Case No: CO/10284/2011
Neutral Citation Number: [2012] EWHC 2760 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Date: Wednesday, 19 September 2012
Before:

HIS HONOUR JUDGE PELLING QC
(SITTING AS A JUDGE OF THE HIGH COURT)

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Between:

	COLLINS

 Claimant	
	- and -		

(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) FYLDE BOROUGH COUNCIL

     
Defendants

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Mr Cottle (instructed by Davies Gore Lomax LLP) appeared on behalf of the Claimant.
Mr Whale (instructed by the Treasury Solicitor) appeared on behalf of the Defendants.
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Judgment
His Honour Judge Pelling QC:

Introduction

1.	The claimant is one of a group of 78 travellers, who since November 2009 have been living in caravans on a site of about 2.4 hectares in area located south of the B5266 and southeast of Hardhorn Village.  The site is separated from the B5266 by a field and is linked to it by a track.  The surrounding area includes low-lying land with a mixture of arable, pasture and some woodland.  There are some buildings nearby including glass houses to the northern side of Fairfield Road and stables near the access track to the south of the site.  The land rises to the west of the access track towards Hardhorn.  Features seen in more distant views include, as is recorded in the relevant Inspector’s report, pylons, a railway line and Blackpool Tower.  The lawful use of the land the subject of the appeal that is now under challenge is agricultural with some equestrian use as well.  Permission was granted for use of the land for keeping horses in 2008 and on one of the plots of land which makes up the land in question.

2.	A temporary stop notice was issued on 7 November 2009 after the first occupation of the site.  Injunctions were granted on 13 January 2010 and 3 February 2010 to prevent more caravans being brought onto the site.  On 27 July 2010 the second defendant issued an enforcement notice by which it was asserted that the claimants had, without planning permission, changed the use of the site from use for equestrian and agricultural use to use as a residential caravan site.  The requirements of the notice were to remove from the land all caravans, buildings, sheds, containers, water supply pipes and other structures; secondly, to remove from the land all equipment, articles and other paraphernalia associated with the use of the site for residential or business purposes; thirdly, to remove from the land all hardcore road planings and other material imported to and deposited on the land after 6 November 2009; and fourthly, to return the site to the condition it was in immediately before 6 November 2009 by reseeding with grass.

3.	On 14 December 2010 the claimants applied for planning permission for a change of use of the site to land for stationing caravans for residential occupation by gypsy or travellers with associated development.  The application was refused by the second defendant.  The claimant appealed against both the enforcement notice, to which I have referred, and the refusal of planning permission.  On 10 March 2011 the appeal was recovered by the first defendant, and in the result there was an inquiry held by a Planning Inspector that recommended that both appeals be dismissed and the enforcement notice upheld, albeit with variations not material to the proceedings before me.  By a letter of 18 August 2011 the first defendant agreed with the recommendations of the Inspector, dismissed the appeals and upheld the enforcement notice subject to the variations recorded by the Inspector.

4.	In these proceedings, the claimants challenge the decision to uphold the refusal of planning permission under section 288 of the Town and Country Planning Act 1990 and seek permission to challenge the enforcement decision under section 289 of the Town and Country Planning Act 1990.  In fact, the application under section 289 was issued out of time.  The second defendant objected on that ground to the grant of permission.  However, as the council frankly acknowledged, given that the appeals had been heard together and the substance of the issues between the parties fully argued, the objection was to an extent a technical one.  I agree.  No actual prejudice caused by the delay has been identified, and the assertion that the delay has compromised effective and efficient administration lacks substance given that there is in any event an appeal against the refusal of planning permission, which has to be determined on its merits.  To the extent necessary, therefore, I extend time for applying for permission under section 289.  

5.	As I have said, the relevant decision was that of the first defendant, and it is contained in the letter of 18 August 2011, which I refer to hereafter as “the decision letter”.  It is common ground that the first defendant’s decision letter has to be read together with the report of the Inspector dated 10 June 2011, not least because large parts of the Inspector’s report have been incorporated by reference into the decision letter.  

The Relevant Decisions

6.	The Inspector identified at paragraph 83 of his report the main issues that arose as being: 

“i) The effect of the development on the landscape character of the area and on visual amenity; 
ii) The effect on Hardhorn village and its residents; 
iii) The effect on highway safety; 
iv) The effect on the best and most versatile agricultural land; 
v) The effect on biodiversity and on cultural heritage; 
vi) The need for and provision of sites for gypsies and travellers; 
vii) The accommodation needs of the occupants of the site and the availability of alternative sites; 
viii) The personal circumstances of the occupants of the site; 
ix) The sustainability of the site; 
x) The overall balance in respect of permanent or temporary permission;”

7.	Hereafter, I concentrate on the conclusions of the Inspector and the first defendant in relation to those issues that are centrally material to the appeals before me.  It is to be emphasised, however, that the approach of both the Secretary of State and the Inspector was to reach conclusions concerning each of the issues identified for the purpose of deciding first whether the view arrived at favoured allowing or rejecting the appeal and secondly, in relation to each, the weight that was to be accorded to them in either the support or rejection of the appeals. None of the factors to which I have referred were regarded as of themselves decisive, and no attempt was made at any stage to identify any of the factors as intrinsically more important than any of the others.  This approach is not challenged by the claimant, save in respect of the weight to be accorded to one factor, to which I turn in more detail below.  

8.	In relation to the first of the issues identified by the Inspector, he concluded that the site was located in a landscape with a high sensitivity to change.  At paragraph 87 of the report, he concluded that the development: 

“...appears as a large and striking feature which is both extensive and discordant. It is visually intrusive and alien to the character of the landscape around it. It has an urbanising effect and is unrelated to any pattern of development in the area. The caravans draw the eye and the boundary fencing, which has been erected as a partial screen, is also visually intrusive. The design, layout and form of the development is also at odds with the character of the nearby Hardhorn village, which largely comprises individually designed dwellings. Other elements of the development have also resulted in harm to landscape and visual amenity. They include extensive areas of hardcore, the low bund along the eastern boundary, ornamental planting, the removal of a section of hedgerow near the junction of the access track and Fairfield Road and widening of the track near the site entrance to facilitate vehicle manoeuvring. The development would also result in utility buildings to serve the 15 pitches. It has diminished the tranquility of the area.”

9.	This led the Inspector to conclude that if planning permission were to be granted, a landscaping scheme would be required.  The second defendant’s witnesses suggested to the Inspector that this would need to include a woodland planting belt of locally occurring species at least 15 metres wide around the perimeter of the site.  It was accepted that such a screen would overcome the visual impact of the site.  However, the Inspector concluded that such a scheme would itself have an adverse impact and would take many years to achieve the necessary screening effect.  As he put it in paragraph 88 of the report: 

“It would radically alter the view southwards from Fairfield Road and the field north of the site would appear visually isolated. It is estimated that such a planting belt would take about 7 to 10 years to achieve a good visual screen, so that the landscape and visual harm would persist over a lengthy period. Such a requirement would be excessive and ineffective if a temporary permission was granted. No other form of landscaping which would be effective in blending this site into its surroundings been put forward.”

This led the Inspector to conclude at paragraphs 89 to 90 of his report: 

“89. Paragraph 54 of Circular 1/2006 says that rural sites not subject to special planning constraints are acceptable in principle and a degree of harm to local character and appearance is not unusual with gypsy and traveller sites. However, the Circular does not override other national planning policy and, as I set out above, this development results in substantial harm. It conflicts with Policy EC6 of PPS4, which continues the protection of the countryside for its intrinsic character and beauty and the diversity of its landscapes previously found in PPS7. It also conflicts with the protection of environmental quality and assets in RSS policies DP7 and EM1. It is not within the acceptable categories of development in LP policy SP2 and does not avoid harm to countryside character as required by that policy. The harm to landscape and visual amenity also conflicts with LP policies HL8 and EP11. 

90. I conclude on this matter that the development results in a significant and substantial adverse impact on the landscape and a significant substantial impact on visual amenity. That harm could not be overcome by effective landscaping measures within a reasonable period of time.”

10.	The first defendant adopted this reasoning in its entirety in paragraph 13 of its decision letter, where the first defendant’s conclusion was expressed in these terms: 

“He shares the Inspector’s conclusion that the development results in a significant and substantial adverse impact on the landscape and on visual amenity and that this harm could not be overcome by effective landscaping measures within a reasonable period of time ...”

11.	In relation to the effect on Hardhorn Village and its inhabitants, the Inspector concluded that the proposed development did not respect the small scale of the village and that weighed against the development, but the effect on outlook and from noise disturbance and anti-social behaviour was not sufficient to weigh against the development.  The first defendant accepted this analysis, save that the first defendant considered that greater adverse weight should be given to the anti-social behaviour issue - see paragraph 14 of the decision letter.

12.	In relation to highway safety, the Inspector concluded that the development would result in material harm to highway safety for reasons set out in paragraphs 95 to 105 of the report.  The first defendant agreed with this - see paragraph 15 of the decision letter.  The Secretary of State and the Inspector concluded that the loss of agricultural land was not material and that little weight was to be given to the effect on biodiversity.  The first defendant agreed with this approach of the Inspector, as is apparent from paragraphs 16 to 17 of the decision letter.

13.	In relation to the need for and provision of sites for gypsies and travellers, the Inspector concluded that, although need within the area of the Second Defendant had not been demonstrated, the evidence of need in the wider area was a significant material consideration in favour of the application.  The first defendant adopted this analysis at paragraph 18 of the decision letter.

14.	I turn now to the accommodation needs and personal circumstances of the occupants.  At paragraphs 118 to 119 of his report, the Inspector said this on that issue: 

“118. The site is occupied by 78 people, including 39 children. With the exception of two Scottish Travellers, they are all Irish Travellers. Irish Travellers are a distinct ethnic and cultural group with a long history of travelling around Britain and Ireland in large groups. Mrs. Heine’s evidence summarises (at paragraph 6.10) the results of a study of Irish Travellers. It refers to problems of disadvantage and marginalisation, high levels of discrimination, harassment, a lack of sites and insecure, unhealthy living conditions. Irish Travellers are less likely to have a settled base than many Romany Gypsies. 

119.	Irish Travellers in general and this group in particular attach great importance to travelling and living together as an extended family. This group has been unable to do so until now because no site has been available. They comprise four closely related family groups and have led a highly nomadic life, never living in houses. They have travelled extensively, mostly in the north of England and particularly in the area between Stockport in the south and Blackpool and Fleetwood in the north. They have lived on the roadside or on other unauthorised sites, including land in Blackpool, Fylde and Wyre districts. They have frequently been moved on by the police, often at short notice. Their need is for a site of sufficient size to accommodate the group in order to allow easy access to basic sanitary facilities and to provide a settled base from which to travel for work purposes and allow better access to health, education and other services.”

In relation to the personal circumstances of the claimants, the Inspector said this at paragraph 122 of his report: 

“122. A roadside existence does not preclude all access to education. Nevertheless, it is very likely that if the travellers were obliged to leave the appeal site with no alternative site to go to there would be serious disruption to the education of the 22 children currently attending school. It is also likely that the education of those on school waiting lists would be disrupted. Mrs  Hartley has no medical qualifications but her work requires close liaison with health professionals. Her evidence on medical matters is detailed and credible. A roadside existence would make access to health care considerably more difficult, with the potential for a harmful effect on the health of some members of the group, including those with significant existing medical conditions.”

In passing, and in relation to sustainability, the Inspector noted at paragraph 123 of the report: 

“In this case sustainability is enhanced by the benefits of a settled site in terms of access to health and education, and avoidance of long-distance travelling and environmental damage associated with unauthorised encampments.”

15.	In relation to the personal circumstances of the claimants, the first defendant agreed that the need for accommodation, in combination with the absence of alternative sites, weighed in favour of the development.  As to personal circumstances, the first defendant said at paragraphs 20 to 21 of the decision letter: 

“20. The Secretary of State ... agrees with the Inspector that, if the travellers were obliged to leave the site with no alternative site to go to, there would be serious disruption to the education of the children currently attending school (IR 122). The Secretary of State is satisfied that the evidence in this case justifies attributing significant weight to continuity of education. The Secretary of State shares the Inspector's view that a roadside existence would make access to health care considerably more difficult, with the potential for a harmful effect on the health of some members of the group,
including those with significant existing medical conditions (IR122). He attributes moderate weight to the health needs of the site occupants.  

21. The Secretary of State agrees ... that in this case, sustainability is enhanced by the benefits of a settled site in terms of access to health and education, and avoidance of long-distance travelling and environmental damage associated with unauthorised encampments.”

16.	In concluding that planning permission ought to be refused, the Inspector said at paragraph 128 of his report: 

“Although the GTAA did not demonstrate an immediate, unmet need for additional Gypsy and Traveller sites in the Fylde Borough, in my judgement the unmet need for sites in the wider area, which has not been effectively addressed over a long period, is worthy of considerable weight. There is also considerable uncertainty as to when and how that wider need will be addressed and met. There are no available and suitable alternative sites for this large group of Irish Travellers, either in Fylde or the wider area. They have a strong personal need for a settled base from which to access work, education, medical and other services and this site is in a reasonably sustainable location. Eviction from this site would probably lead to a roadside existence and that would be likely to adversely affect those on the site with significant medical conditions and the children’s access to education. Reversion to a roadside existence could also have adverse environmental and other impacts elsewhere. These are also considerations worthy of substantial weight in the appellants favour. Nevertheless, having particular regard to the effect on the landscape, visual amenity and highway safety, I consider that the overall balance does not justify the granting of permanent planning permission for this development.”

17.	Temporary permission was recommended for refusal because there was no prospect of alternative sites becoming available within the period covered by a temporary permission and because of the nature and extent of the harm to the landscape, visual amenity and highway safety acknowledged in relation to the application for permanent permission, and notwithstanding the weight to be given to unmet need.

18.	Article 8 of the European Convention on Human Rights received specific consideration.  The interference with the homes of the claimants, their family and private lives, was balanced against those of the wider public interest, and the Inspector concluded at paragraph 135 of the report: 

“With regard to both permanent and temporary permissions, the harm which would continue to be caused by the development, particularly in terms of the protection of the environment and safety, is considerable. Taking into account all the material considerations, including the appellants’ personal circumstances, I am satisfied that this legitimate aim can only be safeguarded by the dismissal of these appeals combined with the extension of the period for compliance with the requirements of the enforcement notice to which I refer above [132-133]. The protection of the public interest cannot be achieved by means which are less interfering of the appellants’ rights. Such a decision would therefore be proportionate and necessary in the circumstances and hence would not result in a violation of the appellants’ rights under Article 8 of the European Convention on Human Rights.”

19.	The first defendant accepted the substance of this at paragraphs 23 to 26 of the decision letter.  In doing so, the decision letter said at paragraph 24:

“The Secretary of State has attributed significant weight to continuity of education and moderate weight to the occupants’ health needs (paragraph 20 above). These matters, and the avoidance of potential adverse impacts which may arise if the appellants were to take up a roadside existence, are all considerations which the Secretary of State weighs in support of the appeal scheme.”

The Grounds

20.	Originally there were four grounds of challenge, being those summarised at paragraph 27 of the first defendant’s skeleton submissions.  What was argued at the hearing was: 
a.	Primarily, that the decisions ought to be quashed and/or remitted for further consideration because the first defendant had failed to take into account a relevant consideration, namely the best interests of the children of the claimants, or had failed to accord it the weight required to be accorded to it as a matter of law; and 
b.	a challenge to the conclusion that harm to the landscape and visual amenity could not be overcome by effective landscaping within a reasonable period of time.  As to this, it was submitted that: 
i.	the reasoning was deficient because the decision letter fails to explain whether the other harmful effects were such that permission could not be justified, even though visual screening would be achieved eventually; and/or 
ii.	the reasons given did not satisfy the test for adequacy of reasons because they did not explain why permission was to be refused, notwithstanding that damage to visual amenity would be eliminated eventually.

16.	Originally, Ground 2 was a challenge to the refusal to grant temporary permission that was expressly abandoned by paragraph 3 of the claimant’s supplemental written submissions.  Similarly, an assertion by the claimant that the first defendant had acted unlawfully by failing to take account of breaches by relevant housing authorities of section 225 of the Housing Act 2004 was not relied on at the hearing.  

17.	With these preliminaries put to one side, I turn to each of the grounds relied upon in turn.  

The Best Interests Ground

18.	This was the primary ground relied on at the hearing.  In summary, the claimant’s submission was that, as a matter of law, the first defendant was required to treat the best interests of children of the occupiers of the site as a primary consideration in deciding whether planning permission ought to be granted.  It was submitted that this required the first defendant to identify this issue as a primary consideration and then to decide whether any of the other factors, either individually or collectively, outweighed that consideration.  It was submitted that this task had not been undertaken either in form or substance and thus the rejection of the claimant’s appeal against the refusal of planning permission ought to be quashed pursuant to section 288(5)(b) of the 1990 Act and/or the enforcement notice appeal ought to be remitted for further consideration under section 289 of the 1990 Act.

19.	The defendants’ case on this issue was that the claimant should not be permitted to argue the point at all because it was not before the Inspector or the first defendant, or was not put before either by or on behalf of the claimants.  But in any event, it should be rejected because: 

a.	as a matter of substance, the best interests of the children had been weighed against the other factors and it had been concluded that those other factors were determinative in the particular circumstances of this case; 
b.	weight was a matter for the Secretary of State and/or the Inspector, not the court, unless there was an irrationality challenge, which was not the position here; 
c.	even if the point had technical merit, there was no basis for concluding that there was a real possibility of a different outcome, and thus no substantive remedy ought to be granted; and
d.	in any event, as a matter of discretion, the decision ought not to be quashed.

20.	Although the first defendant argues that I ought not to consider the best interests point at all, because it was not argued before the Inspector or made the subject of submissions to the first defendant, I prefer to consider the substance of the point first, not least because it was submitted on behalf of the claimant that, on proper analysis, the point is one that should be treated similarly to the race relations issue that arose in R (Baker) v SSCLG [2008] EWCA Civ 141.  Deciding whether this is so involves consideration of the substance of the best interests point, and thus justifies the approach I intend to adopt.

21.	It was submitted on behalf of the claimant that the point is one that must be approached by analogy with the reasoning of the Supreme Court in ZH (Tanzania) v SSHD [2011] UKSC 4, [2011] 2 AC 166.  At an early stage in the hearing, I asked whether the underlying requirement identified in that case to give effect to Article 3.1 of the United Nations Convention on the Rights of the Child applied in a planning context.  This issue was considered by Ouseley J in R(Sheridan & Ors) v Basildon DC [2011] EWHC 2938.  As Ouseley J noted in paragraph 97 of his judgment in that case, Article 3.1 of the Convention was given effect to in domestic law by section 11 of the Children Act 2004.  Section 11(1) of that Act provides that section 11 applies to a local authority in England.  Section 11(2) provides: 

“Each person and body to whom this section applies must make arrangements for ensuring that—

(a)	their functions are discharged having regard to the need to safeguard and promote the welfare of children; and

(b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.”

Section 11(4) of the 2004 Act provides: 

“Each person and body to whom this section applies must in discharging their duty under this section have regard to any guidance given to them for the purpose by the Secretary of State.”

but, as noted by Ouseley J in Sheridan, no such guidance had been given in relation to planning matters.

22.	Immigration authorities were excused from compliance with the section 11 duty until section 55 of the Borders, Citizenship and Immigration Act 2009 came into force.  That section provides, insofar as is material, as follows: 

“(1) The Secretary of State must make arrangements for ensuring that—

(a)	the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom ...”

It was this provision which was considered by the Supreme Court in ZH.  While the context was different -  ZH was concerned with an immigration decision and this case is concerned with a planning decision.  However, the language of section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009 is identical, because it was the means by which the international obligation imposed by the United Nations Convention to which I have referred was carried into English law.  Article 3.1 of the Convention requires all relevant authorities to treat “the best interests of the child” as “a primary consideration”.

23.	ZH is authority for the proposition that the need to safeguard and promote the welfare of children requires that the relevant authorities treat the best interests of children affected as a primary consideration.  It was this that led Ouseley J in Sheridan to conclude, at paragraph 129 of his judgment in that case, that there was a duty resting on the LPA in that case, when considering whether to enforce planning control, to have regard to the best interests of the children concerned as a primary consideration.  I agree with that analysis.  The nature of this requirement was considered in ZH.  It was described by Baroness Hale in these terms at paragraph 26 of her judgment in that case: 

“This did not mean (as it would do in other contexts) that identifying their best interests would lead inexorably to a decision in conformity with those interests. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia.”

In the context of an Article 8 assessment, Baroness Hale said at paragraph 33: 

“In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created. But, as the Tribunal rightly pointed out, the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her.”
 
It was submitted on behalf of the claimant that, because the format apparently identified by Baroness Hale of requiring the best interests of children to be considered first was not expressly adopted, either by the Inspector or the first defendant, the decision challenge must necessarily be flawed and quashed or remitted accordingly.  I do not accept that to be correct, nor do I believe that was what Baroness Hale meant by the portions of her judgment I have cited above.  In my judgment, what matters is not form but substance, and whether it can be said that the approach identified in paragraph 26 of Baroness Hale’s judgment has been followed as a matter of substance.

24.	Against that background, I now turn to the claimant’s submissions specific to this point.  They are very similar to those that were made on behalf of the claimant in Sheridan, summarised at paragraphs 98 to 99 of Ouseley J’s judgment in that case.  In essence, it was submitted that neither the Inspector nor the first defendant approached the issue correctly.  The correct approach involved identifying the interests of the children as a primary consideration, identifying that the interests of the children lay in the grant of permission and then asking whether any other of the factors identified, either individually or collectively, weighed against that conclusion sufficiently to negative that outcome.  

25.	First, I do not accept that the failure explicitly to identify the interests of the children as being a primary consideration is material.  The issue is whether, as a matter of substance, that was the approach of the decision maker.  This accords with the view of Ouseley J expressed at paragraph 129 of his judgment in Sheridan, with which I respectfully agree.  Secondly, the claimant maintains that the decision maker has breached the duty by limiting the inquiry merely to health and education.  It applies, so it was submitted, with equal force to issues such as the ability of children to form and maintain, and retain, friendships; to be protected from social isolation, from the necessarily traumatic experiences implicit in eviction and from the health and safety risks implicit in roadside living.

26.	In my judgment, once it is accepted that the question is one of substance not form, and once it is accepted that the decision letter and Inspector’s report have to be read together, the claimant’s submission that the decision maker failed to treat the best interests of the children as a primary consideration cannot be maintained.  The personal circumstances and accommodation needs of the occupants of the site necessarily included the children who lived at the site, and that issue was expressly identified by the Inspector as being two of the main considerations relevant to the appeal - see the report at paragraph 83.  The Inspector identified expressly that there were 39 children who lived at the site - see paragraph 118 of the report.  He referred in terms to the problems of disadvantage and marginalisation, and insecure and unhealthy living conditions - see paragraph 118 of the report.  He acknowledged that the claimants had frequently been moved on by the police, often at short notice - see again paragraph 118 of the report - and that the claimants, and, therefore, by necessarily implication, the children, had a need for a site with easy access to sanitary facilities and which provided a settled base allowing better access to health and education.  This latter point was necessarily a reference specifically to the needs of the children who lived at the site.

27.	At paragraph 122 the Inspector acknowledged the serious adverse effect on the education needs of the children on site and the deleterious effect on the health of the claimants, and therefore their children, of not having homes on a settled site.  The emphasis on health and education reflects the contents of Circular No. 01/06 entitled Planning for Gypsy and Traveller Caravan Sites, and in particular at paragraph 5 of that Circular.  The Secretary of State’s approach was to attribute “significant weight” to the education issue and “moderate weight” to the health issue.

28.	Like Ouseley J in Sheridan, I conclude that it is difficult to read either the report of the Inspector or the decision letter as treating the education and health issues as anything other than primary considerations.  They were considered as such.  In paragraph 24 of the decision letter, the first defendant said in terms that significant weight had been attached to the continuity of education, and moderate weight to the occupant’s health needs, as supporting the scheme.  The judgment of the first defendant was, however, that substantial weight was to be given to the harm to the landscape resulting from the development and the harm to visual amenity.  He also attached considerable weight to the harm to road safety.  This led the first defendant to conclude that the overall balance of these issues did not justify the grant of permission.  

29.	In my judgment, there was nothing wrong in substance with this approach.  Neither the first defendant nor the Inspector treated those considerations that pointed towards a refusal as “… inherently more significant …” than the interests of the children on site.  Thus there was not a departure by the first defendant or the Inspector from the approach set out by Baroness Hale in ZH as a matter of substance.  Rather, the approach of the decision maker was that contemplated by Baroness Hale, namely that following a fact-sensitive analysis of all the relevant material considerations relevant to the particular appeals under consideration, he had concluded that the negative factors identified outweighed cumulatively the best interests of the children, being primarily their education and health needs.

30.	It was submitted that this was unlawful because greater weight was required to be given to the interests of children than in fact had been given, either by the Inspector or by the Secretary of State.  I do not agree.  It has been the established law for many years, as stated by Lord Hoffmann in Tesco Stores v The Environment Secretary [1995] 1 WLR 759 at 780 that: 

“. ... The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process. 
This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.”

The only gloss on that which is necessary is that applied by Baroness Hale in ZH, namely that the decision maker should not treat any otherwise material consideration as inherently more significant than the interests of any relevant children.  Subject to that, and subject to the availability of a Wednesbury irrationality challenge, the weight to be given to the various material factors in a particular case is exclusively a matter for the decision maker, 

31.	The claimants submitted that the decision making exercise was legally flawed, because it was confined in its focus concerning the interests specifically of the occupants, including therefore the children, to health and education issues and did not consider the wider issue of social isolation, coupled with the adverse effects of forcible eviction from sites on short notice. As far as I can see, that is not a factual issue that was deployed before the Inspector or the Secretary of State.  Counsel for the claimant drew my attention to the factual evidence on which reliance was placed as being at pages 161; 165, paragraphs 12 to 14; 166, paragraphs 4 through 6; 167 and 169; and 170, paragraph 17.  This material, insofar as it is relevant to the children at all, focuses exclusively on the benefits of living on a fixed site from an education and health perspective.  That being so, in my judgment no legitimate claim can be advanced about a failure to consider a matter of fact that was not raised by the claimant either before the Inspector or the first defendant.

32.	In any event, there is no obligation to refer to every material consideration when reaching a conclusion.  The absence of a reference to this factor, if identified to the Inspector and the Secretary of State at all, would only be relevant if it could be inferred from the failure to mention it that thereby it was not taken into account.  The point is not one that satisfies the test identified by Lord Lloyd in Bolton MDC v SSE [1995] 3 PLR 37 at 43 D-G.  There is no realistic basis on which it could be thought that a different conclusion could have been reached by reference to this factual point, given the overall conclusions and reasons for them.

33.	For those reasons, I reject the claimant’s principal ground of challenge to the first defendant’s decision.  In those circumstances, it is not necessary that I consider further the issue concerning whether the claimant should be permitted to argue the point at all because it was not argued before the Inspector or the first defendant.  

The Landscape Point

34.	I can address this issue rather more shortly than the best interests point.  The complaint appears to be that the decision maker failed to take account of the fact that once the landscaping that the Second Defendant’s witness accepted would ameliorate the visual amenity factor had matured, the issue would by definition cease to be material.  This point is advanced either on the basis of it being a failure to take any account of a material consideration, and thus is an error of law, or on the basis of a reasons challenge, it being said that the reasoning is defective because it does not explain what the position would be once the visual impact issue had been addressed by screening.

35.	I reject each of these challenges as wholly unsustainable.  The reasoning of the Inspector, which was accepted by the first defendant, was that, absent screening, the development results in a significant and substantial adverse impact on the landscape and visual amenity.  That is not challenged.  The proposal, and the only proposal, advanced to ameliorate the adverse effects to which I have referred was one which would take seven to ten years to reach maturity.  That was not regarded as a means by which the adverse impact could be neutralised within a reasonable period.  That conclusion, again, is not challenged.  These factors were not treated as in any sense conclusive, but rather they were weighed with other factors that I identified earlier in this judgment.  

36.	In those circumstances, I do not see how what the position might be in eight to ten years’ time is a material consideration.  That is particularly so given the conclusion that the screening would itself have an adverse impact.  Thus, it was not the view of the Inspector or the first defendant that the development would become acceptable in the longer term.  Rather, as is manifest from the report and from the decision letter, the Inspector and the decision maker both consider that the screen would bring with it its own harm.

37.	As to the reasons challenge, the principles are well known.  They were authoritatively stated by Lord Brown in South Bucks District Council v Porter (No. 2) [2004] UKHL 33, [2004] 1 WLR 1953 at paragraph 36 in these terms: 

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”

38.	The claimant in these proceedings relied in particular on the asserted inability on the part of the claimants to assess the prospects of getting permission for an alternative development in the future on the assumption that the screening had been planted and had matured as being material to the issue now under consideration.  It was not for the Inspector or the decision-maker to speculate hypothetically on what might be acceptable at some future date.   It is not the function of reasons given for rejecting an application or appeal to speculate on hypotheses that are theoretical, speculative, and premised on applications many years in the future.  In my judgment, the reasoning contained in the Inspector’s report and the decision letter, when read together, more than satisfies the requirements identified in Porter and thus I reject the challenge advanced in relation to the landscaping issue.

Conclusions

39.	For the reasons that I have set out above, these appeals must be dismissed.

Judge Pelling QC:  Yes?

Mr Helme:  My Lord, I seek an order in those terms.  I also seek costs in the sum of £16,870.20.

Judge Pelling QC:  Yes, that is the schedule attached to the Treasury Solicitor’s letter of 14 September.

Mr Helme:  There is a later version which will encompass my costs of today.  Might I hand that up if you do not have a copy?

Judge Pelling QC:  Yes, thank you.  This is covering the costs obviously of attendance today?

Mr Helme:  Indeed so.

Judge Pelling QC:  Yes.  So what you are asking is for a summary assessment?

Mr Helme:  A summary assessment in that sum, yes.

Judge Pelling QC:  All right.  Do you oppose a summary assessment?

Mr Cottle:  I would like it go off to a costs judge, but otherwise I am going to address you if we are going to carry on with a summary assessment.

Judge Pelling QC:  Right, of course, but go off to the detailed assessment, why?

Mr Cottle:  Because it appears in this case it is unusual, and it requires an explanation.  For example, we have attendance on counsel of 13.4 hours, we have attendance on client of 8.4 hours, and we have work done on the documents of over 21 hours.  

Judge Pelling QC:  I have not even got this far.

Mr Cottle:  Work on the documents is over the page.

Judge Pelling QC:  Yes.

Mr Cottle:  I can understand Treasury Solicitors having some time in relation to counsel.

Judge Pelling QC:  Yes.

Mr Cottle:  I can understand Treasury Solicitors having some time with the client, but it is rather difficult to imagine what time is there for the client.

Judge Pelling QC:  There are two approaches.  You can either send that off to detailed assessment with an interim payment now, which as you know can lead to significantly greater costs than on an assessment, or you can make submissions in relation to these points which I then take into account as part of the summary assessment.

Mr Cottle:  At the moment I --

Judge Pelling QC:  Your preferred course is detailed assessment?  

Mr Cottle:  That is right.  At the moment we do not have enough information and therefore we should reduce the hours on attendance on client.  For example, you imagine that the decision that has been issued is a challenge on an error of law and the decision speaks for itself.  So what room is there for 8.4 hours at £200 an hour?  Attendance on client --

Judge Pelling QC:  That is all day, is it not?  That is a whole day.

Mr Cottle:  You could bring it down to £200 and be applying a robust approach, and saying you can have £200 in that regard.  And then attendance on counsel, again I can only speak from my own experience.  Here is a decision letter.  Are there grounds to appeal?  Oh there are, are there?  Well, we will go ahead and we will lodge.  Can we have a skeleton argument please, and then can we receive an advice?  So --

Judge Pelling QC:  I suppose there be grounds and the skeleton.

Mr Cottle:  That is right.  So the counsel will be asked, but what is the solicitor doing in terms of attendance on counsel?  Again, I would ask that realistically attendance on counsel would be one or two hours.

Judge Pelling QC:  But that will probably include preparing instructions, won’t it?

Mr Cottle:  It certainly would include sending off the decision letter, sending off the Grounds of Appeal, and saying should we for the purposes of the acknowledgment contest this or not?

Judge Pelling QC:  Yes.

Mr Cottle:  We are inclined to contest it.  Does counsel agree?  Although it may even be the instructions would be sent off after the acknowledgment has been entered contesting it.  But again, I just do not see 13.4 hours.

Judge Pelling QC:  Yes.

Mr Cottle:  Then attendance on opponents.  I am instructed by my instructing solicitor that there were 14 short emails and we cannot see where the four hours has come from.  Again, I am not asking for the extent of radical reduction that I would ask in respect of the earlier two, but consider five hours for 14 short emails, which is what I am instructed is what it comprised, maybe one hour, two hours, but to halve it at least.  Attendances on others, we are not quite sure what that is, but we suspect it might be the local planning authority, but our concentration is focused over the page at attendance on documents, and I do not know how much you gained from reading the other references in the Collins witness statement that you referred to, but really essentially this case is about what is in the decision letter and the Inspector’s report.  So in those circumstances, with work done on the documents, when the bundle is prepared by the claimant’s solicitors, what happened in this case is that the second defendant’s solicitors did ask for a lot of further material to be put in and we faithfully did that.  But in terms of altering the adequacy of the decision letter or the Inspector’s report, there was not reference by me to the Atherton material, the evidence material that the Second Defendant had wanted in which came in through the statement of Ms Ormes.  So if there was something in my learned friend’s skeleton argument that took you to references in those documents, then I could understand the trail that preceded that.  But there is not anything in Mr Whale’s skeleton argument that takes you into plumbing the depths of those documents, and so again --

Judge Pelling QC:  I think the only reference to the underlying documents was the reference you kindly gave to me, which I referred to in the judgment.

Mr Cottle:  That is right.  So again, I am inviting you at this stage to reduce it to two hours of work done on documents.  And I do not understand the difference between the £80 per hour and the £200, but even if it was the £200 --

Judge Pelling QC:  The answer is that one is an A fee earner, and the other is a B fee earner.

Mr Cottle:  That is right, but what were they doing?  And maybe they were copying the bundle for the purposes of supplying brief to counsel.  And we could imagine that instead of 15.8 hours, we can see properly two hours, and we can imagine that in terms of putting a bundle through a photocopier which these days takes us less than half an hour, but in terms of sending it off, something like two or three hours, and one hour at the junior rate, but it reduces from a hefty amount down.  I do have authority for the proposition from Motto and Ors v Trafigura and (inaudible) case, but I do not need to take you into all that, and Lord Neuberger said, well it is necessity and reasonableness, there is not much of a difference but obviously necessity is a little more strict, although it is not necessity in the strictest sense.

Judge Pelling QC:  I think the way (inaudible) works is you have to ask yourself whether overall the figure is excessive.  If you come to the conclusion it is excessive, then you start on a bottom-up exercise testing necessity on the way up. 

Mr Cottle:  And also in relation to attendances at hearing, I do not have those instructing me behind me.  It is different for the claimant’s point of view, where you have one client representing 79.  I am not sure, certainly in my experience of doing these High Court applications, that the Treasury Solicitors (inaudible) attendance at court, and we question the £200 an hour for yesterday and today, which includes the accommodation as well at the bottom.  We also question the £200 an hour for travelling, which again is irregular because you might get an administrative rate for travelling, but you would not get the top whack for travelling.  They asked for it to come to Manchester; it is just one of those things.  Certainly, my brief fee was equivalent to sort of Mr Whale’s brief fee.  And those are the substantial costs in this case, because specifically the council are arguing the point of law.

Judge Pelling QC:  Yes, I see.

Mr Cottle:  So therefore we do take exception, certainly in my experience of dealing with Treasury Solicitors cases, I happen to have been successful, but I also happen to have been unsuccessful in other cases, and it is substantially more in the respects that I am pointing out, certainly in terms of attendance on client and attendance on counsel and work on the documents.  It is exceptional to see such significant figures.

Judge Pelling QC:  Very good.

Mr Cottle:  So therefore I would be asking you to reduce the bill down to nearer, well I get to £7,000 if you accepted reducing the attendance on client to two hours, if you accept reducing the attendance on counsel to two hours, and if you accept reducing the perusal of documents as radically as I suggested, then you would come down to approximately -- 

Judge Pelling QC:  You were two hours on that as well, right?

Mr Cottle:  Yes, approximately half of what has been claimed.  That is why it is a problem, because it requires an explanation really as to the justification.  That is where the costs judgment would come in.  But it is easy, you are right, and it saves the court time of the costs judge --

Judge Pelling QC:  It saves also expense to all parties, because the detailed assessment is an expensive process.

Mr Cottle:  That is right.

Judge Pelling QC:  Yes.  Very good.  Have you any views on, first of all, detailed against summary?

Mr Cottle:  Yes, we are still keen to go for a summary assessment.  It seems to my client the point that it is a waste of expense and time to go to detailed assessment.  So unless you want more on that, that is our strong grounds.

Costs judgment 1

HHJ Pelling QC:  

The first issue which arises in relation to costs in these proceedings is whether I should order a detailed assessment or proceed by way of summary assessment.  Counsel for the claimant has identified a number of fairly substantial challenges to the summary assessment costs statement, and maintains that in consequence it would be more appropriate to order a detailed assessment than to proceed on a summary assessment.  However, the experience of the court is that the issues which counsel has identified, being apparently excessive hours worked in relation to specific areas of work, are issues which the court is familiar with dealing with in the context of summary assessments.  The difficulty with detailed assessments is it takes up court resources and is extremely expensive so far as parties are concerned, and takes a very considerable amount of time to go through the court system.  It is far better that all parties should be aware of the position as soon as possible.  Furthermore, experience suggests that the paying party usually benefits from a summary assessment over a detailed assessment, because in the course of the detailed assessment significantly more cost-sensitive items emerge, which frequently has the effect of increasing what is recovered by the receiving party over what might have been recovered at a summary assessment. Summary assessment is the course which the Treasury Solicitor invites me to adopt, and since the Treasury Solicitor is the receiving party the Treasury Solicitor is the one at risk from the process.  In those circumstances, I am going to proceed by way of summary assessment.  

Judge Pelling QC. Yes?  Right, you have heard counsel’s submissions in relation to the points which are being made, which are excessive attendance on client, excessive attendance on counsel, excessive attendance on opponents, others are not identified, and 22 hours of attendance on documents given the work done by counsel is also excessive.

Mr Helme:  Yes, thank you, my Lord.

Judge Pelling QC:  And also travelling, and the hotel costs as well.  So, what do you have to say about that?

Mr Helme:  My Lord, it is important at the outset to recognise that this is a case of some importance in relation to the underlying issues, not least in relation to the children issues, and one which needed therefore to be litigated with care on behalf of the Secretary of State.  It raises significant issues of policy and law, and it is therefore necessary to have significant involvement not only through counsel but also through a solicitor of experience and seniority.  It is a perfectly proper and reasonable approach to have been adopted.  It is also a case which has had a somewhat chequered procedural history in terms of interim applications, various versions of the bundle, those sorts of things, which add not only to the time taken in relation to the case, but of course to the expenses which have been incurred.  Finally, by way of introduction, it is a case which has been litigated by the claimant in a manner which is to a large extent unclear and prolix, and has pursued various points none of which have found favour with the court.  All of those factors give rise to a larger reasonably incurred costs burden than would be the case in a different, simpler case.  So that is by way of introduction.  In terms of the specific points that are made against the statement of costs, the attendances on client and the documents I can take together are both suggested to be excessive.  This is a case, I am told from behind me, in which the advice was given by the solicitor, and times in relation to that matter are encompassed within the attendances on client and the work done on documents.  The figures are not, in my submission, in any way excessive, given the difficulties and complexities of the case and of understanding the claimant’s position.

Judge Pelling QC:  I do not entirely follow that, I have to say.  Assuming for the purposes of this exercise that the solicitors prepare advice.

Mr Helme:  Yes.

Judge Pelling QC:  Advice is given either in writing or in a meeting or conference.  I do not see at the moment how attendances on clients of 8.4 hours is necessary in order to deliver advice in relation to the issues that arise in this case.

Mr Helme:  It is not purely in relation to that issue.  This is a case which has gone on for some time, and therefore which has required attendances, as I understand it, on various occasions, and it is a case of some complexity.  It takes time to bottom out a large number of issues which were raised and which needed to be responded to by the Secretary of State as the First Defendant.

Judge Pelling QC:  Well, what?  This is a challenge which involves looking at the decision letter, looking at the Inspector’s report, and then asking whether the errors of law identified by the claimant, insofar as they are discernible, and I know you have a point about that, are capable of being argued by reference to those two documents.  It is not a rerun of the facts.

Mr Helme:  It is not a rerun of the facts, but it does require an understanding of the underlying issues, which requires an understanding of the underlying documentation in the case, and this is reasonably substantial in this case.  It is not just a question of what ends up in the final bundle, it is a question of a reasonable attempt to understand the issues at play, and those issues are reasonably substantial and to a certain extent unclear in terms of how they have been pleaded and later addressed in the skeletons.  That all adds to the costs and to the time taken by solicitors, and by solicitors at a senior level, which is in my submission perfectly appropriate.

Judge Pelling QC:  Yes.

Mr Helme:  So that deals with those two points.  In terms of attendances on counsel --

Judge Pelling QC:  Just so I am clear, so that is your answer both to attendances on client, 8.4 hours, and all the work done on documents, 21 hours, or 22 hours?

Mr Helme:  Yes, it is.  It is a broad answer, a necessarily broad answer, but the point is that this is a case of complexity which has been pursued in a manner which is difficult to understand, and it takes that sort of time reasonably to respond to properly, and it needs to be responded to properly because it is a case of potential importance and potential wider importance, particularly in relation to the best interests point.  That feeds through, of course, into attendance on counsel as well, because the unclarity in the pleading of the case and the complexity of the issues requires more involvement in terms of dealing with counsel than you might expect in any straightforward case, where all you have to do is read an Inspector’s report and decision letter and simply respond.  This is not, in my submission, that sort of case. 

Judge Pelling QC:  Pause there.  Attendances on counsel.  Counsel at the moment is in for advice, conference and documents, £1,275, and the fee for the hearing, £1,650, right?

Mr Helme:  Yes.

Judge Pelling QC:  So we have 13.4 hours of attendance of counsel, which is very close to two working days.  What was going on?  What takes up that amount of time?  If the legal research work and advice is being given by the solicitor, then what you would expect is that the Treasury Solicitor would deliver instructions to counsel which would include a summary of the advice given, the relevant documents, which are the decision letter, the Inspector’s report, possibly some underlying material, with a request to settle grounds in accordance with the advice given, and/or prepare a skeleton.  What of that takes 13.5 hours?

Mr Helme:  You will be aware, my Lord, that I have not been counsel until today.

Judge Pelling QC:  That is why I asked you whether you wanted to go the detailed as opposed to summary assessment route. You said you wanted to go summary assessment, so these are the issues that arise.

Mr Helme:  No, I perfectly understand that.  I just mean that I would benefit from taking brief instructions from my client.

Judge Pelling QC:  Yes, certainly.

(Pause)

Mr Helme:  I am grateful, my Lord.  So the attendances on counsel incorporates the initial instructions, a certain amount of to and fro --

Judge Pelling QC:  How do you mean the initial instructions?

Mr Helme:  The initial instructions to counsel.

Judge Pelling QC:  The preparation of instructions?

Mr Helme:  In detail.

Judge Pelling QC:  Because that is not normally an attendance on somebody, that is normally work on documents.  But anyway, your instructions are that this figure includes the preparation of written instructions to counsel?

Mr Helme:  Indeed, sir.

Judge Pelling QC:  Yes.

Mr Helme:  Work done in relation to counsel’s skeleton argument, and correspondence between my instructing solicitor and counsel in relation to the skeleton arguments of the other parties, and the supplementary skeleton argument on behalf of the claimant; advice on the interim application made by the local planning authority in the case, in addition.

Judge Pelling QC:  I am sorry, I am not up to speed on that, what was that for?  Are you able to help, what was that for?

Mr Cottle:  The Secretary of State adopted a neutral position in relation to an application made by the Second Defendant under section 289(4) to bring the enforcement notice into operation during the currency of the appeal.

Judge Pelling QC:  Right.

Mr Cottle:  Which it was at liberty to make that application at any point after the --  

Judge Pelling QC:  That was the local authority?

Mr Cottle:  That was the local planning authority, and they took a neutral stance, as they would.  

Judge Pelling QC:  Yes.

Mr Cottle:  They had no involvement with it.  It is not a very difficult decision to take.  Otherwise he would be covering his -- 

Judge Pelling QC:  Yes, I understand.

Mr Cottle:  -- position.

Judge Pelling QC:  Yes?

Mr Helme:  But nonetheless an attendance on counsel.  So there are a number of issues in relation to that, and it takes time to do, and my position in relation to it is that the hours spent and the seniority of the solicitor involved are perfectly reasonable. 

Judge Pelling QC:  Yes.

Mr Helme:  Attendances on opponents then, I am instructed that there are at least 23 emails from the claimant’s instructing solicitor to my instructing solicitor, so it is not as sparse by way of correspondence as is suggested by the claimant.  Again, these things take time, and five hours over the course of a case like this one is in no way excessive, in my submission.  Attendances on others then incorporates the second defendant, the court, and partly also Inspector in relation to this.  And 5.1 hours, again in my submission, is not excessive in relation to that.  In terms of attendance at the hearing then, it is perfectly reasonable for, in a case of this kind, given the substantial involvement of my instructing solicitor, and the importance of the issues in the case for an instructing solicitor at that level to attend the hearing, and to bill fees in the manner set out in the statement of costs, including those travel expenses.  One other point, sorry, in relation to attendance on counsel, of course that --

Judge Pelling QC:  I am not quite sure how you get to seven hours of travelling, to be honest.  It takes two hours to get from London to Manchester by train, so that is four hours there and back.  So where does the other three come from?

Mr Helme:  So that is Monday and today, so it is on two occasions.

Judge Pelling QC:  I see.  

Mr Helme:  Sorry, one point I should have mentioned before in relation to attendances on counsel, that includes of course instructing me for the purposes of today.

Judge Pelling QC:  Yes.

Mr Helme:  So those are the specific points in relation to the schedule, and --

Judge Pelling QC:  What about travel and subsistence, where does that come from, which is the other challenge.

Mr Helme:  So the seven hours travel and waiting?

Judge Pelling QC:  No, in the box.  I think there was a challenge to the accommodation, travel and subsistence.

Mr Helme:  Let me just take instructions.

(Pause)

Mr Helme:  So that relates to accommodation for my instructing solicitor and Stephen Whale, and to travel expenses for those two and also my travel expenses.  Given the travelling times, it is reasonable to have hotel fees for the main hearing in addition to ‑-

Judge Pelling QC:  We have just talked about seven hours of travelling and waiting; how does that fit in with staying up in Manchester?  I have assumed at seven hours, that you would go two hours one way, two hours there, two hours there, and two hours back, that is two days, which is what you said a moment ago.  But if there was accommodation, then how does that fit in?  I am just not following this.

(Pause)

Mr Helme:  There is the journey up on the night before for Stephen Whale, who is my instructing solicitor.  Then a night for each of them at a hotel; then the day of the hearing; then travel down.  And the same for my instructing solicitor in relation to today’s hearing, but not in relation to me, I came up this morning.

Judge Pelling QC:  Hmm.  Right.

Mr Helme:  So the last point then is in relation to the global figure, which is not in my submission a high level for a case of this kind, and is lower than the figure that the claimant has put in in their schedule.  So in addition to the specific points the global figure is not, in my submission, a high figure for a case of this kind.

Judge Pelling QC:  Anything else?

Mr Helme:  I have nothing else, thank you.

Judge Pelling QC:  Thank you very much.  Yes?

Mr Cottle:  My Lord, just to refer you to paragraph 22 of my learned friend’s skeleton argument, Mr Whale, he said the best interests of children is a primary consideration, and rather the question is whether any such duty has been discharged in substance.  So therefore the Secretary of State took the preliminary point that he should be able to argue it, but accepted that the duty would apply, and the question for the court was whether it had been discharged in substance.  

Judge Pelling QC:  Yes.

Mr Cottle:  We should not be paying for a wider consideration of where the Secretary of State stands following ZH in relation to planning appeals.  What happened in this case is that they accepted, subject to the preliminary point, that best interests do apply.

Judge Pelling QC:  Yes.

Mr Cottle:  Should we have to pay on that advice for the difficulty of arriving to that conclusion?  My strong submission is that we should not.  The real issue in this case is whether in substance the duty was discharged, and that relates to the contents of the decision letter.

Judge Pelling QC:  Looking at the three documents, yes.

Mr Cottle:  So therefore I stand by my reduction of £1,500 on the first item.  I say it should be nearer two hours attendance on client.  I stand by my submission that there should be a reduction of £2,000 on the second item; and I say again that attendance on counsel should be two hours.  I hear what my learned friend says about short emails, and there being correspondence between the two, and obviously the difference between 14 and 23, I cannot complain if there was obviously an exchange, and it obviously must have taken time, but that is a small item.  The attendance on others has not really been explained.  I simply do not know what that relates to.

Judge Pelling QC:  It is said that it involved attendance on the second defendant.  Yes, I can see that, but why on the Inspector?

Mr Cottle:  Again, I mean if it is attendance on others would be reduced just to the local planning authority, in effect, because you have attendance on the Inspector, attendance on client is number one.

Judge Pelling QC:  Yes.

Mr Cottle:  And really because the Secretary of State has called it in, and they remain impartial as an impartial tribunal, it may be the subject of a challenge elsewhere, but you heard the argument floated before the decision-maker.  There is not that much room for getting involved with the local planning authority other than administrative issues, like are we going to have it in London rather than having it in Manchester, do you object to it being transferred to Manchester?  It was not difficult to arrive at a position of neutrality in respect of the application to make the enforcement notice, because they always knew that they were going to be neutral on that issue.  Therefore I do ask that you reduce items one and two radically by the extent that I suggested.

Judge Pelling QC:  Yes.

Mr Cottle:  Then in relation to work done on documents, again we are being paid for a wider consideration as to where the Secretary of State was going in planning appeals, and it is no great surprise for interference with Article 8 to be a material consideration in planning matters; there is no great surprise for raising quality issues to be a material consideration; there is no great surprise for best interests being a material consideration in planning matters.  And in my respectful submission, that does not derive from the work done on document; that position derives from the matter of law standing back from the papers and looking at the treaty obligations and ZH in the circumstances.  It did not require that much work to arrive at that position.  So what I have suggested is reducing it down to what you think would be a proportionate amount here, and I suggested in terms of photocopying the bundle to counsel as administrative matters, because they get served with that bundle.  Then we have not really had an answer in regard to attendance at the hearing, which is a point that my instructing solicitor is concerned about because quite often we attend without somebody sitting behind us, or if we do have somebody sitting behind us it is an outdoor clerk or somebody needing to take a note in brief and paid an administrative rate.  I chose to try and distinguish my case for the client; sometimes it is right to have the solicitors for care and conduct of a case on behalf of the claimant where you have clients involved behind you.  But for the Treasury Solicitor, it is quite often the case that even they do not send somebody, or they send somebody more junior.  So what is the justification for having the solicitors for the care and conduct of the case and then for judgment?

Judge Pelling QC:  Yes.

Mr Cottle:  There is no justification.  And the luxury of a private client paying for your accommodation is something that you can agree between the client and your solicitor; it does not make it reasonable for it to be involved in litigation to the extent that it has.  And certainly it would not have arisen had the case not been moved from London to Manchester.  In the circumstances of us being London counsel, we are all going to take it on the chin in respect of that being a product of the case.

Judge Pelling QC:  As we have said, you can travel between London and Manchester without undue hardship or difficulty, specifically without the need to stay over, I think.

Mr Cottle:  Exactly what has been proved, I have done it myself.

Judge Pelling QC:  Right.

Mr Cottle:  So it is possible to look at things reasonably, and in fact if anything I would say this issue was going to be litigated at once stage or another, and the point is not an unreasonable one to fathom whether or not ZH applies outside of the immigration field particularly in the planning sphere.

Judge Pelling QC:  Yes, thank you very much.

Costs judgment 2

Judge Pelling QC:  The issue I have now to grapple with concerns the summary assessment of the Secretary of State’s costs in circumstances where there is a significant challenge to a number of heads of claim.  The first question which has to be addressed is whether or not, having regard to the nature of the claim, the sum claimed is overall an excessive one.  Prima facie there a number of items which give rise to concern, including over eight hours attendances on client, 13 hours attendance on counsel, five hours attendance on others, and over 22 hours of work on documents, all of which are in relation to two appeals where the issues are essentially ones of law, and which depend upon submissions as to whether or not material considerations have been taken into account and/or proper legal approaches adopted in relation to specific points.  All of this leads me to consider that there is a real prospect of these figures being excessive by virtue of the hours worked, and therefore it is necessary for me to consider each of the items claimed and the justification for them.  
	At the outset of the case, counsel submitted that this was a case of great complexity, and therefore by implication at least that a margin of appreciation should be allowed in relation to the hours allowed for the work that was claimed.  I am resistant to that approach, essentially for this reason: complexity is usually relied upon to justify hours worked and/or the seniority of the people concerned; to that extent, I can see arguments for a grade A fee earner being involved rather more than would be the case, but it would not justify more hours than would otherwise be permitted.  The other basis on which that factor is usually relied upon is in relation to rates, but the rates which have been adopted are well below the recommended rates which are referred to in the Master of the Rolls’ Practice Direction, and therefore that issue is not engaged either.
	Against that background, I then turn to the various heads of the claim, and to the challenges which are advanced.  The first issue which arises concerns attendances on client.  The submission made on behalf of the claimant is that quite simply that is excessive in the circumstances; this was a planning appeal, and it required a review of the decision letter in combination with the Inspector’s report, and a decision then as to whether the appeal was capable of being resisted or not.  The submission which was made on behalf of the Secretary of State in relation to this issue was that the solicitors had undertaken all the advisory work, and that this item was to be taken together with the work on documents item as justifying both the figures claimed.  It will be necessary to turn to the work on documents in a moment and separately, but so far as attendances on client is concerned, if the solicitor was handling the advice that needed to be given, the principal advice would be whether or to resist the appeals or not.  That issue would require work to be done to assess the merits of the appeal, and then the advice would have to be given either by letter or possibly at a meeting.  It is difficult to see how eight hours, that is to say one working day or slightly more than one working day, could possibly be taken up in giving advice of that sort.  I fully accept that there were other issues which may have required client input, including in particular a consideration as to what position was to be adopted by the Secretary of State in relation to the local authority’s application, which I understand it was made in the course of these proceedings for permission to give effect to the enforcement notice notwithstanding the outstanding appeal.  
	I confess that I struggle to see how, tested by the necessity rather than the reasonably incurred test, which is what applies here, eight-and-a-half hours of time in attending on clients can possibly be justified.  I do not accept, however, that two hours is the appropriate figure to adopt, because that is appropriate possibly to a meeting at which the principal advice was given and issues discussed, there were other issues in the course of the proceedings which may have involved client contact.  However, I do not see how a figure of more than 3.5 hours can be justified, and therefore I allow 3.5 hours at £200 an hour under this head.
	It is necessary then to consider the work done on documents, because this is objected to as grossly excessive, being as it is 6.9 hours for a Grade B fee earner and 15.8 hours for a Grade A fee earner.  It is likely that these should be treated separately.  The 15.8 hours is likely to be, at least a substantial part of it is likely to be, perusing papers and preparing to give advice on the principal issues which I have already mentioned.  However, 15.8 hours is close to two working days.  This case has not itself taken two working days to argue; indeed, the argument was completed in a little under a day-and-a-half.  The material which was centrally relevant to the advice that needed to be given were the two documents I have referred to already, the report of the Inspector and the decision letter, and it would have been necessary, too, to refer to two or three authorities, in particular in relation to the best interests issue, being in my judgment the decision of the Supreme Court in ZK, and the decision of Ouseley J in Sheridan.  Perusing those, extracting the principles relevant to the issues that arise in this case, would have taken someone unfamiliar with the material perhaps an hour to an hour-and-a-half, but for someone familiar with the material it would have taken less. 
	Overall, I can see that preparation for giving advice in a conference might have taken five to six hours, but I do not see how it could have taken as long as is claimed.  There would be other advisory work that would need to be done, particularly in relation to the interim application by the Second Defendant.  But again I cannot see that that would take up the advice of a Grade A fee earner familiar with the material and experienced in the field to 15.8 hours.  Overall, I allow a figure of eight hours for preparation work on documents by the Grade A fee earner.
	The remaining work for the Grade C fee earner can by inference only be the preparation of bundles and other paralegal activity in connection with the preparation of this case.  The bundle of authorities appears to have been prepared by counsel’s chambers; the bundles of material for the hearing are not unduly voluminous, consisting as they do of one lever arch file and one smaller ring file.  Photocopying does not involve individual attention on any particular page, because much of it is dealt with by automatic feeding, albeit I accept that there will have to be some collation of the material before printing takes place and some collation afterwards.  I do not see, however, how the preparation of material relevant to this hearing, particularly by a defendant, could possibly take someone experienced in paralegal activity of this sort longer than three hours.  Accordingly, I allow three hours at £80 an hour for work on documents for the Grade B fee earner in addition to that allowed to that allowed for the Grade A fee earner.
	I now turn to attendances on counsel, which is claimed at the level of 13.4 hours.  This is said to be something which arises from the complexity and difficulty of the case.  It involved the preparation of instructions to counsel; it involved the perusal of counsel’s skeleton submissions after it was prepared; I assume also the skeleton after it was prepared, and correspondence with counsel concerning the skeletons of the other parties.  That is all work which I am prepared to accept as in principle necessary.  But the preparation of instructions in a case of this sort cannot have been an unduly burdensome exercise, involving as it does a précis of the advice previously given by the solicitor, the inclusion within the papers sent to counsel of the application and grounds, and a request to prepare a skeleton and appear at trial, and for those purposes to peruse the application and the report of the Inspector and decision letter, read in the context of the advice that had been given previously.  All of that leads me to think that the attendances on counsel, and perhaps some incidental advice by phone or email in relation to matters as they arose, will also be involved.  But I cannot for the life of me see how preparing instructions to that effect, commenting on the skeletons of the claimant and second defendant, particularly since the second defendant’s skeleton contained nothing of any significance that was not referred to in this skeleton file on behalf of the first defendant, is going to take, or could reasonably be expected or necessarily take 13-and-a-half hours of time.  I accept, however, that there will be a significant amount of work to be done in preparing instructions to counsel, and in perusing the claimant’s skeleton once it was received.  I allow that at six hours at £200 an hour.
	So far as attendances on opponents are concerned, there is a debate between the parties concerning the level of contact.  On any view there was contact, and there were a number between 14 and perhaps 23 or 24 emails passing between the parties.  I am a little hesitant in relation to five hours of activity attributable to that; five hours is claimed for email contact of between 14 and 25 emails.  The emails are not produced, so it is impossible for me to see the degree of detail that was required in responding to the email traffic that passed.  With some hesitation I allow that figure as asked, taking the view that given the level of contact between the parties the figure could be justified by the solicitor having conduct of the matter.	
	So far as attendances on others are concerned, there is a rather greater difficulty.  Reliance was placed on attending upon the Inspector, but it seems to me that is much more likely to come within the scope of attendances on clients, if anybody, and furthermore it is unclear to me on what basis it will be necessary, as opposed to reasonable or desirable, to have contact with the Inspector in relation to the issues that arise.  The Inspector’s report speaks for itself, and the degree to which it was adopted is identified clearly in the decision letter.  There will be some attendance on counsel’s clerk, there will be some attendance on the court, but overall the thought that five hours could be expended in this activity, tested on a necessity basis, is in my judgment unrealistic.  I allow two hours overall for that.
	I have addressed the issues concerning work on documents and need not comment any further.  The only other issue of substance that arises concerns the attendance of the Grade A fee earner at the hearing of this case.  The point which is made is that routinely in Administrative Court hearings in particular, counsel attend either unattended at all or attended by a fee earner of the lowest grade whose function is merely to take notes and to obtain instructions by phone as and when the need arises, if it arises at all.  I can see that it might be desirable from the Secretary of State’s point of view for the primary fee earner to attend at the hearing, and possibly also the judgment in these proceedings, but the issue that arises is whether it was necessary, not whether it was reasonable.  So far as necessity is concerned, I consider that whilst there was a necessity for someone to attend, that necessity did not extend to a Grade A fee earner.  Therefore I would allow attendance, but I would allow it at the lower rate of £80 an hour.
	So far as travelling is concerned, I am satisfied that that has been justified by reference to the explanations given.  What I am not satisfied about, however, is the necessity for accommodation and subsistence in Manchester on the night before the hearing or the night before delivery of this judgment.  It is frequently the case, both in the Administrative Court and in the Chancery Division, and in the Mercantile Court and the TCC for that matter sitting in Manchester, that London-based counsel travel on a regular basis.  It will be the case that counsel will wish to stay in Manchester perhaps with their solicitors where there is a multi-day hearing that is taking place, but counsel almost invariably in my experience travel on the morning of a hearing and return the same day.  Thus, I am not persuaded that it is appropriate to allow accommodation and subsistence as claimed, although the costs of travelling by train will be allowed. I will hear counsel further as to that limited figure, since accommodation, travel and subsistence has not been broken down.  Counsel’s fees are allowed as asked.

Mr Cottle:  Can I also understand that seven hours travel will be at the £80 rate?

Judge Pelling QC:  Absolutely right, yes.  Right, do you want to tell me what the train element is?

(pause)

Mr Cottle:  It should be a  category of fact that is capable of agreement.

Mr Helme:  Yes.

Judge Pelling QC:  All right.  If I simply say plus the train fare, is that probably the sensible way of proceeding?

Mr Helme:  I do have a figure for you.

Judge Pelling QC:  Go on.

Mr Cottle:  We know how much it costs when you book in advance.

Mr Helme:  Which is £560.20.

Judge Pelling QC:  For how many people, and travelling on what basis?

Mr Helme:  This is for travel for three people, for Stephen Whale on the first occasion, up and down, and my instructing solicitor on the same basis, and then for my instructing solicitor on this occasion and for me on this occasion.

Judge Pelling QC:  That would be standard, would it?  Standard?

Mr Helme:  Oh yes.

Judge Pelling QC:  Yes, all right.  On that basis I include that figure.  So can you do the maths in order to --

Mr Cottle:  I got to £7,180 before the travel costs.  

Judge Pelling QC:  And the travel costs, what was it again?

Mr Helme:  £560.20  

Judge Pelling QC:  £560.20.  Now how long do you want for payment of that?

Mr Cottle:  It comes to £7,740.20.

Judge Pelling QC:  Yes.

Mr Cottle:  First of all, I would say that this case does raise an interesting point.  It is worthy of consideration in the Court of Appeal. 

Judge Pelling QC:  We will come to that in a moment.  What at the moment I am asking is, how long do you want before this money is paid?  Or are you going to say that I should stay payment if I give permission?

Mr Cottle:  That is right.

Judge Pelling QC:  I see, right.

Mr Cottle:  And no doubt there is a difference between the 288 and the 289, because the 288 is not so much as an appeal, whereas the 289 is, and if you are going up from court to the Court of Appeal, it would be the criteria in 52.3(6) as a realistic prospect of success rather than the more restrictive categories of second appeal which applies with 289.

Judge Pelling QC:  Yes.

Mr Cottle:  But in this case is it likely, looking at the way that the Supreme Court dealt with the Court of Appeal’s decision in ZH, where they had acknowledged the all-important factor of the children, that the Court of Appeal is going to give permission on this argument that in fact, taking account of the presence of 39 children, taking account of the issues affecting them, was enough.  And you have already given your decision, so I know exactly what your views are on this matter but I have to go through the --

Judge Pelling QC:  No, I understand.

Mr Cottle:  The point is, you do get cases that go through the courts where the judges do divide, and three or four of them take a different view, and here it is not right, in my respectful submission, to empty out the importance of best interests by saying no change with what we have already been doing before.  But I am afraid that the import of the judgment may be construed to that effect, and that best interests do require a correct legal understanding of their importance, which was not demonstrated in the Article 8 appraisal in this case.  It had not been put to them, that is why it was not addressed.

Judge Pelling QC:  Right, thank you.  Have you anything to say concerning permission?

Mr Helme:  I am sorry?

Judge Pelling QC:  Have you anything to say concerning permission to appeal?

Mr Helme:  May I have just a moment, I am so sorry.  

Judge Pelling QC:  Yes.

(Pause)

Mr Helme:  So firstly, just in relation to costs, we have come to a different figure, so we will check that.

Judge Pelling QC:  You can agree the figure against the rulings I have made.

Mr Helme:  Yes, I am grateful.  In relation to permission, we resist.  There is no real prospect of success in this case.  Your judgment was clear and comprehensive, and the approach adopted by the Inspector and by the Secretary of State on all issues, including on issues relating to best interests, was plainly the right one.  The approach being enjoined by the claimant in relation to best interests was not one which is founded in the case law, and would have gone well outside the normal approach expected in planning matters in relation to material considerations, and are very long standing.  The matter is clear, and whether or not the matter is of importance, there is no real prospect of a different decision in front of the Court of Appeal in this case.  So on that basis, we resist the application in relation to the children point.  In relation to the other points, they were also --

Judge Pelling QC:  To be fair, permission is not being sought by reference to anything other than the children point.

Mr Helme:  Sorry, when I was turning around to my solicitors, I was not clear that that had not been made.  But resist therefore in relation to that, that there is no real prospect.  The Court of Appeal does not need to trouble itself in this case.  

Judge Pelling QC:  Yes, okay.  Do you want to say anything in reply?

Mr Cottle:  Only that it would be fair for you to say that in this case, it is a newly-developing area, and because of the implications it is worthy of the Court of Appeal’s attention, and it will be helpful to judges and to decision-makers to have an early answer on this, as was required in the Baker case in relation to section 71, and it is worthy of the Court of Appeal’s attention.

Judge Pelling QC:  That is the some other reason point, is it not?

Mr Helme:  But we have a clear answer in relation to that, and it does not need to trouble the time and expense in the Court of Appeal.

Judge Pelling QC:  Yes.  Give me a moment.

(Pause)

Judgment on application to appeal

HHJ Pelling QC:  This is an application for permission to appeal.  I refuse permission.  Permission is sought only in relation to the best interests point.  There is no issue as to relevant legal principle.  The only issue is whether those principles are applied as a matter of substance by the first defendant and Inspector.  I have concluded they were.  In my judgment, the contrary is not realistically arguable.  The suggestion that the point is a novel one is one best left to the Court of Appeal to decide; however, for my part I see no novel principles that arise.  The issue is one of application of established principle.  Therefore, permission is refused.

Mr Cottle:  My Lord, there is only one further point.

Judge Pelling QC:  That is the question of the payment of the costs, and what is to be done about those.

Mr Cottle:  They have to make plans for the removal of themselves.

Judge Pelling QC:  Yes, I understand.  Are you applying for an extension of time in which to issue an Appeal Notice?

Mr Cottle:  That is what I rose to do.

Judge Pelling QC:  What are you looking for?

Mr Cottle:  I am looking for three weeks after receipt of the transcript, so that the point can be properly considered in a (inaudible) way.

Judge Pelling QC:  That is uncertain.  If you commission the transcript on file, I tend to deal with them within about a week of them being received.

Mr Cottle:  We did have a case in front of Holman J where the decision was at the end of April and we got the transcript through the end of May.  It took a month to get the transcript.  Perhaps he was unavailable at the time, I do not know.

Judge Pelling QC:  What I have been told is that transcripts are being received by the court, if expedited, within five days about, and within ten days if not expedited.  Obviously, if you expedite them then you inconvenience other people, so it is something that you need to be a bit careful about.  

Mr Cottle:  If we have an extra two weeks after those ten days then?  Extend time for filing by two weeks?

Judge Pelling QC:  Yes, 14 days, yes.  I will do that.

Mr Cottle:  I am obliged.

Judge Pelling QC:  In which case, I return to the payment of the costs.

Mr Cottle:  I would put it back to the end of the period of compliance, which is the –

Judge Pelling QC:  What I was trying to do was to structure it so that you can make any further application you wanted to the Court of Appeal.

Mr Cottle:  Indeed.  We have to be off the land by the end of July, unless we get a stay from the Court of Appeal.

Judge Pelling QC:  Next year?

Mr Cottle:  That is right, yes.

Judge Pelling QC:  Yes.

Mr Cottle:  And the money and the resources that my clients have will be spent on other things.  I would ask for as long as possible.

Judge Pelling QC:  How many days have you now got in which to lodge?  It is 21 days plus 14, is it not?

Mr Cottle:  That is right, yes.

Judge Pelling QC:  So 35 days.

Mr Cottle:  If we say 56 in those circumstances.

Judge Pelling QC:  You can have 36 days in which to pay.  That means that the time for payment would expire a day after the time for lodging the Appeal Notice.  If you have a further application to make, then you can make it to the Court of Appeal and they will deal with it.

Mr Cottle:  Certainly.

Judge Pelling QC:  Very good.  Right, anything else?

Mr Cottle:  No that is fine, thank you.

Judge Pelling QC:  Right, thank you very much.