B e f o r e :
MR JUSTICE SULLIVAN ____________________
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Computer-Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)
MR R WALD (instructed by SELWYN & CO) appeared on behalf of the CLAIMANT MR J AUBURN (instructed by TREASURY SOLICITORS) appeared on behalf of the DEFENDANT ____________________
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MR JUSTICE SULLIVAN: This is an appeal under section 289 of the Town and Country Planning Act 1990 "the Act" against a decision of an Inspector appointed by the first defendant dismissing the claimant's appeal against an enforcement notice issued by the second defendant and upholding the enforcement notice with corrections and variations.
The enforcement notice was issued on 27th February 2004 and alleged that there had been a breach of planning control at 2 and 2A-B Hassop Road London NW2 by reason of a change of use of the premises to a mixed use as a residential and a car repair business.
The notice required the cessation of the business use of the premises, including the use of the premises for the repair/servicing of motor vehicles, and also the cessation of the residential use of the premises.
The Inspector first corrected the enforcement notice by deleting the land and building, known as 2B Hassop Road, leaving a 2-storey building known as 2 and 2A Hassop Road.
The Inspector's conclusion that there were three distinct planning units within that 2-storey building, a flat on the first floor and two garages on the ground floor, is not challenged in these proceedings.
The claimant appealed against the notice on grounds (a), (d), (e) and (f) in section 174 subsection 2 of the Act. Apart from granting a modest extension of time for compliance with the requirements of the notice, the Inspector rejected all of those grounds.
This appeal is simply concerned with his rejection of the claimant's ground (d) appeal in respect of the use of the two ground floor garages for car repairs.
The relevant 10-year period for that use was between 27th February 1994 to 27th February 2004. The Inspector also considered whether a lawful use might have become established prior to 1992, but no criticism is made of his conclusions in that respect.
In paragraphs 15 to 18 of his decision letter, the Inspector summarised the evidence that was produced by the claimant in support of the proposition that car repairs had become an immune use.
So far as relevant, that evidence was as follows:
The Inspector then set out, in paragraphs 19 and 20, the "Contradictory information":
The Inspector then reviewed that evidence in paragraphs 21 to 35 of the decision letter.
In cross-examination, Miss Freeman, the second defendant's enforcement planner, had accepted that if the invoices related to the site the subject of the enforcement notice, they constituted "compelling evidence" of use of those premises for car repairs throughout the 10-year period.
The Council's case was that because of confusion about the numbering of premises in Hassop Road, the invoices submitted did not in fact relate to the appeal site.
The Inspector did not accept that argument. So far as relevant he said in paragraphs 21 and 22 of the decision letter:
In paragraph 23, the Inspector noted that there were no formal records at any stage connected with the ownership of the land or any documents relating to tenancies by named persons.
In paragraph 24 of the decision letter, the Inspector dealt with the nature of Hassop Road as a whole. In summary, the Inspector's overall impression on his site visit was one of:
The Inspector made the point that there was no detailed evidence as to how the street would have looked way back in February 1994, but said:
In paragraphs 25 to 35 of the decision letter, the Inspector dealt with "use between 1994 and 2004." In paragraph 25 he noted that there was no dispute that 2 and 2A had been let as separate units for car repairs after the claimant purchased them in or about 2000.
The claimant's appeal focuses upon the manner in which the Inspector dealt with the invoice evidence. It is common ground that the Inspector had to consider that evidence in the context of all the other evidence, both written and oral, and form a judgment on the evidence as a whole. In order to set the Inspector's conclusions about the invoice evidence in context it is necessary to read paragraphs 26 to 35 of the decision letter:
[In paragraph 33, the Inspector refers to the Court of Appeal's judgment in Thurrock Borough Council v Secretary of State for the Environment]:
On behalf of the claimant Mr Wald challenged these conclusions on two grounds: procedural fairness and perversity. Although the grounds of appeal in the claimant's skeleton argument contended that the Inspector's reasoning was inadequate, Mr Wald did not pursue a separate reasons challenge in his oral submissions before me. In my judgment, he was right not to do so. Whatever may be said as to the reasonableness/fairness of the Inspector's conclusions about the invoices, his reasoning, far from being inadequate, is both comprehensive, detailed and wholly intelligible.
Dealing firstly with the perversity challenge, Mr Wald submitted that it was unreasonable for the Inspector to approach the matter upon the basis that only 2 of the 14 invoices submitted were invoices by Scanlon Autos for repair work carried out to cars. They were: an invoice in 1997 to supply and fit a fan belt and a new battery to a Mitsubishi and an invoice in 1999 to carry out a full service and replace front pads on a VW Golf.
Mr Wald produced an analysis of the invoices and submitted that the other invoices -- for example: for a supply of exhausts to Scanlon Autos, for a supply of spark plugs and of tyres -- were so closely related to a car repair use that, when taken together with the claimant's evidence that the premises were being used for car repairs, the only reasonable inference that could be drawn was that the other invoices related to those car repair activities.
He asked, rhetorically, why else would Scanlon Autos have received exhausts or tyres?
That submission might have had some force if there had been cogent evidence, for example from Mr Scanlon himself, that car repairs were indeed being carried on at the premises between 1994 and 2004. But, as the Inspector pointed out in paragraphs 26 and 27 of the decision letter, the claimant's evidence in this respect was far from satisfactory:
Moreover [see paragraph 34 of the decision letter] the evidence of the claimant's witnesses had to be placed in the context of the contradictory evidence of the third parties, Ms O'Connor and Mr Sayers.
I accept that the Inspector might have formed the view that the proper inference to be drawn from the other invoices, even though they did not specifically refer to car repairs being carried out by Scanlon Autos, was that Scanlon Autos was in fact engaged in car repair activity at the premises; for example, fitting the tyres or the exhausts referred to in the invoices relating to those items.
That is not the appropriate test in an appeal under section 289. To make good the claimant's perversity challenge Mr Wald has to establish not merely that such a conclusion would have been open to the Inspector, but that it was the only conclusion reasonably open to the Inspector on the totality of the evidence.
That is a very high hurdle and, in my judgment, the claimant does not begin to surmount it.
The Inspector drew the threads together in paragraph 35 of the decision letter. Whilst he might have reached different conclusions on the totality of the evidence (including the invoices), it cannot be said that the conclusions set out in paragraph 35 were not open to him upon the evidence.
The Inspector did not disregard the remaining 12 invoices; he carefully considered all of the 14 invoices, and Mr Waldld did not submit that there was any factual inaccuracy in the Inspector's analysis of their contents in paragraphs 35 and 31. Rather he criticised the conclusions/reached/inferences drawn by the Inspector from the documents so described.
The conclusions to be drawn from those documents were pre-eminently matters of judgment for the Inspector in light of all the remaining evidence.
It will be noted that all but three of the invoices addressed to "Scanlon Autos" were dated between October 1994 and November 1999. In view of the evidence of Mr Teahan (that Mr Tom Scanlon had left Hassop Road 18 months before Mr Teahan had begun his own business in 1994, see paragraph 15 of the decision letter), the Inspector was entitled to observe that there was a "... further layer of doubt about the principal case being advanced by the appellant."
In addition, in the light of the evidence given by Mr O'Reilly himself as to the fact that the premises had been unused for a period before he purchased them in 2000, the Inspector was entitled to observe that the dating of the 11/11/99 invoice, "... was itself problematic."
In the light of all this evidence the Inspector's conclusion, that the claimant did not discharge the onus of demonstrating that there had been a continuous use of the premises for car repairs for a 10 year period between February 1994 and February 2004, cannot sensibly be described as perverse.
The claimant's principal complaint was that the Inspector had acted unfairly in concluding that the invoices did not demonstrate such a continuous use for 10 years.
In a witness statement, Mr Selwyn, the claimant's solicitor, said:
The grounds of appeal contend that the Inspector's analysis of the invoices was "an unexpected point," and that if the Inspector proposed to rely on his analysis of the invoices, the claimant should, in fairness, have been given an opportunity to deal with the Inspector's concerns.
In support of this submission, Mr Waldld relied upon the well known case of Fairmount Investments Limited v Secretary of State for the Environmen t [1976] 1 WLR 1255.
In that case the issue before the Inspector was whether certain properties should be demolished as unfit for human habitation or whether they were capable of being refurbished.
The acquiring authority did not suggest that settlement was continuing or that the foundations of the properties were so defective as to make rehabilitation unviable. Indeed, the foundations of the properties were not mentioned at the inquiry.
However, on his site visit, the Inspector noticed that a "tell-tale" had been sheared through. From this indication he concluded that the foundations were inadequate and, because of that and other defects, that refurbishment was not a financially viable proposition.
The Secretary of State accepted the Inspector's recommendation and confirmed the Compulsory Purchase Order. The Court of Appeal quashed the Order and the Secretary of State appealed to the House of Lords.
In his speech on page 1265, Lord Russell of Killowen said this:
Did the claimant in the present case have a "fair crack of the whip?" In my view, there can be no doubt that he did.
Unlike the foundations in the Fairmount case, which had not been mentioned at all at the inquiry, the invoices were not merely mentioned at the inquiry but specifically introduced into evidence by the claimant as part of his ground (d) appeal.
The claimant was professionally represented by counsel, instructed by solicitors and by a planning consultant. He would thus have been made well aware that, in the case of a ground (d) appeal, the onus was upon him to establish his case on the balance of probability.
He had the opportunity to say whatever he wished about the invoices and what inferences, if any, should or should not be drawn from them.
In Fairmount, Viscount Dilhorne said this at page 1260-E:
Although the invoices formed no part of the second defendant's case at the inquiry, the claimant's complaint is that the Inspector declined to attach great weight to a factor which had formed part of the claimant's own case.
The invoices were not mentioned in Mr O'Reilly's witness statement presented at the inquiry. As noted in the decision letter, Mr O'Reilly supplemented that witness statement by oral evidence. The Inspector says, in his witness statement, that:
In the decision letter the Inspector fairly recorded the submission, made on behalf of the claimant, that:
See paragraph 18.
It could reasonably have been anticipated that the Inspector would not simply take that submission at face value but would conscientiously analyse the evidence and consider it in some detail.
Having carried out that exercise the Inspector did not accept that the invoices provided such "solid evidence", for the reasons he set out in paragraphs 30 to 32 of the decision letter.
I do not accept that there was any unfairness in that process. The Inspector had to consider the evidence as a whole, he was not required to canvass what would necessarily have been his provisional views about the invoices with the claimant.
Whether or not an appellant has been given a fair crack of the whip will depend very much on the particular circumstances of the case. (See Fairmount).
In the present case, there was no suggestion before the Inspector that the invoices submitted were merely examples of a much larger number of documents. The position might have been different if, for example, Mr O'Reilly had made it clear that, in order to reduce the amount of documentation, he was producing only a small representative sample of invoices and that more invoices were available if required.
If the Inspector had then, without raising the issue at the inquiry, commented adversely on the limited number of the invoices, saying that such a limited number did not suggest any significant degree of commercial use over a 10-year period, the claimant could legitimately have complained that such a comment was unfair, but that was not the case here.
Although further invoices have now been produced in these proceedings, no explanation has been given as to why they were not produced before the Inspector. It is not even clear whether they were in fact available to be produced during the course of the inquiry, or whether they have been subsequently discovered by the claimant who, with the benefit of hindsight, no doubt feels that he might have said more about this aspect of his case.
The claimant emphasises the second defendant's acceptance of the proposition in cross-examination that, if they related to the appeal premises, the invoices were "compelling evidence" of the use of the premises for car repairs during the 10-year period.
However it is important to bear in mind that Ms Freeman was not claiming to have any direct knowledge herself of the use of the garages between 1994 to 2004; she was merely setting out the inference that she would have drawn from the invoices.
The Inspector was not bound to accept her view as to what conclusions should be drawn from the invoices if they related to the site. He had to exercise his own judgment (see the speech of Lord Russell at page 1265-F of Fairmount). Moreover the Inspector had to form that judgment in the light of the totality of the evidence, including the evidence subsequently given by the third parties. An enforcement notice appeal is not to be equated with private litigation between two individuals. (See, again, the speech of Lord Russell).
The position might have been different if, for example, Mr Scanlon of Scanlon Autos had given evidence. It might then have been unfair not to have asked him, for example, "What does the invoice in respect of the tyre relate to: were you buying the tyres for a car that you were proposing to sell or were you buying the tyres for a car that you were repairing?"
Unfairness might have arisen, if no questions had been put to Mr Scanlon, because he would have been able to provide an answer which might have resolved the uncertainty.
However, that was not the case with the witnesses who were called on behalf of the claimant. Apart from Mr O'Reilly himself, none of the other three witnesses professed any knowledge of the invoices. Mr O'Reilly merely said that he had found the invoices when he acquired the property in 2000.
He did not claim to have any greater knowledge, or understanding, of them. Had he been asked about the invoices in any greater detail, he would simply have been inviting the Inspector to draw certain inferences from the invoices.
The Inspector well understood what inference the claimant was asking him to draw from the invoices. Namely, that they were "solid evidence demonstrating beyond reasonable doubt a continuing commercial use of the appeal site ..."
Although he understood that this was the claimant's case, the Inspector, having analysed the documents, did not accept it.
The real complaint, as it emerged during the course of oral submissions, is not that any of the claimant's witnesses could sensibly have been asked any questions (for example, "What were the exhausts used for?") about the invoices, but that if the Inspector had raised his doubts, more invoices could have been produced to resolve those doubts.
The difficulty with that submission is that the claimant, who was professionally represented, had every opportunity to place as much or as little invoice evidence as he thought fit before the Inspector at the inquiry. There was nothing to alert the Inspector to the possibility that if he asked Mr O'Reilly questions about the invoices then Mr O'Reilly might have been able to produce further relevant invoices.
If the further invoices were relevant, and were available to be produced, the question has to be asked: why was that not done? There has been no satisfactory answer to that question during the course of this appeal.
For these reasons, and I am satisfied that there was no unfairness in the course adopted by the Inspector. It could and should reasonably have been anticipated that the Inspector would wish to consider the invoice evidence very carefully. For example: what was the import of the invoice in 1994 for stationery, did that suggest that any car repair use was being carried on at the premises? And what was the import of the invoice addressed to Scanlon Autos, on 11th November 1999, when, on the evidence of both Mr Teahan and Mr O'Reilly, Mr Scanlon had long since departed from the premises?
When putting the invoices forward, as part of his case, the claimant had the opportunity to say whatever he wished about them and to make submissions as to what inferences should be drawn from them.
Having considered the submission made on behalf of the clamaint, the Inspector did not accept it. I can see no unfairness in that. For these reasons, this appeal must be dismissed.
Thank you.
MR AUBURN: My Lord, I have an application for costs.
MR JUSTICE SULLIVAN: Yes. I have received a breakdown this morning. Have you had any discussion with Mr Waldld about this?
MR WALD: My Lord, yes, the principle is not contested, there is one figure that was contested and that was the 7 hours at the top of the second page, "Work Done on Documents." The file was prepared by the claimant in these proceedings and the time estimate for your Lordship was 45 minutes for the reading; so it is suggested that that be halved.
Other than that, there is no dispute on principle.
MR JUSTICE SULLIVAN: What would that knock it down to, if that was done?
MR WALD: £2,800, roughly speaking.
MR JUSTICE SULLIVAN: That is the area of contention, in so far as there is a contention about that; shall I just ask Mr Auburn what he wants to say about that?
MR AUBURN: If I can explain to you what that comprises. You will see that all the other figures are very moderate indeed. The work done on documents comprises the large part of my instructing solicitor's preparation of the case from start to finish, including preparation of the measured advice to the paying inspectorate, looking at all the evidence and advising whether it should be defended.
There was a witness statement from the Inspector and there had been liaison with the Inspector on that; the witness statement was useful in deciding the case.
There was a claim of a brief level of justice, a procedural claim, so we would rather get a witness statement and it was useful on the example points whether the documents were merely examples or not; you needed to know that to decide the case.
The work done on documents also includes the writing of instructions to counsel and there would have been other work in relation to the bundles, setting out the various people to liaise with in the proceedings and sending it out. That is where the 7 hours comes from; it is a large part of the preparation of the case although it is under its head.
The final point I will say is that the overall figure, I would submit, is very low and indeed it is about a third of the appellant's costs, on the understanding that it is often cheaper to be defending, rather than bringing an appeal, it is still substantially smaller.
MR JUSTICE SULLIVAN: I had not in fact seen the claim summary costs, I think. I do not know whether there are any particular turns on that? No.
I think Mr Auburn, doing the best I can on these figures, I do not think either of you can complain too much if we took a nice round figure of £3,000.
The appeal is dismissed, the claimant is to pay the first defendant's costs and those costs are claim summary in the sum of £3,000. Thank you both.