Neutral Citation Number: [2008] EWHC 3243 (Admin)

CO/8151/2007 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 11 December 2008
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 
THE QUEEN ON THE APPLICATION OF BERWOOD HOMES LIMITED 
Claimant

v 

THE COUNCIL OF THE LONDON BOROUGH OF BROMLEY 
Defendant 
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Mr N Nardecchia appeared on behalf of the Claimant
Mr J Robson appeared on behalf of the Interested Party
Mr S Whale appeared on behalf of the Defendant
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J U D G M E N T
1.	MR JUSTICE COLLINS:  This is an application for judicial review of a decision by the London Borough of Bromley to grant a retrospective planning permission to the interested parties, that is to say Mr and Mrs Robinson, to enable them to keep a building which was in the course of construction as an extension to their house.  The building in question involved the construction of a garage and what is described as a games room behind.
The reason why retrospective permission was required was because originally there had been an application for a single storey building as this extension based upon particular plans, dimensions and siting.  The council granted permission in November 2006.
The claimants own the property next door.  It had contained a house.  Judging by the photographs I have seen, it looks as if it may have been built in the 1930s or thereabouts.  That house has since been demolished and they have since obtained planning permission and are in the course of completing the construction of a substantial house there of some seven bedrooms.  It appears that the extent of that is somewhat greater than the extent of the original house, so that it comes rather closer to the boundary with the interested party's house.  Be that as it may, they objected to the grant of the original planning permission, but those objections did not prevail.  Accordingly, as I say, permission was granted.
Unfortunately, the Robinsons commenced the construction, but they did not keep to the plans which had been submitted.  So the claimants complained to the council that there appeared to be a breach of the planning permission which had been granted.  The breach consisted of a greater extent of the building in question.  It was to be higher than indicated and it also was, it seems, closer to the boundary of the claimant's property than appeared to be consistent with the plans that had been submitted.
In fact, originally, the Robinsons had wanted a flat roof and thus something that clearly would be only a single storey extension, but objection was raised to the flat roof idea, because that would not fit in with the area.  It is in fact a conservation area and the view was taken that it would be out of character.  Accordingly, after discussion with the relevant officer on behalf of the council, it was agreed that the plan should be changed to incorporate a roof which Mr Robson has described as "putting a hat" on the building.  The planning department of the council indicated a preference for a pitched roof design.  That, indeed, is what was applied for and what permission was granted for.
I should say that the plans provided for there to be two windows in that roof, not because there was an application to use the upper part of the building separately from the lower part, but to give some extra light to the building as a whole.
The construction when it began to be carried out was greater than that for which permission had been granted.  This led to the complaint and the service, it seems, of some sort of breach of a condition notice, or possibly an indication that a breach of condition notice would be served if action was not taken to remedy the breach which was occurring.  What the Robinsons, therefore, decided to do was to make the retrospective application which has led to this claim.  
2.	When that application was notified to the claimants they wrote a letter of objection.  The first letter was dated 26 June 2007.  The first point made asserted that the application was invalid because the representation of the boundary line between the claimant's property and the interested party's property had been incorrectly shown on the application plans.  They included a survey plan which they said made this clear.  They went on:
"Whereas the application drawing shows a separation distance of 1 metre between the flank wall of the extension and the boundary, the actual separation distance is only 0.45 of a metre which means that the eaves and fascia of the building are adjacent to the boundary with the guttering over hanging number 28 [number 28 being their property]."
They said that the application was, because of that inaccuracy, an invalid one.
3.	Then in relation to question of the extent and height of the building they said this:
"The drawings approved pursuant to the [earlier] planning permission clearly show a single storey extension with a low hipped and pitched roof above.  What currently can be seen on the site is totally different, particularly in respect of the height of the walls of the extension on the side boundary adjacent to number 28 and the pitch of the roof which means that the whole structure appears to be substantially bigger, and in particular higher, than what appears on the approved application drawings.  The extension is supposed to be 'single storey'.  It is certainly not as it stands. 
The extent of the changes is clearly represented in the [particular] drawing.  This shows the pitch of the roof increased from 40 to 44 degrees with a consequent increase in the height of the building by approximately 1.23 metres.  It also shows, as accurately as possible, the elevational relationship to Chesham House itself with an originally indicated pitch of 41 degrees to the roof.  Whereas in the original plans the ridge was to be in line with the eaves level of Chesham House it is now significantly above."
Chesham House being the Robinson's property.
4.	That was followed by a subsequent letter on 5 July in which this was said:
"We have provided the council with the following irrefutable evidence that the above extension is a two storey building: 
1. The building has been surveyed by [some chartered surveyors], and the height is already 7.12 metres (it will be around 150‑200 mm higher when completed).  The height from our site is approximately 8.6 metres due to the difference in ground levels."  
What that boils down to is that if you look at it from the road, as it were, the height is approximately 7.2 metres.  If you look at it from the claimant's property the height appears to be 8.6 metres, because of the difference in the height of the land.  That is to say there is a drop of what I suppose is of the order of 1.5 metres between the edge of the interested party's building and the claimant's property. 
5.	Going back to the letter of 5 July, it continues:
"2. A cross section drawing showing the storey height of the first floor is approximately 2.4 metres (this dimension is easily verifiable from a site inspection).
3. A cross section drawing showing that if the building had been constructed in accordance with its original permission, the first floor accommodation would have been sufficient for storage only and insufficient for use as a habitable room.
4. Photographs of structural first floor joists.  
5. Photographs of the opening in the floor joists which has been built and shaped to take a full size staircase, rather than a storage access door (this again is easily verifiable on site inspection). 
A two storey building is in breach of policy H9 as the minimum side space does not exist and therefore we cannot see any circumstances under which this application should be approved."
6.	What was being relied on there was the reality of the situation when looking at what was being constructed, that there was a floor at the level where the joists were and that the height above that was 2.4 metres (about eight feet or so in imperial measurement), which was, it was said, quite sufficient to allow for habitation and use as a room rather than merely for the purpose of storage as in a loft, and that in those circumstances, when one added in the fact that the space giving access to the upper part was sufficiently large to enable there to be a proper staircase, this could, and it appeared was intended to be used, as a second floor.
7.	The significance of that lay in the reference to policy H9.  There were a number of policies which were said to be, indeed clearly were, material in considering the application in question.  Apart from H9, which I will come to in a moment, the relevant policies were H8 (H standing for housing) which required that the design and layout of the proposals for the alteration or enlargement of residential properties would be required to satisfy all of the following criteria.  (1) The scale, form and materials of construction should respect or complement those of the host dwelling and be compatible with the development of the surrounding area.  (2) Space or gaps between buildings should be respected or maintained where these contribute to the character of the area.  Then there is a requirement in relation to dormer windows.
8.	In addition, there is a policy, BE11, which requires that all development proposals, including extensions to existing buildings, will be expected to be of a high standard of design and layout.  Then there are nine criteria set out which should be met, which include (3) space about buildings should provide opportunities to create attractive settings with hard or soft landscaping.  (4) Relationship with existing building should allow for adequate daylight and sunlight to penetrate in and between buildings.  (5) The development should respect the amenity of occupiers of neighbouring buildings and those of future occupants and ensure their environment is not harmed by noise or disturbance or by inadequate daylight, sunlight, privacy or by overshadowing.
9.	Those two policies were taken into account.  They were referred to by the officer, who made the decision in question following delegated powers.  That officer was clearly satisfied that the criteria in the policies to which I have referred were met.  
10.	Hence, the importance of policy H9 if it was applicable.  It reads:
"When considering applications for new residential development, including extensions, the council will normally require the following: 
 (i) for a proposal of two or more storeys in height, a minimum 1 metre space from the side boundary of the site should be retained for the full height and length of the flank wall of the building. ..."
11.	The narrative, which is at paragraph 4.48 which goes with the policy, states:
"The council considers that the retention of space around residential buildings is essential to ensure adequate separation and to safeguard the privacy and amenity of adjoining residents.  It is important to prevent a cramped appearance and unrelated terracing from occurring.  It is also necessary to protect the high spatical standards and level of visual amenity which characterise many of the borough's  residential areas.  Proposals for the replacement of existing buildings will be considered on their merits."
12.	The council granted the retrospective permission on the day following the letter to which I have just referred, namely 6 July 2007.  The claimants were concerned that their objections, which they regarded as ones which, on the face of things, would be difficult to overcome had not prevailed and so sought the council document which set out the directions given to herself by the officer who had reached the decision to grant permission.
13.	That referred to the two policies, BE11 and H8, but not to H9, set out the history, and recorded that, whereas the previous scheme measured approximately 2.8 metres in height up to the eaves and approximately 6.1 metres to include the pitched roof, the current scheme measured the same up to the eaves, but that the pitch of the roof was about 7.1 metres in height.  In fact it is, as I have said, nearer 7.2, but approximately 7.1 is not to be criticised.  It goes on that the width of the walls must not be changed, the width of the roof was to be increased from about 8 metres to about 8.9 metres to include the guttering and the extension was some 19 metres, just over, in depth.  It was not really any different from the original.
14.	The officer went on:
"The amended proposal is to be single storey and no first floor plans have been submitted.  The northern flank wall of the proposed amended extension is according to the plans to be located approximately 1 metre away from the property boundary along the northern edge of the application site.  The eaves of the pitched roof on the northern flank is to be located approximately 0.45 metres from the northern boundary."
15.	The plans which were submitted did indeed show that the flank floor of the proposed extension was about a metre away from the property boundary.  Those plans were inaccurate, because on site the distance from the boundary was 0.45 of a metre.  It is said, indeed Mr Robinson's evidence is, that in fact the proposed extension to replace the existing garage was to be certainly no closer to the boundary than the original wall of the garage which was being replaced.  In fact, it was slightly further from the boundary than that existing wall.
16.	It is difficult to see how the officer could have instructed herself as she did in the paragraph I have just read.  Either she misunderstood the objection that had been raised in the letter of 5 July, because it said quite clearly that the wall was 0.45 metres away and the eaves, therefore, were on the boundary itself and the guttering slightly over.  That was the complaint that was made.  She had gone to the site and she could see for herself, and, if she wished, no doubt could have taken the relevant measurement.  Certainly the plans indicated about a metre, but the plans were wrong.  So either she was assuming that the plan was accurate when it was not, or she had completely misunderstood the objection letter.  In either event, there was an error in that paragraph.
17.	Mr Whale's gallant efforts to suggest that that was not the case, I am afraid, I have not found persuasive.
18.	She went on to indicate that in her view that what was being done, and what permission was sought for, would not be out of character with the area and would not set an undesirable precedent because the existing garage at the house the other side of the claimant's was very similar.  Indeed, it cannot be suggested, and, as I understand it, indeed it is not suggested, that she was not entitled to take the view that, apart from the two matters on which reliance is placed, namely the two storey application H9 point, coupled with the one metre mistake, she was not entitled to form the judgment that the extension complied with the requirements of the other policies which were relevant and did not have any adverse effect on the conservation area.
19.	The permission having been granted, and the officer's report to herself, as it were, having been obtained, the claimant's solicitor wrote a pre‑action protocol letter to the council on 10 August 2007.
20.	In that letter they made the point that the development was in conflict with policy H9.  That was because the building was two storeys in height and was within less than one metre of the adjoining property.  In the course of that letter they said this:
"The council has quite clearly permitted development in conflict with this policy, [that is H9] because: 
 (i) the building is at least two storeys in height. The height from slab level to the ridge is about 7.2 metres which is a full two storeys.
Moreover, due to the change in levels between Chesham House and our clients' property, the flank elevation of the building appears as 8.6 metres high when viewed from the latter, which is getting on for three storeys.  The building is also sited less than 0.5 metres from the site boundary.  The relationship between the building and the site boundary is shown with reasonable accuracy on the plan which accompanied the original application permitted in November 2006.  It is clearly much less than one metre.  We have noted that had, in the amended application, the plans show the building sited about one metre from the boundary.  Whether deliberate or not, this is an error.  Neither the siting of the building nor the line of the site boundary altered between the dates of the two applications.
We are unsure whether, or to what extent, the officer who decided this application under the council's scheme of delegated powers appreciated this error.  However, as H9 is referred to in the reason for condition 6, it appears that it may have been appreciated.  On this basis it appears that the council considered that condition 6 would be sufficient to ensure compliance with the policy.  However, that involves placing on the words of the policy a meaning which they cannot reasonably bear because the policy is clearly dealing with the effect of physical height and bulk and proximity to the adjacent boundary not with whether there is floorspace in the upper storey."
Further points were taken, but I do not need to go into them at this stage.
21.	Reference is made to condition 6.  Condition 6 is in the following terms:
"No additional floorspace shall be provided within the building hereby permitted in the form of a single storey side/rear extension without the prior written approval of the local planning authority."
22.	The reason given for the imposition of that condition is:
"In order to comply with policy BE1, H8 and H9 of the adopted unitary development plan, to accord with the terms of the application and prevent over development of the site."
23.	It is the reference to H9 in that condition that the claimant's solicitors were pointing out and indicating that that reference showed that the council appreciated that unless that condition were imposed this should be regarded as a two storey building.
24.	The answer to the pre‑action protocol letter came on 30 August 2007.  It replied to the relevant matters in this way:
"1) Nowhere within the officer's delegation report was it mentioned that the application at Chesham House complied with policy H9.  It was considered that policy H9 regarding side space was not relevant as the proposed development was single storey, and policy H9 refers to development of two or more storeys. 
2) Condition 6 of the application states that: 
 [the condition is cited].
This condition, along with condition 4 stating that the development must be built in complete accordance with the submitted plans was included in order to prevent that building being used as a two storey development.  Policy H9 has stated within the reason for the condition not because the development complies with the policy, but to demonstrate that a two storey development cannot be created in the present location as it would be contrary to policy H9 and would not be likely to be agreed or permitted."
25.	Then it answered a further complaint that it was irrational to have believed that the proposed development complied with the other relevant policies.  It said that:
"Policy H8
With respect to policy H8(i) and BE11, the council considers the scale and form of the permitted development is not out of keeping with the host dwelling house, which is a large detached property.  Condition 2 has also been imposed, in order to comply with policy BE1, to control the materials of construction, requiring that as far as practicable the materials used match those of the existing building.  
With respect to policy H8(ii), the council considers the single storey side/rear extension is linked to the main dwelling house, therefore there is no space between the extension and the host dwelling house. A space has been retained between the flank wall of the development in question and the property boundary between Chesham House and Chalvedune [that is the claimant's property].  This was clearly illustrated on the approved plans."
26.	The only further document to which I need refer is an e‑mail of 7 February 2008 which was sent by Mr Bloomfield to Mr Robinson, Mr Bloomfield being the planning control officer at the council.  This was said in that e‑mail:
"You confirmed at our meeting that there is no intention to use the roof space at present.  However, if at some future date it is proposed to use the first floor to provide additional floorspace, whether for additional living accommodation, storage or any other ancillary use, I confirm that planning permission would be required.  Any application would be considered on its merits, having regard to the development plan and any other material considerations, including the impact on the amenities of the adjoining properties."
27.	Mr Bloomfield has submitted a statement on behalf of the defendant council.  It is dated 13 March of this year.  In it he says:
"On 1 February 2008 I visited Chesham House and inspected the inside of the extension.  I was able to view the roof space through an inspection hatch.  I was able to confirm that a first floor had not been constructed within the building above the ground floor."
28.	That is, I am bound to say, not entirely consistent with his e‑mail, nor is it entirely consistent with the photographs which I have seen taken of the inside of the building.  It is quite plain that a first floor does, potentially at least, exist; in fact probably does exist at the moment.  That that is, on the face of things, capable of accommodating people and thus being habitable is apparent from the terms of the e‑mail itself and the recognition that it could be used in that way, albeit the Robinsons have indicated, and indeed the condition requires, that it be not so used on the basis of the permission which has been granted.
29.	The submissions therefore made by the claimants are that there are two important errors and so the permission was granted without having regard to material considerations.  The material considerations are the fact that the plans showed the erroneous one metre, whereas, in fact, the property was less than half a metre from the boundary and the belief that policy H9 was not in play because this was not an extension of two storeys or more in height.
30.	A certain amount of the argument was pursued before me on behalf of the authority that the claim did not rely upon mistake as a freestanding ground for submitting that the planning permission could not stand, but that the submission was based on the assertion that there was a failure to have regard to the material considerations to which I have already referred.
31.	My attention was drawn to the decision of the Court of Appeal in E v Secretary of State for the Home Department [2004] 2 WLR 1351.  That case concerned a decision of the Immigration Appeal Tribunal.  The question that arose was whether a decision reached on the basis of particular facts could be impugned in the Court of Appeal by showing that there were other facts which had come to light subsequently which showed that the original decision had been based upon an erroneous view of the relevant situation.  The court concluded that mistake of fact could be a freestanding ground for review.
32.	At paragraph 66 on page 1375 of the report Carnwath LJ, giving the judgment of the court, said this:
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co‑operating to achieve the correct result.  Asylum law is undoubtedly such an area.  Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case."
That is a House of Lords' decision [1999] 2 AC 330] a case where the police had had in their possession relevant information but had failed to produce it to the Board.  The view was taken that the House of Lords had decided that fault on part of the police was not essential to the reasoning of the House.  What mattered was because of that failure, and through no fault of her own, the claimant had not, as it was put, had a "fair crack of the whip." 
33.	Going back to the quotation, Carnwath LJ continued:
"First, 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.  Thirdly, the appellant (or his advisers) must not have been responsible for the mistake.  Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
34.	While I have some reservations about the application of that approach to immigration appeals, since it may be thought that the remedy in such situation would be to make a fresh claim to the Secretary of State rather than assert that the original decision had been vitiated by an error of law, in the planning context it may be that it would be difficult in certain circumstances to overturn a planning decision, and certainly the making of a fresh application would not be always a means whereby that could be achieved.  Accordingly, one must accept that there is the possibility of mistake of fact being by itself, if it produce unfairness to a party, and that, of course, would include a party objecting to a grant of permission, an error of raw, or a possible error of law, which could justify the quashing of a decision reached and no doubt also would be relevant on a 288 claim as well. 
35.	However, I question the need for regarding it as an independent ground in most cases, because, as I say, there is an obvious overlap between mistake of fact and a failure to have regard to a material consideration, because a particular material fact may be a material consideration to which regard should have been had.
36.	The mistake of fact approach would seem to be aimed at a situation where there was no responsibility for the error that could be placed upon the parties, or indeed the decision maker.  But here the claimant's point is that they drew to the attention of the planning officer the matters upon which they sought to rely in objecting to the application and she manifestly erred in her approach to those objections and her findings upon them, because she had failed to appreciate that this ought to have been regarded as two storey in height and had she failed to appreciate, as she clearly was able to do from seeing what was on site and from looking at the objections that were raised, the one metre as opposed to less than half a metre distance from the boundary.  
37.	It seems to me, therefore, that even if the E type approach is appropriate (and I am not of course saying that it is not in the right case) it is not applicable here.  Accordingly the claimant was correct to approach the matter in the way that they did. 
38.	I should say that, in any event, even if I had been persuaded that this was to be regarded as a mistake of fact leading to unfairness approach, I would not have prevented the argument from being presented.  Mr Whale accepted that the council had known from the time at least the skeleton argument was produced, on 17 November last, what the situation was and therefore there was ample time for them, if they had wished, to have put in a statement from the planning officer to explain, if she could, that she had not made a mistake, or, even if she had, it would have made no difference to the decision which she reached.  They have chosen not to do that.
39.	As I have said, it seems me that the planning officer having viewed the site, having seen what was actually there, or in the process of being built there, and having had regard to the matters raised in the relevant policies, apart from H9, was entitled, as a matter of judgment, to form the view that the building as constructed and as it was placed in proximity to the boundary should not have planning permission refused, because, in her view, it did not contravene any of the criteria in any of the material policies.
40.	True it is that the plans did not show properly the distance from the boundary.  Why they did that, is not apparent.  Whether it was simply a drafting error, one knows not.  But the reality is that it could not be hidden because the measurement could so easily be made on site, and, indeed, as I have said, it was not any closer to the adjoining boundary than the original garage had been, so there was nothing new there.
41.	Accordingly I have no doubt that had that ground of objection stood on its own there would have been no basis for saying that this was a decision that was flawed in law.  The decision depended in this respect on the overall judgment of the state of affairs that existed, which he could see existed, by a planning officer.  
42.	One turns to the two storey H9 point.  The question is: how does one ascertain whether an extension to a building is two or more storeys in height?  It seems to me that there can be no doubt that it does not depend either solely upon what is proposed to be done inside the extension, or upon the particular height of the extension.  What is clear, it seems to me, is that the purpose behind H9 must be the effect of the extension upon both the adjoining properties and generally in the area.  That is what planning, after all, is all about and what policies in plans are concerned with.
43.	So one has here a combination of privacy next door, problems of overlooking if one has more than one storey, but also one has the bulk and the effect upon the local environment generally of the construction.  That is why it refers to two storeys or more in height, because one is, prima facie_, looking at the height in deciding whether the particular building in question is within that policy.
44.	One then comes to the question: how high is a storey?  Of course, there is no simple answer to that question, because obviously different houses have different heights for their rooms: some are clearly larger than others, some will be higher than others.  It is difficult to say, indeed it is impossible to say that because a building is of a height which is capable of incorporating more than one storey, therefore it must be regarded as two storeys or more.  To that extent what is intended to be done within it seems to me to have some relevance.  It will have relevance where the height of the building is not such as one can say quite plainly must be a height which is two storeys or more.
45.	I posed what was a somewhat contrived question.  What if someone wanted to construct an extension which was the same height as, say, a three storey building, but it was plain that it was only to have one storey in use, i.e. the whole was to be, as it were, empty, would that be an extension of two storeys or more?  Mr Whale and Mr Robson for the interested party were inclined to submit that that would be a single storey.  It seems to me that that cannot be right because that would be totally to ignore the important aspect of what lies behind, as it seems to me, this policy, namely the actual bulk and effect on the environment and on the neighbours of what is a constructed.
46.	Mr Robson said it would not matter because it would fall foul of other policies, probably H8 or BE11.  May be it would, but may be it would not.  It would depend on the nature of the extension.  But it seems to me that it clearly would fall within the constraints, insofar as they add to those applicable in the other more general policies, imposed by H9.
47.	What then should one look at in this?  I am aware that it is not for me as a matter of law to say what is the construction of a planning policy.  That is a matter which will be looked at by those who are responsible for making decisions on granting or refusing planning permissions.  It is only if their approach to the policy shows that they have not had regard to a material consideration, have had regard to an immaterial consideration, or have acted perversely, that is to say the Wednesbury test, only if that applies can it be said that the decision is wrong in law.  But one is entitled to ask and to consider what are the matters that ought to be considered.  I have already indicated what they are, namely the effect on the adjoining properties, coupled with the reality of looking at the bulk of the matter.  
48.	Mr Robson submits that the reality here is that we have a height which is no more than the single storey that was applied for but for what he describes as the hat on top; that is to say the roofing.  It is that which has led to the increase and it is that which has given rise to the potential of use of a first floor.  He submits that the fact that it can be used for the second floor cannot be determinative in the circumstances.  The issue is whether it was reasonable for the planning officer to take the view that it was proper to regard this extension as not being one that fell within H9.
49.	While the imposition of a condition not to use it as a two storey building cannot be conclusive.  If it is only properly to be regarded as two storeys in height that cannot be changed by a constraint upon how it can be used internally, because that would ignore the effect in planning terms upon the local environment.  But where you have a building which is not clearly one side or the other, then, as it seems to me, the internal arrangements are, and can be, regarded as material.
50.	That, in my judgment, is the situation here.  The building as constructed could, on one view, be regarded as two storey or more.  But equally, as it seems to me, it is not an error of law in Wednesbury terms to have regarded it as a single storey, having regard to the restrictions imposed upon its actual use, and bearing in mind that the windows, for example, which might otherwise have pointed in favour of a second storey, were permitted for what was undoubtedly a single storey in the original plans, and that the additional height, although it creates an area which is capable of being used as a second storey, is not significantly higher in overall terms.  I regard the question as to whether this should be regarded as two storey or a single storey as being one which is perhaps to be judged as borderline and that, therefore, a conclusion on the facts that it was no more than one storey was one which was open to the officer.
51.	That the whole thing could have been dealt with rather more clearly and not given any scope for argument by the council is, in my view, clear, and the manner in which the answers were given is unsatisfactory in certain respects.  Nonetheless, the shortcomings of the way in which it was dealt with do not justify the quashing of the permission that was in fact granted.  Accordingly, this application is dismissed.  
52.	I should have dealt with one other matter.  The question of delay was raised.  Permission was granted by Ouseley J and so delay in terms of the rules is no longer material.  But, in any event, I am satisfied that delay in the terms of section 31(6) cannot be relied on.  No action could have been taken by the claimant until the decision of the council was reached on 5 July.  Once they discovered what was the basis of that decision they took prompt action in the pre‑action protocol letter.  That was answered at the end of August.  This claim was lodged less than a fortnight later.  It cannot, in those circumstances, be argued, in my view, that it was other than prompt.  
53.	It is said that there has been in the circumstances prejudice to the Robinsons because they had to continue working in order to make the building weather proof.  They would have had to have done that in any event whether or not the claim was lodged immediately.  
54.	So far as the council is concerned, it was argued that there was a detriment to good administration because the council would have to reconsider the matter.  That, I am afraid, is an argument that carries no weight whatever because it would apply to every claim to quash a planning approval.  Accordingly, I have no doubt that delay was not an argument that could succeed and I reject that ground of defence.
55.	MR WHALE:  My Lord, I am grateful for that.  That leaves, for my purposes, the question of costs.  I don't know if you have a costs statement.
56.	MR JUSTICE COLLINS:  I think I have had some somewhere.  I have got one from the interested party.  I have got one from the claimant.  I am not sure that I have one from you.
57.	MR WHALE:  I am grateful.
58.	MR JUSTICE COLLINS:  No, I have.  Are you Judge and Priestly? 
59.	MR WHALE:  Beg your pardon, my Lord? 
60.	MR JUSTICE COLLINS:  I only have the claimants.  I don't think I have yours.
61.	MR WHALE:  Before I say anything can I ensure that Mr Nardecchia has all three.  It appears he has not.
62.	MR ROBSON:  I do not have any apart from my own.  It has not been served on us.
63.	MR JUSTICE COLLINS:  That is not very helpful.  Let us decide first, before we go into questions of amount, what orders are appropriate in principle.  Who should have any order of costs if anyone? 
64.	MR WHALE:  I am going to ask for my costs as against the claimant.
65.	MR JUSTICE COLLINS:  Yes.  I am toying with wondering whether this is not a case where one set of costs is appropriate, but the one set should be the interested party rather than you.
66.	MR WHALE:  Well ‑‑ 
67.	MR JUSTICE COLLINS:  On the basis that your shortcomings ‑‑ and there have been shortcomings in the way that this has been approached ‑‑ has led to these proceedings.
68.	MR WHALE:  Well, my Lord ‑‑ 
69.	MR JUSTICE COLLINS:  Perhaps that is not something that is open to me.
70.	MR WHALE:  No, my Lord, it is not.  You highlighted some shortcomings.  There are often shortcomings in public law cases, but at the end of the day the claimant failed in totality.  The claim included some grounds of challenge that were either new or not pursued at all and really that has left you with the kernel of the claim which failed.  But that, in my submission, as in the ordinary case, merits an order for costs in the council's favour as against the claimant.
71.	MR JUSTICE COLLINS:  I accept the normal rule is that a defendant will receive his costs unless there is a good reason not to have them at all where a claim fails.
72.	MR WHALE:  Can I just, before we go much further down this road, seek an assurance from you that there is no question of no order for costs against the council.
73.	MR JUSTICE COLLINS:  I can't ‑‑ I don't know whether Mr Nardecchia be bold enough to make such an application, but, at the moment, I can't see that there is any basis for it.  Certainly the interested party would have no ground. 
74.	MR NARDECCHIA:  I don't make that application. 
75.	MR JUSTICE COLLINS:  Mr Nardecchia, you don't suggest that the council pay you, are you? 
76.	MR NARDECCHIA:  No, my Lord.  I think the claimant's position will be, although we cannot resist one set of costs, we resist two.  
77.	MR JUSTICE COLLINS:  I follow that.  It is a question of whether it should be one set or more than one set.  _Prima facie_ and normally in this sort of case it is the defendant who gets the costs, isn't it, if there is only one. 
78.	MR NARDECCHIA:  Yes, normally it is the decision maker who gets the costs.
79.	MR WHALE:  Yes.  Obviously I would adopt that.
80.	MR JUSTICE COLLINS:  I was being a bit naughty I think in what I said earlier, because I think, probably really there is no good reason to say you should not have yours.
81.	MR WHALE:  I would adopt that of course.  I do adopt it.  Can I double check that Mr Nardecchia has now got ‑‑ 
82.	MR NARDECCHIA:  No.
83.	MR WHALE:  He still does not have the three statements of costs.
84.	MR JUSTICE COLLINS:  Mr Nardecchia, I did have your claim and I note the amount that you would have claimed.  You see the amount that they are claiming, which is substantially less.  It doesn't mean, of course, that you have to agree it but it may be that you want those instructing you to look at it because they will be, I suspect, in a better position to know the nut and bolts.  Obviously you can have a detailed assessment, but generally speaking it is cheaper to get a summary for obvious reasons.
85.	While you're have having an opportunity to look for that, let me see whether there is ‑‑ 
86.	MR ROBSON:  I do ask for my costs against the claimant.  We have been brought into this unwilling, but also, most importantly, whilst I am aware that the court is reluctant to order two sets of costs, nevertheless my costs should be paid because it is on the basis of our resistance that it seems that in your Lordship's judgment we have succeeded in the main.  It was my submissions which ‑‑ 
87.	MR JUSTICE COLLINS:  Well, I don't know about that.  You didn't need to be here to raise any ‑‑ you supported Mr Whale, but he was making the two storey point.  The only point upon which it could be said you had an additional ground was delay, but I was against you on that, so you can't rely on that.
88.	MR ROBSON:  I would like to suggest that I made a better job of the two storey argument than my learned friend Mr Whale.
89.	MR JUSTICE COLLINS:  That is not a basis under Bolton for getting the extra costs, even if it were right.  
90.	MR ROBSON:  O course your Lordship does have a discretion.  We had a material input into the hearing, particularly referring to a number of passages, which, in fact, were not referred to by the defendant, and it would be right in the circumstances of this particular case for us to have our costs.
91.	MR JUSTICE COLLINS:  I am not sure that the Bolton approach is, is it, on the basis that actually, as things turned out, that you made a better fist of it.  If that were the case ‑‑ I am not for a moment, forgive, Mr Whale, suggesting that is necessarily so ‑‑ but assuming for the sake of argument that was so, I am not sure under Bolton that is of itself a good reason for two sets of costs.  It may be a good reason perhaps for one set, but yours rather than his.  But that is ‑‑
92.	MR ROBSON:  My fallback position is to say that.  But even after that is to say we should have part of our costs and they should only have part of their costs.
93.	MR JUSTICE COLLINS:  I am wondering about that.  Half each.
94.	MR ROBSON:  So far as assessment is concerned, my instructing solicitors did send over yesterday to Judge and Priestley ‑‑ 
95.	MR JUSTICE COLLINS:  Sorry, I was not looking at ‑‑  
96.	MR ROBSON:  ‑‑ all I was going to ‑‑ 
97.	MR JUSTICE COLLINS:  I have only seen yours.  I haven't seen the council's.  How much is the council after, Mr Whale? 
98.	MR WHALE:  I am after £8,200, which is about a third of the claimant and about a half of the interested party's.
99.	MR JUSTICE COLLINS:  It sounds to me that if I was in favour of a single award to you, you would be sensible to accept that summary. 
100.	MR NARDECCHIA:  Yes.  My Lord, on behalf of the claimant what I say is this.  Although the interested party have attended and been represented, essentially the arguments have been the same as those put forward by the council.  Nothing as to the expertise with which my learned friends have put forward those arguments relatively speaking, but basically Mr Robson has supported.  He has not introduced any legal authorities not relied on by Mr Whale and there is no point relied on by Mr Robson.  His main point in the skeleton is delay to which your Lordship has given no weight at all in the judgment.  Also, in my submission, interested parties should not have costs for another reason, which is, of course, that it is their mistake about the boundary which has been one of the prime ‑‑ 
101.	MR JUSTICE COLLINS:  There is that.
102.	MR ROBSON:  ‑‑ prime reasons for precipitating this whole dispute.  Putting those two points together, in my submission one set of costs only should be awarded and between the two of them, in my submission, it should go to the council because it is their decision which has been challenged and your Lordship has decided not to quash it.  On that basis I would ask for only one set of costs to be paid by my clients.  I have seen the statement of costs put forward by the council only very briefly.  I appreciate it is less than my client's.  I am told less than the interested party, though I have yet to see the interested party's statement.
103.	MR JUSTICE COLLINS:  The interested party's comes to 16 ‑‑ 
104.	MR NARDECCHIA:  I think the only point that I would raise is that it is not clear why three fee earners were involved.  I would submit that something like a 10 per cent reduction might be appropriate to bring it down to something like £7,500.  Beyond that, I would not have any comment to make about the detail.  It is rather difficult to do so at this stage.
105.	MR JUSTICE COLLINS:  Obviously, if you want, I am quite happy to say detailed assessment.  You haven't had a chance.  The alternative is to ‑‑ 
106.	MR NARDECCHIA:  We don't want detailed assessment.  We are happy for your Lordship to do it summarily.  We would invite your Lordship to do it summarily and to award one set of costs only to the council in the sum of £7,500.
107.	MR JUSTICE COLLINS:  What do you say about the proposed reduction? 
108.	MR WHALE:  I cannot resist the temptation.  I bear no grudge against Mr Robson.
109.	MR JUSTICE COLLINS:  Don't worry.  I am persuaded that I am going to have to apply the Bolton approach.  Sympathetic though I may be to an extent to Mr Robson and his clients, I don't think it can properly be said that this is a case which under the Bolton principles justifies an award of more than one set and that the normal approach must be that the costs are awarded to the decision maker which is you.  He added the delay point, of course, but that I have not found in his favour.  So it seems to me, as I say, that the Bolton principle effectively precludes me in the circumstances of this case from saying more than one set.
110.	MR WHALE:  Indeed.  I just had in mind ‑‑ I am smiling a little ‑‑ having heard Mr Robson support me and adopt me all day, it is ironic that when money is involved that gloves come off.  I do appreciate his remarks are made in that context.  I bear no grudge against him.
111.	So far as one of my learned friend's points are concerned, the reason for three fee earners, I am sure he is looking at two grade A fee earners, is that one left and another one took up the baton.
112.	MR JUSTICE COLLINS:  Does that mean that the one who took up the battle had to read into it for rather longer than might otherwise have been the case? 
113.	MR WHALE:  May I take instructions on that?  (Pause).  I think I had ‑‑ sorry ‑‑ got it ever so slightly wrong.  It was Miss Simpson who left.
114.	MR JUSTICE COLLINS:  Sorry, I still haven't got a copy.
115.	MR WHALE:  There are two grade A fee earners and one grade C.  Anna Simpson is grade C.  She left.  Then Marion Payne, who is behind me today, had to take up the baton and read into it.  
116.	MR JUSTICE COLLINS:  I think in those circumstances it is reasonable to make a small reduction.  I think that is fair.  I appreciate that you are not at that high a level, but I do not think it would be reasonable to expect the claimant to pay for that.
117.	MR WHALE:  I would cut through this, my Lord.  I will go home happy, as I am sure will the client, for that reduction to £7,500 and the order that you made resisting the application.
118.	MR JUSTICE COLLINS:  Mr Nardecchia, in those circumstances I will dismiss this claim and direct that you pay the defendant's costs in the sum of £7,500. 
119.	MR NARDECCHIA:  My Lord.