Georgiou v Secretary of State for Communities & Local Government

SIR MICHAEL HARRISON:

This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first respondent's inspector dated 17 September 2009, when he determined the claimant's appeal under section 78 of the 1990 Act to remove condition 4 of a planning permission dated 26 March 2009, granted by the second respondent in respect of the mixed use as a bar/restaurant, together with associated building works, of premises at 68 - 70 Clapham High Street, London SW4 7UL.

Condition 4 of the planning permission stated:

The reason given for the imposition of the condition was:

The claimant's appeal was conducted by the written representation procedure. The bar/restaurant was in operation at the time of the appeal so the planning permission was, in effect, a retrospective permission. The inspector carried out a site visit on the afternoon of 8th September 2009.

An acoustic consultant's report was submitted with the claimant's representation. The second respondent did not submit any acoustic evidence. The claimant's acoustic report, put shortly, referred to measurements of the ambient noise levels outside in the High Street in the daytime and at night in order to show that they were such that any noise emanating from the premises would effectively be masked by the external traffic noise, provided that the sound system in the premises was set and controlled to an appropriate level when the doors were open. The report concluded that there would be no loss of amenity to local residents by reason of noise breakout from the bar/restaurant.

Turning to the inspector's decision letter, he identified the issue in paragraph 2 as:

In paragraph 3 of the decision letter, the inspector described the premises as having a large floor area for customers which was licensed to operate into the early hours of the morning, as late as 04.00 hours.

In paragraph 4, the inspector described the frontage within which the premises were located as a vibrant shopping and commercial area with some restaurants, including the appeal premises, having tables and chairs on the pavement. He described the High Street as fairly heavily trafficked with continuous traffic noise being noticeable at the time of his mid-week, mid-afternoon site visit.

In paragraph 5, the inspector noted that works to implement the retrospective planning permission had been completed some time ago. They included replacement of the restaurant shop fronts by new glass entrance doors alongside a number of bi-folding glass doors. The latter were all in situ at the time of the inspector's site visit and he saw them open and closed to demonstrate their operation. He stated that, with all of them in the open position, the bar/restaurant was in effect an open-fronted premises with little screening between its interior and the outdoor seating area and highway pavement.

In paragraph 6 of the decision letter, the inspector recorded the second respondent's case that there were residential premises in the near vicinity, that there had been objections on consultations relating to noise and disturbance, including anti-social behaviour by inebriated and unruly customers, and that a deletion of the condition would be contrary to several policies of the unitary development plan aimed at protecting residential amenity, particularly from noise generated from restaurants and other commercial establishments.

In paragraph 7, the inspector recorded the claimant's case that it was illogical to permit the folding doors but then to impose a condition requiring them to be kept shut. The inspector referred to the conclusion of the claimant's acoustic report that any noise emanating from the premises would be effectively masked by the ambient noise levels, notably from passing traffic on the High Street. He referred to the consultant's suggestion that the internal sound system emitting amplified music could be limited to a "doors open" quieter mode to obviate any significant noise nuisance to noise-sensitive premises, and he referred to the consultant's statement that it was a vibrant area with numerous visitors and a night time economy where a certain amount of noise from bars and restaurants was to be expected.

In paragraph 8, the inspector stated that his visit to the premises occurred at a relatively quiet time in its operation, but that he had little doubt from the representations that had been made that it would be far busier in the late evenings and at the weekends and that noise sources would include customers themselves and the internal music system.

In paragraph 9, he stated that it was a legitimate and commonplace objective of policies to attempt to mitigate noise nuisance from commercial and entertainment uses, including bar/restaurant uses, to protect the residential amenity of persons living in the vicinity, including in the upper floors of the nearby buildings along the High Street.

In paragraph 10 the inspector stated:

Mr Leigh's main submission on behalf of the claimant was that the inspector failed to grapple with the claimant's noise report and failed to give any reasons why he disagreed with it. The claimant therefore, he said, does not know whether the inspector misunderstood it or what parts of it he did not accept, and why. As a result, it was submitted, the claimant had been substantially prejudiced. Alternatively, Mr Leigh submitted that the inspector's conclusion was Wednesbury unreasonable because it flies in the face of the claimant's noise report which was not contradicted by the second respondent and was not explained away by the inspector.

Ms Thornton, on the other hand, submitted on behalf of the first respondent that the claimant was over emphasising the importance of the noise report. This was a case, she said, which involved the exercise of planning judgment where the inspector visited the premises when it was in operation, experienced the bi-folding doors, both open and shut, and considered whether there was potential for noise nuisance. In that context, she submitted, there was no need for the inspector to give reasons for not accepting the claimant's noise report. He was entitled to prefer his own judgment. She submitted that the inspector gave adequate and intelligible reasons for his conclusion in paragraphs 10 and 12 of the decision letter.

Ms Thornton relied on the cases of Kentucky Fried Chicken (GB) Ltd v Secretary of State for the Environment [1978] 1 EGLR 139 and Mason v Secretary of State for the Environment and Bromsgrove District Council (1984) JPL 332 as showing that the inspector is not bound to accept the evidence of an expert, even if it is unchallenged. Mr Leigh accepted that the inspector was not bound to accept the expert evidence. His point was that the inspector should have said why he did not accept it.

Ms Thornton also referred me to the case of R (Newsmith Stainless Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, where Sullivan J (as he then was) stated why, in planning cases involving the exercise of planning judgment, particularly where there had been a site visit, an applicant alleging that the decision wasWednesbury unreasonable would face a particularly daunting task.

I have to say that I have some sympathy for the claimant's case because the inspector did not expressly address the conclusions of the noise report. The short issue is whether he was bound to do so.

I have come to the conclusion that he was not bound to do so. The reason is that, having considered the report and having visited the premises, he exercised his own subjective planning judgment for the reasons expressed in paragraphs 10 and 12 of the decision letter. In those circumstances, there was no need for him to address the contents of the report, which at the end of the day are only an aid to the exercise of his planning judgment.

This is not a case where the inspector failed to take the report into account. It is quite clear from paragraph 7 of the decision letter, not only that he took it into account but also that he understood it. As the cases of Kentucky Fried Chicken and Mason show, an inspector is not bound to accept an expert's report even if it is unchallenged. Those cases make it clear that the inspector has to bring to bear on the issues in an appeal his experience, his own expertise and his common sense. As David Widdicombe QC made clear in the Mason case, that is particularly important where noise is concerned because it is a very subjective field.

In this case, the inspector was entitled to rely on his own experience, expertise and common sense in exercising his subjective planning judgment, taking into account all the evidence, including the noise report, the residents' objections, the fact that the premises could be open until as late as 04.00 hours, and his site visit where he saw the doors being operated. In my view, the reasons that he gave in paragraphs 10 and 12 of the decision letter were adequate and sufficient and there was no need for him, in the circumstances of this case, to embark on a critique of the noise report.

Furthermore, the decision cannot be said to beWednesbury unreasonable. As I have stated, all relevant considerations were taken into account and reasons were given for the decision which was an exercise of planning judgment. It cannot be said that the decision was one which no reasonable decision taker could have reached.

It follows that, for the reasons that I have given, this application must be dismissed.

MR LEIGH: My Lord, that leaves two matters as far as I am concerned. I imagine the Treasury Solicitor will want to ask for their costs.

SIR MICHAEL HARRISON: Shall we deal with that first? Do you ask for your costs?

MS THORNTON: Yes, Mr Leigh has predicted accurately where I am going. Does your Lordship have a copy of the costs schedule by the Treasury Solicitor?

SIR MICHAEL HARRISON: Yes.

MS THORNTON: There is just -- the costs of today to add to that. They do not amount to much. £80 for my instructing solicitor and £120 for my attendance, which needs to be added to the figure of £6,936?

SIR MICHAEL HARRISON: So that is 7,136?

MS THORNTON: Yes, my Lord. That will be confirmed. I will confirm that shortly.

My Lord, could I just draw your attention to a point that I have been asked to make about an aspect of the schedule of costs, it may be that my learned friend takes you to it anyway. It is Treasury Solicitor's practice that attendances on client, you will see there on the schedule, and work done on documents is relatively high. That is because it is the Treasury Solicitor procedure to review the file and provide a detailed minute of advice to the client every time a claim of this nature is made, and that works its way through to a reduction in counsel's fees because counsel in drafting the skeleton argument relies on that very helpful Treasury Solicitor minute of advice. So I would ask you to note that.

SIR MICHAEL HARRISON: Right. Thank you.

Mr Leigh, first of all, do you accept that you should pay the costs as a matter of principle?

MR LEIGH: I agree with the principle.

SIR MICHAEL HARRISON: Thank you. And so far as quantum is concerned?

MR LEIGH: I disagree with quantum.

SIR MICHAEL HARRISON: Right.

MR LEIGH: Perhaps I can explain why --

SIR MICHAEL HARRISON: Yes.

MR LEIGH: -- and take you through these points seriatim if I may. I am simply going to use the printed summary of costs, which I hope your Lordship has a two-page document?

SIR MICHAEL HARRISON: Yes.

MR LEIGH: It is these queries. To understand what is making this figure up, the Treasury Solicitor says there is 13.3 hours attending on client, which must be the Planning Inspectorate?

SIR MICHAEL HARRISON: It must be what?

MR LEIGH: The Planning Inspectorate. The client is the planning inspectorate, it is their decision we are challenging. So the Treasury Solicitor has spent 13.5 hours-odd attending on client, we just heard because we go through the whole file.

Secondly, there is an item called "attendances on others", some further 3 hours. I do not know who "others" are, but it is not us. I have a different point on that, and it is not counsel, as far as I can see. Then there is work on documents. There is some 19 hours on documents. Therefore, my Lord, according to Treasury Solicitor, they have spent some 32 or 33 hours going over the documents in a case where the decision letter was two pages long, the issue was a single issue, the appeal file, as far as we can tell, because we put it into the High Court, frankly was very short. As your Lordship may have a familiarity with these things, the amount of development plan documents, letters and so on, it was tens of pages. It did not even go into 100 pages.

So the first point I make is: what was Treasury Solicitor doing with the utmost respect for 33 hours going through the documents? By contrast it may be my commercial rates are higher than Treasury Solicitor's, but if one to look at the side of this room we spent getting this case off the ground in terms of conferences and I know the time I spent drafting, I suspect it was not even a third of that. It may be I work quickly but --

SIR MICHAEL HARRISON: Have you put in your own schedule of costs?

MR LEIGH: Yes, we have. I do not know if you have it.

SIR MICHAEL HARRISON: No, I do not have it here.

MR LEIGH: This was a fresh one prepared for today. Because we had to come back today, but it is basically yesterday's one plus something for today. (Handed).

SIR MICHAEL HARRISON: Thank you very much.

MR LEIGH: My Lord, my instructing solicitor spent 20 minutes. It says "claimant's solicitor", so it should say defendant but we have not got to that point. .8 of an hour, so less than an hour dealing with me. Four hours for sorting out the bundle and issuing the matter. Four hours in conference and over the page, working on the documents, some 1.7 hours. Now you will recall that this part of the Treasury Solicitor excludes counsel's time on the case. We were told this was a view to cutting down counsel's time but that is less than 10 hours, and we are the claimant. My Lord I am bound to say -- I have to put --

SIR MICHAEL HARRISON: I am sorry, what is 10 hours?

MR LEIGH: My instructing solicitor appears to have spent -- I have not added it up it -- looks like less than 10 hours or thereabouts dealing with documents and attending a meeting with the clients. I am being generous my Lord, on the basis, even if my solicitor was not working on the documents, in conference he was sitting there with myself and the clients in the way we are told that Treasury Solicitor has asked for thirteen-and-a-half hours attendances on its client, plus another 19 hours spent on the documents. It is wholly disproportionate and frankly unfathomable in this case. I may have lost a point, you disagreed with me. I will deal with other matters in a moment, my Lord. But your Lordship may, I hope, agree with us that this is a two page effectively decision letter on one point. The documents are scant. One is bound to ask rhetorically, but most respectfully: what on earth was done for 33 hours reviewing the file? Because if it took that long to review a file, then what have not we seen on this side of the room? Because as far as we are concerned, we have seen it all, because we have put it in front of you.

So my first point, my Lord, is 33 hours is far too much time spent on documents and attending on the client.

SIR MICHAEL HARRISON: I see the total in your schedule is £13,800 --

MR LEIGH: Yes.

SIR MICHAEL HARRISON: -- compared to --

MR LEIGH: About 6000-odd.

SIR MICHAEL HARRISON: The defendant's almost 7,000.

MR LEIGH: My Lord it is not about quantum at this point.

SIR MICHAEL HARRISON: Where is the difference between the two in that respect?

MR LEIGH: The biggest difference, frankly, are my fees. I charge commercial rates. I am 24 years call and you will see there is a fee for counsel which amounts to some, if you include today, £8,500 plus VAT. So the bulk of the fees are my fees, at 24 years call. My hourly rates I can tell you are £300 an hour. They are quite close to my instructing solicitors. They are very different from the hourly rates that my learned friend is paid and her instructing solicitor charge herself out. So one cannot look at the mount and say: it is only 50 per cent of what you say. I have no objection to paying on behalf of my clients a fair, as it were, a fair payment for a fair day's work, but the analysis we are given is that 13.5 hours is spent talking to PINS and a further almost 20 hours is spent working on documents.

Now we know on this side of the room the amount of work we put into the case and the other side were responding. The difference, leaving aside the amount, the difference in time is wholly disproportionate and it does not make any sense.

Your Lordship is, of course, experienced in looking at decision letters, experienced of course in analysing matters from a legal point of view but this is the Treasury Solicitor, who are equally experienced, in responding to countless challenges to these decision letters. And 13.5 hours just does not fit what took place --

SIR MICHAEL HARRISON: You have made that point.

MR LEIGH: I have made the point but I was waiting --

SIR MICHAEL HARRISON: What is your next point?

MR LEIGH: My next point is that according to Treasury Solicitor they spent 3.9 hours attending on us. Well I did not talk to Treasury Solicitor. My instructing solicitor, you will see there, has the first item "attendances on the claimant's solicitors" 0.3 of an hour. Does your Lordship see it?

SIR MICHAEL HARRISON: I am sorry this your schedule?

MR LEIGH: It says attendance on claimant's solicitors, it must be defendant's solicitors.

SIR MICHAEL HARRISON: Yes.

MR LEIGH: I know it is, because -- my Lord I actually took instructions from my solicitors specifically on this point because I say they have spoken to you for 3.8 hours can you tell me what you were doing? He said: I spoke to them for 15 to 20 minutes, so that why he charged 0.3 of an hour. We do not know what was going on for the other three-and-a-half hours. There are three-and-a-half hours where apparently Treasury Solicitor were communicating with us, and it was not me, and they were communicating with my instructing solicitor who has no record of it, no recollection of it.

My Lord, then my third point is "attendances on others", There is 3 hours. Given that this case effectively has, as far as Treasury Solicitor are concerned, three bodies in it, Treasury Solicitor, the Planning Inspectorate and counsel.

SIR MICHAEL HARRISON: I am sorry, which item is it you are on to now?

MR LEIGH: I am at the bottom of the summary of costs of Treasury Solicitor, my Lord, "attendances on others".

SIR MICHAEL HARRISON: Right.

MR LEIGH: There is 3 hours spent on "others". The question is: who are "others"? It cannot be the Planning Inspectorate because they are the client and that must come under the first heading, the 13.3 hours. It cannot be counsel, although one waits to see whether that is the explanation. So query on top of the 30 hours-odd on documents and speaking to PINS, on top of the 3.5 unallocated hours there is a further 3 hours talking to someone who we do not know and we just need an explanation.

Finally, my Lord, two points. First of all, over the page I have dealt with work done on the documents, my Lord. That was the 19 hours. Top of the second page of their schedule, you will see that. I have explained to your Lordship that, apparently, we are told that 19 hours including a lot of work to avoid counsel doing stuff. When we look down the page it says:

SIR MICHAEL HARRISON: Just one moment. Where are we?

MR LEIGH: "Counsel's fees".

SIR MICHAEL HARRISON: Yes.

MR LEIGH: My learned friend called in 94, as I understand it she is C panel barrister. They pay her £80 an hour. That is the rate for London counsel on the C panel. They are billing £2,500 for work that she has done. That is not the hearing, that is just presumably her skeleton and any advice she may have given. £2,500 divided by £80 gives you 31 hours. So my learned friend, according to the billing, spent 31 hours on this case on top of the 30 hours that the Treasury Solicitor has spent and we have been told this was to cut down the amount of time counsel spent it on. Now this is not a criticism of my learned friend and it may be an explanation but £2,500 for 30 hours work is, again, out of all proportion for what this case involves. It was a half a day case with one issue and it defies explanation where the £2,500 comes from, because then for the hearing my learned friend is only being paid £250 which roughly which is 3 x £80 plus a little bit. It is the hourly rate, because they just clearly charge for the time -- rather paid her from the time she spent in court yesterday. She was in court yesterday from 10.30 to 1 o'clock. It must be that fee of two-and-a-half hours is for council's prep for the hearing, drafting a skeleton and anything else. With utmost respect, 30-odd hours is disproportionate and one cannot compare her -- I say straight away, her fee of £250. If one lumps in the £250 with her prep work and calls it £2,750, I know I was on a brief yesterday of £4,000 and I know I charged £3,500 for a con but my daily rates and hourly rates are much higher. My daily rate is £2,500, my hourly rate is £300. I know the time I spent getting the case up.

In assessing costs, my Lord, it is not simply well their fees are half of yours or a lot less. One is entitled to say: what comprises that fee? Is it the right amount of work for what is involved? That is why for example once could not turn (inaudible) on a brief of let us say £10,000 because no doubt your Lordship or one of your fellow judges would say that is not an appropriate fee in the case.

So, my Lord, for all those reasons the sum claimed for is excessive.

SIR MICHAEL HARRISON: Right. Thank you very much. Ms Thornton, perhaps you would deal with those in turn, would you?

MS THORNTON: Thank you my Lord. Can I first of all confirm that the revised figure to include today is £7,133?

SIR MICHAEL HARRISON: 33, is it?

MS THORNTON: My Lord, dealing with my learned friend's points in turn. Attendance on opponents. That is the 3 hours. I cannot comment further on whether my clients spoke to my learned friend's instructing solicitor or not. It is on the face of the document as you have it. I cannot take it any further on that.

"Attendance on others", my Lord, is the counsel, clerks. For example, I know the court was in contact this week about authorities bundles, listing, so on and so forth. It is that type of communication.

In terms of work done on documents, I think my learned friend failed to realise that it is not just about review of the file -- I am now over the page on page 2 of our schedule. As I previously explained to your Lordship, the Treasury Solicitor practices to produce a detailed advice. This was a case with 17 authorities, legal authorities, and the advice that I was sent I think was at least 12 pages long analysing those authorities and it was my instructing solicitor who located and identified the two critical cases to this hearing which were Kentucky Fried Chicken and Mason and thus it was clearly an extremely useful use of time there.

My Lord in terms of my fees, I do not wish to tell tales out of court but a part of the reason that my hours were higher than might be expected is I was -- I had to compile the authorities bundle, which consisted of locating 17 authorities, including having to visit Middle Temple library, because some of them are only available in the library, not online, filing them all, checking the copies et cetera. So that includes that.

I think then that deals with the majority of the submissions, save I have heard what my learned friend says about the disparity in counsel's fees but I would highlight that disparity 3000-odd put down for me versus the (inaudible) for my learned friend.

MR LEIGH: My Lord, three short points. My learned friend does not deal at all, I appreciate she has no answer to attendances on opponents.

SIR MICHAEL HARRISON: On what, on opponents?

MR LEIGH: My learned friend has no answer to the "attendances on opponents" column. It is instructive, my Lord, that these costs schedules were exchanged before yesterday, before we got to this document and it is clear that those on my side have only had very limited contact with the Treasury Solicitor. As I have said I have spoken to my instructing solicitor expressly on this point and asked him how long, and he told me 15/20 minutes. They cannot explain it. If they cannot explain it, with the a utmost respect, they should not be entitled to it because this a summary costs assessment and it does not fit.

Secondly, my learned friend, my Lord, gives you no explanation as to why thirteen-and-a-half hours was spent attending on Planning Inspectorate.

MS THORNTON: I apologise, my Lord, would you like me to address -- I missed that out in the schedule?

SIR MICHAEL HARRISON: Very well.

MS THORNTON: It is simply, and I have referred your Lordship already to the fact it is practice of the Treasury Solicitor to make contact with PINS, to receive the inspector's comments on the decision letter and on the claim form and to take that into account in drafting their own advice which then is passed onto counsel.

SIR MICHAEL HARRISON: I see.

MR LEIGH: I just remind your Lordship of my point, 13.5 hours is a long time to speak to the Planning Inspectorate about a two page decision letter.

My learned friend, partly answer to that and partly work done on documents, says there are 17 legal authorities. My Lord, with the utmost respect, that is not a good point. The majority of the authorities were mine, or a chunk of them were mine. They are well worn, well trodden authorities, no doubt absolutely familiar to anybody involved in planning law and public law challenges. The cases that we referred to are referred to in my skeleton, that French Kier, Givaudan, Bolton Metropolitan, Singh v First Secretary, Thameside, Dyson, those were mine actually. When my learned friend set there were 17 authorities, to be fair to me, I refer to six cases. All of them very familiar. All of them uncontroversial, as indeed was plain at the hearing, my learned friend said so in terms. With the utmost respect it is not an explanation to say: there were all these different authorities, we did not take you to them.

Secondly, the additional authorities, Seddon Properties, Newsmith, Tesco, South Bucks, South Somerset, Kentucky Fried Chicken, Mason and then Francis, they were all cases that the other side decided to refer to. The other only two we looked at in detail were again Kentucky and Mason, the others were uncontroversial. I made it plain I did not take issue with Kentucky. It is not 19 hours work to look up those cases. One imagines, with respect, that Treasury Solicitor defend these cases day in day out. They probably have a standard list of cases they refer to. Certainly my experience is we see the same cases on this side of the room being thrown back at us when we challenge matters. These are uncontroversial, uncomplicated cases, so my Lord with respect it is no an answer to say there is 19 hours of work on documents because of the authorities.

So far as the question of fees are concerned, £2,500 for 30 hours of work. It still seems a huge amount of work, but if that is time my learned friend spent putting bundles together, with the utmost respect that is not counsel's job or if it is to pay counsel counsel's rates for photocopying bundles and putting them together, it is inappropriate. This is not a criticism my Lord, this a proper consideration of what it is we are being asked to pay. I am not being a sore looser but I am concerned I have been given a costs schedule that when we have examined it -- I have seen many of this my Lord and I am sure you have -- it simply is not making fair sense, and it is not a question, and it is worth repeating, their fee may be half of hours but we can actually explain the time we spent. It is a different matter, my Lord, if we were to say: your fees Mr Leigh are excessive or your solicitors' fees are excessive in terms of the hourly rate. That is not the issue.

My Lord, I do not want to take up more time unless I can properly address you, but we say that those are proper submissions. I have then a separate application to make.

SIR MICHAEL HARRISON: Right. Thank you.

Mr Leigh on behalf of the claimant has submitted that the amount of costs claimed by the defendant is too high in a number of respects which I do not propose to refer to in detail.

The total of the defendant's costs, excluding today, is £6,936, whereas the claimant's costs are £13,800-odd.

It is expected, I think, that the claimant's costs would be higher because they have to do more in terms of preparing the case, and counsel's fees may reasonably be expected to be higher.

I do not intend, as I say, to deal with the items seriatim. It does seem to me that the amount claimed by the defendant's solicitors is slightly on the high side and there was one item which could not be substantiated. I propose to deal with the matter in a summary form and I propose to reduce the amount of the £6,936 down to £6,000. So there will be a reduction of just over £900 in the costs, to which will be added the £200 for today. So the order that I make is that the claimant pays the defendant's costs in the sum of £6,200.

MR LEIGH: Thank you my Lord.

My Lord, if it is convenient my second point, my Lord I ask for permission to appeal from your Lordship's judgment.

My Lord, this raises a matter of general importance. Your Lordship kindly said that you had sympathy with our case, although of course for the reasons you gave you did not accede to our case.

The point is this, and a point upon which I would ask for permission is this. In a case where there is a single issue and the single issue is addressed by -- in this case expert evidence, but my Lord it could be any evidence -- when the single issue is addressed by evidence which is clear in its conclusion, is it sufficient, in light of the common law principles required of a decision maker -- and I put it that way my Lord so I do not have to rehearse all those cases we have gone through -- to simply say "I disagree" and not provide any explanation as to where he disagrees with that evidence on the single issue and why he disagrees with that evidence on the single issue and a subsidiary point is where a claimant, or where an appellant proffers an apparently appropriate condition to deal with the harm identified in the decision-maker's judgment, as being the reason for refusing the appeal, is the decision maker entitled to ignore that condition, including offering no explanation for ignoring it, where that condition strikes at the heart of the identified harm?

So, my Lord, in effect there is two parts to this. One --

SIR MICHAEL HARRISON: I have that. You have just told me what they are. What do you say about that Ms Thornton?

MS THORNTON: My Lord, I say in response that there is no reasonable prospect for success of those submissions outlined by my learned friend, nor is there any other compelling reason why you should grant permission to appeal.

As your Lordship made clear in the judgment, this was an inspector's decision based on planning judgment, perfectly lawful exercise of planning judgment. My learned friend sought again to rely on the fact of the expert evidence report, yet the law on that is clear. The inspector is not bound to follow expert evidence and therefore the degree of reasoning which he has to provide follows accordingly, we say.

On the second point, with respect, my Lord, this was not part of his claim, as I understand it, and appears to be a completely new point, ie a concept of where an appellant offers a condition as a solution, does the reasoning have to increase to cater for that situation? That is the first time I have heard that argument, my Lord.

So in my respectful submission I would ask your Lordship to refuse permission to appeal.

SIR MICHAEL HARRISON: Thank you very much.

MR LEIGH: My Lord, by way of response -- I deal with the last point first because it is short -- the inclusion of the condition was patent on the documents. It was actually expressed by the acoustic consultant and it was formally recorded by the inspector, paragraph 7, what he did not do, with hindsight we accept the thrust of my consultant, what he did not do was say why he could not deal with it by way of that condition. If your Lordship gives me one moment, I am just checking something, please. (Pause).

My Lord, I say I have said sufficient about that, on the facts of his case and the way the matter has come out, in my submission it is a perfectly proper point to make that this condition was something that would have saved -- we certainly developed that point in argument and it has formed part of your Lordship's judgment because it is part of the decision letter at paragraph 7. So I say it is properly a point that could be considered.

My Lord, I make this point. This is of general importance and it is a particularly relevant point for this reason. The effect of your Lordship's judgment and the way in which my learned friend responds is to say this. Where the Treasury Solicitor, standing in the shoes of the Planning Inspectorate, our inspectors could disagree with any expert evidence you call at the inquiry. Even in a case where the only issue is noise and even in a case where the expert says everything contrary to what the inspector says, our inspector is entitled to say "I disagree" and -- and this the point, my Lord -- our inspector is entitled to give you no reasons whatsoever for disagreeing.

My Lord, the context is planning system unlike normal civil litigation. In civil litigation you take a point, my Lord as you will know, you get a judgment -- maybe it is a negligence claim and that is the end of the matter subject to any appeal.

In a planning case it is a dynamic self-contained code. You lose a planning appeal. As a result of that you have a decision to make. Can you regroup and deal with the reason you lost the appeal or do you have to draw stumps and move on? It is a very different position. Planning permissions and planning appeals are part of the use of land control, part of land control use. Therefore, in my submission, is a proper point for the Court of Appeal to consider, because the effect of what we have is it is open to the Treasury Solicitor and its inspectors, through PINs, the Secretary of State himself when covering a decision, simply to say, based on your Lordship's judgment: "I disagree and I am not telling you why. These are my reasons why I think it is bad and I am not addressing this evidence, it may be expensive evidence that you have put in front of me". It is left then both to local authorities and to appellants and to say: well how are we going to solve this? Can we solve it? In this case, you know, there is a commercial premises here who will have to carry on operating or for that matter -- not that there is any instructions to do so -- to sell to someone but whoever looks at this has to say from a planning perspective: what is problem, can it be solved? What we do not know is what was wrong with our expert report if anything?

SIR MICHAEL HARRISON: I think you are going round the same point again.

MR LEIGH: I apologise my Lord, we say it is a good point for the reasons I have annunciated.

SIR MICHAEL HARRISON: Thank you very much, Mr Leigh. I am afraid I am not prepared to grant permission to appeal.

MR LEIGH: Thank you.

SIR MICHAEL HARRISON: Thank you.