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

THE DEPUTY: This is an appeal by Dr James Fowler against the decision of an Inspector, Mr Bagot, given on 21st August 2008. There were two appeals: appeal A was made under section 20 of the Planning (Listed Buildings and Conservation Areas) Act 1990 against a refusal to grant listing building consent and appeal B was made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant planning permission.

Appeal A, the listed buildings appeal, proposed the demolition and reconstruction of the existing house, the demolition and reconstruction of the garage and the removal of plinth walls to a ruined greenhouse and the erection of a new two storey house within the curtilage of the listed building. As the Inspector describes it, the development in effect involved the rebuilding of the existing listed building, although with some changes. The development that was proposed in the application for planning permission was the reconstruction of and the extension to the existing house and the erection of a new garage and car port and the erection of a new two story house. This would involve the removal of two trees subject to a tree preservation order.

The first thing that I need to say is about the way in which these appeals come before this court and the powers that I have in dealing with them. Dr Fowler has appealed, so far as the listed building matter is concerned, under section 63 and, although this was not perhaps expressed in strictly the right way, so far as the Town and Country Planning Act matter, under section 288. Absolutely no point is taken on the omission of a specific reference to section 288, quite rightly. It was quite obvious that Dr Fowler intended to appeal against the planning refusal, just as he did against the listed building consent. It is important to note what the court's powers are. They are expressed almost identically under both section 63(4) and under section 288(5).

Before I turn to what my powers are, perhaps I ought to note what the applicant has to satisfy me about. Again, these requirements are expressed in almost exactly the same words in section 63(1) and 288(1) of the different acts. It is for Dr Fowler to show me that the action of the Secretary of State, or in this case his Inspector, in dismissing the appeals is invalid in that it is not within the powers of the Act or that any of the relevant requirements have not been complied with.

First of all, to say that it is not within the powers of the Act is another way of saying that the decision has made an error of law. An error of law can be made in number of ways. This has been analysed in a number of cases. The principles are very well known. I will not refer to the cases but merely to their result. The result is that an Inspector will go wrong in law if he takes into account something that he should not have taken into account because it is irrelevant. He will go wrong in law if he fails to take into account something that he should take into account because it is a material consideration. A material consideration, briefly stated, is one that might make a difference to his judgment.

The Inspector will also go wrong if he reaches a decision on the facts that is so perverse and irrational that no reasonable Inspector properly directing himself as to the law could have reached it. In those circumstances, the court assumes that, because the decision is either perverse or irrational, somewhere the Inspector must have gone wrong in law. So that is another way in which an error of law can be found, although I have to say that in the present case nothing Dr Fowler says comes close to that.

The Act then goes on to say that the validity can be challenged on the basis that the relevant requirements have not been complied with in relation to it. The relevant requirement of law in this context is the requirement to give reasons, which means adequate and intelligible reasons, in the sense that they are spelt out though not in unnecessary detail and acknowledging that the Inspector is talking to an informed audience. Acknowledging those two things, the reasons must spell out why the decision was reached on the main issues.

I do stress firstly that the Inspector is entitled to assume that those who read the decision are an informed audience; in other words they know the background, they know what the appeal is about, they are not outsiders who need everything explained to them. He is entitled to assume the level of background knowledge that the parties have. Secondly, it is important to note that he does not have to spell out every single point. He does not have to list every single material consideration that he takes into account. There may be matters that it is so obvious that he must have had in his mind that it is not necessary for him to state them. It is only when his reasons leave a genuine doubt, doing the very best to read the decision letter fairly, as to what the Inspector thought on an important issue that it is likely that the requirements will be held not to have been complied with. So those are the bases upon which the matter has to be approached.

I now turn to what the court does if it does find either that there has been an error of law or that the relevant requirements have not been complied with and, I should say, on the second point there has been some substantial prejudice to the claimant as a result. The answer to that is set out in both Acts. I may quash the order or decision. That is all I may do. My power is limited to quashing or not quashing the decision that is appealable against. I cannot award damages. That is not part of the statutory scheme. I cannot investigate other peripheral matters and I do not do so. I say that because it is evident that, perhaps due to a misunderstanding or advice that was perhaps a little misleading, Dr Fowler has sought to add a claim for damages to these proceedings. For that reason, I have made it plain, and I make it plain again in this judgment, that no such claim could be added. My powers are as they are set out in the Act and they go no further.

With that, I turn to the issue that I do and must deal with, which is whether or not I am satisfied that there has been an error of law shown in any of the respects that Dr Fowler claims with respect to this appeal decision. What I propose to do is to look at the points that Dr Fowler takes in the order in which the Inspector raises matters in his decision letter.

I will deal with something first of all that is outside the decision letter and that is what Collins J said in earlier litigation concerning the tree preservation orders. There was a case heard on 24th November 2004 before Collins J in which Dr James Fowler brought another appeal under section 288 to challenge the decision of the London Borough of Ealing to make a tree preservation order. In paragraph 2 of that decision, Collins J set out what the nature of the building was and what Dr Fowler wanted to do about it and records that he was anxious to restore the listed building. He recalls, recording a submission made to him, how much it was said it might cost to restore that building and he remarked:

At the end of the decision, having found against Dr Fowler and the question of costs, Collins J remarked to Dr Fowler:

That is not how I read the decision. The last sentence of paragraph 2 seems to me simply to be a conclusion to a passage in which Collins J is explaining why it is necessary to try and restore the building to undertake part of the development of the site. He is not saying anything about the principle as to whether or not it is achievable. He simply says it is a possible way of funding the restoration without volunteering any view, still less a guarantee, as to whether or not it is possible. That is extremely sensible, given that that would not have been a matter that Collins J could rule upon or pronounce upon at all. It would have been no part of his function under section 288, as I am quite certain he would have been the very first to point out. I think that his comment at the end about putting in a planning application, again, was intended as a friendly remark, perhaps a note of hope at the end of the hearing. It is qualified by the words "If you have a good application, good luck to you". It is not a promise that Dr Fowler has a good application at all. So I have to say, despite the submissions that have been made to me about it, I am perfectly clear that absolutely nothing that was said by Collins J did or could amount to an indication that as a matter of principle some form of development on the site in the garden would be acceptable.

Having dealt with that preliminary point, I turn to the main points that are made by Dr Fowler. His first point is that, when the Inspector describes this building, he does so in terms that have a number of omissions. That could be categorised as indicating a failure to take account of a material consideration or it could be categorised as a reasons challenge on the basis that his reasons are not sufficiently adequate or intelligible because of these alleged omissions.

This first point, as it is put today by Mr Fowler, is wedded to his third point really, which is about the significance of the evidence to do with the structural condition of the building, demonstrated by the fact that it was shored against collapse. Dr Fowler makes the point that the Inspector failed to acknowledge that the house was structurally unstable. The Inspector failed to refer to the advice that Dr Fowler had received. He had read the structural reports but does not mention, for example, the raking shores or explain why he does not do so. In other words, he does not sufficiently appreciate the poor condition of the building.

I do think it is important to say that it is evident that Dr Fowler and his family have a genuine interest and a long connection with this house. This is not, for example, a case of a speculative builder buying it, seeking to knock it down and seeking to extract as much development value as possible. It is equally evident to me that both Dr and Mrs Fowler strongly feel that there is absolutely no alternative to rebuilding. They feel that this has been supported by all the reports that they have read and they feel that the Inspector has insufficiently taken account of that. I shall turn to what the Inspector said about it but first say that it is for the Inspector to make his mind up about it. It is his judgment on these matters that counts and, as I have said, the court will not interfere with his judgment unless it is satisfied that he has gone wrong in law, not that he might not reasonably have reached a different view on the facts. That would not be enough and is no part of my function. I cannot decide the facts. Only if the Inspector misses something he should not have missed, which is I think essentially what Dr Fowler is saying, can the court interfere.

Did the Inspector miss something he should not have done? The Inspector starts in paragraph 2 by setting out what the main issues are and I will quote what he said:

The Inspector, of course, inspected the premises on 5th August 2008 and he met Dr and Mrs Fowler on site. There is an issue that arises out of that. When the Inspector arrived, and I will use his words, he:

What Dr Fowler says about that, I think fairly, is that he has no doubt the Inspector intended that as a jocular remark. However, for the owner of a very vulnerable house, facing very considerable expense and difficulty in keeping it alive, it was not very funny. Indeed it was rather upsetting. I think what Mrs Fowler adds is to the effect that it might suggest that the Inspector had not really grappled with or appreciated the real seriousness of the situation so as far as the house is concerned and that is why it has something of a bearing on points 1 and 3 that I am dealing with at the moment.

Dr Fowler says about the site visit, and I accept, that the Inspector then went on to say "Is there anything you would like me to particularly look at?" Dr Fowler took him to look at the bulging walls on the north side with their raking shores. I have seen photographs which I am told by the appellants, and accept for the purposes of this matter, were taken before the site visit, a year before the site visit. They show the shores composed of timber and what look like scaffolding poles. They are substantial constructions, and it is quite evident that nobody who looked at the building could conceivably be unaware of the existence of these shores or their significance, especially somebody who has the expertise the Inspector had in this sort of matter.

It seems to me on these first points that the Inspector's account in paragraph 4 is succinct but it is fair. It is not necessary for him to list absolutely everything. It is necessary for him to show that he has formed a fair view of what is material. In my judgment, he does so in the second sentence of paragraph 4, where he lists what the defects in the building include. I note that he specifically refers to bulging walls. Given that reference, it seems to me that, putting that together with the shores that he must have seen on 5th August and the structural surveys that he received and evidently read before promulgating his decision, he cannot have been unaware of the full state of the building. Nobody reading his decision letter can reasonably conclude that he had failed to take into account any material consideration that has to do with that condition. So I have to reject that ground raised by Dr Fowler.

The Inspector then went on to consider the exercise that he should undertake in deciding what should happen so far as the listed building and the planning permission was concerned. In paragraph 7 he said:

That is also challenged by Dr and Mrs Fowler. It is said that this was not the right policy to apply because they intended to retain the building or at least to rebuild it. It is not necessary, I think, for me to do more than to say that I simply do not accept that. I have had my attention drawn to paragraph 3.19, the relevant part of which is accurately set out in effect in paragraph 7 that I have just quoted. There is, of course, considerably more of it than that and that is set out by Ms Patry-Hoskins at page 4 of her skeleton, so I am able to see that it is an accurate rendition of the policy. Having looked at the PPG, which is something with which I am quite familiar, it seems to me that the Inspector has considered the right policy and has set it down accurately and then applied it accurately. In paragraph 8, he says:

I pause in the quotation at that point to pick up another objection made by Dr and Mrs Fowler which is that the Inspector was wrong to say that no conservation report has been forthcoming. They had obtained such a report earlier but they had found it inadequate, for the reasons that they have given me, and which I understand. They felt that it had not addressed the matters that it needed to address and certainly had not addressed them properly and as a result they did not put it before the Inspector. They say that it was evident from the documentation that had been forwarded to the Inspector before the inquiry that a report had been prepared, although, of course, the Inspector was not sent it.

I can deal with that point quite briefly. Perhaps the use of the words "none has so far been forthcoming" was a little ambiguous. However, it seems to me plain that what the Inspector was concerned with was whether or not he had seen it. That is the point of the paragraph. It is all about what evidence there was in front of the Inspector and the fact that it had been forthcoming so far as Dr and Mrs Fowler were concerned is not, I fear, in that context a matter of significance. So, as to that point, again, I find that there is nothing in it.

The paragraph continues:

He then goes on in paragraph 9 to describe the proposed form of reconstruction. He has some question marks over parts of it. In paragraph 10, he says:

I comment at this stage that that seems to me to be a judgment that is properly undertaken in accordance with the policy and it is a judgment that is open to him.

Before I move on to the next point, I go back to a further point that was raised in relation to paragraph 5, which I have quoted. Dr Fowler points out that the Inspector draws attention to features that he describes as of special architectural interest which were not original and were not only added later but the addition of which compromised the original structure in several ways. In particular, the Inspector refers to the "elegant hall". Dr Fowler has made it plain to me how these alterations have made matters worse so far as the structure is concerned. He suggests to me that this again is an error in that such matters should not properly be taken into account in considering the degree to which the building is of special architectural interest.

As to that, I have to say that I cannot agree with Dr Fowler. A building derives its special architectural interest in a number of different ways. One way may well be the way it is added to and changed over the years. Some of the most beautiful buildings in this country are beautiful not because of what they originally were but because of what people did to them later. Even when the additions are not particularly beautiful, they may still be interesting architecturally and may add to the character of the building. That is so, even if, which is by no means rare, the additions are, to put it at it lowest, a little structurally ill advised and cause their own problems in years to come.

There is nothing wrong in the Inspector's approach as set out in paragraph 5. He is perfectly entitled to find not only the original features but also the additions contribute to the special architectural interest and he is not disentitled from doing so because, with the benefit of hindsight, they may have been pretty structurally ill advised. So there is nothing in that point.

In paragraph 11, the Inspector deals with the removal of two yew trees, the subject of the tree preservation order. These two trees are some of the trees that Collins J had to consider indirectly because they were the subject of the tree preservation order that he was considering. That order related to nine trees.

All that is it necessary to say about this is that paragraph 11 to my mind makes it plain that this is a point that Dr and Mrs Fowler won so far as the Inspector is concerned. What the Inspector said, after recording that it is quite likely that the foundations of the building have been damaged by the root spread of these two trees, was that:

The Inspector describes in paragraph 12 the siting of the buildings and he sets out briefly what would be involved. I do not think I need set that out. In paragraph 13 he says:

In paragraph 14 the Inspector goes on in the following terms:

He goes on to say:

He confirms:

The end position therefore that I reach is that, considering all the points that Dr and Mrs Fowler have raised and raised, if I may say so, in a very helpful, constructive and articulate way, they fail to satisfy me that the Inspector made any mistake of law in his decision on either appeal A or appeal B. That is what I have to determine and therefore I must determine the matter against them. So the appeal is dismissed.

MS PATRY-HOSKINS: My Lord, I do have an application for costs. A statement of costs, I hope, has found its way to you and if not I shall hand it up.

THE DEPUTY: No, I am not sure -- well, it may have done, but I do not immediately recollect it -- I will try and find it amongst my papers.

MS PATRY-HOSKINS: My Lord, I will pass another copy up.

THE DEPUTY: Has Dr Fowler seen it?

MS PATRY-HOSKINS: Dr Fowler was only handed a copy this morning. We did try to serve it on him yesterday but we do not have any way of transferring material to him electronically.

THE DEPUTY: I see.

MS PATRY-HOSKINS: And therefore we could not make contact with him yesterday and therefore the only possibility to get to him was to give it to him at court this morning. I will say nothing more. I will wait if there are any submissions from Dr Fowler. Essentially the appeal has been dismissed.

THE DEPUTY: Well, the appeal is dismissed and in principle you are really entitled to your costs. There is a question as to the amount.

MS PATRY-HOSKINS: Well, I do not know if there is any particular aspect of the amount that you would like me to justify. Essentially, attendances on client really make up the greatest number of hours on behalf of my solicitors. That is attendances, obviously, on -- well, that is discussions with the Inspector and taking comments from the Inspector, two sets of comments from the Inspector obtained in this case.

THE DEPUTY: Yes.

MS PATRY-HOSKINS: They were after --

THE DEPUTY: That would not have been necessary if the Inspector had not made the somewhat unwise comments that he did make. I think we all agree, indeed I am sure the Inspector would agree, that although it does not constitute an error of law it was unfortunate and to that extent it might be thought that it is a bit tough to make Mr Fowler pay for that error.

MS PATRY-HOSKINS: I accept what your Lordship says. Obviously the Inspector had to be asked about all aspects of the claim but that aspect of it, I accept what your Lordship says. Everything else is essentially just speaking to counsel, correspondence. It has been quite lengthy correspondence with Dr Fowler, you might be aware.

THE DEPUTY: I see there has been quite a lot of correspondence.

MS PATRY-HOSKINS: There has been. Various applications were made which were not ultimately pursued by Dr Fowler. Then work done on documents is preparing witness statements and various responses. Then attendance at the hearing.

THE DEPUTY: Yes.

MS PATRY-HOSKINS: I do not think, given that this has turned into almost a one day hearing, it is not an unreasonable sum in my submission.

THE DEPUTY: Well, possibly not. Shall I hear what Dr Fowler has to say about it. Are you going to say anything?

MR WALTON: My Lord, yes. I also am instructed to apply for costs. Hopefully our statement would have found its way to you.

THE DEPUTY: No. Do not rely on any such hope. It has not.

MR WALTON: It has happily found its way to Dr Fowler before today. Could I hand it up?

My Lord, whilst that is finding its way to you, can I say, you may have seen from our first acknowledgment of service that we wanted to keep out of this and it was only when the claim form was amended in the middle of April that we realised we had to be here because of the damages claim that was accompanying the amended grounds.

THE DEPUTY: You knew as well as I did that the damages claim was hopeless. I mean, there was just no way in which he could possibly have damages.

MR WALTON: Well, that is certainly the way in which we put it today and you have accepted that but I am sure my Lord will appreciate that from the Council's point of view, and with an insurance point of view --

THE DEPUTY: It was prudent for you to be here.

MR WALTON: Precisely so and indeed the Council's insurers solicitors are here, given the enormity of the claim that has been put to us. That is why we are here. We have taken up as little time as we possibly can and you will see we have minimised the costs. But the letters from the court office, which, my Lord, you had some sympathy for Dr Fowler with, there may have been some misunderstanding and some ill considered words there and the claim for damages may have been made on the back of those, but equally those same letters told us that the position we should adopt was instructing counsel and speaking to our insurers and, of course, that is what we have done.

Now, as to Dr Fowler's position, he could be under no misunderstanding as to the risk he faced by starting a £2 million costs claim against the Council. He cannot for one moment have expected us not to be here. We have turned up. We have minimised our costs. In my submission we are plainly entitled to them given that he saw to bring that claim against us and indeed our two grounds were specific to actions and allegations as to our conduct over the previous year.

THE DEPUTY: All right. Thank you, Mr Walton. Well, Mr Fowler, I am not going to order you to pay the London Borough of Ealing's costs, although it is understandable that they were very interested in a claim that was made against them for approaching £2 million. I cannot possibly blame them for that. However, it does not seem to me, given what must have been a clear understanding as to the powers of the court, that this was a matter that they had to turn up on. It is true that they have been very helpful and only dealt with two points but frankly neither of those points had anything to do with this appeal. It is not usual that a third party gets its costs in these circumstances and I do not think that the costs here are sufficiently exceptional to set aside the general rule which is that third parties do not get their costs.

The Secretary of State has turned up and has presented the argument. I think you should pay the Secretary of State's costs but I do think that some reduction should be made to take account of the fact that you were partly brought here, for reasons I do understand and which are genuine, by an unfortunate remark by the Inspector. It is always a rather rough and ready matter, as I am sure you will understand from the previous litigation that you have been involved in. So I am minded to say that you will pay the Secretary of State's costs in the sum of £5,500. What do you say about that?

THE CLAIMANT: It is very considerate, my Lord.

THE DEPUTY: It is an expensive occupation, I am afraid, litigation, Dr Fowler, and not one to be indulged in unless there is really no alternative.

So then you will pay the Secretary of State's costs, which I summarily assess at £5,500.

Thank you all, including you, Dr and Mrs Fowler, for your helpful submissions to me. Thank you.