs 37 & 38 in particular). Since that guidance relates to housing policies, it cannot avail Mr. Hayter in a case such as this where the development is not within an area which is regarded as suitable for housing. If Mr. Hayter’s submission is correct, it is giving a virtual carte blanche to development within the curtilage of existing dwellings.

Mr. Hayter pressed the inspector with the proposals in relation to another settlement, Bighton, in which the H2 frontage extended beyond a gap caused by a road. Quite how this would conceivably be relevant is difficult to follow. All it means is that the development frontage there was regarded as extending beyond a particular gap whereas at Beeches Hill the relevant gap was the boundary. That difference could not affect the inspector’s decision.

The inspector viewed the site and the area. He stated that he considered that:-

“a distinct change is apparent in the pattern of existing developments to the north and south of the junction of Beeches Hill and Shipcote Lane.”

He then proceeded to give further details of why he formed that view, to discuss the impact on the surrounding area and to decide that the development would not be in accordance with the relevant countryside policies. While Mr. Hayter disagrees with his views, he was entitled to form them and no error of law is established.

The reality is that once it was clear that the appeal site was not within the inset and so H2 could not apply, the inspector’s decision cannot be impugned. Mr. Hayter has raised a number of further points, but they are all attacks on the inspector’s judgment and cannot and do not show any error of law.

Despite being argued with tenacity and courtesy by Mr. Hayter, this appeal was bound to fail. It must be dismissed.

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MR JUSTICE COLLINS: Mr Hayter and Mr Morshead, you have both had copies of the judgment?

MR HAYTER: I am having a job to hear you.

MR JUSTICE COLLINS: I am so sorry, Mr Hayter. You have had a copy of the judgment and I am grateful for the correction that you sent in, which you will see has been incorporated.

I am sorry that the result is obviously not very satisfactory for you, but for the reasons that I have there set out, I have had to dismiss your appeal.

MR MORSHEAD: My Lord, I am grateful. The question of costs arises. We have an updated schedule of costs. We would invite your Lordship to --

MR JUSTICE COLLINS: Do I have a copy?

MR MORSHEAD: No, your Lordship does not. Your Lordship may have an updated copy, which takes matters up to the end of the hearing. There has been a downward adjustment in relation to that because the hearing occupied less time than predicted and that is reflected both in the attendance at court for my instructing solicitor and in my own fees, as your Lordship sees on the second page.

MR JUSTICE COLLINS: Yes.

MR MORSHEAD: Apart from that, the adjustment is for this morning's hearing.

We will invite your Lordship to make an assessment in the sum sought.

MR JUSTICE COLLINS: Mr Hayter, we discussed the question of costs, did we not, at the end of the hearing, and I think you recognised that the normal order is that the costs have to follow the event. That is to say if you win you get them, if you lose you pay them.

But it is your opportunity to tell me any reason why you should not have to pay costs, and I will go into the amount in a moment.

MR HAYTER: As was said, we discussed at the hearing the question of costs and in that we indicated that both parties were disputing the others' summary costs.

MR JUSTICE COLLINS: As I say, the question of amount I will come to in a moment. I am simply asking you to say whether you accept in principle that you have to pay a reasonable sum?

MR HAYTER: In principle, yes.

MR JUSTICE COLLINS: That, I am afraid, is almost inevitable.

As far as the actual amount is concerned, that is a different matter. There are two possibilities. One is that I can make an order today and fix an amount. The other is that if there is a real challenge to the amount, you have the right to have it -- what used to be called "taxed", and is now dealt with on a special assessment -- detailed assessment of the amount, by an independent officer of the court.

I should tell you that, on the whole, the Treasury Solicitor's amounts are rather less than private solicitors and I suspect, looking at this, it will not be easy for you to persuade them that very much less is appropriate, and of course the problem with going to a detailed assessment is that in itself can incur a little bit of extra cost, but please deal with any amounts, or any of the individual amounts here, that you think are excessive.

MR HAYTER: The first point is that you suggested to us that we should try and resolve our cost difference before this.

MR JUSTICE COLLINS: Obviously, if you could agree amounts, that is so much the better, but if you cannot, that is --

MR HAYTER: Unfortunately, the defence have not even attempted to do that. I sent a letter --

MR JUSTICE COLLINS: I see.

MR HAYTER: -- explaining my problems on 5th February, as soon as I could after the hearing, and I did not get a response until Wednesday of this week and a fax timed at 5.30. So effectively there was only yesterday to even look at it and obviously no opportunity to resolve.

MR JUSTICE COLLINS: There has been a small reduction, has there not, in the amount that they were saying was appropriate?

MR HAYTER: If I now deal with where the differences are?

MR JUSTICE COLLINS: Yes.

MR HAYTER: The first thing that arises from the Practice Direction dealing with late filing of statement of costs, it states that the statement of costs should be filed and the copies of it should be served as soon as possible and in any event not less than 24 hours before the date fixed for the hearing, and the Practice Direction then goes on to say that failure by a party without reasonable excuse to comply with the foregoing paragraphs will be taken into account by the court in deciding what order to make about the costs of the claim.

I am therefore going to ask you to exercise that discretion in my favour.

MR JUSTICE COLLINS: When did they serve their original?

MR HAYTER: The hearing for 3rd February?

MR JUSTICE COLLINS: Yes?

MR HAYTER: That was a Monday, so the statement should have been served no later than midnight on 30th January.

MR JUSTICE COLLINS: When was it served?

MR HAYTER: It was actually served at 11.43 on Friday, the 31st. It was therefore only 17 minutes short of half a day late.

MR JUSTICE COLLINS: Yes.

MR HAYTER: The defence have claimed it is only one hour and 13 minutes late from the time of hearing, but the rules say from the date of the hearing and not the time.

MR JUSTICE COLLINS: Mr Hayter, the effect of that is not to deprive them of their right to costs. It may be that it can mean that they do not get the benefit of the summary assessment, because if there is not time for the other side to deal with it, and they do not get any costs in relation to the detailed assessment, if that is appropriate, because there was no opportunity, or no proper opportunity, to deal with them.

But the fact is, of course, you have had this, so far as the primary amounts are concerned, for some time. This amendment is slight in the context of the overall amount reduction, but I take your point.

MR HAYTER: In fact, that has now been repeated, because the summary costs for this handing down, which should have been filed on Wednesday, and it was actually faxed to me at 4 minutes to 4 yesterday. So it is repeated.

MR JUSTICE COLLINS: Have you had, as a result, a problem in dealing with this?

MR HAYTER: To some extent.

MR JUSTICE COLLINS: What are the problems?

MR HAYTER: If we now look at the details (inaudible). Remember that you directed that it should not be necessary for Mr Morshead to attend this hearing, but it could be done by a pupil.

MR JUSTICE COLLINS: £80 is not Mr Morshead's true worth, I can assure you. You are getting him at a discount. Certainly, if a pupil had come along, it would have been about that amount.

MR HAYTER: There is also a question of whether the costs are reasonable or proportionate.

MR JUSTICE COLLINS: Yes.

MR HAYTER: Under the rules, the court will not give its approval to disproportionate and unreasonable costs.

The time on the documents is the issue here. The defence have claimed 20.5 hours on this.

MR JUSTICE COLLINS: Yes.

MR HAYTER: In (inaudible) case, 9.9 hours seemed a lot to Richards J. At that time, that was justified partly through amendments to the claim form. That does not apply in this case.

MR JUSTICE COLLINS: No.

MR HAYTER: The defence are claiming that the grounds and documents in this case are more detailed. The effect of that should be it is the same order as reworking a case, because of the amendments of claim.

The defence furthermore claim that the majority of work was done in the (inaudible) case by a fully trained lawyer and in this case 16 hours have been claimed at the trainee rate, which is roughly half. If all of this had been done at the normal rate, the 16 hours would then become 7.6 to break even, and the defence are saying it should be even less than that. So we effectively have to compare 12.1 hours of work with 9.9.

MR JUSTICE COLLINS: What effectively you are saying is that, in your view, the 16 should effectively be halved? Is that right?

MR HAYTER: No. There were two elements of costs on dealing with documents: the full rate costs of a fully trained lawyer.

MR JUSTICE COLLINS: That is the 4.5 hours.

MR HAYTER: That is the B rate, and the D rate.

MR JUSTICE COLLINS: Yes.

MR HAYTER: Part of the defence's argument is that it took so long because a trainee had been used and they backed that up by saying that if it had been done by a fully trained lawyer, the costs would have been more. If you worked it out on the basis of the costs break even, there is still an excess of fully trained hours to 2.2 or an excess, which is exactly the same in costs terms, as 4.6 at the --

MR JUSTICE COLLINS: What does that work out at, so far as an amount of reductions?

MR HAYTER: That would a reduction of £310.

MR JUSTICE COLLINS: Right.

MR HAYTER: Another indicator that the costs are not reasonable or proportionate is that, in the costs summary, the attendance on a client was 2.8 hours and, amazingly, 2.7 for attendance on me.

MR JUSTICE COLLINS: Sorry, where are we? Yes.

MR HAYTER: That occurs on the second page.

MR JUSTICE COLLINS: Yes, I have it. It is on the front page in the new one.

Attendance on you presumably means talking with you on the telephone?

MR HAYTER: There were one or two short calls, but certainly not 2.7 hours.

MR JUSTICE COLLINS: Altogether?

MR HAYTER: No.

MR JUSTICE COLLINS: How long do you say?

MR HAYTER: Probably quarter of an hour, 20 minutes.

MR JUSTICE COLLINS: Calls mount up, you know.

MR HAYTER: I understand that, but that is not 2.7 hours and there were also some e-mails. Most of the communication was by e-mails.

MR JUSTICE COLLINS: That would count. It takes a little bit of time to type out an e-mail.

MR HAYTER: Yes, but there is a standard rate for sending documents, which is .1 a unit.

MR JUSTICE COLLINS: Yes.

So those are the items that you complain about?

MR HAYTER: That is correct, my Lord.

But I still maintain that a further reduction should take account of the very late costs service for both the hearing and this judgment and the failure to follow the court's direction to resolve the costs dispute before the judgment is given.

Thank you, my Lord.

MR JUSTICE COLLINS: Yes, thank you, Mr Hayter.

Mr Morshead, there is a point taken on the late service of the schedule. I am not sure quite where that takes us, but --

MR MORSHEAD: My Lord, we would accept that the original schedule was served, I think, an hour and three quarters out of time but on a Friday and the hearing started on a Monday, in circumstances in which your Lordship reserved judgment to a date of nearly some three weeks later. Mr Hayter has advanced before your Lordship submissions which show that he has clearly identified all the points.

MR JUSTICE COLLINS: Yes. I do not think there is anything in that.

What about the two items that he complains about?

MR MORSHEAD: To take the order in which he makes them, the first is a criticism of the amount of time spent on documents.

MR JUSTICE COLLINS: Yes.

MR MORSHEAD: My Lord, the case is one were, your Lordship may remember, Mr Hayter raised a number of very detailed submissions by reference to a lengthy statement of the grounds of his appeal --

MR JUSTICE COLLINS: Yes.

MR MORSHEAD: -- advanced both before the Inspector and that was incorporated into the grounds of appeal before your Lordship.

My Lordship, it may be that the number of hours spent on considering those documents --

MR JUSTICE COLLINS: It does seem rather a lot.

MR MORSHEAD: -- could have been reduced had it not been that a trainee was used to consider them, but then of course the hourly rate would have been higher, and in my respectful submission --

MR JUSTICE COLLINS: You say it is swings and roudabouts?

MR MORSHEAD: Yes.

My Lord, the second matter was the amount of time spent in attendance on the claimant. My Lord, of course that figure, the 2.1 hours and the figure of 0.6 hours for the more senior solicitors, includes letters out and in this case there were 20 letters out charged at .1 hour per letter, which translates to the figures that your Lordship sees there.

MR JUSTICE COLLINS: Yes.

MR MORSHEAD: My Lord, unless I can assist your Lordship further?

MR JUSTICE COLLINS: No.

Yes, Mr Hayter, I am satisfied that the amount claimed for attending on you, when you include letters and telephone calls and e-mails, is not excessive.

So far as the item attendance on documents is concerned, I take the point that a trainee was used. On the other hand, I think, even for a trainee, 16 hours was somewhat excessive. So I am prepared to reduce that item. It is not really possible to give precise figures always in this sort of exercise, but what I think would be fair is if I reduced the grand total from £3,879.25 by £200, making it £3,679.25.

It does not give you a great deal, I am afraid, but that is the best I think I can do for you. Otherwise, the amount, I can tell you, is very reasonable.

I hope you will not be, or never have been, involved in other litigation, but if you have or do, you will find that others charge a lot more. So I shall dismiss the appeal with costs in the sum of £3,679.25.