CO/4325/2009 
Neutral Citation Number: [2009] EWHC 3533 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 19 November 2008
 
B e f o r e: 

MR JUSTICE COLLINS
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Between: 
THE QUEEN ON THE APPLICATION OF PEARTREE WELL LIMITED 
 
Appellant
v 

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT 
Respondent 
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Computer‑Aided Transcript of the Stenograph Notes of  
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THE APPELLANT, R, appeared through its represenative, Mr Pursglove.
MR L BUSH (instructed by Treasury Solicitors) appeared on behalf of the Respondent
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J U D G M E N T
1.	MR. JUSTICE COLLINS:  There are two claims before the court.  One is pursuant to section 288 of the Town and Country Planning Act 1990 against the refusal by an inspector on 12th March 2009 to grant planning permission or to allow the appeal against the refusal by the local planning authority of permission for the construction of a dwelling house at the particular land in question, Paygate Farm, which is just on the outskirts of or just outside Uckfield in Sussex.  The other is a claim pursuant to section 289 of the same Act against the dismissal of an enforcement appeal, the enforcement relating to the presence on the land in question, the same land as that involved in the section 288 claim, of a caravan or mobile home.  That was said to be a breach of planning control.  That decision was made on 21st May 2009. 
2.	Mr. Pursglove owns the land in question but operates on it, through a company Peartree Well Limited, a business which involves the extraction of water and the bottling and selling of that water.  The water in question is at some depth below the site and is of a particular purity.  It apparently has a number of advantages, in that it may have some curative effects and it has received a certificate which shows that it is in the most excellent condition.  Interest has been expressed in purchasing this particular water by a number of organizations and businesses and, once the problem of these two cases can be sorted out, and Mr.  Pursglove is able to operate his business on the site as he would wish, in particular in premises that he would need, then the future looks rosy.  Sadly, things have not gone well in the past.  It is the history that has led to the problems which these cases illustrate.  
3.	The site itself, albeit for planning purposes within the countryside, is and has for some considerable time been used for a light industrial purpose.  Mr.  Pursglove acquired the land in 1987 and it was then used in connection with what can loosely be described as a furniture business which was then operated by him.  Shortly after he bought the farm in 1988 he fell ill, and as a result has laboured under a disability ever since.  The disability manifests itself in difficulty in walking but I understand that from time to time he is in something of a worse condition.  It has not affected his ability to carry on the business of producing water which goes under the name Silver Spa Natural Mineral Water.  As I have said, he discovered that there was under the site this seemingly good water.  It has something to do with the water going through a sandstone aqueduct which lies beneath the appeal property and it is of a particularly high quality.  In order to extract it there is a 35m deep borehole.  He will extract or is extracting, I gather, something in the order of 17 1/2 cubic metres of water a week, which produces some 17,500 litre bottles of water.  That I gather is the optimum extraction rate because obviously anything more could have an effect upon the water itself.  No doubt, anything less would not be economic and sensible.  That is the quantity that has been fixed.  
4.	Mr. Pursglove needed to know that he would be able to extract that water, so he applied for a certificate of lawful development from the Council.  He states that he has had nothing but difficulties created by and obstruction from the local planning authority, which is the Wealden District Council.  They initially refused to grant the lawful development certificate, albeit he produced evidence to show that he himself had operated the land for business purposes since he acquired it in 1987.  It had the necessary 10 years use but in fact it had been used before that for business purposes.  
5.	The appeal came before an inspector in October 2002.  When it was eventually to be heard the local planning authority conceded that a lawful development certificate should be granted, albeit that it was a slightly different area from that which was requested.  It is not necessary to go into those details.  At the same time he sought planning permission for the construction of what I might call a proper building to enable the extraction to take place.  At present the extraction has to be done, the bottling and so on, in a relatively small and cramped wooden building which is unsatisfactory.  Apart from not having the necessary space, there are problems because potential customers who would be prepared to purchase substantial quantities of the water produced, because they are entirely satisfied that it is of the necessary high quality, have been put off because of the state of the building.  They indicate that they really need to be sure that it is produced in circumstances where there can be no risk of anything going wrong as far as hygiene is concerned.  That application had also been refused by the local planning authority.  
6.	The inspector decided that a lawful development certificate should be granted.  As he said in his report, there was abundant evidence that the building had been in use commercially as a workshop for storage for more than 10 years and there was really no evidence to the contrary.  Therefore, the LDC appeal succeeded, in that it was to be regarded as a workshop within Class B1 of the Use Classes Order for the repair of upholstery and furniture and making of curtains, with ancillary storage.  Mr.  Pursglove had the intention to start the water extraction business.  However, he could not commence that until he received a licence.  It is perhaps somewhat ironic that now such a licence for the quantities that he seeks to extract is not necessary but it was at the time.  It was the same Council that was responsible for the grant of such a licence.  However, it was necessary to have the building in question.  The inspector recognized that the proposal would constitute, as he put it, a sporadic commercial use in rural surroundings but that it was not a new introduction of commercial development into such a location.  Were the bottling plant to be accommodated within the existing building such re‑use for employment purposes would not be necessary to demonstrate that a countryside location was necessary.  That location was clearly necessary because the relevant regulations of 1999, which affect European requirements, made it clear that spring water could only be described as such if it was bottled at source.  Since the source is where it is, it is essential that the bottling and therefore the commercial use take place there.  That the inspector recognized.  
7.	That particular permission which was granted by the inspector has for various reasons lapsed, and it is now necessary to obtain a fresh permission in order to enable the business to continue.  What is proposed is that the new building is built over and around the existing small shed.  This means that the production will be able to continue whilst the building is constructed.  I am told by Mr.  Pursglove that he reckons that it will take approximately 12 months to carry out the construction work once permission is granted.  
8.	The inspector ‑‑ I am referring to the 2002 decision ‑‑ described what was applied for and indicated that there would in his view be no visual harm to the character and amenities of the cottage, which was at that time occupied by Mr.  Pursglove, and the surrounding area.  It is to be noted that there would be no real problem with noise, and his conclusion was that the 
"the proposed development would detract neither from the rural character and amenities of the area nor from the safety and convenience of highway users and that accordingly it can be permitted."
9.	But he considered it necessary to impose various conditions, one of which was that the development should not commence until the water extraction licence had been obtained from the Environment Agency.  Two other conditions were material to what happened in the future, No 4, which was that no development should take place until details of the external surfaces of the building had been submitted to and agreed in writing by the local planning authority, and No. 5, which read: 
"the building shall not be used until the parking and vehicular turning spaces indicated on the approved drawings have been provided and they shall thereafter be permanently retained and used for no other purpose."  

10.	Things did not go at all smoothly.  There was a need for the extraction licence.  Difficulties were created.  Sensory tests on the water were, in Mr.  Pursglove's view, totally unnecessarily required.  The result was that at least three years passed before it was eventually possible for him to obtain the necessary licence.  One other condition was the standard one, that the development had to commence within five years.  Within that period he thought that he had commenced development because footings were made for the new building, albeit no actual construction of the building was able to commence, largely due to the delay occasioned by the long time needed to carry out the necessary tests or, as he would have it, the unnecessary tests that the Council required.  In any event, the result of all that was that additional and considerable extra expense was needed.  Mr.  Pursglove retained lawyers in order to pursue the successful appeal back in 2002.  They were expensive and he did not get his costs from the Council of those appeals.  In addition, considerable sums of money had to be spent in relation to the requirements for the testing and so on of the water, and as a result of that and other expenses incurred because of the delays he was compelled to sell the cottage which he had occupied on the site.  He says that he was fortunate to sell it in early 2008 at the height of the market.  It was the financial problems created by the delays and by the need for extra expenditure that resulted in that decision.  That affected to some extent the site, inasmuch as the area occupied by the cottage was taken out of the site generally.  More importantly, the result of that was that there was no accommodation available for anyone on the site to be there if things went wrong with production, in particular, if something went wrong with the pump.  It was essential that matters were dealt with very speedily otherwise there would be a need for at least two days cessation of production while measures were taken to ensure that the water was in its necessary pure state before it could be pumped out.  That was the major problem.  Therefore, the view was taken that there was a real need for there to be some accommodation on the site.  That led to the application for permission for the dwelling house, to house someone to look after, if necessary, and also to have to some extent an office use within it and to provide facilities for those working on the site, to use lavatories et cetera, if the need arose.  It was a building which was in Mr.  Pursglove's view essential for the operation of the business but also it would enable someone to be always on site, to sleep there overnight and to be available should any emergency arise.  
11.	In the meantime, there was what I would call a caravan.  It is described as a mobile home in the enforcement notice.  That was provided for the use of those on site, no doubt for the facilities which were regarded as necessary whilst they were on site and for the builders when they were building.  Unfortunately, because of the inability to get things going the necessary pre‑conditions, in particular condition NO. 4 to which I have already referred, was not complied with; that is to say, there were no details of the external surfaces to be submitted and agreed to in writing by the local planning authority.  The result of that was, as the inspector who dealt with the enforcement appeal noted, that the commencement, the digging of the footings and so on, did not constitute commencement of the development because the pre‑condition had not been met.  The result is that the planning permission granted by the inspector in 2002 has now lapsed and the result is the need for a new permission to enable the building to be erected and for the business to be able to continue.  
12.	The Council refused permission for the development.  Mr.  Pursglove appealed against that refusal.  At the same time, perhaps somewhat surprisingly, the Council saw fit to serve an enforcement notice requiring removal of the mobile home, the caravan.  Mr.  Pursglove appealed against that.  The result was that there were two appeals in relation to the same land.  One would have thought that it might have been sensible to have heard those two appeals together.  Clearly they raised similar questions.  However, that was not done.  The first one came before an inspector, Mr.  Mumford, on  25th February 2009.  That is the appeal against the refusal of planning permission.  
13.	The relevant policies which were in issue were contained in DC2 of the Local Plan.  That sets out various criteria which are virtually identical to those in Annex A of PPS7.  I will refer to that Annex for simplicity.  The matters of relevance are under the heading "Urban and Agricultural Dwellings": 
"new permanent dwellings should only be allowed to support existing agricultural activities on well‑established agricultural units providing:
 (i) there is a clearly established existing functional need; 
 (ii) the need relates to a full‑time worker, or one who is primarily employed in agriculture and does not relate to a part‑time requirement;
 (iii) the unit and the agricultural activity concerned have been established for at least three years, have been profitable for at least one of them, are currently financially sound and have a clear prospect of remaining so." 
14.	I appreciate that that refers to agricultural but the same approach is appropriate in relation to any dwelling houses within the countryside, and since it is plain that the relevant use, the extraction of water, is one which has been approved, the extraction licence has been obtained, it clearly is appropriate that the same approach should be adopted on the basis that it equates in the circumstances to an agricultural use.  When I say equates, I mean that it is treated in the same way as if it were agricultural use.  In paragraph 4 the functional test is said to be necessary to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times.  It might be needed if there were a need to deal quickly with emergencies that could lead to serious loss of crops or products.  It could be said quite sensibly that the water in question is to be equated to a crop.  Clearly, it is something that comes from, not the land itself but from within the land, and is a product which is of value and of a local value too.  
15.	So far as finance is concerned, the financial test requires that: 
"authorities should take a realistic approach to the level of profitability, taking account of the nature of the enterprise concerned.  Some enterprises which aim to operate on a subsistence basis, but which nonetheless provide wider benefits (e.g. In managing attractive landscapes or wildlife habitats), can be sustained on relatively low financial returns". 
16.	Mr.  Pursglove makes the point, although it was not a point developed in this way before the inspector, that they have decided that they will not charge the full amount that they would otherwise charge for the water for those who cannot afford it and who would like to use it because it has a potentially beneficial effect for various illnesses or conditions of one sort or another.  The extent to which it does have those benefits I am not in a position to judge, nor do I do so.  
17.	Mr. Mumford considered the matter on the basis that I have indicated.  In dealing with the functional test he reached his conclusions largely because he said that he did not feel that he had sufficient evidence to enable him to come down in favour of the appellant's case.  He was told, he says, that pump breakdowns needed quick attention.  He was not convinced that a breakdown warranted a dwelling on the site.  His reasons are at paragraph 9 of his determination: 
"... although a simple fault might be repairable by a resident site manager I consider it likely that a more serious fault in a pump would need professional help.  As I understand it, a failed pump would need to be restarted within half an hour and I consider it unlikely that a professional engineer could attend to the site in this rural location within the relevant time."
18.	With respect to Mr.  Mumford, that seems to me to be unimpressive reasoning.  He was not in any way an expert in this field.  He had evidence.  It was not contradicted that there was a real need for instant action and his rejection on that basis was not particularly sound.  I skip paragraph 10.  I will come back to that in a moment.  At paragraph 11 he indicated that it had to be shown that there is not another existing dwelling on the unit which is suitable and available.   He dealt with the sale of Paygate Cottage which had been previously owned and occupied by Mr.  Pursglove.  He indicated that PPS 7, Annex A, paragraph 5, expressly advises local planning authorities about possible abuse and to investigate the history of the holding to establish whether any dwellings had recently been sold separately from the land concerned, as such could constitute evidence of lack of need.  He said: 
"this seems to be the case here.  If a dwelling were genuinely needed for the success of the enterprise I would have expected the appellant to retain the cottage and explore other ways of meetings debts.  I have no evidence that this has happened, so conclude that this test is not met", 
19.	Again in my view that is unimpressive reasoning.  It may be that if there was doubt in his mind about the need to sell the cottage in order to meet the debts which had resulted from the history which I have already touched on, he should have explored this further, but he did not apparently do so and he did not go into any depth on this issue.  As we shall see, the inspector who dealt with the enforcement appeal was not so sceptical about the need for the sale.  It seems to me that Mr.  Mumford's reasoning in that paragraph is singularly unsatisfactory.  
20.	However, to go back to paragraph 10 which concerns the financial test, he said: 
"secondly, a financial test is necessary, showing that the enterprise has been established for at least 3 years, has been profitable for at least one of them, is currently financially sound and has a clear prospect of remaining so." 
21.	He states what was provided, namely accounts which showed that there was a loss in 2007 of some £3,000 and that turnover in 2008 was about £35,000.  He indicates that it was not clear whether there had been a profit in the previous year and it was not possible in his view to say that the prospects were such as provided a clear prospect of remaining profitable.  Mr.  Pursglove says that since then it is apparent that things are looking better and the prospects are good, particularly if only they can get the planning permission and the new building constructed.  That would enable them to enter into substantial contracts.  He says that they are thinking in terms of thousands, if not hundreds of thousands, and up to millions if things go as well as can be expected.  However, albeit Mr.  Pursglove says that that was an unnecessarily gloomy view of what the future prospects were, it is impossible in my judgment to say that the inspector was not entitled to reach that conclusion on the material that he then had.  In a sense it is a Catch 22 situation for Mr.  Pursglove because he has been unable to realise the potential of the production of the water because of the difficulties created by the Council.  It was that that had led to the need to obtain further planning permission or rather defer until then the construction of the new building.  But, unfortunately, there is no question but that the planning provisions that were applicable did require that the financial test had to be met.  Harsh though it may seem, it is impossible to say that Mr.  Mumford was not entitled as a matter of law ‑‑ though factually whether it was a decision which was correct is another matter ‑‑ to decide that that particular test had not been met.  
22.	He went on to consider the visual aspect.  He said that in his view the proposal would harm the generally rural character and appearance of the area.  He did however ‑‑ this is something that can be prayed in aid in the future by Mr.  Pursglove ‑‑ indicate that in his view the access arrangements were satisfactory and that improvements sought  were unnecessarily excessive.    
23.	So far as harm to the rural character and appearance of the area is concerned, Mr. Pursglove makes the point that he does not seem properly to have taken account of the realities of what the area looks like, in what amounts to a caravan development within close proximity.  I agree that it is not a very attractive development.  There is a rugby ground with flood lighting nearby and a fish farm.  It has open land by the pools or lakes in which the fish are kept.  There is also other residential accommodation nearby.  Although it is in countryside, he says that to describe it as rural is putting it far too high.  However, the question of harm and questions of that sort I am afraid, where an inspector as this inspector did has seen the site, are matters for his judgment.  Those are matters in which this court cannot intervene.  However hard it may seem to be to accept, that is a lawful judgment.  It is what inspectors are there to do, to form their own judgments on planning grounds.  They have considerable experience in that.  
24.	Mr. Pursglove also complains that Mr. Mumford did not indicate, albeit he was not satisfied that a dwelling house was appropriate, that temporary accommodation such as a mobile home might be an alternative.  He does not deal with that.  Of course the appeal was against a specific planning application, namely for a dwelling house.  I suppose that he could have indicated the possibility, had he been persuaded that that was appropriate.  His views, so far as functional need and functional position were concerned, were such that it would not be surprising that he did not even indicate the possibility of such a decision.  It is hard to criticise him  for not dealing with it because it was not a matter that was directly before him.  This was an appeal against the refusal of planning permission for a dwelling house.  That is what the issue was.  
25.	So far as the enforcement appeal is concerned, the inspector in that, Mr.  Bourne, was ‑‑ it may not seem to be the case to Mr.  Pursglove ‑‑ somewhat more sympathetic.  The appeal was on a number of grounds under section 174(2) of the Act.  I need not go into them in detail.  Ground (b) was that it was argued that the matters alleged did not occur at all.  The argument ‑‑ this covered also the appeal on ground (c) ‑‑ was that this was not really residential accommodation.  It was essentially a mobile home which was there for purposes in support of the mineral water extraction and the bottling business undertaken on site.  Apart from anything else, the shed was too small for a lot of administrative work to be undertaken there.  The mobile home, as I understand it, was operating as an office as well as from time to time accommodation.  The argument was that it was not residential.  The inspector rejected that under ground (b).  I am afraid that he was right to do so.  Whatever its other uses may have been, it was there for residential purposes as well.  
26.	The next ground, ground (c), was that it did not constitute a breach of planning control.  The relevant argument was that the planning permission had not expired because commencement had been made before the expiry date.  I have already dealt with not meeting the condition precedent before the commencement of the permission for the purpose of the development for which permission had been granted.  
27.	There was also reference to the failure, it was said, to comply with condition No. 5 relating to parking.  That ground was in my view correctly rejected by the inspector.  He did however note ‑‑ this is of some importance ‑‑ that the Council had indicated informally that an application for planning permission to enable the necessary building to be constructed would be looked at sympathetically.  It certainly seems to me, on the face of it, that there is no good reason why planning permission should not be granted, having regard to the history of the site and the fact that it has been used for the purpose of business for some time.  The position which it is in, albeit countryside for planning purposes, is hardly the open country that one would look to normally if one is concerned with business development in the countryside.  There is a local product, in the form of the water for which there was an extraction licence granted, although it is not needed now, and when there was the decision in 2002 of an inspector that such a building would not be harmful to the environment in any way, provided of course that it was of a necessary design.  Mr.  Pursglove has complained that since he has discussed this with the Council they have raised further objections, having initially said that there was no need for any fresh drawings.  The old ones were sufficient and if further drawings were required there would be further expense and further delay.  That is not a matter that is material for the purposes of these claims but I suppose it reflects the negative attitude of the Council in relation to this.  All I can say, as I have indicated, is that it is very difficult to see how any refusal of planning permission could be justified provided the building is kept in a form which is not out of character for the area.  There is no reason why that should be the case.  
28.	One then comes to the question of the need for a mobile home.  That is ground (a), the application for planning permission.  Mr.  Bourne indicated that in his view it was proper that a mobile home should be provided.  He dealt with the financial aspect on the material put before him.  It was perhaps a little fuller than that put before Mr.  Mumford, no doubt because account was taken of Mr.  Mumford's decision in relation.  Mr.  Bourne was satisfied that the figures were not necessarily as discouraging as they might at first sight appear.  There was the salary of a manager who had been employed since March 2008 and, as the product had had several years of testing, there were no sales until 2006 but sales were increasing, and in the year to June 2008 they were over £11,000.  The accounts of the year ending 31st January 2009 showed sales totalling nearly £24,000.  There was sufficient to consider that in the future there might well be a real increase.  In Mr.  Bourne's view the criteria relating to the intention and ability to develop and evidence that it been planned on a sound financial basis existed.  He was satisfied of that.  
29.	He went on to consider functional need.  He dealt with the sale of Paygate Cottage.  He made the point that there was no suggestion that Mr.  Pursglove had acted in bad faith.  Although it is a matter to taken into account, the fact was that he did not reject his evidence that it was financial necessity that led to the disposal of the cottage at that time.  He accepted that a more or less full time presence or at the very least close to the site was necessary and also he mentioned the possible problem of breakdown at the site.  He therefore concluded that the necessary criteria of a functional need existed.  Accordingly, he was satisfied that it was appropriate to grant a temporary permission for three years for a mobile home on the site.  He says in paragraph 41: 
"in reaching that view I appreciate that my decision could be seen as inconsistent with the March 2009 decision.  However, that appeal related to a proposal for a permanent dwelling, which would at this stage in any event be in clear breach of policy, and there appears to have been far less evidence before the previous inspector as to need.  Accordingly, I do not consider that my decision should be seen as incompatible with that decision or as casting doubt upon the correctness of that decision".   
30.	That decision may have been correct, in the sense that there was no error of law contained in it, but none the less it is clear that Mr.  Bourne's decision was far more favourable and, Mr. Pursglove would say, more appropriate than the decision of Mr. Mumford.  But he imposed some conditions.  It is the conditions which have led to the need in  Mr. Pursglove's view to pursue this claim.  He also says that those conditions were not discussed or raised during the course of the hearing.  I have no doubt, generally speaking, that it is desirable that if an inspector wishes to impose conditions which have not been dealt with in written submissions or during the course of the hearing he should raise the matter so that comments can be made.  It is not essential.  If they are conditions reasonably imposed as a matter of law he is entitled to impose them.  The first condition was that: 
"the use was to be carried on by the appellant or other employees of Peartree Well Limited in connection with the production of natural mineral water at the site but for a period only of three years from the date of this decision, or the period during which the premises are occupied as specified above, whichever is the shorter.  When the premises cease to be occupied by any such persons or at the end of three years whichever shall occur first, the use ... shall cease and the mobile home shall be removed."  
The second condition was:
"The use should cease within 28 days of any of the following requirements not being met:
 (i) within two months of the date of this decision there shall have been submitted for the approval of the local planning authority details of a scheme for the access, parking and turning of vehicles" et cetera, with a timetable: 
 (ii) within six months the scheme and timetable must have been approved by the local planning authority or, if they failed to give approval or a decision within the prescribed period, an appeal should be lodged and (iii) no external lighting shall be installed at the site other than in accordance with details to be submitted to and approved in writing by the local planning authority.
 (iv) within three months the pre‑existing caravan shall be removed."
31.	I gather that the applications required by(ii) and (iii) have not yet been made but the Council have been threatening to issue an enforcement notice in relation to some lighting which Mr.  Pursglove says is essential for safety reasons to illuminate the site and car park.  He says ‑‑ I can see some force in this ‑‑ that since the Council have been happy to allow extensive flood lighting of another field close by and that this light is not seen to create any difficulty for persons in the neighbourhood, it is difficult to understand what objection there could be.  Suffice it to say that I am going to dismiss the claim in relation to this and he must make the necessary application to comply with (iii).  It would be improper or inappropriate for any enforcement action to be taken whilst the matter is under consideration.  If the Council require anything to be done or reject the claim there is a possible remedy so far as any unreasonable action is concerned.  The same applies to the requirement to put forward a scheme for access parking, et cetera.  I imagine that would be done anyway.  There would be little difficulty in putting forward a sensible scheme.  Insofar as removal of the existing caravan is concerned, that is not an unreasonable requirement, since what is being put in its place is something far more desirable and more attractive than what is there at the moment.  Three months was too short.  Arrangements could have been made over the last six months.   It will be three months from my decision in relation to this appeal.  Things start with my decision.  
32.	There is a further complaint made about the conduct of the appeal by Mr.  Bourne on his site visit.  It is said that he was ushered to one side of the site by representatives of the Council in the absence of Mr.  Pursglove who is not able to move that quickly, albeit, as I understand it, others who were involved on his side were clearly close enough to hear what was said or some of what was said.  What was heard was the inspector saying words to the effect that it would not be proper for him to be speaking to one side in the absence of the other.  That indeed is what the inspector says.  He did not discuss anything that he should not have discussed.  I am afraid the Mr.  Pursglove's own evidence in relation to this rather supports what the inspector says.  This was an experienced inspector.  There is no evidence which supports the proposition.  So, in any event, on the issue the inspector was favourable rather than unfavourable, although it may not seem like that to Mr.  Pursglove.  It follows in my judgment that there is nothing in the decision or in the conduct of the appeal which could be said to amount to an error of law.  
33.	Permission is needed for a section 289 appeal.  I have dealt with the matter in some detail.  Had this come before me on its own at the permission stage I would not have granted permission.  Therefore I deal with that by refusing to grant permission.  
34.	As far as the 288 claim is concerned, I have indicated why in my judgment, albeit there are matters which are not entirely satisfactory in relation to functional need that I have identified, overall it cannot be said that those errors could have resulted in a different decision.  In those circumstances I must dismiss the claim.  
35.	I add this.  Mr.  Pursglove clearly has had a very stormy ride with the Council.  I am not in a position to apportion blame.  I have only heard one side.  I have not had the Council before me.  Mr.  Pursglove tells me that he has now taken steps to obtain a record, in the sense of a tape of the conversation and in a conversation with the Council he was told in no uncertain terms that he would never obtain permission for a dwelling house.  If that was said it was a grossly improper comment.  The Council must realise that they have to approach this on the basis of dealing with it on its merits, not with any preconceived views.  In saying that I am not suggesting that it is established that that was said.  All I am saying is that if it was said, then it shows a dangerously improper approach to these issues.  Essentially, this is a potentially good business.  It has a local character.  It is a business that, on the face of it, ought to be encouraged.  There is no reason to believe that it is other than genuine.  It has a real future.  The time has come, it would seem, for any obstruction to cease and for encouragement of this enterprise to commence.  As it is, for the reasons that I have given, I am afraid that I must dismiss these claims and refuse permission under section 289. 
36.	MR. JUSTICE COLLINS:  Thank you for the way you have presented it.  I am sorry that I have had to come down against you there.  The issue of costs.  
37.	MISS BUSCH:  Mr. Pursglove has a copy of our statement of costs.  
38.	MR. JUSTICE COLLINS:  The rule is generally that if your claim fails you have to pay the other side's costs.  It does not automatically follow and I can consider the amount.  Do you have any observations about costs in principle?  
39.	MR PURSGLOVE:  We did make efforts throughout the best part of a year to get counsel to represent us.  We were advised that if we won we may not get costs.  
40.	MR. JUSTICE COLLINS:  You would have had costs if you had won.    
41.	MR PURSGLOVE:  She seemed to say otherwise.  
42.	MR. JUSTICE COLLINS:  Normally the rule in this court is that the   loser pays the winner, normally.  That is the general approach.  If you had won it is difficult to see that you would not have got your costs.  Miss Busch would have been hard pressed to resist an order.  There might have been a question.  There are technically two claims.  You might have succeeded on one and failed on the other.  I think that you have had the wrong advice there.  That is by the way.   The only question possibly you could raise is that I have not been entirely happy with at least part of Mr.  Mumford's decision, albeit at the end I have decided that he should be upheld.  Therefore, it might be that any order for costs should reflect that.  There should be a small reduction in the overall amount.  It is not possible to isolate one claim from the other.  Is that right?  
43.	MISS BUSCH:  Yes, that is right.  
44.	MR. JUSTICE COLLINS:  That is probably the best I can do.  Let us look at the amount.  The Treasury Solicitor is usually relatively reasonable.  One of the problems you have is that the more paper you generate the greater costs the other side incurs in reading it.  21 hours or thereabouts does seem a lot.  
45.	MISS BUSCH:  It is a comment often made in respect of the Treasury Solicitors that they tend to do a belts and braces job.  I would say that in this case the hours that have been spent  are not unreasonable given the amount of paperwork.  
46.	MR. JUSTICE COLLINS:  A lot of it was frankly not especially relevant.  The Treasury knows what is relevant to these appeals.  
47.	MISS BUSCH:  I appreciate that.  There was a lot of it.  The documents are tightly drafted.  The matters are relevant.  I myself could have spent twice as long as I did.  I gave up in despair.  
48.	MR. JUSTICE COLLINS:  I think that your remuneration is reasonable.  
49.	MISS BUSCH:  The fact that I spent relatively little time is counterbalanced by the Treasury Solicitor.  The overall costs are not excessive.  The charge is five hours for the hearing.  It is getting on for four but less than five.  
50.	MR. JUSTICE COLLINS:  The best I can do on reduction is to knock this down.  The claim is 8,300.  I am prepared to reduce that.  I do not think I can go below 7,500.  In order to reflect the fact that Mr.  Mumford's decision was not as satisfactory in all respects as it should have been, I am prepared to make a small reduction to reflect that.  I think that what I propose to order is that you pay by way of costs a total of 7,000.  I say you.  Peartree is the technical name.  I am sorry.  It is a pity.  I should have added that clearly you should proceed with the planning permission.  You must appreciate that whatever you may think planning inspectors are independent.  There is no question of collusion with local planning authorities.  They are very careful, particularly since the Human Rights Act, to ensure that there is no question of any association or collusion.  You will get a fair hearing.  They are all human, as are all judges, and not all are the same.  Some may be more sympathetic than others.  You can never be one hundred per cent sure.  No human system is perfect.  We try our best.  We like to think that we succeed most of the time.  We have to recognize, those who have judicial functions, that sometimes things are not as perfect as they might be.  I do recognize that you feel strongly that you have been badly treated, particularly by the planning authority.  I have perhaps gone further than I should have done.  It might assist you.  You will get a transcript of this judgment in due course.