Kansal v Secretary of State for Communities & Local Government

This is an appeal by Mr Yash Pal Kansal pursuant to Section 288 of the Town and Country Planning Act 1990.

The background circumstances are these. Kirklees Metropolitan Council, as the local planning authority, refused Mr Kansal's planning application on 12 November 2010 in respect of a proposed first storey addition to the side of 66 Ridgeway, Dalton, Huddersfield, a property where Mr Kansal lives together with his elderly and infirm mother. There may be others resident in the property; I am not aware of that, but it matters not for the purposes of this decision. As I have said, that was refused on 12 November and, as he was entitled to, Mr Kansal appealed that, and Mr Peter Willows was appointed by the Secretary of State as planning inspector for the purposes of that appeal. That appeal was dismissed on 18 February 2011.

Under Section 288 of the Town and Country Planning Act 1990, Mr Kansal had six weeks in which to issue an application to this court to appeal that decision and he issued that application in time. In his skeleton argument he has sought the permission of this court to appeal. He does not need that permission; he is entitled to appeal under Section 288 and today's hearing is the hearing of that appeal.

Having said that, I have described it as an appeal but it is not an appeal in the strict sense in that it is not a rehearing of the issues before the planning inspector. The appeal under Section 288 can be made by "any person aggrieved by any order who wishes to question the validity of that order on the grounds (i) that the order is not within the powers of the Act; or (ii) that any of the relevant requirements have not been complied with in relation to that order".

Mr Goatley, who appears for the Secretary of State, accepts of course that the question of whether an order falls within the powers of the Act does not simply mean whether it complies with the letter of the Act, but that it must also comply in general terms with issues which the Administrative Court is familiar with. That is, the decision-making process must be lawful in that it must be rational; it must take account of all material facts; it must not disregard material facts; it must give fair, balanced reasons and it must be plainly within the law which empowers and applies to the decision maiking process. To that extent the procedure raises issues similar to those regularly raised in the Administrative Court and is one of the reasons why this court has jurisdiction to deal with appeals under Section 288 of the Town and Country Planning Act 1990.

The grounds of Mr Kansal's appeal are set out in his application and he filed a skeleton argument stating that he wished to rely on his application and his Witness Statement, which he was plainly entitled to do. I have the planning decision in the bundle in front of me and I have his witness statement, and I also have the grounds set out in the Part 8 Claim Form. Those grounds have been distilled very helpfully, I consider, by Mr Goatley on behalf of the Defendant and analysed in the context of the skeleton argument which he has prepared for today. I will come back to those and approach the matter in that way shortly.

Before doing so, I propose to address a matter which Mr Kansal has raised on a number of occasions, both in the documents and in correspondence with this court and orally before me today. He complains that the Defendant, in fact both Defendants -- Kirklees Metropolitan Council as Second Defendant taking no active part in these proceedings -- are part of the "mammoth machinery" with public funds and that it is inequitable, he submits, for him as an individual in person to have to deal with this mammoth job. In particular, he objects to the filing, as he submits late, of the Defendant's skeleton. This is a Part 8 Claim for which there are no rules requiring the filing of skeletons at all. Nevertheless, there has plainly been correspondence (and I have seen it) between Mr Kansal and the Treasury Solicitor in which he has asked the Treasury Solicitor to serve the skeleton in good time to allow him to deal with the case.

By way of example only, I have in front of me Mr Kansal's e-mail of 24 August addressed to Priyesh Patel of the Treasury Solicitor's office, but also copied to the Administrative Court office in this building. He states:

As I pointed out to him, this is his case and it is for him to progress the case. However, it is right to point out that on 18 August Priyesh Patel of the Treasury Solicitors e-mailed Mr Kansal as follows:

In reply to that Mr Kansal complained that Mr Patel is a public servant, funded at extortionate cost to taxpayers while ironically acting as vanguard to public. He says, "I am a litigant in person, please do not ambush me like last time on the eleventh hour", and that I take to be reference to previous proceedings where he plainly received a skeleton argument late in the day.

It is right that on 24 August Mr Patel again advised that he would in fact file a skeleton argument. He said:

Mr Kansal complains that was not complied with and that is undoubtedly right. The Defendant's skeleton argument was received on 20 September, today being 23rd. Mr Kansal had plainly been out for the day at a seminar in Runcorn and he received it on his return home late on the evening of 20 September. That is plainly not seven days.

Mr Kansal submits that it is wholly unfair, indeed inequitable, to come across this mammoth job; that there is no Legal Aid for him as a pensioner, unemployed and carer for his mother; and that this is no access to justice. He submits that based on that I should either allow the appeal and remit it to the inspector or I should allow there to be new evidence and further facts.

The relevance of the submissions as to equality of arms in relation to the skeletons cannot go to the substance of the appeal. If a skeleton is late, that is not a ground for granting an appeal. It might be a ground for granting an adjournment. Mr Kansal requested an adjournment through the court office and that was put before me two days ago. I indicated then that I was not willing to grant an adjournment because there are no rules requiring skeletons to be lodged at a particular time, that there was time for the Claimant to respond in any event , and that this is his case and his case to progress.

There are circumstances where notwithstanding rules, if a party is taken by surprise by the contents of a complex document, then that is a matter a court will consider in considering whether there ought to be an adjournment. It can never mean that there will be a successful appeal. That is not the issue. The issue is whether a party has had the opportunity to consider and deal with points which are being raised. These are of course Defence points, not Claimant's points, and that is a relevant factor, but far more relevant, in my judgment, is that there is nothing raised in the skeleton which Mr Kansal tells me he has not been able to deal with. If there were new matters, matters that he could not possibly have foreseen, matters that required, for example, him to raise new evidence or matters of that sort -- and by that I mean new evidence in relation to the original decision, not evidence which was not before the inspector -- then the position might be different and one would be extremely concerned if a litigant in person was met with a document which raised matters he could not fairly and properly deal with.

I am not satisfied that is the position here and although it is regrettable that the Treasury Solicitor did not comply with their own offer, effectively volunteering a skeleton seven days before, I am not satisfied that there is any prejudice as a result of the skeleton being served rather nearer to the hearing than seven days. Indeed, Mr Kansal has arrived at court today with a substantial typed document in response, running to 13 pages, and I am not satisfied, therefore, he has in fact been prejudiced in any way.

The mere fact that he is a litigant in person against, as he puts it, "the mammoth machinery of the State" is not the issue in this case. It is not uncommon for these courts, as I explained to him, to deal with litigants in person. It is my job as the Judge, to ensure the litigant in person understands the proceedings and has the opportunity to put everything before me that he wants to do and I am satisfied that Mr Kansal has had that opportunity.

I turn, therefore, now to the substance of the appeal. I have explained to Mr Kansal that the purpose of this hearing is not, as I have already said, a re-hearing of the points in front of the inspector. In order to challenge the decision, he has to bring himself within Section 288 of the Town and Country Planning Act. Much of what he complains of goes to the merits of the decision and those are matters which this court cannot and will not reopen.

His first principal ground on which he challenges the decision is, he says, that there was no material evidence to support the inspector's assertion that there was a conflict with residential amenity policies in BE14 and D2 of the Kirklees Unitary Development Plan. The inspector in his decision identified the main issue in the appeal before him as being the effect of the development on living conditions at the neighbouring property, 68 Ridgeway. The inspector sets out fully in the decision his reasons for concluding that the proposal would cause significant harm to living conditions at the neighbouring property and in particular he deals with the height of the structure, its proximity to the adjoining property and in particular to the door giving access to and egress from that property.

It is right to say that part of Mr Kansal's complaint is that he says the inspector has reached a factual conclusion which is wrong, namely that the extension would be built to the boundary. In fact, in the inspector's decision he says having been to the property and inspected it, he recognizes there are inconsistencies in the plan. His view is that the extension probably will be up to the boundary but, even if it is not, and assuming that it is in fact two metres from the boundary, as is suggested by Mr Kansal, he nevertheless reaches the same decision. Therefore it is wrong to say that that was based on a factual error because the inspector has reached the same decision based on either version of those facts.

So far as the failure to consider the plans, the residential amenity issues in policies B14 and D2 of the Kirklees Unitary Development plan, in essence Mr Kansal's complaint is that he does not agree with the decision that the inspector has reached. The inspector sets out the plan or the relevant policies and he deals with those or responds to them and has plainly taken them into account. The policy BE14 of Kirklees Unitary Development Plan is a permissive policy, generally favouring development in the circumstances specified, subject to this proviso:

Similarly, policy D2 of the UDP is another permissive policy, generally allowing for planning permission to be granted provided the proposals do not prejudice a number of listed matters, nine in total, of which number five is residential amenity. Again, the inspector explained precisely why he was of the view that residential amenity was prejudiced by the proposal. Therefore, the inspector concluded that he shared the council's view that the extension proposed would be overbearing in relation to No 68 and he adds that "a structure of this size so close to the adjacent building would create an oppressive relationship with it".

That, in my judgment, is plainly a finding that falls within the planning judgment of the inspector. It cannot be said that it has been reached in an illegally irrational way. It is plainly within the scope of his discretion and there is in my judgment nothing that this court should, or could properly interfere with.

The second ground is that the Second Defendant, Kirklees Metropolitan Council, has approved other development which extends up to the site of the boundary. That is a point which was made to the inspector and which the inspector dealt with. Firstly, it was a generalized allegation made to the inspector who says, "I have no evidence to support that claim which limits the weight I give to it." But in any event, as Mr Goatley submitted, planning decisions are not the subject of a doctrine of precedent. Each planning decision has to be considered on its own merits. Having said that, there is of course the desirability of consistency in administrative decision making and an inspector making a planning decision is still not obliged to follow a previous decision, but he would plainly have to give an adequate and reasoned judgment. In the course of making those submissions, Mr Goatley pointed out that it might be the case that two inspectors within the ambit of their discretion reached different decisions and that is plainly right.

Mr Kansal responded to that in the course of his response to me and said that if that is right and another inspector could have reached a different decision, if somebody different had been appointed to consider this appeal, then that of itself leads to inconsistency and provides him with a ground for saying the decision should be reviewed.

That, I regret, cannot be right. If that were right, every decision made by any planning inspector would be open to review on the grounds that another inspector might have reached a different decision. There is no right of appeal, save for the purposes of Section 288, and the decision of the planning inspector is final unless a challenge falls within Section 288. The fact that another inspector might have made a different decision does not lead to inconsistency and if Mr Kansal's argument was followed through to its logical conclusion, he could claim inconsistency on every occasion until such time as a planning inspector gave the decision that he wants. At that point, if you follow it through logically, it would be open to the planning authority to then challenge it and say that is inconsistent; it is not the decision we want. There would never be finality. The fact that different inspectors might reach different decisions within the ambit of their proper discretion is not evidence of inconsistency such that a decision should be reviewed.

Those are the principal grounds set out in the grounds put forward by Mr Kansal. In addition, in the course of his grounds he refers to Article 25, as he says, of the European Human Rights Act and also Article 27. There are, of course, no such articles in the Human Rights Act and it is plain from the further development of the documents that he in fact refers to Articles 25 and 17 of the United Nations Universal Declaration of Human Rights of 1948. Mr Goatley in his skeleton points out, quite rightly, that was not incorporated into UK law and, therefore, no domestic law can be infringed and there can be no claim in reliance on the Universal Declaration of Human Rights.

In his skeleton response to that before me today, the Claimant describes that response as preposterous and he says it cannot claim this because of “.. the UK's government's instigation to UHDR universally after the Second World War”. As I said in the course of submissions, the fact that the British government was a signatory to the United Nations Universal Declaration of Human Rights did not make that declaration part of UK domestic law. The purpose of the signatories of the governments to that document was to concede that if a matter was petitioned from a domestic court, (whether from England or another signatory), to the European Court, then in the jurisprudence of the European Court it would apply and consider that declaration of human rights as signed by the relevant countries. It did not form and has never formed part of UK domestic law.

What does form part of UK domestic law are the rights set out in the European Convention on Human Rights, which were incorporated in their article forms in a schedule to the Human Rights Act which is domestic law. None of those rights is engaged or relied on in the context of this appeal and there is, therefore, no valid claim for a breach of human rights issues.

I should deal finally with the issue of other and previous proceedings. Mr Kansal has brought previous proceedings to this court under Section 289 of the Town and Country Planning Act relating to a wholly different planning decision and an enforcement decision. He complains that those proceedings are referred to by Mr Goatley in his skeleton and he asserts that is done with a view in effect to prejudicing these proceedings in some way. He further, in his oral submissions before me, suggested that the council now has a vendetta against him because of the earlier planning decisions.

I reject the submission that this was designed in any way to prejudice the court and in any event it would not do so. The reason this decision has been referred to, and referred to quite deliberately in a separate part of the skeleton, is because at the time the proceedings were issued Kirklees Council, the Second Defendant, believed that the challenge was to the same decision as previously and it was therefore an abuse of process. They were wrong about that. But because of the opportunity for that to have created confusion, the Secretary of State through counsel thought it right to make it clear that was separate, distinct and indeed of no relevance. It was simply included to assist the court and avoid any confusion. In any event, as I have made clear, whatever the outcome of those proceedings they would not have impacted at all on my decision in this case. I am obliged to make my decision based on this case in isolation and to disregard any other cases which might be going on between this Claimant and the planning authority or indeed the Secretary of State and I do so.

In all of the circumstances, there is in my view no merit at all in this appeal. There is one further point which has been raised today for the first time and that is in the Claimant's skeleton in response. He has suggested that the inspector failed to take into account his mother's progressive illness and deteriorating medical conditions and he sets out her condition on page 9 of the skeleton as comprising multiple strokes in 2001, recent onset of diabetes, chronic obstructive pulmonary disease, asthma, incontinence, failing heart with high blood pressure, arthritis, spondylitis, obesity and dementia. Those, he states, are important material facts, such that she requires access to the sun lounge for her recuperation and rehabilitation needs as part of her deteriorating health.

No complaint has ever been made that the inspector failed to consider those matters before this response today. Furthermore, there is no reference to that in the inspector's decision and Mr Goatley tells me, and it is not challenged by Mr Kansal, that it was not put before the inspector on the basis of health needs. When I say not challenged by Mr Kansal, I put it that way because Mr Kansal said to me "the inspector never asked me questions about my mother's health and it is not fair, I have not been able to put this in in evidence".

The point is that this was Mr Kansal's planning application; it was Mr Kansal's appeal. It is not for an inspector to go looking for evidence. He considers the case which is put to him. He does not have to look at every planning application and establish whether there might be other grounds that have not been put in front of him, although if he had been put on notice of something specific, then that might have imposed on him a duty to enquire further. But there is no dispute that the inspector was not aware of the medical conditions and although Mr Kansal submitted to me that the matter should now be remitted to the inspector in order to consider that new evidence, that is not the purpose of these appeals. The purpose of this appeal is to establish whether the decision at the time it was made was lawful or whether it is subject to challenge. A decision cannot subsequently be challenged on the basis of failing to take into account matters which were not before the decision maker and could not properly, therefore, have formed part of the decision making process.

There is one other matter to mention, although I have dealt with the issue with the lateness of the skeleton. In the course of his response to the Defendant's skeleton argument, Mr Kansal has referred to a decision of Collins J in the case of Voval v Secretary of State for Communities and Local Government, dealing with skeletons and the need to advance evidence and matters of that sort. Mr Goatley has pointed out that that had been overruled by the Court of Appeal -- the reference being [2009] EWCA Civ at 171 -- on the basis that it was not for Collins J to make rules as to how these cases should be dealt with and that if there is a lacuna in the rules as to the progress of these appeals through this court, then that is a matter for the Rules Committee and not a matter for legislation and in fact by judges.

For all of those reasons I am satisfied that there is no merit at all in this appeal and the appeal is dismissed.

The Secretary of State has applied for its costs and they are opposed by Mr Kansal on the basis that he is a pensioner, he cannot afford to pay the costs and that there should be no costs because this is a matter brought against the State.

The State, of course, has an obligation to recover costs where appropriate precisely because it is spending taxpayer's money and the same of course applies for a local authority. The mere fact that somebody is bringing action against the State is not a grounds for saying there should be no order for costs; nor regrettably is the fact that Mr Kansal is a pensioner and cannot afford to pay it. The general rule is that the successful party is entitled to their costs and there is no reason on the information before me to rebut the normal rule.

Accordingly, I order that the Claimant will pay the Secretary of State's costs and I am asked to assess those. I have before me a statement of costs for summary assessment with a total figure of £5,173. I have already said that Mr Kansal has stated he cannot afford it. He asked for a period of eight weeks in which to consider and take advice on these costs. I am not willing to grant that. The whole purpose is that there should a summary assessment today with a view to minimizing further costs or the need for further hearings or further involvement of judicial time.

I have looked very carefully at the number of hours in the schedule, and the points that somebody would make on Mr Kansal’s behalf if they were to seek to challenge this. The bulk of the hours are carried out by a fee earner at the rate of £160 an hour, which is plainly a very reasonable rate in cases of this sort. The total number of hours is entirely reasonable. It is plain that the bulk of the hours are on attendance on counsel and that counsel has drafted much of the paperwork and, of course, appeared at this hearing, but that does not seem to me to be in any way unreasonable given the technicalities involved and given the nature of the allegations being made by Mr Kansal against the Secretary of State. Plainly there were a number of matters which had to be considered.

In all of the circumstances, I am satisfied that the sum claimed is a proper and reasonable sum and accordingly I assess costs in the sum claimed of £5,173.

So I am afraid I have ordered you to pay those costs. Thank you both very much.