Royal Courts of Justice
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE GILBART QC
THE QUEEN ON THE APPLICATION OF CLEAR CHANNEL UK LIMITED
(CLAIMANT)
-v-
LONDON BOROUGH OF SOUTHWARK
(DEFENDANT)
Computer-Aided Transcript of the Stenograph Notes of
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR A FRASER-URQUHART (instructed by Messrs Grant Saw Solicitors appeared on behalf of the CLAIMANT at the hearing.MR P COPPEL appeared on behalf of the CLAIMANT on judgment
MR R LANGHAM (instructed by London Borough of Southwark) appeared on behalf of the DEFENDANT.
J U D G M E N T
HIS HONOUR JUDGE GILBART QC:
This matter concerns an application for judicial review of a decision by the defendant, London Borough of Southwark, to issue eight notices pursuant to section 11 of the London Local Authorities Act 1995 requiring removal of eight advertisement hoardings erected on land at St George's Circus, London SE1, the date of the decision being 25th May 2005. Permission was granted by Sir Michael Harrison after an oral hearing on 25th January 2006. He made an order permitting cross examination but in fact there has been no factual dispute at all and I have been able to deal with this on the basis of the witness statements and submissions.
The claimant asserts that the display of advertisements by means of the hoardings, the subject matter of the notices, has deemed consent under the relevant regulations. The London Borough of Southwark contends that no such consent exists.
It is necessary to understand the legislation. I start with section 11 of the London Local Authorities Act, which read as follows:
"11.—(1) This section applies to a hoarding or other structure used, or designed or adapted for use, for the display of advertisements including a movable structure, fitments used to support a hoarding or other structure and a structure which itself is an advertisement, other than such a structure for which deemed or express consent has been granted under the Act of 1990 [that means the Town and Country Planning Act] or regulations made thereunder or for which no such consent for such use is required or which was erected before 1st April 1990.
Where there is in their area a hoarding or structure to which this section applies, a participating council may serve notice under this section on any person who appears to them to be responsible for the erection or maintenance thereof..."
I need not read the rest of the subsection:
A notice under this section shall require the removal of the hoarding or structure to which it relates within a period, being not less than 21 days after the date of the notice, specified in the notice, and shall state the effect of subsection (4) below."
I need not read subsections 4, 5 or 6.
It will be noted that that section referred to the Town and Country Planning Act 1990 and regulations made thereunder. The advertisement control regulations are made under the power given by section 220 of the Town and Country Planning Act. Subsection 1 states that:
"Regulations under this Act shall make provision for restricting or regulating the display of advertisements so far as appears to the Secretary of State to be expedient in the interests of amenity or public safety.
Without prejudice to the generality of subsection (1), any such regulations may provide—
for regulating the dimensions, appearance and position of advertisements which may be displayed, the sites on which advertisements may be displayed and the manner in which they are to be affixed to the land;
for requiring the consent of the local planning authority to be obtained for the display of advertisements, or of advertisements of any class specified in the regulations;
for applying, in relation to any such consent and to applications for such consent, any of the provisions mentioned in subsection (3), subject to such adaptations and modifications as may be specified in the regulations..."
I need not read subparagraph (d). Subsection 3 relates to parts of part 3 of the Town and Country Planning Act. I need not read that out.
Section 224 of the Act deals with the enforcement of control as to advertisements. Regulations may be made under section 224 to require the removal of any advertisement displayed in contravention or for discontinuance of the use for the display of advertisements of any site being used in contravention of the regulations. Section 224(3) makes provision for criminal liability for breach of the regulations.
Section 336(1), which is the definitions section of the Town and Country Planning Act, defines advertisement. It means:
"... any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction, and (without prejudice to the previous provisions of this definition), includes any hoarding or similar structure used or designed, or adapted for use and anything else used, or designed or adapted principally for use, for the display of advertisements, and references to the display of advertisements shall be construed accordingly..."
There have been a number of regulations made pursuant to the regulation making power. The relevant current set of regulations are the Town and Country Planning (Control of Advertisements) Regulations 1992 SI 1992/666. Regulation 4 of the Regulations states:
A local planning authority shall exercise their powers under these Regulations only in the interests of amenity and public safety, taking account of any material factors, and in particular—
in the case of amenity, the general characteristics of the locality, including the presence of any feature of historic, architectural, cultural or similar interest, disregarding, if they think fit, any advertisement being displayed there..."
Subparagraph (b) deals with public safety. I should refer to subparagraph (4) of Regulation 4:
"A consent for the display of advertisements shall take effect as consent for the use of the site for the purposes of the display, whether by the erection of structures or otherwise, and for the benefit of any person interested in the site."
Regulation 5 requires that no advertisement may be displayed without a consent which is granted. Regulation 6 is important. It deals about deemed consent. It reads thus:
Subject to regulations 7 and 8, and in the case of an area of special control also to regulation 19, deemed consent is hereby granted for the display of an advertisement falling within any class specified in Part I of Schedule 3, subject—
to any conditions and limitations specified in that Part in relation to that class; and
to the standard conditions.
Part II of Schedule 3 applies for the interpretation of that Schedule."
Regulation 8 gives the local authority power to require the discontinuance of any advertisement which is the subject of deemed consent if they are satisfied that it is necessary to do so to remedy a substantial injury to the amenity of the locality or danger to members of the pub. If they do so, there is a right of appeal to the Secretary of State, that appeal being made under Regulation 15.
I now turn to schedule 3 and I turn to classes 13 and 14. I should say by way of introduction that these deal with classes of deemed consent where express consent is not required. Under Class 13, that relates to sites used for the display of advertisements on April 1st 1974. I need not read it out, I refer to it. Class 14 I must read. It is headed "Advertisements displayed after expiry of express consent" and reads:
"An advertisement displayed with express consent, after the expiry of that consent, unless—
a condition to the contrary was imposed on the consent
a renewal of consent was applied for and refused."
And the conditions and limitations are:
Any condition imposed on the relevant express consent is to continue to apply to any such advertisement.
No advertisement may be displayed under this class except on a site which has been continually used for the purpose since the expiry of the express consent."
The questions which arise for determination are: (1) did deemed consent apply by virtue of Regulation 6 of Class 14 to all or any of the hoardings? That issue turns wholly on whether the hoardings now erected on site are substantially different from those granted consent in 1991. (2) If no, does the claimant have the right, having removed them pursuant to section 11 of the London Local Authorities Act notice, to replace them with hoardings which are not substantially different from those granted consent in 1991.
It is common ground and expressly accepted by both parties that I am required to determine whether the hoardings are substantially different as a matter of fact and degree. That is also clear from the decision of Collins J in R (on the application of Maiden Outdoor Advertising Limited) v Lambeth London Borough [2003] EWHC 1224 (Admin) JPL 820, where Collins J was dealing with the issue of decisions under section 11. He said at paragraph 35 and 36:
Section 11(1) requires that there be no express or deemed consent. Whether there is such consent is a matter of fact which must be established before any action can be taken under section 11. As I have already said, there is no right of appeal and the action under section 11 will result in the compulsory removal without compensation of someone's property and an obvious loss of income.
Therefore, and consistently with the approach of the House of Lords in Khawaja v Secretary of State for the Home Department [1984] AC 74, there being a need to establish a precedent fact, the court is entitled, if there is a material dispute, to resolve it for itself. This seems to me to be all the more important in a case such as this where there is no appeal provided for."
I shall therefore determine the issue of whether the hoardings on site can be said to be those permitted by the consent in 1991. None of the facts are contested.
I find the following facts. The site consists of an area of land on a quadrant on the outer circumference of St George's Circus, formed by Blackfriars Road, St George's Circus and Borough Road. It consists of a stretch of frontage about 75 metres in length. There had been an earlier consent but the relevant consent for our purposes was granted on 23rd October 1991. It was in these terms and it permitted:
"The retention of seven advertisement hoardings to boundary wall; north east quadrant, St George's Circus".
It permitted the retention of a display along the back of the pavement, consisting of two panels of 10 feet high by 20 feet wide, raised about four feet off the ground, and five panels, 10 feet high and 40 feet wide, also raised up by about four feet. These advertisements were mounted on a slatted fence, which ran underneath them and between them where gaps occurred. Running from Blackfriars Road round to Borough Road, the layouts of hoardings and gaps were to be: Hoarding 1; gap; hoardings 2 and 3, next to each other; gap; hoardings 4 and 5; gap; hoardings 6 and 7.
On 15th February 1992, the then owner gave instructions to alter the hoardings. There were now to be eight hoardings and they were to be raised up on a higher plinth of some five feet in height. The new hoardings were said to use the existing "steels" or structure of the original hoardings.
In 1998, the officers of the Local Planning Authority considered whether the hoardings then on site had deemed consent under Class 14 and a letter was written to the then operator of the hoardings, a company called Postermobile plc on 16th February 1998. Having referred to works which the Council was undertaking to upgrade the amenity of the area, it then says this:
"It is recognised that this general area contains signs and hoardings, most of which have Planning Permission, albeit temporary permission. The Council in its attempts to regenerate this area is concerned that these signs and hoardings may be adversely affecting the amenity of this area.
Given the extensive nature of your hoardings in this locality it is considered that there may be a need to modify the existing situation in respect of the expanse of the hoardings and the general amenity of this site.
It is understood that previous Planning Permissions have been obtained in respect of these hoardings for limited periods of time. As the last Planning Permission dated 23 October 1991 bears no condition requesting the removal of the hoardings in associated structures, you are quite right in that the hoardings have deemed consent. However given the aforementioned regeneration of the area the Council may have grounds to serve a discontinuance notice [in other words under regulation 8]. The Council does not [wish] to unnecessarily undertake such action and wishes to encourage a suitable solution to this situation. The Council welcomes any possible suggestions you may wish to put forward in respect of retaining some advertisements in this locality but it is unlikely the Council will permit the existing situation to continue."
That letter was addressed to Postermobile but in fact it is to Mr Cliff Pratt of Postermobile, who is the guiding force behind the claimant.
However, after 1998, very considerable alteration has occurred. I was shown photographs of the site as it was in 1998 and as it is now. I shall refer to the hoardings as A to H, running from north west, that is Blackfriars Road, round to the east, in other words towards Borough Road. That is the manner in which they were referred to in the case before me. The Council accepts that deemed consent still exists with regard to Hoarding A. Hoarding A is 6 metres long out of a total frontage of, as I have indicated, about 75 metres. In other words it constitutes eight per cent of the total frontage. Hoarding B was permitted as a hoarding of 10 feet by 40 feet. It is now square. It is also in a different position from where it was in 1998. Hoarding C is now over eight feet from the ground. It is in a different position. Hoarding D is no longer 10 feet by 40 feet and is now seven feet from the ground. Hoardings E to G: there were two 10 foot by 40 foot hoardings permitted, there are now three hoardings. They are now 10 feet by 20 feet. Hoarding H is no longer 10 feet by 20 feet but is now square. It is also apparent, when one looks at the photographs, that generally the height has been raised up. I should just add that Mr Fraser-Urquhart concentrated on the fact that the size was not greater but of course a reduction in size of a hoarding alters the appearance of the hoarding because it alters up views around and past the hoarding.It only takes a moment or two with the photographs to see that there has been a very considerable change since 1998 in the appearance of the site and the hoardings. Of particular importance are the facts that the hoardings are higher in absolute terms; that they are raised higher off the ground; that there are now substantial gaps between the hoardings which has a marked effect on their prominence; and, in my judgment, the changes since 1998 and since 1991 were very substantial indeed, so far as hoardings B to H inclusive are concerned.
It follows that these are not the advertisements which were given consent in 1991. Mr Fraser-Urquhart accepts that, if there has been a substantial change, deemed consent rights do not apply. But that is not the end of the matter. Mr Fraser-Urquhart says that his clients have the right to revert to advertisements of the dimensions granted consent in 1991 and that that fallback position was a material consideration which was never addressed by the London Borough. He accepts that it was never put before the London Borough of Southwark to consider. Mr Langham, on behalf of Southwark, says that if such rights exist there are a material consideration and both counsel referred me again to the Maiden Outdoor Advertising decision. Mr Langham says that, if such rights exist, they should have been considered and were not so considered. But, says Mr Langham, there are no such rights.
Whether there are such rights depends upon the interpretation of Class 14 and also involves consideration of passage in the judgment of Collins J in the Maiden case. It will be recalled that Class 14 reads:
"An advertisement displayed with express consent, after the expiry of that consent, unless—
a condition to the contrary was imposed on the consent
a renewal of consent was applied for and refused."
The word "site" is described in the editorial note of the Encyclopaedia of Town Planning as meaning the parcel of land on which the advertisements are displayed, not the advertisement itself. Two authorities are quoted for that proposition: Scotts Restaurants Plc v Westminster City Council, a decision of Glidewell LJ and Hidden J. It is noted at [1993] JPL B34 (but I have been provided with a copy of the transcript) and Barking and Dagenham London Borough Council v Mills and Allen Ltd [1997] 3 PLR 1. I have again been provided with a transcript. It is another decision of the divisional court by Simon Brown LJ and Gage J, as they both then were.
So far as the Scotts Restaurant decision is concerned, this was an appeal from the Magistrates' Court and in the course of the judgment, as I apprehend it, of Glidewell LJ, he said this and it is at page 5C:
"Mr Morgan [who appeared on behalf of the appellant advertiser] submits that though the interpretation in the Act must be an interpretation which applies for the purposes of the regulations so that for some purposes or in some circumstances it may be right that a site is part of a building, nevertheless in the context of Class 13 of Schedule 3 of the regulations, as a matter of law, the word 'site' can only be interpreted as meaning something larger than the area of the old advertisement.
For my part, I do not accept that. Once it is clear that a site is or can be part of a building, then, in my judgment, it becomes a matter of fact for the Tribunal of fact to decide what is the site that is relevant to the particular matter under consideration. The learned magistrate might have decided that it was some area larger than the area covered by the original advertisement, but it was open to him, as a matter of law, in my judgment, to conclude that the relevant site for the purposes of his consideration was the site covered by the original advertisement. He was entitled, in other words, to make the finding of fact that he did make."
So far as the Barking and Dagenham case is concerned, that is a case where the Magistrates had dismissed an information. There was a challenge to that taken to the Divisional Court and it is again a case which deals with the existence of rights under Class 13 as opposed to Class 14. Now, during the course of the judgment of Simon Brown LJ, reference was made to the Scotts Restaurants case and then, at a later stage, at page 7, after Simon Brown LJ had noted with regret that the Scotts Restaurants decision was not put before the Magistrates, he said this at letter F:
"The central question, as it was litigated below, was whether the site referred to the specific area of the premises covered by the advertisement or the whole premises. The essence of the holding in Scott's Restaurants was that this was a question of fact. The short report in the Journal of Planning Law faithfully reflects the full judgment which we have in transcript form. The issue there was thus:
'... does the word "site" refer to the specific area of the premises covered by the advertisement or to the whole premises.'
The holding was as follows:
'... it is a matter of fact to decide what is the relevant site. The Magistrate was entitled to make the finding of fact that he did. It can be held to refer to the specific area of the premises."
Then later in the course of his judgment, Simon Brown LJ said this on page 10, having concluded that the Justices' conclusion was correct:
"I would, accordingly, answer question (1) which asks whether the Justices were 'correct' in interpreting the word 'site' as being the parcel of land upon which the advertisements are displayed, rather than the specific position within that part of the land at which the display is located in the affirmative."
So there the questions which the two sets of Magistrates were dealing with was whether the consent authorised display within what they found to be the same site and both cases concerned Class 13.
Mr Fraser-Urquhart says that, provided the site is used for the display of advertisements, Condition 14(2) does not prevent resumption of the deemed consent rights to display the advertisements and that the phrase "a site which has been continually used for the purpose" simply means that the site has been used for the display of advertisements. Thus, he says, it is irrelevant the fact that the display was unauthorised. I reject that argument. Mr Fraser-Urquhart accepts that it would permit a site owner who has replaced advertisements which have deemed consent with those that do not, and then, when action is taken against them, relies on the unauthorised or unlawful display to make it a site "which has been continually used for that purpose".
In my judgment that phrase is designed to allow the retention of what was authorised. I interpret the phrase "continually used for the purpose" as meaning "continually used for the purpose of displaying advertisements in accordance with the express consent which has now expired". It is designed in my judgment to give flexibility so that a site owner who has had consent for, say, five hoardings can take two down and then restore them after some time has elapsed. In the Maiden case, Collins J did consider Class 14:
"65... I put them in that order because it is convenient in the circumstances to deal with Class 14 first.
The first step is to construe the consent which was actually granted. A consent such as this runs with the land and therefore, in accordance with authority which deals with planning permissions, unless the consent contains an ambiguity on its face, generally it is only permissible to look at the consent itself and any document expressly referred to in it in order to construe its precise terms. There is ample authority to that effect. The one in the bundle before me is Slough Borough Council v Secretary of State for the Environment [1995] JPL 1128. That proposition is so well known that it is not necessary for me to refer specifically to any parts of it.
It is therefore common ground that all that can be looked at here is the consent itself, together with the plans that are specifically incorporated into that consent. What cannot be looked at in construing it is the application not that in fact the application is particularly helpful because, although it indicates that illumination was not being applied for, it does not follow that the grant was necessarily restrictive of illumination in the future.
The reason why it is said that the terms of the consent have to be considered is because of the condition in 14(2). It is accepted that there was no condition to the contrary imposed on the consent and 14(2)(b) does not apply since renewal of consent was not applied for, let alone refused. So the question is whether the consent and the plans mean that the limitation contained in 14(2) bites so that reliance cannot not be placed on Class 14. The reason why it bites is because of the words, so Mr Lowe submits, 'used for the purpose' contained in 14(2). I should, I think for clarity, reread 14(2). It provides:
'No advertisement may be displayed under this class except on a site which has been continually used for the purpose since the expiry of the express consent'.
The submission made is that 'for the purpose' means, and must mean, 'for the purpose permitted by the express consent', and the express consent does not extend to illumination. The reason why, it is submitted, that it can be shown that it does not so extend is because, when one looks at the plans, there is nothing on them which indicates a possibility of illumination; certainly, there is nothing which permits of the addition of the bars which have now been erected. They are an addition to the plans. They were not covered by the consent and therefore the site has not since 1989, when the bars were erected, been used for the purpose of the consent.
Mr Holgate prays in aid the definition of 'advertisement' in the 1990 Act, pointing out that it includes the words 'illuminated or not', and thus, any reference to advertisement in the regulations must be read as including an advertisement which is illuminated, as well as an advertisement which is not. That is a meaning which should be attached to the consent.
He relies upon observations of Lord Lowry in Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357. Lord Lowry's observations are at page 365. The case itself concerned a caravan and the issue was whether 'caravan' meant what perhaps everyone would think a caravan meant, or was to be construed in accordance with the extended meaning of 'caravan' within the 1960 Act.
Lord Lowry said this:
'My Lords, I have to say that I regard the Council's proposition as quite untenable: if Parliament in a statutory enactment defines its terms (whether by enlarging or by restricting the order meaning of the word or expression) it must intend that, in the absence of a clear indication to the contrary, those terms as defined shall govern what is proposed, authorised or done under or by reference to that enactment. If after D Day, there being no relevant planning history, an owner has submitted an application to use his land "as an caravan site for 50 caravans" and, the planning authority having granted permission without imposing any restriction on the type of caravan allowed (I am not for the moment thinking of conditions as to colour, design or layout), stations on the site something which is a caravan as defined by the Act of 1960, although not a caravan in the ordinary sense, could the authority then serve a good enforcement notice requiring the landowners to remove the unauthorised structure from the site? I scarcely think so, yet that would be the consequence of accepting the Council's argument. It would also seem to follow from this reasoning that, in order to be able to bring statutory caravans onto the site, a developer must seek express permission for "caravans as defined in the Order under which this application is made".'
Mr Holgate submits that the plans cannot help, since illumination could have been provided without any change certainly any substantial change to the layout and structure, as indicated on the plans; for example, some form of internal lighting. Accordingly, he submits, it cannot be said that the purpose was clearly and I use the word 'clearly' because that reflects what Lord Lowry said limited to unilluminated advertisements. Accordingly, the existence of the bars cannot be regarded as a material matter. The fact is, he submits, that the consent, on its true construction, bearing in mind the definition of 'advertisement', which was the same so far as material in the 1947 Act whether illuminated or not, there was a continual use for the purpose of displaying advertisements for which the express consent had been granted."
It follows that what was being considered there was whether the addition of illumination took it outside the scope of what had received consent. That is not the issue which now arises in this case, where Mr Fraser-Urquhart says that his clients may rely on a use for a display which is unauthorised as having been the continual use in question. Collins J did not have to grapple with that issue. I do not regard anything he said as determinative of the point in question here.
Lastly on this topic, Mr Fraser-Urquhart says that if Hoarding A is lawful then the whole site has been used continually for the purposes of displaying advertisements. If I adopt the approach in Barking and Scotts cases, that depends on my factual findings of what the site consists of as the decision maker.
There can be no doubt that the 1991 consent covered the site of all the original hoardings. Equally there can be no doubt that the changes to hoardings B to H have involved substantial departures from the scope of the deemed consent. While those parts of the site have been used for hoardings, they have been used for unauthorised hoardings and the lawful hoarding has occupied one part only of the original site. Given the small part of the site which has been lawfully used, which is eight per cent of the frontage, I have decided as a matter of fact and degree that the deemed consent rights have not remained on the large parts of the site where the claimant erected and maintained unauthorised advertisements.
In any event, I am not persuaded that the Regulations permit the situation whereby use of one small part can keep alive a deemed consent over the whole in a situation such as this. Suppose that A has a site of 100 metres in length upon which he has deemed consent for eight eight metre wide hoardings set five metres apart. He replaces them all with substantially different hoardings but of course loses his deemed consent. B has the same consent on his 100 metre site but only makes substantial changes to seven of the eight. If Mr Fraser-Urquhart is right, he would retain the right to revert to the original seven because he retained one which covered eight metres or one per cent of the 100 metre length. I do not consider that the apparent absurdity of comparing those examples justifies the interpretation which Mr Fraser-Urquhart puts forward and I reject it.
There can be no doubt that the officer's report addressed issues of amenity at length. I do not consider that Mr Fraser Urquhart's fallback position required consideration in the report and I note also that the Council was never asked to consider it by the claimant.
Lastly, Mr Fraser-Urquhart says that the letter of 1998 raises a legitimate expectation that the removal of the advertisements would be dealt with by discontinuance. Of course, that claim was fatally undermined by my clear findings that there have been substantial changes to all the hoardings B to H since 1998 and that Class 14 rights have not survived. But in any event, it is really nothing more than an attempt to estop a local authority from exercising its statutory powers and it is impermissible in the light of R (on the application of Reprotech (Pebsham) Ltd) v East Sussex County Council [2003] 1 WLR 348.
I therefore refuse to quash the notices save for that relating to Hoarding A, where it is agreed that that notice should be quashed.
I do not wish to conclude this judgment without paying tribute to the submissions of both Mr Fraser-Urquhart and Mr Langham. I find them of enormous assistance and I am very grateful to both of them.
MR LANGHAM: I am grateful, my Lord. I ask for an order -- may I say, we have already withdrawn the notice in regard to A but --
HIS HONOUR JUDGE GILBART QC: Well the application is to quash --
MR LANGHAM: Indeed. I criticised it for doing that.
HIS HONOUR JUDGE GILBART QC: Well, it seems to me that all the expense has come about in relation to B to H.
MR LANGHAM: Yes, a certain form of order, I suppose, starting with --
HIS HONOUR JUDGE GILBART QC: It is to quash the notices relating to hoardings B to H.
MR LANGHAM: My Lord.
HIS HONOUR JUDGE GILBART QC: Thank you, and you make an application for costs?
MR LANGHAM: I make an application for costs. I hope your Lordship has received the schedule.
HIS HONOUR JUDGE GILBART QC: Yes, I have but, more importantly, has Mr Coppel?
MR COPPEL: Mr Coppel has. I cannot resist the order for costs against us. I understand my learned friend has asked for summary assessment, which is of course appropriate, given that the matter has lasted just a day.
HIS HONOUR JUDGE GILBART QC: I am just looking for the sheet but I have received it. What is the figure please, Mr Langham?
MR LANGHAM: £13,258.75.
HIS HONOUR JUDGE GILBART QC: Thank you. Well, I award -- do you submit that the costs should not be paid?
MR COPPEL: The principle, my Lord, we do not take exception to. We do take exception to some of the figures.
HIS HONOUR JUDGE GILBART QC: Well, I had better just have the schedule in front of me then, if I could be provided with a copy, please.
MR LANGHAM: My Lord, we have here, of course, a respondent local authority, so, generally speaking, one expects things to be less than a person who is a party that initiated the claim.
HIS HONOUR JUDGE GILBART QC: Why?
MR COPPEL: Well, my Lord, because -- just looking at what happened here -- for example, the claimant, to get the matter off the ground, has put in two witness statements totalling 25 pages. On the other hand, the respondent has put in witness statements under half that.
HIS HONOUR JUDGE GILBART QC: All that would mean is that your claim for costs might have been higher.
MR COPPEL: Well yes, my Lord, that is quite right. That is the very point that I make. Just taking the items to which we take exception: attendance is the first item we say is very high. As I say, a local authority with its own solicitors in-house, 17 and three quarter hours, we say, for attendance is too high.
HIS HONOUR JUDGE GILBART QC: What do you say the figure should be?
MR COPPEL: Half that, my Lord. No exception to attendances on opponents or attendance on others, so that is the next two items we do not take expectation to. Work done on documents strikes us as being on the high side.
HIS HONOUR JUDGE GILBART QC: What is your figure?
MR COPPEL: Half that, my Lord. And then, if I put it this way, over the page, we say there should be parity as to counsel's fees.
HIS HONOUR JUDGE GILBART QC: Does that mean they should go up or down?
MR COPPEL: That is true but down.
HIS HONOUR JUDGE GILBART QC: What I am -- what I am more troubled about there is the size of the fees for the conferences actually.
MR COPPEL: Well, my Lord, if I put it this way, again it is a parity issue. Mr Fraser-Urquhart, of similar seniority, was just under £1,000 less for fees on the advice, conferences and documents and the hearing, he was also £1,000 less. Just looking at it globally, my Lord, we say it should be -- the basic parity between the two should be six and-a-half.
HIS HONOUR JUDGE GILBART QC: Six and-a-half?
MR COPPEL: Yes, it is going to be eight and-a-half, which he has for two.
HIS HONOUR JUDGE GILBART QC: What was your figure for conferences?
MR COPPEL: Two and-a-half.
HIS HONOUR JUDGE GILBART QC: I see. Right, anything else?
MR LANGHAM: It is surprising to hear the claimants complain about the length of time we spent on documents and had I --
HIS HONOUR JUDGE GILBART QC: I am trying to see if there is a jury over there. There is not.
MR LANGHAM: My learned friend has counting days and I say --
HIS HONOUR JUDGE GILBART QC: Well, I have not seen their claim.
MR LANGHAM: They would have sought -- they would have said costs for 40 hours on documents and 48 hours work on documents.
HIS HONOUR JUDGE GILBART QC: And what was the fee -- they are right about the fee being lower for counsel, are they?
MR LANGHAM: My Lord, I am a number of years longer than my learned friend Mr Fraser-Urquhart. If your Lordship has not been able to see --
HIS HONOUR JUDGE GILBART QC: I do not know what figure was claimed. Tell me.
MR LANGHAM: Mr Fraser-Urquhart, who is a number of years younger than myself -- I think that says 1993 but I cannot quite read it.
HIS HONOUR JUDGE GILBART QC: Right.
MR LANGHAM: It was 2,250 as against my 3,500 and 4,000 against my 5,000.
HIS HONOUR JUDGE GILBART QC: Right, thank you.
I am not going to order the costs so far the documents are concerned. I am going to reduce the fee for conferences and the documents to £2,500 and I am going to reduce the brief fee to £4,500. Of course, I have looked at the costs bill overall and, yes, it is one which requires investigation and that is the investigation I have made, plus any adjustments to VAT. Any other applications? Mr Coppel?
MR LANGHAM: I am going to ask for permission to appeal to the Court of Appeal.
HIS HONOUR JUDGE GILBART QC: Just a minute. Mr Langham, I think he has grounds to say that there is a reasonable --
MR COPPEL: I am bound to say --
HIS HONOUR JUDGE GILBART QC: I am going to give you permission.
MR LANGHAM: I am very grateful. Could I also ask that in the interim --
HIS HONOUR JUDGE GILBART QC: I think the point on reverting and on the meaning of Class 14, I am sure I am right but I think it is an interesting question and it certainly raises an arguable ground of appeal.
MR LANGHAM: I am very grateful for that.
HIS HONOUR JUDGE GILBART QC: I am bound to say, I do not grant you permission on the question of whether or not there was a substantial alteration in the holdings, which was absolutely open and shut.
MR LANGHAM: I would be pushing up a very steep hill. One other matter, my Lord, and that is -- we are anxious of course that the appeal is not --
HIS HONOUR JUDGE GILBART QC: 21 days from the receipt of transcript, is that what you are after?
MR LANGHAM: Well, my Lord, to get a stay, pending determination on the appeal, so that the notice --
HIS HONOUR JUDGE GILBART QC: Yes, that must be fair, must it not?
MR COPPEL: Yes. Your Lordship will have appreciated there is actually a stay at the moment. We have undertaken and we undertook right from the outset not to move before --
HIS HONOUR JUDGE GILBART QC: Well, I am going to impose a stay. I think that is fine.
MR LANGHAM: I am grateful.
HIS HONOUR JUDGE GILBART QC: Thank you, gentlemen.