No B2/2000/2670
Neutral Citation Number: [2001] EWCA Civ 261
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL 
WITH APPEAL TO FOLLOW IF GRANTED

								Royal Courts of Justice
								Strand
								London WC2

								Friday, 2nd February 2001

B e f o r e:

LORD JUSTICE SCHIEMANN

LORD JUSTICE LATHAM

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PICKAVANT

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CHARNWOOD BOROUGH COUNCIL

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
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The Applicant appeared in person

MR STEVEN GASTOWICZ (Instructed by Legal Department, Charnwood Borough Council) appeared on behalf of the Respondent

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J U D G M E N T
1.	LORD JUSTICE SCHIEMANN: Before the court is an application by Mr Pickavant for permission to appeal an order made by His Honour Judge Brunning on 14th June 2000. The judgment concerned the ability of a local planning authority to recover the costs of carrying out some work which Mr Pickavant had been ordered to do by an enforcement notice.
2.	The enforcement notice had been issued in these circumstances. One sees that in the reasons for issuing the notice it is said that the breach of planning control alleged was erection of a building and the reasons for issuing the notice was -
“The newly erected building in place of a former farmworkers cottage does not benefit from `permitted development' rights which exist for new agricultural buildings ..... “
3.	Under the enforcement notice Mr Pickavant was required to remove from the land -
“the building referred to in paragraph 3 above [the one erected] including the foundations of the building.”
4.	The saga, as described by the judge, goes back to 1988 when Mr Pickavant required planning permission to build on a site of an old cottage on his land. That was refused. There was an appeal and that failed. His son nevertheless built the new building and that resulted in the giving of the enforcement notice. That enforcement notice was appealed. The inspector hearing the appeal upheld the notice. Mr Pickavant was asked to pull it down and, so he told us today, he thought “I will have another go. Although I appealed on ground (a), against the enforcement notice, namely that planning permission ought to be granted, I am going to try and put in a new planning application which, with any luck, will at least keep the ball in play while that is being determined.” The council's officers said that he was entitled to put in a new application, and he did.
5.	Mr Pickavant told us today that it was all ready to be heard at a committee meeting in November 1995. What happened in October was that the council's contractors moved in and pulled down the old cottage.
6.	There are two grounds suggested to us which should entitle Mr Pickavant to permission to appeal. One relates to the work that was actually done by the contractors. The position is this, as found by the judge, that the council put out to tender the contract to carry out the demolition job and it was given to the lowest tenderer. The judge found - and there is no reason to say that that finding was not open to him on the evidence before him - that the tender was one which set out a reasonable price.
7.	The point that is sought to be taken by Mr Pickavant is that the tender included a price for the carting away of the old foundations, and that part of the job was not done. It is right to say that that allegation in those terms did not appear in any of the pleadings as being an issue. It appears to have been raised for the first time on the day that the judge heard the case. The only evidence given before the judge in relation to that matter was given by Mr Pickavant's son Lester. He says in paragraph 5 of his written statement that after the demolition had been carried out he was deeply distressed to find that all that remained of the cottage was the old stone foundations, which does not as such put one immediately on to the point which I have sought to describe. When he was cross‑examined he said he was there referring to the old foundations of the original cottage.
8.	One can understand the broad point sought to be raised, albeit very late in the day, that he may have been paying for some work which was not carried out. I think the answer to that point is essentially that the builders had quoted for a job. The rate quoted was a reasonable rate; that was the job they came on site to do. It may be that because the matters arose so late - the evidence is not clear - that when they got to the site, after they carried out the demolition but before they had taken away much of the foundation, the council officer supervising this took the view that that was enough for the builders to do because otherwise they risked taking away something that was not covered by the enforcement notice, namely the foundations of the old building.
9.	Whether the council officer is right or wrong, the judge was not called on to decide.
10.	The fact, if it be a fact, that the builders did less in relation to the foundations than they might have done or that they ought to have done, according to one view of the facts represented, does not disentitle the builders to be paid for the job. They turned up that day and if their employer let them off for doing a little less that is delightful for the builders. It does not mean that the builders are entitled to be paid less.
11.	The question is whether the council can in those sort of circumstances charge the cost of it to Mr Pickavant. He has not indicated to us any good reason why, in principle, they cannot. For my part, I see no reason why any court should give him relief under that particular head. So far as that argument is concerned, I do not regard it as having a serious prospect of success.
12.	Mr Pickavant has a different argument which essentially is that he had tried to put off the evil day by putting in a new application - no doubt at some expense to himself in fees - for the retention of the cottage which should never have been built. He said that he had been led to believe that nothing would happen to his cottage until that application had been dealt with, which seems a reasonable thing to suppose unless it was regarded as an application without any prospect of success. I follow that argument. Unfortunately, the difficulty that Mr Pickavant faces is that this is an argument which he has effectively raised for the first time today. His counsel did not mention it in the writtenpleadings or argument before the judge. The judge does not deal with it in judgment. What evidence might have been called in relation to it we do not know. What is clear is that the reply and defence to counterclaim was the subject of a case management conference before the judge which restricted the issues which could be argued to matters which did not include this particular issue. We are told by counsel for the council that at that case conference Mr Pickavant's lawyers did apply to argue various matters apart from those for which they were eventually given permission, but then they abandoned that application. The point was not ventilated before the judge. Nor is it ventilated or suggested in the notice of appeal before us. It has been formulated for the first time today.
13.	As I endeavoured to explain to Mr Pickavant, our job is to see whether the judge fell into error. We cannot see that he did. In those circumstances I would refuse permission to appeal.
14.	LORD JUSTICE LATHAM: I agree.
Order: Application refused with costs of £3,000.