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

MR JUSTICE JACKSON: This judgment is in seven parts, namely:

This is an appeal under section 289 of the Town and Country Planning Act 1990 against the decision of a Planning Inspector. The claimant, Mr Mohammed Eid, is the owner of the two properties which are the subject of the appeal. The First Secretary of State (to whom I shall refer as "the Secretary of State") is the first defendant. The Westminster City Council (to whom I shall refer as "the Council") is the local planning authority and the second defendant in these proceedings. I shall refer to the Town and Country Planning Act 1990 as "the 1990 Act".

Section 174 of the 1990 Act permits a property owner to appeal against an enforcement notice on a number of grounds. Ground (a) reads as follows:

The rules of court referred to in section 289 of the 1990 Act are contained in RSC Order 94, Rules 12 and 13 which form part of Schedule 1 to the Civil Procedure Rules. RSC Order 94 Rule 13(7) provides:

The Town and Country Planning (Use Classes) Order 1987 defines a number of classes of use. These include the following:

I shall refer to the Planning and Compulsory Purchase Act 2004 as "the 2004 Act". Section 56 of the 2004 Act provides:

That is a sufficient outline of the statutory framework. It is now time to turn to the facts.

Edgware Road in London, formerly part of Watling Street, has been a principal thoroughfare in this country for almost 2000 years. In the middle of the 20th century a Jewish community developed in this area. Soon afterwards, residents arrived from Arab countries. By the late 20th century Edgware Road had a settled community drawn from the Middle East generally. Many shops and restaurants served the needs of these residents.

The two properties with which this court is concerned are numbers 65 and 67 Edgware Road. I shall refer to those two properties as "number 65" and "number 67". Number 65 and number 67 are on the left-hand side as one walks northwards up Edgware Road from Marble Arch. They form part of a parade of commercial properties. This parade runs from 45 Edgware Road (on the corner of Connaught Street and Edgware Road) up to 79 Edgware Road (on the corner of Kendal Street and Edgware Road).

It can be seen from the bundle of planning documents that numbers 65 and 67 have had a variety of permitted uses since the introduction of planning control after the Second World War. These include restaurant use, retail shops, estate agents' office and bank premises.

The position in 2002 was that the claimant was the owner of numbers 65 and 67 and he was operating a cafe on the ground floor of these two premises known as "Al-Dar Cafe". Unfortunately, this was not a permitted use of either property at that time. The lawful use of number 65 was class A2. Number 67 had no lawful or permitted use at all because of a previous period of unauthorised use.

On 8th November 2002, the Council served an enforcement notice on the claimant. This notice required the claimant to cease using the ground floor and forecourts of numbers 65 and 67 as a cafe or restaurant. By a notice of appeal dated 17th December 2002, the claimant appealed to the Secretary of State against the enforcement notice pursuant to section 174 of the 1990 Act. Although the appeal was brought on a number of grounds, the only ground which is relevant for present purposes is ground (a); namely that planning permission ought to be granted for the use in question.

The Secretary of State appointed an Inspector, Mr Steven Fox, to determine the appeal. Mr Fox visited the site on 18th June 2003. He convened an oral hearing ("the first inquiry") on 19th June, 27th August and 28th August 2003. By a written decision dated 8th September 2003, Mr Fox dismissed the claimant's appeal and upheld the enforcement notice subject to certain minor variations.

The claimant appealed against the Inspector's decision pursuant to section 289 of the 1990 Act. His Honour Judge Rich QC, sitting as a Deputy High Court Judge in the Administrative Court, heard and allowed the claimant's appeal on 20th April 2004. The basis of Judge Rich's decision was that Mr Fox had misinterpreted the Unitary Development Plan which the Council had adopted in 1997. Judge Rich ordered that the Inspector's decision be remitted to the Secretary of State with the opinion of the court for rehearing and redetermination.

Following the decision of this court, the Secretary of State appointed a different Inspector, Mr Roderick Evans, to hear and determine the claimant's appeal against the enforcement notice. Mr Evans convened an oral hearing ("the second inquiry") on 11th, 12th and 24th January 2005. Mr Evans also made three visits to the site during January 2005. Two of these visits were made during daytime and one of these visits was made at night.

Between the time of the first inquiry and the second inquiry there was one significant change of circumstances. That related to the Council's development plan. At the time of the first enquiry, the relevant plan was the Unitary Development Plan adopted by the Council in 1997. Nevertheless, regard could be had to a new development plan which was emerging and which was passing through the statutory processes. By the time of the second inquiry, however, that new development plan had come to fruition, although it was a few days short of formal adoption. That new development plan is the City of Westminster's Replacement Unitary Development Plan 2011. This is generally referred to as "the RUDP" and I shall adopt that terminology. The RUDP was treated by both parties at the second inquiry and by the Inspector as being the adopted development plan and no complaint is, or could be, made about that approach.

The RUDP is not a document which lends itself to pithy summary, nor is it light reading. I should, however, set out certain parts of the RUDP which were the subject of consideration at the second inquiry. Part 1 of the RUDP sets out general strategies. Policy Stra 10 provides:

I should explain at this point that a cafe falls within the definition of entertainment. For the purposes of the RUDP, a cafe is characterised as being one form of entertainment. In the explanatory section which follows Policy Stra 13, there appears the following paragraph:

Chapter 1 of the RUDP deals with Westminster's Central Area. Policy Cent 2(A) provides as follows:

Policy Cent 4 provides:

Chapter 7 of the RUDP deals with shopping policies. Policy SS 1 provides:

Policy SS 2 provides:

Policy SS 5 provides:

There then follows a passage setting out the reasons for this policy. This passage includes the following paragraph:

Chapter 8 of the RUDP deals with tourism, arts, culture and entertainment. This chapter acknowledges both the benefits of and the drawbacks of places of entertainment. As previously mentioned, places of entertainment include cafes. Paragraphs 8.74 to 8.76 discuss the need to find a balance between the competing interests. Paragraph 8.79 states that the aim of policies Tace 8 to 10 is as follows:

Table 8.1 states that Policy Tace 8 will apply to cafes with a gross floorspace of less than 150 square metres. The premises at the ground floor of numbers 65 to 67 fall within that category. Policy Tace 8 provides:

Stress Areas are discussed in paragraphs 8.92 to 8.94 these paragraphs state:

Although other parts of the RUDP were referred to during the second inquiry, and indeed in argument at this hearing, no further recitation of the RUDP is required for present purposes.

At the oral hearing before Mr Evans, four witnesses were called. Mr Sugiura and Mr Raven were called on behalf of the claimant. Mr Sugiura is a Chartered Engineer and Mr Raven is a Chartered Town Planner and Urban Designer. On behalf of the local planning authority, the Council, there were called Mr Simmons, an Assistant Area Planning Officer and Mr Bradshaw, a Senior Practitioner (Noise) in the Department of Community Protection.

The Inspector, Mr Evans, had before him the evidence which had been before the previous Inspector. He also had extremely detailed expert reports from both parties, together with voluminous appendices. It appears from the material before me (which includes some of counsel's written submissions to the Inspector) that the issues were explored very thoroughly and that no stone was left unturned. The Inspector, Mr Evans, took some six weeks to consider the evidence and arguments. By a written decision dated 11th March 2005 ("the decision letter"), the Inspector dismissed the claimant's appeal and upheld the enforcement notice subject to the same minor amendments as the previous Inspector had made.

In paragraph 12 of the decision letter, the Inspector identified the two main issues in the appeal. These were:

The decision letter included the following passages which are relevant to the issues which I have to decide:

Let me now revert to the two main issues which the Inspector identified as arising in the appeal. In relation to the first main issue, the Inspector found that the use of the premises as a cafe was harmful to the character and function of the CAZF and contrary to the policies of the RUDP. He decided that this amounted to "an overriding reason for dismissal of the appeal". Although the Inspector decided that his conclusion in relation to the first issue on its own merited a dismissal of the appeal, the Inspector went on to consider the second issue in any event. The Inspector found that if the premises were to be open after 11 pm, that could lead on occasion to late night disturbance and/or disruption of sleep for people living above the premises. Accordingly, the Inspector decided that if planning permission had been granted for change of use, he would have imposed conditions requiring the premises to close and forecourt tables to be removed by 11 pm: see paragraphs 27 to 30 of the decision letter.

The claimant was aggrieved by the Inspector's decision. Accordingly, he commenced the present proceedings.

By an appellant's notice dated 15th June 2005, the claimant appealed against the Inspector's decision pursuant to section 289 of the 1990 Act. The appeal was based upon two grounds, namely:

In support of his appeal, the claimant lodged a witness statement made by Mr Andrew Raven who had been one of the claimant's expert witnesses at the inquiry before Mr Evans. Mr Raven, in his witness statement, expands on the grounds of appeal. He also produces as an exhibit some 800 pages of the written evidence which had been before the Inspector.

The defendants in the present proceedings are (1) the Secretary of State, and (2) the Council. The Secretary of State resists the appeal, essentially on the grounds that the Inspector made no error of law and reached a decision which was open to him. The evidence lodged by the Secretary of State comprises one short witness statement made by Mr Evans, the Inspector. In that statement, Mr Evans states that paragraph 22 of the decision letter contains a typographical error. In the penultimate sentence of paragraph 22 the phrase "the extensive A1 premises" should read "the extensive A3 premises".

The Council as second defendant also resists the appeal. The Council has filed evidence comprising two witness statements made by Mr Simmons, the Planning Officer who gave evidence on behalf of the Council at the second inquiry. Mr Simmons makes comments on the correct interpretation of the RUDP. He states that the principal reason why the Council wishes to be represented at this appeal is in order to assist the court in arriving at a correct interpretation of the RUDP. Mr Simmons is also critical of the reasoning in Judge Rich's decision in this regard. However, since Judge Rich's decision was not appealed, I do not propose to heed this criticism.

The final piece of evidence lodged in connection with this appeal is a witness statement from Mr Raven responding to the defendants' witness statements. The hearing of the claimant's appeal commenced the day before yesterday. The argument has occupied the last two days. Mr Christopher Boyle represents the claimant in this court, as he did at the second inquiry. Mr Hereward Phillpot represents the Council in this court, as he did at the second inquiry. Mr John Moffett represents the Secretary of State.

I shall deal with the two grounds of appeal and the subordinate issues following the sequence of counsel's submissions. Before doing so, however, I must address the preliminary question as to whether the error in the decision letter can be corrected.

The error which the Secretary of State seeks to correct has been identified in Part 3 above. Mr Moffett for the Secretary of State submits that what occurred was a simple typographical error and the court should allow this error to be corrected. Such a correction falls within the range of permissible corrections set out by the Court of Appeal in R v Westminster City Council ex parte Ermakov [1996] 2 AER 302. Mr Moffett does not rely upon section 56 of the 2004 Act which he concedes is inapplicable to the circumstances of this case.

Mr Boyle for the claimant submits that the proposed correction completely changes the sense of the passage in question. Therefore it falls outside the ambit of Ermakov and no correction should be permitted. Section 56 of the 2004 Act is narrow in its scope and does not apply to the facts of this case. Indeed, the restrictive terms of section 56 recognise the narrowness of the Ermakov principle. Mr Boyle submits that the claimant is entitled to intelligible reasons for the decision given and the claimant is entitled to rely upon the reasons originally stated, rather than some later revision of those reasons.

In confronting these rival submissions it is first necessary to analyse the Court of Appeal's decision in Ermakov. In that case the applicant, who claimed that he had moved from the UK to Greece as a result of being harassed in Greece, challenged the decision of a Council Homelessness Officer that he had become homeless intentionally. In his decision letter the Officer stated his reasons to be that the Council was not satisfied that the applicant had experienced harassment in Greece and that it was therefore reasonable that he and his family should continue to live there. The applicant applied for judicial review of the decision, whereupon the Officer swore an affidavit stating that the true reasons for the decision were not those expressed in the decision letter but rather that he was satisfied that, notwithstanding the matters disclosed in the applicant's statement, it would have been reasonable for him and his family to continue to occupy the accommodation he rented in Greece. The deputy judge allowed this evidence to be adduced and dismissed the application. On appeal, the Court of Appeal held that the evidence should not have been admitted and quashed the decision of the housing authority.

In relation to the general approach, Hutchison LJ (with whom Thorpe LJ and Nourse LJ agreed) said this at page 315:

Turning to the present case, I propose to admit Mr Evans' witness statement and to read paragraph 22 of the decision letter in the manner it was intended to be written. I reach this decision for five reasons:

For all of the above reasons, my answer to the question posed in Part 4 of this judgment is "Yes".

Having dealt with that preliminary matter, I must now turn to the grounds of appeal.

The claimant contends that the Inspector erred in law in holding that the change of use was harmful to the character and function of the CAZF. This finding is set out in the first sentence of paragraph 26 of the decision letter. It will be recalled that CAZF is "Central Activities Zone Frontage". There is no dispute that numbers 65 and 67 fall within the CAZF. There is also no dispute that numbers 65 and 67 fall within that part of Edgware Road which has been designated a Stress Area.

Mr Boyle identifies five reasons upon which the Inspector's crucial finding (set out at the start of paragraph 26) was based. These five reasons are as follows:

Mr Boyle submits that the Inspector erred in law in reaching the conclusions there set out. Each of those five reasons was influential in the final decision. Therefore, if the claimant establishes that any one of those five reasons is flawed, then the whole of the Inspector's decision must be remitted. This is because the Inspector has taken into account at least one immaterial consideration (and Mr Boyle would say five immaterial considerations) in reaching his final decision.

Having outlined the reasons which are under attack, I must now focus upon each one individually.

Mr Boyle submits that Reason 1 is itself the product of three sub-reasons, each one of which is flawed. The three sub-reasons are as follows:

I do not accept Mr Boyle's criticisms of the three sub-reasons. So far as the first sub-reason is concerned, Mr Fox's decision was not quashed, it was remitted to the Secretary of State with the opinion of the High Court. Mr Fox's decision is of no effect in so far as it conflicts with the reasoning of Judge Rich. This reasoning relates in particular to Mr Fox's interpretation of the old UDP (adopted in 1997 and now superseded). However, there are many parts of Mr Fox's decision which are in no way tainted or affected by Judge Rich's judgment. In particular, the findings of fact made by Mr Fox in paragraph 13 of his decision are in no way affected by the judgment of the High Court. These findings are recited by Mr Evans in paragraph 16 of his own decision and Mr Evans records that no challenge was made to such findings. Mr Evans, who had himself visited the site and heard extensive evidence about it, came to the same conclusions as Mr Fox about these matters and he was entitled to do so.

Let me now revert to Mr Fox's decision. In paragraph 14 Mr Fox said this:

In the course of argument, Mr Moffett for the Secretary of State formulated the following proposition of law:

Mr Boyle's attack upon the second sub-reason is also ill-founded. The distinctions between 332 Old Marylebone Road and numbers 65 and 67 Edgware Road are irrelevant for present purposes. What Mr Evans was relying upon was a general finding of fact made by the Marylebone Road Inspector with which Mr Evans agreed.

Let me now turn to the third sub-reason. Mr Boyle submits that the designation of Edgware Road as a Stress Area has the effect of bringing numbers 65 and 67 within the ambit of Tace 8. Thereafter, the effect of the designation is spent. It cannot be invoked as an adverse factor pointing against the proposal when the Inspector comes to exercise his discretion under Tace 8. This proposition is reinforced by the fact that Tace 8 generally favours the grant of planning permission for cafes such as numbers 65 and 67.

In relation to this issue, I accept the submissions of Mr Phillpot on behalf of the Council. It is necessary to look at the RUDP as a whole and not to latch on to individual passages in isolation. In this regard, Mr Phillpot points out that two themes run through the RUDP. One is a need for balance, another is the need to maintain a sufficient number of shops and to prevent service uses from dominating parades. The designation of Stress Areas is clearly one means of achieving this objective in areas where the balance has been imperilled. In my judgment, the following passages in the RUDP indicate that the Inspector was fully entitled to take into account the designation of Edgware Road as a Stress Area in the manner that he did. Paragraph 1.97, paragraph 7.16, paragraph 8.89, paragraph 8.93 and paragraphs 8.102 to 8.103.

Let me now draw the threads together. I can detect no flaw in any of the three sub-reasons. The Inspector did not err in law in arriving at the conclusion which counsel have designated Reason 1.

Mr Boyle submits that the proposal for numbers 65 and 67 will not give rise to a breach of Policy SS 5 (C)(1) in the manner suggested by the Inspector. On the contrary, the position under Policy SS 5 (C)(1) will be improved by granting the planning permission which the claimant seeks.

This issue turns upon how one characterises the status quo which existed before the Al-Dar Cafe opened (and to which the Council wishes to revert). It will be recalled that number 67 had a nil use at the time of the enforcement notice. Mr Boyle submits that a nil use is one form of "non-A1 use" for the purposes of Policy SS 5. Mr Phillpot submits the opposite. He submits that "non-A1 use" means some specific use which is not A1.

On this issue I reject the submission of Mr Boyle and I accept the submission of Mr Phillpot. The phrase "non-A1 use" must mean some positive use which is other than A1; in other words, a use falling within classes A2, A3 or B or C or D. It cannot and does not mean no use at all. If I am wrong in this interpretation of Policy SS 5, then the position must be that the phrase "non-A1 use" in Policy SS 5 has two possible interpretations: namely, that favoured by Mr Boyle and that favoured by Mr Phillpot. If that is the correct analysis, then it was for the Inspector to choose between the two interpretations and the Inspector in this case accepted the interpretation for which Mr Phillpot now contends. This court will not interfere with that choice by the Inspector unless the Inspector's interpretation was perverse or the Inspector gave the phrase a meaning which it could not bear: see R v Derbyshire County Council ex parte Woods [1997] JPL 958 at page 967. In my judgment, it cannot possibly be said that the Inspector in this case ascribed to the phrase "non-A1 use" in Policy SS 5 a meaning which was either perverse or which the phrase could not bear.

The second part of the claimant's case in relation to Reason 2 is based upon the Inspector's inappropriate reference to "extensive A1 premises" in the penultimate sentence of paragraph 22 of the decision letter. For the reasons set out in Part 4 above, I have already held that this sentence must be read in the manner that was obviously intended. This conclusion puts an end to the claimant's second line of argument.

The claimant does, however, have one further fall back position in relation to paragraph 22. If the penultimate sentence is read in the manner intended, then (a) it is not clear which is "the opposite corner" referred to, and (b) this is a new point which the claimant did not have the opportunity to deal with: see Mr Raven's second witness statement prepared for the purposes of this appeal. On the first aspect, I agree with Mr Raven's second witness statement at paragraph 12. There can be little doubt that the Inspector was referring to the corner on the opposite side of Connaught Street. On the second aspect, I do not think that this was a point which should have been specifically raised by the Inspector. As Mr Moffett has submitted, the general balance of uses in the area was clearly in play at the hearing. There was no need for the Inspector to put the minutiae of his proposed reasoning to counsel as the hearing progressed.

If I may now draw the threads together, I reject the claimant's attack upon Reason 2.

Mr Boyle submits that Reason 3 is a finding for which there was no, or no sufficient, evidential basis. Cafes cannot rationally, or on the evidence, be said to be off-putting to shoppers.

I do not accept this submission. The finding in paragraph 23 that a cafe at numbers 65 and 67 is off-putting to shoppers clearly derives from the third sentence of paragraph 22. The findings in paragraph 22 are clearly based upon the Inspector's site visits (as well as the evidence) and those findings were open to him. Those findings are consistent with paragraph 7.57(c) of the RUDP.

Mr Boyle's next complaint is that the Inspector's deduction from the July 2002 pedestrian flow counts (a) was not raised during the hearing, and (b) is wrong. As to the first point, the pedestrian flow counts of July 2002 were part of the evidence and the Inspector drew a perfectly reasonable conclusion from them. As to the second point, the pedestrian flow counts of May 1997 (upon which Mr Boyle now relies) do not undermine the Inspector's inference as has been suggested. The crucial figure to look at is the index rather than the actual number of pedestrians. It can be seen from a comparison of the pedestrian flow counts in 1997 and 2002 that in the vicinity of numbers 65 and 67, the index has dropped materially since the Al-Dar Cafe opened.

In the result, therefore, I hold that the Inspector was entitled to come to the conclusions set out in Reason 3.

Mr Boyle submits that in so far as Reason 4 played a part in the Inspector's conclusion, it should not have done so. There is no finding in this paragraph that the Al-Dar Cafe causes harm. There is no finding that planning permission for the Al-Dar Cafe would set a harmful precedent.

I am not persuaded by this attack on Reason 4. The RUDP makes it clear that one must consider the cumulative impact of proposals such as this one: see the passages quoted in Part 2 above, in particular paragraph 7.49(e) and paragraph 8.89.

I am inclined to agree with Mr Boyle that Reason 4 played only a modest part in the Inspector's final conclusion. Nevertheless, in so far as Reason 4 did contribute to that conclusion, I am unable to detect any error of law.

Mr Boyle submits that there was simply no evidence that the proposal would cause harm to the environmental quality of the area. On the contrary, the health check carried out by the Council in August 2002 led to the opposite conclusion.

The first point to note here is that Reason 5 is expressed to be a minor point rather than a principal consideration: see the last sentence of paragraph 25 of the decision letter. The second point to note is that the health check carried out by the Council (Appendix 9 to Mr Raven's evidence at the second inquiry) does not all point one way. In Table 6 of the health check, the relevant part of Edgware Road was marked as good in ten respects, as average in twelve respects and as poor in one respect. The Inspector also had the advantage of his own inspection and of extensive evidence, both oral and written, about the site from witnesses. The weight which the Inspector gave to individual pieces of evidence and the manner in which he interpreted the conflicting strands of the health check was entirely a matter for him. It seems to me that in Reason 5 the Inspector applied paragraph 7.57 of the RUDP in an unexceptionable manner. Accordingly, I reject Mr Boyle's criticisms of Reason 5.

Let me now stand back from the detail and look at the general picture. Although Mr Boyle put his submissions most attractively and disavowed any intention to stray beyond the confines of section 289 of the 1990 Act, I fear that that is what he has done. Mr Boyle has tested the Inspector's findings against the evidence. Mr Boyle has put individual sentences of the Inspector's decision under a magnifying glass, indeed sometimes under an electron microscope. In the event, those passages of the decision letter have survived such scrutiny. But the purpose of an appeal under section 289 is not to carry out a rerun of the original enquiry: see ELS Wholesale (Wolverhampton) Limited v Secretary of State for the Environment (1987) P&CR 69 at page 72. Although this decision relates to an appeal under section 246 of the Town and Country Planning Act 1971, the principles stated by the Divisional Court in ELS remain valid.

The purpose of an appeal under section 289 of the 1990 Act is to identify any errors of law made by the Inspector: see the reasoning of Sullivan J in R (on the application of Newsmith Stainless Steel Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74 at paragraphs 5 to 8. These paragraphs seem to me to be pertinent even though Sullivan J was there dealing with an appeal under section 288 of the 1990 Act.

Having followed through the detail of the claimant's arguments, I am quite satisfied that there was no error of law in the present case. On the contrary, the Inspector's findings were soundly based and his decision should be upheld. For all of these reasons, Ground 1 of the claimant's appeal is rejected. This leads to the conclusion that the enforcement notice must be upheld.

In view of my decision on the first ground, the second ground of appeal becomes academic. If the Al-Dar Cafe is going to cease operating altogether, it is unreal to discuss whether or not the Al-Dar Cafe should close at 11 pm in the evenings. In the circumstances, I hope that I shall be forgiven for dealing with the second ground of appeal extremely briefly.

It seems to me that there was an abundance of evidence to support the Inspector's conclusions in paragraphs 28 and 29 of the decision letter concerning night-time noise and disturbance. This abundance of evidence included extensive evidence from both parties. The inspector's conclusions following on from paragraphs 28 and 29 are set out in paragraph 30 of the decision letter. There is no error of law in this reasoning. The imposition of a condition that the cafe (if it existed) should close at 11 pm seems to me to be entirely in accordance with the provisions of the RUDP which I have quoted in Part 2 above.

In the result, therefore, I reach two decisions about the second ground of appeal:

For the reasons set out in Parts 4, 5 and 6 above, the claimant's appeal under section 289 of the 1990 Act is dismissed. Therefore, the Inspector's decision will remain effective. I am grateful to all counsel for all three parties for the considerable assistance which they have given to the court.

MR MOFFETT: My Lord, I am grateful for that. In those circumstances the appropriate order would simply be to dismiss the claimant's appeal. Given your Lordship's decision, I would ask for the Secretary of State's costs.

MR BOYLE: My Lord, I have no objection or resistance to either of those but I do have an application of my own.

MR JUSTICE JACKSON: Yes, of course.

MR BOYLE: I am grateful.

MR JUSTICE JACKSON: Yes, Mr Boyle.

MR BOYLE: My Lord, as is usual in such matters, I express first of all that I hope my Lord will not take this as a matter of discourtesy given the courteous way in which the case has been conducted. I am, however, instructed by my client to seek permission to appeal this matter. My Lord, the matter is an appeal on an appeal and I must do more than merely show that I have a reasonable prospect of success, but also to show that there is some general interest arising on the appeal.

MR JUSTICE JACKSON: Before you go further, is this an application you can make to me at all, because the statute provides that permission for a second appeal can only be given by the Court of Appeal?

MR BOYLE: My Lord, if that is the case then I shall do so.

MR JUSTICE JACKSON: Does the hearing before me count as a first appeal for the purposes of section --

MR MOFFETT: My Lord, I was going to say it is Part 52, Rule 52.13.

MR JUSTICE JACKSON: Section 57 of the Access to Justice Act 1999 and Rule 52.13 which is subordinate to that statutory provision. Can counsel assist me on this threshold question?

MR MOFFETT: My Lord, I do not have a copy with me but I know that the Planning Encyclopaedia takes the view it would be a second appeal and permission would have to be sought from the Court of Appeal. I do not have a copy with me but I did look at this recently and it does say that. Beyond that, the only way I can assist your Lordship is to again refer to the approach that has been adopted by Sullivan J in this field. He has taken the approach in other cases that it would be a second appeal and he does not have the power to grant permission.

MR JUSTICE JACKSON: I quoted the wrong provision. It is not section 57. The relevant provision is section 55. I am sorry.

MR HONEY: My Lord, if it would be of assistance I appear in place of Mr Phillpot. It is my submission that this is a second appeal so permission is necessary from the Court of Appeal, although I do not have a Planning Encyclopaedia with me.

MR BOYLE: My Lord, I am grateful to my learned friends. I had the right test but the wrong person to ask.

MR JUSTICE JACKSON: For the avoidance of doubt, I rule that I do not have jurisdiction to hear your application for permission to appeal.

MR HONEY: My Lord, I have an application to make for the claimant to pay Westminster City Council's costs in this case. There were good reasons, in my submission, for doing so. First, because it was necessary for the City Council to attend to deal with the proper meaning of the development plan policies, and secondly, to inform the court of the full factual position on the issues, including the evidence that was before the Inspector. The principles which apply are set out in the Bolton case and, in my submission, my Lord, we fall within both of those.

MR JUSTICE JACKSON: Where is Bolton?

MR HONEY: I am afraid, my Lord, I do not think it is in the bundle. I have one copy which is marked but I can refer to the relevant parts of it. It is the judgment of Lord Lloyd. (Handed). It is over the page. The general principle is that a second set of costs are not to be awarded unless there is a separate issue not to be covered by the first defendant, or an interest requiring separate representation. My Lord, in my submission, both of those are met in this case. The proper role of the First Secretary of State as the first defendant is, of course, to protect the Inspector's decision. The Secretary of State has no interest in the interpretation and application of the Council's policies but that is a significant issue which can have very serious consequences for the Council.

The claimant's challenge in this case raised issues on the proper interpretation and application of important policies in the RUDP. Submissions, my Lord, were necessary as to the correct meaning in order to safeguard the public interest in future development control decisions and, my Lord, as you will see from the Bolton case, the importance of the outcome for a party is a relevant consideration.

The reasons for Westminster appearing were set out early on in the case in the first witness statement of Mr Simmons. Indeed, the second witness statement went on to explain the background to the reasoning for the Stress Area designation and also to provide a full picture of the factual background. In my submission, my Lord, had the City Council not participated and put in some material, the court would not necessarily have had all the relevant material before it which it needed. In particular, I would refer to the claimant's skeleton argument where on at least two grounds (that is paragraph 7(4) and paragraph 21) it was said that there was simply no evidence before the Inspector in relation to two issues. In my submission, my Lord, it was therefore necessary for us to put information before the court to deal with that.

In my submission, the City Council was acting reasonably to explain the full factual circumstances and to assist the court and to make submissions on important policy. Your Lordship referred in your judgment to this potentially amounting to a rerun of the inquiry and, in my submission, that underscores the importance of Westminster City Council appearing to be able to assist in the limited way that it has done. In my submission, in light of the facts and the Bolton principles, Westminster City Council is properly entitled to its costs in this case because the development plan policies were separate issues which not could be covered by the First Secretary of State and there was an interest on the part of the local planning authority requiring separate representation. For those reasons, I would ask for an order that the claimant pay Westminster City Council's costs as well.

MR BOYLE: My Lord, I oppose that. My Lord, I do not deny it is perfectly reasonable for the City Council as second defendant to appear before my Lord in an attempt to prevent the appeal from succeeding, but they do so under the ordinary rules that they do so at their own cost, neither expecting to be the victim of a successful claimant's award of costs against them nor yet benefit from an unsuccessful claimant having costs awarded to the respondents.

My Lord, there is no separate issue identified by the Council which was not adequately, fully and properly covered by the submissions on behalf of the Secretary of State; the challenge, of course, being, with due respect to my Lord, founded, as the claimant puts it, on points of law arising from the Secretary of State's decision. Therefore, the concentration of the case was the argument in respect of that decision.

As to additional evidence from the Council, my Lord, it is certainly not necessary for the Council to appear as a party if the Secretary of State felt it appropriate for the evidence from the Council to come in. The Secretary of State plainly did not feel in the circumstances that it was necessary but, had they done so, then of course all the written information that was before the Inspector is in the possession of the Inspectorate and any further observations can be invited from anybody, including a witness who happens to be an officer of the authority. It does not require my learned friend Mr Phillpot or the Council themselves to appear before my Lord.

MR HONEY: My Lord, all I would say in reply to that is that it was apparent from your Lordship's judgment that a great deal of assistance was derived from Mr Phillpot's submissions and the evidence. In those circumstances we ought to be entitled to our costs.

MR JUSTICE JACKSON: This is an application for costs made on behalf of the second defendant, the Westminster City Council. Mr Boyle for the claimant opposes that application. He submits that the normal costs rule should apply, namely that the losing party should pay one set of costs only and that the Westminster Council, if they choose to attend, do so at their own costs. They bear their own costs, win or lose, and they are not going to be ordered to pay the claimant's costs either, whatever the outcome.

It is undeniably true that I gained assistance from the helpful submissions of Mr Phillpot. He was covering much the same ground as Mr Moffett. There was only one point where he took a somewhat different line and, as both counsel for the two defendants were covering the same terrain, it is quite true that in my judgment I sometimes alighted upon the submissions of Mr Moffett and I sometimes alighted upon the submissions of Mr Phillpot. I certainly regarded the presence and submissions of Mr Phillpot as being helpful.

On the other hand, I do not consider that the threshold test for ordering the claimant to pay a second set of costs as set out in Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 42 is met in this. In this case there was no separate issue between the Council and the claimant which was not also an issue between the Secretary of State and the claimant. It is quite true that the Council wish to be here and wish to make submissions about the interpretation of the RUDP. On the other hand, in the course of defending the lawfulness of the Inspector's decision, counsel for the Secretary of State made extensive submissions on the interpretation of the RUDP. Indeed, it was counsel for the Secretary of State who took me through the RUDP. The only point where the two defendants differed on the interpretation was really one very small point. This was whether the interpretation favoured by the defendants of policy SS 5 (C)(1) was the only possible interpretation of that provision or merely the more probable interpretation of that provision. I do not consider that such a marginal difference in emphasis merited the attendance of separate counsel when one comes to apply the test set out in Bolton.

I have considered all the circumstances of this case and all the points urged upon me by counsel on both sides. On this issue I am persuaded by the submissions of Mr Boyle and I refuse the Westminster City Council's application for costs. Thank you all very much.