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

MR JUSTICE DAVIS: This is an appeal brought by Mr and Mrs Walker against a decision of a planning inspector, which was pronounced on 6 April 2005. The appeal notice was issued on or around 6 May, and leave, limited to certain grounds, was granted by Richards J after an oral hearing on 24 June 2005. Mr and Mrs Walker have appeared before me today in person and have addressed me both eloquently and courteously throughout. The respondent has been represented by Mr Buley of counsel.

The background, very shortly put, is this. Mr and Mrs Walker wish to develop the site of the Old School House on the edge of the village of Darton, which falls within the area of the Barnsley Metropolitan Borough Council. I was told that there had been a school there from about the 1870s, although that in recent years had closed. I was further told, and it was no doubt stressed to the inspector, that this was a deprived area in desperate need of regeneration, as Mr and Mrs Walker see it, and some of the advantages, as they see it, of extending and improving that particular building for a school for the community would be the provision of a significant number of jobs in the community, a contribution towards the regeneration of the area, and a provision of school places and out-of-school and other activities for young people and others living in the vicinity of Darton.

Emphasis is also laid on the fact, as it is said to be, that planning permission has been or will be granted for a considerable number of houses in the community, and further there will be an expansion of offices and buildings in the community, thereby, it is said, lending further justification for the provision of an extended nursery and other facilities, including schooling facilities for young people at this particular site.

Mr and Mrs Walker had in fact previously made a planning application in this regard. They had sent out to locals a document on 22 October 2003, asking locals to note that they were completely refurbishing the school. The letter records that the planning department had said that they were turning the school from residential to a nursery school, but as local people, it was said, the locals would have been already aware that that was not the case.

Further, it was said that the flat-top building had never had a change of use to residential at any time. It was further said that the proposals that Mr and Mrs Walker had in mind were, amongst other things-

Mr and Mrs Walker had in fact put in a planning application in this regard on 12 November 2003. The brief description of the proposed development was described in that planning application as "first floor extension to existing school building to form day nursery". That planning application in the event was ultimately withdrawn. But it was in fact dealt with by the Council, and, in fact, the Council on 13 January 2004 refused permission for the proposals described as "erection of first floor extension to existing school building to form day nursery".

In the event, Mr and Mrs Walker proceeded to construct, and I put it shortly, a pitched roof at that particular building. That attracted an enforcement notice from the Barnsley Metropolitan Borough Council. Mr and Mrs Walker then sought to appeal against that enforcement notice, and their appeal also operated as a retrospective application for planning permission in respect of the pitched roof construction.

In the course of the enforcement appeal notice (which was dated 31 August 2004 and prepared by, or at least prepared with the assistance of, Mr Hey FRICS), it was said, amongst other things:

Another point made in the enforcement appeal notice was this:

It was that matter which came before the inspector. The hearing took place on 1 March 2005. Mr and Mrs Walker attended. They were accompanied, as I was told, by Mr Hey and made their representations to the inspector, who also undertook a view of the site in question.

The decision of the inspector, as I have said, was promulgated on 6 April 2005. Under the heading "Procedural Matters" at the forefront of the appeal decision, the inspector described the locality and the building. At paragraph 2, it was said that there was no dispute that educational use of the building remained lawful. It was noted that the appellants had constructed a pitched roof over the whole building to provide a further floor of accommodation. The inspector then said this:

After further comments, the inspector then went on to refer to the relevant planning policy, including noting the development plan within the Barnsley Unitary Development Plan and policies GS7 and GS8, reiterating the general presumption against inappropriate development in the Green Belt, except in very special circumstances consistent with guidance in PPG2. He then went on to refer to other things.

The inspector then said that, from all the evidence before him and from his inspection of the site and its surroundings, he considered the main issues in this case to be, first, whether or not this development complied with policies designed to protect the Green Belt; and secondly the implications for highway and pedestrian safety along the private access road to the south. Pausing there, the inspector had taken the view, and justifiably so in the circumstances, that there were two particular issues which he had to resolve.

Turning to the first issue, the inspector found that the new pitched roof was substantially higher than the original flat roof and significantly increased the useable floor area of the building. He then went on to record (and this is important) that the appellants accepted that this was inappropriate development in terms of policy guidance, but argued that there were very special circumstances in this case. Pausing there, it was common ground before me that very special circumstances need to be shown to justify a departure from the stated and applicable policy.

The inspector then turned to consider those very special circumstances. One point he considered was the existence of another building, informally known as the Taylor Robinson building, where an application had been granted by the Metropolitan Borough Council, and primarily, so it is said, for the protection of existing jobs. Mr and Mrs Walker place, and continue to place, reliance on that point; but the inspector took the view that that particular Taylor Robinson building was different because of its functional appearance and because it was on an existing industrial site forming a complex of buildings with an adjacent public house. So clearly the inspector was entitled to form the view that the situation with regard to the Taylor Robinson building was to be distinguished from the present application.

In paragraph 8 of his appeal decision, the inspector went on to record the argument that, so it was said, 20 full and part-time jobs would be provided from the school, and that it could accommodate up to 140 pupils as extended. Reference was made, as the inspector recorded, to proposed developments of houses and business units in the vicinity, and he went on to say:

The inspector noted that reference had also been made to a proposed 100-house site nearby, but that application had not yet been determined. Further, the inspector recorded the argument that the proposed development accorded with Government policies to regenerate former mining areas and improve nursery facilities. But the inspector went on to record his finding that there was no substantial evidence to show that the commercial development of this scale on that relatively isolated and very prominent site in the Green Belt was supported by that guidance.

The inspector then went on to record further other points relating, in particular, to the pitch of the roof, and noting also that there had been support for the proposal, including from the local Member of Parliament. In concluding his determination on issue 1, the inspector then said this in paragraph 9 of his decision:

Mr and Mrs Walker understand that the appeal before me is not a re-hearing. They understand (although I do not think they necessarily wanted it to be the position but they do understand that it is the position in law) that for them to succeed on this appeal they must show some error on the part of the inspector vitiating his decision. It is not enough for them to say that it may be some other inspectors, so they say, would have reached a different conclusion.

At first sight it is very hard to see what possible error in the public law sense there is which would vitiate the inspector's decision on this first issue. He had regard to the relevant arguments put forward. He correctly directed himself by reference to the need for very special circumstances to be shown to justify departure from the publicised policy; and he reviewed the facts and made his findings accordingly. But what Mr and Mrs Walker say is that this decision is vitiated by a significant error, as they would say, on the part of the inspector, in particular in his taking the view that the proposed use of the site would be predominantly for use as a nursery for ages 0 to 4 (or it may be 0 to 5). Mr and Mrs Walker say that the inspector got it "fundamentally wrong" or, in Mr Walker's more homely but just as effective phrase, "he had the wrong handle on the case". But what they say is that it was never the position that this was simply and primarily going to be a nursery school for ages 0 to 4 or 5, but it was to have wider uses than that, and in particular was to extend to educational activities, be it in school or out of school, for age groups 0 to 16.

They submit that the inspector having made this error, that then permeated through into his disposal of the case on this particular issue, and accordingly it is flawed and should be set aside.

Unhappily there is something of a difference between those concerned as to what exactly was said at the hearing. The inspector himself has subsequently put in a witness statement which has not, in formal terms at least, been challenged by any subsequent witness statement of Mr and Mrs Walker. In the course of that witness statement, which is dated 29 November 2005, the inspector said this:

Mr Walker today (and supported by Mrs Walker) says that he said no such thing when asked that question. Mr Walker says that words such as "primarily" and "predominantly" are alien to his normal kind of speech and he did not say that. What he said was that the use would be for ages 0 to 16 years. That, as it happens, has some support from a member of the Barnsley Metropolitan Borough Council who was present, because in a letter sent to the Treasury Solicitor dated 2 September 2005, this is said on behalf of the development control manager:

Accordingly, while I have a degree of sympathy with Mr and Mrs Walker in expressing their disagreement with the inspector on this point, I do not think it can be said that the inspector got it fundamentally wrong as is now said. But quite apart from that, it seems to me that this particular point has no real bearing on the first issue. Here, the inspector had to ask himself whether or not very special circumstances were shown. He considered all the relevant arguments. His decision clearly was not in any material way affected by the age group of the children prospectively attending the site. One only has to consider the way in which the inspector approached the matter to see that he took into account all the relevant facts and he approached the matter asking himself the right question.

It seems to me that the inspector was entitled to conclude that no special circumstances were shown. No error, as I see it, is shown in any public law or planning law sense which would vitiate that decision, and therefore this appeal cannot succeed.

There was in fact a second issue, as I have already mentioned, which the inspector also considered, namely the implications for highway and pedestrian safety. Here I can see Mr Walker's point that the reasoning may to some extent had been influenced by the inspector proceeding on the footing that the only users would be aged 0 to 4 or 5 years: because quite clearly if that was so, the parents of such users would be likely to use cars to come to the school site. But even there, it is to be noted that, whilst the inspector records the Council's argument that the footpath and steepness and the like of the road would be unlikely to encourage parents and "such young children" to walk, nevertheless in expressing his overall conclusion on this, the inspector put the matter far more widely than that: referring, amongst other things, to the lack of adequate public transport, the relative remoteness of the site, the steepness of the access, and the lack of street lighting (a particular problem in the winter months) and so on. It seems to me as a matter of reality that, even for older children, the inspector was entitled to take the view that some at least might be brought in cars to the particular site: although certainly there was evidence to show that a considerable number, Mr Jewkes being an example, would be only too happy for their children to walk to the site. So I think that, overall, on this ground also, no material error of law as such, and no error in any other public law sense sufficient to vitiate this ground of reasoning, is shown either.

That being my conclusion, and while I fully accept and understand Mr and Mrs Walker's own personal conviction that for this school to go ahead in the way they plan would be a very good thing for the community and the area as a whole, if one looks at the matter on planning consideration aspects, the inspector was entitled to come to the conclusion that he did. It is not for this court to interfere where no error is shown in that regard sufficient to vitiate the decision. Therefore the appeal must fail.

MR BULEY: My Lord, there is, on our part anyway, only the matter of costs. I do make an application for costs. My Lord, I hope your Lordship has received a schedule. That, again, was sent out on 7 March to the appellants, although again it appears they may not have received it, but I gave another copy to them this morning. My Lord, the ordinary rule, as your Lordship will be well aware, is that costs should follow the event. On that basis I apply for the first defendant's costs of this appeal.

MR JUSTICE DAVIS: Before we go into the amount of the costs, let us first of all see whether Mr and Mrs Walker -- do you feel you can oppose the application for costs? You have been unsuccessful and the usual rule is that the loser pays the costs.

MR WALKER: I do not know, what can we do? I do not know what we cannot do. Can I oppose costs?

MR JUSTICE DAVIS: You can ask me not to make an order for costs, but you need to explain to me why, since you have lost, you should not be ordered to pay costs. You are perfectly entitled to bring this appeal, but the fact is you lost.

MR WALKER: I would like to oppose costs, but I do not know how to go about it. I mean, for example, we have been given all this this morning. We were given a similar thing the last time we were here. I do not know if that is a reason to be able to oppose costs.

MR JUSTICE DAVIS: No, it is not, I am afraid. I really think, Mr and Mrs Walker, I am afraid you having lost, I can really see no reason why you should not be ordered to pay costs.

MR WALKER: What about last time when we won last time to come here?

MR JUSTICE DAVIS: Last time you got permission to appeal on part of your grounds. I am afraid that has no bearing on the overall costs position.

MR WALKER: I was given a list of costs by Mr Buley on that occasion.

MR JUSTICE DAVIS: Yes, but, in the event, that has to be decided now today because you got permission to appeal in part.

MR WALKER: So what can I do? I do not know what I can do.

MR JUSTICE DAVIS: I understand you do not wish to, but I am afraid I am going to have to order you to pay costs. You have lost and I think you must pay the costs.

MR WALKER: That is what we have to do, or is there no way round that?

MR JUSTICE DAVIS: That is my order, I am afraid.

MR WALKER: Fair enough then.

MR JUSTICE DAVIS: Now, quantum of costs, Mr Buley.

MR BULEY: My Lord, I ask your Lordship to summarily assess costs. I should just say Richards J did expressly reserve costs of the last hearing.

MR JUSTICE DAVIS: You succeeded in part at the last hearing because 1 to 4 were knocked out. I am bound to say I regard costs of the last hearing as part and parcel of the overall costs. You want £5,104?

MR BULEY: Indeed, my Lord.

MR JUSTICE DAVIS: I have been through your schedule. I must say this is not the world's thickest bundle, and work done on documents at 15 hours really does seem to me to be a very surprising amount of time.

MR BULEY: My Lord, it is not just a matter of preparing documents. As your Lordship sees, there has been some correspondence -- I think a quite considerable amount of correspondence.

MR JUSTICE DAVIS: You have attendances on opponents and attendances on others quite separately.

MR BULEY: Indeed, my Lord. The other matter, and this is a standard matter for the Treasury Solicitor, my Lord, is the internal advice produced by Treasury Solicitors.

MR JUSTICE DAVIS: You are asking for work done on documents, 15 hours. That is the head you put it under.

MR BULEY: My Lord, yes, that includes, as I say, the advice which would have been the internal advice produced when this matter first came up.

MR JUSTICE DAVIS: You have attendances on client, you have that. It is a separate head.

MR BULEY: Can I just take instructions. My Lord, your Lordship will see the one hour attendance on client is, as I remember, taking instructions from the client, and that was the Planning Inspectorate. My Lord, the 15 hours, work done on documents, includes, first of all, drafting the witness statement of Mr Cherington and consultation with him. My Lord, secondly, it includes the internal advice, and thirdly it also includes that correspondence from the local authority. My Lord, this is a simple case, I accept that, but the fact is that these are matters which when a case goes this far costs have to be incurred in order to deal with --

MR JUSTICE DAVIS: I appreciate that, and for a case of this kind I am not necessarily saying that £5,000 is out of order. But when you choose to claim as part of that £5,000, 15 hours as work done on the documents, and when what we have is this [indicating size of bundle], I am afraid I am sceptical. If you could have claimed it under another head, so be it. You have not done that.

MR BULEY: My Lord, those are my instructions as to what it represents. Obviously, I am in your Lordship's hands. There it is. Is there anything else, my Lord?

MR JUSTICE DAVIS: No, thank you. Is there anything you want to say about the amount of costs?

MR WALKER: I am in the wrong job. It just sounds a lot of money for 15 hours.

MRS WALKER: We never actually received these documents.

MR JUSTICE DAVIS: I am afraid it not infrequently happens that schedules of costs are handed in on the morning. But having had a look at it, is there anything that you would like to say about the items of costs that are claimed or about the total amount that is claimed?

MR WALKER: I do not really understand it, but I must agree with yourself, 15 hours to set that file up, it sounds a long time.

MR JUSTICE DAVIS: Obviously they have to go through the bigger file to select what should come in.

MR WALKER: They did that for the last hearing.

MR JUSTICE DAVIS: So you say it should be less than £5,104?

MR WALKER: Does this include the last hearing, or is it all --

MR JUSTICE DAVIS: That is your total bill, is it not?

MR BULEY: That includes the last hearing and all the preparatory work.

MR WALKER: I am assuming most of this was done at the last hearing. I do not know. I can only ask.

MR JUSTICE DAVIS: They are claiming these costs for the totality of the case. I should tell you that, by ordinary standards, £5,000-odd for a case of this kind in itself is by no means excessive. It may shock you to hear that especially as you come from Yorkshire.

MR WALKER: I think we will have to leave it to you, sir.

MR JUSTICE DAVIS: I think you probably will, Mr Walker.

MR WALKER: Thank you.

MR JUSTICE DAVIS: Mr and Mrs Walker have failed in this case. Although they are perfectly entitled to bring it, the fact is they failed. I really think they must pay the costs of the respondent. The question then is, how much? Mr Buley, on behalf of the respondent, seeks the sum of £5,104, which is itemised in the schedule. I would not think that £5,104 would of itself appear to be at all excessive for a case of this kind, but I still have to have regard to the items as claimed, and a very significant element of the items claimed is £2,400 for what is described as 15 hours spent on work done on documents. I must say I really would query that 15 hours either could or need to have been spent on preparing the documents for this case, resulting in essentially a formal bundle of 98 pages. It seems to me that that figure should be halved to £1,200. The other items I would allow as claimed. Therefore, the total amount I summarily assess as payable, if my arithmetic be right, is £3,904.

How long would you like to pay that, Mr and Mrs Walker?

MR WALKER: Not today.

MR JUSTICE DAVIS: No, not today, do not worry about that.

MR WALKER: Can you say that again?

MR JUSTICE DAVIS: £3,904. How long would you like to pay it?

MR WALKER: A month.

MR JUSTICE DAVIS: 28 days? That seems fair to me, Mr Buley.

MR BULEY: That is what I was going to say, my Lord.

MR JUSTICE DAVIS: Could you pay that in 28 days. Thank you very much. I am sorry you have lost, but I hope you understand how, as a lawyer, I must approach it. You put your case very well, both of you, if I may say so.