Imperial Resources SA, R (on the application of) v First Secretary of State in the Office of the Deputy Prime Minister & Ors

1. MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision made by an inspector appointed by the first defendant, contained in a decision letter dated 10th October 2002. In that decision the inspector dismissed the claimant's appeal against the council's non-determination of an application for a lawful development certificate. The application related to a block of flats at Leonard Court in Kensington High Street. The block has a flat roof with a central lightwell. Around that lightwell, there are railings on two sides and walls on the other two sides. The claimant is the freehold owner of the block.

2. The background is as follows. On 16th September 1983, outline planning permission was granted by the second defendant for:

"Erection of an additional storey to provide 4 self-contained one bedroom flats at LEONARD COURT."

The permission was subject to the normal time limit conditions, which provided that details had to be submitted within a year and that the development had to be begun by 16th September 1986 or within two years of the final approval of reserved matters. Reserved matters were eventually approved on 11th December 1986, and it is therefore common ground between the parties that the development had to be begun by 11th December 1988 in order to prevent the planning permission lapsing.

3. Section 56 of the Act deals with the question of when development is begun for the purposes of the Act. The relevant parts of subsections (2) and (4) provide:

"(2)For the purposes and provisions of this Part [of the Act] ... development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out ...

"(4)For the purposes of subsection (2), 'material operation' means -

a) any work of construction in the course of the erection of a building".

4. It is not in dispute that works commenced on the roof of Leonard Court on the 15th November 1988. A commencement notice was served upon the council and the works were inspected by the District Surveyors Department and by an official from the planning department. It is plain that the claimant's intention was to commence the development permitted in the 1983 permission and a careful record was made of precisely what was done by way of operations. The works were photographed and they were described in an affidavit from the claimant's architect. In due course the claimant made an application for a lawful development certificate under section 191 of the Act. The claimant sought a certificate that the construction of the four new flats on the roof of Leonard Court in accordance with the 1983 permission would be lawful.

5. In essence, what the claimant was seeking was a ruling from the second defendant that the 1983 permission had indeed been begun by the works that were carried out in 1988 before the time limits contained in the conditions had expired. The second defendant did not determine the application within the required period of time, so the matter proceeded to appeal and was determined by an inspector (the first inspector) on the basis of written representations. The first inspector dismissed the appeal in a decision letter dated 27th November 2001. The claimants successfully challenged that decision under section 288 of the act. On 29th May 2002, Ouseley J quashed the first inspector's decision.

6. Following Ouseley J's decision, the inspectorate wrote to the parties inviting their representations upon various matters. I will revert to that correspondence in due course. It is helpful to begin with Ouseley J's judgment since, subject to one qualification, Mr Hobson QC on behalf of the claimant does not criticise the approach set out in Ouseley J's judgment. It is important therefore to see the basis on which the first inspector determined the appeal, Ouseley J's criticisms of that first decision letter, and the extent to which those criticisms have been addressed in the second decision letter, which is under challenge in these proceedings.

7. The first inspector concluded that the works which had been carried out in 1988 did amount to a material operation but he concluded that the operations were not comprised within the 1983 permission. His reasoning is set out in paragraph 10 of Ouseley J's judgment as follows:

"However, I have considerable difficulty in believing them to be comprised in [the 1983 permission]. The approved plans show walls in this position that would enclose corridors to two landings that would lead from the lifts to the flat entrances. The eastern and western walls would each have three window openings and one door opening. The height of the window cills would be some 600mm above roof level. The 1150mm high walls that have been erected would be expected to have lower sections rising to only 600mm to provide for three window openings if they were part of the 1983 permission. I believe that development permitted by the approved plans, that had been erected to half the final height of the wall, would probably have had a castellated profile. These walls have horizontal copings without undulations. Moreover, the approved location for the door opening in the western wall is about 5 metres from the chimney in the southwest corner. The gap between the walls, is about 2.2 metres from the chimney. Similarly on the eastern side, the approved location of the door opening is some 6 metres from the southeast corner and gap, as built, is some 2.2 metres from that corner."

8. In paragraph 23 of his judgment, Ouseley J rejected a submission that had been made on behalf of the Secretary of State that the inspector had concluded that:

"The walls as built were a functionally different construction, of itself finished or complete, rather than part of the development of four flats, albeit not constructed precisely according to the plans."

Ouseley J said that:

"If that had been [the inspector's] conclusion, then [he] would have expected that to emerge far more clearly from the decision letter."

9. In paragraph 29 he said this:

"However, if the Inspector had reached a reasoned conclusion fairly on the material that the walls, as erected, were complete and functionally different from a partial construction of walls for the purposes of the sixth storey flat, it might have been open to him to conclude that the construction of the walls was not a material operation 'comprised within the development.' This is not a question of the claimant's subjective intention which rightly did not play a part in the Inspector's decision, but of an objective conclusion as to the function of such a wall. Such a wall would be potentially equivalent to the ambivalent earth stripping discussed in Staffordshire County Council v Riley and would lack the quality of being distinctly referable to the approved development. The fact that the wall only partially complied with the plans as approved would be a problem for the Inspector to examine in that context."

10. I mentioned that Mr Hobson had one reservation about Ouseley J's judgment. That reservation related to the use of the word "distinctly" in the penultimate sentence in paragraph 29. Mr Hobson submitted that it was sufficient if the material operations were merely "referrable" to the approved development.

11. In paragraph 30, Ouseley J pointed out that this was not the basis on which the first inspector had reached his decision. He concluded that the first inspector had:

"Reached his decision based upon an analysis of the differences between the walls as built and the walls as shown on the approved plans."

That was all that the first inspector had dealt with. Paragraph 30 continues:

"Indeed, as Mr Mould for the Secretary of State accepted, first, the walls were constructed on the approved alignment in the approved locations and many of the brick courses would have complied with the approved plans, that is to say, up to cill level except for the door openings and they would have complied with the approved plans up to a higher level still where no aperture was required; second, the walls as built could be modified by the removal of the brick coping and by the creation of apertures for windows or crenellations leaving a substantial part of the structure in tact."

12. Pausing there, there appears to have been no evidence before the first inspector as to the extent to which the walls as built could have been modified so as to accord with the approved plans. The concessions made by counsel then instructed on behalf of the Secretary of State appear to have been made during discussion with the judge and not to have been based upon any particular evidence. In paragraph 31, Ouseley J said this:

"I consider that the Inspector concluded that it was the differences in the location of the window and in the window apertures, the presence of the coping layer and the location of the door giving on to the fire escape, which meant that the wall could not be a material operation comprised in the development.

In my judgment that is an incomplete approach which errs in law or ignores relevant considerations. No doubt there will be cases where the difference between the plans approved and the development carried out, is so large that of itself that prevents the operations relied on being operations comprised in the development and of itself would permit an Inspector rationally so to conclude without more ado. However, the question of whether a material operation is or is not 'comprised in the development' cannot necessarily be answered by asking simply if there is a difference between the approved plans and the actual operations relied on."

Paragraph 32:

"The decision in Spackman shows that as a matter of law, differences between the approved plans and the operations relied upon, need not be fatal to the capability of the operations to be effective in commencing the development."

Paragraph 33:

"It is, in my judgment, necessary for an Inspector dealing with this sort of problem to consider not just the existence of differences between the plans and the operations relied on, but also to consider the significance of those differences. It is insufficient just to mark and measure the existence of differences. In my judgment this can be seen either as a question of the correct approach in law, or as a question of whether an Inspector has had regard to material considerations. Consideration of the similarities, or degree of compliance of the operations relied upon, with the approved plans is also relevant, together with substantial usability of those works in the permitted development, and the degree of alteration required to them in order for them to effective to that end. I do not consider that the Inspector took those other matters into account or examined the significance of the differences which he found to exist."

Paragraph 34:

"I have much sympathy for the Inspector in this case who had no helpful evidence or argument provided to him by the claimant on this issue. Yet, he still could see, without it being specifically pointed out, that the walls were in the correct location and that several courses of brickwork would conform to the plans and, as Mr Mould accepted, much would be substantially usable even if modifications were necessary. The Inspector ought to have appraised the whole in order to reach a conclusion as to whether the works were operations comprised in the development rather than just to have focused on the differences. He had the necessary material in front of him on his site visit and needed no further evidence from the claimant in order to weigh the visible similarities and the visible differences."

Paragraph 35:

"I do not accept Mr Hobson's submission that it is sufficient to look only at whether there was a modicum of works which complied with the plans and that the existence of works which did not comply with the plans was legally irrelevant. I consider that the question of whether the operations done were comprised within the development involves looking at what has been done as a whole and reaching a judgment as a matter of fact and degree upon that whole. It does not entail any artificial process of ignoring part of what has been done. I reach that view even where it is not contended that the works are different functionally from the planning permission which has been granted, or are ambivalent in nature and so not unequivocally referable to the planning permission in question."

13. Before me Mr Hobson did not seek to advance the submission that had been rejected by Ouseley J. In the light of that decision, the Inspectorate invited the parties to make representations upon the following matters:

"i) whether the walls as built are a functionally different construction, itself substantially finished or complete, rather than a part of the development of 4 flats to which the 1983 planning permission related;

"ii)the extent to which the work carried out does comply with the approved plans;

"iii)the extent to which the works that have been built would be usable in a final scheme built in accordance with the planning permission,

"iv)the full extent to which the work deviates from the approved plans;

"v) whether there is a reasonable explanation for all or any of those difference; and

"vi)the significance of those differences, including the position of the door leading to the fire escape."

14. The claimant's solicitors responded to that letter and so did the second defendant. The second defendant's letter, dated 9th August 2002, commented as follows:

"1) It is the Council's view that the walls which were built are functionally different from those that would be required as part of the proposed development. As has already been documented, the differences between the wall as built and as approved are that the walls do not include any window openings and the fire escape door openings are shown in the wrong place from the approved plans.

"2) The significance of these differences is that considerable alterations would need to be carried out for the existing walls to be used as part of the development. In particular, the required works would involve removal of the brick on edge coping and cutting of brickwork and part demolition to allow the installation of windows. It is not considered that this would result in a satisfactory appearance to the elevations as the bonding of the brickwork would have to be altered during construction to allow a window to be inserted.

"3) It is clear that the walls were built as one operation as parapets and not with a view to installing windows as part of the roof extension. The walls will very likely have to be taken down and rebuilt in order to comply with the approved scheme.

"4) It is considered that the extent of the rebuilding would mean that little of the walls would be reused in the final scheme. The walls as built are therefore considered to be significantly different from those approved. The explanation for the differences between the approved plans and that built on site would seem to be that the walls as built are a parapet wall, which has a different function from the part of the proposed roof extension. As the changes are significant the Council would contend that the new Inspector should find that the development had not been implemented."

15. It was against that background that the second inspector considered the matter afresh. Having described the appeal building and noted that the walls were "brick and block walls some 1.15m high, 0.3m thick along the western and eastern edges of the lightwell", the inspector set out the agreed history, beginning with the grant of planning permission in 1983. In paragraph 15 of his decision letter, the inspector concluded that:

"The walls built to the 2 sides of the lightwell amounted to a 'material operation' or operations for the purposes of [the act]."

16. In deciding whether or not that was so, he had regard to the fact that even small amounts of work can be material operations and:

"In this case, I understand the work to build the walls took some 2-3 weeks, involving the erection of scaffolding, brick and block laying and rendering. Those works were not inconsequential. The scale was small in relation to the permitted works, but that is not point. It is whether, as a matter of fact the degree, those works were material operations in the context of s.56 of the Act. My view is that they were."

17. At an earlier stage, the inspector had identified the critical question, which was:

"Whether there had been anything begun that could be said to be a commencement of the development."

18. It is accepted that the inspector thereby identified the critical question. He answered that question in paragraph 16 and following of the decision letter:

"But did those operations implement [1983 planning permission]? I consider they did not. The 2 walls, facing each other across the lightwell, were built in the same positions as walls to the permitted flats. However, the approved plans show western and eastern walls were each to have 3 window openings and one door opening. The window cills were to have been about 600mm above roof level. No provision has been made in the 1.15m high walls as built for any of those window openings. If the walls had been built in compliance with the 1983 planning permission, at the height reached, there should have been 3 gaps each of a width of about 1m above a height of 600mm. As built, each wall has a gap only to access the ladder landing. Also, the walls, as built, have a single brick on edge coping, completed with lead flashings, rendering to all surfaces except to the brickwork, seemingly finishing off what appear to be completed safety parapet walls. Their purpose appears to have been to protect those on the roof from possible falls into the lightwell."

19. Between paragraphs 17 and 19, the inspector dealt with an error in the approved plans as to the position of the escape stairways. Plainly, the door openings had to line up with the escape stairways, but it would appear that the door openings as shown on the approved plans effectively put the stairways in the wrong position. In paragraph 19, the inspector considered that this apparent drafting error should not aid the local planning authority:

"It must be, that whether the walls are parapet walls or were intended to be the partial construction of the walls to the flats, access to the existing stairways would be needed in the position the gaps have been built."

He then said, paragraph 20:

"Setting aside the question of plan errors, however, the walls as built are substantially different to incomplete walls of the same height that would have complied with the approved layout."

Paragraph 21:

"The next question to address is the significance of the differences between the approved layout and what was built. The differences between what was permitted and what was built, are in my opinion, decisive. By building what look like parapet walls, it is difficult to imagine that the builders thought they were constructing the first phase of the approved flats. If they were implementing the planning permission, it would be expected they would have allowed for the windows. In the two walls, a total of 6 window openings should have been provided for. That should have been done by constructing the reveals as shown on the approved plans. Or, if it was to be argued they were temporary parapet walls, yet still part of the flats development, it could possibly have been done by constructing the openings, then infilling with temporary construction materials. As it is, the walls are built of continuous stretcher bond brickwork to the lightwell face and continuously bonded blockwork to the other face. They look like finished parapet walls, complete with top flashings, copings, rendered and finished off at the ends."

Paragraph 22:

"Differences between approved plans and the operations relied on, (as these walls are), need not be fatal to those operations being capable of commencing the planning permission."

Having referred to the decision in Spackman v Thamesdown BC [1997] 1 ALL ER 257; 33 P&CR 430, the inspector said this in paragraph 23:

"To practicably adapt the Leonard Court lightwell walls to fit the approved plans would mean demolishing most of the wall. Scarcely any of the existing walls would be of use. I consider it would be impracticable to cut the openings and form proper brick and blockwork reveals and inset cills in these low bonded walls. The coping, flashings and most of the rendering would need to be removed. The ends of the walls would have to be re-built to allow for bonding into northern and southern lightwell walls to the flats. Alternatively, the walls could be demolished down to cill level prior to rebuilding according to the approved plans. Or, more practically, the walls could be entirely removed prior to a re-build. Whatever method was used, I consider it would be no mere minor work to readapt the existing walls to comply with the approved layout. Almost any building operations could ultimately be made to fit another layout, however extensive the required alterations were. But it would not mean that the originally built, non-conforming works could necessarily be said have been part of what might eventually be a different, subsequent layout."

Paragraph 24:

"In this case, I conclude that the walls as built were not part of the works comprised in the permitted development. The walls have, in my opinion, been built as parapet walls, not part of the permitted flats. They look like operations in there own right. They do not look like part of the approved layout, irrespective of the approved drawing errors."

Paragraph 25:

"In concluding that what was built were parapet walls, not a partial construction of walls for the flats, I refer briefly to the applicants' assertion to the contrary. I do not set them out here. That is because the decision must be based on an objective assessment on the function of the walls as built, rather than the developer's stated intentions, Riordan Communications Ltd v South Bucks DC [2001] 1 PLR 45. In my view, this is not a contradiction of Spackman, as Riordan referred to a rejection of stated assertions, rather than an objective assessment of intentions based on an examination of works carried out."

Paragraph 26:

"As a matter of fact and degree, I consider that the erection of walls on the roof of Leonard Court are material operations but are not material operations comprised in the development permitted by [1983] planning permission."

20. So the inspector dismissed the appeal. Pausing there, it might be thought plain beyond any doubt that the second inspector had faithfully followed the approach that was set out in the judgment of Ouseley J. He considered the differences between what had been constructed and the approved plans as he was entitled to do, but it is plain that he did not regard that issue as the be all and end all. He specifically set aside the question of plan errors, and concluded that what had been constructed did not look like part of the approved layout, "irrespective of the approved drawing errors." Thus, in the claimant's favour, he discounted the errors in the approved plans. Having identified the differences, the second inspector then went on to consider the significance of the differences between the approved plans and what had been built. In doing so, he expressly recognised that differences between approved plans and the operations relied on, in this case the walls, need not be fatal to the operations being capable of commencing the planning permission. So directing himself, he nevertheless concluded that in the present case the differences were decisive. What had been erected was not part of the construction of the additional storey for the flats, but something that looked like a "finished parapet wall."

21. The inspector did not simply consider the appearance of what had been constructed. He went on to consider the degree of alteration or adaptation that would be required if the walls were to be made to fit the approved plans and perform a function as walls for the flats. Having considered that matter, he concluded that scarcely any of the existing walls would be of use, for the reasons that he gave in paragraph 23 of his decision letter. There is no doubt that he looked at the works as a whole, not merely at the differences with the approved plans but also at the extent to which the walls were in conformity with the approved plans. For example, they were along the alignment shown in the plans. He concluded, and it was a matter of fact and degree for him, having inspected the walls in situ, that what had been built were parapet walls and not a partial construction of walls for the flats. He expressly considered the claimant's arguments to the contrary but did not accept them, noting correctly that his decision had to be based on an objective assessment of the walls as built, and not upon the developers' stated intention in building the walls. Hence he reached the conclusion, looking at the matter in the round, that the erection of the walls did amount to material operations, but those operations were not material operations comprised in the development permitted by the 1983 planning permission.

22. Thus summarised, the second inspector's decision would appear to be an impeccably reasoned decision letter on an issue that was essentially one of fact and degree. In his submissions, Mr Hobson valiantly sought to persuade me to the contrary. He referred, first of all, to the early history, to the commencement notice in relation to the works, and to the fact that the works had been inspected by council officials, to the photographic record that had been taken of the works, and to a memorandum prepared by one of the residents in the flats in November 1988, which contended that the works were being carried out solely to justify the maintenance of the planning permission. There is no dispute that in carrying out the works, the claimant intended to commence the implementation of the 1983 planning permission, but the inspector correctly directed himself, in paragraph 25 of the decision letter, that he was not concerned with the developers' stated intentions. He was concerned with an objective assessment of what had actually been built.

23. Turning to the inspector's assessment of that matter, Mr Hobson submits that the second inspector failed to take account of the totality of the work that had been done. He had the photographic evidence before him, and that demonstrated that scaffolding had been erected, roof coverings had been cut back, concrete beams had been exposed, steel stanchions had been fixed to the beams, and the walls had been constructed and capped with a coping layer for weatherproofing. As part of this work the existing railings, which provided protection to persons working on the flat roof, were removed from the two sides where the walls were to be constructed.

24. Referring to the decision in Malvern Hills DC v Secretary of State for the Environment and Another [1982] 46 P&CR 58, Mr Hobson submitted that a relatively slight amount of work would suffice to commence a planning permission and the inspector had failed to have regard to the extent of what had been done. I do not accept that submission. The inspector said in terms in paragraph 15 that his understanding was that "the work to build the walls took some 2-3 weeks". He then set out what was involved: "the erection of scaffolding, brick and block laying and rendering." He had already described the walls as being "1.15 m high, 0.3m thick". He had also described the manner of their construction. The inspector was rightly satisfied that those works were material operations in the context of section 56 of the Act. There is really nothing to support the proposition that the inspector did not look in the round at all the works that had been done.

25. The next criticism is that the inspector failed to consider the form of the wall as constructed and the reason why it had been constructed in that form as a 12-inch cavity wall. A number of points are made in a witness statement dated 20th November 2002, made by Mr Andrew Charles Edwards, who acts on behalf of the claimant. In so far as Mr Edward's witness statement explains the material that was in front of the second inspector, it is unobjectionable. In so far as it seeks to go further and present facts and arguments which were not placed before the second inspector, it is not admissible. So far as the form of the wall is concerned, the inspector accurately described its construction and noted that it was 0.3 metre thick. Thus there is nothing to indicate that he did not understand the manner in which the wall had been constructed.

26. Next, the inspector is criticised for his conclusion that adapting the wall would mean demolishing most of what had been constructed. Mr Hobson contended in his skeleton argument that only one course of bricks would need to be removed along with the coping course. He further relied upon the concession made by counsel then appearing on behalf of the Secretary of State, and recorded in paragraph 30 of Ouseley J's judgment:

"The walls as built could be modified by the removal of the brick coping and by the creation of apertures for windows or crenellations leaving a substantial part of the structure intact."

27. As I have mentioned, there is nothing to suggest that this concession was based upon a considered appraisal of the evidence. That, no doubt, is why the inspectorate posed the various questions in its letter dated 23rd July 2002, inviting the parties to make further representations. The parties were specifically asked to make representations as to "the extent to which the works that have been built would be usable in a final scheme built in accordance with the planning permission." The council responded to that invitation in the terms that I have set out above. In essence the inspector, on looking at the walls on site, has accepted the council's submissions. The extent to which that which had been built could be adapted was pre-eminently a question of fact and degree for the inspector, who is a Chartered Engineer, to assess in the light of what he saw on the site visit. I can detect no error of law whatsoever in paragraph 23 of his decision.

28. At one stage, Mr Hobson appeared to submit that since the walls could be demolished down to, say, one course and since the construction of one course of brickwork would suffice in order to commence a development for the purposes of the Act, see the Malvern Hills case, the inspector had erred in failing to consider whether that which was left even after extensive demolitions could nevertheless be said to have amounted to a commencement of the development. In my judgment, that is an attempt to revive the submission which Mr Hobson made to Ouseley J, and which was rejected in paragraph 35 of Ouseley J's judgment. That is to say, one simply looks at so much of the works as complies with the plans and ignores all that which does not comply with the plans. As Ouseley J said, the matter has to be looked at in the round. If one does so, it would be wholly unreal to ignore the fact that very substantial demolitions would be necessary in order to reach the position where a relatively modest amount of work was left which might then be capable of being described as being in accordance with the planning permission.

29. It is said that throughout his decision letter, the inspector has imputed an intention on the part of the developer and the builder to construct finished parapet walls rather than partially construct the walls required for the flats the subject of the 1983 permission. I do not accept that submission. The inspector made it perfectly clear, in paragraph 25, that his decision had to be based on an objective assessment of the function of the walls as built, rather than on the developers' stated intentions. There is no question of the inspector reintroducing a subjective element in error.

30. The inspector was criticised for saying, in paragraph 4 of the decision letter, that as built, the walls had the appearance of completed safety parapet walls. It was submitted that the appearance of the walls was irrelevant. I do not see how the appearance of a structure can be said to be irrelevant as part of an objective assessment of its function. In any event, at that stage of his decision letter the inspector was merely describing what appeared to him on his site inspection of the appeal building.

31. It is said that the inspector, in paragraph 16, introduced an element of subjective intention and speculation when he said in the final sentence:

"Their purpose [the walls] appears to have been to protect those on the roof from possible falls into the lightwell."

Again, all the inspector was doing in that paragraph was describing how the walls looked to him. The decision letter has to be read as a whole and the proposition that the inspector wrongfully imputed some subjective intention flies in the face of the inspector's express disavowal of that approach in paragraph 25 of his decision letter.

32. Finally, it is submitted that the inspector's decision was manifestly unreasonable or perverse. The inspector is a chartered engineer. He inspected the walls in situ. He accepted the council's written submissions as to their function upon the basis of an objective assessment. That being the case, it cannot be said that the inspector's conclusion was perverse. Whilst it may well be unwelcome to the claimant, who undoubtedly did intend to implement the planning permission, it is nevertheless one which the inspector was entitled to reach. The point has to be repeated; the question was not what did the developers intend to do, but what was the function of the walls as built.

33. For these reasons, this challenge to the second inspector's decision must fail.

34. MR COPPEL: I am grateful for that, my Lord. I would ask your Lordship to order costs for the first defendant to a summary assessment. Your Lordship should have a statement of the first defendant's cost.

35. MR JUSTICE SULLIVAN: Yes, I do. I have been given one. Is there any dispute about principle or amount?

36. MR HOBSON: My Lord, I am just catching up with the position. Obviously, I do not raise any objection to paying the Treasury Solicitor's costs but I have a schedule here --

37. MR JUSTICE SULLIVAN: Yes, £5,101.75. Is there any dispute about that?

38. MR HOBSON: No.

39. MR JUSTICE SULLIVAN: Right, then the claimant is to pay the first defendant's cost. Those have been summarily assessed to the sum of £5,101.75.

40. MR HARRISON: My Lord, I do make an application for the second defendant's costs.

41. MR JUSTICE SULLIVAN: Yes.

42. MR HARRISON: I believe the normal rule is that the court does not award two sets of costs. In my submission, what the second defendant brings to these proceedings, which the Secretary of State could not do, is the detailed knowledge of the history since 1983, then through to the events of 1988 and 1989, and your Lordship has heard submissions on those, and then through to the inspector's decision letters. Secondly, an ability to deal with any detailed points as they have come up as to the construction of the walls and the way the walls appeared. Also, there was a matter which appeared to be at some issue in paragraph 30 of the judgment of Ouseley J. So for those reasons, we say there are grounds why, unusually, the second defendant's costs should be taken into account in this case.

43. MR JUSTICE SULLIVAN: Mr Hobson, I do not think I need to trouble you on that. Whilst it is very nice to see you, Mr Harrison, I do not think your interests were so distinct from that of Secretary of State that I should depart from the normal rule and give two sets of costs. Anything else?

44. MR HOBSON: No, my Lord.

45. MR JUSTICE SULLIVAN: Thank you very much indeed.