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J U D G M E N T
(As approved by the Court)
1.      MR JUSTICE MITTING: Mr MacLeod challenges the decision of an inspector appointed by the Secretary of State to refuse to allow his appeal against the decision of the local planning authority, Bradford Metropolitan District Council, to grant permission for the erection of a dwelling house abutting a substantial house at the end of a terrace in the village of Haworth on the outskirts of Bradford. He does is so on three grounds, correctly confining himself to the grounds upon which an inspector’s decision can be challenged under section 288 of the Town and Country Planning Act 1990, namely illegality, irrationality and procedural impropriety.
2.      The development for which Mr MacLeod sought permission was the erection of a two-bedroom dwelling at the end of a terrace in
3.      Mr MacLeod appealed to the inspector, who considered the appeal on the papers and made a site visit himself to the site. He rejected the appeal on the following grounds:
“3. I agree with the Council that the proposal is innovative and well related to its context in terms of scale, bulk and massing. Furthermore, I believe the loss of the mature evergreen tree would be acceptable as part of a replanting scheme for the site. However, these material considerations are far outweighed by the unacceptable appearance of the proposal in respect of the shallow pitch roof and size, proportion and distribution of window openings.”
4.      He went on to conclude in paragraph 4 that:
“… the roof and windows would be very discordant with the traditional appearance of the rest of the terrace, to the extent that they would be harmful to the local distinctiveness of the area. Accordingly, the proposal would be contrary to Policies UR3 and D1 of the replacement Bradford Unitary Development Plan (UDP), adopted 2005.”
5.      That plan had not been adopted at the time the planning authority considered the original application, but was adopted at the time of the appeal and there is no challenge to the inspector’s conclusion that he was required to take it into account. Policy D1 provided that:
“All development proposals should make a positive contribution to the environment and quality of life through high quality design, layout and landscaping. In particular they should:
 (1) be well related to the existing character of the locality in terms of design, scale, massing, height and materials; …
 (5) relate to existing natural and built features, landmarks or views that contribute to the area; …”
6.      Policy UR3 provides:
“Development will be permitted provided that it does not have an adverse effect on:
the surrounding environment;Â …”
7.      The inspector went on to conclude in paragraph 6 that, although he had considered materials which supported the grant of permission and the unsympathetic recent developments which had occurred in the vicinity, nevertheless:
“… these do not outweigh my assessment that the proposal would cause serious harm to the character of the area.”
8.      I turn now to the grounds of challenge.
9.      The first in a planning context is surprising. Mr MacLeod contends that the inspector’s decision was void for illegality, because it was in violation of Articles 4 and 6 of the European Convention on Human Rights and Fundamental Freedoms. He did not develop the argument under Article 6. He does not, as I understand it, challenge the lawfulness and compliance with Article 6 of the planning appeals procedure; but he did rely on Article 4. Article 4 provides that:
“No one shall be held in slavery or servitude.”
10.    Unsurprisingly in modern times, there have been few reported decisions concerning slavery or servitude in
11.    The basis for the claim of illegality is that Mr MacLeod, on limited means, would have been able to provide for a dwelling that was self-sufficient in heat and lighting, and so relieve himself of the need to pay statutory undertakers for the cost of both. Preventing him from doing that, he contends, puts him in a condition of slavery or servitude.
12.    The only working definitions of slavery and servitude that I can find are, as to slavery, in the 1926 Slavery Convention, which defines it as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”, and of servitude in Van Droogenbroeck v Belgium (1982) 4 EHRR 443, which identified the three elements of servitude as an obligation to provide services, to live on another’s property, compounded by the impossibility of changing either condition. On no conceivable view could the refusal to permit Mr MacLeod to erect a dwelling which would free him of the need to pay for statutory services amount to slavery or servitude. That ground is plainly unarguable.
13.    The second ground is irrationality. Mr MacLeod contends that the inspector’s decision contradicts advice given to him by officers of the local planning authority. I have already referred to the alteration in the pitch of the roof which gives rise to that assertion. The advice which Mr MacLeod received was to alter the direction in which the roof sloped rather than as far as my eye can tell, the angle of the slope itself. What the inspector decided was that it was the shallow pitch of the roof which was objectionable, not the direction in which it sloped. That was a matter of planning judgment. It was not made irrational by reason of pre-existing advice by local planning officers to alter the direction in which the roof sloped.
14.    Thirdly, Mr MacLeod challenges the inspector’s decision on the basis of procedural impropriety. He acknowledges, correctly, that his appeal was refused essentially on the ground of the inspector’s judgment about the appearance of the planned building. Mr MacLeod is himself well qualified in design, having studied it at university, and claims that he is far better qualified than is the inspector to make a judgment about such matters. He goes so far to say that the inspector was in fact unfit to give a professional judgment on the design features of the proposed development.
15.    It is neither appropriate nor justifiable for me to undertake any analysis of the inspector’s qualifications. I note that they include a BSc and an MSc and a Diploma of Town Planning and other qualifications. They do not appear to include a design qualification as such. But there is no requirement in the principal Act or, I am told, in any regulation that an inspector should have any particular qualification so as to permit him to make a planning judgment of that nature. An inspector, if qualified to sit as an inspector — and it is not suggested that this inspector was unqualified — is fully qualified, as a matter of law, to make every necessary judgment on planning merits. Appearance is a question of planning merits. It is for the inspector and not the court to make, and his decision is not open to challenge on the ground of procedural impropriety because he may not have any particular qualification in design.
16.    Accordingly, for the reasons given, none of the three grounds upon which the inspector’s decision is challenged give rise to a viable ground of challenge and I reject this appeal.
17.    MR MacLEOD: Thank you.
18.    MR JUSTICE MITTING: Mr MacLeod, I think there is now a rather unpleasant sting in the tail.
19.    MR BULEY: My Lord, before I come to any unpleasant sting. There is one minor point in the judgment. Can I mention it. Your Lordship said — and I quite understand why because I think the inspector thought the same thing — that the relevant UDP was adopted after the local authority’s decision. I do not think that is actually right. It was certainly adopted after Mr MacLeod made his application, but it was adopted in October 2005. So there it is. I mention it.
20.    MR JUSTICE MITTING: That is not a relevant error.
21.    MR BULEY: Very well, I say no more about it. I thought it worth mentioning.
22.    As your Lordship correctly anticipated, there is an application for costs.
23.    MR JUSTICE MITTING: Have you served the schedule on Mr MacLeod?
24.    MR BULEY: My Lord, we have. Does your Lordship have a copy of it?
25.    MR JUSTICE MITTING: Yes, I do.
26.    MR BULEY: I can say immediately that it is in a somewhat lesser figure than is actually set out in the schedule, for reasons which were canvassed in a letter, which I do not know —
27.    MR JUSTICE MITTING: The appeal has taken far less long than your figures assume.
28.    MR BULEY: Exactly right, and indeed I think certainly the figure given for me assumed — I think my clerks must have assumed that I was doing preparation appropriate to a two-day case. So, my Lord, can I just double-check exactly how they come down from my instructing solicitor.
29.    From my instructing solicitor, my Lord, it would have been instead of £1,600 it would be two hours at court which is only £320, that is attendance at hearing for Miss Latham. For me, my Lord, I did — it is simply instead of £1,440 simply £320, my Lord, which is effectively two hours at court and two hours in preparation, which was largely paginated that bundle.
30.    MR JUSTICE MITTING: Forgive me, your own fee as now claimed is what?
31.    MR BULEY: Sorry, my Lord. The £360 which is already there, that remains, the £1,440 goes and is replaced with a figure of £320.
32.    MR JUSTICE MITTING: So your total fee claimed is £680?
33.    MR BULEY: For me, in respect of my fee, my Lord, yes, that is right.
34.    MR JUSTICE MITTING: Now the preparation costs of those who instruct you —
35.    MR BULEY: My Lord, yes.
36.    MR JUSTICE MITTING: — let us look at the number of hours.
37.    MR BULEY: Yes. (Pause)
38.    MR JUSTICE MITTING: Preparation time appears to be 24.3 hours.
39.    MR BULEY: My Lord, yes. Which seems a lot.
40.    MR JUSTICE MITTING: Which seems, not merely a lot, but significantly too much. This was not a complicated appeal.
41.    MR BULEY: My Lord, I well appreciate that. Your Lordship said I think about 24 hours. I well appreciate that is a lot. Can in mention one thing, my Lord, which is in partial explanation of that. Mr Drewett, whose name appears there, has been very ill for the last two weeks which means that Lesley Latham had to pick up the case.
42.    MR JUSTICE MITTING: So you had to do the work twice.
43.    MR BULEY: There was an element of overlap there. I understand my Lord, I do not have the details, that there has been a fair bit of correspondence toing and froing. So that is in partial justification.
44.    MR JUSTICE MITTING: “Attendances on opponents” is 4½ hours.
45.    MR BULEY: There it is. I can simply ask your Lordship to take a view, I think. Can I suggest that my Lord — perhaps if your Lordship were to, in respect of solicitors’ preparation time, award, say, 12 hours instead of 24, that would be about right, my Lord. But I am in your Lordship’s hands.
46.    MR JUSTICE MITTING: Thank you.
47.    I am afraid that litigation is an expensive business, even against the Treasury Solicitor who charges lower rates that commercial firms. The ordinary rule of costs is that the loser is required to pay. I am required to assess the amount of costs in a short case like this. As has already been conceded, the bill that was sent to you is significantly too high and I propose to reduce it. Is there anything you want to say either about the principle or the amounts?
48.    MR MacLEOD: No, nothing at all, thank you.
49.    MR JUSTICE MITTING: Mr MacLeod, having lost his appeal, must inevitably pay the defendant’s costs of resisting it. The bill which I have is, as Mr Buley realistically concedes, far too high for what is a very simple case.
50.    In my judgment, the preparation time, including all correspondence, cannot legitimately exceed 10 hours at the fee earner’s rate of £160, £1,600. Mr Buley reduces his own claimed fee to a total of £680, a figure which is on the modest side of reasonable. I assess costs in £1,600 plus £680, plus (if it is appropriate) the VAT.
51.    MR BULEY: That is £2,280. I am very grateful. I think VAT is not appropriate. No, that is right, my Lord.
52.    MR JUSTICE MITTING:  I assess costs therefore in the sum of £2,280 which I order Mr MacLeod to pay to the defendant.
53.    Mr MacLeod, I am sorry you have had a disappointing excursion to
54.    MR MacLEOD: Thank you.
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