Hamsher, 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 given by his Inspector on 24th March 2004 whereby she allowed an appeal by Triyoga (UK) Limited, the second defendant, against a decision of the London Borough of Camden.

The application by the second defendant was to vary a condition 3 in a planning permission granted on 19th August 1999 for use of premises known as Unit 4, 6 Erskine Road, NW3, for the holding of yoga classes so as to permit that use on Saturdays and Sundays from 8 am to 8.30 pm instead of from 6.30 am to 6 pm. The change of condition 3 was permitted subject to the imposition of two further conditions as follows:

The claimant lives at 11 King Henry's Road, NW3. His garden abuts the appeal premises. He complains of the noise which emanates from the appeal premises when used for such classes and he is aggrieved by the variation of the conditions in the 1999 planning permission so as to permit such extended hours. In particular he complains of the fact that he did not receive a copy of an acoustic report, prepared on behalf of the second defendant, to which the Inspector said she attached considerable weight (see paragraph 12 of her decision letter) and upon which she relied as a reason for reaching a different decision in respect of the hours of weekend use from that made by another Inspector on 14th November 2002 (see paragraph 22 of her decision letter).

The claimant had made representations to the local planning authority as to the application to them for planning permission. Accordingly, when the Secretary of State decided that the appeal should be determined by way of a hearing under the Town and Country Planning (Hearings Procedure) (England) Rules 2000, Camden were obliged by Rule 4(2)(b)(ii) to ensure that he was notified of the appeal and of the address to which, and the period within which, he could make representations to the Secretary of State. This Camden did by letter dated 14th August 2003. The letter promised to notify the claimant as to the date, time and venue of the hearing when it was arranged. They thus anticipated an obligation which the Secretary of State would be likely to impose upon them under Rule 7(5)(b).

The Hearings Procedure Rules do not themselves impose further duties upon the local planning authority in respect of persons who made representations to the local planning authority about the application occasioning the appeal, even though if they make such representations within the time limited by Article 19(1) of the General Development Procedure Order 1995 the local planning authority is, in itself determining the application, bound to take such representations into account. The Hearings Rules do however, in respect of statutory parties, provide that they should not only receive a notice under Rule 4(2), but also that copies of hearing statements from the appellant and the local planning authority (Rule 6(2)) and of any comments made thereon (Rule 6(4)) should be served on them either by the appellant or by the local planning authority according to who produces them. Any other person will be entitled under Rule 6(6) to be allowed to inspect such documentation upon request, at a place to be specified in the local planning authority's hearing statement.

Camden's letter of 14th August 2003 invited the claimant to telephone to the Appeals Admin Officer if he needed any further information. It did not however tell him that he could inspect hearing statements or other documents prepared for the hearing upon request under Rule 6(6). The claimant made no such request and therefore, as he deposes in paragraph 7 of his witness statement in support of his application:

The claimant's first ground for his application to this court is that he was a statutory party to the hearing, entitled therefore to be served with copies of the hearing statements, so that there has been a failure to comply with the relevant procedural requirements, and the claimant's interests have thereby been substantially prejudiced. A question is raised by the Secretary of State whether any such failure by a party to the hearing, rather than by himself or his Inspector, can be relied upon as a ground to question his decision. Having regard to my decision as to whether there has been any failure to comply with these requirements at all, that question does not arise. Since however the power to quash arises on there being non-compliance which substantially prejudices the applicant, it would not seem to me to avoid the ground that the Secretary of State has, by making the Hearings Procedure Rules, imposed the procedural requirement upon a party to the hearing rather than upon himself.

In my judgment however this ground fails because the claimant is not a statutory party. That expression is defined by Rule 2 of the Hearings Rules as follows, so far as applications to which the General Development Procedure Order 1995 applies:

I shall refer to that as "limb (1)". There is then a semicolon, and there follows limb (2):

Reference to the 1995 Order enables us to identify the persons within limb (1). Paragraph 3 in regard to appeals provides:

Thus one can read those provisions in those paragraphs substituting "Secretary of State" for "local planning authority". I so read article 19 (1)(b) and (2), substituting "Secretary of State":

Thus the Secretary of State's obligation to have regard to representations extends only to representations by owners, and not to persons who merely make representations in response to notices of advertisements, and only to those who do so having been so served, having an interest in land. Although the claimant is an adjoining owner, he was not served as such. Nor, even if he had been, would he have been a person within paragraph 1(b)(i) but only within paragraph 1(b)(ii). Accordingly, the claimant is not within limb (1) of the definition, nor does Mr Williams, who appears for the claimant, suggest that he is.

I will reread limb (2) of the definition. It is:

This involves rereading Article 19(1) without substituting "Secretary of State" for "local planning authority", but including paragraphs other than subparagraph (b) of paragraph (1).

The local planning authority is required therefore to take into account responses to site display notices received within 21 days, as well as in response to notices to owners under sub-paragraph (b) received within that time, and responses to advertisements, where advertisement is required, which are received within 14 days. Those periods are, the order says, prescribed under section 71(2)(a) of the Act of 1990 which makes provision for consultation in connection with determination of planning applications under section 70 of the Act.

Mr Williams contends that limb (2) includes any person who makes representations to the local planning authority within such time limits in response to any such notice or advertisement. That is not however what it says. It refers only to any "such" person whose representations the local planning authority were required to take into account. "Such" must be a reference back to the persons referred to in limb (1) i.e. a person mentioned in paragraph 1(b)(i) of Article 19. Thus limb (2) includes owners who have made representations to the local planning authority on the original application as statutory parties as well as those who have made such representations to the Secretary of State. In my judgment any other construction involves disregarding the word "such".

In regard to listed building appeals, paragraph (b) of the definition does not include the word "such". It occurred to me that it was possible that the inclusion of "such" in paragraph (a) was a drafting error. Reference to the Planning (Listed Buildings and Conservation Areas) Regulations 1990 however shows that Regulation 6(3)(b) refers only to representation "by any person who satisfies [the local planning authority] that he is an owner of any of the building to which the application relates." The obligation to have regard to representations by others who respond to advertisement or site notices arises under Regulation 5(2) of those Regulations.

Thus the two definitions both refer to owners only, and the choice of language, namely the use of the word "such", was necessary to achieve what I am satisfied was the purpose as well as the effect of the definition in the case of appeals to which the General Development Procedure Order applies.

The fact however that the claimant was not a statutory party with the rights accorded to such parties does not mean that he was not entitled to natural justice. The second ground of the claim is expressed as follows:

Although the persons entitled to appear at the hearing are limited by Rule 9(1) of the Hearings Rules to "(a) the appellant; (b) the local planning authority; and (c) any statutory party", it is provided by Rule 9(2) that:

The claimant appeared with such consent and, having regard to the representations which he had made both to the local planning authority and to the Secretary of State, and his interest as an adjoining occupier, permission for him to do so could hardly have been refused. He was therefore, as is accepted by Mr Auburn, who appears for the Secretary of State, entitled to a fair hearing. That does, in my judgment, involve his being enabled to know what the appellants' case was. The Rules enabled him to inspect the relevant documents but he was apparently unaware of the provision of the Rules and had not done so. I think it would be desirable that the Secretary of State should consider whether Rule 4(2) should not require the local planning authority to give notice of the right to inspect under Rule 6(6), but the Rules are published and are capable of being known. The local planning authority offered further information if required. Even therefore if the Rules could be improved, as I think they could be by such addition, the failure to give the claimant further notice as to his rights does not in my judgment make the procedure unfair.

The claimant however asserts at paragraph 8 of his first witness statement:

No doubt by hindsight the claimant has so persuaded himself, but it is not what he said at the time. The Inspector has deposed at paragraph 8 of her witness statement:

The way that the case has been advanced by Mr Williams has been the alternative adumbrated at paragraph 21 of the claim, namely that the claimant "was entitled to be given the opportunity of an adjournment in which the contents of the survey could be considered". The claimant explains at paragraph 14 of his witness statement:

He elaborates on this at paragraph 10 of his second witness statement:

I find it surprising that the claimant, who works as a maritime arbitrator, should not have thought of asking for an adjournment if he felt that there was "a complete failure to comply with the requirements of fairness", but I must accept that as being his uncontradicted evidence.

The question then arises whether the Inspector failed to give the claimant a fair hearing in failing in all the circumstances to offer him the opportunity of an adjournment. It is to be noted that although the claimant maintains that it was made clear to the Inspector that none of the objectors had had sight of the appellant's submissions or evidence, the Inspector, according to her witness statement, does not appear to accept that it was indeed made clear to her. I read paragraphs 4 and 5 of her witness statement:

I will, nonetheless, assume that she was told that the claimant had not availed himself of the opportunity to inspect the report before the hearing, but I find nonetheless, as indeed is admitted, he did not seek time at the hearing to read it or consider it beyond the account given of it at the hearing.

I infer that it was his comment or that of another objector that led to the Inspector saying in her decision letter at paragraph 13:

In the Dyason case, to which reference is made in the grounds for this application, the Court of Appeal did quash an appeal decision made after a hearing because of the Inspector's failure to allow or indeed propose an adjournment to enable an expert, a Mr Loxam, who attended the hearing late, to read a so-called "business plan" which was material to the determination of the size of building necessary for the appellant's business of ostrich farming. Pill LJ drew attention to a danger inherent in the hearing procedure at page 61E of the decision:

Pill LJ concluded on the facts of that case at page 62D that:

Nourse LJ applied the inquisitorial burden at page 63 as follows:

In this case, the Inspector thought as a result of discussion that she did have the information necessary for her decision. She gave the following reasons for giving the report weight at paragraph 12 of her decision letter:

The claimant was willing to join in the discussion of the report, as she thought "from an informed viewpoint", without asking for time to read it in order to supplement the information which he had been given on it during the hearing by her summary and the experts' evidence. Although there are circumstances, as the case of Dyason shows, when it is for the Inspector to take the initiative and invite an objector to read a document before it is discussed, this does not appear to me an occasion when that was necessary in order to achieve a full and fair hearing. It is not suggested by the claimant that he could have said anything more if he had been given such opportunity.

The claim alleges however that unfairness arose because the claimant was not given the opportunity of an adjournment in which the contents of the survey could be considered. Neither in argument nor in evidence has it been made clear whether the claimant is saying only that he should have been given opportunity to consider the report, a claim with which I have dealt, or that he should have been given the opportunity to which he referred in paragraph 8 of his first witness statement, namely to instruct his own expert to provide a rival report.

Such latter possibility was only faintly urged on me by Mr Williams in arguments before me. Mr Williams no doubt recognised the difficulty of contending that the inquisitorial burden required an adjournment of that kind to be offered to an interested person who had failed to inform himself of the material which the appellant had told the local planning authority and the Secretary of State he intended to adduce.

Had the claimant himself proposed such an adjournment, it would, I accept, have been difficult to deal with fairly. Costs on the part of the appellant and the local planning authority would have been thrown away. It would to that extent have created unfairness to others, unless the claimant was willing to pay such costs. But once one recognises those difficulties, in circumstances where no application is made by the claimant, nor even a complaint that he would have wished to act as he now says he would have acted had he seen the report before the hearing, how can it be part of the Inspector's inquisitorial duty to invite such an application? If the need for it is not apparent to the claimant, because he does not identify the disadvantage which he now says he suffered and does not at the time seek a remedy for it, how can it be part of the Inspector's inquisitorial duty to propose an adjournment which could only be granted at the risk of unfairness to other parties?

Nevertheless, these difficult questions do not really arise. It is the Inspector's evidence that she did seek to satisfy herself that none of the parties, including the claimant, thought that further evidence was needed in order to arrive at a fair decision. I have already read paragraph 8 of her witness statement. Although the claimant served a second witness statement in response to a witness statement served on behalf of the second defendant, the Inspector's evidence is not disputed. In the circumstances, I find it impossible to hold that the procedure which she adopted was not one which gave the claimant a full and fair hearing. I therefore dismiss the second ground of this application.

The claimant's third ground is expressed thus in paragraph 23 of the claim:

It is right that the Inspector had concluded in paragraphs 13 and 14 of her decision letter:

She then dealt with the enforceability of such conditions at paragraph 20 by contrasting them with conditions where enforcement might be less practical. I will read paragraphs 19 and 20:

She thus in paragraph 20 fails specifically to refer to views which the claimant said in his witness statement, paragraph 15, had been expressed by a Council Officer as follows:

In my judgment, enforceability was a material consideration. The opinion of the Council or its officers as to enforceability was not, however, of itself a material consideration unless it was right, and whether it was right was, insofar as it was a matter of planning judgment, a matter for the Inspector. Mr Williams of counsel, on behalf of the claimant, has not been able to argue that the Inspector's conclusion was formed on an erroneous basis of law; nor could he. The proposed conditions, he accepts, would be enforceable under the enforcement provisions of the Planning Acts. What is being suggested is that they might be flouted with impunity. So might, indeed have been, the time limiting conditions which the appellants sought in the hearing before the Inspector to have varied. Proof of a breach of the proposed additional conditions, the Inspector is concluding, is no more of a problem than proof of non-compliance with the time restrictions. Whether they are complied with can be ascertained by the Council and by the neighbours. Enforcement is then a matter for the local planning authority if it considers it expedient to enforce. The Council's unwillingness to enforce is not a reason for not giving it the power to do so if it so desires.

For these reasons, I would refuse this application.

MR WILLIAMS: Thank you, my Lord. You will have noticed that Mr Auburn is not here this morning, but I can confirm that agreement has been reached with the First Secretary of State as to the costs of this application in the sum of £4,750.

JUDGE RICH: Judgment dismissing application. Claimant to pay First Secretary of State's costs in sum of £4,750. Thank you.

MR NARDELL: My Lord, there is an application by the second defendant, Triyoga Limited, for a second set of costs. Can I indicate that there is agreement between the claimant and Triyoga to this limited extent: if your Lordship is minded in principle to make an award of costs in Triyoga's favour, that we agree that it is an appropriate case for detailed assessment of those costs, not summary assessment, because it so happens there is a particular issue as to possible entitlement of costs which could be dealt with by the costs judge and your Lordship not detained with that. There is agreement to that. So your Lordship is not going to be asked to operate his calculator, nor, I say with a sigh of relief, are the members of the bar.

My Lord, can I deal first, in making my application, with the principles that are applicable. Your Lordship referred yesterday to authority. Of course, there is authority in the shape of Bolton and other well-known cases. Can I take your Lordship, as far principles are concerned first, to the primary priority governing courts' discretion as to costs, namely CPR part 44. Does your Lordship have the White Book to hand?

JUDGE RICH: Yes, I have.

MR NARDELL: Your Lordship will find Rule 44.3 at page 1066 of the 2004 Volume 1. I know there is sometimes a little decalage at this time of the year in replacing --

JUDGE RICH: Rule 44 ...?

MR NARDELL: Rule 44.3: "Court's discretion and circumstances to be taken into account when exercising its discretion as to costs." I am sure your Lordship is familiar with it.

JUDGE RICH: Yes, I have read it.

MR NARDELL: By way of reminder:

I interpolate here that Triyoga comes to these proceedings as a party. These are not judicial review proceedings where the court has a discretion to entertain somebody who is not the decision-maker as an interested party. Triyoga is served in these proceedings, governed by Order 94 under the Supreme Court as now scheduled to the CPR. It appears as a defendant to the proceedings; it is a party.

Notably, my Lord, at paragraph (3) there are specific instances given in the Rules of circumstances in which the general rule does not apply. Such proceedings on applications under section 288 of the Town and Country Planning Act are not among them. Rather one has general guidance in paragraphs (4) and (5) to the way in which the court should exercise its discretion. Your Lordship will know under paragraph (4) that having regard to all the factors that it must, the court may have regard to matters including "(a) the conduct of the parties; (b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and (c) any payment into court or admissible offer ..." which is not a matter of course that arises in this case.

In paragraph (5) we are reminded that the conduct of the parties includes various matters:

My Lord, I interpolate for a second time there to remind your Lordship that in exercising its discretion under any of the CPR Rules, including part 44, the court is driven by the overriding of part 1, the overriding objective of disposing of cases justly and, in the context of Rule 44(6), remind the court that one particular way of achieving justice in the context of costs is to make an order short of an order that one party pay the totality of another's costs. The party may be ordered to pay a proportion of the party's costs, a stated amount of costs, in relation to certain periods by reference to various stages of the proceedings, and so the overriding source and guidance the court has to decide in its discretion is in part 44.

My Lord, that is not to say that the previous practice adumbrated by the court in relation to section 288 of the 1990 Act has entirely gone away. It synthesises the guidance which was given for the purpose of the old rules of the Supreme Court Order with the guidance given in paragraph 44. Indeed, the learned editors of the White Book have made a specific reference to the traditional planning point at note 48.14.1. Can I take your Lordship to that at page 1292?

Headed "Group actions multiple representation in planning appeals". There is a reference to a number of the familiar authorities and, my Lord, for that reason I have not brought along a report of those authorities. I do not think it is going to be too much in dispute between my learned friend what the authorities --

JUDGE RICH: Page?

MR NARDELL: 1292.

JUDGE RICH: I fear I probably have an out-of-date White Book.

MR NARDELL: It may be me that has the out-of-date White Book. At this time of year there is always a decalage. It is note 48.14.1. It is under an italic cross-heading --

JUDGE RICH: 48.14.1.

MR NARDELL: The cross-heading is "Costs relating to particular types of action or proceedings."

JUDGE RICH: Yes, I have it.

MR NARDELL: The first part is "Group actions multiple representation in planning appeals". I do not think there is going to be any serious dispute between myself and my learned friend as to whether there is an accurate statement of the principles that were adumbrated by the -- or at least a statement of practice that was adumbrated by the court under the pre-CPR regime:

Paragraph 1 does not directly concern us. The Secretary of State should not have to forego any part of his costs or to share them with the second defendant. Paragraph 2:

No doubt that is the statement of practice which my learned friend will rely particularly heavily on. Paragraph 3:

Paragraph 4 refers to a third set of costs which does not apply in this case.

The question for your Lordship is the extent to which one must now reread or reapply the guidance given by the House of Lords in Bolton in the light of the CPR. In my respectful submission, the concept of a separate issue for interests requiring separate representation, which was always a somewhat elusive concept, now has to be read in the light of the factors which are set out in CPR 44.3, notably in subparagraphs (4) and (5) to which I took your Lordship: conduct of the parties including, in particular, "whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue".

My Lord, the circumstances in which it might be regarded as reasonable for a second defendant in a case like this to raise or contest a particular allegation or issue may well include, but are probably broader, beyond the category in which one could identify distinct or separate interests, if you like. They tend to be a rather limited concept anyway.

It is a matter for your Lordship's discretion. The overriding concern is fairness and reasonableness. Can I, against that background of principle, very shortly summarise why in our submission this is a proper case for an order that preferably the whole, or a substantial part, of Triyoga's costs ought to be paid by this claimant.

My Lord, your Lordship will recall that there were three basic grounds to the case made by the claimant. The statutory party argument, the broader fairness and natural justice argument, and finally the case about conditions. Insofar as the argument in relation to statutory parties was concerned, the allegation was directed -- indeed, as your Lordship recorded in his judgment, the Secretary of State pointed out that it was an allegation directed primarily not at the Secretary of State but of the conduct of the parties, Triyoga and the local planning authority. It was an allegation that, on the Rules as properly considered, it was Triyoga that was under a duty to serve its evidence. Your Lordship noted that the Secretary of State -- I slightly exaggerate -- rather had sought to wash his hands of that issue. Of course he did develop his argument on it in his skeleton. I have no doubt that Mr Auburn, had he been called upon to do so, would have amplified that case in argument yesterday.

But the fact was that here was an issue, an allegation made in relation to the conduct specifically of Triyoga, as well as the local planning authority, and that was an issue which called out for Triyoga to put its case together, to respond and develop representations to be made if necessary.

The argument in relation to fairness --

JUDGE RICH: I do not think I have seen the documents. I suspect that in the notice to you from the Secretary of State you were told whom the Secretary of State was requiring you to serve documents on.

MR NARDELL: Quite so.

JUDGE RICH: So if the claimant's name was not amongst them it was not a claim against you, properly speaking; you had done what you had been told to do by the Secretary of State, and they were saying what the Secretary of State told you to do was wrong.

MR NARDELL: Yes. Had the claimant succeeded in its argument -- however flawed it might have appeared to us and to the court -- that he was a statutory party, then the result of that successful appeal would have been placed at risk as a result of a failure precisely of something which would not on notice during the appeal process --

JUDGE RICH: I was merely disputing with you whether it is fair to categorise the statutory party point as being directed specifically at you rather than at the Secretary of State.

MR NARDELL: Ultimately it must be directed at the Secretary of State who, for the reasons given by your Lordship, had in this case considered the issue. Your Lordship would no doubt have been driven to the conclusion that a failure to comply with the requirements includes those requirements placed on the parties as well as on the Secretary of State.

JUDGE RICH: You did not in your skeleton argument, as I recollect it, take the point, which was not argued before me but upon which I saw fit to comment, as to whether or not it could be a ground.

MR NARDELL: No, the difficulty was for us that the Secretary of State in his skeleton rather appeared to be taking that point. In Mr Auburn's skeleton -- I think it is paragraph 4 -- he made the observation that this is an allegation of an obligation on Triyoga.

JUDGE RICH: Yes, but you did not adopt that point yourselves.

MR NARDELL: The risk to us was precisely that had the Secretary of State not argued that point, and your Lordship had been concerned about it, we were -- precisely because if the allegation that we, Triyoga, should have served the claimant as a statutory party was made good, the risk was that the claimant would have succeeded in an argument that that was enough to vitiate the Secretary of State's decision. It is precisely because of the risk of that argument succeeding, given that the Secretary State --

JUDGE RICH: You rightly did not suggest if there is a fault it is my fault so that it does not vitiate the decision.

MR NARDELL: No, it is precisely because we were at risk that it was right for us to develop our argument and attend prepared to do so.

By all means the second ground prepared for the claimant in relation to fairness generally covered a great deal of common factual ground, with the underlying (inaudible) pre-hearing alleged by the claimant in his details of claim witness statement, and the gist of the way the case was put was this. Although it was a complaint about what the Inspector should or should not have done at the hearing, the gist of the complaint was that the Inspector's duties arose in the context of the claimant finding himself embarrassed at the hearing by not having had advance notice, from whatever source, of the material upon which Triyoga intended to base its case.

It seems to me that it was entirely reasonable for the second and third defendants to respond by indicating the factual context from which the pre-hearing contact between Triyoga and the claimant took place, to indicate that the prejudice or degree of disadvantage alleged by the claimant was perhaps somewhat lesser than in the way his claim was put. Knowledge about what passed between Triyoga and the claimant pre-hearing was exclusively within the province of Triyoga itself. The Secretary of State could not possibly have known about the exchange of emails and the discussion about evidence. It was plainly reasonable, in my respectful submission, for Triyoga to respond and attempt to rebut that element of the claimant's case.

Indeed, Triyoga's rebuttal appeared to have an impact. The claimant evidently felt that that (inaudible) to which he needed to respond if he were to make good his case. That is an advantage which he had at the beginning of the hearing and which required a certain response on the part of the Inspector. Indeed, in responding to Triyoga's evidence, the claimant's case matured to some extent, and there was a hint of a suggestion that Triyoga was to some extent implicit in the unfairness that he faced at the hearing.

Your Lordship will recall an allegation appearing in a short passage of Mr Hamsher's second witness statement in which he averred that counsel Triyoga asked questions of the experts at some length. It did not mature, but there was at least a hint there of some suggestion that Triyoga took unfair advantage of the claimant's disadvantage, possibly the Inspector's lack of awareness of that disadvantage. It was not quite put in that way, but it seems to me that we were entitled to come along to the hearing to make our own observations about the conduct of the hearing before you, and put that allegation in context.

Your Lordship will recall that at the time of the second witness statement, he felt inclined to make general observations about the overall conduct of the hearing. At that stage no witness statement had appeared from the Inspector, nor was there any indication that a witness statement would be produced. I do not criticise the Secretary of State. I know from my own experience that there is quite a rigmarole involved in going from counsel through the Treasury Solicitor to the departmental solicitor, through the planning officer to the Inspector, once on the way there to get the information, once on the way back to get it back. There are certain time delays built into the system. This is not a criticism. It was reasonable for Mr Sattin to make his witness statement to deal with issues of the general planning and conduct of the hearing, in addition to those issues which pointed specifically to matters which the hearing is going to deal with.

As far as ground 3 is concerned, the question of conditions, again the case was not put in a way that made ultimately any allegation about Triyoga's conduct, but one had ever present the allegation at paragraph 15 of the claimant's first witness statement that as far as conditions were concerned the claimant in some sense felt ambushed by the suggestion that a condition for closure of windows might be an appropriate basis on which the variation of permission should be granted. That could have matured. It did not in the event, but it could have matured into a suggestion that, for that reason, the Inspector was under some heightened duty to make reference to what was said by the local authority officer or others at the hearing, or to produce more comprehensive reasoning than he did. It did not mature in fact but, my Lord, it appeared in Mr Hamsher's witness statement, Mr Sattin responded to that allegation in his witness statement, and it was responded to again by Mr Hamsher's second witness statement.

So on all three grounds there were matters which a reasonable party in the position of Triyoga might sensibly have been inclined to respond to. Triyoga did respond in this case, but indicated from the very outset in response -- your Lordship will recall the letter from Mr Sattin to the claimant's then solicitors of 14th May 2004, at pages 85 and 86 of the bundle, responding to each of the three elements of Triyoga's claim and indicating what, in short form, Triyoga thought the issues were, and inviting the claimant to reconsider whether to bring the case and that an order for costs would be sought.

Your Lordship might have seen at page 89 of the bundle another letter in the absence of substantive reply to that letter. It was rather an unsatisfactory correspondence. Triyoga, in the absence of any reply to its May letter, indicating again that it might have to instruct counsel, in which case the question of costs would arise. The reference in respect of an application for costs reiterated in the second statement, paragraph 3 of the bundle, page 56, and finally in our skeleton for the hearing, paragraph 26, again a question of costs was raised.

So not so much a question of notice that costs would be sought carrying weight for itself, but it carries weight in the context for this reason: that it gives a claimant an opportunity to see what flaws in its case are identified by the second defendant and to reconsider whether to persist in its case at all, or in particular, whether to persist in those elements of its case which amount to allegations either against the second defendant or allegations which a reasonable party in the position of the second defendant may be expected to respond to and to incur costs in response to. Here one had a conscious decision to persist despite the successive stages and clear indications being given of the very flaws among which are the grounds on which your Lordship has dismissed this application, and in the conscious knowledge that Triyoga would be seeking its costs at the end of the process.

Can I indicate a third reason why it would not be unjust to make a second order for costs in this case? Mr Hamsher at paragraph 3 of his second witness statement makes the observation that he brings this claim not just on his own behalf, but he is simply the de jure claimant on behalf of a number of individuals with a similar interest who are, so to speak, de facto parties standing alongside him.

Your Lordship will have seen in the dramatis personae at the end of the Inspector's decision letter that a large number of residents accompanied him to the hearing and your Lordship may have noticed that a number of them were present in court yesterday. This is not a case where a second order for costs would potentially and unjustly fall on a single individual.

JUDGE RICH: I am only empowered to award costs, unless there is an application against the others, against the claimant who has appeared.

MR NARDELL: There is no suggestion that an order should be made against them, but one may take into account what is in evidence, that in reality this is a claim by a number of individuals.

JUDGE RICH: It may so turn out. It is extraordinary what support one gets before it costs money.

MR NARDELL: Quite so. But if one is going to give support one ought at least to appreciate that the hat is going to be passed around if it all goes pear-shaped. One assumes that if people are going to be brought in as supporters, they will be brought in on an informed basis and they will be informed about the risk that the person they put up as a defendant is going to have an order for costs made against him. The assumption must be that if a hat is going to be passed around to pay for the costs (inaudible) then it must be able to be passed out when an adverse order for costs is made. King Henry's Road, I think your Lordship is entitled to take note, is not the most impoverished part of London.

JUDGE RICH: I really do not think I am entitled to deduce the means of the claimant from his address.

MR NARDELL: There are clearly cases where a legally aided claimant comes before the court and under the public interest rules there is nobody who would be prepared to put their name to it save one individual, and questions arise as to whether the public interest is such that --

JUDGE RICH: Particular rules apply to legally aided.

MR NARDELL: They do. My Lord, it is a consideration which, in my respectful submission, is entitled to weight. Whatever inference one is entitled to draw about means, here one has a number of individuals who, as the claimant's evidence indicates, have in reality jointly decided to pursue litigation to defend what they see as their interests.

My Lord, those are my submissions. In this case it is fair and reasonable, in my submission, to depart from what might be called the starting point of no second order for costs, and I invite your Lordship to make an order that the entirety of Triyoga's costs be subject to detailed assessment. Your Lordship has a discretion to award some part of the costs, less than the entirety, if your Lordship sees fit.

JUDGE RICH: Were the witness statement of the Inspector and the skeleton on behalf of the first defendant served on you at the date that they bear?

MR NARDELL: They did not come to our attention until -- the skeleton argument of the Secretary of State did not come to my attention until the morning I prepared my skeleton which was, I think, Friday the week before last. That skeleton made the first reference I or my solicitor had seen to the witness statement of the Inspector. We did not get those until some time later in the day.

JUDGE RICH: Later on that same day?

MR NARDELL: The same day, during the course of the preparation of my skeleton.

JUDGE RICH: Subject to any submissions that you may have, my present thought, Mr Williams, is that it would be appropriate to award costs up to and including 10th September.

MR WILLIAMS: My Lord, perhaps I can simply address you on that basis therefore.

JUDGE RICH: My reasoning can be expressed perfectly shortly. Until that date, clearly Triyoga had an interest which they desired to protect, and they did not know until that date that they could rely upon the first defendant to protect their interest for them.

MR WILLIAMS: In relation to the statutory party ground, there has been no dispute before you as to whether or not there was any compliance with the duty, if indeed the claimant had been a statutory party. No one is suggesting that the hearing statements were served and to that extent it was a simple question of construction of the regulations that govern how the First Secretary of State holds his hearings.

JUDGE RICH: There is no means of knowing whether the Secretary of State will not chuck his hand in and say "Oh dear, we got that wrong" until you have seen the skeleton.

MR NARDELL: There is no way of knowing for certain, my Lord. Whether that raises a separate issue from the issue that exists for the Secretary of State is perhaps a different question.

JUDGE RICH: The proposition that I am putting to you is that it is suggested that they are a necessary party. I think that is right. They certainly have a very clear interest in protecting the decision and so the question really is whether it is reasonable for them to have continued their involvement once they knew that the first defendant was going to take all the points that they desired to take on their behalf. My suggestion is that until 10th December their stance was reasonable. Thereafter they could properly rely on the Secretary of State and if they wished to appear they should appear at their own expense.

Now if you wish to contend for some different basis of deciding the appropriate order as to costs, I will hear you. Otherwise that is the order which would flow from that analysis.

MR WILLIAMS: Perhaps I may say this, my Lord. The Bolton case is taken as a starting point, and remains as a starting point, and it is that the developer will not normally be entitled to his costs unless he can show an issue that is separate from the issue for the First Secretary of State, or an interest which required separate representation, and whilst undoubtedly Triyoga had an interest in the outcome of this application, it appears to the claimant that it is not a different interest than that of the first Secretary of State. It is the usual position that the developer finds himself in when a decision is challenged which granted him a planning permission.

JUDGE RICH: I am looking again for the reference.

MR WILLIAMS: The reference to Bolton, my Lord, was at 48.14.1, which is somewhere in the vicinity of page --

JUDGE RICH: I found it before. I little doubt that I can succeed in doing it again.

MR WILLIAMS: 48.14.1. The passage which --

JUDGE RICH: Yes. 48.14.1. Is it after the practice directions? I have it.

How can he know what issues the Secretary of State is going to take until he sees what steps the Secretary of State takes?

MR WILLIAMS: My Lord, he is entitled to assume that the Secretary of State will defend the claim on the grounds that have been put forward.

JUDGE RICH: Why?

MR WILLIAMS: Or that the decision not to defend the claim will be proper.

JUDGE RICH: It might be mistaken, and anyway he might wish to defend it. Until he knows the stance that the Secretary of State is taking -- I suppose it is putting it a little high to say that he is likely to have to take them all by himself because he does not know -- but at least he is entitled surely to set out his position and hope possibly to prevent the Secretary of State going wobbly.

MR WILLIAMS: My Lord, if that is correct, then in every situation where a decision granting planning permission to a developer, where such a decision is challenged, the developer will be entitled to recover his costs until such time as the Secretary of State files a skeleton argument taking every point upon which the claim was raised. It is submitted by the claimant that that is not the practice of the courts as set out in Bolton where the defendant, as a developer, is not normally entitled to a second set of costs. The need to appear must be judged -- or the need to appear on a separate issue must be judged -- ex post facto now to see whether or not there was an issue that the Secretary of State would not have had an interest in that the developer may have done.

JUDGE RICH: The Rules as now set out raise a presumption in favour of my making an order for costs in favour of the successful party. I think it is inherent in the decision in Bolton that the House of Lords was saying that there was no such presumption. Now, if that is what the House of Lords was saying, then the Rules are now different. If it is not what the House of Lords was saying, then the fact still remains: am I to say "This animal is naughty, it defends itself"? Surely it is entitled to expend money defending its position until such time at least as it is not reasonable for it to do so because the primary person responsible for the decision has adopted the task of defending it himself.

MR WILLIAMS: My Lord, it may be that the difference is that the developer appears in order to protect its interest whereas the First Secretary of State appears in order to defend its decision, and the claim is made against the decision and there is no doubt that consequences flow for the developer, but it is the primary responsibility of the Secretary of State to defend its decision.

JUDGE RICH: But what is the developer to do? Is he to do nothing until such time as he finds out what the Secretary of State is doing? I can see an argument that possibly he should inquire of the Secretary of State, and if you were suggesting that he was in some way in default in failing to make such inquiry -- I have not followed the course of correspondence but I suspect that they have written to the Secretary of State. I do not want to be disrespectful, I do not know if they are now represented, but it might have taken a little while before the answer was given.

MR WILLIAMS: My Lord, I have no information as to whether or not they contacted the Secretary of State to discover whether or not they were defending the claim. I am not suggesting that they knew that the Secretary of State intended to until they got the skeleton. I am not either saying that the developer need do nothing. However, such action as he takes is not taken in the expectation of recovering costs in the event that they take the same point and on the same grounds as the Secretary of State. Unless I can assist you further ...

JUDGE RICH: I am minded to make the order that I have just indicated.

MR NARDELL: My Lord, if your Lordship is minded to make that order, can I invite your Lordship, given that in the context of even that element of the costs that your Lordship is minded to award, that your Lordship will extend his order to the costs of today's application for costs?

JUDGE RICH: Was there an offer? No, clearly not.

MR NARDELL: I do not think it would be right for me to, without prejudice, say what there was unless your Lordship invites me to do so.

JUDGE RICH: If you have a separate application for today's costs, I will hear it after I have dealt with the application for costs of the proceedings. So far as that is concerned, for the reasons that I have given in argument, it does appear to me that the presumption in favour of a successful party having costs, created by the CPR, raises a different context for judging the matter than arose under Bolton, but the entitlement to costs should be strictly limited by the provisions of 44.3.5(b) that the court should consider whether it was reasonable for the party to pursue a particular issue, to such period when the developer can properly consider it reasonable to continue to take part in the proceedings in order to protect his stance.

Sorry, you are still standing. Are you still wishing to address me?

MR NARDELL: Perhaps a way of making sense of it is in this way: that although Rule 43 did create a presumption that there will be an order of costs, it does not necessarily -- and this is where it can be related to Bolton -- create a presumption that the prospective developer will get the totality of his costs. To that extent one can reconcile the Rule. I would make the comment, as far as the costs of today are concerned, that --

JUDGE RICH: If it depends in any sense upon any offer that you have made, let me continue what was purporting to be a short judgment explaining why I am going to allow you the costs up to and including 10th September. I hope that the reasoning that I have given is sufficiently apparent from my interruptions of counsel's argument and my reaction to counsel's interruptions of what I intended to be a judgment.

On that basis, my order is that the second defendant to have costs up to and including 10th September. Now if there is an application separately for the costs of today, I will hear it.

MR NARDELL: My Lord, it could be put very shortly. There has been a contest, albeit short, on the question of whether any costs should be awarded. I have partially succeeded on my application for the costs of the proceedings, and I think there ought to be an order on the basis --

JUDGE RICH: Did you propose that the costs should be limited to some period or some proportion than which you have done better as a result of my order?

MR NARDELL: No, there have been discussions which were a good deal less concrete than that. They were not expressly made without prejudice save as to costs, and therefore I do not think it would be right for me to (inaudible).

JUDGE RICH: In that case my order stands as made and there is no special order made in respect of today. Now, is there anything else that remains?

MR WILLIAMS: My Lord, no.

JUDGE RICH: I am obliged to counsel present and absent for the assistance I have had.