Cobbledick, R (on the application of) v First Secretary Of State & Anor

MR JUSTICE SULLIVAN: This application for judicial review is a sequel to the case of North Cornwall District Council v Secretary of State for Transport, Local Government and the Regions [2003] EWHC 2318 Admin; [2003] 1 P&CR 25. In that case, I dismissed the Council's appeal against a decision of an inspector appointed by the Secretary of State allowing an appeal by Mr Cobbledick against an enforcement notice that had been issued by the Council on 1st August 2001. I described the Council's appeal as a veritable storm in a very small planning tea cup.

Now another storm has blown up in the teacup over the Secretary of State's decision on Mr Cobbledick's application for the costs of his successful appeal against the enforcement notice. On 25th February 2003, the Secretary of State exceptionally issued a "minded" decision explaining why he proposed to make a full award of costs against the Council.

Having received further representations from the parties, the Secretary of State issued his final decision in a letter dated 4th July 2003. In that letter, he concluded that no award of costs against the Council on the ground of unreasonable behaviour resulting in wasted or unnecessary expense was justified. He therefore refused Mr Cobbledick's application for costs, and in this application for judicial review, Mr Cobbledick challenges that decision.

The appeal against the enforcement notice was dealt with by written representations, so Mr Cobbledick's costs could not have been very large. In R (London Borough of Ealing) v Secretary of State for Environment [1999] EWCH Admin 345, I said that where the costs of judicial review proceedings are likely to be equal to if not more than the costs the subject of the award the parties should think long and hard before deciding to seek permission for judicial review. That advice was particularly directed at local planning authorities who sometimes seem to view an adverse award of costs as a slur on the Council's corporate reputation as a planning authority which has to be expunged regardless of the sums at stake. In that case, the award was made by an inspector who had conducted the enquiry and who was therefore particularly well placed to decide whether the Council, in giving its evidence, had behaved unreasonably.

In the present case, because the Inspector had allowed Mr Cobbledick's appeal on ground (c) he did not consider the planning merits of the appeal, and following the Council's unsuccessful challenge in the High Court, Mr Cobbledick's application for costs was determined by the Inspectorate on the basis of written representations from the parties.

Although the sums at stake are likely to be small, this is no ordinary costs decision. The Secretary of State took the exceptional step of issuing a "minded" letter. That letter is very detailed and runs to no less than 26 paragraphs. The final decision letter is similarly detailed and runs to 24 paragraphs. In these circumstances, it behoves the Secretary of State to get the right answer, and I do not therefore accept Mr Strachan's invitation on behalf of the Secretary of State to refuse to grant Mr Cobbledick relief as a matter of discretion.

I can take most of the background facts from the judgment in the earlier case. Mr Cobbledick is Managing Director of Oceancrafts Limited, and for the last 20 years (as at 2002) Oceancrafts had taken premises in the retail area of Bude to sell shells and other "oceancrafts" to visitors during the summer season. In 2001, Mr Cobbledick was unable to find a shop that would be available for the summer, so he took a licence of 14 Belle Vue, Bude ("the property").

The property is a two-story, double fronted Edwardian house in the Primary Commercial Area of Bude. It is one of a terrace of former houses, 4-18 Belle Vue, all of which, apart from the property, are now in primarily retail use with single-storey extensions on the frontage, extending up to the back edge of the footway. These extensions provide additional retail floor space and incorporate modern shop fronts. The property is the exception, it has a front garden laid to grass with a footpath to a central front door flanked by a matching pair of two-storey splayed bay windows.

Previous occupiers of the property were a firm of chartered accountants and agents for the Woolwich Building Society. They carried on business offering financial and professional services to visiting members of the public for some 36 years. It was not in dispute that their use of the property fell within Class A2 (financial and professional services) in the Schedule to the Town and Country Planning (use Classes) Order 1987.

On 12th July 2001, Mr Cobbledick was granted a licence to occupy the property until 5th October 2001. The property was in a poor condition, the previous occupiers having received a Dilapidations Notice from the owner. A substantial amount of work needed to be done to it, and the peak summer season was rapidly approaching, with the schools due to break up on 19th July. So Mr Cobbledick erected a temporary timber structure, described by the Inspector as a standard exhibition display unit in the forecourt to allow trading to start whilst work was done to the main building. It took three days to erect and fit out the unit and another two days to stock it. Oceancrafts began to trade from the property on July 19th.

On 1st August the Council issued two enforcement notices. Both related to "land at 14 Belle Vue ... as shown edged red on the attached plan". The whole of the property and not merely the temporary structure was shown edged red.

One enforcement notice alleged an unauthorised material change of use:

It required Mr Cobbledick:

Seven days was allowed for compliance after the notice took effect on September 8th. That would have allowed Oceancrafts to complete the works to the main building and to trade for much of the summer season, but the enforcement notice was backed by a stop notice which required all retail use of the land and the unauthorised timber building thereon to cease on August 5th.

The other enforcement notice alleged unauthorised operational development, "The erection of an unauthorised timber structure currently being used as a shop", and required its removal within seven days after the enforcement notice took effect on 8th September.

Mr Cobbledick complied with the stop notice, stopped trading and removed the temporary structure. He appealed against both enforcement notices, but since the temporary structure had been removed in compliance with the second enforcement notice, the appeal against that enforcement notice was not pursued.

His appeal against the first enforcement notice was dealt with by way of written representations. The Inspector visited the site on 1st May 2002. In his decision letter dated May 13th 2002, the Inspector allowed the appeal on ground (c), that there had been no breach of planning control, and did not therefore consider the planning merits under ground (a).

In the "Minded" decision letter, the Secretary of State said this:

Subparagraphs (3) to (5) of paragraph 5 in PPG 18 are concerned with the general approach to enforcement. They advise local planning authorities considering enforcement action to consider whether the breach of development control would unacceptably affect public amenity. They advice that enforcement action should always be commensurate with a breach of planning control, and they also indicate that local authorities may seek to persuade owners or occupiers of sites voluntarily to remedy the harmful effects of unauthorised development. The point is made that if those negotiations fail, then they should not be allowed to delay formal enforcement action.

In other parts of PPG 18, advice is given in relation to enforcement action to deal with unauthorised development by small businesses or self-employed people. Paragraph 15 makes it clear that the initial aim should be to explore in discussion with the owner or operator whether the business can be allowed to continue operating acceptably on the site at its current level of activity, or perhaps less intensively. Paragraph 16 says:

Mr Cobbledick's written representations for the enforcement notice appeal had included the following information:

The Council responded to the minded letter by explaining what members' concern had been and what information had been placed before members. The Secretary of State was told that a video presentation had been made to the Council's Planning and Development Committee who considered enforcement action on 24th July 2001 as an urgent item. A copy of the video was enclosed. In addition, a copy of a memorandum from the Council's Head of Development Control was also enclosed confirming that the item was presented to the Committee and:

The Secretary of State was also sent a copy of a letter of complaint from the Bude-Stratton Town Council dated 27th July 2001:

The video was sent to Mr Cobbledick's solicitors, and in a letter dated 17th April 2003 they said:

The final decision letter stated that the claimant's complaints did have some force in relation to the totality of the Council's action: that is to say in relation to the service not merely of the enforcement notice which was the subject of the appeal, but in relation to the service of both enforcement notices, one of them being backed by a stop notice.

That conclusion is readily understandable. It is extraordinary that the Council chose to serve a stop notice without having made any prior attempt to contact Mr Cobbledick. He had traded in Bude each summer for 20 years, and there is no suggestion that he was evading enforcement action.

However, the Secretary of State's approach in the final decision letter, as amplified by Mr Strachan in his skeleton argument, was to clearly distinguish between the decision to serve the stop notice for which compensation is available under separate provisions in the 1990 Act and the decision to serve the enforcement notice, which was the subject of the appeal. The decision letter made the point that Mr Cobbledick:

The Secretary of State's conclusions are set out in paragraph 21 of the final decision letter:

Upon the basis that the decision to serve a stop notice and the consequences flowing from that notice are a separate issue, and that one should focus upon the reasonableness of issuing, in combination with the operations enforcement notice, a second enforcement notice alleging a material change of use in respect of the whole of number 14, I am in no doubt that in concluding that the Council's conduct was not unreasonable the Secretary of State has lost the wood for the trees.

It is plain from the Council's correspondence in response to the "minded" decision letter that its avowed purpose in serving the enforcement notices was to remove the temporary building which was regarded as an eyesore in Bude's main trading street, and that there was a need for urgent action because of the relatively short summer season in Bude.

Mr Cobbledick's principal complaint was that the Council simply never made any enquiry of him as to why he had placed the temporary building in front of number 14, and for how long he proposed to keep it there. His contention was that the failure to make those most basic enquiries before embarking upon enforcement action was unreasonable in the light of the guidance in PPG 18 above.

If the Council had made any enquiries of Mr Cobbledick, it would have been told that the temporary building had been placed there to enable number 14 to be refurbished for retail use, and that "ideally" (from Mr Cobbledick's point of view) the temporary building would remain there until 15th August to allow the works to be completed, whereupon it would be removed.

If the Council had obtained that information, there can be no doubt whatsoever that no reasonable local planning authority armed with that information would have dreamt of serving an enforcement notice which took effect on 7th September and thereafter gave seven days for compliance, and which required not merely that retail use ceased in the temporary building but that it ceased throughout the whole of number 14 by 14th September. I realise that the Council was constrained by Section 172(3) as to the earliest date when an enforcement notice could take effect, but the question is whether it was reasonable to serve this enforcement notice to secure the removal of this temporary building. On the basis of the factual information that could have been obtained from Mr Cobbledick, which might even have included an earlier date for removal than his "ideal" date of the 15th August, such an enforcement notice would have been (a) wholly unnecessary since it was proposed to remove the eyesore by 15th August; (b) wholly ineffective since the holiday season would effectively be at an end by 14th September; (c) plainly excessive since the Council's concern related to the temporary structure and did not extend to the use of number 14 for retail purposes.

Although Mr Strachan submitted that if one looked at the evidence in the round, the Council would have issued an enforcement notice in relation to the retail use of number 14, quite apart from its desire to remove the eyesore presented by the temporary structure, that suggestion, which does not appear in the Secretary of State's decision letter, is simply not borne out by the evidence.

The Council's written statement for the purposes of the enforcement notice appeal dealt with the ground (a) appeal against the enforcement notice in these terms:

These considered reflections on the part of the Council merely confirm the material contained in its response to the minded decision letter. It is plain that the Council's concern was to secure the removal of the temporary structure because it was an eyesore in Bude's main shopping street, and the Council did not want such an eyesore to be there during the short summer season. Given that those were the Council's objectives, it is plain that had they made even the simplest enquiry of Mr Cobbledick, the enforcement notice which was actually served would not have been served.

As I have said, it would have been unnecessary to serve the enforcement notice in respect of the eyesore if the proposal was to remove it by 15th August. The object of protecting the amenity of Bude's main shopping street for the short summer season would not be achieved by requiring removal of the structure or the cessation of the use of number 14 for retail purposes by 14th September; and there was no basis on which, subject to detailed discussions about the design of display windows, the Council would have objected to the retail use of number 14 itself.

In my judgment, the Secretary of State's final decision letter, long though it is, fails to grapple with these essential points. Had the Council made the most elementary enquiries of Mr Cobbledick, service of the enforcement notice against which he successfully appealed would have defied common sense. The Council acted unreasonably in issuing an enforcement notice in the terms set out above, and the proposition that it is unlikely that the Council would have acted differently if it had done more to contact Mr Cobbledick and clarified his intentions assumes that the Council would have persisted with a course which was manifestly unreasonable.

For these reasons, neither of the conclusions in paragraph 21 of the Secretary of State's final decision letter can be sustained.

For the sake of completeness, I should mention that Mr Strachan advanced one further reason as to why it would not be appropriate to award the claimant costs in the present case. The contention is that Mr Cobbledick, in appealing against the enforcement notice, was simply concerned to ensure that upon the quashing of the enforcement notice, he would be entitled to compensation under the stop notice. As the Secretary of State says, his entitlement to compensation under the stop notice is a separate question. Once that is regarded as a separate question, then the question for the Secretary of State was (see para 21 of the decision letter): did the Council act unreasonably in issuing the second enforcement notice alleging a material change of use, and had they contacted Mr Cobbledick, might they have acted differently?

There is only one answer to both of those questions: "Yes". The point is taken that if the appeal was pursued for the sole reason of claiming compensation in respect of the stop notice, it would not be appropriate to award costs, because they could be claimed as part of the compensation claim in respect of the stop notice. I am not convinced that that is necessarily the case. A claimant for compensation must have mitigated his loss, and it might be argued that if Mr Cobbledick was entitled to make a claim for costs then he should have done so.

There is a perfectly valid claim for costs to be determined by the Secretary of State. Although the information provided in Mr Cobbledick's written representations for the purposes of the enforcement notice appeal indicated that he had obtained a licence of the premises for that summer season, the extent to which he either had or hoped to obtain a further interest in the property at the time of the appeal against the enforcement notice was not raised by the Secretary of State as a possible reason for not awarding costs. I simply record that Mr Maurici on behalf of the claimant told me upon instruction that as at the time Mr Cobbledick appealed against the enforcement notice, and that plainly is the relevant time, he was hoping to obtain a further interest in the property. In any event as at that time he still had a licence to trade in the property for the remainder of the summer season. If the Secretary of State is to take this new point, then plainly the claimant must be given a fair opportunity to explain what the position was when he appealed against the enforcement notice.

The material fact, it seems to me, is that the second enforcement notice did not simply relate to the temporary structure; the Council chose to serve the second enforcement notice in respect of the whole of number 14, prohibiting retail use in respect of the whole of the premises. There is no indication that it gave any consideration as to whether an enforcement notice in such broad terms was justified on the merits, given that it did not appear to have an objection in principle but was simply concerned about detailed matters of design. In any event, the question is whether the claimant at the time of the appeal against the enforcement notice was justified in appealing against such a notice.

For all of these reasons, I am satisfied that the decision dated 4th July 2003 must be quashed.

Yes.

MR MAURICI: My Lord, I do not know if you have a copy of the scheduled summary costs.

MR JUSTICE SULLIVAN: I am not sure I have one from you. I do not know.

MR MAURICI: My Lord, may I hand it up. My Lord, you will see the total at the end is £11,316. My Lord, there needs to be some reduction, because on the first page, 4 hours was claimed for attendance at hearing.

MR JUSTICE SULLIVAN: Have you been doing the arithmetic?

MR MAURICI: My Lord, that needs to be effectively halved, because this will be just under two hours in total. My Lord, other than that, may I just say, I do not want to pre-empt submissions that will perhaps be made by my learned friend about proportionality. As my Lord will realise, this is an unusual and exceptional case, and it was incumbent on the Secretary of State to get it right. In those circumstances, what needs to be looked at is whether these costs were in themselves reasonable, the same would apply in any other judicial review.

My Lord, given your Lordship's judgment and given the decision was unlawful, the claimant did not have really have many options in terms of what to do about the decision. He had to apply for judicial review; that is what he has done. The Secretary of State could have consented to a judgment at any point and he did not do so, hence the total sum of costs comes to that amount. My Lord, again, I do not want to pre-empt what my learned friend says, but in those circumstances, whatever the relationship of these costs to the costs incurred on the enforcement notice appeal, the only question is whether these costs themselves are reasonable in the light of the judicial review proceedings that have had to be brought and which have succeeded.

MR JUSTICE SULLIVAN: Yes. Mr Strachan.

MR STRACHAN: My Lord, could I just have one moment to speak to my learned friend about one item before I address your Lordship on costs.

MR JUSTICE SULLIVAN: Yes, of course.

MR STRACHAN: My Lord, I do not resist the principle of costs. As to the quantum, my Lord, I do have one or two observations on the total schedule. My Lord, I do submit that the question of proportionality requires the court to assess the amount spent in litigation bearing in mind the nature of the underlying dispute. I accept it was necessary to bring the judicial review proceedings, but that does not give necessarily a licence to spend an excessive amount.

In that respect, my Lord, subject to the deduction for the attendance at hearing, which I am grateful to my learned friend for pointing out, on the first page, I do not have any particular observations on the first page. I do have observations on the second page. I have just taken instructions from my learned friend that the fees for advice/conference documents which are said to be in relation to his name in fact are attributable in part to Mr Harper of Queens Council who drafted the original claim. Your Lordship will see the claim form settled by Mr Harper originally.

MR JUSTICE SULLIVAN: I had not actually picked that up, no.

MR STRACHAN: His name is at the end of the detailed statement of grounds. I am not sure what costs are attributable to that. My Lord, just speaking generally on these costs, it seems in our view that the costs associated with that are excessive bearing in mind the nature of the underlying dispute. Of course, the claimants are entitled to choose to instruct leading council, they may wish to settle proceedings, but in my submission, that type of approach in a litigation which has obviously led to a rather large sum attributable to counsels' fees in the whole is disproportionate, particularly bearing in mind your Lordship's view as to the nature of the case. Your Lordship has taken a very clear and robust view that it was not necessary to instruct leading counsel to settle these proceedings or bring them before your Lordship. That goes really to the issue of proportionality.

My Lord, I am not seeking to detract from the principle that they were entitled to bring the proceedings.

MR JUSTICE SULLIVAN: Yes. They can bring the proceedings and get their costs on their winning, but then the question is, how much?

MR STRACHAN: Indeed, and the Civil Procedural Rules are clear in indicating that one does have to have regard to the underlying matters at stake. I am not aware of what the costs were on the written representations of the enforcement notice appeal, but it does seem that the exercise here has led to a large generation of costs, some of which are unnecessary.

MR JUSTICE SULLIVAN: I have to say, in terms of proportionality, I was slightly worried by both sides. Mr Maurici's skeleton was 18 pages long, I think yours was 29 pages long. It is a pretty short point as to whether you should have served this enforcement notice to try and get rid of a building that, if people had asked, would have gone by 15th August.

MR STRACHAN: My Lord, it is always difficult to know how long a skeleton argument should be. Your Lordship had the double advantage of not only being someone very experienced in planning matters but also having dealt with the case beforehand.

MR JUSTICE SULLIVAN: You were both, of course, doing it on the basis that it could easily have been dealt with by another judge who had not been in on round one. I appreciate that.

MR STRACHAN: The facts were a little convoluted. I endeavoured to set them out.

I would also point out, my Lord, we did not serve detailed grounds, which may be taken as a point against us for not complying with the procedures, but equally, my Lord in my submission, you would not have been assisted. Although potentially we were required to incur those costs, we did not.

My Lord, I just make those submissions on the final page as to the quantum of counsels' fees bearing in mind the overall dispute.

MR JUSTICE SULLIVAN: Yes. I think, Mr Maurici, the counsels' fees, the fee for the hearing is not a matter for concern, but if they are all aggregated together, to put it bluntly, it is a heck of a lot for a relatively short case.

MR MAURICI: My Lord, the first element, the fee for advice or documents, my Lord, that consists, as my learned friend rightly pointed out, of both my fees and Mr Harper's fees. It is my fees for drafting the skeleton argument. In terms of Mr Harper's fees, it was for the advising of bringing the claim and also for drafting the proceedings.

My Lord, can I just say two things on that. First of all, in actual fact, the total for Mr Harper's fees as part of that is £1,500. He actually charged a reduced rate, partly to reflect the fact that we were concerned from the beginning of the proportionality of the claim. My Lord, the second thing is that the reason I am here and not Mr Harper is that permission having been granted, the view was taken that it was not appropriate to continue to use senior counsel; although senior counsel had of course charged a fee for bringing the claim, it was not proper to carry on using senior counsel. For that reason, junior counsel was instructed so that there were not even greater fees incurred in terms of drafting the skeleton argument and appearing at the hearing.

My Lord, for those two reasons I would say that the total composite of counsels' fees is reasonable. It has been arrived at with the claimants specifically bearing in mind the need to try and keep the costs down as much as possible.

MR JUSTICE SULLIVAN: Yes. Mr Maurici, knocking off a couple of hours, that knocks off £380, so in round terms it brings it down to a little less than £1,100. Then we have the question as to what we do, I do not mean this disrespectfully, about the Harper factor, as it were; the fact that two counsel have been involved. I have heard what you said about that. Is there anything else you wish to say?

MR MAURICI: My Lord, not unless I can assist you further. I have made my submissions about the sums.

MR JUSTICE SULLIVAN: Thank you very much. It does seem this has been a very expensive storm in a teacup. I do not think it should be as expensive as set out in these costs. Making allowance for the fact that the Secretary of State should not have to pay for the fact that two counsel have been involved, one of them a leading counsel, in a case of this kind, and the slightly shorter day, doing the best I can, I summarily assess the claimant's costs which the defendant must pay in the sum of £9,500.

Thank you both.