Littman, R (on the application of) v London Borough of Barnet

MR JUSTICE COLLINS: This claim for judicial review was lodged as long ago as August of 2005. It is a regrettable indication of the pressures of work upon this court that it has not come for final decision until now, over two years later. That is a thoroughly undesirable situation for many reasons, not least because of the effect it can have upon those who are affected by the decision, but also it sits ill with a requirement that claims should be lodged promptly, and in any event within three months, if the court is unable to deal with them for a very substantial period of time thereafter. It is a matter of considerable regret.

It is a claim asserting that the decision of the London Borough of Barnet not to take enforcement action, in relation to what was asserted to be unlawful development, was unlawful. The relevant power to enforce in planning cases is contained in Section 172 of the Town and Country Planning Act 1990, which provides:

There are thus two matters which have to be considered in deciding whether to enforce. First of all, it has to have appeared to the local planning authority that there has been a breach of planning control. That does not, of course, necessarily mean that there has been a breach, because one of the grounds of appeal against enforcement is that there has been no breach. But it must so appear to the local planning authority.

Secondly, the authority must consider whether it is expedient to issue the notice, and that imports a discretion, and as has been made plain in the authorities, a wide discretion. It is perhaps necessary to do no more than refer to the note in the planning encyclopaedia in this connection to S.172 at P172.09. This makes the point that enforcement is discretionary, and even in the case of a flagrant breach of planning control, there is an option not to take action. The authorities show that a refusal to issue an enforcement notice is unchallengeable in the courts, unless it can shown to be founded on an error of law, or arbitrary or capricious. As far as arbitrary or capricious is concerned, that suggestion is not made in the context of this case. What is alleged is that there was an error of law in the decision not to enforce. That error was a misapprehension as to whether there had been a breach of planning control in connection with a major part of the development in question, and accordingly the proper approach to whether to enforce was not, and indeed could not have been adopted.

The claimant lives in a house in Barnet in north London. It is on what was, I think, an estate developed in the 1950s, containing a number of detached substantial dwellings. Accordingly, there was a relatively standard form of building over the estate, each having a garden attached to it. The development in relation to which this claim is made, was to the house which is situated at the end of the claimant's garden. He lives at 25 Heriot Road. The address in question is 6 Queen's Way. That is a different road, but the house in question adjoins the end of the claimant's garden and is therefore not only visible from his house and his garden, but overlooks his garden as well.

The interested party (that is how I shall describe the occupant of the house in question, 6 Queen's Way) sought, and after an initial refusal, obtained planning permission for an extension to his house. That planning permission was granted on 27th August 2003. The permission was for a two storey rear extension, a two storey front extension, including a new base and ground and first floor level, and a conversion of the existing garage to a habitable room.

There were a number of conditions attached to the permission involving control over the materials used, which had to be consistent with those in existing buildings. There had to be obscured glass in windows, which faced the claimant's house, and indeed other houses, and the roof could only be used in connection with repair and maintenance, and could not be used as a balcony, roof garden or similar amenity. That is because part of the development involved the installing of flat roofs, which could be used as balconies, and thus could be used to overlook and be contrary to the amenities of adjoining occupiers.

The planning permission referred to the accompanying plans and, thus, the plans were a material part of that permission. On the face of it, it had to be in accordance with the plans, and indeed the plans were identified in the body of the permission. Those plans showed that there was included work to the roof, as indeed one would have expected, and was inevitable, because there were extensions to the building, and those extensions needed to be roofed over. But as again is plain from the plans, there was no very material difference to the overall view of the roof. It was, as was the case with the housing generally in this development, what is known as a hip roof, and that, broadly, was to remain the position as far as the plans were concerned.

There were certain windows which were going to be placed in some of the side renovations. Again, that is not unexpected, because of the extension of the building. But the plans did not indicate that there was to be a further development to the existing roof space, or the loft, creating yet further windows and a distinct development to that part of the building. As far as developments to the roof of dwellings is concerned, Barnet have issued a guidance which was to apply to all the extensions to dwellings, including to roofs, and was designed to ensure that such developments were in keeping with the surrounds, and did not affect adversely the amenities of the particular area in which such development was sought. In dealing with whole roof extensions, the guidance stated this:

Before implementing his planning permission, the interested party proceeded to carry out developments to the roof of his property, purporting to do so in accordance with his rights under the General Permitted Development Order (GPDO). He did not, he believed, require planning permission for such work. The relevant provisions in schedule 2 to the GPDO are in class B. That provides that there is to be permitted development involving:

There then follow qualifications to that. B1, as far as material, provides:

We find that there is a definition of resulting building in paragraph I of this part of the schedule. It reads:

Thus the qualification in (d) means that it is not possible to come within the GPDO permitted development right, if any development added to any other development of the original building, means that it is increased, as far as material to this case, by more than 150 cubic metres. There are other qualifications which I have not read which are not material.

The result of that is that it is clear that if one has planning permission for a development of the dwelling house, and one puts that into effect, one cannot then exercise one's rights of roof enlargement, if the result of such an enlargement would mean that that, plus the development for which planning permission had been received, was in excess in the circumstances of this case of 115 cubic metres. But there is, on the face of it, nothing to prevent one from using one's permitted development rights to carry out the roof enlargement before one implements one's planning permission, provided, of course, that it does not fall foul of any of the other qualifications to which I have referred. That is what the interested party decided to do. It seems clear, indeed it is obvious, that he was carrying out the development with a view to an overall improvement or extension to his house. But in order to, as he believed, comply with the statutory requirements, he was obliged to carry out the roof extension first, and this he did. There is a point made that he did not, on the facts of this case, carry out that work as something which stood on its own, by which I mean that it was a development which was only relevant so far as it formed part of the overall extension which had been allowed by the planning permission. It was entirely artificial to regard it as having been completed before commencement of the works in accordance with the planning permission. Indeed, one only has, it is said, to look at the fact that some tiling was carried out which made it look as if the matter was completed, and that tiling had to be removed once the other works were commenced, because it did not fit in with the works for which planning permission has been granted. Additional attention is drawn to the existence of girders, left uncovered, and simply awaiting the addition of the fresh part of the roof, which was relevant to the planning permission works rather than the permitted development works. The significance of all that will, I hope, become apparent when I refer to an authority which has dealt with the effect of this sort of practice. That is the decision of Mr Justice Ouseley in R (Watts) vs the Secretary of State for the Environment and Transport and the Regions, [2002] JPL 1473.

It is not necessary for me to go into any great detail as to the nature of the development, and how it does not, it is said, accord with the estate in general, and certainly not with the plans which would form part of the planning permission. I was taken through it in some detail in the course of argument, and there have been produced a number of photographs showing the before and after position, and what was happening as the works were carried out. Suffice it to say, that there is now in the middle of the dwelling, a relatively substantial rectangular building, so that there is, instead of the hip roof, a flat roof, and there are a number of windows. Clearly it is, on the face of it, an extra room in what had before been the loft of the house. There is also some extra flat roof area, and as far as the outlook from the claimant's house is concerned, instead of a view of property similar to his, he now faces a vertical wall with a window in it, and a rectangular flat roof above. It is on the face of it something which is not entirely in keeping with the rest of the dwellings in the estate, but I recognise it is not necessarily for that reason alone that something can be said to be detrimental to the amenities. That is ultimately a matter of planning judgment which is for those responsible, namely the enforcement officer in the Local Planning Authority to decide, because clearly whether it is regarded as damaging to the amenities of the area, including, of course, the amenities of neighbours such as the claimant, is a matter which is relevant in deciding if there has been a breach, and whether enforcement action should take place.

The claimant wrote a number of letters to the authority complaining of what was going on and requesting the authority to take the necessary enforcement action. The authority refused to do so. There has been produced what is said to be the enforcement file. That was obtained by the claimant under the Freedom of Information Act, as I understand it. That records complaints made, not only by him, but also by his neighbour at number 27. The first matter that is referred to in the file is that the extension at ground floor level was, instead of being 3 metres in extent, was 4.07 metres, thus 1.07 metres in excess of what had been approved. Accordingly, there was an obvious breach in relation to the permission that had been granted.

The second complaint that is specifically referred to, is that there were first floor works which meant that there was a potential for overlooking. The works in question produced an area of flat roof, which was not in accordance with the plans that had been approved. As far as those two complaints are concerned, the view was taken in relation to the excess of 1.07 metres, that there was no harm which could be demonstrated as a result of that, because the extension was the same as that which existed at the next door house, 5 Queen's Way. The point is taken that that was not particularly material when considering the effect upon the claimant's premises, because that extension was more apparent to him, and consideration should have been given to that. However, as I understood it, Mr Keyser did not think it right to rely particularly upon that matter in isolation. I think he was right so to do. Clearly, it was open to the authority to take the view that that particular breach was not one which justified enforcement action.

As far as the other was concerned, namely the additional area of flat roof, it was felt that that was covered by the condition, and that therefore there was no harm which could result from it. Accordingly, it was decided that it was not expedient to take any action at that time, that time being May 2005.

There was then further correspondence, culminating in threats from the claimant of a possible judicial review if the authority chose not to enforce. Eventually, the council writes the letter of 20th July 2005, which is the decision which is challenged in these proceedings. That letter I should read, certainly as far as material. After apologising for the delays in replying and expressing sympathy to the claimant, the author, who is described as a business support manager, stated that he felt that on balance the appropriate course of action had been taken. He went on:

It is clear that on one reading of that letter, the third paragraph indicates that a general view has been taken that the development as a whole, even if it is in breach of the planning permission that was granted, would receive planning permission were an application to be made, and, in effect, that it did not have the impact on the amenities of the area which justified enforcement. However, Mr Keyser submits that when one reads the letter in context, it is apparent that the council had not had regard to what they should have regard to, namely that they were dealing with alleged permitted development which was not in fact so, because it fell foul of paragraph B1(b).

There was obviously some failure to grasp the point that was being made by the claimant. There was indeed reference to the girder and the roof extension on that side of the dwelling, but the view was properly taken that that did not front a highway, that Queen's Way is a cul de sac, and this number 6 is at the end, and in reality, no part of the house fronts that highway. However, there is an alleyway which runs to the west of the property, and the alleyway in question is called West View. It is at the bottom of the garden of number 6. It runs between Eric Road and the road that Queen's Way runs into. I am not sure I have the name of that, it matters not. It is an alleyway which is used by pedestrians, and is relatively narrow, but it is accepted that it is indeed a highway. It is further accepted, now that the matter has been considered in its proper context, that the part of the dwelling house would as a result of the works extend beyond the plane of an existing roof slope on the west side, namely, the side that does front this alleyway. However, it is apparent from the correspondence that that was not appreciated before the decision letter of 20th July 2005. The matter is dealt with by Mr Clark in a statement found with the summary grounds of reference. I am looking at paragraph 8. He there deals the complaints about the north wall of the gable end, and indicates that does not front a highway, because Queen's Way was a cul de sac. As I say, that is clearly right. He then says:

In paragraph 10 he says:

He produces photographs, and he goes on:

He says that it is therefore evident that the planning authorities consistently decided not to treat the alleyway as a highway for the purposes of control.

The reality is that it is a highway, and it is in those circumstances, in my judgment, a clear error to treat it as not being a highway. The significance is considerable, because the fact that it is a highway, and the fact the works to the roof, which purported to be within the GPDO, did extend it beyond the plane of the existing roof surface fronting that highway, resulted in the development not being permitted development. It is significant in this context that Mr Clark at the end of his statement, says that he remains of the considered view from the information to him that the roof extension was permitted development. That, as I say, is wrong. If it is not a permitted development, then it is development which is in breach of planning control. That applies to the whole of the development, and not only to the part of it which affects the highway in question, in this instance, the alleyway. So consideration limited to the effect on the alleyway is a wrong approach. What has to be considered in the circumstances, particularly in the light of the complaints made, is whether the development as a whole, that is to say the new form of the roof, the abolition of the hip roof, the extension I have described as the rectangular area of that roof and to the windows, is such that it is in conformity with the planning policies for the council, and had permission been sought, would it have been granted whether by the council or on appeal?

But as Mr Keyser submits, it is plain that the view was taken that, because it was permitted development, the development of the roof in purported pursuance of the GPDO rights could not be the subject of enforcement action. It is not a question of whether it should have been enforced against, because if it was permitted it could not have been enforced against. It is difficult to imagine that that was not something which weighed with the council in reaching the decision that it was not expedient in the circumstances to enforce.

In those circumstances it is difficult to read the third paragraph of the letter of 20th July to have the general effect which Mr Robb submits that it has. There is nothing in Mr Clark's statement which indicates clearly that regard has been had to the overall effect of this particular development, independently of its effect on the claimant alone, and independently of the effect of the two breaches of the plans which form the basis of the planning permission to which I have referred.

I should say that Mr Robb has indicated on instructions that that view has been formed, and it has been decided, and I suppose would be decided, were I to accede to this claim, that in all the circumstances it would not be expedient to enforce. The point has been made that this is a technical breach. That may be so, but the effect of a technical breach in this context is to render the whole not permitted, and that is the important effect. That is what, in my view, the council has to have regard to in deciding whether it is appropriate to enforce.

Let me come back to one or two matters. I said that I would refer to Watts to see whether this was indeed capable of being permitted development. That was a case which, on its facts, has some similarities to the instant case. What happened there was that planning permission had been granted for the erection of a single storey side and rear extension, alterations to the rear fenestration and the formation of a balcony at first floor level. It was expressly decided that it was the claimant's intention at the same time as doing those works to carry out works to the roof, providing for a roof extension for which no express planning permission was sought. He was going to rely upon his class B rights. Indeed, it seems that the local planning authority were aware at the time of granting permission that that was indeed the claimant's intention in that case. Nonetheless, the council took the view that the erection of the roof extension and the single storey side and rear extension was one single building operation or project. They therefore served an enforcement notice. There was an appeal against that which the inspector upheld. It is that that led to an appeal under Section 289 of the Town and Country Planning Act 1990 before Mr Justice Ouseley. It would appear that as a matter of fact in that case, the work to the roof was not necessary for the planned extension, because this was a three storey Victorian terraced house, and the extensions were only to first floor level, and it would seem to follow from that -- though the facts stated were not explicit enough to be entirely sure -- that the GPDO works in that case were not, as I say, an extension of the planning permission.

The inspector took the view that the roof extension and the other was one building operation, and therefore the roof extension could not be construed as permitted by part 1, class B. The judge decided that that was not a correct construction of the legislation. What he stated, and I do not propose to read his judgment, in extenso, it can be referred to by anyone who is interested. In paragraph 39 he stated:

He recognised there was a degree of artificiality, because obviously if the works to the roof who carried out after the works permitted were carried out, there might be a breach of paragraph (d). But if they who carried out before, there would be no such risk, even though the net result was the same. That is obviously to a degree, artificial.

I have no doubt that, as far as the council are concerned, it is a situation which is not satisfactory, because if a way round the extent to which planning permissions are to be granted is to be found by this means, then the controls are not adequate. If, for example -- and I do not say that it applies in this case, that remains to be seen -- it is apparent that permission would not have been granted for the overall result of doing what this claimant has done, but there is no way of preventing it, then it is obvious that that would be a thoroughly undesirable state of affairs.

It may be that there are ways around this. It would be open, as it seems to me, to authorities in granting permissions for developments of dwelling houses, explicitly to exclude any subsequent GPDO rights which covered the same ground. By that, I mean, that if there was, as is the case here, permission to develop by adding to a dwelling house, and the works would inevitably include, or might include works to the roof, then there could an explicit exclusion of the rights that otherwise would arise under class A and class B certainly, and probably some others such as class C, which deals with material alterations to the shape of a dwelling house, and class D, the construction of porches. It would be a matter that an authority would decide in the circumstances of any particular permission, whether such an exclusion was desirable and what should be the extent of such an exclusion. But if it was to do that, it would certainly, as it seems to me, produce some degree of control, which otherwise could be lost if the general development rights were permitted.

The other possible way of approaching things is to indicate that where the plans show the situation to be as depicted therein, that is to say putting it in the context of this case, that there remains a hip roof, to change that by putting a different roof, even though by use of general permitted development rights, means that there is a breach of this planning permission. I appreciate that where GPDO rights are not explicitly excluded they can be used, but may perhaps be not if they are a clear breach of the plans which are included. Mr Robb has indicated, for example, there could be no objection for the inclusion of a window, which was not explicitly covered by the plans, because that would be a right which could arise under the GPDO, and it would not affect the volume of the building. It may be that this sort of action can be taken where the difference to what was in the plans was likely to have been material, and would, if carried out after the planning permission were implemented, have not been permitted under the GPDO. That seems to me to be a possible and lawful way of avoiding the problem created by the construction, which I believe to be correct, of Mr Justice Ouseley, that there is no way of preventing the exercise of GPDO rights before the planning permission is put into effect. Obviously, if it was merely a question of adding the window or something like that, even if there might be a technical breach of the planning permission, it would be difficult to justify enforcement, because the individual would say, "I can do it anyway under the GPDO rights, and therefore it cannot be expedient to enforce against me". But if he is in the position of having to say, "I recognise that I could not do it if I left it until afterwards, but I was able to do it before, because you have not precluded my rights, even though it is not something which you would have permitted", it seems to me that it would be open to a planning authority to take the view that, in those circumstances, the breach of the permission in failing to accord with the plans, would be something that could result in enforcement action, even though there was not an improper use of the relevant rights in the first instance.

I should add that I did consider at one stage whether the sort of development here, which is the insertion of a number of windows in the form of what effectively looks like a separate room, could properly be regarded as enlargement of a dwelling house consisting of an addition or an alteration to its roof. However, having considered the matter, I take the view that it is probably wrong to regard the construction of the provisions of B to be as narrow as that. The point made by Mr Robb is that B1 is regularly used and is accepted by councils as properly being used to deal with loft extensions. Those will almost inevitably include the installation of some sort of dormer window. In those circumstances, it may be that the incorporation of windows can properly be said to be covered by the expression "addition or alteration to the roof". Certainly a skylight in the roof, it is clear, I would have thought, comes within that expression. I do not need to decide on that point for the purposes of this case. However, I simply leave it for future consideration as to whether it might be an argument which could prevail in circumstances where there was a transformation of a roof into what effectively looked like a further room, with yet another roof on top of it. Whether or not that could properly be regarded as being within what was intended by the relevant provisions in the GPDO is, as it seems to me, a matter which could be open to argument. I make it clear that I am not deciding this case on that point.

I should add that equally there was some time spent and argument as to whether the extension which was done under the GPDO fell foul of paragraph (c). There have been various calculations as to whether it has exceeded the 50 cubic metres. The claimant has contended that it could be as high as 70, possibly even 80 cubic metres. Mr Clark, on behalf of the council, has calculated that it is under 50, his latest calculation being that it is just under 50.

Application was made to the court recently that there there should be a joint expert who could measure the matter and reach an agreed figure. Sir George Newman refused that application, but permitted the claimant to produce evidence by instructing an expert, which could then be taken into account. An expert was instructed. Unfortunately, he was not given access by the interested party, and so was not able to carry out a definitive measurement. However, he went through, as I understand it, Mr Clark's figures, and having gone through them, he decided that he was unable to say that an excess of 50 could be established. What he says in his conclusion, is:

That was the figure that, in fact, he reached. He said that:

He concluded that:

I suppose it could equally be put that it is not possible to confirm that it is not within the limit of 50 cubic metres. I do not mean by that that the expert is in any way doing something he should not do in the way that he has approached the matter, but as Mr Keyser accepts, the result is that he is not able to establish that there is a breach by virtue of an excess of 50 cubic metres, and therefore he is not able to say that this development is not permitted development for that reason. As I have indicated, he does not need that, because he has the slope fronting the highway, which renders it not permitted development.

In those circumstances, I have to decide what course should be adopted. It seems to me that it is apparent that there was an error of law in the consideration given by the council to whether enforcement should take place. If this was not permitted development, as it was not, then it would have been open to the council to have decided that the whole was out of character, was not development which was in sympathy with the amenities of the area, including the amenities of the claimant, and therefore should not be permitted to remain. On the other hand, one has to bear in mind that the expense involved in removing what is there will be very considerable. Therefore, that is a relevant consideration, albeit it is not a consideration which would carry a great deal of weight in circumstances where there was a deliberate breach of planning control. But in my view, it is difficult in this case to say that there was a deliberate breach. No doubt, the interested party believed he was taking advantage of what might be regarded by some as a loophole in the system of planning control, but there is nothing unlawful in that. He was acting, it would seem, in accordance with perhaps his own (because if seems he may have some professional knowledge of these matters) but it may be other advice. Certainly it would be difficult to establish, and certainly to take the positive view, that he had deliberately done anything wrong in his activities in carrying out his development. Of course, it is a relevant consideration. Equally, what is highly relevant is the view taken by an enforcement officer, the planning judgment, as to the overall impact of this development. It is significant that it appears clearly to be a breach of the guidance issued by the council. As I read the letter of 20th July, that is not denied. On the other hand, the impact of that breach is clearly material, and a view, as a matter of planning judgment, could no doubt properly be taken that the impact was not so adverse as to justify enforcement.

I am not persuaded, I am afraid, that the letter of 20th July, and the assertion that there was a general consideration, is one which in context should be recognised as a general consideration of the impact of the whole. The view was taken that there was no chance of enforcing against the works which had been done in purported compliance with the GPDO. Whether an application based on the current view will make any difference is not for me to say, but that it could make a difference seems to me to be clear. This court has always taken the approach that if there has been an error of law, and the decision could have been different, it would normally be appropriate to grant relief. The threshold if there is an error is a relatively low one in that regard, because it is of fundamental importance that decisions which have an impact on the public, and on individual members of the public, should be taken with all proper considerations in mind. I appreciate that Mr Long's instructions appear to be that the view is that, taken overall, it does not have the adverse impact that would justify enforcement action, but it seems to me that that decision must now be taken with all correct considerations in mind, and in particular, that this was not permitted development. For those reasons, I take the view that this claim succeeds so that the decision made on 20th July must be reconsidered. It can be quashed if it needs to be quashed, and should be considered in the light of what I have set out in this judgment. I do not think a formal declaration will be needed, because what I have said speaks for itself.

MR ROBB: I am grateful my Lord. I just have one issue I want to raise. I hope it is helpful. Your Lordship referred to the judgment in the Watt case. I have a better citation for it.

MR JUSTICE COLLINS: There is a copy.

MR ROBB: Yes, there is, my Lord, and I hope that that can form part of the judgment. The citation is [2002] JPL1473.

MR JUSTICE COLLINS: Well the shorthand writer will note that.

MR ROBB: I am very grateful.

MR KEYSER: Another point that is raised and, in fact, brought to my attention by the claimant who is good on detail --

MR JUSTICE COLLINS: Well, he knows a lot more than I.

MR KEYSER: -- is simply that I believe that at one point my Lord said that the claimant's address was number 27.

MR JUSTICE COLLINS: 25, yes, I got it wrong. I did get it wrong in the outset. Yes, it is 25. I am sorry.

MR KEYSER: First of all as regards the form of order. The claim form had referred to the date of the decision being challenged as 20th July and/or 4th August. I think your Lordship has proceeded on the basis which is, with respect, probably the correct one that the decision is 20th July.

MR JUSTICE COLLINS: It looks like it from the letter.

MR KEYSER: 4th August is merely the formal protocol letter which records the start.

MR JUSTICE COLLINS: It does not seem to matter. I am not sure that this is regarded as a formal decision which has to be quashed before it can be reconsidered, or whether it is simply a decision which was made in that way, but once the court says that it was not a proper decision, then it can be reconsidered. I do in think a formal quashing order is needed, is it?

MR ROBB: No.

MR JUSTICE COLLINS: So really all that I need do is I think what I have done, namely to indicate must be reconsidered on the proper basis. I do not think it is necessary to spell out a declaration. The judgment speaks for itself, I hope.

MR KEYSER: Yes, my Lord. A direction that the question of whether or not to take enforcement proceedings be reconsidered.

MR JUSTICE COLLINS: That is right. It obviously will be appropriate, as you no doubt recognise, Mr Robb, that when the decision is reached, reasons are given.

MR ROBB: My Lord, I can undertake on behalf of the planning authority that a reconsideration will happen, and it will take into account all the material factors raised by your Lordship in this judgment.

MR JUSTICE COLLINS: When you do make a decision, for the avoidance of any future doubt, you should give reasons.

MR ROBB: We will give full reasons.

MR JUSTICE COLLINS: It is for your protection.

MR ROBB: We certainly will do.

MR JUSTICE COLLINS: Of course, as the claimant no doubt entirely recognises, this could be a pyrrhic victory.

MR KEYSER: My Lord, the limits of a decision of this nature are understood. It is simply hoped, and I am not trying to be partisan, that all matters that your Lordship has raised will be taken on board, but it is not known that your Lordship does not deal with the outcome.

MR JUSTICE COLLINS: Essentially, as I have indicated, it must be a matter of planning judgment for the authority.

MR KEYSER: As regards ancillary matters --

MR JUSTICE COLLINS: You want some costs, I imagine?

MR KEYSER: I make an application for costs.

MR JUSTICE COLLINS: I do not imagine that in principle it can be resisted? There is a question about the amount, I suppose.

MR ROBB: My Lord, I hope this is helpful. My learned friend and myself have agreed that whatever the outcome today, we would ask you for a detailed assessment of those costs, and we are happy with that.

MR JUSTICE COLLINS: I am bound to say that whilst the claimant is acting in person, I think he is severely limited to whatever it is per hour. Nine pounds something?

MR ROBB: We are happy for that.

MR JUSTICE COLLINS: The only reason that I mention that, is that as it happens, I have another planning case which was argued on his own behalf by an eminent silk in the commercial field. He recognised, and indeed the order was, that the only costs he could recover were those appropriate for litigant in person per hour. I suspect it was the smallest sum he had ever been paid when appearing in court, but there we are.

MR KEYSER: Accordingly, we ask therefore ask for an order for the costs on the standard basis to be subject to detailed --

MR JUSTICE COLLINS: Agreed, yes.

MR KEYSER: I am afraid this was a matter raised with me after I had a chance to speak to my learned friend, I wonder whether your Lordship would consider making an order as a payment on account of costs, which, of course, the court has general power to do under part 44?

MR JUSTICE COLLINS: Apart from it being just before Christmas, is there any particular need for that? I do not know how long it takes to do a detailed assessment.

MR KEYSER: I was tempted to say 2 years in London.

MR JUSTICE COLLINS: Is that so?

MR KEYSER: I am told 3 to 10 months, but I do not know. The reason would simply be the likely delay that it will take.

MR JUSTICE COLLINS: Maybe, but it depends on how much he has been out of pocket.

MR KEYSER: That is true to a sense, and it may be that this is more of a lawyer driven than a claimant driven application. All of the claimant's legal representation has been, as I understand it, on conditional fee agreements. It therefore follows that, to the best of my knowledge and belief, he is not, as regards the work of instructed lawyers, out of pocket, only for his own work.

MR JUSTICE COLLINS: His own work, yes. He is not going to get a great deal for that, I fear.

MR KEYSER: No.

MR JUSTICE COLLINS: I am not sure what the principles are, but I think it is an order that is only made where it is justified, in the sense that it is not a routine order.

MR KEYSER: It is rule 44.3. It is at page 1146 in rule 44.3, paragraph 8.

MR JUSTICE COLLINS: (inaudible) paid on account. Are there some notes on it?

MR KEYSER: There are some notes, my Lord, and they are at page 1161, paragraph 44.3.15. The third paragraph on page 1162 beginning, "In general ... "

MR JUSTICE COLLINS: I mean those cases are patent cases by the look of them, judging by the judges who decided them, and the commercial cases, I suspect the amounts in question were huge?

MR KEYSER: Well, I will not say.

MR JUSTICE COLLINS: I will see what Mr Robb has to say.

MR ROBB: (inaudible) do have discretion. The first paragraph at the top, number 62, which states that even in cases involving public interest challenges, that discretion should only be exercised in the most exceptional circumstances. I am looking at the paragraph beginning "The discretion to make ... "

MR JUSTICE COLLINS: Are those the pre-emptive costs orders? That is a different.

MR ROBB: I am simply struggling at the moment to understand the basis on which --

MR JUSTICE COLLINS: It is certainly, in my experience, an unusual request.

MR ROBB: We have agreed to a detailed cost assessment on the basis that we then find out either side, if either side have won, what the other side's costs ought to be.

MR JUSTICE COLLINS: You are going to have to pay a particular sum at least, are you not? I see no reason, in principle, why in the circumstances you should not have to pay earlier rather than later, a sum which on no view could ever be --

MR ROBB: The bare minimum.

MR JUSTICE COLLINS: I have got some figures which have been produced.

MR ROBB: My Lord, if it is any help, I have sought instructions, and it is being suggested that we pay £5,000 on account. Would that be helpful?

MR JUSTICE COLLINS: That would be helpful.

MR ROBB: If we had a minimum of say 14 days, 21 days to pay that, then hopefully that will resolve --

MR JUSTICE COLLINS: Because of Christmas I shall say £5,000 to be paid within 21 days on account of costs (inaudible). Thank you both.

MR ROBB: I am grateful my Lord.