UK Land and Homes Limited, R (on the application of) v Walsall Metropolitan Borough Council

This is my judgment on all of the issues which require to be decided. They include decisions in respect of some relatively recently filed evidence, the application for permission to apply for a judicial review, which is renewed orally before me today, an application amend the grounds in respect of a warning letter and an application for interim relief.

So far as the new evidence is concerned, Mr Khalid has served a further witness statement dated 30 April 2026. It is a witness statement which is very short and essentially exhibits documents which the council has served and various other evidence additionally which does go beyond that, but it is reasonably confined and not overly burdensome.

I have taken the view that the defendant has not been taken by surprise by any of that material and I have also taken the view that, given the evolution of the case, there has not been any delay in serving that material so that the council knows that it is to be relied upon and, for all of those reasons, I think that it is appropriate that Mr Khalid has the opportunity to rely upon that evidence.

So far as the council has served additional witness statements, likewise, I take the same view, I found that material to be helpful, and so each side gets permission to rely upon such additional material as they have served during the course of these proceedings.

I regard this case as having two “rounds” in it. There seems to me to be a first enforcement round and a second enforcement round. First, from August 2025 onwards, officers received complaints regarding the activities on the site, including complaints relating to amenity noise and disturbance, and officers visited the site on multiple occasions. The claimant was advised repeatedly that the unlawful activity constituted breaches of planning control and that planning permission was required. The claimant was asked to remove the unauthorised development and to cease the unauthorised use.

By early October 2025, there were approximately fifteen food and drink outlets, extensive seating, fencing, lighting and associated works, and so it was, on 7 October 2025, a planning contravention notice (“PCN”) was served requiring information.

The first round of enforcement included the service of a temporary stop notice, and the “TSN”, as I shall call it, is the target of the judicial review proceedings. Section 171E of the Town and Country Planning Act 1990 provides, at subsection 1, that the section applies if the local planning authority think that, firstly, there has been breach of planning control in relation to any land and, secondly, that it is expedient that the activity or any part of the activity which amounts to the breach is stopped immediately.

I set out the terms of section 171E to draw attention to the threshold which is as to what the local planning authority “think”. What it is that they have to “think” is that there is a breach and that it is expedient to bring the breach to a stop. As a statutory threshold, that is quite low. It does not require a particular standard of proof and it is a question about expediency, which is inherently a matter of discretion and judgment, having regard to the facts and the circumstances as they are presently understood by the authority.

Temporary stop notices have to cease within fifty-six days or within such shorter period as the notice might specify. A TSN is therefore temporary and the fact of its temporary nature goes with the statutory threshold linking its relatively short period of operation with the low threshold and the discretionary nature of the decision to serve a TSN. It is a part of Part 7 to the 1990 Act and its suite of enforcement controls which came into force to provide planning authorities with an opportunity to bring a new use to a halt in circumstances where, in the authority’s view, the effects were harmful and required immediate action. That is why the section uses the phrase “stopped immediately”.

The TSN was served on the claimant and all interested parties on 21 October 2025. On 29 October 2025, an application for planning permission was made by the claimant for retrospective permission. I will come to the description of the development and the progress of that application in due course.

On 19 November 2025, following an internal review and in the light of the cessation of activities, the council confirmed in writing that the TSN would be withdrawn. During the course of argument this morning, the letter of 19 November and its terms were drawn to my attention and in the light of some of the submissions made by Mr Khalid, I set out some of its features:

“This letter is addressed to Mr Khalid on the basis that he [has] de instructed his solicitors.”

I then omit some of the paragraphs and continue the quotation:

“The Council acknowledges that the Notice erroneously includes a reference to s. 183 of the 1990 Act at Clause 3 under the reasons for issuing the notice, however, the clause also referred to it as a Temporary Stop Notice and it has been complied with on that basis.

The Council therefore asserts that in principle it was clear that the Notice was a ‘Temporary Stop Notice’ under s. 171E and not a Stop Notice under s. 183(1) of the 1990 Act and therefore did not require an Enforcement Notice to have been pre-issued or annexed to it. The Council does not therefore accept that the Notice was issued prematurely or without jurisdiction.

The Council accepts that you have submitted a planning application after the Notice was served on 28 October 2025, however this is currently invalid and a request has been made for you to provide further information by 2 December 2025.

The Council does not accept that its actions were ultra vires and I would reiterate that the Notice served by the Council is a Temporary Stop Notice under s. 171E of the 1190 Act and there is therefore no requirement for it to relate to an already issued Enforcement Notice of for such a notice to be annexed to it.”

The TSN is addressed to Mr Khalid and is headed to be a “Temporary Stop Notice” which has been served by the Walsall MBC under section 171A(1) of the 1990 Act. It therefore becomes immediately apparent from the heading to the notice and its first section as to the powers under which it is served. Similarly, under section 2 of the TSN, it is said:

“This temporary stop notice is issued by the Council, in exercise of their power in section 171E of the 1990 Act …”

In section 3, one finds, “THE REASONS FOR ISSUING THIS NOTICE”, which makes the erroneous reference to section 183 of the Town and Country Planning Act, but that is after making it clear that the council considers it expedient to issue this “temporary stop notice”.

As was canvassed during the course of argument, section 7 refers to “WHEN THIS NOTICE TAKES EFFECT” as to taking effect on 21 October 2025, when all activity specified in this notice must cease, and the notice will cease to have effect on 16 December 2025. This is compliant with the statutory requirement that a TSN is in force for fifty-six days or such lesser period as the authority may specify or, alternatively, until the notice has been withdrawn.

Having introduced the facts and the TSN in that way, I then turn to the renewed application which has been made. The claimant renews its application for permission to apply for judicial review, HHJ Worster having refused permission on the papers by his order which was sealed on 23 January 2026. I set out his reasons in full:

HHJ Worster found the claim to be academic.

I now turn to what I referred to as the second round of enforcement. Mr Saunders has provided two witness statements. His second witness statement is dated 8 May 2026. He explains, as I have already indicated, that the claimant submitted a planning application for development which was retrospective. That was validated on 9 November 2025 and the description of the proposal was :

“Retrospective full planning application for a change of use of the rooftop of the George Street multistorey car park as a mixed use, involving leisure, hot food takeaway and outdoor cinema (sui generis)”.

That application was refused planning permission I think on 28 April of this year. The first two reasons for refusal were as follows, and I quote:

“The proposed development, by reason of its siting on the rooftop of the existing multistorey car park, would represent a physically detached and elevated form of development that would operate as a largely self-contained destination with limited integration with the surrounding town centre. As such, the proposal would fail to support linked trips or meaningfully contribute to the vitality and viability of Walsall Town Centre or provide the strong physical and functional linkages sought within the centre. The development is therefore contrary to Policies AAPINV2 and AAPS1 of the Area Action Plan, policy CEN3 of the BCCS ----”

Which I imagine to be the core strategy.

“-- and policy S4 of the UDP [Unitary Development Plan]”.

Secondly:

“The proposed development, by reason of the introduction of temporary-style structures, illuminated signage, a large cinema screen and associated infrastructure in a prominent rooftop position, would introduce visual clutter and an incongruous form of development that fails to respond positively to the historic context of the area and would draw attention to the rooftop level through changes to the skyline and additional light spill. The proposal would therefore fail to preserve or enhance the character and appearance of the conservation area and would result in less than substantial harm to the conservation area, to which great weight must be afforded.”

There were a total of eight reasons for refusal. The other six reasons for refusal were concerned with traffic, amenity effects, emergency arrangements, crime prevention onsite, foul drainage and sanitation.

On 28 April 2026, the council issued an enforcement notice which alleged a breach of planning control on the basis of both material change of use and operational development. I refer to the material change of use as “MCU”. The MCU alleged was as follows, and I quote:

“The council considers that that a [MCU] of the land has occurred. The approved use of the land is as a multistorey car park. The [MCU] of the land ----”

There is an error in the notice. It repeats “land” twice, so I omit the second occasion.

“-- occurred to become a mixed use to include a car park and, on the 3^rd and 4^th storey a recreational entertainment venue hosting events and retail of food and drink, a drive-in cinema and the use of the site for the operation of ‘car meet’ events. The siting of shipping containers and caravans have been fitted out as food and drink retail units selling hot and cold food and drink. A seating area has been provided with tables, benches, chairs, laid on artificial grass. A site office has also been introduced to the land. Furthermore, included in the unauthorised mixed use, a play area has been introduced to the site on the 3^rd level identified by the green circle on the 3^rd floor location plan and storage of portable toilets and wheelie bins has been added to the site. The third floor is also used for the storage of cars.”

It was alleged on the enforcement notice that unauthorised operational development included pipework, gates, fencing, lighting, tiling and erection of breezeblock walls. The enforcement notice gives its reasons as including, and I quote, that:

“This impedes the established use of the land as a carpark as defined in condition 36 of pp 14/0122/FL approved 5/08/2021 and is considered inappropriate and harmful to the neighbouring flats and environment by way of noise and light disturbance and odour. The unauthorised retail use of the fourth floor of the land occurs each evening therefore the activities and general coming and goings of customers visiting the site late into the evening, seven evenings a week is at odds when nearby residents would reasonably expect a degree of peace and quiet. There are major concerns regarding a lack of traffic management and safety on the land particularly in an area where visitors tot eh site are expected to walk and congregate.”

The enforcement notice requires the unauthorised uses to cease and the unauthorised development to be removed within two months of the notice taking effect on 26 May 2026. The notice was served on Mr Khalid, as owner and occupier, as was a stop notice of the same date. The stop notice required the cessation of the unauthorised use of the land as a recreation and entertainment venue hosting events and retail of food and drink, a drive-in cinema and the use of the site for the operation of car meet events. It took effect on 5 May 2026.

There is a right of appeal against the enforcement notice as of right and the claimant has appealed. The stop notice continues to take effect pending that appeal and if the enforcement notice is quashed other than on ground (a), namely that planning permission should be granted, then compensation may be payable. See section 186(1)(a) of the 1990 Act.

On 1 May 2026, an application for urgent consideration came before me on the papers. It was an application for interim relief to suspend the effect of the stop notice. I adjourned the application to be heard today. The stop notice has therefore taken effect.

There is no freestanding claim form on which the application for interim relief depends; nor has there been an application to amend the claim form in the case AC-2025-BHM-000385, which is the judicial review for which the application for permission is before me today.

During the course of this morning’s hearing, I canvassed with the parties how best to approach this. I indicated to Mr Khalid that there were two potential options, firstly, as to amendment of case AC-2025-BHM-000385, effectively to incorporate the grounds for the application for interim relief as a part of the existing claim form, and the second alternative is for a second claim form, i.e. a new case, to be issued.

For the council, Mr Fulbrook relies upon those well-known cases, including, I imagine, the dicta of Singh LJ in Talpada, as to the inappropriateness of judicial review being a rolling narrative by which the claim evolves as the facts evolve. In my judgment there is some strength in that submission. Mr Khalid indicated in response that he was content with either route.

Having reflected on the matter, I consider that the preferable route is for the claimant to issue a claim form which is a separate and new claim form and I will provide a period of time for that to be done and my initial view is that seven days would suffice and would not cause prejudice to any party, so that is what my order will say unless, at the conclusion of my judgment, any party advances a cogent reason as to why another timeframe should be adopted.

Having set out the background at some length, I now turn to the parties’ submissions and my reasons in respect of the renewal application. The claimant, via Mr Khalid, has provided concise and, if I may say so, articulate arguments via his skeleton argument. He has developed those arguments in his oral submissions to me today which, again, if I may say so, have been concise, to the point and well-focused.

Correctly, he reminds me that he does not have to prove his case at this stage but only show a properly arguable case. He argues that HHJ Worster was not correct to find that this claim was academic and he advances four principal reasons in that regard: firstly, that while the TSN was in force, it carried with it immediate, coercive and criminal consequences; secondly, that the withdrawal of the TSN does not erase the legal and practical effects of the TSN while it was indeed operative; thirdly, that the legality and scope of the TSN remain of real practical significance, including in relation to the claimant’s position under section 171H of the Town and Country Planning Act 1990; and fourthly and lastly, that the legality of the TSN continues to have real and practical utility.

Mr Khalid’s argument is that the TSN was issued on a false basis and particularly as to the safety risk in respect of the car park, and he puts his case like this, and he reiterated these points forcibly before me this morning. He emphasised that there was, in his submission, no evidence of any reason to suppose that there was an urgent danger and he reiterated that the council had no evidence or reason to support any genuine risk to public safety or to adjoining buildings sufficient to justify any emergency action.

He went on to emphasise that the starting point here was a PCN which was to obtain particular information and the council should have waited for that information to be forthcoming before taking what he characterises as a peremptory and inappropriately quick decision to issue a TSN while the planning contravention notice remained incomplete, and that was a procedurally unfair way to proceed.

Thirdly, he highlights the provision within the permitted development order for temporary uses of land such that a temporary use of land may be undertaken for a period of twenty-eight days without the requirement for an express grant of planning permission. He draws attention to the evidence taken from applications under food safety legislation which demonstrate that some of those businesses had not been operating for twenty-eight days and thus were within their permitted development right.

Next, Mr Khalid emphasises what he says are failures to correctly and properly consider the planning status of the site which he describes as a mixed use, which is a mixed retail and car park use, having regard to the uses which take place on what I might call the ground floor, with higher floors being for car parking use. He makes passing reference, but not detailed reference, to the council’s own enforcement policy, which he says has not been properly engaged with.

For the council, Mr Fulbrook has submitted two skeleton arguments, the first being in respect of the renewal and the second being in respect of the interim relief application. So far as the renewal is concerned, Mr Fulbrook draws attention, correctly, to the broad discretion afforded to a planning authority in respect of deciding whether or not it is expedient to take any particular enforcement step, the reason for that being that the planning authority is the body in possession and close to the planning history and the planning consequences of a particular use which is taking place and operational development which is said to be unlawful. It is in a much better-informed position than is a Judge sitting in a Planning Court.

At the time of service of the TSN, the following six factors appear to have been uncontentious. The first is that there was an unauthorised change of use; the second is that there was operational development; the third is that the activities went from starting to an established position which escalated quickly, that the fourth part of the land which was being used is a multistorey car park which is not in use presently, or had not been in use prior to this use, for any of the uses now established; fifthly, that there were legitimate concerns about the dangers arising from the use, including as a result of the storage of liquid petroleum gas and the drainage effects for which I have seen some photographs and the nature of the connections in the regards, lighting management and also the fact that, lastly, the site is within a conservation area.

The evidence of unauthorised use at the time of the service of the TSN is, in my judgment, clearly sufficient to enable the lawful service of a TSN if that is what the local planning authority thought was expedient. I refer to the statutory provisions which I set out at the beginning of my judgment. I do not consider that there is any prospect of the claimant showing that that decision was unlawful. The scale of the operation was substantial and it is effectively admitted that planning permission did not exist and that is why we see a retrospective application for planning permission having been made. The safety, amenity and other land use effects of such a change of use were not minor or trifling but were potentially serious.

However, the claimant raises specific grounds in respect of the TSN and I must address those. Dealing with safety concerns, I do not need to resolve those matters as a matter of fact and Mr Khalid was very clear in emphasising to me that that is not the role of this court, and he was right to do so. Rather, it is enough for there to be a real cause of concern and, on the evidence which is available both within the four corners of the temporary stop notice and indeed in the evidence supplied by the council, it is plain that there is a real cause for concern on a safety basis. It may turn out in due course that the claimant’s evidence prevails but there is no prospect in my judgment of an error of law being established as to the council’s proper assessment as to whether or not there is a cause of concern in that regard.

So far as the twenty-eight-day material change of use point is concerned, that is a misconception. Firstly, the point is misconceived on the facts. It is evident that the use which is the subject of the TSN commenced well in excess of twenty-eight days prior to the service of the TSN. Whether or not any particular mobile food unit or business has come along more recently or has only been there occasionally and so therefore has not been present for twenty-eight days is entirely irrelevant. The question is whether or not that planning unit, against which the TSN is focused, or the land against which the TSN is focused has been in use for twenty-eight days or not and, on that point, the evidence is clear. Even if I were wrong in that regard, as Mr Fulbrook submitted, the rights under the permitted development order arise in respect of land other than buildings, and so the point is further misconceived as a matter of law.

I turn then to consider the area covered by the TSN as far as the red line is concerned. This point is pursued in respect of both the TSN and the stop notice. It is entirely misconceived. The text of the TSN is directed to that part of the car park building on which the activity of concern has been identified to be undertaken. In order to show in plan view where that land is, the TSN includes a red line plan. That is a perfectly normal part of a TSN or an enforcement notice, and indeed it is a requirement. However, when the plan is read in a straightforward manner alongside the TSN, it is clear that the activity which is enforced against is not the entirety of the use of the building which falls within that red line but such activities which are properly and precisely described within the scope of the TSN. There is no unlawfulness in that regard. I have no doubt that the recipient of the document knew exactly what it required and, indeed, as events occurred, it became evident that the recipient of the notice did understand what was required because the food, cinema, car meet use stopped. In other words, when tested against what actually happened, it is clear that the notice was properly understood.

So far as the amalgam of grounds which attack the council’s decision-making process is concerned, namely its assessment of the planning status of the site and the use of its enforcement policy is concerned, I take those matters together. The essential question is whether or not the council was arguably in error in reaching the conclusion that its enforcement policy and the planning status of the site gave rise to reasonable grounds for serving an enforcement notice. For the reasons which I have recited in setting out the background to this case, there is no doubt that the council not only lawfully put in place its enforcement policy, but it would be surprising if it did not do so.

That brings me to the very specific point which arises from the error in referring to section 183 which relates to stop notices within a notice which is plainly, on its face, a TSN. Even if the claim were not academic, that point would have no prospect of success. It is plainly a misreference to a particular section within the Act when the notice, read as a whole, as any court would be required to do, is plainly a stop notice which is temporary. That is what it says as its heading. I would reach a different view if the requirements on the notice and the period of its operation did not comply with the statutory requirements; however, they do. The TSN is in all respects a valid TSN but simply contains a slip by reference to section 183.

Those particular points having been addressed in that way, I turn to consider whether or not HHJ Worster was correct to refuse permission. I too would have refused permission for the reasons given by HHJ Worster which I have already set out and I adopt them. The claim is academic and this court does not engage in theoretical exercises. I do not accept the claimant’s arguments to the contrary. The subsequent enforcement came about because the use had started up again and it causes real problems for several public bodies and for those who live and work nearby. It is a mischaracterisation of the facts to suggest that the enforcement action continued simply on the basis of what had gone before. By that I mean that the use started up again with vigour. Rather, what happened here is that the council withdrew the TSN because the activity stopped and an application for planning permission was made. That was the correct course and that course should have continued and the scheme of the planning legislation should have continued to appeal if that was the advice received, but I reject any suggestion that the TSN has continued to have any coercive effect after the time that it was withdrawn. For all of those reasons, I refuse permission to apply for judicial review.

I turn then to the interim relief application. I give permission for a claim form to be issued within seven days, as I have indicated, so that aspect is regularised. The criteria to be applied here in respect of interim relief are set out in the Administrative Court Guide 2025 in Chapter 16, and I direct myself accordingly, first as to the need for there to be a real or serious issue to be tried and all that Mr Khalid has to show is that the threshold of arguability has been passed. If that has been passed, I then have to turn to the balance of convenience to consider the factors weighing on both sides, to balance the harm to the claimant that would be caused if I do not grant interim relief as against the harms to the interests which are represented by the defendant and also to the public at large, the public interest, if interim relief is granted and the claim subsequently fails. I also need to then direct myself, in accordance with the well-known principles in American Cyanamid, as to the availability of damages and, in the particular context here, of the availability of compensation under the 1990 Act.

The claimant’s arguments as to serious issue to be tried are, firstly, as to the notice being too broad in its geographical terms because the plan extends beyond the claimant’s operational area. What is said is that the stop notice relates to a mixed use of the car park as a whole consistently with the enforcement notice. I have already given my reasons in respect of that particular issue and in respect of the temporary stop notice, and consistent with my order of 1 May 2026, it is a point which has no merit whatsoever for the reasons which I have already given.

Likewise, so far as the arguments advanced in respect of the temporary stop notice are advanced in respect of the application for interim relief, I incorporate here my reasons already given and, to avoid making this judgment still longer, I do not repeat them.

Essentially for those reasons, I have come to the conclusion that there is no serious issue to be tried. The matters advanced are not arguable. But if I were wrong in that respect, I then go on to consider the balance of convenience upon which Mr Khalid relies upon the fifteen businesses which would be closed down. That is an important consideration because each of those businesses will be important to the individual or the family that operates that business and will have made plans accordingly, both as to the capital invested in those businesses and the way in which they anticipated that they would be able to operate. Likewise, Mr Khalid’s own business operations will be founded on assumptions based upon his understanding of his ability to continue to use the site.

Against that, it is relevant to take some account of the scheme of the 1990 Act which provides for compensation to be provided in the event that the enforcement notice upon which the stop notice depends is shown to be defective for any of the grounds other than ground (a), in other words if any of the legal grounds which are available are shown to be sound and the enforcement notice is quashed or modified by an inspector in due course. I take that into account in the totality of the matters to be understood in the balance of convenience.

Next, it is suggested that there is an extant application for planning permission which is in the process of being appealed and a planning application which was retrospective was before the council and it may be that those matters are capable of resolution perhaps by another application. However, that is a matter to be dealt with in the future and the onus will be on the council to keep its enforcement notice under review and likewise its stop notice. If a solution is found which, on a planning balance, is thought by the council to be appropriate, then that might yield a change in due course. That, however, has no bearing on the balance of convenience as I presently have to assess it, on the evidence which is presently available and the circumstances which exist now. I do not consider that there is any relevant point which goes to the balance of convenience as to the allegation that officers acted unlawfully. For the reasons which I have already given, the service of the temporary stop notice and the enforcement notice are not arguably unlawful; rather, there is an opportunity for the merits of the enforcement notice to be canvassed in front of an inspector appointed by the Secretary of State.

That leads me to a point advanced in Mr Fulbrook’s skeleton argument as to alternative remedy. So far as alternative remedy is concerned in respect of the renewal application and a temporary stop notice, I do not find that to be an attractive argument because a temporary stop notice does not bring with it the same rights of appeal which an enforcement notice does. However, the argument in respect of alternative remedy is, in my judgment, a good point in respect of the application for interim relief. It goes both to the balance of convenience and to the prospects of success, in other words whether there is a serious issue to be tried.

The point is a good one based upon the dicta which is set out by the Supreme Court in the appeal from the Irish Court of Appeal in McAleenon, which is to be found at [2024] UKSC 31, particularly at paragraph 50, per, I think, Lord Sales and Lord Stephens, with whom the other justices agreed, the essence of which is that the High Court, being a location for remedies of last resort, should not exercise its discretion to grant permission to apply for judicial review in circumstances where there is an alternative statutory means of resolving the issues. In this case, there is not only an alternative statutory means but advantage has already been taken of that statutory means by an appeal having been lodged.

It would be inappropriate for this case to intervene at this stage when the proper course is for the merits to be fully explored, both legal and planning. All of the points which are raised in the application for interim relief can find a proper home in the grounds of appeal which are available on an appeal against an enforcement notice.

If I had to address the balance of convenience, I would find that it comes down in the council’s favour because the potential for harm to amenity and other planning interests, including the public interest of those in land around the land enforced against, is, on the evidence which I have seen, of sufficient seriousness to outweigh the potential inconvenience and financial loss which may arise so far as Mr Khalid’s business is concerned and the business of those who wish to take advantage of the car park for their own businesses and, as I have indicated, if all of that turns out to resolve in Mr Khalid’s favour, then there is a financial remedy in place in any event.

So, for all of those reasons, I consider that the balance of convenience would fall in the council’s favour and I would therefore refuse interim relief.

In respect of the warning letter, I take the same view as in respect of the new claim which requires to be issued for the interim application that rolling judicial review is not appropriate and, in respect of the warning letter, I would refuse permission to amend for the reasons which are now well-known in Singh LJ’s dicta in Talpada and in addition to which it seems to me that there would be some difficulties in Mr Khalid demonstrating that he has locus in that regard in any event, and so, for those additional reasons, I would refuse permission in that regard.

There are effectively two, albeit overlapping, applications in respect of costs. Mr Fulbrook correctly refers me to the position set out, which is well known, in Mount Cook, that a defendant will not, in ordinary circumstances, in other words, save in exceptional circumstances, receive an order for the payment of his costs of attending at an oral renewal hearing.

The exceptional circumstances which are advanced by the council are, firstly, that the renewal application was hopeless and was always bound to fail, and was solely in respect of a matter which is academic. The second exceptional circumstance which is advanced is that the council were required to attend in any event to deal with, firstly, an application to amend, that is to include the matter relating to the warning letter, and for applications in respect of additional evidence and the associated arguments that went with that, and also required to attend in respect of the interim relief application. So that is the first matter.

The second is that if the council is wrong in that respect or fails in that respect, then the council seeks its costs of attending to resist the application for interim relief. The test in that regard is altogether more straightforward, the council having succeeded in resisting that application, costs should ordinarily follow the event.

Mr Khalid resists both applications for costs. He explains that he honestly considered that he had a proper basis for pursuing permission to apply for judicial review and wished to take advantage of his opportunity to appear before me today. He also explained that he renewed because he knew that there would be more enforcement action. I have to say that that submission rather gives the game away, which is that it was clear to Mr Khalid that his use was going to continue and that that would produce further enforcement action, and that was indeed obvious, that if, after withdrawal of the temporary stop notice and the submission of the retrospective planning application, the use recommenced, it was obvious that the council would continue with enforcement action. For the reasons which I have explained in my principle judgment, that was both lawful and unsurprising. So, as a response to the application for an award of costs, that is not the most attractive point to make.

However, I wish to be very careful in discouraging a claimant from taking advantage – and I use that phrase in a neutral sense – of the right which is afforded to a claimant to refine their case and improve it and put it more persuasively before a second tribunal. I would not wish to discourage that access to the court by adverse costs awards.

If the only matter which had come before this court was a straightforward renewal, seeking to reverse the decision of HHJ Worster, I would not have accepted that the circumstances were, in this case, so exceptional as to award costs to the council for attending today. However, the case is not so straightforward. There are the overlapping matters of the application for interim relief and the applications to amend. The council has succeeded in respect of those matters and costs should follow the event in that regard in my judgment. No cogent reason has been advanced as to why any other principle should be applied to those costs.

Overlaying all of that, there is the question of the council’s costs of the acknowledgement of service. The normal course is that a defendant will receive its costs of the acknowledgement of service in the event that it is successful in its position that the claim is not arguable. Having regard to the position which the case has arrived at now, I would vary the order of HHJ Worster such that, in principle, the council receives its costs of the acknowledgement of service, does not receive its costs of attending to resist renewal for the reasons which I have already explained, but does receive its costs for attending today to resist the other applications which have been made, principally the application for interim relief.

The numbers which I have been given on instructions by Mr Fulbrook are that the costs of dealing with the application for interim relief are in the bracket £2,500 to £3,000 and the costs for the acknowledgement of service are in the region of £8,000.

On the question of quantum, Mr Khalid has, if I may say so, made sensible points about the quantum of costs. He accepts the rates, which are principally in respect of the associate who has worked on this case a great deal, at £155 an hour, and I agree that that is reasonable, but takes a point in respect of the time spent. I accept Mr Khalid’s point in respect of the time spent to generate the acknowledgment of service. I think that it is too high and I would assess the reasonable costs for the preparation of the acknowledgement of service at £5,000.

So far as attendance is concerned today, and dealing with the interim application, that is more difficult to disaggregate because those who have attended have been here in respect of a number of different matters. The totality of the schedule comes to £30,736. If I take the reasonable amount for the AOS off that, that gets me to a bit a bit short of £26,000. That, in line with Mr Khalid’s submission about the amount of time spent, is also more than I consider reasonable for the issues in this case.

Taking account of what I have been told about the amount of work done in respect of the interim application and the costs of attending today, it seems to me that a reasonable sum in that regard is a further £6,000. I have not included any VAT. The council is able to recover VAT and so I do not need to include in the order a requirement that the claimant company pays VAT, but if I am wrong about that then somebody can correct me. In any event, that comes to £11,000, which, at the moment, I am going to say is without any VAT and VAT would not be payable.