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

MR JUSTICE HOLGATE: Introduction

The Appellant, Kestrel Hydro, appeals under Section 289 of the Town and Country Planning Act 1990 against the decision of the Defendant's Inspector given by a decision letter dated 14 October 2014 whereby he dismissed the Appellant's appeal under Section 174 of the 1990 Act against an enforcement notice issued by the Second Defendant, Spelthorne Borough Council on 28 August 2013. The appeal is brought with the leave of Singh J granted on 4 December 2014.

The notice related to a property known as Kestrel, Horton Road, Stanwell Moor, Staines upon Thames. The site contains some long standing structures which the notice did not require to be removed. They were a bungalow, stable block, pool and garden shed. They all had a lawful use for residential purposes. The enforcement notice related to a single planning unit comprising the bungalow, other structures and adjoining land which in total occupied about 0.3 hectares, or nearly 0.75 acres.

The Appellant says in its skeleton before the court that it has used the premises for mixed purposes, partly residential but partly, if not mainly, as a Private Members' Club for adults engaging in naturist pursuits and sexual activities. In paragraph 2 of his decision letter, the Inspector recorded that the owner of the club, Mr Tattersall, confirmed that the mixed residential and club use began in January 2005. The club is operated by the Appellant as a business. Paragraph 6 of the Appellant's skeleton confirms also that since the inception of the mixed use, "a number of structures and facilities have been erected in the grounds of Kestrel in connection with both the naturist spa and residential use". In fact these additional structures were central to many of the issues in the Enforcement Notice appeal.

It is common ground that the site lies within the Metropolitan Green Belt and in an area which is neither wholly residential nor open countryside. It lies within sight of Heathrow Terminal 5. The company's case was that it is an ideal and sustainable location for a facility of this sort which has been carried on successfully over the last nine years.

Schedule 2 of the Enforcement Notice described the breach of planning control as:

Schedule 3 of the Enforcement Notice described the reasons for the issue of the Notice:

Schedule 4 of the Enforcement Notice described the steps required to be taken:

Paragraph 40 of the Inspector's decision letter varied the Notice so that the requirement to cease the current use of the site now simply reads: "Cease the use of the site as an Adult Private Member's Club". Secondly, the Inspector varied Schedule 4 of the Enforcement Notice by substituting a period of 12 months as the period within which the requirements of the Notice must be satisfied.

Paragraph 2 of the decision letter referred to an "Inquiry Plan" which identified ten structures as the items of operational development required to be removed:

Item 1: Marquee containing a timber shed.

Item 2: Shed.

Item 3: Hardstanding.

Item 4: Four timber cabins.

Item 5: Covered walkway extending from the house and running past the swimming pool and the northern garden area down to the stable building which serves as a large clubhouse.

Item 6: Three glass reinforced plastic ("GRP") sheds.

Item 7: Wooden building.

Item 8: Two GRP sheds.

Item 9: Summerhouse-type structure used as relaxing rooms post sauna.

Item 10: Timber building used as tearoom for club.

Planning policy:

Green Belt policy is contained within the National Planning Policy Framework ("NPPF"). The local development plan policies were broadly consistent with the NPPF. The Inspector succinctly summarised relevant policies in a way which is not challenged in these proceedings:

The reference to "the courts" in that last sentence is to the decision in Timmins v Gedling Borough Council [2014] EWHC 654 (Admin), a decision which has subsequently been upheld by the Court of Appeal.

Paragraph 87 of the NPPF reads:

Paragraph 89 of the NPPF provides that:

It then provides for a list of exceptions. Paragraph 23 of the decision letter, records that the structures referred to as items numbered 1 to 10 on the inquiry plan constituted inappropriate development for the purposes of Green Belt policy. Paragraph 88 of the NPPF reads:

Grounds of appeal before the Inspector:

The first ground of appeal was pursued under Section 174(1)(d) of the 1990 Act. It was contended that certain of the structures I have identified, namely items 1, 3, and 5 to 10 should be treated as immune from enforcement action and therefore removed from the ambit of the Enforcement Notice. The Inspector rejected that ground. The second ground of appeal was raised under Section 174(1)(a). Having determined the proper ambit of the Enforcement Notice, it was contended that planning permission should be granted for the development to which it related. In practice this meant that the Appellant was seeking planning permission for the future for the continuation of the mixed use as a private members' club and residential use as well as the retention of the structures referred to as items 1 to 10. The Inspector rejected that part of the appeal and that is the subject of grounds 2 and 3 in the challenge before this court.

The next ground of appeal was brought under Section 174(1)(g). As I have mentioned already, the period allowed for compliance with the requirement of the Notice was said to be unreasonably short, the Inspector agreed and he increased that period to 12 months. No challenge is brought to that decision.

Lastly, under Section 174(1)(f), it was said by the Appellant that the steps required by the Notice to be taken exceeded that necessary to remedy any breach of planning control in the Enforcement Notice. This ground arose once the ground (d) and ground (a) appeal had been considered by the Inspector and in this instance rejected.

In paragraph 37 of the decision letter, the Inspector said in relation to this ground of appeal:

This has given rise to ground 1 of the challenge which has occupied most of the time taken in argument. In order to put that aspect into context, it is necessary to consider first how the Inspector dealt with the ground (d) appeal, with which ground it was closely connected in this case. Indeed, it is difficult to follow why the appellant has not sought to challenge the decision under ground (d). If the argument under ground (f) were to succeed it would seem to apply just as much to ground (d) as to ground (f).

The ground (d) appeal:

The Inspector dealt with this ground in paragraphs 1 to 21 of the decision letter. The issue raised by Section 174(2)(d) of the 1990 Act is whether "at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control" identified in the notice. Section 171B defines the generally applicable time limits at the expiration of which enforcement action may not longer be taken. In the case of the change of use in the present case the time limit was ten years (see section 171B(3). In the case of the erection of the structures numbered 1 to 10, the time limit was four years from the date upon which each item of operational development was substantially completed (see Section 171B(1)).

In paragraph 2 of his decision letter, the Inspector recorded that the Appellant did not contend that the change of use from residential to the mixed use of residential and private members' club was immune from enforcement. That would have been impossible given that the notice was issued on 28 August 2013 and Mr Tattersall had said that the mixed use began in January 2005. In addition, paragraph 3 of the decision letter recorded that it was common ground that all of the ten structures had been substantially completed more than four years prior to the issue of the Notice, namely by 29 August 2009, save for item 2 and item 4.

Therefore the issue under ground (d) with which the Inspector had to grapple was whether items 1, 3 and 5 to 10 had been included wrongly in the notice's identification of the breach of planning control. In paragraph 4 of the decision letter, this issue turned upon the application of the principle laid down in three cases, the first a decision of the Divisional Court and the other two being decisions of single judges of the High Court, namely Murfitt v Secretary of State for Environment [1980] 40 P & CR 254; Somak Travel Limited v Secretary of State for Environment [1988] 55 P & CR 250 and Bowring v Secretary of State for Communities and Local Government [2013] EWHC 1115 (Admin), in particular paragraph 16.

These decisions laid down the principle that an Enforcement Notice directed at a breach of planning control by the making of a material change of use, may also include operational development which falls outside the scope of planning control (as in Somak), or for which is immune from enforcement action by virtue of the four year rule (as in Murfitt), provided that:

In her submissions to the court, Ms Kabir Sheikh QC, who also represented the Appellant at the inquiry, confirmed that that was the test which the Inspector was asked by both parties to the appeal to apply. That is confirmed by paragraphs 5 and 6 of the written closing submissions for the Appellant before the Inspector dated 12 September 2014. Those submissions were delivered on that date, which was in fact the second day of the public inquiry. The first day of the inquiry had taken place on 10 June 2014 and had been followed by an adjournment of some three months.

So the critical issue which the parties asked the Inspector to determine was whether items 1, 3 and 5 to 10 had been installed in connection with the lawful residential use of the property predating the inception of the unauthorised mixed residential and private members' club use, or whether instead they were installed during and as part and parcel of that mixed use. It is accepted by Ms Kabir Sheikh in this court that the Inspector did apply that agreed test, and in effect the test in paragraph 16 of the judgment of Mr Clive Lewis QC (as he then was) in Bowring, and that no challenge can be made to the Inspector's factual findings or reasoning between paragraphs 4 and 21 of the decision letter, which lead to his dismissal of the appeal under ground (d).

In paragraph 5 of his decision letter, the Inspector said:

The Inspector then went carefully through each of the ten items one by one. Taking by way of example item 3, the hardstanding, paragraphs 6 to 9 of the decision letter illustrate the careful approach taken by the Inspector. He made a series of findings on the evidence to explain that the extensive hardstanding, the subject of the Enforcement Notice, was not laid until 2006, ie after the unauthorised mixed use had begun, reinforced by his further finding in paragraph 9 of his decision letter that:

The material which was placed by the Appellant on this issue before the Inspector was limited. The owner of the business Kestrel Hydro, Mr Tattersall, chose not to give evidence. Consequently a number of paragraphs in the decision letter, such as paragraphs 10, 13 and 15, simply refer to an email sent by Mr Tattersall dealing with some of the items. Otherwise, the only witness called on behalf of the Appellant was a planning consultant, Mr Lancaster, who gave evidence about the construction of the ten structures solely on the basis of the instructions supplied to him. He had no personal knowledge of those matters and of course the source of the information could not be cross-examined.

In any event, his evidence seems to have proceeded on a basis that could not assist the Appellant under ground (d), namely that certain structures had been introduced in order to serve the mixed (or composite) use for residential purposes and the private members' club (see for example paragraph 19 of the decision letter).

At paragraph 11 of the decision letter and elsewhere under ground (d), the Inspector applied an approach which the local planning authority had suggested at the inquiry, namely:

This was described by Ms Kabir Sheikh as a "but for test". In the context of ground (d), however, the Appellant accepted during the current hearing that there was nothing improper about the Inspector's approach in this respect, because it simply addressed the question whether, on the balance of probabilities, it was likely that the structures would have been introduced at a time when the premises were in lawful use solely for residential purposes, that is to say before the unauthorised mixed use began.

Ground 1

From the Appellant's skeleton argument before Singh J, and in the skeleton for this substantive hearing, it appeared that the Appellant was intending to argue that the Inspector had failed to determine the appeal in accordance with the principles stated by Mr Lewis QC in paragraph 16 of his judgment in Bowring. Paragraphs 42 and 43 of the Appellant's skeleton for this hearing cites that passage from his judgment together with paragraph 26 of the judgment of Stewart J in Makanjuola v Secretary of State for Communities and Local Government [2013] EWHC 3528 (Admin) which the Appellant says, and I accept, is to the like effect as paragraph 16 of Bowring.

In paragraphs 44 to 47 of the Appellant's skeleton, it was submitted that the effect of Bowring is that an Enforcement Notice cannot interfere with operational development otherwise immune from enforcement action, but which forms an integral part of the unauthorised change of use the subject of that Notice, where that operational development was carried out for the purposes of a lawful use either (i) pre-dating that unauthorised use or (ii) coinciding with that unauthorised use.

I reject that line of argument as being, with respect, misconceived. First, only limb (i) and not limb (ii) is to be found in Bowring and Makanjuola. Second, in the case of a single planning unit (and leaving to one side seasonal uses), it is impossible, as a matter of law, for a lawful use to co-exist with an unauthorised use. Third, generally if there is a material change of use from a lawful use to a mixed or composite use which includes that former lawful use, and planning permission is not obtained, there is only one use of the single planning unit, namely the new unauthorised mixed use, one element of which is the former lawful use. In this appeal, the agreed position is that that is precisely what happened here. There was a material change of use of the whole of the single planning unit from the formal lawful use for residential purposes to an unauthorised mixed or composite use for residential and private members' club purposes. It is a misconception to say that the lawful former residential use coincides with the subsequent mixed use.

No doubt recognising that the argument in paragraphs 44 to 47 of the skeleton could not succeed, the oral argument in this hearing eventually focused on the submissions presented in paragraph 48, which were based upon Article 1 of the First Protocol of the European Convention of Human Rights, and now described in the skeleton for the substantive hearing as a "separate" argument.

The argument began with paragraph 39 of the current skeleton:

The Appellant submits that in the passages cited from the decision letter the Inspector recognised that in point of fact the structures identified could be used for residential purposes. In this Court the Appellant submits that those structures could in future be used for residential purposes and that in order to comply with Article 1 of the First Protocol, the Enforcement Notice should have been amended so as to protect that possibility. This submission is concerned entirely with prospective usage.

It was suggested that the Inspector precluded himself from giving effect to Article 1 of the First Protocol because of his inappropriate use of the "but for test" in, for example, paragraphs 11, 13, 16 and 19 of his decision letter (see paragraph 41 of the Appellant's skeleton).

That submission is completely unfounded, as I have explained and as the Appellant accepted in this Court (see paragraph 26 above). The "but for" approach was used by the Inspector to assess retrospectively whether it was likely that the structures 1, 3 and 5 to 10 had been introduced for the purposes of the former lawful use and therefore at a time pre-dating the unauthorised mixed use which began in 2005. It had nothing whatsoever to do with the merits of the "prospective" argument which the Appellant now seeks to advance. The reason why the Inspector did not deal with this argument is because it was not put to him, as Ms Kabir Sheikh QC did accept during the hearing in this Court. The criticism originally made in this appeal of the use of the "but for" approach by the Inspector was, to say the least, confusing, if not misleading.

Ms Kabir Sheikh QC described her second argument as an extension of the principles laid down in Bowring and related cases, rather than an application of the law as stated in the authorities to date.

No authority of any kind was cited in order to support this extension. No analysis was undertaken of the jurisprudence dealing with Article 1 of the First Protocol to support the argument that the structures which had been found in this case to cause harm to the Green Belt and for which a grant of planning permission is not justified, must nonetheless under ground (f) be allowed to remain in situ because they could be used for purely residential purposes in the future. As Ms Kabir Sheikh accepted, her argument does not involve any regard being had to the likelihood of the structures being used for that more limited purpose at all.

That is a significant flaw in the submission, not only in the present case but also in many other cases where this line of argument could be put forward.

Indeed, the argument has an air of unreality about it because, although the Inspector took a different view, the Appellant maintained in his appeal that the residential use of the site was not viable. So by definition the legal argument which the Appellant has raised in this hearing is that the company should be allowed to maintain the structures installed in connection with an unauthorised use simply because of, as Mr Lewis on behalf of the Secretary of State put it, the hypothetical possibility of their being used in the future for residential purposes, although in the real world, the Appellant does not believe that that is likely to take place. Even more to the point though, the Inspector found that it was improbable that all these "numerous structures" would have been used in the first place for residential purposes. He reached that view specifically in relation to the structures identified in paragraph 39 of the Appellant's skeleton.

Ms Kabir Sheikh QC relied upon the analysis between paragraphs 23 and 25 of the judgment in Bowring, in which the judge applied Article 1 of the First Protocol. Read properly, it is plain from that analysis that the judge took the view that the convention right is satisfied solely by the application of the tests he laid down in paragraph 16 of his judgment. That can be seen from paragraph 25 in which he said that:

So Bowring does not support the use of Article 1 of the First Protocol to protect operational development in the present type of case merely because it could be used in the future for the purposes of a former lawful use, but was not installed for those purposes but rather for a different and unauthorised use.

A similar argument has in fact been previously considered by the court, albeit not in the context of Article 1 of the First Protocol, in a passage from the judgment of Stuart-Smith J in Somak cited in paragraph 15 of Bowring. In Somak, the judge referred to the approach which had been laid down by the Divisional Court in Murfitt, and in particular the question whether the operational development formed part and parcel of the material change of use being enforced against. Somak was concerned with the question whether a spiral staircase between the first and second floors of the property should be required to be removed as part of an Enforcement Notice dealing with a material change of use of those floors from residential to office purposes. In that case, the installation of the spiral staircase was not something which could in itself have been dealt with by enforcement action because it represented internal works falling outside the scope of planning control (see section 55(2)(a) of the 1990 Act).

The judge considered the possible reasons why the staircase had been installed. The first was that it might have enabled users of the former residential accommodation on the first and second floors to move between the two. He said that that had not been the position in that case. He then drew attention to an alternative reason, which was the apposite one, namely that it had enabled the staff in the travel agency business on the ground floor to communicate quickly with the office staff in the floors above. But nevertheless it is relevant to note that the judge did specifically acknowledge that the spiral staircase "might be of some advantage" in connection with a residential use of the premises. Notwithstanding the fact that the spiral staircase in that case could have served the lawful use of the planning unit, and notwithstanding the thrust of the Appellant's argument that there was no point in requiring the staircase to be removed because it could simply be reinstalled under section 55(2)(a), the judge held that the Enforcement Notice, which had required the removal of the staircase as well as the cessation of the unauthorised use, was lawful.

During argument, I also drew attention by way of analogy to the line of authority, which includes decisions such as Snowden v Secretary of State [1980] JPL 74G, dealing with what is often referred to as a fall-back argument. That is an argument on behalf of an applicant or an appellant that planning permission should be granted for the use which they wish to retain or to institute because, were their application or appeal to be rejected, they would have the right to fall back upon other lawful use rights. The cases show that it is not sufficient for a fall-back argument simply to point to the existence of a use right. The essential question which also has to be addressed is the likelihood of such a right being relied upon.

The argument which has been put forward by the Appellant in this appeal focuses on the carrying out of the proportionality exercise. It seeks to extend the approach which was accepted by Mr Lewis in paragraph 16 of Bowring, so as to embrace the mere possibility of the operational development being used in the future, ie even on a purely hypothetical basis. It is suggested that that mere possibility could in itself be sufficient to prevent a planning authority from requiring the removal of works in accordance with the Murfitt line of cases, even where those works have been found to be harmful.

As I have said, the argument has not been developed to any significant extent in the Appellant's submissions, for example by the citation of authorities. For my part, I would not be prepared to extend Bowring in the way suggested. I cannot see a justification for enabling a land owner to argue for the retention of works which have been found to be harmful where there is an enforcement power to require those works to be removed, simply because of the existence of an ability to use those works in connection with some former lawful use but without any consideration of the likelihood of that use being reinstated in the future.

Given that this line of argument, were it to be accepted, would have to depend upon an assessment of the likelihood of the works being used in the future in connection with the former lawful use, there is an objection to it being raised as a new point of law in this Court. The argument was not raised before the Inspector. Paragraph 95 of R(on the application of Tadworth and Walton Residents' Association andElcome) v Secretary of State for Environment, Foods and Rural Affairs [2015] EWHC 972 (Admin), refers to three other authorities, South Oxfordshire District Council v Secretary for Environment, Transport and the Regions [2002] All ER 667, R(on the application of Newsmith Stainless Limited) v Secretary of State for the Environment [2001] EWHC 74 (Admin) at paragraphs 13 to 15, and HJ Banks Limited v Secretary of State [1997]2 PLR 50. From these decisions, it is well established that although there is no absolute bar on the raising of a new point of law in a challenge made in the High Court, a factor which weighs strongly against allowing such a point to be argued is that it is dependent upon fact-finding which has not taken place because the point was not raised in the court or tribunal below. Ms Kabir Sheikh QC accepted that that principle was correct for the purposes of this appeal.

In my judgment, the argument which the Appellant seeks to raise in the present case would not only need to be the subject of more detailed legal submissions, but would also be dependent upon further fact finding. That has not happened in this case because the point was not raised before the Inspector and so it would be wholly inappropriate for the Appellant to have a second bite of the cherry by allowing the point to be raised in this court. So for all those reasons I reject ground 1.

Ground 2

When the Inspector came to deal with the ground (a) appeal, he took the following course. Firstly, he identified the main issues (see paragraph 22 of the decision letter). Secondly he summarised the relevant policies in relation to the Green Belt (see paragraph 2). Thirdly, he found that the ten structures enforced against constituted inappropriate development within the Green Belt (see paragraph 24). Fourthly, having identified the objectives of Green Belt policy so far as this site is concerned, he found that:

He accepted that they were "inconspicuous in the public domain so that there is no specific impact on visual amenities, but this does not diminish the effect on openness", as explained in the case of Timmins.

He added:

In paragraph 25 of the decision letter, the Inspector said that:

Between paragraphs 26 and 35 of the decision letter, the Inspector considered whether there were very special circumstances sufficient to outweigh clearly the harm to the Green Belt he had identified. For example, in paragraph 27 of the decision letter he considered at some length the impact of a temporary planning permission which the Borough Council had granted in 2005, but he pointed out that that involved a much smaller club operation covering only about a half of the current appeal site and without the use of a large car park or additional structures. He was not persuaded that the use of the whole site for the mixed use, which was the subject of the ground (a) appeal could take place without all the additional structures which had in fact been provided.

In paragraph 28 of the decision, he gave limited weight to the Appellant's reliance upon permitted development rights as a fall back argument. In paragraphs 29 to 30, he in effect dismissed the Appellant's claim that the site was no longer suitable for residential use given its proximity to Heathrow Airport and the character of the surrounding area.

In paragraphs 31 to 34, he dealt with the Appellant's need argument to which he gave limited weight. That is the subject of ground 3 of the challenge. In paragraph 35 of the decision letter the Inspector treated the loss of employment provided by the club as the most significant factor weighing in favour of the development. However, even taking into account that factor together with all the other matters, he did not consider that very special circumstances had been demonstrated so as to clearly outweigh the harm to the Green Belt.

The principles upon which the court may be asked to intervene and allow an appeal in a case of this kind are well established. They were summarised in Seddon Properties v Secretary of State [1981] 42 P & CR 26 and Ashbridge Investments Limited v Minister of Housing and Local Government [1965] 1 WLR 1320. In addition, it was said by Sir Thomas Bingham MR in Clarke Homes Limited v Secretary of State for the Environment [1993] 66 P & CR 263 that if dealing with an allegation of inadequate reasoning, the question is whether the decision letter:

The leading case on the duty to give reasons in a decision of the present type is South Bucks District Council v Porter (No.2) [2004] 1 WLR 1955. For the purposes of the present appeal, I would emphasise the following principles drawn from the speech of Lord Brown of Eaton-under-Heywood:

In addition, I also bear in mind the reference by Lord Brown in paragraph 34 to the passage of Lord Lloyd's speech in Bolton MBC v Secretary of State for the Environment [1995] 71 P & CR 309 at pages 314 to 315.

Under ground 2 the complaint is that the Inspector failed to consider firstly the absence of objections to the club use and secondly the lack of enforcement action taken by the local planning authority over a period of nearly nine years between 2005 and 2013. The argument is developed in paragraphs 51 and 52 of the Appellant's skeleton.

In my judgment there is no merit in this ground of challenge for a number of reasons. First, in paragraphs 24 and 25 of his decision letter, the Inspector proceeded on the basis that the only harm caused by the proposal was harm to the Green Belt. The only specific Green Belt harm identified related to the need to check the unrestricted sprawl of large built-up areas. He specifically found that the structures were inconspicuous in the public domain and there was no significant impact on visual amenities.

Secondly, the issue for him was whether there were very special circumstances sufficient to outweigh clearly harm to the Green Belt on the basis that the NPPF required substantial weight to be given to that harm.

Thirdly, paragraph 33 of the decision letter expressly stated that there was no evidence that the activities on the site affected anyone beyond the site. I accept the submission by Mr Lewis that that indicated that the Inspector had plainly in mind the absence of any objection, apart from the Council, to the matters being enforced against.

Fourthly, the letters of support for the club shown to the court and the petition expressing general support for the club were not, in my judgment, matters which were required to be referred to expressly in the decision letter. The material in question has not been shown to have raised anything which could conceivably have affected the particular balance which the Inspector was required to strike in the present case.

Accordingly, even if I had been satisfied that these matters had not been taken into account by the Inspector, applying the principle accepted by the Appellant in paragraph 53 of its skeleton and stated in Simplex GE (Holdings) Limited v Secretary of State for the Environment (1989) 57 P & CR 306, I would have exercised the court's discretion against allowing the appeal on the basis that the decision on the Enforcement Notice appeal would inevitably have been the same in any event. Quite apart from that, I am not satisfied, applying the principles set out in paragraphs 34 and 36 of South Bucks District Council, that the Inspector, in a carefully reasoned decision letter, failed to have regard to these matters merely because he did not make extreme reference to material of this nature in the context of the issues which were central to the appeal and which he had to resolve, namely the application of Green Belt policy.

Finally, in my judgment the same analysis applies also to the absence of any express reference in the decision letter to the lack of enforcement action by the local planning authority over the nine year period preceding the Notice issued in the present case. Given the way in which the point was put in paragraphs 1.3 and 5.53 to 5.54 of Mr Lancaster's proof, and the absence of any reference to this point in the Appellant's closing submissions, no error of law can be said to have been made in the Inspector's decision merely because this matter was not mentioned in his decision letter.

Ground 3

The Appellant complains that the Inspector failed to have "proper regard to the Appellant's case on need". It is therefore accepted by the Appellant that the Inspector did have some regard to that case. Indeed, he considered the matter at some length in paragraphs 31 to 34 of the decision letter. The material put by the Appellant before the Inspector, and before the court was, to say the least, light weight. An important issue for the Inspector was the need for the club to be located in the Green Belt on the appeal site. In paragraph 31 of the decision letter, the Inspector referred to the Appellant's reliance upon policy CO1 of Spelthorne's Core Strategy Development Plan Document which encourages the provision of "community facilities to meet local needs". He stated in paragraph 31 of his decision letter:

It appears that little specific evidence had been provided by the Appellant to demonstrate local or other need. The Inspector states in his decision that he asked the Appellant to conduct a survey of the club's users. In the circumstances, the Inspector is to be treated as having given the Appellant a full opportunity to present the best evidence it could on the need evidence. Plainly he was unimpressed by the results of that exercise and in my judgment his findings on the survey cannot be criticised as erroneous in law. Those were matters upon which he was entitled to come to his own conclusions.

The Appellant criticises the Inspector for raising the question: "How many users reside within Stanwell Moor?" on the basis that that approach was too parochial and did not address the Appellant's need case relating to users coming from within and beyond the Borough of Spelthorne. It is submitted that the Inspector did not take into account that wider need case.

The suggestion is misconceived. First, it is to be remembered that the Inspector asked for a survey to be conducted of the club's users, ie all of them. He wanted to know from what areas the users were drawn. That is perfectly understandable given the nature of the argument that he was being asked to address. Second, he made it clear in paragraph 31 of the decision letter that the question criticised by the Appellant was only one of the "key pieces of information" he had asked for. In other words, he did not treat it as the only important subject to be taken into account. Third, he had regard to the fact that of the people surveyed, 109 were living within the Borough of Spelthorne and 86 were living in "Stanwell Moor and surrounding areas". Fourth, 518, or 83 per cent of the 624 results related to people living outside Spelthorne. Fifth, he had serious misgivings about the reliability of the survey provided to him in any event.

On any fair reading of the decision letter, the Inspector plainly had regard to the fact that some members of the club travelled significant distances to the premises and was well aware that the club's need case was not confined to Stanwell Moor or Spelthorne Borough. The material on need shown to the court from Mr Lancaster's proof (notably paragraphs 5.10, 5.39, 5.44 and 5.50 to 5.51) can only be described as exiguous. I also note that Mr Lancaster referred to the absence of any other similar facility "in the borough" rather than any wider area (see paragraph 5.10).

In the final analysis the criticism made of the Inspector simply came down to the point set out in paragraph 64 of the Defendant's skeleton:

That contention is, on the material to which I have referred, plainly incorrect. I have also had regard to the further submission set out in paragraph 65 of the Appellant's skeleton based upon the absence of planning policies to support and promote facilities of this kind. But that only led to the suggestion that the necessity to deal with the need case in the present type of appeal was particularly acute. For the reasons I have given, it is plain to me that the Inspector adequately dealt with the need issue and that there is no legal basis for criticising his decision.

For all these reasons, the appeal is dismissed.

MR JUSTICE HOLGATE: Now, are there any other matters to deal with?

MR LEWIS: My Lord, there is, yes. There is an application for costs by the Secretary of State.

MR JUSTICE HOLGATE: There was a schedule and I am afraid I have mislaid it. Do you have another copy? No doubt it has been given to the --

MR LEWIS: It has.

MR JUSTICE HOLGATE: Is it disputed? (Handed)

I am so sorry, thank you. Have you had it?

MR WESTAWAY: I have it, my Lord, in principle, no. There is only one point and I have already alerted my learned friend to it.

MR JUSTICE HOLGATE: Thank you for that.

MR WESTAWAY: That relates to -- my Lord if you have a copy of the schedule.

MR JUSTICE HOLGATE: I do now, thank you.

MR WESTAWAY: If you will just familiarise yourself with it, and on the second page you will see there is an entry under "Attendances on others", (Inaudible) blanks, "letters out, emails: 8.9 hours", corresponding to £1,424. And we query the reasonableness of that and note --

MR JUSTICE HOLGATE: Not the charge-out rate but the number of hours.

MR WESTAWAY: Number of hours, not the rate, it is simply that point, and I just note that the Appellant's equivalent in the Appellant's schedule, which I can hand up, I see no particular need to, is 0.5 hours for that point.

MR JUSTICE HOLGATE: Yes.

MR LEWIS: My Lord, I have taken instructions. If we look at the first page it says "attendances on party", and that is us, "letters out, emails: 2.8", that is letters out, emails solely to the planning inspectorate. If we go over to the page: "attendances on others". Those are letters out and emails to the court to the local planning authority and, rather unusually, to me as counsel. One might have expected that the hours there would have been included in respect of me on the first page but I am told no, instructions to counsel and liaising with counsel, are counted as an "other" for the purposes of --

MR JUSTICE HOLGATE: I am very sorry to hear that.

MR LEWIS: It is rather unusual and I might advise the Treasury Solicitor to do otherwise in future.

MR JUSTICE HOLGATE: Has that been explained?

MR WESTAWAY: I am a little confused. So where is it said that the attendances of counsel and instructions would otherwise be recorded on here?

MR JUSTICE HOLGATE: I think what Mr Lewis is saying is that going back to the first page, these emails, ordinarily, would be expected to be recorded on the first page under "attendances on party" in the second box: "letters out, emails", counsel being aligned with the party being represented. But it wasn't counted there, the figure of 2.8 hours only relates to communications directly with the client, ie the Inspectorate. So any communications with counsel have been counted instead on the second page and that explains why the hours spent were nearly nine hours. Put that way, is this a point you feel needs to be considered further, Mr Westaway?

MR WESTAWAY: My Lord, let me take instructions on it very briefly.

MR JUSTICE HOLGATE: Please, if you would. (Pause)

I think the point you are making, Mr Lewis, is it is not just emails to yourself, it is to everybody other than the inspectorate.

MR LEWIS: Indeed, yes, indeed. Although, of course, I should acknowledge in fairness that there is a separate category in the form "attendances on opponents".

MR JUSTICE HOLGATE: Yes, subject to that.

MR LEWIS: Subject to that.

MR JUSTICE HOLGATE: That is on?

MR LEWIS: That is on three hours, I gather.

MR JUSTICE HOLGATE: Right.

MR WESTAWAY: Yes, my Lord, I think that explains it, it may be that is simply not the best place for it to be recorded.

MR JUSTICE HOLGATE: I think that point has been taken, thank you. On that basis the order I make is that the appeal is dismissed and that there is an order that the Appellant shall pay the first Defendant's costs assessed in the sum of £6,412.

MR LEWIS: Forgive me, my Lord, I think just to be clear on the figures, that is the subtotal.

MR JUSTICE HOLGATE: Oh no, I am leaving you out, am I?

MR LEWIS: There is a little extra for counsel's fees, my Lord, if we --

MR JUSTICE HOLGATE: How embarrassing. If I just amend the figure then to £8,662. I am sorry for that.

MR LEWIS: Not at all. I am grateful.

MR WESTAWAY: My Lord, there is just one other matter, I have raised it with my learned friends. I am very grateful for the judgment and for the judgment being so prompt but we will await a transcript and in terms of considering appeal, of course it is a second appeal so would go straight to the Court of Appeal format.

MR JUSTICE HOLGATE: I am glad you appreciate that, a lot of people, including leading counsel, in these situations do not seem to appreciate that this would be a second appeal where the second appeal test would have to be satisfied.

MR WESTAWAY: My Lord, I simply ask for 21 days from receipt of the transcript for the making of any Appellant's notice under those provisions.

MR LEWIS: My Lord, that is resisted, I am afraid, this being an enforcement matter, I say they can get cracking with their appeal and any complication with the transcript can be dealt with pursuant to the application that is made to the Court of Appeal in due course.

MR JUSTICE HOLGATE: I am bound to say I agree with that submission, unless you want to say anything further. Is there a particular nee --

MR WESTAWAY: My Lord, I am slightly surprised, I raised it with my learned friend before the hearing and I didn't understand that it would be resisted. I have heard what my learned friend says now, I would simply say this, that the point of appeal, I don't argue the substance before you at all, goes to some fairly difficult authorities in Murfitt and Somak and Bowring which your Lordship has analysed in a judgment, your Lordship has read that judgment and I have a note but clearly for that to be analysed both by myself and by leading counsel who is not here today is something that my client will want properly to do before he takes what is potentially a big decision to issue an Appellant's notice and for that to be properly considered it would, I would say, very much assist, if not be quite an important part of the background for the Appellant to take that course, if he had 21 days from the transcript and can consider carefully how the judgment is put in that transcript. (Pause)

MR JUSTICE HOLGATE: I am going to bear in mind that the Inspector in this case extended the time for compliance to 12 months. I think when that is put into context, having regard to the length of time which the preparation and approval of a transcript is likely to take, it would be reasonable to give you 21 days as you ask from -- what is the formal term?

MR WESTAWAY: My Lord, receipt of the transcript. We can draw up a draft in those terms if you are happy with that.

MR JUSTICE HOLGATE: I think, bearing in mind the overall time scale, giving you that extension is not going to make a material difference to the taking of enforcement action.

So all it remains for me to do then is express thanks for the help I have received and again to apologise for keeping you waiting and indeed express gratitude for everyone having stayed here until 4.30 on a Friday. Thank you.