Shepherd, R (on the application of) v Secretary of State for Communities and Local Government

JUDGE SEYS LLEWELLYN: This is the substantive hearing of a claim for review of a decision on costs by the planning inspector by a letter dated 7 January 2011. The claimant contends that the decision in that letter not to award costs to the claimant was flawed.

The background is this, (and I do not go into detail between Mr Shepherd and his employers, a company who appear to have worked the site by tipping operations). The claimant carried out tipping operations on a site in Darlington. On 25 August 2009 the local authority issued and served an enforcement notice upon the claimant requiring cessation of all tipping. The claimant appealed by application on 25 September 2009. In fact a third party was claiming to be the owner and occupier of the site, whilst the claimant contended that it was entitled to use the site for tipping by agreement with the true owner. On 7 July 2010, the local authority issued a planning permission to that third party, subject to conditions, to carry out tipping on the site. On 19 July 2010, the local authority withdrew the enforcement notice, thereby the appeal came to a conclusion.

The claimant made application to the inspector on 13 August 2010 for costs to be awarded against the local authority. On 7 January 2011, by decision letter, as I have said, the inspector decided that she would make no award for costs against the local authority. It is the Secretary of State for Communities and Local Government which is responsible for the inspector -- and thus it is a defendant to the claim -- Darlington Borough Council, who were a highly interested party in the light of the summons, which, I have been informed, were served as an interested party in these proceedings. I was told that the sums of costs which the claimant had invested in that appeal, and which it contends were simply wasted by the enforcement notice and later withdrawn with the capsizing of the appeal, were some £30,000. Originally, the claim for judicial review was made by Mr Shepherd himself on what I would describe as home-made grounds. Judicial review permission was refused on the papers but on renewed oral hearing permission was granted on one point only out of two, which had been fashioned afresh by counsel who appears for the claimant today, Mr Buttler. He had, I think, on that occasion been instructed on very short notice. He managed to get a skeleton to the court in time for the hearing before the court but on that occasion neither the defendant nor the interested party were present.

The representation today on the substantive hearing is that Mr Buttler represents the claimant and Mr Lewis represents the Secretary of State, the defendant. I make no criticism of, and I simply record, the fact that this is a rerun of the late instruction. My understanding is that Mr Buttler was reinstructed late yesterday afternoon and, therefore, I do not have a bundle to which I can make reference by page references, none having been implemented, but there is a helpful speaking note from Mr Buttler.

I ought to record that the enforcement notice in question is unequivocal in its requirement of cessation of use. At one point it referred to the operation of the use of having "a serious detrimental effect on the amenity of nearby residents through the uncontrolled production of noise, dust and fumes," but later, in its reasons for issuing the notice, it stated this, "The council has been unable to negotiate a cessation of the uses," (emphasis supplied) and, in what was required of the recipient to do, at (f), it included “reinstate the land to its condition immediately before the above breaches of planning control took place”. In other words, there was not a hint in the reasons that the local authority wished or contemplated the possible grant of planning permission subject to conditions.

The nub of the case is this. By the Costs Circular which deals with such appeals, at Article A12, it is provided that costs will normally be awarded where the party against whom the award is sought has acted unreasonably. The decision letter at paragraph 14 stated this:

Not so, says the claimant. Firstly, the enforcement notice had been unequivocal in requiring total cessation of working. Nowhere did the enforcement notice indicate to the claimant that permission might be considered on a conditional basis. Further, the claimant was asserting an entitlement to tip without conditions restricting the use of the site, on the basis that it had been in occupation and using the site for these purposes for in excess of 10 years - in other words, pursuant to the provisions of section 174(2)(d) of the 1990 Act and the limitation provisions in section 171B.

Counsel for the claimant contends that a grant such as this to the third party, conditional planning permission, did not resolve the matter, in that the claimant continued to assert entitlement to tip without conditions, and indeed it is worthy of note that the conditions imposed on grant of planning permission to the third party were onerous. There were two grounds pursued in the grounds developed, not as in the claim form but with the ability and industry of Mr Buttler before the deputy judge, Mr Ockleton, and on which permission was granted. I will were return to that in a moment.

The framework for costs is, firstly, that all turns, as I said, as to whether the party against whom the award is sought has acted unreasonably; and then this, within the Costs Circular at A22:

To divert for a moment, in PPG18 the claimant relied before me, and had relied before Mr Ockelton when securing permission for substantive hearing, on paragraph 9 of PPG18 which states this:

As I have said, there were two grounds relied upon in front of the judge who granted permission for judicial review. The first of which was this. Having referred to the provisions PPG18 paragraph 9, which I have just read, the first ground was failure to have regard to PPG18 and, in terms, in Mr Buttler's then skeleton:

I return to the provisions of the Costs Circular. At B35:

It is, following an enquiry of mine, in my view plain that B41 requires the decision maker on costs to make his own assessment in the general mix of considerations as to decision on costs, as well as to whether there has been any material change in circumstances, and it is plainly not simply a matter of review of the local authority's opinion or conclusion on that matter.

That is the framework. The decision letter, in its introductory parts, correctly identified the considerations as to costs. Very helpfully in his speaking note, Mr Buttler records this:

Perhaps I can clear the decks by reference to one other matter. In the detailed grounds of defence served by the defendant, once it became apparent that there had been different grounds advanced by counsel and that permission had been granted, or, if they are not different grounds, they for the first time ever identified what the grounds were from the homemade grounds, the defendant drew attention to the provisions of section 187A of the 1990 Act:

It is part of the contentions of the defendant that, since the planning permission is planning permission in respect of the land, and is not peculiar to the individual, it bites upon the land and, therefore, it bites upon this claimant. In reply, counsel for the claimant says that, until a planning permission is implemented, it is trite but it does not bite on anyone, and that one may, as an applicant, secure a large number of grants on different occasions and for different purposes of different planning permissions without necessarily implementing them. He concedes that, if there were a third party with control of the land who had implemented the planning permission, the situation might be different.

So one returns to the nub of this matter. The claimant says it was for the author of the decision letter to make the decision whether there had been a change of circumstances, an act of taking consideration of whether there had. I need to read the next words carefully, as I took them down from counsel for the claimant: he does not say that the decision maker needed to decide whether planning permission had been implemented, but he does say that the decision maker needed to decide whether the council was right when it asserted that grant of planning permission resolved the situation at the site. It is a distinction, albeit a pretty close one. The decision, it is contended, must be flawed in general terms because the decision maker, in the terms of “failure to grapple”, had failed to grapple with the distinction between the use contended for in the appeal -- I interpose, unlimited and not subject to conditions -- and the use for which permission was granted -- I interpose, one subject to a number of onerous conditions.

In answer, the defendant contends this: first, that this was a decision on costs and that the role of this court is supervisory, not one to substitute its own decision for that of the decision maker. It seems to me that that contention is well founded and it is right that there is a discretion in the awarding of costs, so long as the decision maker directs himself appropriately to the considerations in the Costs Circular and the material factual considerations. At one point, counsel for the claimant momentarily asserted, or contended by the words used, that planning authorities will suffer an award of costs against them unless a material change of circumstances is shown, but it was a momentary use of words and I remind myself that the guidance is rather, that planning authorities are “likely to be at risk of” an award of costs if they feel compelled to withdraw an enforcement notice after an appeal has been made. There is not a direction that there will be such an award of costs. In directing herself appropriately as to the tests, the decision maker was entitled to say at paragraph 4 of the letter:

Next, counsel for the defendant said that there had not been identified any contention that there was an inadequacy of reasons. This is common ground between the parties. The claimant does not contend for inadequacy of reasons.

Thirdly, the defendant contended that the effect of the claimant's contentions led logically to a conclusion that an appellant not merely had the right to make an appeal asserting the grounds of entitlement to use a site in circumstances such as these, but, on withdrawal of the enforcement notice, nonetheless had the right to the appeal being decided on the question of fact with findings by the inspector. In my respectful judgment, counsel for the claimant was right to contend that that is not an inevitable corollary of his contentions: his contentions are confined to whether or not the decision on costs was flawed.

Next, in reply, counsel for the defendant, and it may be the fourth point of principle that I am addressing, said that there was a misunderstanding of the structure and practical necessities in this field, that an enforcement notice needs to specify with precision what is required and that a planning authority is required, when serving an enforcement notice, to include the possibility of defined grounds, or perhaps undefined grounds, being ones which they would entertain as conditions which might justify the grant of planning permission. Insofar as counsel for the defendant asserts that that which is required by way of compliance on the part of the recipient of the notice is what is required to be served them, the contention is well founded, so far as that goes. However, in the background to this case, it is part of the planning guidance at PPG18 of paragraph 9, as I have said, not that the grounds of action or cessation of action required should be in any way uncertain, but that -- and I turn to the wording again -- that ‘the reasons which are stated for issuing the notice should put the owner or occupier on clear notice if a condition of grant of permission may effectively remedy it’. Therefore, that fourth response does not seem to me a sufficient one.

His fifth point is that the context which was put to the inspector is an important one, and the context of the individual circumstances in this case. At paragraph 10 of the decision letter, the inspector recorded the respective contentions of claimant and counsel. As to the claimant, he stated that no further planning permission was necessary, et cetera. However, the council stated that the inspector had noted that consideration of the planning application by the third party alone for expedition in resolution of the issues, and that the site had been secured by this (Inaudible) and in particular the Inspector said this:

It may be that the claimant's submissions go as far as to say that it was incumbent on the inspector to make a finding one way or the other on these respective contentions. That is on the basis that, if it was uncertain whether the claimant was, or might be, entitled in any event and free of conditions to continue to use the site for tipping by reason of over 10 years' established use, then unless it were shown that some other party were in control of the site, or an implemented planning permission, there was an absence of material on which the inspector could decide whether or not there had been a material change of circumstances. That response, it seems to me, does not meet the whole thrust of the defendant's point. This is a case where application for permission for judicial review based on failure to pay heed to PPG18 was refused. The background here included, as is apparent from the material put before this court, as documents appended to a witness statement from the interested party show, that (the enforcement notice being of August 2009) the local authority had been writing on 13 May 2009 to the claimant in these terms:

Next, I look to whether the matter is altered by the fact that, contrary to what the council were contending to the inspector, it was uncontested that the claimant did not have control of the site at the time of the enquiry and at the time of the planning application, or when the enforcement register was withdrawn. Counsel for the claimant draws my attention to the report of the planning committee of June 2010, which refers to the current operator and activities at the site as being the claimant.

However, it does seem to me that the consideration here as to withdrawal of an enforcement notice were signally and obviously very different. Short of an application for a certificate of lawful use, or any indication that there might have been interest in submitting to conditions, it seems to me that, at least on the stance of the council, they had little option, where they had formed the view that they did, but to issue the enforcement notice. What the inspector was required to look at was, in a broad sense, looking at the whole of the materials before her, whether the defendant was acting unreasonably. I have indicated that it is accepted by counsel for the claimant that it was not necessary for that costs decision maker to decide whether planning permission had been implemented.

It is, further, of some interest to me that, at the end of paragraph 12, having dealt with the respective contentions and, as counsel for the claimant emphasised, the respective contentions between the claimant and the third party as to who was entitled or not entitled to be on this site at all, the Inspector said:

Is this a decision in which an error of public law is demonstrated? In his reply, counsel for the claimant gave for the first time a label. I accept entirely that the courts are not hide bound by categories or labels in this field, and rightly so in the modern age; so there is no criticism of his prior generalist approach. He put it as, if a label is required, the need to do what Lord Diplock set out as required in Tameside, that the decision maker must turn his mind, or in this case her mind, to the relevant question and assemble the necessary material to answer it.

This remained a broad canvas exercise on the part of the decision maker. In my view, she was entitled to take the view that she did and it is not shown that it was irrational for her to form the view, and for that the council have not acted unreasonably in the circumstances. That, in my view, is reinforced by the fact that permission for judicial review had been refused and is not reopened in respect of PPG18.

That is the conclusion which I have reached and it follows that the claim is dismissed.

MR LEWIS: My Lord, I am grateful for that. There is an application for costs by the Secretary of State. Does the court have a copy of the schedule? If not, I have a spare.

JUDGE SEYS LLEWELLYN: I know I do, but can I just identify which of the two schedules before me is which.

MR LEWIS: Indeed, my Lord, yes, because it is not immediately clear from the headline to that summary assessment sheet.

JUDGE SEYS LLEWELLYN: Tell me which yours is. What is the total?

MR LEWIS: The total in ours is £7,760, my Lord.

JUDGE SEYS LLEWELLYN: I do have that one.

MR LEWIS: If I address the principle of costs first, my Lord, I say costs should follow the event in the ordinary way. If I need to make further submissions on quantum, I will do so, of course.

JUDGE SEYS LLEWELLYN: Thank you.

MR BUTTLER: I don't think I can resist the principle of costs. I am without instructions as to the reasonableness of the sum sought. This was given to me at 2.00. I do, however, make some observations about it, which are that I cannot properly make objection to the fees sought in respect of counsel, but there are a number of heads which appear to be surprisingly high given the sparse documents in this case and the relative straightforwardness of it. I appreciate that my learned friend has put in quite a lot of work on the summary grounds, detailed grounds, in preparation for today's hearing, and that is why I say his fees are uncontentious.

JUDGE SEYS LLEWELLYN: I should say so.

MR LEWIS: But, working from the beginning, attendances on client 3.1 hours by the solicitors, attendances on counsel three hours by the solicitors, attendance on opponents 1.9 hours, and attendances on others 8.8 hours, one is left, I confess, scratching one's head as to what work the solicitors need to do. Then overleaf, work done on documents, 11 hours done by the solicitors. Well, I have not seen any documents produced by the defendant solicitors. It may be that internal advice needs to be produced, but no doubt Mr Lewis has had some involvement in that. I do not object to attendance at hearing and, as I have said, I do not object to counsel's fees.

JUDGE SEYS LLEWELLYN: Mr Lewis I need not trouble you with attendances on the client, counsel or opponents. Attendances on others or on documents?

MR LEWIS: Indeed. Attendances on others, my Lord, would be, in the main, dealings with the local authority in this matter. There would have been in that case, my Lord, because of the need to engage actively with the council and what it said in response to the grounds and of course to ensure a proper degree of consistency in the understanding of the factual position, there were telecoms, there were letters. My Lord, I understand there were several teleconferences between the Treasury Solicitor and the council's solicitors, and that that, in conjunction with emails in support of the position and discussing various documents, did lead, I am told, to 8.8 hours of work by --

JUDGE SEYS LLEWELLYN: Why was there a need for several telephone conferences?

MR LEWIS: The solicitor in court today was not the solicitor working on the case so I suspect it might be of limited assistance, but I will check.

I am reminded, my Lord, that attendances on others would also include, in addition to attendance on counsel, attendances on the court itself. There was quite a lot of correspondence and telephone calls that were needed here because of what happened at the permission hearing, my Lord, in that there was a late attendance by counsel, as we saw it. We were unable to attend and there was then a real lack of clarity as to the papers that had been filed and served in this case because the claimant has not been consistently represented professionally throughout. So I am reminded, my Lord, that, in addition to the time spent dealing with the local authority, there was some considerable time spent in this matter on ascertaining with the court office what it was that was before the court, before your Lordship, and indeed what happened at that permission hearing, which we say caused us some prejudice.

Beyond that, my Lord, I am unable to break it down further, I am afraid. It would be those two main elements.

JUDGE SEYS LLEWELLYN: Documents? 11.3 hours?

MR LEWIS: Yes, my Lord.

JUDGE SEYS LLEWELLYN: Or 14?

MR LEWIS: Indeed, the main component there, the 11.3, my Lord, it is the standard practice of the Treasury Solicitor that, in all the claims of the judicial review and similar statutory reviews, a minute of advice is prepared for the planning inspector by the Treasury Solicitor in the first instance assessing the merits of the claim. That is early on in the litigation before the counsel is instructed. So, analysing the claim form, analysing the grounds, providing a briefing for the planning inspectorate as to the merits of the claim, that is the main, and indeed the substantial, part of the 11.3 hours claimed there. The remainder of that work done, my Lord, would be preparing bundles for me, preparing instructions for me as counsel, and any other work that would need to have been done in preparation for the hearing in terms of internal bundles and so on, but it would be, in the main, that document known as the minute of advice.

JUDGE SEYS LLEWELLYN: Yes. Well, thank you very much, both of you.

The question is what it is reasonable that the paying party should pay. You satisfy me in respect of all other matters, but I think attendances on others ought to be restricted to -- I will make it half of that, if you put it into your calculators and tell me the answer.

MR LEWIS: Forgive me, my Lord, it is half that sum, is it?

JUDGE SEYS LLEWELLYN: In other words rather 0.1 hours, that is a telephone call; 0.9 hours -- it is half of 8.8, or, broadly speaking, take off 4.4 hours at £180. That would do justice.

MR LEWIS: Take off 4.4 hours and, my Lord, I will just do the calculation on that. So that leaves, that would put the first entry at £20, and then -- I will just check.

JUDGE SEYS LLEWELLYN: I know it is take away £792 plus VAT, I was just hoping you would tell me what that was?

MR LEWIS: Forgive me, my Lord. So I should take away 7 -- forgive me.

JUDGE SEYS LLEWELLYN: I have not got a calculator but 4.4 hours times 180, my classroom memory is four 18s are 72. So 4.4 times is 792, is it not? Then you can tell me what the sum is when we have done our VAT calculation.

MR LEWIS: Yes, so that is 792 --

JUDGE SEYS LLEWELLYN: Unless I am going mad, it is £940 off, is it not?

MR LEWIS: My Lord, the work done, entry B, if we put that at 4.4 times 180, 792. That therefore is a reduction, as I make it at £1,242 from £2,034.

JUDGE SEYS LLEWELLYN: Is there not a VAT figure?

MR LEWIS: No, we don't claim VAT.

JUDGE SEYS LLEWELLYN: So it is simply £792, is it not?

MR LEWIS: 792. Did my Lord also say he wanted to reduce -- No, so it is £1,242 -- so 7,760 minus 1,242. £6,518 is my calculation, my Lord.

JUDGE SEYS LLEWELLYN: Is it? Well, my classroom skills may be letting me down but 7,760 less 792 appears to me to be £6,968.

MR LEWIS: My Lord, forgive me. I was working on the basis that if 4.4 times 180 is 792, then we need to work out the reduction from to 2,000 to 792.

JUDGE SEYS LLEWELLYN: At the end of the day, you presently asked for 7,768, and there is 792 coming off.

MR LEWIS: My Lord, I may have misunderstood. Did my Lord say he was shaving 4.4 off?

JUDGE SEYS LLEWELLYN: 4.4 hours off.

MR LEWIS: Forgive me. I was working on the basis had my Lord was ordering that there be 4.4 hours instead of the 11.3. Forgive me.

JUDGE SEYS LLEWELLYN: At any rate, if I have led you astray, then my apologies, but from somewhere -- £7,968.

MR BUTTLER: £6,968.

JUDGE SEYS LLEWELLYN: Yes, £6,968.

MR LEWIS: I am grateful. Sorry for the confusion, my Lord.

JUDGE SEYS LLEWELLYN: No.

MR BUTTLER: My Lord, I ask with some trepidation, I simply ask to protect my client's position in case they want to appeal.

JUDGE SEYS LLEWELLYN: Yes.

MR BUTTLER: I do not think I can advance matters very much further than to repeat what I have already said.

JUDGE SEYS LLEWELLYN: Yes.

MR BUTTLER: I cannot say that there is any point of great principle but rather there is a real prospect of persuading a different court.

JUDGE SEYS LLEWELLYN: It is a costs matter, and I think the prospects of appeal are slim.

MR BUTTLER: Thank you very much.

JUDGE SEYS LLEWELLYN: Which does not detract from the great assistance I have had from both counsel.