CO/6418/2008, CO/8292/2008, CO/6414/2008 
Neutral Citation Number: [2009] EWHC 270 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 22nd January 2009 
 
B e f o r e: 

MR JUSTICE STEWART
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Between: 
THE QUEEN ON THE APPLICATION OF COPHALL FARM PARKING LIMITED 
Claimant

v 

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 
Defendant 
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Mr A Porten QC and Mr J Clay (instructed by DMH Stallard) appeared on behalf of the Claimant
Mr D Forsdick (instructed by Secretary of State) appeared on behalf of the Defendant
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J U D G M E N T
1.	JUDGE STEWART:  Introduction. 
2.	This is an application for permission to appeal and if permission is granted the appeal itself is pursuant to section 289 of the Town and Country Planning Act 1990, ("1990 Act").  It is brought by Cophall Farm Parking Limited, ("CFP"), against a decision of the inspector, Mr John Walley, CEng MICE, who by decision letter dated 10th June 2008: 
3.	(1) Dismissed CFP's appeal under section 174 of the 1990 Act based on grounds (a) and (d) and (g); the appeal on grounds (c) having been withdrawn before the start of the inquiry and grounds (b) and (f) having been withdrawn during the inquiry.  
4.	(2) Dismissed the appeal under section 78 of 1990 Act and thereby confirmed the refusal of planning permission by Tandridge District Council.  
5.	(3)  Dismissed an appeal under section 106 (b) of the 1990 Act against Tandridge to vary a section 106 obligation dated 25th March 1993.  
6.	The primary matter to be determined is CFP's challenge to the dismissal of the appeal under section 174 (2) (d) of the Act.  If this court does not determine the issue in CFP's favour then CFP accepts that their other challenges must fail.  Those challenges are:
7.	(1)  An appeal under section 289 of the 1990 Act against the dismissal by the inspector of the appeal under section 174 (2) (a) of the Act.  
8.	(2)  An appeal under section 288 of the 1990 Act against the dismissal by the inspector of the appeal under section 78 of the Act.  
9.	(3)  An application for judicial review against the decision in relation to the amendments to the section 106 obligation.  
10.	It is therefore clear that the first matter to be determined must be the section 289 appeal against the dismissal by the inspector of the section 174 (2) (d) appeal.  This judgment at this stage is limited to that point.
11.	Factual background.  
12.	CFP is the occupier of land at Cophall Farm, Effingham Road, Copthorne, Surrey, RH10 3HZ.  Part of that site has a long standing permission for use as off airport parking which was granted in 1993.  An enforcement notice was issued on 20th March 2007 by Tandridge District Council against an alleged breach of planning control on the site.  The breach of planning control as alleged in the enforcement notice was:
"Without planning permission making a material change of the use of land from agriculture to use for off airport parking of vehicles in connection with Gatwick Airport." 
13.	In respect of part of the site outside the area on which such parking was permitted, the requirements of the enforcement notice were: 
"(1)  To cease using the Land for the parking of vehicles unconnected with the permitted use of the Land for agricultural purposes.  
"(2)  To remove from the land all vehicles unconnected with the permitted use of the Land for agricultural purposes."  
14.	The appellant appealed the enforcement notice on grounds (a) to (g) of section 174 (2) of the 1990 Act and the appeal was heard by public inquiry held on 12th to 13th February and 13th to 16th May 2008.  As mentioned earlier, ground (c) appeal was withdrawn before the public inquiry opened and grounds (b) and (f) appeals were withdrawn during the public inquiry.  
15.	By his decision letter dated 10th June, the inspector corrected, varied and upheld the enforcement notice.  With the consent of the parties he corrected and varied the enforcement notice to amend the wording so that the allegation would read:
"Without planning permission making a material change of use of the land to use for the off airport parking of vehicles in connection with Gatwick airport."
16.	The requirements were changed to read:
"(1) To cease using land for the off airport parking of vehicles in connection with Gatwick airport. 
"(2)  To remove from the land all such vehicles."
17.	Those corrections and variations are in paragraphs 20 and 23 of the decision letter.  The enforcement notice was also varied to exclude part of the south west corner of the northern area of the site; an area which could accommodate about 350 extra cars and which all parties agreed had become immune from enforcement action by the effluxion of time.  Further and by consent, the inspector also excluded an area of land on the eastern side of the southern area which was in use for car valet parking and insurance parking and which all parties agreed was not therefore part of the planning unit in which the alleged breach had taken place.  These changes are dealt with in paragraph 24 to 31 of the decision letter.  
18.	The Statutory Provisions relevant to the Section 289 Appeal.  
19.	Sections 174 (1) and (2) (so far as material) of the 1990 Act provide:
"(1)  A person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice whether or not a copy of it has been served on him.  
"(2)  An appeal may be brought on any of the following grounds. 
"(a)  That in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the conditional limitation concerned ought to be discharged.  
"(b)  That those matters have not occurred.  
"(c)  That those matters (if they occurred) do not constitute a breach of planning control.  
"(d)  That at the date when the notice was issued no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters..."
20.	The subsection 2 (d) appeal to the Secretary of State was based on section 171 B (1) to (3) which provide:
"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
"(2)  Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of breach.  
"(3)  In the case of any other breach of planning control no enforcement action may be taken after the end of the period of 10 years beginning with the date of the breach."
21.	It is subsection (3) which was relevant here.
22.	Finally, section 289 (1) of the 1990 Act states:
"Where the Secretary of State gives a decision in proceedings on an appeal under part VII against an enforcement notice, the appellant or the local planning authority or any other person having an interest in the land to which the notice relates may, according to the rules of court, provide either appeals of the High Court against the decision on a point of law or require the Secretary of State to state and sign a case for the opinion of the High Court."  
23.	The Paragraphs of the Decision Letter Relevant to the Ground of the Appeal.  
24.	In paragraphs 10 and 11 of the letter, the inspector set the scene as follows:
"(10) Cophall Farm Parking Limited operate a car parking business for Gatwick airport passengers who leave their cars at Cophall Farm.  Customers are then carried in the firm's mini buses to the airport, a road distance of 9.66 kilometres to the airport's south terminal...  On return, customers ring Cophall Farm from the airport, a mini bus is dispatched to pick them up and return them on a ten to twelve minute journey back to Cophall Farm to collect their cars.
"(11)  The business has been gradually built up over the years since 1985.  The area has increased so that up to 1,300 cars can be parked on the land in summer.  On average, about 800 cars are parked at Cophall Farm."
25.	The inspector then dealt with the relevant planning policy, the planning history and the agreed corrections to the wording of the enforcement notice at paragraph 12 to 23 of the decision letter.  Then in paragraphs 24 to 31, he explained his decision on the agreed exclusions to the part of the south west corner of the northern area of the site and an area on the eastern side of the southern area.  In doing so he said this at paragraphs 24 to 26:
"(24)  The case of Burdle v SSE [1972] 1 WLR 1207 set out three criteria to determine the planning unit:  
"(i)  When the occupier uses for a single main purpose to which secondary activities are incidental, the unit of occupation is to be taken as the planning unit; 
"(ii)  When a variety of activities none incidental or ancillary to the other, again consider the entire unit; 
"(iii)  When two or more areas are occupied for substantially different purposes, each area so used is a separate planning unit.  
"(25)  Assessment of the planning unit is a matter of degree, Church Commissioners v SSE and Gateshead MBC [1996] JPL 669.  In the present case, the enforcement notice shows two separate areas of land the subject of the allegation and the requirements.  It was agreed these two areas, referred to as the northern area and the southern area, were two parts of the same planning unit.  That is, part of the planning unit used for the appellants' business operation at Cophall Farm for the off airport parking of cars of people using Gatwick airport.  
"(26)  The remaining area within this planning unit consists of permitted car parking operational land between the two notice areas together with the access road on to Effingham Road.  Although it would have been clearer to show the outline of the whole of the car parking planning unit and to distinguish the two areas the subject of the allegation and requirements, no correction is needed to the notice plan in that regard."
26.	His decision on ground (d) then followed in paragraphs 32 to 38 which read as follows:
"(32) The appeal on ground (d) is now confined to the southern area shown on Plan JLW 1.  Ms Carter, the General Manager to Cophall Farm Parking Limited, produced photographs of cars densely parked on the southern area purporting to have been taken around 1996/7.  It was not disputed that the photographs showed cars parked for users of Gatwick airport.  
"(33)  There must be some doubt, however, that the photographs pre‑date March 1997.  Had that airport car parking amounted to a material change of use of the land and that use been continuous throughout the period to 20th March 2007 (Thurrock BC v SSETR and Holding (COA 27/2/02), it would have become lawful.  However, the car parking use on the southern area appears to have taken place only on rare occasions.  Also, the start date and the materiality of any change on use is unclear.  For example, an aerial photograph of September 1997 (GS 11, Doc 18) shows no cars parked on the southern area.  Another aerial photograph taken in April 1999 (GS 12), again, shows no cars parked on the land.  Nor does a September 2001 aerial photograph (GS 15).  The southern area is shown on an August 2005 aerial photograph in use for car parking understood to have been for a short period when the facility was overbooked.  This intermittent and infrequent car parking use of the southern area hardly supports the ground (d) appeal.  
"(34)  There was also the evidence of Mr Smith (the appellants' planning expert witness) whose plans of the site's history show no car parking use of the southern area in March 1997 (GS 6).  Another plan shows part of the southern area said to have never been used for airport car parking while the remainder was said to have ceased to be used for airport car parking by 20th March 2007 (GS 7) 
"(35)  The appellants said that the southern area should be treated as being part of the parking use today as it was incidental and ancillary to the parking use, even when no cars parked on it.  It had been so used for at least 10 years prior to the issue of the notice.  It should be treated as immune from enforcement action.  The ground (d) appeal should succeed in respect of that land, but the number of vehicles lawfully parked on the whole of the car parking area planning unit be limited to a total of 565.  
"(36)  My conclusion is that no cogent evidence showed that a car parking use of the southern area was started before March 1997 and actively continued to March 2007.  Any material unlawful use of the southern area for airport car parking, from around 1996/7, clearly did not continue without break from more than 10 years back from the date of issue of the enforcement notice.  If the change of use to airport car parking around 1996/7 was material, it was still open to the council to serve the enforcement notice, even where the breach ceased several years ago.  
"(37)  It may be that the southern area as shown on the amended enforcement notice plan was incorporated into the car parking planning unit as a landscaped area more than 10 years before service of the notice.  If that is right, although the evidence was not directed at that point, it does not mean that cars could lawfully be parked on the land.  The allegation refers to car parking.  So the ground (d) appeal is an assertion that the land has been used for parking cars for more than 10 years before services of the notice.  That appeal must fail.  Any application made to the council for a LDC in respect of the southern area land having been used for amenity purposes in association with the car parking use of adjoining land would need to address the lawfulness of that use.  
"(38)  What remains before me is that the incorporation of the southern area into the lawful car parking use on land to the north is the subject of the deemed application under ground (a).  The appeal on ground (d) fails."
27.	CFP submission to this court.
28.	No challenge is made to the findings of fact of the inspector namely that he did not accept that the southern area had been itself used for car parking for 10 years prior to 2007 without a break.  The paragraph which is attacked is part of paragraph 37.  Mr Porten, Queen's Counsel for the appellant, provided, in addition to his skeleton argument, a very helpful speaking note in which he encapsulated his submissions into a short number of points.  He put his case in the speaking note in this way: 
"The proper approach in a case where: one, the alleged breaches is the making of a material change of use; and two, the appeal is on ground (d) of section 174 (2).  
"(1)  Identify the planning unit.  
"(2)  Identify the change of use.  
"(3)  Consider what was the use of the planning unit at the "base year" i.e. ten years before service of the enforcement notice.  
"(4)  If the use of planning unit is taken as a whole at the time of enforcement was similar to that at the base year then no enforcement action can be taken and the use is immune and in consequence lawful unless either there has been secession or substantial interruption of the use or there has been a further material change of use which has superseded the base year use.  
"In the present case:  
"(1)  The inspector found that the planning unit was the area of occupation by the appellants and use for their business operation for off airport parking (DL paragraph 25) neither the LPA nor the inspector defined it on the plan but is included (at least) to the southern area as well as the "permitted" area, paragraph 26, and the conceded area, paragraph 28.  
"(2)  The change of use was to off airport parking (from some other use not identified ‑ inspector deleted agriculture).  
"(3)  The use of that unit of base year.  There are two possible interpretations of the DL either: 
"(a)  The inspector found that it was for off airport parking (see paragraphs 11 and 25).  Note that he did not suggest that the extent of the planning unit change between 1997 and 2007 i.e. the planning unit was the same throughout, or;
"(b)  He did not consider or make any finding as the use of the planning unit as a whole in 1974.  
"(4)  That the correct interpretation is:
"(a)  Then the use of base year and enforcement year were similar and he should have concluded that it cannot be enforced against. 
"(5)  If the correct interpretation is (b) then the inspector has failed to apply the necessary test and his decision is flawed.  The ground (d) appeal could not properly be determined without consideration of this point.  The decision maker must consider the character of the use of the planning unit as a whole.  A finding that apart of the planning unit was not in use at the base year or has not been continuously used throughout the ten years fails to address the correct question. 
"(6)  There is no finding and it was not alleged that the use had ceased, been interrupted or superseded.  The use of the planning unit or of additional land within the planning unit for off airport parking was not a change of use of the unit."
29.	The law.   
30.	Now, the law in this case is not really controversial, rather the Secretary of State does not accept some of the underlying assertions made in the claimant's submission.  Nevertheless I shall briefly refer to the relevant law.  The general principles relating to the planning unit are enunciated in Volume 2 of the Encyclopaedia of Planning in part at paragraph 55.44, as follows:  
"The planning unit is a concept which has evolved as a means of determining the most appropriate physical area against which to assess the materiality of change, to ensure consistency in applying the formula of material change of use.  The general rule has also been that the materiality of change should be assessed in terms of the whole site concerned, normally the whole of the area in same ownership or the same occupation." 
31.	Further important citations are those of Lord Justice Diplock (as he then was) in G. Percy Trentham Ltd v Gloucestershire County Council [1966] 1 WLR 506 at page 513 to 514, where he said:
"What is the unit which the local authority are entitled to look at and deal with in an enforcement notice for the purpose of determining whether or not there has been "a material change in the use of any buildings or other land"?  As I suggested in the course of argument, I think for that purpose what the local authority are entitled to look at is the whole of the area which was used for a particular purpose, including any part of that area whose use was incidental to or ancillary to the achievement of that purpose.  I think, therefore, they were entitled here to select as that unit the whole of the hereditament acquired by the appellants and, looking at that, ask themselves: was there any material change in the use of it?  It is, I should have thought, as plain as a pikestaff that there was a change of use from an agricultural use as farm building to a storehouse for other purposes.  I agree with by brethren that on both ground the appeal should be dismissed."
32.	Next, Lord Widgery, Lord Chief Justice, in De Mulder and others v Secretary of State for the Environment [1974] 1 QB 712 at 800 A to D and 801 A to B, where he said: 
"But what I think is also clear, and Mr Slynn accepts it, is that a planning authority by an arbitrary division of an area into a number of smaller areas each with its own enforcement notice cannot by that means impose more severe restrictions on the land owner than might have been imposed on him by an enforcement notice applicable to the whole area.  
"I find a formidable objection in the way in which the enforcement notices have been drafted in the case to put it, at its lowest: they create a grave possibility that their total and combined effect will be more restrictive than the single effect of a single notice applicable to the whole area.  
"I say that for this reason, that the enforcement notice treats each of the areas as though it were a single planning unit.  In the case of each area the recital speaks of the activities in that area which are complained of and the mandatory direction is similarly so confined.  What the planning authority have done in this case, although no doubt well intentioned, is that having first checked whether there was a material change of use by looking at the area as a whole, they have in effect divided the area arbitrarily into six separate planning units and applied themselves to enforcement in those units individually....  
"The breach of planning control relates to the whole planning area; enforcement and its effect must be related to the whole planning area.  Difficult as it may to be to achieve the result, I would take the view that the enforcement notices cannot restrict the land owner in the movements of his vehicles or his activities within the planning unit, because he would have the right so to do under a single notice, and a right so to do under the general law.  I find the present enforcement notices are unacceptable as a matter of law because they are based on the assumption that each area referred to becomes in effect a separate planning unit as soon as the enforcement notice is served."
33.	Central issues.  
34.	Mr Forsdick for the Secretary of State accepts that in paragraph 25 of the decision letter the inspector found that as at the date of the enforcement notice in 2007 the southern area and the northern were two parts of the same planning limit.  He challenges the point made in the appellant's submissions that because the inspector did not expressly state what the planning unit was in 1997, and did not expressly suggest that the planning unit change between 1997 and 2007, therefore, he found that the planning unit was the same throughout or that his decision can be impeached because he did not make any express finding as to what the planning unit was in 1997.  
35.	The Secretary of State's case in summary is as follows:  
36.	(A) The primary case of the appellant before the inspector was that there was an admitted material change of use in the southern area with which I am concerned i.e. part of the red land referred to on the enforcement notice.  It was not the primary case that looking at the southern area, it was part of the planning unit between 1997 to 2007; and therefore no material change of use occurred in the unit as a whole.  
37.	(B)  The appellant failed to demonstrate actual car parking in the southern area for the ten year period.
38.	(C)  In final submissions the appellant sought to argue the alternative case that the southern area was part of the same planning unit from 1997 because of use secondary to car parking.  
39.	(D)  The burden of proving the factual basis for (C) was on the appellant.  
40.	(E)  The inspector rejected that alternative case for lack of evidence.
41.	Analysis.  
42.	I accept the Secretary of State's case on points (A) to (D).  They are clearly correct from paragraphs 32 to 36 of the decision letter.  It is also instructive to note how Mr Clay put his closing submissions on ground (D) to the inspector.  They read as follows in paragraph 4 (this is only part of it):
"This ground is proceeded with on the basis only (i) if the proposed amendments to the notice are accepted; and (ii) the pink area is treated as being within the same planning unit as the Gatwick parking area, in which case, it must be on the basis that it is accepted that there are parts of the site where no parking takes place, or where parking has taken place intermittently, that nevertheless are treated as part of the same planning unit, because they are part of the same unit of occupation and their use is ancillary and incidental to the primary use."
43.	It is noteworthy, as Mr Forsdick points out, that there is no evidential basis for treating the southern area as part of the same planning unit because, "... their use is ancillary and incidental to the primary use."  No evidential basis is spelt out in that submission of Mr Clay.  
44.	What remains is the Secretary of State's submission that the inspector rejected this case for want of evidence i.e. on the facts.  This requires some concentration on paragraphs 35 to 37 of the decision letter.  However, there is no doubt that these paragraphs of the decision letter could have been more clearly stated.  My reading of them is as follows: 
45.	(1)  In paragraph 35, the inspector recites the appellants' submission that the southern area had been used for purposes ancillary to the parking use for more than 10 years.  
46.	(2)  In paragraph 36, the Secretary of State submits that the inspector rejects both the primary argument of tenuous car parking and the secondary argument.  The problem with that submission is, however benignly one looks at the words in paragraph 36, that they appear, on any reading, to be clearly focused on the 10 years continuous car parking issue (even though that was not seemingly been pursued in the appellants' closing submission).  
47.	(3)  In paragraph 37, the inspector does deal with the point but I am afraid with a total lack of clarity.  One could argue, as the Secretary of State does, that by using words such as, "it may be" in the first sentence; and, "although the evidence was not directed at that point", he was rejecting the submission for want of evidence.  
48.	However:  
49.	(A)  He never actually rejects the submission for want of evidence.  
50.	(B)  The words "it may be" and "if that is right" leave the issue as to the whether the appellant had proven incorporation of the southern land into the planning unit in 1997 entirely in the air.  
51.	(C)  Indeed having raised the point he appears to avoid it by reference to deciding only whether there had been car parking for more than 10 years.  
52.	(D)  This is in the context that Mr Forsdick accepts that if it was proven that the southern area was incorporated in the planning unit as a landscaped area pre 1997, then there will be some vulnerability, at least, in the inspector's statement in paragraph 37 that, "it does not mean that cars could lawfully be parked on the land." 
53.	(E)  Mr Forsdick's submission thats he expressly rejected the point for want of evidence also gives rise to some difficulty in explaining the last sentence of paragraph 37.  
54.	(4)  In summary, in my judgment, the inspector failed to make a finding one way or another on what the planning unit was in 1997.  Having regard to the argument put to him by Mr Clay, and encapsulated in paragraph 35 of the decision, he may have thought that even if it was part of the planning unit then it did not mean that cars could lawfully be parked on the land in question (i.e. the southern area).  
55.	It may well have been that having regard to:  
56.	(i) such evidence (or lack of it) as was before him;
57.	(ii) the factual context urged on me by Mr Forsdick, for example, the limited permission in 1993 and attempts to extend the area leading to an appeal to the Court of Appeal in 1998, together with the primary submission on ground 174 (1) (d), having been roundly rejected, the inspector could well have dismissed the alternative ground for want of evidence.  Unfortunately, given that he did not make a determination one way or the other as to whether the land in the southern area was or was not part of the planning unit in 1997 I find that his decision is flawed.
58.	Right, the consequences therefore are? 
59.	MR PORTEN:  My Lord, so far as the 289 appeal is concerned, I would ask you to grant permission and quash the decision on that ground in respect of the appeal under ground (d).  We say that all the matters before the court must follow.  There are really two reasons for that, one is that the ground (a) appeal and the planning appeal section 78 and section 288, a deal was offered, as your Lordship would have seen, with the section 106 agreement saying, we will give up some of the lawful parking that we are entitled to and put it to the back of the site, which will have a lesser effect on the green belt and so on.  Obviously, the inspector did not take into account, or put into the balance, any benefit that followed from that deal, and did not take into account that the southern area might have lawful use for parking, that would be a material consideration on any view.  So we say that the result on that must follow for ground (a) and the section 78 and 288 appeal.  I think it is common ground so far as the section 106 (b) point is concerned that that must follow too as a result that the decision on that must fall.  
60.	The other reason why I should say that they should all fall is in respect of ground (a) which my friend has a separate argument about, no doubt.  As far as ground (a) is concerned, if the decision is quashed the matter must go back to the Secretary of State who may or may not appoint another inspector and look at it with the opinion of the court.  But, the effect of quashing is, as I understand it, that the appeal is revived and all matters are at large.  So, once it goes back there, all matters are for re determination in any event.   
61.	MR FORSDICK:  Yes, well, I am just thinking through the consequences of that, if you bear with me for one second, I am not quite sure that is the right, could I have two seconds to ‑‑ 
62.	JUDGE STEWART:  Do you want me to bear with you for five minutes? 
63.	MR FORSDICK:  No, it will not take me that long, it is literally just a skim on 289.  
64.	MR PORTEN:  It is paragraph p.289.31.  
65.	MR FORSDICK:  Thank you very much.  
66.	MR CLAY:  Can you repeat that for the judge?
67.	MR PORTEN:  P.289.31: Duty of the Secretary of State upon Remission.
68.	MR FORSDICK:  Yes, I am not sure that he is obliged to treat everything at large on a re determination.  My Lord, I put the point in my skeleton as a no difference point under ground (a), in the sense that when one analyses the decision letter it is quite plain that it is (inaudible) of the southern area does not effect any of the views on the acceptability of the northern area, which is just a straight green belt, no extenuating or very special circumstances; therefore, there could not have been any difference.  
69.	I accept that in the light of my Lord's judgment, there would have to be a 106 (b) which would have to be redetermined.  It basically, from the other end, brings it back in, so I cannot resist that application.
70.	JUDGE STEWART:  Right, so I do not have to determine anything else.
71.	MR FORSDICK:  You do not have to determine that issue.
72.	JUDGE STEWART:  Right.  
73.	MR PORTEN:  My Lord, the second application is for costs against the Secretary of State.  It is a one day case, I was going to ask for summary assessment.  We have shown my bill for costs to my learned friend and I can show it to your Lordship.  My learned friend is not impressed by the bill that is being presented.  We are miles and miles apart and he resists it.  I can give it to your Lordship for going through, or given the difference between us it may be appropriate that it will have to go off for assessment.
74.	JUDGE STEWART:  Could I have a look at it?  I generally summarily assess, however difficult, unless there is good reason not to.
75.	MR PORTEN:  My Lord, I shall provide a copy of our ‑‑
76.	JUDGE STEWART:  It is not out of desire, it is just because that is what the rules say. 
77.	MR FORSDICK:  My Lord, I agree entirely with my Lord that one is required to do summary assessment if one can.  Can I make just make two broad headline points, first of all, and then I will get into the detail.  Firstly, the Secretary of State in cases where the other side is represented by a QC would normally expect summary assessment in the sum of £13,000 to £15,000, as the experience of both myself and my instructing solicitor.  The second point is that these costs are wholly excessive, and I will go through in a moment each aspect of them that is wholly excessive.  It is quite evident from some of the items in it that the kitchen sink has been thrown at this case by the appellants.  No doubt there is lots of money in car parking but that is not a reason why the Secretary of State should have to pick up the tab for the wholly excessive costs of this litigation. 
78.	JUDGE STEWART:  No, I accept the point in general that there is a difference between what is reasonable for them to pay to their lawyers and what is reasonable for them to claim against you.
79.	MR FORSDICK:  Absolutely.  The third point, my Lord, is the disparity between the cost of the appellant and the Secretary of State is simply incredible.  This is not a big or difficult case.  It raises one point on six paragraphs of a decision letter.  It was finished in front of my Lord within about two hours of argument.  It is really not anything out of the ordinary at all.
80.	JUDGE STEWART:  It was listed for one day, was it not? 
81.	MR FORSDICK:  It was listed for one day, but it is the sort of case that everyone would have known it was going to be a one day case.  It was easy to do in one day as it did not raise any magic in terms of skeleton arguments or points of law to be researched.  So, those are my big points as there is no reason on earth why the costs of this litigation should be out of the ordinary order of £13,000 to £15,000.
82.	If I can then go into the detail.  The first point, my Lord, is that the schedule is not correct as I understand it but I have only seen it just at lunch time.  I do not think that the schedule is legally correct because at (d) and (e) on the front page it includes fees of planners.  Do you see (d) and (e), director of Planning and Planner?  
83.	The costs recoverable are the costs of the litigation and unless it is demonstrated that the planners were doing some part of the litigation which the solicitors were not also doing, then (d) and (e) fall out of account automatically as a matter of law.
84.	I have a general point about the excessive hours, and I am going to demonstrate the excessive hours by reference to just a few examples.  If one looks, please, at attendance on opponents: 3.6 hours at £105 per hour and 2.3 hours at £140 per hour, and compare it with our schedule, which identifies the same time, the same issue, as I think one hour.
85.	JUDGE STEWART:  I do not know who the £140 per hour is?  There it is, sorry. 
86.	MR FORSDICK:  I think attendance on opponents.  You see the Secretary of State's is only one hour, so an unexplained and very serious discrepancy is there in terms of the number of hours spent in attending the Secretary of State.  
87.	Attendance on others, wholly unparticularised and simply not possible to understand how it can have been.  A total of five different people engaged for a number of hours, people of unspecified persons.  
88.	When one gets to the work on the documents, my Lord, and I am using this term advisedly, these are grossly exaggerated hours for a bundle which is, as my Lord knows, about 58 pages long.  It is simply inconceivable how a total of five people could have spent a total of nearly 175 hours assessing and working on the documents.  I pick out just two highlight points.  A 30 hour charge for person B on the documents and the 131 hour charge for person D, the planner.  My Lord, it is simply incomprehensible how that can possibly be justified.  D has to be crossed out as a matter of law anyway.  B is simply unexplained and inexplicable, especially, my Lord, when one comes to the basic point that the ground here was formulated by my learned friend Mr Clay.  He advised on the ground, he charged for that advice, obviously and we will see that in a moment.  How on earth it is that the solicitors are doing the same work and arising 175 hours is simply beyond us.  
89.	We then go on to other work, not normally exceptional if it is the odd 30 minutes here or 20 minutes there, but we have 11.5 hours and 1.9 hours, wholly unspecified and impossible to understand.  Of course, I am not sure what time this case will finish but 7 hours at £140 might be okay for the attendance.  
90.	In terms of counsels' fees, in fact, I have three points.  First of all, this is not, in my respectful submission, a QC case, it does not require a QC.  Without doubt, it is not a two counsel case.  The refreshers I hope have been deleted from the ‑‑ 
91.	JUDGE STEWART:  Yes.
92.	MR FORSDICK:  You do not have the schedule with the refreshers.  Sorry, I am working off a previous version.  
93.	VAT is not recoverable because presumably this company is registered for VAT and it would be recovering twice.  The total briefs can be agreed as between solicitor and clerks to the barrister involved, no doubt, but again there is no possible basis for those levels of fees to be passed across to the taxpayer.  On that aspect could I just ask my Lord to cross reference the total counsels' bill with the total counsel's bill for the Secretary of State.  I mean it is obvious it is going to be different and more, and substantially more, but a factor of, I think it is, 30 times more is simply beyond comprehension in terms of these sorts of schedules.  So, my Lord, I say the court should just dismiss this schedule as not providing any basis upon which proper assessment of costs can be carried out and go back to the basic approach that the court would normally expect on this sort of challenge between £13,000 and £15,000.
94.	JUDGE STEWART:  I am not sure I can just sort of do a round figure.
95.	MR FORSDICK:  It is not unusual, my Lord.
96.	JUDGE STEWART:  It may not be but I am not sure if the authorities allow it.  I think the authorities require me to go through it item by item and make allowances.
97.	MR FORSDICK:  If so, so be it.  In that case my Lord, if I could do that with my Lord and say what I say is an acceptable position under each of the headings.
98.	JUDGE STEWART:  I am pretty sure the authorities say that.
99.	MR FORSDICK:  I do not have my White Book with me, I am afraid.  
100.	JUDGE STEWART:  No, neither do I but I am pretty sure that the authorities say that.  It does not matter, I think I prefer to do it on that basis.
101.	MR FORSDICK:  Well, the first approach, my Lord, is that I need to understand on what basis it is said that D and E can claim anyway, but D and E just need to be crossed out.  
102.	Work on documents, the £20,000, this needs to just be deleted, it is incomprehensible.
103.	JUDGE STEWART:  There has to be some allowance for it.
104.	MR FORSDICK:  Well, no, because, first of all, the person should not be doing this because he is a planner not a litigator.
105.	JUDGE STEWART:  You mean at D.  Right, sorry, I thought you were saying to cross out everything on documents.
106.	MR FORSDICK:  No.  My Lord, I would ask my Lord to take a broad view of this looking at the bundle and say that a junior person is needed to instruct the barrister who was involved in the public inquiry, provide the papers and let the barristers get on with it, which is what happens in these cases.  I would therefore ask you to find that 9.7 hours at £140 per hour is broadly an acceptable fee in respect of the documents.  I do specifically ask you to cross out the 30.5 hours in its entirety even if you are not with me on that, because it is just wholly excessive and unexplained, and it is so wholly excessive, in my submission, that no credence can be given to it.  
107.	If I go back, please, to the attendance on clients; I do not think I have any points on that.  Attendance on counsel, the individual items might not look excessive or surprising but the totality is that three solicitors and two planners being engaged with counsel.  This is just simply not a cost that should be borne by the Secretary of State.  Therefore I suggest that the highest figure of £1,820 for one solicitor engaging at the top hourly rate with the Secretary of State is likely to be appropriate.  
108.	Attendance on opponents, I say one hour at £105 per hour.  Attendance on others wholly unexplained and therefore difficult to understand how that can be, and I ask that to be crossed out in its entirety, absent of some explanation.  
109.	On the fees for advice and conference, I ask my Lord to form a view as to whether a QC is justified on this case or a junior; and to adopt one of those, rather than both of those for advice, conference and brief.  Not for skeleton argument, skeleton argument should be wrapped up in the brief, that is just the general approach with costs.  Also, to form the view that brief fees are not at a level that the Secretary of State should be asked to pay.  I would be ask that the costs be limited to counsel to a total of ‑‑ From my experience, and I will just check actually, I was just checking that my recollection that a brief fee of about £5,000 would not be regarded as exceptional by the Secretary of State.  
110.	So we would have a brief fee of £5,000, a fee for advice and conferences of about £1,500; leaving counsels' costs at about £6,500, maybe more if my Lord was minded to say that a QC was appropriate in this case.  But that, my Lord, I have not done the maths, but it comes out broadly, I think, in the lower end of the £13,000 to £15,000 range because we have to exclude VAT anyway.  So, unless I can assist my Lord further. 
111.	MR PORTEN:  At about 2.58 pm, the defendant was about to explain his points, but we did not have time in the end.  I need to take instructions on a couple of things, can I just do that behind me? 
112.	JUDGE STEWART:  Of course, yes.  
113.	Mr Clay, I just wonder if you might be drafting up the draft order whilst these things are happening, that will help to save some time later.  
114.	MR CLAY:  Yes.  
115.	MR PORTEN:  Grateful, my Lord, it is a little difficult in the time circumstances.  The point about the planners is that DMH Stallard is a multi disciplined practice, whatever the right word is, they do employ planners in the firm.  When we see, for example, that particularly high item which is mentioned which comes out at 131 hours: work on documents D being done by Mr Jeff Smith, he is a director or an assistant director of DMH.  It was he who had given evidence at the inquiry and wrote up the notes of the inquiry with a view then to them being considered with a view to the applications.  So although he is not qualified as a solicitor but as a planner, he is a member of DMH Stallard and it is probably cheaper for him to do it than for a solicitor partner to do it.  I accept that that particular item looks particularly high and no doubt your Lordship may want to reduce that.  I accept the point about VAT which is a relatively small item, which (inaudible) one accepts.  
116.	Just going back to some of the other points, attendance on counsel, I am just told that as a matter of fact those things happened, those person were identified.  Attendance on opponents, of course, the appellants had more time spent on this than the Secretary of State would have done, because the appellants had at the start of this two opponents Tandridge District Council.  Although they have not appeared today they are a party to the proceedings and had to be served with all the necessary documents at each stage, and so on, find out what they were doing.  
117.	Attendance on others, again there are more calls on the appellant than there would be on the Secretary of State because before taking on proceedings like this, there is not just the director of Cophall Farm Parking Limited to speak to but part of the land is owned by others, who instructions had to be taken.  The land is mortgaged in part and the bank has to be consulted on the proceedings so there are others parties that the Secretary of State will, of course, have had no dealings with but DMH had to.  
118.	My Lord, the rest of the matters are dealt with really as a sort of surprise and just on the basis that they are excessive.  As far as counsels' fees are concerned, it was considered that this was a case that involved some matters of complexity and thereby justified a leader.  In the circumstances, my learned friend, Mr Clay, had settled pleadings and had been present at the inquiry, it was thought appropriate that both of us should represent, and it was necessary that we should.  
119.	As far as counsels' fees are concerned, looking in particular at those of my learned junior, Mr Clay, the fee for advice and conference of £1,500 can hardly be excessive when those separate items included for the pleadings that resulted out of there, which might in other circumstances have justified a fee on them themselves, given that there were three lots of pleadings, statement of facts, grounds and so on to be settled.  They are absorbed in the figure that you see.  
120.	My Lord, without calling my instructing solicitor, who has prepared it or dealing with it in some other way, there is really not much more that I can say.  The Secretary of State expects the fee to come out at a certain amount, at say £13,000 to £15,000, it may be an expectation but if these hours were actually spent by these persons then there is really no reason to doubt the amount to which, large as it may seem, they total.  It is in your Lordship's discretion.
121.	JUDGE STEWART:  Any response, Mr Forsdick? 
122.	MR FORSDICK:  Only that Tandridge Council indicated right at the outset that they were not going to be engaged.  My Lord, I should have said that photocopying is not an allowable cost anyway because it is supposed to be included in the solicitor's costs, but I am sorry that I did not make that point at the outset.  
123.	My Lord, can I just tell you what my sums add up to?  Attendance on clients, I said £1,543.50; on counsel £1,820; on opponents £105; on document £1,358; on attendance at the hearing £980; counsel £6,500, that gives, I think, done as quickly as I can £11,280.
124.	JUDGE STEWART:  I have two schedules here: one for £75,148.38 and one for £5,900.  Now, it is not suggested that there be anything like a parity between an appellant who has to make the running and the Secretary of State who is responding, but this is an appeal with a little complexity which is listed and has been dealt with in one day, and where the issues, albeit of some complexity, are not extremely complex.  Of course, they may be extremely important, and I have no doubt are extremely important to the appellant.  One can understand why the appellant has instructed two counsel including leading counsel and perhaps why there has been, as I am going to find there has been, a total overkill in terms of the number of hours spent.  No doubt, every single "i" has been dotted and ever single "t" crossed and masses amounts of tender loving care expended on the case, but the ultimate question is what is reasonable to claim against the Secretary of State by way of costs, the appeal having been successful.  Just looking at the amount before the break down it seems to me to be grossly disproportionate and therefore I have to look at each item very carefully.  
125.	I will start with counsels' fees because that really fits in with the context of what I have said.  I am, of course, delighted to have had leading counsel and junior counsel as well before me, and I can understand why the appellants wanted leading counsel and junior counsel, but I do not accept that it is reasonable to claim the fees of leading counsel, much less two counsel, against the Secretary of State.  Therefore, in respect of counsels' fees I am going to allow Mr Clay's fee of £1,500 for the advice and conferences and for the skeleton argument and brief fee combined as £6,000; so a total £7,500 for counsels' fees.  Just staying on that page, I am not going to interfere with the disbursements, save possibly any response to delete the photocopying.  
126.	I then go back to the solicitor's costs.  Point is taken that planners have been involved.  My response to that is that they are employed in house as part of the appellants' solicitor's team.  Well, that is a perfectly good response if effectively the amount of work undertaken is proportionate.  As I say in terms of claiming against the respondent I find that it is not proportionate, but I shall bear that in mind as I go through.  
127.	The attendances of clients are not objected too.  The attendance on counsel having regard to the issues in this case, and to the fact that it is a one day case, albeit of some complexity but not massive complexity, I am going to allow solely item B, that is 4.2 hours at £105 per hour and 2.6 hours at £140 per hour.  As regards to attendance on opponents, I accept that there will some disparity because there were two opponents, I will allow three hours in total at £105 per hour.  
128.	Attendance on others, I accept that although unparticularised there would be some attendance on others to take instructions and the like.  I will allow the 2.8 hours at £260 and I will allow 4.2 hours at £104, the rest will be disallowed.  
129.	Work done on documents is absolutely staggering.  It may well have been spent but in terms of being spend in terms of preparing a one day appeal in the administrative court, it is wholly excessive to be claimed against the Secretary of State.  What I am going to allow is 10 hours at £260 per hour and 10 hours as £105 per hour and nothing else.  As regards other work, I shall allow 5 hours as £105 per hour and nothing else.  For attendance at the hearing, I shall allow the 7 hours at £140 per hour.
130.	MR FORSDICK:  We will do the maths. 
131.	JUDGE STEWART:  I think Mr Clay was drafting something for the order, so if it can just be sent through.  Thank you.