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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Doncaster Metropolitan Borough Council, R (on the application of) v First Secretary of State [2003] EWHC 995 (Admin) (19 March 2003) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2003/995.html Cite as: [2003] EWHC 995 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		19th March 2003

Wednesday, 19th March 2003

1. MR JUSTICE RICHARDS: The court has before it an application under section 288 of the Town and Country Planning Act 1990 challenging a decision of an Inspector appointed by the First Secretary of State to decide an appeal under section 78 of the Act against a failure by Doncaster Metropolitan Borough Council, the claimant in this case, a determine an application for planning permission within the prescribed period.
2. By his decision, dated 25th October 2002, the Inspector allowed the appeal and granted planning permission for continued use of the appeal site for the stationing of one mobile home and one tourer caravan. The Council now challenges that decision. The First Secretary of State is the first defendant. The second defendant is the successful applicant for planning permission, Mr Buck, who is a gypsy.
3. The site is located on the edge of the built up area to the north east of Doncaster. It is separated from the residential area to the east by a busy road. Land to the north and west is open countryside. The site itself is bounded by high hedges, with the exception of the northern boundary, where a wall has been erected and the boundary is lower.
4. It is situated in a Countryside Policy Area, as defined by the Doncaster Unitary Development Plan 1998. Policy ENV4 restricts development in the Countryside Policy Area otherwise than for certain purposes. The Inspector held that the development in this case was contrary to that policy in various respects: see in particular paragraph 10 of his decision.
5. He went on, however, to consider the need for the site to accommodate Mr Buck and his family. He found that gypsy status had been established and he recorded that the desire to establish a base from which Mr Buck's family could continue to benefit from full time education was an acknowledged material consideration. He went on at paragraphs 12 to 17 of the decision:

"12. No recent figures were produced for gypsy site provision or occupation in the area. There are a number of gypsy sites within the Borough, and I was told at the hearing that there are some, though limited, vacancies on those sites at present. I therefore have no firm indication that there is an overall need for sites to be provided, although I understand that there continue to be a number of unauthorised sites in the locality. The appellant does not wish to move his family to a nearby established site, and having visited the one mentioned at the hearing I have sympathy with that view. The particular site is an unattractive environment adjacent to industrial premises, and contrasts markedly with the quality of surroundings at the appellant's property.

13. The list of gypsy sites brought to my attention does not give any indication of availability at each location, and no such information has been made available. I cannot, therefore, assess whether any site has vacancies within a reasonable distance of the schools attended by the appellant's children. However, given the location of the sites as described by their addresses, it seems unlikely that they would offer a convenient location in this respect.

14. I have been provided with information prepared in May 2002 in respect of the likely psychological outcome to the appellant and his family of having to move from the appeal site. This information was not available at the previous appeal. I accept that moving to a bricks and mortar house, which has been tried unsuccessfully in the past, would cause problems resulting from a perceived lowering of the quality of life. In any case, the appellant indicates that neither a traditional house nor an official gypsy site (which has also been tried unsuccessfully) would be acceptable. The alternative, of following a mobile existence with his family, would be likely to adversely affect the education of his children. Though of some age, research on this topic has shown that children in travelling families are subject to particular difficulties.

15. Consequently my findings on this issue are that existing gypsy sites are unlikely to offer either the quality of life desired by the appellant, or the locational advantages which would offer easy access to facilities and services. In any case I am not satisfied that there is any vacancy in a suitable location. The appeal site currently offers these benefits. I accept that a return to a conventional house, or a return to a travelling lifestyle as a group, would not be in the interests of the appellant and his family. As a result I am satisfied that there is a need for a site to provide accommodation for them.

16. The Council indicated at the hearing that it would be prepared to enter into a dialogue in order to try to identify an alternative private site which would be acceptable to it and has no objection to the establishment of private gypsy sites in principle. It was suggested at the hearing that such dialogue would be possible if a temporary planning permission were to be granted for the appeal proposal. Neither the Council nor the appellant's agent objected to this in principle, though some reservations were expressed.

17. However, it seems to me that such a course of action would enable a breathing space to be established in which the continuing issues surrounding the provision of a suitable site could be examined. This would also enable the appellant's children to continue with their education in the meantime, and would avoid the potential psychological damage of an enforced move".

6. This led to his overall conclusion at paragraph 18:

"18. I have found that the development is harmful to the character and appearance of the area and in conflict with the development plan. However, there are other material considerations which I must take into account. I am mindful that an enforced move is likely to have harmful psychological effects on both the appellant and his wife. It would also be likely to be harmful to the education of his children. I attach significant weight to these matters. In my judgment they are sufficient to outweigh the conflict with the development plan insofar as they make the case at present for a temporary planning permission in order to allow time for a more suitable site to be sought. The advice of Circular 11/95 -- The Use of Conditions in Planning Permissions -- is not generally supportive of temporary planning permissions based on amenity reasons, though this is a case where the time limiting of the permission would have the future aim of removing a harmful development whilst recognising the interim needs of the appellant and his family. As such I consider it justified in this case".

7. The Inspector then considered other matters before turning to conditions, as to which he stated in paragraph 20:

"Conditions other than a temporary time limit were discussed. I do not consider that permission with a condition personal to the appellant and his family would be appropriate since I have found the site to be currently unsuitable for the development in the long term because of the harm caused to the character of the area. I agree that a condition restricting the use to a gypsy family would be reasonable since it is the circumstances of gypsy lifestyle and culture which justify the temporary permission in this case. I also consider a condition restricting the number of caravans on site to be reasonable in order to prevent further harm to the area. So far as the temporary condition is concerned I consider that a three year period should be sufficient to identify an alternative and acceptable site".

8. The three relevant conditions are as follows:

"1) The use hereby permitted shall be discontinued and the land restored to its former condition on or before a date three years from the date of this permission in accordance with a scheme of work submitted to and approved by the local planning authority.

2) This permission does not authorise use of the land as a caravan site by any other persons other than gypsies, as designated in section 24(8) of the Caravan Sites and Control of Development Act 1960 as amended.

3) No more than one mobile home and one touring caravan shall be stationed on the land at any time".

9. The first ground of challenge is that the Inspector erred in failing to make the permission personal to Mr Buck. What is said is that the grant of temporary permission was on compassionate grounds relating to the personal circumstances of Mr Buck and his family and that this should have led to the imposition of a personal condition. The reasons for not doing so are flawed and the decision not to impose such a condition was irrational.
10. It is submitted that what is said in the second sentence of paragraph 20, that a personal condition would not be appropriate since the site was unsuitable for development in the long term, provides no logical justification for failing to attach such a condition to a temporary planning permission.
11. Attention is drawn to the witness statement of the Inspector filed in these proceedings, in paragraph 3 of which he says the following on this subject:

"I considered whether the permission should be made personal to Mr Buck and his family (see paragraph 20 of the decision letter) but came to the conclusion that this was not necessary by reason of the fact that the permission was to be strictly limited in time and restricted to occupation by one gypsy family only".

12. If regard is had to that evidence, then it is said that the reason given is different from the reason set out in the decision letter, but is in itself difficult to challenge. Mr Reed, appearing for the Council, was realistic in his approach to the matter.
13. A further aspect of this ground is Mr Reed's submission that it was incumbent on the Inspector to consider the possibility of the site being used by some other gypsy family, yet it is said that the Inspector failed to consider the point at all. The Inspector's witness statement says that the prospect of other gypsies using the site was not raised by either party and at no point did the Council suggest that the imposition of a temporary permission without a personal condition would be likely to result in other gypsies occupying the site. All this is accepted by the Council, but Mr Reed submits that the possibility of occupation by other gypsies was an obvious point which the Inspector should have considered for himself. He cites in that connection Dyason v Secretary of State for the Environment [1998] JPL 778, where it was held that in an informal hearing before an Inspector, there was an inquisitorial burden upon an Inspector. What Mr Reed submits is that the Inspector in this case should have made further enquiry and looked more closely at the question of other gypsies occupying the site.
14. The underlying point is that consideration of the possibility of other gypsies using the site ought to have led to an imposition of a personal condition, since the whole thrust of the Inspector's reasoning in support of the grant of planning permission related to the specific circumstances of Mr Buck and his family, rather than to the circumstances of gypsies in general. His reasoning, therefore, did not support occupation of the site by other gypsies.
15. In that respect, Mr Reed invites the court to read the third sentence of paragraph 20 concerning the gypsy condition as relating specifically to Mr Buck and his family, rather than to the position of gypsies in general.
16. The overall submission, therefore, is that there was an unlawful failure to impose a personal condition and that that failure should lead to the quashing of the decision.
17. Miss Selway for the Secretary of State submits that the court should adopt what she described as a "broad brush" approach, reading the decision as a whole, not analysing it like a statute, not approaching it with a tooth comb.
18. The central feature of the decision was the striking of a balance between the adverse effect on the countryside and the needs of Mr Buck and his family, in particular the avoidance of psychological harm and of harm to the children's education if they were forced to move from the site. The rest of the decision must be read against that backdrop.
19. As to the second sentence of paragraph 20, Miss Selway submits that what the Inspector was saying was that a personal condition was not appropriate as an alternative to a temporary permission. The thrust of what he says in his witness statement on this issue is, she submits, to the same effect.
20. She further submits that the third sentence of paragraph 20 concerning the gypsy condition is directed not to the specific position of Mr Buck and his family but to the position of gypsies in general. The very fact that the Inspector decided not to impose a personal condition also shows that he contemplated the possibility of other gypsies occupying the site. If he was in error in this respect, it was an insignificant error, given the temporary nature of the permission.
21. Mr Willers for Mr Buck echoes some but not all of Miss Selway's submissions. He submits that the Inspector plainly took the view that the imposition of a temporary permission, coupled with the gypsy condition and the condition limiting the number of caravans on site, was sufficient in the circumstances. The irresistible inference is that the Inspector did not consider a personal condition to be necessary, and since necessity is one of the six criteria for the imposition of a permission (see paragraph 14 of circular 11/95), he was right not to impose one if conditions falling short of a personal condition were sufficient.
22. At to the second sentence of paragraph 20, Mr Willers submits that the Inspector was there considering whether a personal condition alone -- that it to say, as a condition of permanent, rather than temporary, planning permission -- was appropriate. As to the third sentence concerning the gypsy condition, he submits that the Inspector was not considering the position of gypsies in general, but was considering the individual circumstances of Mr Buck and his family. Although that condition would in theory allow other gypsies to occupy the site, the issue of occupation of the site by other gypsies was not raised by either party. Given that and given the relatively short period for which it would happen, if it happened at all, and the limited nature of any resulting harm, Mr Willers submits that the Council should not be allowed to raise the point now, or that it should go to the court's discretion to withhold relief if the point is to be ventilated and is found to have any substance to it.
23. I turn to my conclusions on those rival submissions. I do not accept that the decision was vitiated by a failure to impose a personal condition. I think it clear that the Inspector took the view that a temporary permission in order to allow time for a more suitable site to be sought, coupled with the other conditions which he imposed, would ensure an acceptable balance between the adverse effect on the character and appearance of the countryside and the needs of Mr Buck and his family. That was the central plank of his reasoning and it was in itself perfectly sound.
24. He could reasonably have gone a step further and have imposed a personal condition as well. It does not follow, however, that it was unreasonable for him to decline to do so.
25. Looking at the decision as a whole, the Inspector must in my view have taken the view that it was unnecessary to impose a personal condition. He must have concluded that the package that he delivered was sufficient to achieve the appropriate balance between the adverse effect on the countryside and the needs of Mr Buck and his family.
26. I reach that conclusion by way of inference from the decision itself, as Mr Willers invited me to do, rather than by reference to the contents of the Inspector's witness statement. In my judgment, the witness statement is inadmissible on this point, since it is not open to an Inspector to add to or put a gloss of this kind on the reasons set out in the actual decision. In any event, I confess that I find this part of the witness statement less than clear, although if it were taken into account, it would tend to support, rather than to undermine, the conclusion I reach from the decision letter itself.
27. In my judgment, the second sentence of paragraph 20, where the Inspector rejected a personal condition because the site was unsuitable for development in the long term, was directed not towards the possibility of imposing a personal condition in conjunction with a temporary permission, but towards the possibility of imposing a personal condition in place of a temporary permission. The Inspector gave a sound reason why that was inappropriate.
28. I accept that this construction means that the Inspector did not address in terms the imposition of a personal permission in conjunction with a temporary permission, but as I have already said, the inference to be drawn is that he did consider the point and concluded that such a condition was unnecessary.
29. The further conditions that the Inspector imposed as to the use of the site by gypsies and limiting the number of caravans on site were in my view both directed to the particular circumstances of Mr Buck's case. Thus, I read the reference to the circumstances of gypsy lifestyle and culture as a reference back to those features of the individual circumstances of Mr Buck and his family that justified the grant of a temporary permission, rather than as referring to the lifestyle and culture of gypsies in general.
30. The reasoning could certainly have been followed through to the imposition of a personal condition and it might well have been better for the Inspector to follow that course, rather than imposing the gypsy condition. I agree that the gypsy condition leaves open the possibility of occupation by other gypsies, whereas the whole thrust of the Inspector's reasoning relates to occupation by Mr Buck and his family.
31. But there was no suggestion before him that occupation by others was likely and I reject the submission that it was incumbent on the Inspector to investigate this possibility, even though not raised before him. In my judgment, the decision in Dyason does not call for an investigation of that kind. A distinction must be drawn between careful examination and investigation of an issue that has been raised and investigation of something that has not been raised. In this case, occupation by other gypsies had simply not been raised as an issue and I do not think that the Inspector was required to investigate it of his own motion simply because the general issue of a personal condition had been raised.
32. A further consideration is that if another gypsy family did come to occupy the site, it would necessarily be for a limited period and in circumstances where the Inspector had considered, albeit for reasons specific to Mr Buck and his family, that continued use of the site for up to three years would not cause unacceptable harm to the countryside.
33. In all the circumstances, I take the view that, to the extent that the Inspector's reasoning is open to criticism, such criticisms are not sufficient to vitiate his decision. In particular, the decision not to impose a personal condition was neither irrational nor otherwise unlawful.
34. Had I taken a different view, I would still have been inclined to withhold relief in the exercise of my discretion. As I have said, the Inspector could have gone on to impose a personal condition. That would not have affected the position of Mr Buck and his family under this planning permission at all. Mr Willers has made clear that Mr Buck would happily have accepted such a condition. Unfortunately, there is no mechanism by which it can now be added by consent. But the reality of the matter is that Mr Buck and his family will continue to occupy the site throughout the period of the temporary permission unless and until some acceptable alternative site is found. If such an alternative is found, there is no more than a speculative possibility that other gypsies would move on to the appeal site for the remainder of the three year term of the permission and, as already mentioned, that was not something raised before the Inspector.
35. There are in my view strong grounds for saying that Mr Buck should not be exposed in these circumstances to a further decision making process in which he would be at risk of a different Inspector forming an altogether different view of the merits of his case and, in particular, a different view as to whether any grant of planning permission was appropriate. The Council should not be allowed to seize on the personal condition point as a means of reopening the entire decision unless there was a serious flaw in the Inspector's approach. In my judgment, there was no such serious flaw and the matters canvassed would not justify the reopening of the decision, even if I had accepted that they were sufficient technically to invalidate the decision. Accordingly, I would have refused to quash the decision on this ground.
36. I move to the second ground, which concerns what the Inspector said about the children's education. Mr Reed's submission is in essence that when the Inspector looked at the acceptability or otherwise of alternative sites, he looked only at their location relative to the children's existing schools and failed to consider the possibility of the children being educated at other schools. The Council had raised, albeit in the most general terms, the possibility of the children being educated elsewhere and the Inspector should have investigated that general question instead of confining his attention to the children's existing schools. The decision in Dyason is relied on in this context too.
37. Both Miss Selway and Mr Willers meet that point first by the submission that the Inspector focussed on the children's existing schools because he took the view that it would be detrimental to them if their existing education were disrupted.
38. I accept that that inference can properly be drawn from his decision and that, although there was only limited evidence before him on this subject, it was an approach reasonably open to him.
39. There was evidence that, of the three children who went to school, one went to the local high school and two to the local primary school, and that the family hoped that those two would go on to the local high school. It was accepted that the schools were both local to the appeal site. There was no evidence about the quality of education provided in those schools or anything of that kind.
40. The Inspector was shown an old report on gypsy education in the West Midlands, which referred to the detrimental effects of constant changes of school. I accept Mr Reed's submission that that report related very much to the problems of a mobile existence. However, that was something to which the Inspector was entitled to have regard, since the evidence was that if Mr Buck had to leave the appeal site, he would not take a Council house or go to an official gypsy site. So a mobile existence was indeed the likely outcome. The Inspector refers in paragraph 14 to the fact that the alternative of following a mobile existence with his family would be likely adversely to affect the education of the children.
41. The Inspector also had before him a psychological report which referred to the fact that the eldest child had been withdrawn from school because she had been bullied and that the other children, although happy in their present schools, would not attend another school because of concern about bullying elsewhere.
42. None of this material was of any great substance, but in the absence of evidence to the contrary -- and there was none -- it was in my judgment sufficient to support the Inspector's view that any move from the children's existing schools would adversely affect their education and be detrimental to them. On that basis, he was fully entitled to assess other sites by reference to whether they were within a reasonable distance of the schools currently attended and it was not necessary for him to consider the separate question of attendance at other schools.
43. But there is in my view a further answer to the Council's case on this issue. The evidence before the Inspector concerning alternative sites was very thin. He observed at paragraphs 12 to 13 of the decision that he was provided with limited information as to vacancies at individual sites. This is expanded on in his witness statement, where he states that he heard evidence to the effect that the authorised local sites had only two to three vacancies and that there were a few unquantified vacancies on privately owned sites. He visited the nearest site with a known vacancy.
44. There was, therefore, that limited material about sites before him. There was, however, no evidence at all before him about the availability of alternative schools for the children. There were no details of what schools there were, where they were located relative to other sites -- let alone relative to other sites with vacancies -- and, most importantly, no evidence as to whether there were vacancies at those schools, or indeed whether a transfer of school could be effected without significant disruption to the children's education, assuming always that the family would have allowed such a transfer.
45. Mr Reed submits that the Inspector should have looked in general terms at the possibility of a move to other schools, but in my judgment it was necessary for the Council to put some relevant evidence before the Inspector if it wished to advance the case, or to have the Inspector consider the case, that Mr Buck and his family could be accommodated at other sites without adverse effects on the children's education. In the absence of such evidence, the Inspector was in my view entitled to focus as he did on the location of sites relative to the children's existing schools.
46. For all those reasons, I reject the second ground of challenge.
47. The third ground of challenge was directed towards paragraph 16 of the decision, but in the light of the contents of the Inspector's witness statement, it has very sensibly not been pursued.
48. I have therefore dealt with the basis upon which the challenge is now brought. I have concluded that each of the grounds advanced fails. It follows that the claim must be dismissed.
49. MISS SELWAY: My Lord, in those circumstances, I would ask for the Secretary of State's costs. In the event that your Lordship is minded to assess those, a schedule has been sent.
50. MR JUSTICE RICHARDS: Yes. I have the schedule somewhere.
51. MISS SELWAY: I have another copy, if it is not to hand.
52. MR JUSTICE RICHARDS: I think this one did actually get through to me and I have looked at it. You are claiming costs in the total sum of £4,636.25?
53. MISS SELWAY: That is it, my Lord.
54. I should point out, although I do not think, given the time spent in court, anything turns on it, but there is a very --
55. MR JUSTICE RICHARDS: A five hour estimate for the hearing?
56. MISS SELWAY: Yes, my Lord.
57. Near the foot of the second page of the costs schedule, in relation to counsels' fees, there is an error in calculation. Those figures add up to £2,700, rather than £2,600, but given the hearing has lasted a slightly shorter time, my instructing solicitor points out that his attendance on 19th March should perhaps be slightly less, but all in all, I would say that your Lordship should not interfere with that statement. It is eminently reasonable in its total amount.
58. MR JUSTICE RICHARDS: The £2,700, instead of £2,600 -- should therefore the total be £4,736.25?
59. MISS SELWAY: It should be, my Lord, but I think you can leave it as it is.
60. MR JUSTICE RICHARDS: I just want to see what the figures add up to.
61. MISS SELWAY: Yes, of course.
62. MR JUSTICE RICHARDS: Allowing for the fact that the hearing will have taken shorter than estimated, it may be that £4,500 would be a fair round figure for assessment, subject to any submissions that are made.
63. MISS SELWAY: Indeed, my Lord, yes.
64. MR JUSTICE RICHARDS: Let us hear from Mr Willers.
65. MR WILLERS: My Lord, unusually perhaps, given the position I am in as the second defendant, I do ask nevertheless for --
66. MR JUSTICE RICHARDS: It is not unusual for people to ask.
67. MR WILLERS: My Lord, obviously we are governed by what was said in the House of Lords in the case of Bolton Metropolitan District Council in a case which I am sure your Lordship is familiar with.
68. MR JUSTICE RICHARDS: A separate issue or a separate interest.
69. MR WILLERS: A separate interest, and perhaps issue in this case, but certainly separate interest.
70. I did hand up, and it should be on your Lordship's desk, a small bundle of authorities, with the case of the London Borough of Bromley v the Secretary of State for the Environment Transport and Regions and Keston Showmen's Park Planning Fund. It is a transcript, my Lord.
71. MR JUSTICE RICHARDS: Yes, I have that.
72. MR WILLERS: It is the decision of Sullivan J on 5th July 2001, and in that case the Keston Showmen's Park Planning Fund applied for their costs and the matter was dealt with on the penultimate page of the judgment.
73. MR JUSTICE RICHARDS: There is a point of principle here, is there, because one does not normally look at discretionary decisions on costs in other first instance cases when determining whether to award costs?
74. MR WILLERS: My Lord, I think Sullivan J identifies the point of principle.
75. MR JUSTICE RICHARDS: Let us look at it. If you say there is a point of principle here, I will read whatever it is you tell me to read.
76. MR WILLERS: My Lord, I will not take long, but the third paragraph down from Justice J saying "yes, thank you very much" in his judgment, he says:

"The first question to consider is whether the second defendants did have a sufficiently clear and separate interest. I am in no doubt that they did. This was not simply an exercise, as so many planning appeals are, about the value of land where a developer, for example, wishes to defend a planning permission that he has obtained because it is a valuable asset. The second defendants in the present case are at risk, or were at risk if the Council's application succeeded, of losing their homes; homes that they have lived in for a number of years since 1996. In my judgment, that gave them a particular and direct interest which made it right that they should be represented here in addition to the Secretary of State".

77. I will skip over the next paragraph and ask your Lordship to look at the paragraph thereafter, where he says:

"So I am satisfied, therefore, that they do have a clear and distinct interest which warranted representation. That they did, if you like, give added value in the case of this particular reasons challenge, given the nature and the subject matter of the reasoning that was challenged. For those reasons, I am satisfied, in principle, that there should be a second award of costs. It would seem to me to be fundamentally unjust if someone whose home was at risk was not able to attend court in order to defend his home".

78. My Lord, it is worth pointing out and important that your Lordship should be aware that Sullivan J granted the award for the award for the order of costs: one, on that basis; and two, because the second defendants had contributed to the discussion as to the merits or otherwise of the claimant's arguments, and that is really summarised in the paragraph that was set out beforehand.
79. What I submit in this case, that clearly there were submissions that were put forward by and on behalf of Mr Buck which your Lordship has accepted in relation at least to the first point. I am not saying that your Lordship would not have come to that conclusion in any event, but I submit that in those circumstances we have not only contributed, and it is not only right that we should be here to preserve Mr Buck's interests, but that we have also contributed to the decision.
80. MR JUSTICE RICHARDS: Are you applying to protect a particular pot of public funds?
81. MR WILLERS: Yes, the Legal Services Commission.
82. MR JUSTICE RICHARDS: Not that it affects the principle, but --
83. MR WILLERS: It would be wrong for me if those that generally support the Legal Services Commission by paying their taxes had to pay for the costs of defending this appeal brought by the Borough of Doncaster.
84. MR JUSTICE RICHARDS: I suppose it might be said that in this case it is not so much the home that one is in danger of losing as simply the place where the home is currently located.
85. MR WILLERS: My Lord, that is right.
86. MR JUSTICE RICHARDS: I do not know about the ownership of this site.
87. MR WILLERS: As I understand it, it is in Mr Buck's ownership, but it has to be said that the London Borough of Bromley case was also involving those living in caravans, albeit carrying around a lot of fairground equipment.
88. MR JUSTICE RICHARDS: Yes, the Showmen. I see.
89. MR WILLERS: The Showmen in this case.
90. MR JUSTICE RICHARDS: Yes. Thank you.
91. MR REED: My Lord, may I deal very briefly with the Treasury Solicitor's costs. We do not have any difficulty with the £4,500 that seems now to be claimed by Miss Selway, and I do not think I can resist that point. I do resist, however, the costs in relation to the second defendant.
92. My Lord, we say quite simply, there is no separate issue put forward and has been no separate issue put forward by the second defendants that has required their attendance here today. Miss Selway has made sterling efforts, as the Treasury Solicitor's Department always do, to defend their cases, and there is no particular point that has been raised by Mr Willers separate from Miss Selway's contentions.
93. My Lord, the Bolton case was clear that there are no rules as to costs and there should not be regarded as being rules as to costs, and to rely upon the Bromley case, as Mr Willers does, is to do exactly that in cases concerning gypsies. Effectively, what Mr Willers submits is that Sullivan J was saying that where somebody had the possibility of losing their home, they should be entitled to attend and they should be entitled to their costs.
94. My Lord, I say that Sullivan J was not saying that in the Bromley case.
95. MR JUSTICE RICHARDS: Yes.
96. MR REED: He looked at the matter in the round in the particular circumstances of that cases. He noted that the travellers, in that case Showmen, had been on the site in question since 1996 -- a different set of circumstances -- and that they had contributed significantly to the overall grounds on which the permission was defended.
97. They put forward, and it is worthwhile quoting the fourth paragraph of the page that Mr Willers took your Lordship to, because it refers to several matters that Mr Willers did not draw your Lordship's attention to.
98. MR JUSTICE RICHARDS: Yes.
99. MR REED: That fourth paragraph deals with -- and I look at the third sentence up from the bottom of that paragraph -- the need for a certain amount of reading of the background material and the second defendants being:

" . . . in a peculiarly good position to put that background material before the court and, indeed, did so very helpfully".

100. So that factor, in addition to the risk of losing the home, contributed to the overall conclusion that, yes, it was right that the defendants were represented.
101. Sullivan J would not have been suggesting and claimed then some fundamental principle in the fifth paragraph when he said that it is:

" . . . fundamentally unjust if someone whose home was at risk was not able to attend court in order to defend his home".

102. He is saying in all the circumstances. If those circumstances are made out in a particular case, you should get your costs.
103. MR JUSTICE RICHARDS: Yes.
104. MR REED: The simple point is that, whilst Mr Willers has provided argument to the court, he has done only that. He has provided no substantive evidence and in those circumstances no separate issue and no requirement for him to be here.
105. MR JUSTICE RICHARDS: Thank you.
106. MR WILLERS: My Lord, just one point. My instructing solicitor tells me that, as far as she is aware, the Treasury Solicitor only informed her, and indeed her firm, that they were defending this appeal last week, and we have tried to clarify whether there is any paperwork and any correspondence from the Treasury Solicitor in answer to requests from those instructing me as to whether or not the position was such that they were coming along to defend this appeal.
107. But my understanding is, and has been all along, because I have been chasing the point, that there has been no confirmation from the Treasury Solicitor until last week that this matter would be defended.
108. MR JUSTICE RICHARDS: That is an important consideration.
109. MR WILLERS: It is. It is not one that I was immediately thinking of, and I apologise for not having raised it before.
110. MISS SELWAY: I am not sure I can throw any great light on that. I know that my instructing solicitor sitting behind me took over the case relatively recently. A colleague of his was certainly dealing with the matter and the full file is not with us. I regret not to be able to assist fully on that point.
111. Certainly, we have nothing to say that we informed the second defendant ages ago. I simply cannot assist further. I apologise, my Lord.
112. MR JUSTICE RICHARDS: Yes. You are not in a position to throw any further light on it?
113. MR WILLERS: We have the full correspondence file and there was a letter 5th February:

"Further to our previous correspondence and telephone calls to your office [this is to the Treasury Solicitor] we would be grateful it you could confirm as a matter of urgency the position of the Secretary of State in relation to the above appeal", and we have not received anything until last week.

114. I do not know whether or not the claimant received any notification at any stage. Obviously, we are asking for costs of the --
115. MR JUSTICE RICHARDS: You are asking it from the claimant, but the point you raise may go to, if there is only one set of costs, how it is to be dealt with.
116. MR REED: My Lord, if I may make some representations, if Mr Willers has finished. My Lord, in those circumstances, if that is right, and that is being checked at the moment to see whether or not the Council has had any correspondence, but even if it is right that it was at a very late point at which the second defendants were told that the first defendants were or were not defending, we say that there should only be one set of costs. We should not have to pay both people and there should be an apportionment, if necessary.
117. If the full responsibility lies with the Treasury Solicitor for not indicating to the second defendant -- the full responsibility for Mr Willers' attendance -- then full costs should go to Mr Willers and not to the Treasury Solicitor.
118. If I may just find out.
(Pause).
119. MR JUSTICE RICHARDS: Do you have a schedule of costs? Presumably not.
120. MR WILLERS: My Lord, no. Publicly funded tend not to, my Lord. I would be asking for a detailed assessment.
121. MR JUSTICE RICHARDS: Yes.
122. MR REED: My Lord, the information that we have is that on 25th February, the Treasury Solicitor wrote to us indicating that the first defendant intended to submit witness evidence in relation to the claim. We took that as meaning that the defendant would be taking place.
123. MR JUSTICE RICHARDS: Sorry, repeat what was said?
124. MR REED: "I write to inform you that the first defendant intends to submit witness evidence in relation to this claim. The witness statement has not yet been finalised, but I will send you a copy as soon as I am able".
125. MR JUSTICE RICHARDS: That is the Inspector's witness statement, presumably?
126. MR REED: That is what we assume.
127. MR JUSTICE RICHARDS: Yes.
128. MR REED: That was dated 25th February, my Lord. We received it on the 26th. So it is some three or four weeks ago, my Lord, if I am right about that. Three and a half weeks ago, whether or not the second defendant was aware of that.
129. MR WILLERS: My Lord, my information is that there was a telephone conversation between my instructing solicitor and Mr Smith of the Treasury Solicitor on 11th February, when my instructing solicitor was informed that counsel had been retained by the Treasury Solicitor, but no decision had yet been made as to whether or not the appeal would be defended.
130. Just one small point, my Lord. It has to be said that my skeleton argument and the bulk of my work that I personally have done -- my solicitors have done a lot more -- has been done in the last seven days. So I could not suggest that I have been doing a lot of work beforehand.
131. MR JUSTICE RICHARDS: Thank you very much.
132. Leaving aside for a moment the question of whether the position is affected by a failure on the part of the Treasury Solicitor to notify Mr Buck's solicitors that the case was going to be defended, and looking at the matter without that consideration first of all, I take the view that the right course is for a single set of costs to be awarded, and subject to that consideration, it would be a set of costs in favour of the Secretary of State summarily assessed in the sum of £4,500.
133. There are indeed no rules here. I take account of what Sullivan J said in the Keaton case. I am not satisfied that in the present circumstances the fact that the proceedings concerned planning permission in respect of the site where Mr Buck's home is located is enough to give him a separate interest within the Bolton criteria.
134. We are not concerned here with, for example, an injunction to remove him immediately, but with the question of whether a decision granting planning permission was lawful, and in circumstances where, if it were quashed, another decision would fall to be taken. So there is no immediate risk of his losing his home.
135. There was no separate issue requiring the attendance of counsel on behalf of Mr Buck. I fully accept that Mr Willers has assisted the court by his submissions and influenced the way in which the judgment dealt with certain of the matters, although not I think the ultimate conclusion reached, which would have been the same in any event. I am grateful to him for his submissions, as I am grateful to Miss Selway for hers.
136. It was plainly reasonable for Mr Buck to be represented in circumstances where one would normally expect representation for a party who was not publicly funded. It does not follow, however, that the claimant is bound to pay a second set of costs.
137. So the general point, as it seems to me, is that there should be one set of costs and that it should in the ordinary course be paid to the Secretary of State.
138. The one reservation to which everything that I have said is subject is whether it can be said that costs were incurred in representation for Mr Buck in the belief that the Secretary of State was not going to, or might not be going to, defend the claim.
139. I find it very difficult to reach any concluded view on that point on the material that counsel have referred to. I am not satisfied that Mr Buck's solicitors were misled into incurring expenditure in the mistaken belief that the Secretary of State was not going to, or might not be going to, defend the claim.
140. In any event, as Mr Willers has very fairly observed, the bulk of costs will have been incurred in the run-up to the hearing when, on any view, it was clear that the Secretary of State was defending the claim. In those circumstances, I do not think that there is any warrant for departing from the position I had reached by reference to the normal considerations that operate.
141. Accordingly, the order will be that the claimant pays the Secretary of State costs, summarily assessed in the sum of £4,500, and that there is no order as to the costs of Mr Buck, the second defendant.
142. MR WILLERS: Save for detailed assessment, my Lord.
143. MR JUSTICE RICHARDS: There will be, of course, detailed assessment for Community Legal Services funding purposes, and I am very grateful to all counsel for the assistance they have given.