R. (on the application of Dowling) v Secretary of State for Comunities and Local Government
Queen’s Bench Division (Administrative Court)
22 March 2007
Case Analysis
Where Reported
[2007] EWHC 738 (Admin); Official Transcript
Case Digest
Subject: Planning
Keywords: Caravans; Mobile homes; Planning conditions; Planning permission; Planning policy; Traveller sites
Summary: A condition in a grant of planning permission that allowed for six caravans inclusive of four static caravans on a gypsy site did not have the effect of expanding the grant of planning permission, but was simply a condition that controlled and regulated it.
Abstract: The applicant local resident (D) applied to quash a decision of a planning inspector appointed by the first respondent secretary of state that allowed an appeal by the third respondent gypsy (K) against a refusal of planning permission by the second respondent local authority. K and other members of her family had appealed to the planning inspector against the refusal of the local authority to grant planning permission to station four mobile homes for gypsies on a site that was a redundant nursery in a rural area. The local planning policy on the provision of gypsy sites included the criteria that the development should not detract from the undeveloped and rural character and appearance of the countryside, and should not result in a serious degree of harm. The planning inspector held that the proposed development would not unacceptably detract from nor impact on the character and appearance of the countryside, nor result in an unacceptable degree of harm to its character and appearance, so that planning permission should not be refused. He granted permission, subject to a condition that no more than six caravans, as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968, of which no more than four should be static caravans or mobile homes, should be situated on the site at any one time. D contended that (1) the condition imposed would amount to an expansion of K’s application for planning permission as it would have the effect of allowing more caravans to be stationed on the site than the number for which K had applied; (2) by referring to “unacceptability” the planning inspector had misinterpreted the relevant planning policy.
Application refused. (1) The condition imposed was not meant to expand, and could not have the effect of expanding, the application for planning permission, which had been for four mobile homes. The condition controlled and regulated the grant of planning permission. Although there was no express restriction on what the six caravans might be used for, the planning inspector’s decision letter, read as a whole, could not sensibly be interpreted as permitting six residential caravans on the site. (2) The planning inspector had adopted a reasonable construction of the wording of the planning policy, and the phraseology that he had used simply meant that, in all the circumstances, in order to fall out with the policy the development had to amount to a significant detraction, R. v Derbyshire CC Ex p. Woods [1998] Env. L.R. 277 and Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin), [2005] 2 P. & C.R. 23 applied.
Judge: Davis, J.
Counsel: For the applicant: Nicholas Nardecchia. For the first respondent: Hereward Phillpott. For the second respondent: No appearance or representation. For the third respondent: Michael Rudd.
Solicitor: For the applicant: Black Lapthorn Tarlo Lyons. For the first respondent: Treasury Solicitor. For the third respondent: Bramwell Browne Odedra.
Significant Cases Cited
Cranage Parish Council v First Secretary of State
[2004] EWHC 2949 (Admin); [2005] 2 P. & C.R. 23; [2005] J.P.L. 1176; [2005] A.C.D. 79; Official Transcript; QBD (Admin)
R. v Derbyshire CC Ex p. Woods
[1998] Env. L.R. 277; [1997] J.P.L. 958; CA (Civ Div)
All Cases Cited
Sort by:
Cranage Parish Council v First Secretary of State
[2004] EWHC 2949 (Admin); [2005] 2 P. & C.R. 23; [2005] J.P.L. 1176; [2005] A.C.D. 79; Official Transcript; QBD (Admin)
E v Secretary of State for the Home Department
[2004] EWCA Civ 49; [2004] Q.B. 1044; [2004] 2 W.L.R. 1351; [2004] I.N.L.R. 268; [2004] B.L.G.R. 463; (2004) 101(7) L.S.G. 35; (2004) 148 S.J.L.B. 180; Times, February 9, 2004; Independent, February 4, 2004; Official Transcript; CA (Civ Div)
R. v Derbyshire CC Ex p. Woods
[1998] Env. L.R. 277; [1997] J.P.L. 958; CA (Civ Div)
Ladd v Marshall
[1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745; (1954) 98 S.J. 870; CA
Key Cases Citing
Applied by
Green v Secretary of State for Communities and Local Government
[2009] EWHC 754 (Admin); Official Transcript; QBD (Admin)
Considered by
Green v Secretary of State for Communities and Local Government
[2010] EWCA Civ 64; [2010] N.P.C. 16; Official Transcript; CA (Civ Div)
All Cases Citing
Sort by:
Considered by
Green v Secretary of State for Communities and Local Government
[2010] EWCA Civ 64; [2010] N.P.C. 16; Official Transcript; CA (Civ Div)
Applied by
Green v Secretary of State for Communities and Local Government
[2009] EWHC 754 (Admin); Official Transcript; QBD (Admin)
Legislation Cited
Caravan Sites Act 1968 (c.52)
Caravan Sites and Control of Development Act 1960 (c.62)
Caravan Sites and Control of Development Act 1960 (c.62) s.29
Circular 01/2006
Circular 11/95
Mobile Homes Act 1983 (c.34) s.5
Planning and Compulsory Purchase Act 2004 (c.5) s.38(6)
Town and Country Planning Act 1990 (c.8) s.288
The Queen on the Application of Simon Barrow Dowling v Secretary of State for Communities and Local Government, Chichester District Council, Wendy Dawn Keet
CO/4883/2006
High Court of Justice Queen’s Bench Division The Administrative Court
22 March 2007
[2007] EWHC 738 (Admin)
2007 WL 844803
Before: Mr Justice Davis
Friday, 22 March 2007
Representation
Mr Nicholas Nardecchia (instructed by Black Lapthorn Tarlo Lyons ) appeared on behalf of the Claimant.
Mr Hereward Phillpot (instructed by Treasury Solicitor ) appeared on behalf of the 1st Defendant.
Mr Michael Rudd (instructed by Bramwell Browne Odedra ) appeared on behalf of the 3rd Defendant.
Judgment
Mr Justice Davis:
1 This is a claim brought by Mr Simon Dowling by proceedings issued on 14 June 2006 by way of appeal under section 288 of the Town and Country Planning Act 1990 . The decision under challenge is a decision dated 3 May 2006, given by an inspector appointed by the First Secretary of State. That decision was, in substance, to grant planning permission to the applicant, Mrs Wendy Keet, who herself had been appealing against a previous decision of the Chichester District Council, whereby she had sought permission in respect of a proposed development of four mobile homes for gypsy families at Melita Nursery, Chalk Lane, Sidlesham, West Sussex.
2 It is of course elementary in the context of a case of this kind, although it is worth making clear for the benefit of those in court who are not familiar with the legal principles, that the decision-maker by statute here is the inspector. It is for him to make the findings of fact on the evidence that is before him, and for him to make his judgment by reference to his findings of fact. It is not for this court to, as it were, form its own view of what this court might or might not have done on the material before it. That is not the function of this court, and this court can only properly interfere with a decision on conventional public law grounds.
3 The decision letter very helpfully sets out the background in some detail, and it is worth setting out large portions of that decision letter. The inquiry itself sat for a period of three days on 21, 22 and 23 March 2006. Mr Dowling was himself present there. So also was Mrs Keet, along with advisers for her, and so also was the Chichester District Council, who had its own representatives. Evidence was given before the inspector, including evidence from Mrs Keet herself and from her brother-in-law, Mr Riley Keet. The inspector of course undertook a view of the particular site.
4 There is something of a background to this particular planning application because it appears that a number of mobile homes had been moved onto the site at some stage in February 2005. The Council instigated court proceedings against Mrs Keet and three other members of her family, including, so I was told, Mr Riley Keet, and indeed an injunction was made on 17 May 2005, which was upheld in the High Court in December 2005, requiring removal of the four mobile homes then on the site. Mrs Keet and the other defendants did not see fit to abide by those injunctions; but in the event, Mrs Keet submitted this application for planning permission in respect of the four mobile homes.
5 It should be made clear that there was no dispute before the inquiry as to the gypsy status of the appellant or the other members of her family who occupied the site. Today, and for the first time, at one stage Mr Nardecchia, counsel instructed on behalf of Mr Dowling, did by reference to proposed fresh evidence query the gypsy status of at least Mr Riley Keet. That was unfortunate to be mentioned on the basis of the material put forward, and it is only right to record that ultimately and, in my view rightly, that particular suggestion was withdrawn. Accordingly, the inspector was entirely justified in proceeding, as was common ground before him, on the footing that Mrs Keet and her family were gypsies as defined in Circular 01/2006 .
6 In the decision letter, the inspector went on to refer to the relevant Structure Plan and policies. He made reference, amongst other things, to Policy RE2, Policy RE11A and Policy RE22, to which I will have to come on and deal with in due course.
7 The main issues, as summarised by the inspector were: first, the effect of the development on the character and appearance of the area; and second, whether any identified conflict with policy or any other harm was outweighed by other material considerations. The inspector then went on to give a description of the site. He noted that the site was within an area identified as an area of horticultural development in the Local Plan. The site itself was described as being roughly rectangular and as having an area of about 1.5 hectares. As described by the inspector, it was a redundant nursery, with a number of buildings, including a workshop, a store, some Dutch Light glass structures that were in very poor condition and a large aluminium glasshouse. The western part of the site was open and described by Mrs Keet as a paddock. The mobile homes in question were situated close to the northern boundary where there is also a two metre high fence separating the site from the horse paddock to the north. There was then a description of the trees that were in the area and of a nearby house. The general character of the surrounding area was, in the words of the inspector, “very mixed”. He referred to a number of the small holdings in the area involving some rebuilding and some of that rebuilding having little or no association with any agricultural or horticultural uses. Many of the glasshouses in the area were described as being in poor condition, and it was said that there were also numerous small buildings in the immediate area as well as mobile homes and caravans, some of which were used as a temporary accommodation by agricultural workers. The inspector found that the site lay in a countryside location, and noted that whilst there were no policies in the Structure Plan that related specifically to gypsies, there were several that sought to protect the countryside. There were additional policies in the Local Plan that also related to countryside protection, but only Policy RE22 relating directly to gypsies.
8 He went on to record that it was agreed by the Council that if the development complied with the provisions of Policy RE22, then that would be sufficient to outweigh the cited policies in respect of the countryside. The inspector commented that that seemed reasonable as Policy RE22 included criteria that related to countryside protection. It was further agreed, as noted by the inspector, that if they did not comply with that policy, then the countryside policies would come into play.
9 It is perhaps convenient at this stage to refer to Policy RE22, which is headed “Sites for Gypsies”. That sets out a number of criteria, but the only one relevant for the purposes of this particular appeal is criterion (1). On that basis, the relevant parts of Policy RE22 are these:
“Sites for Gypsies (defined as persons of nomadic habit of life) will only be permitted in the rural area when it can be demonstrated that the numbers of families who reside in or resort to the district need the number of pitches in the location sought, and provided that:
(1) they do not detract from the undeveloped and rural character and appearance of the countryside, particularly the areas of outstanding natural beauty …”
10 The inspector, having referred to that policy, then went on to note this in paragraph 13 of the decision letter:
“In respect of the remainder of criterion (1), under cross-examination the Council accepted that a fair interpretation was that it required that the development would not result in an unacceptable degree of harm. This seems to me to be a sensible interpretation; to argue otherwise would make the policy almost impossible to comply with.”
11 The inspector then went on to deal with a further description of the site, including what he had noted on his own personal view. He went on to observe that the mobile homes were visible from the public highway, but that visibility was not the relevant test for this policy, and that in terms of the effect on the character of the area, it seemed to him that the structures were in accord with the prevailing character. So that was a finding that he made on the evidence before him.
12 He went on then to deal in paragraph 17 with the appearance of the area. He made various comments in that regard, and then having stated that the landscaping could be the subject of a condition, said this:
“I conclude that the development does not so unacceptably detract from the character or appearance of the area as to be contrary to Policy RE22 of the Local Plan.”
He found that it would also meet the criteria set out in Annex E of Circular 01/2006 .
13 Then in the decision letter, he went on to deal with matters under the heading “Other material considerations”. In paragraph 18 he said this:
“While I have found that the development does not unacceptably impact on the character and appearance of the area, it is also necessary to consider the development in terms of the opening sentences of Policy RE22. These relate to local connections and need.”
14 He then went on to make certain findings in that regard. He referred to the acceptance that there was some need for sites for gypsies. He made various other observations. He noted that in that particular case before him, four pitches were being sought by four members of the same family group and, as the inspector found, they all currently lived on the site (that includes the brother-in-law of Mrs Keet, Mr Riley Keet). The inspector then went on to reject the suggestion that some alternative was available to Mrs Keet in Somerset, and having done that, he went on to refer to the strong local connections of the appellant, Mrs Keet, and her family and found that, in respect of local connections and the need for pitches, he was satisfied that the appellant met the terms of Policy RE22.
15 In the context of his making such a finding, the inspector had said this:
“Taking account of the history of the appeal site, it seems probable that if this appeal failed the appellant and other family members would have to vacate the site and resort to roadside camping.”
16 The inspector then went on, amongst other things, to deal with conditions, and he said in paragraph 23:
“As I have found that the development is not unacceptably harmful to the character or appearance of the area I do not consider that it would be reasonable to make this permission personal to the appellant. I have nonetheless restricted the use to use by Gypsies as defined … I have imposed conditions in respect of the number of caravans and the provision of landscaping in the interests of the visual amenities of the area.”
He said that he had imposed a condition in respect of commercial activities in order to maintain the character and appearance of the area.
17 He went on to set out his conclusions, saying:
“I have taken into account all the other matters raised at the inquiry and in the written representations …”
He then went on to say:
“Overall, therefore, I conclude that the development is not unacceptably harmful to the character or appearance of the area. As such, it accords with the provisions of the development plan and Circular 01/2006 . I conclude that the appeal should succeed.”
18 His formal decision was this:
“I allow the appeal, and grant planning permission for four mobile homes for Gypsy families at Melita Nursery, Chalk Lane, Sidlesham, West Sussex PO20 7LW in accordance with the terms of the application … and the plans submitted therewith, subject to the following conditions.”
And then condition 2 was this:
“No more than six caravans, as defined in the Caravan Sites and Control of Development Act 1960 and the Caravan Sites Act 1968 (of which no more than four shall be static caravans or mobile homes) shall be stationed on the site at any one time.”
He also imposed other conditions, including a condition as to landscaping.
19 It should be mentioned that the word “caravan” has a definition in section 29 of the Caravan Sites and Control of Development Act 1960 as meaning:
“any structure designed or adapted for human habitation which is capable of being moved from one place to another, whether by being towed or by being transported by a motor vehicle or trailer …”
20 In section 5 of the Mobile Homes Act 1983 , “mobile home” is defined to have the same meaning as “caravan” in the 1960 Act.
21 Mr Dowling, along with, I gather, other nearby residents (although not necessarily all of them) was aggrieved at the outcome of that appeal, and so it is that he sought to challenge it by these proceedings. As I understand it, Mr Dowling is the secretary of the Keynor Residents, a group of local residents who opposed the appeal.
22 Four particular grounds have been advanced in support of this appeal. The first ground is by reference to the second condition which was attached by the inspector. Putting it in very summary form, what Mr Nardecchia, appearing on behalf of Mr Dowling, says is that the effect of that condition is in truth to enlarge, and significantly to enlarge, the actual planning permission which the appellant, Mrs Keet, had been seeking. She had sought, and what had been in issue at the inquiry, permission for four mobile homes for gypsy families. But, as it is submitted, the consequence of the condition imposed is that, in the result, six caravans can be installed on the site, albeit that no more than four of them could be static caravans or mobile homes. It is submitted that that is unlawful.
23 There was cited to me a number of authorities, to the effect that while a restriction or reduction in what is sought may in appropriate circumstances be permissible, what is not permissible, so it is said, is a significant enlargement of that which has been sought by the planning application and that which has been debated before an inspector at an inquiry.
24 So far as the conditions are concerned, as it seems to me those conditions, and in particular condition 2, do comply on their face with the standard requirements as laid down in, for example, the decision in Newbury District Council v Secretary of State [1981] AC 518 . There it was said by Lord Fraser of Tulleybelton at page 607–608 that in order to be valid, a condition must satisfy three tests: first, it must have a planning purpose; second, it must relate to the permitted development to which it is annexed; and third, the condition must be reasonable in the Wednesbury sense. That on the face of it seems to me to apply to condition 2.
25 In addition, there were cited to me the provisions of various Circulars relating to the use of planning conditions. In particular, in Circular 01/2006 , which deals with planning for gypsy and traveller caravan sites and which includes a wide definition of the phrase “gypsy and travellers”, there is contained in Annex C examples of criteria which might be considered generally unacceptable. One such example of an unacceptable criterion or condition is given as this:
“Each unit of accommodation on the site should have been brought on to the site by the occupiers for the time being, who shall remove the accommodation from the site when ceasing to use it for residential purposes.”
26 The comment there made is that such a criterion does not accommodate a nomadic and traditional lifestyle whereby many gypsies and travellers have one caravan to live in and one that is more mobile that they use when travelling.
27 It is also said that with regard to specifying number of caravans any maximum should be reached through planning conditions, but should be related to the circumstances of the specific size and location of the site and surrounding population and density. In addition, there were cited to me the provisions of Circular 11/95 relating to the use of conditions in planning permissions, which I do not need to set out further here, although I of course have had regard to them.
28 It seems to me that, set in the context of this overall decision letter, the short answer to this objection raised on behalf of Mr Dowling is the one put forward by Mr Phillpot on behalf of the Secretary of State and adopted by Mr Rudd on behalf of Mrs Keet; that is, that such condition is not designed to and does not have the effect of expanding or enlarging the planning permission granted. Rather it is designed and has the effect of regulating and controlling it. It seems to me that that must be right: because the actual decision of the inspector here was to grant planning permission for four mobile homes for gypsy families. It would really make little sense if that were then immediately to be converted into the grant effectively of permission for six caravans. It is true that in condition 2, there is no express restriction as to what those caravans may be used for, and Mr Nardecchia suggested that such a condition would permit six residential caravans; that is to say, four mobile homes already on the site and two others then to be brought on to the site to be use entirely for residential purposes. But I do not think that is a sensible interpretation of this particular decision letter.
29 It seems to me, looking at this on a realistic and pragmatic basis, the condition is reflecting the structure of this particular decision. What the inspector was doing was saying that those four mobile homes could be there, and then there were to be no more than six caravans in total: so that if, for example, Mrs Keet or her family wished to have, in addition, touring caravans — which, as I see it, they otherwise would be entitled to do in the absence of any planning restriction or condition — then that was to be subject to an overall restriction of six in total. That, to my way of thinking, makes excellent sense. It seems to me to be that which was intended, and it seems to me to be adequately covered by the wording of the condition used.
30 Mr Rudd pointed out that one commonly finds conditions of this kind in, for example, the number of commercial vehicles that may be permitted on gypsy sites when planning permission is granted. To my way of thinking, it is somewhat surprising that this particular point is raised on behalf of Mr Dowling: because self-evidently this particular condition was designed to be for the benefit of local residents. Had there not been such a condition, then prospectively there might have been the prospect of, even if on a temporary basis, any number of caravans, not unlawfully, being brought onto the site — provided of course that to do so did not constitute a change of use. Accordingly, I am of the clear view that the first ground of challenge fails.
31 The second ground of challenge is by reference to the proper meaning of Policy RE22. In this context it is accepted that the question was not simply one of what might be called a hard-edged interpretation of the policy, but what interpretation might reasonably be placed on it by the relevant decision-maker or a planning authority. In that context, I was referred to the now well-known decision in the case of ex parte Woods [1997] JPL 958 , and I was also referred to some observations of, as it happens, myself at paragraphs 49 and 50 of the judgment which I delivered in the case of Cranage Parish Council v First Secretary of State [2004] EWHC 2949 Admin.
32 Turning then to the wording of Policy RE22, it seems to me that it cannot be so interpreted as to preclude anything which involves any detraction from the undeveloped and rural character and appearance of the countryside. It seems to me — in effect, in agreement with the inspector — that so to read the policy (that is to say, to read it in such a narrow way) would really virtually render it unworkable: because it is difficult to conceive in practice and reality that there would be any kind of development with regard to gypsies which would not, at least in some way, detract either from the character or from the appearance, or both, of the countryside. Moreover, the words “particularly areas of outstanding natural beauty” themselves to my way of thinking connote an element of degree in what has gone before. Accordingly, there must, and certainly can properly be, a legitimate modification of the literal wording.
33 Mr Nardecchia then submitted, moving away from his first submission, that at all events all that would then be covered was a minimal detraction, but nothing further than that, as he submitted. That is one possible reading. But on the ex parte Woods approach I have to consider whether or not it is reasonable to construe the policy rather more broadly than that. In my view, it is reasonable to construe the policy as embracing detractions in the sense of detractions which are perhaps significant or material. That would still give the policy real purpose and bite and at the same time would make it workable.
34 What has operated on my mind is the way in which this inspector, however, has adopted the language of “acceptability”. One has to bear in mind the provisions of section 38(6) of the Planning and Compulsory Purchase Act 2004 , which in sub-section (6) says this:
“If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise.”
35 On the approach in substance adopted by the inspector, he having decided there was no unacceptable departure from the plan, he was not required to go on and consider various material considerations which might indicate otherwise. Having reflected on the arguments, however, I do not think that this is in fact an objection to the way in which the inspector went about his task. If an actual detraction was to be styled as acceptable, then as Mr Phillpot pointed out, there would hardly be a need for the policy at all. It seems to me that “unacceptable” perhaps is another way — even if perhaps a more formal way — of noting that a detraction must be of some significant kind in order to be outwith the ambit of the policy.
36 I was somewhat concerned at the phraseology of the inspector in paragraph 17 when he said this:
“I conclude that the development does not so unacceptably detract from the character or appearance of the area as to be contrary to Policy RE22.”
On one possible reading, that might be seen to be setting the bar rather higher than might have been anticipated for this policy. But that wording is not replicated anywhere else, that is to say by use of the two words “so unacceptably”: although of course the words “unacceptable” and “unacceptably” do appear elsewhere. In my view, reading the decision letter as a whole, this was a meaning of the policy that could properly be adopted; and in my view the decision was justifiable in that particular context.
37 It might perhaps be recorded that at the inquiry the Council itself agreed with that particular reading of the inspector which he himself adopted. That the Council conceded and agreed with the interpretation is, I would accept, not determinative in this case, but I think it is at least a point of comment that Chichester District Council, which was concerned to oppose Mrs Keet’s appeal, actually consented to this particular reading of the policy.
38 Accordingly, I take the view that the second issue as advanced on behalf of Mr Dowling should be decided adversely to him.
39 The third ground raises a question of fresh evidence. The findings of the inspector with regard to the local connection of gypsy status and need of Mrs Keet and her family, including Mr Riley Keet, are as I have summarised, and it is common ground that those were findings open to the inspector on the material before him. However, subsequently Mr Dowling has sought to introduce fresh evidence. It is done in this way at paragraph 6 of his witness statement dated 13 June 2006, where he says this:
“The inspector was not referred by either Mrs Keet or Riley Keet, both of whom gave evidence, to the fact that Riley Keet, who was one of the four members of Mrs Keet’s family said to need accommodation on the appeal site, is the owner and occupier of a dwelling house at Ground Floor Flat, 32 Normanton Road, Bognor Regis. This fact has only been discovered very recently. I understand that the Council discovered it at about the time the inspector issued his decision letter. I was provided with the information by the Council.”
He then goes on to suggest that that was of considerable relevance and suggests that the inspector was deliberately misled.
40 The first question is whether or not this fresh evidence should be admitted at this stage at all. There is of course a clear public interest and in the interests of administration of justice that there should be finality in hearings. I was referred to the well-known decision of Ladd v Marshall [1954] 1 WLR 1489 , and to the principles as set out by Denning LJ with regard to the admissibility of fresh evidence in a context which can be taken to include the present. It seems to me that those principles remain in point for this purpose, although I would also accept Mr Nardecchia’s submission that, as indicated by recent authority, a court is fully justified in an appropriate case in showing some flexibility.
41 The first point that does need to be asked is whether or not this fresh evidence could have been obtained with reasonable diligence for use at trial. Mr Dowling sets out nothing more than is contained in the witness statement in this regard, which is frankly not terribly helpful. It is difficult to understand, if this point was going to be pursued as going either to gypsy status or to need or both, why enquiries of this kind could not earlier have been made. The information which has been adduced, as exhibited to Mr Dowling’s statement, constitutes Land Registry entries of a particular property in Bognor Regis, legally owned by Mr Riley Keet, and the fact that his name appears on the electoral register in recent years. Mr Dowling chooses to infer from that that not only does Mr Riley Keet own such a property, but also occupies it, which is by no means obvious (and in a recent witness statement produced by Mr Riley Keet, would not be accepted by him at all). I do not myself see why such information could not readily have been obtained for the purposes of the inquiry, either by the Council or by Mr Dowling or by both, if they were seeking to investigate and challenge the issue of need, if not gypsy status. In any event, it does not seem to me that it can be safely concluded that that evidence as proposed to be adduced would be such as probably to have an important influence on the result of the case. It can be said perhaps that it might have done; but the reality as it seems to me at best is that it would have been potentially cross-examination material of Mr Riley Keet. It might be added that none of this proposed fresh evidence relates to Mrs Keet, the appellant herself, at least directly.
42 It seems to me, for these reasons alone, that it is not appropriate for me to accede to this application to adduce fresh evidence and I decline to allow this somewhat speculative evidence to be admitted. But in any event, it seems to me that, even were this evidence to be admitted, it simply would not satisfy the conditions set out by Carnwath LJ in the case of E v Secretary of State for the Home Department [2004] 2 WLR 1351 . Those conditions include, first, that there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; secondly, the fact or evidence must have been established in the sense that it was uncontentious and objectively verifiable. Pausing there, as it seems to me this somewhat limited evidence as to ownership of the Bognor Regis property and as to entry on the electoral register cannot amount to uncontentious and objectively verifiable evidence to the effect that Mr Riley Keet was not in need of this particular site or a pitch on it. I do not propose to say more on that point. It seems to me that this third issue is in reality at this stage a non-starter.
43 The fourth ground is this: it is said that the inspector failed sufficiently to have regard to an objection by reference to policy RE11A in the plan. RE11A is headed “Horticultural Development, Areas for Horticultural Development”, and says:
“Within the areas for horticultural development shown on the proposals and inset maps, applications for commercial horticultural development, including glasshouses and packhouses, will be permitted provided that they would not …”
And then there are set out a number of conditions.
44 It appears that before the actual inquiry took place, some neighbours who had a horticultural operation (Mr and Mrs Evans) had written to the planning inspector objecting to Mrs Keet’s application and observing that the value of the land for horticultural purposes was already high, and given the high price if planning permission were to be agreed, it would simply encourage similar applicants and push up land values further — unacceptable in an area that is meant to be encouraging horticulture. That was the objection put forward, and perfectly reasonably so.
45 It is said that the inspector failed to have any or any sufficient regard to Policy RE11A in this context. However, in his decision letter, the inspector had specifically referred to Policy RE11A, which he summarised as “[setting] out the presumption in favour of horticultural development within areas shown for such development on the Proposals Map”. That perhaps is a somewhat benevolent way of putting it, but one can see what the inspector means. That point seems not to have figured very largely at the inquiry itself; it seems that it was not a point pursued by Mr Dowling himself, he being present and, as I have inferred, it was not a point pressed by the Council either. It seems to me that that being so, and in truth when one has regard to the actual wording of Policy RE11A, which provides no policy basis for refusing this particular application by Mrs Keet, the inspector was entitled to take the matter shortly. He had expressly referred to Policy RE11A. He expressly stated that he had taken into account all the other matters raised at the inquiry and in the written representations. It seems to me that there is nothing to show that the inspector had not taken that point into account, and what he said indicates that he had taken it into account. It seems to me therefore that on this fourth ground, again this point cannot succeed.
46 In the result, therefore, it seems to me, notwithstanding all the points that were valiantly put forward by Mr Nardecchia, I feel bound to dismiss this appeal, stressing that I do so strictly acting as a court which is not entitled to exercise its discretion afresh or anew, but simply asking whether the inspector reached a decision properly open to the inspector.
47 This court is well aware that applications of this particular kind can generate considerable anxiety and friction within local communities and the court can express sympathy for those who do have strong views about such matters. Nevertheless, as a matter of law, I conclude, having regard to the inspector’s decision, that this appeal fails.
48 MR PHILLPOTT: My Lord, I am grateful for that. I do have an application therefore that the claimant should pay my client’s costs of resisting this appeal. There is a schedule of costs. I hope that that has found its way to your Lordship.
49 MR JUSTICE DAVIS: No.
50 MR PHILLPOTT: If I could hand up a copy to your Lordship. I understand that an earlier version was provided, but this version that has been handed up adds another £96, which is referrable to the supplementary skeleton, my Lord — considering that. In that context, that particular addition should not be controversial. Your Lordship will see that the total amount claimed is £12,296. My Lord, I wonder whether perhaps the best thing is either to answer any questions your Lordship might have and to respond to any points my learned friend might have as to whether it is contested.
51 MR JUSTICE DAVIS: Mr Rudd, do you have anything to say about costs? I am not normally happy about granting more than one set of costs in cases of this kind.
52 MR RUDD: Of course not. I know that is the normal provision, but I am making a costs application in this case because of the nature of the appeal. Firstly, from the starting point, the significance of losing this appeal to the Keet family would mean the departure from their home and property. That normally is not enough to get over the hurdle.
53 MR JUSTICE DAVIS: No.
54 MR RUDD: The difference in this case is that one of the grounds of appeal related to Riley Keet and his involvement and the need or the potential requirement for the submission of additional evidence. Clearly that is a point that had to be answered by Mr Keet and had to be dealt with by his solicitors, albeit very late in the submission of the witness statement. It is a ground of appeal that is slightly outside the normal challenge to an inspector’s decision. It is something that has gone beyond that and that is why I say in this case that costs are appropriate. Now, the costs have been kept to a minimum, although we were not sure initially the Treasury Solicitor’s position. Once we did become aware of it and skeleton arguments were served, I did not prepare a skeleton. So the costs of — my element of costs are purely for my appearance today and preparation. There has been no skeleton. We have endeavoured to keep them to a minimum.
55 MR JUSTICE DAVIS: I do not have an schedule from you, do I?
56 MR RUDD: My Lord, I am assured that one has been served on the court. There was a slight error in that it did not ask for attendance for today.
57 MR JUSTICE DAVIS: I have not got a schedule of costs in front of me.
58 MR RUDD: Can I pass one up, my Lord?
59 MR JUSTICE DAVIS: Is Mrs Keet legally aided on this?
60 MR RUDD: She is not, my Lord, no.
61 MR JUSTICE DAVIS: So you want £4,240.
62 MR RUDD: That is the application.
63 MR JUSTICE DAVIS: Right. Mr Nardecchia, what do you say about costs?
64 MR NARDECCHIA: I cannot object to paying the Secretary of State’s costs in a reasonable sum. At the moment, I do not think I have anything else, but I would object to paying two sets of costs.
65 MR JUSTICE DAVIS: What do you say about £12,296? Are you asking for an assessment or are you content for it to be summarily assessed?
66 MR NARDECCHIA: What I say about it, I will raise one point, if I may. Work done on documents, 37.2 hours at £160 an hour.
67 MR JUSTICE DAVIS: Just a minute.
68 MR NARDECCHIA: — it says. It is difficult to see how 37 hours could have been spent—
69 MR JUSTICE DAVIS: For this.
70 MR NARDECCHIA: — bearing in mind that the Secretary of State has contributed no documents to the case and the bundle was very short anyway. There has been this late witness statement from the inspector and I would have to accept that from what I just said. But even that would hardly come to anything like 37 hours. But subject to that point, I have no other objection to the sum claimed.
71 MR JUSTICE DAVIS: Yes. Very good.
72 MR NARDECCHIA: I am looking to see whether I have a copy, and I do have a copy, I think, of the other schedule. What I would say about it, although it is perfectly true that one of the issues raised specifically refers to Riley Keet and originally to other members of the family, although that was withdrawn by a skeleton before we had the statement of Riley Keet and his solicitor, in my submission it was not necessary for my learned friend to appear here today. With respect, he has not added to the witness statement, nor indeed in any material sense to the submissions made for the first defendant. So I would object to paying two sets of costs on behalf of my client. If there is to be any costs at all to the third defendant, it should be limited to the costs of preparing the witness statement. I am loathe to concede that because it was so late but nevertheless. So that is all I have to say on costs, my Lord.
73 MR PHILLPOTT: My Lord, if I could be of assistance on the question of work done on documents—
74 MR JUSTICE DAVIS: I must say, 37 hours does rather surprise me now that it has been drawn to my attention.
75 MR PHILLPOTT: My Lord, it is a matter, if I may say so, I have had to address the court on before, and if I may say so the issue that has previously perhaps been overlooked but which certainly has found favour with the court in the past is that work done on documents includes providing advice, written advice and a minute of advice, to the client, which is something that any other defendant would reasonably expect to be able to obtain; that is, written advice from in this case the Treasury Solicitor as to what the challenge is about and the prospects of success, whether it should be defended. So all that work on documents includes the initial assessment and provision of a written advice to the client on the case. In addition, there are of course works done in preparation of the witness statement, and of course any other ancillary work on documents that might be involved. But it does, my Lord — it has been established in previous cases where this matter has come up that it is legitimate and reasonable for the client to be provided with written advice by the Treasury Solicitor on the prospects of success, and that comes under the 37.2 hours. Looked at in the context of the relatively limited costs overall, and I say this, my Lord, in the context of a costs claim by the claimant, if it was successful, of £23,392, that what my clients are claiming is eminently reasonable.
76 MR RUDD: My Lord, may I address you on one point? My learned friend says that, with respect, I have not added much to the Treasury Solicitor’s submissions, but that is not the point. When I was instructed to attend here, I am not to know what I am going to add because I do not know what the submissions are going to be. The point is in relation to Riley Keet’s ground of appeal. It was and remains important for somebody to have been representing the Keets here today on that ground. My Lord, I say that the actual costs that are being sought is very reasonable in the circumstances.
77 MR JUSTICE DAVIS: I now have to deal with the question of costs. It seems to me that in this particular case it would not be right to order the unsuccessful claimant to pay two sets of costs. The fact is that Mrs Keet and the Secretary of State have made common cause here, and Mr Rudd has in effect adopted Mr Phillpot’s arguments. I am sure Mrs Keet has been grateful to have been represented by Mr Rudd and his instructing solicitors today, and I am sure she had good reason to want representation, but it is not the same thing as saying that the claimant should pay for it.
78 I might have been sympathetic to at least the costs of preparing evidence to deal with the proposed fresh evidence of Mr Dowling. However in view of the fact that Mrs Keet left it so late in the day, both to answer that evidence and indeed to arrange representation for herself, I am disinclined to make any allowance even for that. Accordingly, only one set of costs will be ordered.
79 So far as the Secretary of State’s costs are concerned, I have noted what Mr Phillpot has said with regard to the work done on documents and the need to give advice to the client. Even so, it does seem to me that over 37 hours for what in truth is not the most heavy matter by any manner of means seems to me really not an amount which ought to be visited upon the claimant. I propose in the result to reduce significantly the amount claimed in that regard, and I summarily assess the total amount of costs payable by the claimant, Mr Dowling, to the Secretary of State in the sum of £10,296.
80 Do you want 56 days for the claimant?
81 MR NARDECCHIA: So be it, my Lord.
82 MR JUSTICE DAVIS: You say “so be it”, but 28 days is what I normally say. I was trying to be benevolent so far as I could be.
83 MR NARDECCHIA: 56 days if your Lordship pleases. Would your Lordship give me permission to appeal on the first two issues? On the first issue, it is unusual, extremely unusual, for there to be a condition which has the effect of increasing the number of caravans, or indeed in another context, the number of houses or whatever, but—
84 MR JUSTICE DAVIS: If that were the effect of the condition. I found it was not.
85 MR NARDECCHIA: And the interpretation of the condition, well, that too. On the second issue, your Lordship said in the judgment that your Lordship was troubled by the interpretation adopted by the inspector, and in my submission there are grounds for that.
86 MR JUSTICE DAVIS: Did I say “initially troubled”? Anyway, it was certainly a point to be debated, yes. So you would like to appeal on those two grounds; not grounds 3 or 4?
87 MR NARDECCHIA: No.
88 MR JUSTICE DAVIS: I think on the whole, Mr Nardecchia, if this matter is sought to be taken further, I think that should be by permission of the Court of Appeal itself. For myself I refuse permission because I do not think there is any real basis for me granting permission.
89 Thank you all for your submissions.
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