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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Siddiqui, R (on the application of) v Secretary of State for Communities & Local Government & Anor [2006] EWHC 2076 (Admin) (24 July 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/2076.html Cite as: [2006] EWHC 2076 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		24 July 2006

1. MR JUSTICE BURTON: This has been the day listed for hearing of the planning appeal by Mr Kamal Ahmed Siddiqui ("the claimant") in respect of the refusal by an inspector, appointed by what was then the First Secretary of State, Mrs O'Rourke, in December 2004 of a planning application made with regard to Mr Siddiqui's property at 1 Westmoreland Avenue, Hornchurch, Essex.
2. The claim form was filed on 11 January 2005, well in time. But there has been a series of continued applications for adjournments made by the claimant. He made an application on 8 July 2005 to adjourn the hearing, which was then listed for 20 July, on grounds of illness. He was said to be unfit due to stress and depression for three weeks. That application was consented to and the case was listed again for 1 November 2005. On 21 October 2005, he applied to adjourn that hearing on grounds of injury, apparently arising from his accidentally falling down the stairs. No medical certificate was provided in this regard. Nevertheless, once again, the adjournment was acceded to by the Treasury Solicitor.
3. It was then listed for a third time for 1 March 2006, and an application to adjourn was made on 27 January on the basis of unspecified severe sickness, again with no medical certificate provided. Once again, the adjournment was granted. In each of these cases, I have no doubt, the fact that the claimant was unrepresented weighed heavily in his favour. But the case was then listed for a fourth time for 28 March 2006. This again was adjourned after another application by the claimant on 10 March 2006, said to be due to back pain, for which he produced a medical certificate.
4. The case was then listed for today (24 July) for the fifth occasion. On 28 June, the claimant informed the Administrative Court that he would be engaging counsel to act on his behalf:

"I wish to inform you that I am arranging a barrister to represent the case in the High Court on my behalf. He will prepare certain documents and legal replies in this case and there is a need of time, as a highway road traffic expert will observe the area and give a full report."

5. I pause there to say that, as will become apparent when I consider the merits of this case, it is difficult to see that a highway road traffic expert's evidence would have been admissible on this appeal, given of course that an appeal is intended to be dedicated towards showing that there has been an error of law by the inspector, rather than in any way amounting to a re-hearing of the case. The refusal of a planning application does not prevent the making of a fresh one by the claimant, based upon fresh and more satisfactory, from his point of view, road traffic expert evidence. But the existence of such evidence would be unlikely to found an appeal. But at any rate, this is what Mr Siddiqui was saying. He also said:

"Time is also needed as witnesses will appear in the court, as well as photographs including a former councillor and leader of the Council."

6. It is difficult, if not impossible, to see what the latter features would add to the appeal. So far as the reference to witnesses appearing in the court is concerned, I can only think that that is a reference to the fact that there is a very short document produced by the claimant which relates to what he says occurred on the site visit by the inspector on 20 September 2004, which is signed by seven people. It may be that that is a reference to the fact that he wished to call one or more of those seven. Plainly, it is likely that, had there been such a wish, a better witness statement would have been required from one or more of those witnesses before the slightly unusual course would have been taken of allowing oral evidence on an appeal of this kind, but it plainly would not have been impossible to foresee that possibility, and on 28 June, had the court been told that witnesses were going to be sought to be called, there would have been no difficulty, subject to the court permitting them, in time being allowed for such witnesses.
7. The claimant said:

"For review of this case due to breach of planning rule and institutional racism, violation of human rights and civil liberties I need 4 hours hearing."

8. Notice having been given that he was arranging a barrister and that he would require further time, in fact this case has been listed today, on 24 July, leaving up to a day free for the hearing of the case, which is more than sufficient to deal with all matters which would have been properly brought before the court. The case then listed, as it is, for the fifth time, has been called on today.
9. An application for an adjournment of this hearing was sought ten days ago on 14 July 2006, and this has been the first time that an application has been sought and not granted. The letter said:

"I wish to inform you that I am representing the case in person myself, and I have appointed no barrister at all" [no explanation is given as to the change of mind as to whether he was appointing a barrister]. Could you please note that I suffered an accident (Road) causing me injuries" [no indication was given as to when that road accident occurred]. Therefore I am unfit to appear and represent the case. Please adjourn the hearing on 24/07/06 due to the exceptional humanitarian circumstances. Please find doctor's medical certificate enclosed as evidence."

10. The medical certificate is dated 13 July 2006 from a Dr Haider. It reads:

"you should refrain from work for four weeks ... accidental injury to right shoulder and leg."

11. The application was refused by the Administrative Court Registrar, but could be renewed today. Today, Mr Moffett of counsel has appeared, instructed by the Treasury Solicitor, but there has been no attendance by the claimant whatever and no renewal of the application for an adjournment. I am entirely satisfied that I should proceed with this case on its merits today. I do not propose to dismiss it on the non-attendance of the claimant. But I have before me all the documents which would have been considered by me had Mr Siddiqui been here, and, given that he intended to appear himself and not through a barrister, I am sure that there would have been nothing new, except no doubt by way of oral emphasis, to be added to that which is in the papers before me and which, in any event, I have fully pre-read before this hearing, both because I, in any event, needed to be prepared for the hearing and as a result of the skeleton argument served by Mr Moffett on behalf of the defendant.
12. There is, in my judgment, no ground for a further adjournment. First, although the claimant is not here, I can consider the issues in his absence, as I have indicated. Had he chosen to instruct a barrister, as he did say he was doing on 28 June, his absence would, in any event, not have been material because the barrister would have put the case for him. There is no explanation as to why there is no barrister here.
13. Secondly, although of course I have no reason to doubt the medical certificate indicating that he should not attend work because of some accidental injury as described, there is no evidence before me suggesting that Mr Siddiqui could not have attended court today had he so chosen, and explained more fully, if he wished to, his case to me. In any event, he has not come to court, even to ask for an adjournment, nor has he asked anyone else -- neither his wife nor any of those listed on the statement to which I have referred -- to attend on his behalf to ask for an adjournment and to explain his absence. I have already indicated that there is no sign as to when this road accident, said to have caused the existing injuries, occurred.
14. The preparation that was referred to on 28 June could well have occurred without difficulty. Certainly the witnesses referred to could have attended and given evidence, again even in the absence of the claimant, insofar as their evidence was admissible, and the case could well have been prepared in time. I bear in mind that this is a very old case, that there have been four previous adjournments of the case and it is now time that it be heard.
15. This relates to a planning matter and it is well-established that planning matters are required to be dealt with speedily in order not to leave uncertainty in the minds of both the public and those responsible for planning. In any event, as I have made clear, although of course determination of this appeal is important from both sides' point of view, if this appeal is to be dismissed, nothing can prevent the claimant from bringing forward another application for planning consent on a different, more informed, more fully evidenced or even, if he wants to take that risk, on the same basis.
16. I turn then to consider the grounds on which the claimant seeks to challenge the decision of the inspector.
17. The inspector's report is a relatively lengthy one of 39 paragraphs, and it is perhaps significant that, in certain respects, the inspector found in favour of the claimant. The local Council, together with a number of objectors, have put forward opposition by reference to the alleged impact of the proposed use of Mr Siddiqui's residence as a pre-school, post-school and holiday child care centre or play centre on the residential character of the area and on the living conditions of adjoining residents in terms of the activity generated and the potential for noise and disturbance.
18. In a fully argued set of paragraphs (10 to 17), the inspector rejected those grounds:

"17. I am satisfied that in terms of my first issue the proposed use as an out of school/holiday club would not so materially adversely affect the residential character of the area or the living conditions of neighbours as to render the use unacceptable in this location. Accordingly I consider that it would comply with a), b), c) and d) of policy HSG8."

19. What she found then in the balance of her judgment was done by weighing up the ground of opposition which she did consider convincingly established, namely what she described as "implications for highway safety", against what she calls "the need for the development". In relation to those matters, in paragraphs 18 to 28 of her report, she explained and gave grounds why she concluded (para 28):

"... on my second issue that having regard to the proposed on-site parking arrangements, I consider that the use would result in unacceptable traffic hazards on the corner of Westmoreland Avenue and Squirrels Heath Lane, contrary to the objectives of UDP policy TRN2 and Government guidance."

20. Weighed against that were her conclusions in relation to the need for the development. I shall return in more detail to this when I consider one of Mr Siddiqui's grounds, but her conclusion (para 35) is that:

"... there is no real evidence before me to show whether there is a deficit or surplus of such provision across the Borough. Thus in terms of policy HSG3 I cannot tell whether the proposed use would serve the specific needs of the community having no firm factual evidence on what those 'specific needs' might be, nor the community whose needs should be being met. Moreover I have no reliable information on current provision, including the capacity of existing facilities, whether they have waiting lists, opening hours, etc, to assess whether any specific needs are already being met."

36. In addition to these uncertainties, I have nothing on which to base any decision as to whether it is essential for the proposed alternative use to be situated in a residential area ... However policy HSG3(b) ... requires that there are no other suitable locations. I note the agent's contention that despite an extensive search by his client, no alternative site has been found. But without any information on when and where this search took place, what other properties were looked at and why they were found unsuitable, it is difficult to conclude that there is no other more suitable location for the proposed use."

21. Then in paragraph 37, by way of her overall conclusion:

"The general policy presumption in the UDP to protect against the loss of housing is for good reason, though the policy does allow exceptions. I accept that there is a general demand throughout the country for more child care facilities that have flexible hours and are well located to help parents, whether working or not, and there may well be particular needs in Havering. Despite the expressions of local support for the proposed use (as indicated in the petition), there remains a lack of firm evidence on the particular need for this use in this location."

22. And her overall conclusion is (para 37):

"There are serious planning objections to the proposed use and I am not persuaded that the particular circumstances of the appeal proposal are of sufficient weight to overcome them, contrary to the objections of local and national policy."

23. The grounds put forward by the appellant are four, and the one that falls into a different category from the others relates to his allegations about the site visit. The site visit took place, as I have indicated, on 20 September 2004, and the appeal in this regard says as follows:

The inspector did not follow the planning appeals procedure. The purpose of the site visit is not to discuss the merits of the appeal or to listen to arguments from any of the parties, but the inspector violated this rule and was continuously talking and listening to the arguments and merits with the wider white community whilst completely isolating and discarding the appellant."

24. This is an allegation, namely one of misconduct or bias by the quasi-judicial officer in charge of making a decision, which is easy to make, difficult to defend, and indeed for those very reasons, difficult for an appeal court, where such a matter is alleged, to resolve satisfactorily. Mr Moffett of counsel has drawn my attention to authority in the case of R v Reigate Justices, ex parte Curl [1991] COD 1-76 at page 66, a decision of the Divisional Court per Farquharson LJ and Alliott J on June 12 1990, where on an application for certiorari, as it then was, there was a dispute between the applicant and his counsel, and the magistrates, their clerk and the prosecutor as to precisely what had been said and/or occurred in the court. In the very short headnote in ex parte Curl, the Divisional Court is recorded as saying that there was a clear conflict as to what had taken place: where there was such a conflict, the court had to accept the evidence which stood against the person with the onus of showing that certiorari should lie. That does not seem to me to be a necessarily helpful approach, although of course it is essential to remember where the onus lies in a case such as this which is, certainly in some areas, becoming more frequent. I prefer to refer to the well established practice in the Employment Appeal Tribunal, where the practice is to obtain comments on an allegation of judicial bias or misconduct from the Chairman and lay members presiding over an Employment Tribunal hearing, being detailed comments on an affidavit which must first be served giving full allegations by way of full particularity of the misconduct and bias alleged. There is then provision, if the respondent to the appeal so wishes, for the respondent to put in affidavits, whether of counsel or solicitors or a party, setting out their account of what occurred. The rival affidavits and the comments of the Chairman and members can then be assessed, insofar as they can be satisfactorily, by the Employment Appeal Tribunal. There is the possibility of cross-examination, but only of the parties, never of the Chairman and members.
25. Cross-examination is very rarely of any use, and I have recently delivered judgments, sitting as a judge of the Employment Appeal Tribunal, in cases Ansar No 1 and Ansar No 2 (UKEAT/0152/06 and 0609/05) in which I made it clear that, although the duty of the Employment Appeal Tribunal was carefully to consider and rule on allegations of bias and misconduct, this could usually be done on the papers after all the responses were in, and rarely benefited, if ever, from cross-examination, save where a specific carefully analysed and particularised event was in real issue between the parties, and the Tribunal could then resolve that as a one-off issue of fact.
26. In this case, I have no doubt at all that I am in a position to reject the allegations made by the claimant, not simply by reference to Curl, that the onus of proof is nowhere near established, but also by reference to the practice in the Employment Appeal Tribunal, to which I have referred. Although the appellant has provided an affidavit (or in this case a witness statement) with regard to what he says occurred on the site visit, the account he gives is extremely general and unparticularised. He produces the statement in support, to which I have referred, by seven supporters of his who attended the site visit, and after referring to alleged conduct of a third party in a very generalised way, the statement then says:

"The inspector completely violated all the rules of not discussing the merits of the appeal and was constantly listening to the arguments and talking to the wider white community. She showed partiality and keen interest with objectors (wider white community). She completely ignored and isolated all the BME" [which is used in this statement as a short hand but is plainly referring, in a rather unsuccessful way, presumably to black and minority ethnic people] "who were present with us and all doors are closed to the BME due to racism only."

That is a wholly unsatisfactory and unparticularised group and generic statement, which gives this court nothing to get its teeth into.

27. On the other hand, the affidavit filed by the inspector herself is extremely clear. Not only does it have the merit of being a full and particularised account, over some 33 paragraphs, in which she explains in a comprehensive and logical way what occurred, and insofar as it is possible for her to rebut the generalised assertions made against her, in my judgment she satisfactorily does so: but she further assists by producing as an exhibit to this statement what she calls her "speaking note", which she had pre-prepared for the hearing knowing that there would be a large number of people present, and wanting to make sure that she complied with the ordinary requirements insofar as it was judicially possible to do so. I say that because of course she will know, and she does know, that she is not to discuss the merits of the case, but simply assimilate facts: not only facts she sees, but inevitably when other people are present, facts that are stated or inferred by those who are present; but that she also faced the inevitability that with the large number of people present, there would be opinions expressed which she would simply have to sift out or ignore, and I am satisfied that that is what she did.
28. There is no substance, in my judgment, in the allegation that there was any improper conduct or any conduct leading to any doubt about the validity of the decision subsequent to the site visit in what occurred at that site visit.
29. The second ground which is relied upon relates to the traffic aspect. It is plainly of considerable irritation -- and one understands that -- to the claimant that he feels that he was making and wished to make available his house to others with children, and thereby provide a service to them, on a substantially uneconomic basis so far as he was concerned, and that he felt he had done all that he could do in terms of making provision for the inevitable traffic problems that would arise in relation to the arrival and departure of children at his house, which was near the corner of a residential street. He felt that he had succeeded in resolving any such problems by providing sufficient parking space, both for staff working at the club and a mini-bus (or mini-buses) which would be supplied to bring a large number of the children from school and/or take them to school, and in the varied arrangements for those mini-buses. He was no doubt rendered the more confident by the fact that he had no objection, it seems, from the Council's Head of Transport.
30. His ground of complaint is that the authority and the inspector completely ignored the fact that the Head of Transport and Engineering raised no objection to the proposed development. That, as a matter of fact, is incorrect because the inspector specifically recites in paragraph 24 of her decision that very fact:

"The Head of Transport and Engineering raised no objections to the proposed development."

31. However, on a fully reasoned basis, the inspector, as she was entitled and indeed obliged to do, reached her own decision, to which I have referred, about the problems both in respect of on-site and off-site parking and/or dropping off. It may well be that, on a further application, if that is what Mr Siddiqui chooses to do, he will either have, with the benefit perhaps of the kind of expert to whom he referred in the letter of 28 June or otherwise, better proposals himself -- proposals which may persuade another inspector, even if they did not persuade this inspector - or at any rate are sufficient to persuade another inspector to grant planning consent subject to specific conditions in relation to parking and/or access. But it is quite plain that this inspector cannot be concluded either to have ignored the fact, which she specifically recites, that the Head of Transport had no objections, which was the only specific complaint that is sought to be made, or, more generally, by reference to the sweep-up ground five in this application, reached a decision to which no inspector could come. The reason she gives for refusing the permission on the parking/traffic grounds are fully explained, fully logical and cannot, in my judgment, be said to be Wednesbury unreasonable.
32. The third specific ground of attack by the claimant is put as follows:

"The Authority and the inspector did not consider the factor that there would be no loss of housing at all as the owner of the club/manager (security person) and his wife will be living in the property permanently."

33. That is a somewhat convoluted way of expressing what one would have thought could be a much simpler case, namely that, in relation to the question of loss of housing (if such be the case), the inspector failed to take into account the fact that, although the house was to be adapted for use as a children's club, he, his wife and his family (if he has one) would continue to live there. It seems difficult to understand why he has framed the ground as he has: "The owner of the club/manager (security person) and his wife will be living in the property". It may be that he appreciates that he had not made it plain to the inspector that it was actually he and his wife who were to be living on the site. But whatever may be the position by way of inference, I have to be satisfied that there was a failure by the inspector of a Wednesbury unreasonable kind, namely to take into account a material factor which might have caused a different conclusion. That factor must of course have been firmly brought to the attention of the inspector and relied upon as a material part of the claimant's case. I am not satisfied on what I have seen that such was the case.
34. In his planning appeal, which set out before the inspector the nature of his appeal, the claimant said as follows at paragraph 3 of the section headed "Scope of Appeal":

"A residential presence on the site will be maintained, for security and supervisory purposes."

35. In the same document, under the heading "Reasons for Refusal, he said as follows:

"3. Contrary to the statement set out in the first reason for refusal, a residential presence will be maintained on the property, and accordingly no loss of housing arises.

4. A change in status of the dwelling is the only alteration, rather than its total loss as a residential unit."

36. Finally, in paragraph 12, he said:

"12. Although the proposed use will have an impact on the area, in that a different use to that of a dwelling will take place, the Council's policies recognise the need for facilities such as this,that can be considered appropriate on the edge of residential areas, more particularly detached corner houses, fronting main roads."

37. The inspector fully took into account in her report the fact that there would remain a residential presence of a supervisory/security kind in her report, namely at paragraph 30, where she says:

"It is proposed that a security person would stay on the premises overnight, occupying the smallest of the upstairs rooms. However I do not agree that this in effect would maintain a residential presence on the site. In terms of the intention of the policy [that is the important policy HSG3], I consider that there is a material difference between a full residential use of the house, for which it was designed, and its use as an out of school/holiday club where anybody staying in the building overnight would be there in a similar capacity to that of a night watchman. To accept otherwise would seem to me to circumvent the purpose of the policy. Thus I consider the proposed change of use would result in the loss of housing, contrary to the objectives of policy HSG3."

38. It is plain that she assimilated the case that was being put forward, as it seems to me, by the claimant. It does not appear that the claimant put forward a case that the house was remaining as a residential house, but with an adjunct of a club. It is plain that the case being put forward was that there would be a different use of the dwelling, and that the only residents on the property would be for the purpose of security and, it seems, by occupying an upstairs room.
39. There is nowhere in the papers that I have seen, that were before the inspector -- any suggestion otherwise, any case articulated -- which it could be said the inspector failed to take into account. Mr Moffett, very properly, drew my attention to the only reference that he could find in the papers, and that is in a document which does not appear to have been before the inspector, but which is produced by Mr Siddiqui himself as an exhibit to his present affidavit, namely a letter sent by Councillor Mills, who was a supporter of the claimant, to Mr Newton, who was the agent instructed by the claimant in the planning application. In that letter of 30 April 2004, Mr Mills says as follows:

"1. The building is a large detached house with ample living space on the first floor, which I understand the applicant intends to live in."

That, it seems, was Mr Mills' understanding. There is no evidence as to whether that was the evidence that the claimant gave before the inspector and it certainly does not appear, as I have indicated, in the notice of appeal to the inspector. I am satisfied that there is no basis upon which an error of law has been committed by the inspector in this regard.

40. I turn to the fourth ground. The fourth ground reads as follows:

"The LPA and the inspector did not consider the factors and evidence that there are over 10,000 population of BME (5%) living in Havering but there is no culturally appropriate and sensitive child care is available at all in Havering."

41. That is the assertion in the grounds as being a factor which was not taken into account by the inspector. It is inevitably coupled with the indication which I have read in the statement by the seven supporters, that they conclude that "all doors are closed for the BME due to racism only", and that, as appears in his affidavit in support of his appeal to this court, the claimant himself believes that:

"This is a barbaric way adopted by the inspector due to hatred only. The planning inspector ignored me when I challenged them regarding the acceptance of the false accusation letters against me which shows the unfair and unequal treatment by them due to prejudice only. I humbly request the honourable court to quash the inspector's decision and show equality and justice in order to restore the faith of the BME in justice."

42. There is no separate ground -- it is difficult to see how it would have been phrased -- that this planning decision was infected or tainted by race discrimination. It is certainly made clear in the appeal before me that Mr Siddiqui is a member of the ethnic minority, and that he feels that the opposition to him, at the local level at any rate, was by members of what he calls the wider white community. He feels, rightly or wrongly, that such opposition was fuelled by racial prejudice. But I am entirely satisfied that there is not only no ground put forward by him by way of challenge to this decision on that basis, but that none could possibly be substantiated in respect of the decision of this inspector, whose decision I have already summarised and is on well argued and well reasoned grounds, which bear no relationship to any suggestion of racial prejudice.
43. What, however, underlines the irritation and annoyance of Mr Siddiqui in his failure to succeed in his planning application, at any rate at this time, is the feeling that he was wishing to provide for the needs of ethnic minority children, which he feels are unsatisfactorily dealt with by the local community, and that the opposition to him was, in part at least, on that ground. If he was going to mount a case, particularly in the light of the firm finding by the inspector as to the planning difficulties raised by the traffic and parking problems, which, absent some powerful case of need, would be likely to win the day against him, he would need to have produced before the inspector substantial evidence of that need.
44. I have already referred to the conclusory paragraphs by the inspector, in which the absence of sufficient evidence of that need was referred to -- indeed, as appears, a lack of understanding as to what it is that was said to be needed. It is not surprising that that was the case because it does appear that the basis on which the appeal is now being brought is substantially different, or at any rate substantially more focused, than it was when the original application was made and pursued. What is now said on this appeal is that there is a desperate, or at any rate a significant, need for pre-school or after-school facilities for ethnic minority children which is not met elsewhere. That is not a case that was put forward, at any rate expressly, in the original application. I read the original planning application of 25 August 2003:

"The child care centre is a very unique service designed for all communities. It has the potential to help the local community a great deal. It supports the unemployed, single parents, working parents and any family, without taking into account their colour, creed or religion. In fact, it is a service there to help anyone. I will be most grateful if you kindly give permission to allow the detached house to be used for the out of school club and including the holidays etc. The approval will create three jobs and will be of great help to all sections of the local community, such as black and ethnic minorities of Havering, who will benefit greatly from this service."

45. Consistent with that multi-cultural, multi-ethnic and all-embracing approach by the claimant, it does not appear that he did produce any evidence as to the shortfall or need in respect of this kind of requirement for the ethnic community. I have referred to the paragraphs of the report in which the inspector, with all her experience of dealing with just this kind of suggestion, ie that planning difficulties should be overcome, on the particular facts, as a result of the urgent need of a particular part of the community, emphasises its absence. In paragraph 34 of her report, she says this:

"In that regard" [that is in the context of the lack of need for the new service, as expressed by the opponents of it], "local residents have referred to other facilities available in the immediate area which they say offer a similar service for parents and children and that there is no need for anything more. On the other hand the appellant contends that there is a need for more support for parents, which is a general comment I think very few people would disagree with. He has particularly provided information on the needs of black and ethnic minority communities in the Borough. Although much of that information appears to me to be directed towards more general needs than particular to the type of facility proposed here, I acknowledge that the petition is an expression of interest and potential demand."

46. In her decision, both at paragraphs 2 and 33, she emphasises that the application (para 2) "referred to the proposed facility as a very unique service designed for all communities". Again, at paragraph 33:

"In his letter accompanying the application, the appellant described the proposal as 'a very unique service designed for all communities' ... His agent referred to the use being to serve the community in a general way. I accept that it might well be that the club would offer a useful service for both working and unemployed parents. However the test in policy HSG3(B) is that it is essential for the alternative use to be situated in a residential area to serve the specific needs of the community."

47. Whatever might be the case on a fresh application if the claimant decided to formulate a case specifically based upon the absence of provision for ethnic minority children, such that it can be shown that there is such a need which would override any planning objections, that is not the way that the case was put before the inspector on this occasion. In this regard also, I am satisfied that this is a case of the claimant seeking to run an appeal as if it were a re-hearing, and a re-hearing perhaps on a different basis from the original application before the inspector.
48. I have dealt with this at perhaps even greater length than I would have done had the claimant been here himself, because I wished to be satisfied that all aspects of his case had been explored. Having done so, I am entirely satisfied that there is nothing in his appeal and that it should be dismissed.
49. MR MOFFETT: My Lord, I am very grateful for that. Subject to the point I raised to you about the parties, there is only one matter remaining, apart from the issue of costs.
50. MR JUSTICE BURTON: I am sorry?
51. MR MOFFETT: About the substitution of the parties.
52. MR JUSTICE BURTON: Yes, I do not think I need to mention it in the judgment, but the order will reflect the amendment so that the London Borough of Havering will become the second defendant, and the first defendant, instead of being the First Secretary of State, will be the Secretary of State for Communities and Local Government.
53. MR MOFFETT: I am very grateful. My Lord, the only outstanding matter is costs, and the normal course is that costs would follow the event in these cases. I would respectfully submit that, in principle, that should be applied here. There has been a schedule of costs served. I do not know if your Lordship has that. I have a spare copy here if you do not.
54. MR JUSTICE BURTON: Yes, £10,000.
55. MR MOFFETT: Your Lordship will note that that is somewhat higher than is normally the case in these sorts of matters, where the Treasury Solicitor is involved. I can explain why that is. The main reason is that, unfortunately, Mr Siddiqui generated a rather large amount of correspondence with the Planning Inspectorate over this matter. When he filed his witness statement and his claim, as your Lordship will have seen, it was very difficult to tell which documents had been put before the inspector at the time the decision was made and which were ex post facto documents. What that meant was that it was necessary to go back and go through the Planning Inspectorate's files to determine which documents had been before the inspector and which were documents that had been generated after the event. I am instructed that those files are some five feet deep. So that is why a much larger -- in terms of costs -- were run up in this case than one would normally see.
56. MR JUSTICE BURTON: Yes, what I am proposing to do, unless you say anything to the contrary, is to make an interim order for £6,000 and that the balance would go off for assessment.
57. MR MOFFETT: We would be content with that, my Lord. I am grateful.
58. MR JUSTICE BURTON: Thank you.