Joanna Golding v The Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | JUDGE WAKSMAN |
| Judgment Date | 27 April 2012 |
| Neutral Citation | [2012] EWHC 1656 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 April 2012 |
| Docket Number | CO/4335/2011 |
[2012] EWHC 1656 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
His Honour Judge Waksman QC
(Sitting as a Judge of the High Court)
CO/4335/2011
Mr A Masters (instructed by Branwell Browne Odedra Solicitors) appeared on behalf of the Claimant
Mr S Whale (instructed by the Treasury Solicitor) appeared on behalf of the First Defendant
Introduction
This is an application for judicial review of two costs orders made by the Inspector on 1st April 2011 following the conclusion of a planning appeal in favour of the appellant and the present claimant, Miss Golding.
At the commencement of the hearing before me I ruled that the appropriate method of challenge for a costs order made by the Inspector pursuant to her powers under section 255 of the Local Government Act 1972 ("the 1972 Act") and Schedule 6 of the Town and Country Planning Act ("the 1990 Act"), and in respect of an appeal brought under section 78 of the 1990 Act, was by way of judicial review and not pursuant to section 288 of the 1990 Act. Following my substantive judgment is an addendum setting out my reasoning for that ruling in case there is some interest in it. Since both parties wished me to deal with the substance of the challenge, I formally granted permission for the judicial review claim, which I now determine as a matter of substance.
For the purpose of the application before me I have read all the witness statements, namely from Mr Brown, the claimant's planning consultant, from Miss Lewenstein on behalf of the Secretary of State and Mr Tym on behalf of the relevant council, which is the East Lindsey District Council.
Background
The appeal concerned an application for planning permission made by the claimant to the Council for the conversion of holiday caravan site to one for permanent use by caravans on 11 pitches for use by gypsies or travellers.
On 11th May 2009 the Council refused permission on grounds which included the lack of any ecological survey prepared by the claimant which could satisfy concerns as to whether there were any habitat implications and also on the question of noise.
Adjoining the application site was a waste management facility operated by the third defendant, GBM Waste Management Limited ("GBM"). They objected to the claimant's application for planning permission and they took part as an objector in the subsequent appeal. The noise objection related to the noise produced by GBM on its site and its effect on the amenity at the proposed new residential site and in relation to those who might then live there.
In the appeal the Council, as well as GBM, objected to the claimant's proposals until there came a time when, as a result of an ecological survey and further material in relation to noise, the Council indicated that it would now be withdrawing its objections, providing that suitable conditions would be imposed. GBM, however, maintained its objections.
The course of the appeal
The appeal was set down for two days on 30th and 31st March 2010. Given the number of witnesses and the fact there would be three counsel, these dates had been agreed some months in advance. As it transpired, two days was a significant underestimate. On or around 24th March 2010 Mr Brown informed the Inspector that the claimant's counsel—then, as now, Mr Masters—would not be able to attend the second day of the hearing. This was because at an earlier hearing before the Court of Appeal Criminal Division on 16th March, which was adjourned, the court told counsel they would have to attend an adjourned hearing which would take place before the end of that term on a date to be fixed by the court. Some days later Mr Masters was told it would be 31st March. Alternative counsel for the planning appeal were not instructed to take over. The Inspector wanted Mr Masters to explain on the first day in some detail why he was prevented from attending and why alternative counsel had not been instructed. He did attend on that day, and at least some time on the morning of the first day was taken up discussing Mr Masters' difficulties in attending and so on.
It was decided that the inquiry would have to be re-fixed for a longer period in any event to accommodate all of the evidence. Three days were set aside. The original revised hearing dates were in August 2010, but these could not be kept due to the illness of Mr Brown, and eventually the inquiry took place on 18th to 20th January 2011. There were site visits on 31st March 2011 and 19th January 2011.
The eventual inquiry was somewhat shorter than been anticipated because at least by then the Council were no longer objecting in principle.
The date by which the claimant was to serve any evidence in support of the appeal was 2nd March, so just about 28 days before it was due to start. She did not do so. It is clear, however, that around this time or a little later she was turning her mind to the need to put in an ecological survey. As the Inspector put it in paragraph 61 of her first costs submission:
"There is no indication of the appellant having made any attempt to secure an expert on this until a week or so before the inquiry. An email from the Local Planning Authority of 25 March 2010 to Ms Golding and Mr Brown (copied to PINS) refers to this and Ms Golding was there reminded by the Council that such evidence should have been received by 2 March 2010. Mr Masters said on Day 1 that he had asked for such evidence but that it was not yet ready. There was thus a clear breach of the Inquiry Procedure Rules."
I have a copy of the relevant e-mail from Mr Tym at the Council talking about the new ecological report and that the claimant had told him she wanted to have a copy of the report of Mr Pocklington, who was going to be the Council witness on ecological matters, so as to inform her own ecology consultants' survey. If that was a reference to evidence she now intended to produce, they would point out the date of exchange was 2nd March and the reason for refusal on ecological grounds had been known to Miss Golding since at least the publishing of the Planning Committee report prior to the decision being made in May 2009. The Council viewed the introduction of such evidence at a very late stage as unreasonable behaviour.
As it turned out, the survey for that new ecology report was itself undertaken on 30th March, and subsequently, in April, after the case had been adjourned, it was served late. Once served, the Council said on 21st May that provided the Inspector was prepared to accept this late evidence, they would withdraw their ecological objections and seek the appropriate conditions instead. The Inspector did admit that evidence and so the Council's position changed appropriately.
As far as noise is concerned, the Council explained their position subsequently, and they did so in this way—I am here reading from the Council's closing statement after the inquiry had finished at paragraph 6:
"Reason 1 [for the refusal of planning permission] related to noise and disturbance issues in Reason 2 about which the Council had not had adequate information from the appellants. There is a chain of correspondence from the Council repeatedly pointing out the lack of an inadequate noise survey. At the time the Committee determined the application there was only the scant noise survey supplied by the appellant which the appellant had been told was inadequate for a number of reasons (most importantly it only applied PPG24 principles and not BS4142). The GBM 2007 noise survey was not before the Committee as GBM had objected to its use for reasons it alleged related to copyright. In any event it was not prepared for the purposes of the application before the Committee at that time … and it would have been erroneous for the Council to have relied upon it in that context in the absence of an adequate survey and information from the … appellant."
In paragraph 7:
"… during the first adjournment the appellant sent the Council details of a bund and acoustic fencing without explanation. Reference was made to readings collected on the day of the site visit but no noise survey information was supplied … After the second adjournment and as late as November 2010 a full noise report and survey with data was supplied to the inspector. Again, the inspector accepted this evidence and asked the Council to be in a position to address it and the new information about the effect of the bund and the acoustic fencing."
I need to explain a little more about all of this. GBM, as part of the conditions governing its own planning consent, was required to produce noise assessments annually. In June 2010 it did so, but the report here showed that if one took into account something called tonal adjustment, the noise level was higher than it otherwise would have been so far as any neighbours were concerned. That report was produced on 16th June but it was not served by GBM at that time on the Council or on the Inspector. But the position so far as the appellant by that stage was this. It had first of all submitted materials concerning noise on 1st and 13th April 2010, and one of those, I suspect the first, was the one which referred to or relied upon data which had been taken on 31st March and to which the Council's document made reference. The later document went into detail concerning acoustic barriers and...
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