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

JUDGE RICH: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the Secretary of State's Inspector whereby he dismissed an appeal by the claimant against a planning decision of the second defendant, the Bath and North East Somerset Council.

The application was for the development of an extension to the claimant's house of an existing loft conversion to provide shower and toilet facilities. The Inspector identified one main issue as having been raised by the appeal, namely whether the scheme was a good design. The Inspector decided that it was not a good design and on that ground dismissed the appeal.

The applicant to this court complains that such decision was what he calls "in breach of natural justice", by which I think it is right to say he means that the decision itself was unfair, and he explains the unfairness, and particularly the sense of unfairness from which he suffers, by reference to a number of other decisions, particularly of the Council itself, where what he regards as identical proposals for dormer extensions on other houses have been granted.

If the council has been deciding other cases in a sense which is different from that which led the Inspector to the conclusion he did in the appeal which is the subject of application to this court, I can understand that that would indeed give the claimant a feeling of grievance. It is not, however, in any sense evidence that the Inspector in making his decision on the claimant's appeal himself acted unfairly or improperly. No evidence has been placed before the court from which any such inference could be drawn. The court's powers, as is well-known, under section 288 are limited to cases where the decision of the Inspector is not in accordance with the Act, or alternatively there has been a failure to comply with the proper procedural requirements whereby the claimant has been substantially prejudiced.

An allegation of bias against an Inspector could be brought within either or both of those grounds. But an allegation of bias upon which this court could act would have to be expressly stated, would have to be made against the decision-maker, and would have to be supported by evidence. None of those things has been done in this case and, as I understand the claimant's complaint, it is not even suggested that what he feels has been unfair treatment has been the result of bias by the Inspector as opposed to the Council in its subsequent treatment of other applications.

In those circumstances, there is in my judgment no basis upon which this court can interfere with the decision of the Secretary of State. The claimant's misapprehension that it was within the power of this court to review the decision itself is a complete misunderstanding of the nature of the jurisdiction granted to the court by section 288. I must express my gratitude to the claimant that, having had this explained to him, he has been prepared to accept and recognise the limitation of the right of redress granted to him under the statutory provisions. It is for these reasons that I must dismiss this claim.

What, if anything, follows?

MS OLLEY: My Lord, I am grateful. I do have an application for the Secretary of State's costs. The statement of costs was served upon Mr Cottle.

MR COTTLE: Yesterday.

JUDGE RICH: Do you have a copy?

MR COTTLE: Yesterday.

MS OLLEY: That is of course within the time limit.

JUDGE RICH: Do I have a copy?

MS OLLEY: I do not believe that you will have a copy. (Handed) On the basis that costs are in the event, I ask for my costs in the sum of £2,570.

JUDGE RICH: Are you able to explain to me at all what is the over eight hours' work on documents that was involved in this matter?

MS OLLEY: My Lord, that includes the advice which was given by those instructing to the client.

JUDGE RICH: No doubt, but eight hours, in addition to the half-hour which is involved in attendance upon the client?

MS OLLEY: My Lord, you will make an assessment as to the appropriate amount of the costs in accordance with the principle of proportionality. I would submit that the figure is reasonable. Clearly, in respect of every claim it has to be taken seriously and proceedings have to be taken, advice has to be given, et cetera, et cetera.

JUDGE RICH: That is why I asked for an explanation of how it comes that eight hours was spent on studying these documents. I confess I have not studied them so I have no idea how long it might take me but it does not, glancing through it, seem to me to be the sort of material that needed such careful attention. Of course, it must be taken seriously but --

MS OLLEY: What has been done, my Lord, is that a small amount of time has been spent by the more senior fee-earner and the bulk of the time, 6.4 hours, has been spent by the person who claims the hourly rate of the trainee.

JUDGE RICH: He or she may well have spent a very interesting time reading these documents. To what effect?

MS OLLEY: Well, my Lord, in my submission that is not an unreasonable amount of time to spend.

JUDGE RICH: What did this trainee usefully achieve by spending six and a half hours reading these documents?

MS OLLEY: May I take an instruction, my Lord?

JUDGE RICH: Yes.

MS OLLEY: Well, my Lord, what he did do was produce an advice for his client which has then kept down the fees which would necessarily have been incurred by counsel, so he has kept down the attendance on counsel. So where something is given in one area, it is reflected in another.

JUDGE RICH: Yes. Well, two questions for you, Mr Cottle. The first is: have you anything to say why I should not grant the Secretary of State the costs that are involved in his being represented at this hearing?

MR COTTLE: My Lord, I am sure you will agree that the justice in this country is not only intended to be for the rich person, but is also intended to be for the person of modest means as well. When I see an hourly rate of £200 per hour, and I think of how many hours I have to work to earn that sort of money, or days, I find some of these hourly rates totally unreasonable. There is another entry there: two hours' travel and waiting time at £200 per hour. Travel time and waiting time, £200 an hour, £400.

MS OLLEY: My Lord, that can be reduced to one hour.

MR COTTLE: We come back to the 6.4 hours for the time on documents. The documents that I have presented here have been done in a very, very clear and concise way and none of the items that I have put in these documents have been challenged at all. I mean, like yourself, my Lord, I cannot understand why 6.4 hours were spent on that. I accept the fact that judgment has been given against me, and I accept the fact that they are entitled to ask for costs. I accept that totally, but I think the bottom figure here is totally unrealistic for the amount of work involved in what is essentially a very, very simple case.

JUDGE RICH: Yes. I would propose, having regard to the deduction of £200 for the time of attendance and -- what you said was it regards travel and waiting, but you thought that should be one hour.

MS OLLEY: Yes, where it says attendance at hearing; two hours' waiting £200, we concede that that should be one hour.

JUDGE RICH: So a total of two hours for attendance and travelling and waiting?

MS OLLEY: Yes.

JUDGE RICH: Although your trainee was employed at a comparatively modest sum, the amount of time that has been spent by him is quite disproportionate and I would assess costs accordingly in the sum of £2,000. The first defendant's costs to be paid by claimant, assessed at £2,000. Is there anything else?

MS OLLEY: I hope that the order will make clear to the parties that that is to be paid within 14 days in accordance with the normal procedure.

JUDGE RICH: He has heard that that is what the rules say. I do not know that the form of the order actually recites the rules which are to that effect. Is there anything else I should deal with? Thank you very much indeed.