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

SIR THAYNE FORBES: In these proceedings, the claimant applies under section 288 of the Town and Country Planning Act 1990 (hereafter "the 1990 Act") to quash the decision made by the duly appointed Inspector of the Secretary of State for Communities and Local Government ("the Secretary of State"), given by letter dated 17th April 2008, whereby the Inspector dismissed the appeal against the refusal by the second defendants (hereafter referred to as LB Hackney) refusing to grant planning permission for a loft conversion at 50 Lynmouth Road N16.

Section 288 of the 1990 Act empowers the court to quash the decision of the Secretary of State, or of his duly appointed Inspector, in relation to a planning matter such as this if persuaded by the claimant that the decision in question is invalid. There are two statutory bases for the grant of such relief: (1) that the decision is not within the powers bestowed by the 1990 Act and (2) that the claimant has been substantially prejudiced by non-compliance with the relevant requirements.

In this case, the claimant, Mrs Schlesinger, is the current occupant of 50 Lynmouth Road. She is not the original applicant under the planning permission that was the subject matter of LB Hackney's refusal. She appears before me today assisted by her brother, Mr Liebowitz, who has conducted all the submissions on her behalf. As I indicated before commencing this judgment, I am grateful to Mr Liebowitz for the careful, moderate and skilful way in which he was presented all the relevant arguments on behalf of the claimant. Mr Liebowitz made essentially five main points, by reference to each and all of which he submitted the Inspector's decision should be found to be irrational or perverse and thus not in accordance with the powers bestowed by the 1990 Act.

The first point made by Mr Liebowitz was that there was material that should have been made available to the Inspector as a material consideration but which was not made available and resulted in her decision being irrational because of her failure to take into it account. In order to make good that submission, Mr Liebowitz referred me to policy ST19 of the Unitary Development Plan 1995 relating to LB Hackney. ST19 provides as follows:

The material which Mr Liebowitz identified as being absent and thus not available to the Inspector is said to be a report relating to the Orthodox Jewish community which was in existence in 1993 and to which reference is made in paragraph 1 of a document headed "Planning for the Turkish/Kurdish Community in Hackney", dated November 1993. Mr Liebowitz stated, and I have no reason to doubt, that he has himself seen the report relating to the Orthodox Jewish community, to which reference is made, and he was anxious that the Inspector should have had it available to her. He was so anxious that he sought an adjournment of the inquiry to enable the Inspector to be provided with a copy of that report. As it happens, it appears that the Inspector did not specifically deal with that application. The result was that the opportunity to take steps to try and secure the report was lost. Mr Liebowitz submitted that, had the report been available to the Inspector, she would have then had highly material information that would have enabled her to consider how policy ST19 had been, and was being, implemented in LB Hackney with particular reference to the Orthodox Jewish community. The failure on the part of the Inspector to adjourn the inquiry resulted in her not having that information before her and a failure on the part of LB Hackney to provide a copy of the report meant that the Inspector did not have that information before her. Therefore her decision is flawed, it is submitted, because she did not have that highly material information available to her and thus did not consider it.

Mr Liebowitz pointed to paragraph 10 of the Inspector's report, where he submitted the result of this lack of information may have resulted in an error having been made by the Inspector. In paragraph 10, the Inspector said this:

It can be seen from my summary of Mr Liebowitz's submission that the key to the whole of this submission was his argument that there had been a failure on the part of the Inspector to give proper consideration to the policy requirements of ST19 of the 1995 UDP. If that had been the case, there would, of course, be not only an issue with regard to irrationality but there would be a failure on the part of the Inspector to comply with the requirements of section 38 of the Planning and Compulsory Purchase Act of 2004 (hereafter "the 2004 Act").

As Mr Whale frankly acknowledged on behalf of the Secretary of State, at first blush this submission by Mr Liebowitz had an appearance of substance and significance. However, it then transpired that it was entirely based on a false premise, namely that policy ST19 of the 1995 UDP was still a development plan policy applicable to this type of development at the time the matter was being considered by the Inspector in 2008. In fact, it appears that such is not the case. Ms Byrd, on behalf of LB Hackney, produced for me two documents. One is dated 21st September 2007, which is the Secretary of State's direction with regard to LB Hackney's Unitary Development Plan and the saving of policies in that plan pursuant to that direction having been issued under paragraph 1(3) of Schedule 8 to the 2004 Act. It is clear from the letter of direction and the summary of that direction, which appears as the second document, that strategic policies ST1 to 45 have not been saved. In other words, as from 21st September 2007, ST19 fell away and was not a saved policy and therefore formed no part of the relevant development plan relating to the matters that had to be considered by the Inspector. I therefore accept the submissions of both Mr Whale and Ms Byrd that, as a result, the whole of Mr Liebowitz's arguments, based on the failure of the Inspector to take account of the material consideration consisting of the report relating to the Orthodox Jewish community when considering the policies applicable to the development, fall away entirely.

Before passing from this particular aspect of the matter, I should make this point: that the report relating to the Orthodox Jewish community has not been produced and, according to the witness statement of Mr Hwang, cannot be found. It is not clear quite what its status ever was. It may have been approved at some stage by a committee of Hackney but it was not clear whether it ever formed part of the development plan. All that can be said with certainty now is that, as Mr Hwang said in paragraph 5 of his witness statement, the document is not a London Borough of Hackney document nor is it an adopted planning policy of the Council. When that is linked to the fact that ST19 has fallen away altogether, it can be seen that there is nothing in this first point made by Mr Liebowitz.

The second point made by Mr Liebowitz was that he had been unable to bring all the relevant information before the Inspector relating to other comparable planning decisions and results of appeals. He does not have the resources to do so and, in his submission, the local authority manifestly failed to produce all the relevant comparators. He said that this gave rise to an inequality of arms. However, other than to make clear that he had not been able to bring everything, he did not make a formal submission to the Inspector for her consideration that there had been any violation of Mrs Schlesinger's human rights by reason of this problem. Understandably, the Inspector therefore did not give that aspect of the matter any express consideration. I have no doubt, however, that if it had appeared to the Inspector that there was a clear lack of equality between the parties in terms of representation and ability to deal with the appeal, she would have drawn attention to that in her report. That she has not done so does not surprise me, having regard to the great skill and tenacity with which Mr Liebowitz has presented his arguments in this court to me. He is plainly a formidable and knowledgeable performer and one who could be relied upon to bring every possible point to the attention of the Inspector not only clearly but forcefully. I am quite satisfied therefore that there is nothing in this point.

The third point made by Mr Liebowitz was that the Inspector had taken account of irrelevant considerations. As to that, he referred to paragraph 14 of the Inspector's report, where the Inspector stated that she had no reason to suppose that the loft conversion was the only possible solution to the family's need for further accommodation.

It is clear that the Inspector was alive to the need to give full consideration to this aspect of the matter and when she did so she pointed out that, although it was stated that neither the basement nor ground floor extensions were practicable or would not be acceptable in planning terms, there was no evidence before her to substantiate those assertions. Mr Liebowitz said that the Inspector was not entitled to take that approach because the question of ground floor or basement extensions simply did not come into the equation at all because what was before the Inspector was a loft conversion.

I do not agree with Mr Liebowitz that the Inspector was wrong to give consideration to this aspect of the matter because she was considering, as the report makes clear, whether the family's needs could be met in some way other than by a loft conversion. Plainly that was an aspect of the overall planning judgment to which she was right to address her mind. She concluded that there was no evidence that the matter could not be addressed by suitable extensions to the basement or the ground floor. In my judgment, that was a conclusion she was entitled to draw and I have little doubt that it was based at least in part upon what she observed during her site visit. Having come to that conclusion, the Inspector then went on to hold, as she was entitled to, that she did not consider that the personal circumstances of the family outweighed the harm to the character and appearance of the area, which would subsist long after the immediate needs of the family had been met, or that the adopted policy should be set aside in this case for that reason. Accordingly, for these reasons, I am satisfied that there is nothing in the third point raised by Mr Liebowitz.

The fourth point made by Mr Liebowitz was that the Inspector had adopted an unlawful procedure relating to this appeal. Mr Liebowitz complained that what the Inspector did was to consider ex post facto whether planning consent should be granted for the loft conversion as constructed. It was common ground that the loft conversion, as constructed, did not accord with the original plans, the subject matter of the application, which was refused by LB Hackney as local planning authority. Mr Liebowitz submitted that the Inspector should have considered the appeal in relation to the original application. She should not have considered the appeal in relation to the as built structure. Mr Liebowitz submitted that, by doing so, the Inspector fell into error.

However, as Mr Whale pointed out, it is clear from the terms of paragraph 2 of the decision letter that it was agreed at the inquiry that the Inspector should determine the appeal on the basis that it was for a retrospective planning permission for the development as carried out. Mr Liebowitz was present at the appeal and he represented the interest of his sister who was the occupant. To the extent that he went along (as he expressed it) with the suggestion that the Inspector should deal with the matter in that way, he made two points. First, he was not representing the original applicant to the application for planning permission, he was representing his sister, who was the occupant of the premises. Second, by going along with the suggestion he was not actually agreeing to it. As for the first of those points, it is clear that the Inspector did not fall into error as to who was appearing before him. In paragraph 2, she made reference to the fact that those who were present at the appeal were making representations with regard to the original application. Mr Liebowitz was plainly one of those. He was making representations with regard to the original application, although, of course, he was dealing with a loft conversion that had departed from the plans attached to the original application. Be that as it may, it is quite clear that all those who might have been prejudiced by the Inspector's consideration of the matter in that way were present at the inquiry and that nobody took formal objection to the approach suggested. To use Mr Liebowitz's expression, they all went along with it. In my view, that was an agreement to deal with the matter in the way the Inspector dealt with it and it is no longer open to Mr Liebowitz to argue otherwise on behalf of the claimant.

In addition, as Mr Whale pointed out, it is commonplace for inspectors at planning inquiries to have to deal with a variation to the original plan submitted in support of the original application. Indeed, variations to the original plan are sometimes produced during the course of the inquiry so that the Inspector has to deal with the matter as the inquiry proceeds. I see little difference between that situation and the Inspector dealing with a variation to the original planned development as evidenced by the as built structure. In my view there is nothing in this particular point.

I turn then finally to the fifth point raised by Mr Liebowitz, namely that the Inspector fell into error in paragraph 17 of her report where she failed, so it is submitted, to give proper consideration to the original proposal properly but merely directed her attention entirely to the building as built. What the Inspector said in paragraph 17 of her report was this:

I can see no substance in this particular submission by Mr Liebowitz. As it seems to me, it is clear that the Inspector carried out a consideration of the original plans that were the subject of the original application for planning consent and she also considered the situation of the development as built. In my view, that she did this is manifest from the last sentence of paragraph 17 quoted above. Had she not carried out that exercise she would not have been in a position to say that the changes which would result by reducing or changing the loft conversion as built so as to accord with the original planning application would not be sufficient to overcome the harm to the character and appearance of the area. In my view, it is clear that she did carry out the exercise properly, there is nothing in this final point made by Mr Liebowitz and, accordingly, for all those reasons, I have come to the firm conclusion that this application must be, and is hereby, dismissed.

MR WHALE: Thank you, my Lord. I am grateful for that. The Secretary of State does have an application for costs. Could I hand up a statement of costs?

SIR THAYNE FORBES: Has a copy been served on Mrs Schlesinger?

MR WHALE: Yes. I gave her a copy when I arrived at court this morning. (handed)

My Lord, before I address you on the quantum, can I just draw to your attention and rely upon some of the correspondence that has pre-dated this hearing?

SIR THAYNE FORBES: Correspondence...?

MR WHALE: The correspondence that has been exchanged in the run up to this hearing and conversations between --

SIR THAYNE FORBES: Yes. I do not have any copy of that, have I?

MR WHALE: No, you have not. If I may just read out the salient points and then obviously I will hand them up if you need to see them. They have a bearing, in my submission, on your approach to the costs application.

On 16th February of this year, the Treasury Solicitor on behalf of the Secretary of State wrote to Matilda Schlesinger a letter that was headed "without prejudice save as to costs", so, of course, I can refer to it now. What the letter said, in short, without labouring the point, was that it invited a withdrawal of the claim and if that happened the Secretary of State would seek only 75 per cent of her costs, which at that time stood at £1,500, and a consent order was enclosed to that effect and, as was indicated previously, it was said to Mrs Schlesinger you may wish to obtain independent legal advice. So the short point is there was a carrot offered to Ms Schlesinger whereby she could save herself a considerable amount of money. That offer was rejected by Mrs Schlesinger and, of course, if one looks at the statement of costs now provided to your Lordship, you will see that the costs have increased above and beyond £1,500 since then, as you well imagine.

SIR THAYNE FORBES: Yes.

MR WHALE: On 2nd April of this year, the Treasury Solicitor had a telephone conversation with Mr Liebowitz, where it was explained to him, lest any explanation was needed, I doubt it was actually, that the successful party would be entitled to recover their costs and then on 21st April of this year there was further correspondence about the adjournment of the hearing, that is to say the underlying enforcement hearing, whereby this hearing would indeed proceed and it was explained, again, the Secretary of State would seek to recover her costs if successful, as had been explained previously to Mr Liebowitz. Those three points, and in particular the without prejudice save as to costs letter, which perhaps I could hand up, I would ask you to take into account. If someone could assist me? (handed)

Your Lordship, it is a trite principle that the first defendant in section 288 proceedings will recover her costs if the application is dismissed. That is why I invite you to summarily assess the Secretary of State's costs in the sum claimed. I will endeavour to assist you if you have any queries about the statement and my learned friend, I am not sure what her position is, but she can make that clear for himself.

SIR THAYNE FORBES: Thank you.

MS BYRD: My Lord, there is no application for costs on behalf of the Council.

SIR THAYNE FORBES: So, Mrs Schlesinger, there is an application for costs in this case. Would you like Mr Liebowitz do deal with that as well?

THE CLAIMANT: Yes.

SIR THAYNE FORBES: You are content that he should deal with it? Well, Mr Liebowitz, first of all do you have any objection to the principle of costs being paid? You are not concerned here with the London borough of Hackney. They are not seeking their costs. It is only the Secretary of State.

MR WHALE: I am not objecting to the principle but I would make a point about the figure.

SIR THAYNE FORBES: All right. There is no objection to the principle. Now, do you object to my dealing with the application for costs by way of -- sorry, by dealing with the order for costs by reference to a summary assessment of those costs.

MR LIEBOWITZ: Yes.

SIR THAYNE FORBES: You do. Why?

MR LIEBOWITZ: No, I agree.

SIR THAYNE FORBES: You agree?

MR LIEBOWITZ: Sorry.

SIR THAYNE FORBES: So you do not object to a summary assessment? Now, you have seen the schedule, or statement of those costs. Is there anything on that schedule which you consider to be unreasonable or inappropriate which should in other words be reduced or deducted.

MR LIEBOWITZ: I would not say deducted but I would make a submission that the overall figure is disproportionately high in a case where, although it was a different type of a case where I represented -- it was referred to, the skeleton argument which the counsel, Mr Stern, was a similar case, and the figure there was about £2,000. So I am very concerned and if the figure was 1,500 a few weeks ago, why did it jump up to four and a half thousand pounds? What has changed, apart from the attendance at the hearing and the preparing the submission, the skeleton argument? These points I would want to ask my Lord to bear in mind.

I would also want my Lord to bear in mind the fact that the offer was withdrawn, did not just happen from the solicitor. What happened is we asked for this case to be stopped, because of the public inquiry being listed on that day. We took a view that we will concentrate on the inquiry and therefore withdraw. We have asked for that. They had only agreed if we would pay £1,500. That is what the letter was about.

SIR THAYNE FORBES: If what you were asking for was an adjournment of this hearing --

MR WHALE: No, I was asking to stop. I was asking to stop, to withdraw, and the court told me that I needed consent of the party, which I sought, and they said --

SIR THAYNE FORBES: For these purposes, do you accept that the word "stop" meant abandon or --

MR LIEBOWITZ: Yes, whatever the word is.

SIR THAYNE FORBES: So you were seeking to abandon because of the --

MR LIEBOWITZ: We took a view that we cannot fight both and we said that we will cut costs, so to speak, and for that --

SIR THAYNE FORBES: And focus all your attention on the enforcement appeal, seeking planning permission through that.

MR LIEBOWITZ: Yes.

SIR THAYNE FORBES: So the Treasury Solicitor was right to interpret what you were asking for as you wishing to abandon these proceedings. So the Treasury Solicitor's offer in that letter of 16th February was based on a correct basis, because the only way you could stop these proceedings is to withdraw them.

MR LIEBOWITZ: No, I used the word withdraw, so -- and I did not look into the wording, but the intention was clear, that we were happy to withdraw from this, and --

SIR THAYNE FORBES: Well, it is a great pity, is it not, that you did not agree to pay the costs, the 75 per cent of the costs, then.

MR LIEBOWITZ: Yes, I was going to come to this, because, given the response that we would have to pay 75 per cent of the costs, we took the view if we were already faced with that situation we might as well make the case.

SIR THAYNE FORBES: I see.

MR WHALE: And we could have won.

SIR THAYNE FORBES: Well, it is understandable reaction, but it is a slightly expensive one.

MR LIEBOWITZ: I do appreciate that, but we obviously want my Lord to bear in mind that we wanted to, we just could not afford -- and there is another issue, which I want my Lord to bear in mind: we obviously, for our part, are keeping costs down, we have not gone to all these expenses, and the final point is that Mr Schlesinger is on benefits.

SIR THAYNE FORBES: You have tried to keep the costs down but, if I may say so, as I indicated, both in my preliminary remarks and in the course of my judgment, in doing so it was not to the detriment in the way in which you presented the case, prepared it and presented it. So I am quite satisfied that you did a very good job in that regard. So the matter of regret is, I suppose, that, having decided that you really wanted to abandon or withdraw these proceedings, you did not proceed to do so at a time that would have cost a lot less.

MR LIEBOWITZ: I do appreciate, obviously. The point is that we were not in the position to pay the £1,500 and we were going to make representations to the means tested benefits, which Mrs Schlesinger is on, that should be taken into account.

SIR THAYNE FORBES: I see, thank you very much, Mr Liebowitz. I am very grateful to you.

This is a case where I am satisfied that it is appropriate that the claimant should pay the first defendant's costs, which I summarily assess in the figure of £4,696. In doing so, I bear in mind Mr Liebowitz's submission that he wishes me to have regard to the reasonableness of the costs as indicated in the first defendant's, the Secretary of State's, schedule of costs. I have done so and, if I may say so, as is common in cases involving the Treasury Solicitor and counsel instructed by the Treasury Solicitor, it is clear that the costs sought are very reasonable, the fees charged are very reasonable and the overall figure is, based on my extensive experience in these courts, very reasonable and therefore I make that order.

Is there anything else?

MR WHALE: My Lord, I am very grateful for that. Thank you very much indeed. Could I just ask for the return of the letter I have just handed up?

SIR THAYNE FORBES: Yes, certainly.

MR LIEBOWITZ: May I ask if the court could allow us to have a copy of the written transcript?

SIR THAYNE FORBES: The transcript of the judgment?

MR LIEBOWITZ: Yes, because --

SIR THAYNE FORBES: You would like a copy of the transcript of the judgment?

MR LIEBOWITZ: At the public expense.

SIR THAYNE FORBES: I see. I was going to say, you are absolutely entitled for a copy of the transcript but you have to pay for it. But you want me to make an order that you have one at public expense. For what purpose?

MR LIEBOWITZ: We want to take advice, which we can do now, especially with the issue of the costs, how we can proceed.

SIR THAYNE FORBES: When you say that, do you have in mind that you wish to consider an appeal?

MR LIEBOWITZ: If it is possible. We would want advice.

SIR THAYNE FORBES: If you are considering the possibility of an appeal, and you wish to have a transcript for that reason, it would also be necessary for you to apply to me to extend -- first of all for permission to appeal and/or to extend the time for you applying to the Court of Appeal and in respect of any notice of appeal. Do you understand what I am getting at?

MR LIEBOWITZ: I understand vaguely. I would have to go to a solicitor to get --

SIR THAYNE FORBES: Well, I think in the circumstances, given that it relates to a family home, I am prepared to order that Mrs Schlesinger should be provided with a transcript of my judgment at public expense. I will also extend time generally -- I will direct that time for applying for permission to appeal to me is extended to -- how long is the normal time limit, Mr Whale?

MR WHALE: It is 21 days.

SIR THAYNE FORBES: To 21 days following the provision of that transcript and, insofar as it is necessary for me to do so, I extend the time for any notice of appeal in similar terms, in other words 21 days following the provision of the transcript. All right?

MR WHALE: One final point then, my Lord, on that subject, I just wonder if you could order or direct that, upon receipt of the transcript, Mrs Schlesinger can provide the two defendants with a copy of it. I do not think that would be asking too much.

SIR THAYNE FORBES: Is there any reason why I should not -- I mean, as a matter of interest, pretty well all my judgments go on to BAILII anyway.

MR WHALE: I did assume it would, actually, but I was not quite sure. (pause) The Secretary of State does not need it. The Secretary of State has other means of obtaining a copy.

SIR THAYNE FORBES: I thought she did.

MR LIEBOWITZ: Nothing untoward.

SIR THAYNE FORBES: All right. There is no need for specific provision and, in any event, it would go on BAILII generally within a couple of days of my having approved the transcript.

Very well. Thank you very much.