Poole, R (on the application of) v Secretary of State for Communities & Local Government & Anor

This is an application under section 288 of the Town and Country Planning Act 1990 (the Act) to quash a decision of an Inspector appointed by the first respondent dismissing the applicant's appeal under section 78 of the Act against the second respondent's refusal of the applicant's application for planning permission for the erection of four detached houses on land at Brook Cottage, Cannock Wood Street, Hazelslade, Cannock (the site).

The application for planning permission had been recommended for approval by the second respondent's officers, but the members had disagreed and had refused planning permission for the following reason:

The applicant appealed to the first respondent, who appointed an Inspector to determine the appeal. The Inspector heard the inquiry on 27 June 2006 and carried out a site visit on the same day. Her decision letter is dated 4 August 2006. In paragraph 2 of the decision letter the Inspector identified the main issue as "the effect of the proposed development on the character and appearance of the appeal site and surrounding area, which lie within the Cannock Chase area of outstanding natural beauty". She dismissed the appeal for one reason only, the effect of the proposed development on one of the trees on the northern boundary of the site, tree T7, which was one of the trees which was subject to a Tree Preservation Order. Her conclusion to that effect is contained in paragraph 20 of her decision letter:

The reasoning which led her to that conclusion is to be found in paragraphs 10 to 15 of the decision letter:

The applicant made an application for costs against the second respondent. The Inspector rejected that application in a costs decision letter of the same date. The applicant challenges the Inspector's costs decision in an application for judicial review. It was agreed by Mr Kimblin, who appeared on behalf of the applicant, and Mr Auburn, who appeared on behalf of the first respondent, that the costs decision stands or falls with the Inspector's decision on the section 78 appeal.

As part of the second respondent's consideration of the planning application it sought internal advice from its own arboricultural officer. He responded in two memoranda dated 25 and 8 March 2005 respectively. So far as material, the memoranda said:

Those concerns however were not repeated in the officer's report to members, which recommended that planning permission should be granted subject to conditions. In that report it was said that the "significant trees and hedgerows on the boundaries are to be retained and managed".

The applicant served a brief pre-inquiry statement. It is understandable that the statement was brief given the brevity of the reasons for refusal. Despite being requested to do so by the applicant, the second respondent failed to serve a statement of case under rule 6 of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 (the Rules).

In its response to the Inspectorate's questionnaire prior to the appeal, the second respondent included the landscape officer's memoranda. About a month before the inquiry, the applicant received the proof of evidence of the second respondent's witness, Ms Antrobus, a Chartered Town Planner. Under the heading "Landscaping and Screening", she said that there were a number of landscaping concerns. Having referred to one of those concerns in paragraph 8.8, she said in paragraph 8.9:

Under the heading "Consultations", she said that she agreed with the objections that had been made by local residents. Those objections had included "tree preservation orders, protection of trees and hedgerows and loss of wildlife".

In paragraph 8.15 of her proof, she said:

The applicant's planning consultant, Mr Timothy, a Chartered Town Planner, also produced a proof of evidence. In that proof he dealt with the issue of trees in paragraph 3.18:

He also said in paragraph 3.24:

Pausing there, although the applicant rightly criticises the inadequacy of the second respondent's reason for refusal and its failure to serve any rule 6 statement explaining its objections to the proposed development in any more detail, had the second respondent said nothing further in respect of the trees on the site beyond what is said in Ms Antrobus's proof, the applicant could have had no reasonable complaint as to the fairness of the Inspector reaching the conclusion set out in paragraph 12 of the decision letter:

That conclusion is, in effect, the point being made by Ms Antrobus in paragraphs 8.9 and 8.15 of her proof (see above). The applicant was thus on notice, even if belatedly, that the point was to be made and had sufficient time prior to the inquiry to obtain arboricultural evidence in order to deal specifically with the issue whether or not tree T7 could be retained.

Unfortunately, the matter is not that simple, because at some time prior to the inquiry, it is not clear precisely when or whether the document preceded, was contemporaneous with, or followed service of, the proofs of evidence, the applicant and the second respondent agreed a statement of common ground (the statement) in accordance with Rule 15, which provides so far as material:

So far as material, the statement said:

While it is true, as Mr Auburn pointed out, that paragraph 23 does not expressly deal with tree T7, which was shown on the application plans as to be retained, there is no doubt that the applicant understood, as a result of the pre-inquiry discussions leading up to the agreement of the statement, that the second respondent had agreed that the retained trees, including T7, could all be sufficiently protected by the imposition of conditions, ie the applicant understood that it was not being suggested by the second respondent that tree T7 would have to be removed because of its proximity to the northernmost of the proposed dwellings of the site.

I will deal with the second respondent's understanding of the effect of the statement in respect of tree T7 below.

Rule 16(2) provides that:

As part of her opening remarks, the inspector said:

The Inspector says in her witness statement that Ms Antrobus responded to her (the Inspector's) question:

When Ms Antrobus came to give evidence she did not read the summary of her proof of evidence. In breach of the Rules she read from a different and longer document. In respect of tree T7, she told the Inspector:

She then went on to canvass an alternative development of three dwellings which she said "would allow for further retention of the existing landscaping features including the hedge to the front left of the site and the TPO beech tree to the rear right of the proposal".

The Inspector did not receive a copy of the written statement from which Ms Antrobus read, but the Inspector recorded Ms Antrobus's evidence in her notes as saying:

Ms Antrobus gave evidence on a number of other matters that had not been raised or had not been particularised in her proof of evidence. This led Mr Kimblin, who appeared on behalf of the applicant at the inquiry, to ask the Inspector for an adjournment upon the basis that, in summary, the applicant had been taken by surprise by the new evidence that was being advanced by Ms Antrobus in breach of the Rules. The object of the Rules is explained in paragraph 17 of DETR Circular 05/00: Planning Appeals: Proceedings Etc:

Rule 16(10) provides that:

Mr Kimblin's application for an adjournment was based in part on what Ms Antrobus had said about the trees. The Inspector noted that Mr Kimblin submitted:

To paraphrase, it was being contended on behalf of the applicant that the local planning authority was resiling from the applicant's understanding of the statement, namely that, notwithstanding what was said about tree T7 in paragraph 8.9 of Ms Antrobus's proof, its retention could be dealt with by way of condition.

The Inspector refused the application for an adjournment, saying in respect of the trees that that issue was not a new one because it had been addressed in Mr Timothy's proof of evidence. The inquiry then proceeded and Ms Antrobus was cross-examined. The Inspector's notes record:

Thus, the position seems to have been reached that by the end of the second respondent's case that (a) the applicant's understanding of the effect of the statement in respect of tree T7 had been correct; and (b) whether or not Ms Antrobus's further evidence had differed from the agreed position in the statement, the respondent was now endorsing the position set out in the agreed statement.

It was against this background that Mr Timothy gave his evidence. He was asked questions in cross-examination by the local planning authority's advocate about tree T7. He replied that it was about ten metres high. It was pointed out that it could grow to 25 metres high, and he replied that its retention could be dealt with by way of condition. The Inspector herself also asked Mr Timothy about tree T7, as she had asked Ms Antrobus. In her witness statement, the Inspector said:

In respect of Mr Timothy she said:

Mr Kimblin challenged the procedural fairness of the Inspector's decision on two partially overlapping grounds: (a) that it was unfair to refuse the request for an adjournment given the second respondent's repeated failures to comply with the Rules so as to enable the applicant to know the case it had to meet; and (b) important parts of the Inspector's reasoning in paragraphs 11 to 15 of the decision letter were not canvassed in evidence, and were matters on which arboricultural expertise was required and on which the applicant would have wished to call arboricultural evidence if it had known that the retention of tree T7 was to be in contention. In summary, it was submitted that the applicant had been denied thereby a fair crack of the whip: see Fairmount Investments v Secretary of State and Southwark Borough Council [1976] 1 WLR 1255, per Lord Russell at pages 1265H to 1266A.

In respect of the adjournment, what principally matters is whether Ms Antrobus in her evidence at the inquiry was saying anything "new" about tree T7 which the appellant did not and could not have reasonably anticipated: see Castleford Homes v Secretary of State for the Environment and the Royal Borough of Windsor and Maidenhead [2001] EWHC Admin 77; [2001] PLCR 29 per Ouseley J at paragraph 52:

I say that in respect of the adjournment what principally matters is whether Ms Antrobus was saying anything "new" about tree T7 because, whether or not she produced new material in respect of other issues, the Inspector did not rely on those matters when deciding that planning permission should be refused and the appeal dismissed. As I have stated above, this appeal was refused on one ground only: the impact of the development on tree T7. However, the lack of specificity in the second respondent's case prior to the reception of Ms Antrobus's proof is nevertheless relevant. Up to that time there was nothing whatsoever to suggest that the retention of tree T7 was reasonably likely to be a significant, much less the critical, issue in the appeal.

Although Mr Auburn referred to the two memoranda from the Council's arboricultural consultant, it is not uncommon for such internal consultation responses not to be relied upon when reasons for refusal are being advanced, and there was nothing in the exiguous reason for refusal to suggest that an inability to retain tree T7 was a proper basis for refusing planning permission. In the absence of any pre-inquiry statement from the second respondent, that continued to be the position until the applicant received Ms Antrobus's proof. Until then, there was nothing to suggest that the retention of tree T7 was reasonably likely to be even a significant, much less the critical, issue.

Once Ms Antrobus's proof had been received, although there was nothing to suggest that tree T7 might achieve the importance ascribed to it by the Inspector, the appellant was on notice that it was an issue which had to be addressed. It is important when considering the question of fairness to appreciate that the applicant did not simply ignore the issue once it had been raised. It addressed the issue in an entirely reasonable way, in accordance with the Rules and with the Department's own advice in Circular 05/00 on identifying issues in advance, and if possible agreeing matters in advance of an appeal. Thus, the applicant sought to deal with the issue of trees in the statement agreed with the second respondent, and given its own, and the second respondent's understanding of the statement, as eventually revealed in the cross-examination of Ms Antrobus, the applicant not only believed, but reasonably believed, that it was agreed that tree T7 could be retained by the imposition of conditions.

I accept Mr Auburn's submissions, firstly, that the Inspector was entitled to use her own planning expertise and form her own judgments using that expertise: see Westminster Renslade Limited v Secretary of State for the Environment [1983] JPL 454 at page 455; and secondly that the Inspector was not bound by the statement and was entitled to form her own view subject to giving the applicant a fair opportunity to comment: see Wigan Metropolitan Borough Council v the Secretary of State for the environment [2002] JPL 417 at page 40; [2001] EWCA Admin 587.

However, it is most important when deciding whether the parties at an inquiry have had a fair opportunity to comment on an issue raised by an Inspector of his or her own motion, and whether they could reasonably have anticipated that an issue had to be addressed because it might be raised by an Inspector, to bear in mind the highly focused nature of the modern public inquiry where the whole emphasis of the Rules and procedural guidance contained in Circulars is to encourage the parties to focus their evidence and submissions on those matters that are in dispute.

Paragraph 40 of Circular 05/00 deals with statements of common ground. It refers the reader to Annex 3(ii) to the Circular as a guide to the function of statements of common ground. That Circular contains the following advice (so far as material):

If a party to an inquiry reasonably believes that a matter which was in dispute has been dealt with by way of agreement in a statement of common ground, it may well be unfair to allow the apparently agreed issue to be reopened without giving the party a proper opportunity to address the issue, if necessary by calling appropriate expert evidence.

The older authorities dealing with fairness in the context of public inquiries should now be read with the modern inquiry procedure rules in mind, where the parties are now not expected to cover every conceivable eventuality in their proofs of evidence in circumstances where, as used to be the case, the procedural rules did not require the issues in dispute to be identified, or sufficiently identified, well in advance of the inquiry.

Mr Auburn referred to the Inspector's obligation, whatever may or may not have been agreed between an appellant and a local planning authority, to take account of representations made by third parties. I accept that an Inspector is bound to take into consideration arguments raised by third parties, but the imperative in the Rules requiring the principal parties to focus their attention on the issues that are in dispute would be wholly frustrated if appellants and local planning authorities were unable to place any degree of reliance on matters that had been apparently resolved in a statement of agreed facts. It would be entirely unsatisfactory if, having agreed such matters, the principal parties to an inquiry would still have to prepare their evidence on the basis that the Inspector might wish to pursue a particular line of reasoning that departed from the agreed statement. While of course it is open to an Inspector to do so, whether of his or her own motion or in response to third party representations, if there is not to be a return to the "bad old days" where proofs were prepared to cover every conceivable eventuality, it is essential that inspectors recognise that if they do intend to depart from what is the agreed position between the principal parties, it may be necessary to accede to applications for adjournments to enable the parties to address the (now disputed) issue or issues properly by way of expert evidence. It may not be good enough to ask a witness who happens to be at the inquiry for his or her view. By definition, that witness may well not have the professional expertise which is relevant to the matter which has been agreed between the parties as set out in the statement of common ground.

In deciding whether there has been unfairness, all such factors should be taken into account. Among them, the importance of the issue in respect of which the Inspector is differing from the position agreed in the statement of common ground. In this case, as it turned out, the question whether tree T7 could be retained was not simply an important issue; it was the determining issue. Given the statement, it is clear that the applicant not merely did not anticipate, but could not reasonably have anticipated that the retention of tree T7 would be in issue at all, let alone that it would be the determining issue.

On the evidence before her, the Inspector, as I have indicated, was entitled to use her planning judgment and Mr Kimblin properly conceded that on that (inadequate) evidence she was entitled to reach the conclusions that she did. However, I accept his submission that if the statement was to be departed from on technical arboricultural grounds, then the applicant should have been given a reasonable opportunity to call the kind of arboricultural evidence that it would have called if it had known that this matter continued to be in issue prior to the inquiry. I say "continued to be in issue", because the only document in which the matter was placed in issue following the refusal notice was the proof of evidence of Ms Antrobus. The matter was in contention for a very brief period because that proof of evidence was overtaken either contemporaneously or shortly before or shortly afterwards by the statement of common ground.

It is important to recognise that this is not a case where the Inspector was simply being asked to make an aesthetic judgment: would the removal of a particular tree cause unacceptable harm to the character and appearance of the appeal site and the surrounding area? There was a "technical" issue which had to be addressed, namely whether the retention of tree T7 could be secured by the imposition of an appropriate condition or conditions. Although the Inspector asked Mr Timothy in very general terms how tree T7 could be retained, he was not an arboricultural expert and could respond only in general terms. Perhaps unsurprisingly given the statement of common ground and what Ms Antrobus had already conceded could be achieved by way of conditions, he merely reiterated her view that conditions would be sufficient to protect the tree. The generality with which he dealt with the matter in his answers is entirely unsurprising given his particular professional expertise and the extent to which the matter had appeared to be in issue at the inquiry.

If one looks at paragraphs 11 to 15 of the decision letter, Mr Kimblin submitted that there were a number of important matters which were not canvassed in evidence, namely the Inspector's view that the proposed house would be so close to the tree as to impede the growth of roots, as well as impeding the growth of lower branches, and the fact that the proposed dwelling would lie to the south of the tree and deprive it of light. Mr Auburn points ought that it is perfectly obvious from the plan that the dwelling would be to the south of the tree. I accept that, but the question is what would be the effect of having a house to the south of the tree and thereby depriving it from light? Would it have any harmful effect on the tree or not?

The Inspector's view was not merely that the upper branches would seek to go over the proposed roof, but that "with its roots curtailed there would be a clear potential to my mind for the tree to develop an unbalanced shape and die back or become unstable". The Inspector's comments about trees growing over houses creating problems of leaf fall are fairly described as matters of commonsense. It is particularly unfortunate that she mis-recorded the evidence when she said: "I heard that the canopies of beech trees can grow up to 40m in diameter". In her witness statement she acknowledges that in fact the evidence before her was that the canopies of beech trees can grow up to 25 metres in diameter. In her witness statement she states that this discrepancy would have made no difference to her conclusion. I accept that, given her conclusion as to the effect of impeding the growth of the tree's roots which could lead it to die back and become unstable. That was the principal basis, it would appear, for the Inspector's conclusion that the development would "pose a long-term threat to the health of the tree". She also set out her view on pruning:

It is perhaps unsurprising that there was no discussion of those issues at the inquiry given the manner in which the second respondent was putting its case in respect of tree T7. It is not suggested that any interested party presented any more detailed case in respect of tree T7. These are all matters, in my judgment, in respect of which the applicant, if it had realised in advance of the inquiry that the ability to retain tree T7 by means of an appropriate condition was in dispute, could and would have sought appropriate arboricultural advice. It is most important to appreciate that the whole thrust of today's inquiry procedure rules is to ensure that an issue such as the issue relied upon by the Inspector is clearly flagged up well in advance of the inquiry. This did not occur in the present case for the reasons set out above.

I am satisfied therefore that there was procedural unfairness in the manner in which the Inspector determined the appeal upon the sole basis of the effect of the development on tree T7. This application is allowed, and it follows that the related application for judicial review of the costs decision must also be allowed.

Yes?

MR KIMBLIN: My Lord, there is an application for costs.

MR JUSTICE SULLIVAN: Yes, of course.

MR KIMBLIN: My Lord, a costs schedule has been provided to my learned friend and I trust a copy of that has made its way to the court. If not I will --

MR JUSTICE SULLIVAN: No. Quite often they do not.

MR KIMBLIN: If I may hand up a copy. I respectfully invite the court to summarily assess costs. If I could ask my Lord to turn to the second page where there is a summary of costs.

MR JUSTICE SULLIVAN: Yes.

MR KIMBLIN: My Lord, in respect of solicitor's profit costs and counsel's fees, there is an application there which amounts to £10,645. I arrive at that figure by adding the £3,995, the £6,650, to which is to be added VAT, the disbursements which appear above on the second page which is court fees et cetera, and there is a success fee applied in respect of the profit costs and counsel's fees. The last matter to draw the court's attention to is in respect of After the Event Insurance for which a fee has been paid. It is in that way that the total comes to £30,172.25.

MR JUSTICE SULLIVAN: Yes, this is effectively no win, no fee-type arrangement. I am slow because I have only just seen this.

MR KIMBLIN: My Lord, I should have said that this is subject to a CFA --

MR JUSTICE SULLIVAN: Yes.

MR KIMBLIN: My Lord, I have been told by my learned friend that he has not agreed the costs, so if I may deal very briefly with my submissions in respect of them?

MR JUSTICE SULLIVAN: Yes, of course.

MR KIMBLIN: The Secretary of State has served a statement of costs in the sum of £8,580. Of course, the Secretary of State has not had to bear any of the disbursements or travel which the claimant has had to bear. My submission would be that the Secretary of State having a little less work to do has spent really more or less what we have. We have spent £10,645; the Secretary of State £8,580. So working then from that basic starting point, in my submission that is entirely appropriate for a one day case of this nature, which is complex on the detail.

MR JUSTICE SULLIVAN: Yes, I mean if the Secretary of State's costs are £8,600-odd, you would expect, absent any conditional fee arrangement, it would not be at all unusual, since the claimant as it were bears most of the legal burden of the day and has to get the bundle together and all that sort of thing -- certainly it would not be in the least surprising to see something like £12,000-odd, but then you have the conditional fee agreement in respect of that.

MR KIMBLIN: My Lord, yes.

MR JUSTICE SULLIVAN: Yes.

MR AUBURN: My Lord, we do not dispute the principle obviously, but in relation to the quantum the first point we say is that, although this has come in at just under a day's case, given the very large amount, the £30,000 in issue, we think it is appropriate that it is dealt with by way of detailed assessment. My Lord, obviously the borderline between summary and detailed assessment is whether it is a day case or not. This has come in just under, but a sum of £30,000 is a very, very large amount to be dealing with on assessment for a one day matter.

MR JUSTICE SULLIVAN: Yes.

MR AUBURN: My Lord, that is one reason why we think it is appropriate in this case. In fact, if I go on a little bit longer, we will have gone over one day of court time. But we say it is appropriate --

MR JUSTICE SULLIVAN: I do not think that will get you too far. It might actually encourage me to rack up the costs as we go along.

MR AUBURN: My Lord, as it is already on the borderline of whether it is summary or detailed, the amount does swing it over considerably because it is a very large amount.

MR JUSTICE SULLIVAN: Some judges might have taken longer than a day, you never know. If you had had to go over the planning authorities they probably would have done.

MR AUBURN: I am not aware that you are one of the slower judges determining planning appeals, if I can say that. My Lord, the other matter is that the percentage increase -- I accept that the appellant is entitled to an uplift, but they have set it at the maximum possible. I have relatively limited experience with CFAs of this nature, but my understanding is that within the CFA there is to be some justification for the amount of uplift. Now, we have not seen the CFA and presumably that is relevant to looking at whether or not the maximum uplift is in fact justified.

MR JUSTICE SULLIVAN: Yes, I confess I do not have a great deal of experience of them in this court. They are not that common in this court.

MR AUBURN: My Lord, can I say that, looking at the White Book, I have found a passage which says that a CFA provides for a success fee and it must briefly specify the reasons for setting the percentage increase at the level stated in the agreement. Now, this CFA has apparently specified the maximum. So it is relevant because I am entitled to say: well, you should not necessarily get the maximum; you might get an uplift, but not the maximum.

MR JUSTICE SULLIVAN: I simply do not now in detail how it works, but I imagine the riskier your case is the higher the uplift you are entitled to demand. So if you have something that is barely a runner you can say: well I will do it, but --

MR AUBURN: Yes.

MR JUSTICE SULLIVAN: On the other hand, if you think it is a slam dunk certainty as someone unfortunately said in another context, then you would have a lesser uplift. I do not know.

MR AUBURN: My Lord, while I would not contend that this case was a certainty obviously, I also would not say that it was at the other end of the spectrum to justify the very maximum of uplift. So there are certainly issues there, and I say they are best ventilated once everyone has seen the CFA and what is stated and reasons given, and there can be brief submissions on points made as to the appropriate success fee.

MR JUSTICE SULLIVAN: I understand the point. Thank you very much.

MR AUBURN: That is my point on detailed and summary assessment.

MR JUSTICE SULLIVAN: Do you want to say anything further on that, Mr Kimblin?

MR KIMBLIN: My Lord, if my Lord is at all with my learned friend on the question of detailed assessment, what I would ask for, since my Lord has had the opportunity to hear the whole case and given judgment in it, my Lord gives some indication as to whether or not -- indeed, perhaps that has already been done -- that base costs are acceptable. There then leaves perhaps for detailed assessment the question of whether or not 100 per cent is appropriate. That is not something from my point of view that I am, if I can put it this way, troubled about, because it is an absolutely standard approach that where the parties have between them made it quite clear by having the matter heard, each party has drawn the line in the sand and said: I am going to fight this, each party has decided it has a reasonable prospect of succeeding, and the invariable outcome in that situation is a 100 per cent success fee. That is not something which I can give the court chapter and verse to back that up at the moment and I can see that my Lord might not be provided with sufficient information in that regard. May I assist any further?

MR JUSTICE SULLIVAN: No, I think that is very helpful, thank you.

For the reasons given by Mr Auburn I am going to say that it is more appropriate for this to be dealt with by detailed assessment than summary assessment, but if it is of any assistance, in a case where the Secretary of State's own costs are a little short of £8,600, it does seem to me that, in broad terms -- I emphasise "in broad term" because we have not had a chance to go through the detail -- the base costs in the claimant's case are not unreasonable, if I can put it that way. They seem to be in the right sort of ballpark. I do not exclude the possibility of detailed argument, but they are not the sort of things that would particularly surprise me given the fact that, as one day planning cases go, this was actually quite a heavy case that involved quite a bit of evidence rather than just looking at the decision letter, and also of course there was the related judicial review which would have added a little bit in any event to document preparation but not much. So if that helps you, Mr Kimblin, I think you are in the right sort of ballpark with that, but the issue on which I would seek further representations on were I doing it myself would be the appropriateness of the 100 per cent uplift. I do not decide that simply because, to be blunt about it, I do not have experience of it. It is unusual for claimants in these cases to do that because usually they just pay up anyway. So those are the reasons. Does that help?

MR KIMBLIN: My Lord, I am very grateful. I am bound to say this is the first time I have done it on that arrangement and it may well be the last.

MR JUSTICE SULLIVAN: It might be encouraged, of course.

MR AUBURN: Can I make clear, so there is no confusion by any costs judge, that you have not determined individual items.

MR JUSTICE SULLIVAN: I have not.

MR AUBURN: Thank you very much.

MR JUSTICE SULLIVAN: I have made it clear that it seemed to me to be the right ballpark, but that did not exclude argument about finessing around the edges on that.

MR KIMBLIN: I am grateful.

MR JUSTICE SULLIVAN: Any further application?

MR AUBURN: No.

MR JUSTICE SULLIVAN: No, thank you very much indeed.