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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 >> East Hertfordshire District Council, R (on the application of) v First Secretary of State [2007] EWHC 834 (Admin) (19 March 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/834.html Cite as: [2007] EWHC 834 (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
		19th March 2007

1. MR JUSTICE SULLIVAN:

Introduction

2. In this application for judicial review, the claimant local planning authority challenges a decision by an Inspector appointed by the defendant to quash an enforcement notice issued by the claimant on the ground that the enforcement notice was a nullity.

Factual background

3. On 12th February 2003, the claimant granted planning permission to the interested party for the redevelopment of a timber barn to form bed and breakfast letting units on land at the rear of the Green Man public house, High Street, Widford, Hertfordshire. During the construction of the new barn the claimant's enforcement officers formed the view that the barn was not being erected in accordance with the approved plans in respect of its siting and height. The claimant was of the opinion that there had been a breach of planning control and that the barn, as constructed, had an unacceptable effect on the adjoining property which is a listed building in a conservation area.
4. On 13th August 2004 the claimant issued an enforcement notice. The enforcement notice alleged:

"The erection of a barn not in accordance with the plans approved under reference number 3/02/1136/FP -- in respect of its siting and its height."

5. The interested party appealed against the enforcement notice on ground (c) and ground (f) in section 174(2) of the Town and Country Planning Act 1990 ("the 1990 Act"). Ground (c) enables an appeal to be brought against an enforcement notice on the ground "that those matters (if they occurred) do not constitute a breach of planning control."
6. The claimant and the interested party agreed that the appeal should be dealt with by way of written representations. Unfortunately, due to administrative errors, the claimant failed to submit the relevant approved plans to the Planning Inspectorate and it also failed to submit any written representations or statement of its case. The interested party's agents wrote to the Inspectorate saying that the plans submitted by the claimant were not the correct plans, but due to a further oversight the claimant still did not send the correct plans to the Inspectorate.
7. The Inspector (the first Inspector) made a site visit on 23rd February 2005. In his decision letter dated 4th March 2005 he said:

"(1) The planning permission in question granted consent for the redevelopment of a barn to form bed and breakfast letting units. On the date of my visit to the site, the structure of the building was largely complete and except for external cladding of the walls, it seemed that only internal works remained to be carried out.

(2) I have been supplied by the Council with a copy of the decision notice, dated 12th February 2003, but, although drawings DPG/TGM/002 and DPG/TGM/03 were also supplied, which carry the reference of the permission referred to in the notice, they appear to relate to a separate scheme for the redevelopment of the public house itself. I have to say that the documents submitted by the appellant do not overcome that difficulty because I am not clear which of the several plans included may be those that were finally approved. In any event, they appear to be reduced copies of originals and, as the appellant points out, they are marked with the words 'do not scale, use figured dimensions'.

(3) There are no conditions attached to the permission which, for example, require either that the development be carried out in complete accordance with approved plans, or that the levels and position of the building be agreed before development commences. That being so, I have to assume that the basis of the notice is that the development that has been carried out represents such a substantial deviation from the approved plans that it should be treated as being without planning permission.

(4) My difficulty however, is that even with the benefit of a site visit, I found that the available factual information is too limited for me to be able to conclude that such an allegation is valid. In that respect, I have to say that the material submitted by the Council is particularly inadequate. It consists only of the questionnaire form, the incorrect plans and a copy of the proposals map from the Local Plan. There are no written representations, nor, in their absence, any statement required by Regulation 9 of the Town and Country Planning (Enforcement Notices and Appeals) (England)(Regulations) 2002.

(5) In my opinion, that lack of information is so fundamental that I have no alternative than to allow the appeal and quash the notice. That decision however, would not prejudice the Council under section 171B(4) of the Act to issue a further notice if it considered that to be expedient.

Conclusions

(6) For the reasons given above and having regard to all other matters raised, I conclude that the appeal should succeed on ground (c). Accordingly the enforcement notice will be quashed. In these circumstances the appeal under ground (f) does not need to be considered.

Formal decision

(7) I allow the appeal and direct that the enforcement notice be quashed."

8. The claimant took up the first Inspector's invitation in paragraph 5 of the decision letter and issued a second enforcement notice on 11th March 2005. Apart from the date of the notice and the date on which it took effect, the second enforcement notice was identical to the first enforcement notice issued on 13th August 2004. In particular, the alleged breach of planning control was the same.
9. The interested party appealed against the second enforcement notice on ground (c) and contended that the first Inspector was mistaken in stating that the claimant would be able to issue a further notice under section 171B. So far as material, section 171B provides that:

"(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed . . .

(4) The preceding subsections do not prevent . . .

(b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with that action being taken, the local planning authority had taken or purported to take enforcement action in respect of that breach."

10. The appeal against the second enforcement notice was dealt with by way of written representations. In a decision letter dated 25th January 2006 the second Inspector, having explained why it had not been possible to conduct a site inspection and having summarised the procedural history, referred in paragraph 4 to the fact that the interested party's representatives had drawn his attention to the advice in paragraph 2.51 in Annex 2 to Circular 10/97, Enforcing Planning Control: Legislative Provisions and Procedural Requirements:

"(4) . . . This refers to the 'second-bite provision' and indicates, amongst other things, that:

'Within four years of the date on which the LPA first took enforcement action, it is open to them to take further enforcement action under what has become known as the 'second-bite provision' in section 171B(4)(b) . . . Accordingly, within four years of first taking enforcement action in respect of it, no use, operation or other matters can usually become 'lawful' within the meaning of section 191(2) or (3) of the 1990 Act, because, by virtue of the 'second-bite provision', the time for taking (further) enforcement action in respect of that use, operation or other matters, may not then have expired (see section 191(2)(a) and (3)(a)).'

(5) However, the paragraph then continues by saying that:

'The exception to this will be in those cases where an appeal against a previous enforcement notice has succeeded on any of the grounds in 174(2)(a), (c) or (d), or planning permission has since been granted for the matter in question. In those circumstances it clearly would not be open to the LPA to take enforcement action.'

(6) The advice contained in the Circular is not in itself 'law' but it can be taken to reflect the Government's understanding of the law and, when one looks at the statutory provision in question, I believe it can be seen that, in this instance, that understanding is correct.

(7) Section 171B(4) states, amongst other things, that the preceding subsections to 171B 'do not prevent -- (b) taking further enforcement action in respect of any breach of planning control if, during the period of four years ending with the action being taken, the local planning authority have taken or purported to take enforcement action in respect of that breach'. However, an appeal under ground (c) of section 174(2) arises where an appellant argues that the matters stated in the enforcement notice do not constitute a breach of planning control and thus, where an appeal on this ground succeeds, as did the appeal against the Council's first enforcement notice, it means that those matters have been found not to constitute a breach of planning control. The inevitable consequence of such a finding must be that the provisions of 171(4)(b) cannot apply, there being no breach of planning control against which the Council can take a 'second bite'. This means that, in this case, the Council's second enforcement notice is a nullity.

(8) There can be no valid appeal against an enforcement notice that is a nullity and thus, even had the fees initially been paid in relation to the deemed application that arises in relation to an enforcement appeal, these would have been returned. In the circumstances I was unable to consider the planning merits of the case and for that reason, whilst I appreciate the concerns raised by a neighbouring occupier, a site inspection would have been pointless.

Conclusions

(9) For the reasons given above, and having regard to all other matters raised, I conclude that the enforcement notice is a nullity. Although it is not strictly necessary to quash an enforcement notice which is found to be a nullity I shall do so to avoid any possible doubt. In these circumstances the appeal under section 174(2)(c) to the 1990 Act as amended does not need to be considered.

Formal decision

(10) I direct that the enforcement notice be quashed."

Submissions and conclusions

11. In his submissions on behalf of the claimant, Mr White accepted that whatever might be the position in relation to other forms of estoppel (including issue estoppel) in the realm of town and country planning following the House of Lords decision in R v East Sussex County Council ex parte Reprotech [2003] 1 WLR 348 (2002 UKHL 8), the doctrine of res judicata, or cause of action estoppel, was still applicable to decisions by Inspectors allowing appeals against enforcement notices on grounds (b) to (d) in section 174(2) of the Act: see Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273. However, he submitted that (a) Thrasyvoulou was distinguishable because, in the very unusual circumstances of the present case, the Inspector had allowed the appeal against the first enforcement notice because he had been unable, in the complete absence of any relevant information, to reach any conclusion as to whether or not there had been a breach of planning control; and/or (b) cause of action estoppel was not an inflexible rule and the authorities recognised that "special circumstances" might justify the making of an exception. He submitted that special circumstances existed on the very unusual facts of the present case.
12. In my judgment, Mr White's concession that cause of action estoppel in the context of enforcement notice appeals survives the decision of the House of Lords in Reprotech is correct. In Thrasyvoulou Lord Bridge explained that the rationale which underlies cause of action estoppel is very different from that which underlies estoppel by representation:

"The doctrine of res judicata rests on the twin principles which cannot be better expressed than in terms of the two Latin maxims 'interest reipublicae ut sit finis litium' and 'nemo debet bis vexari pro una et eadem causa'. These principles are of such fundamental importance that they cannot be confined in their application to litigation in the private law field. They certainly have their place in criminal law. In principle they must apply equally to adjudications in the field of public law. In relation to adjudications subject to a comprehensive self-contained statutory code, the presumption, in my opinion, must be that where the statute has created a specific jurisdiction for the determination of any issue which establishes the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions." (Page 289 B-D)

Lord Bridge then referred to the authorities which supported that proposition.

13. Since the survival of cause of action estoppel is conceded by the claimant, it is unnecessary to refer to those authorities; suffice it to say that important issues of reciprocity within the statutory code arise. An appellant whose appeal under ground (c) is dismissed will have his land subject to an enforcement notice which (subject to the possibility of a statutory appeal under section 289 of the Act) may not be challenged in any proceedings whatsoever (see section 285(1)). It is difficult to envisage that Parliament could have intended that a successful appeal under ground (c) would be any less conclusive in favour of the successful appellant. Since this is a rare case of cause of action estoppel, it is unnecessary to consider the claimant's submission that issue estoppel no longer has any role in the field of town and country planning following the decision in Reprotech.
14. On behalf of the defendant, Mr Kolinsky pointed to the first sentence in paragraph 6 of the first Inspector's decision letter in which the first Inspector concluded that the appeal should succeed on ground (c). He submitted that the case was therefore on all fours with Thrasyvoulou and referred to the example given by Lord Bridge on page 287 H to 288 C. Lord Bridge distinguished between an appeal on ground (a) where the Inspector's decision would be a matter of planning policy and the 'factual' grounds of appeal under the Act. Ground (b) under the 1971 Act is now ground (c) in the 1990 Act:

"By contrast the question whether any of the grounds (b) to (e) on which the appellant relies have been established will be answered by applying the relevant rules of planning law to the facts found and the answer will determine in each case an important matter of legal right. This may be simply illustrated by examples. Thus, if an issue is raised on appeal against a notice on ground (b) as to whether or not a building operation to which the notice relates was within the terms of planning permission granted either upon an express application or by the terms of a development order, a decision of that issue to allow the appeal on ground (b) will determine the status of the building in question as having been lawfully erected. If an issue is raised on appeal against a notice on ground (c) as to whether a change from one use to another to which the notice relates was a material change, a decision to allow an appeal on ground (c) will again determine the status of the existing use of the land as lawful. So also under grounds (d) and (e) a decision that a building operation was carried out more than four years before the issue of the enforcement notice or that a use of land was commenced before 1964 will have the like consequence in determining the status of the building or the use respectively as immune to enforcement proceedings. The main issue in the appeals is simply whether these determinations are final and conclusive in their effect, as the respondents contend, or whether it is open to the local planning authority in fresh enforcement proceedings to ask the Secretary of State to determine these issues in a contrary sense in the light of new evidence or otherwise."

15. Mr Kolinsky's submission focuses on one sentence in paragraph 6 of the first decision letter. It is well established, however, that decision letters of this kind must be read as a whole and in a common sense way. In normal circumstances an appeal will have succeeded on ground (c) because the Inspector will have concluded on the available evidence (which may well have been incomplete, inadequate and/or inaccurate) that on the balance of probability there had been no breach of planning control. Since the burden of establishing that there has been no breach of planning control rests on an appellant in an appeal on ground (c), there is every reason why a conclusion on that issue favourable to an appellant should be treated as final and conclusive in its effect.
16. The first Inspector concluded that the appeal should succeed on ground (c) "for the reasons given above". If one reads the decision letter as a whole, it is clear that the appeal succeeded on ground (c) not because the first Inspector was satisfied on the balance of probability that the barn as erected was not a substantial deviation from the approved plans, but because he was unable to reach any conclusion whatsoever as to whether the barn was or was not in accordance with the plans. It is not surprising that he was unable to reach any conclusion on the alleged breach of planning control because, as he explained in paragraph 4 of the decision letter, the claimant had supplied the wrong plans and the plans supplied by the interested party did "not overcome that difficulty".
17. This was not a case where an Inspector, doing the best he could on the basis of unsatisfactory plans, had been able to reach a conclusion that the barn probably was, or was not, in accordance with the approved plans. On any common sense reading of the decision letter, the Inspector was simply unable to reach any conclusion as to whether or not there had been a breach of planning control. The appeal had to be dismissed, not because one party or the other had put forward unsatisfactory or incomplete information but because there was, in the Inspector's words, a "fundamental" lack of information. It is clear that, in those most unusual and unfortunate circumstances, the first Inspector himself did not consider that in saying that the appeal should succeed on ground (c) he was making a final and conclusive determination, since he expressly stated that the claimant would be able to issue a further enforcement notice if it thought it expedient to do so.
18. The fact that the claimant could not rely on section 171B(4) for the reasons given by the second Inspector (which were accepted by Mr White on behalf of the claimant) does not alter the true character of the first Inspector's decision. He was not saying that on the balance of probability there has been no breach of planning control because there has been no substantial departure are from the approved plans. Rather, he was saying that given the complete lack of any relevant information, he was unable to say whether or not there had been a substantial departure from the plans, and that issue could be determined if, and only if, a further enforcement notice was issued.
19. This is therefore a most unusual decision letter and it is not to be equated with those cases where an Inspector has reached what he believes is a final decision that there has or has not been a breach of planning control, albeit on the basis of limited information. Lord Bridge, in the example relied on by Mr Kolinsky, was concerned with the 'usual' Inspector's decision on a ground (c) appeal where a factual conclusion will have been reached (to use Lord Bridge's example) that a building operation to which an enforcement notice relates is, on the balance of probability, within the terms of a planning permission granted. The reasons why such a determination should be treated as "final and conclusive" in its effect do not apply to the first Inspector's decision letter which expressly reaches no conclusion as to whether or not there has been a breach of planning control and was, on its face, intended by the decision-maker not to be final and conclusive in respect of that issue, since it envisaged that a further enforcement notice might be issued.
20. It is implicit in the concept of cause of action estoppel (res judicata pro veritate accipitur -- a thing adjudicated is received as true) that a matter has been adjudicated, not that the court or Tribunal has been unable to adjudicate upon an issue because of a complete lack of information, as was the position in the present case.
21. Much the same arguments were advanced by the claimant in support of the alternative submission that if there was a cause of action estoppel, then on the facts of the present case, there were 'special circumstances' which would have justified the second Inspector, and which justified the court, in not applying the doctrine in an inflexible manner. In this context, Mr White relied on the speech of Lord Keith, with whom the remainder of the house agreed, in Arnold v National Westminster Bank Plc [1991] 2 WLR 1177. The facts are very far removed from the field of town and country planning. At page 1180 A Lord Keith defined the issue:

"My Lords, this appeal raises an important question concerning the availability and extent of exceptions to that branch of the rule of estoppel per rem judicatam which has come to be known as issue estoppel."

Before considering issue estoppel, Lord Keith first distinguished between cause of action estoppel and issue estoppel:

"It is appropriate to commence by noticing the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened . . . The principles upon which cause of action estoppel is based are expressed in the maxims nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action. In Henderson v Henderson (1843) 3 Hare 100, 114-115, Sir James Wigram VC expressed the matter thus:

'In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

It will be seen that this passage appears to have opened the door towards the possibility that cause of action estoppel may not apply in its full rigour where the earlier decision did not in terms decide, because they were not raised, points which might have been vital to the existence or non-existence of a cause of action. The passage has since frequently been treated as settled law, in particular by Lord Shaw, giving the advice at the Judicial Committee of the Privy Council, in Hoystead v Commissioner of Taxation [1926] AC 155, 170. That particular part of it which admits the possible existence of exceptional cases was approved by Lord Kilbrandon in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581, 590:

'The shutting out of a 'subject of litigation' -- a power which no court should exercise but after a scrupulous examination of all of the circumstances -- is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless 'special circumstances' are reserved in case justice should be found to require the non-application of the rule.'" (1183 A to 1184 A)

Lord Keith then turned to issue estoppel and, having considered a number of authorities, said this at page 1185 H:

"It thus appears that, although Henderson v Henderson was a cause of action estoppel, the statement there by Wigram VC has been held to be applicable also to issue estoppel. That statement includes the observation that there may be special circumstances where estoppel does not operate. The instant case is concerned with the nature of such special circumstances."

22. In his skeleton argument, Mr Kolinsky submitted that special circumstances applied only to issue estoppel. I do not accept that submission. It is inconsistent with the passage in Lord Keith's speech set out above. He further submitted that in so far as special circumstances might be used to justify the making of an exception in cause of action estoppel, they were limited to those cases where the court would otherwise have required the parties to litigation to have brought forward the whole of their case and would not permit the same parties to open the same subject of litigation in respect of matters which they might have brought forward at the earlier stage.
23. While 'special circumstances' may temper the vigour of the doctrine in such cases, I do not accept that the exception is so limited. The authorities cited by Lord Keith recognise that justice may require the non-application of the cause of action estoppel rule in 'special circumstances'. It is not in the least surprising that that should be the case. As Lord Keith said on page 1187 F:

"One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result, as was observed by Lord Upjohn in the passage which I have quoted above from his speech in the Carl Zeiss case [1967] 1 AC 853, 947."

'Special circumstances' include, but are not limited to, those cases where a party could have argued a point in earlier litigation but, for whatever reason, failed to do so. By definition, circumstances which are so unusual that they are fairly described as 'special circumstances' will be extremely difficult to define comprehensibly in advance of a particular case. In deciding whether 'special circumstances' justify making an exception to the cause of action estoppel rule, it is important that the court bears in mind the underlying purpose of the rule; that it is there to work justice rather than injustice.

24. In any event, this was a case where the Inspector did not, for the reasons set out above, decide the point which was vital to the ground (c) appeal: whether or not the barn as erected was a substantial departure from the approved plans.
25. As mentioned above, this is a highly unusual case. In deciding whether or not there are 'special circumstances' which would make it inappropriate to inflexibly apply a cause of action estoppel in respect of the first Inspector's decision, it is important to bear in mind that enforcement notice appeals are not to be equated with litigation between private individuals. In enforcement notice appeals there is an important public interest at stake. If there was a breach of planning control in the present case, it was clearly desirable that the Inspector should be able to consider whether or not the barn as erected was detrimental to the setting of the adjoining listed building and, if so, what, if any, remedial action ought to be taken.
26. In the circumstances of this case, an inflexible approach to cause of action estoppel would not work justice as between the claimant and the interested party. Even if it might be said that the claimant was the author of its own misfortune, an inflexible application of cause of action estoppel would undoubtedly work an injustice on the wider public interest. As the second Inspector noted, the neighbouring occupier had raised concerns. By precluding any consideration of those concerns, an inflexible application of cause of action estoppel would work injustice against the neighbouring owner.
27. By contrast, as pointed out in Mr White's skeleton argument, no injustice would be caused to the interested party because the interested party will be able to present the evidence, if it exists, which demonstrates that no breach of planning control has taken place.
28. In this context, the reasons given by Lord MacKay and Lord Hoffman in Reprotech as to why other forms of estoppel have no place in the field of town and country planning are of some relevance. Both Lord MacKay and Lord Hoffman emphasised the important distinction between private litigation and cases where public authorities are fulfilling statutory duties or exercising statutory discretions in which there is a clear public interest (see paragraph 6 of the speech of Lord MacKay and paragraph 34 of the speech of Lord Hoffman).
29. While it is common ground that cause of action estoppel survives the House of Lords dicta in Reprotech, in deciding whether or not there are special circumstances which might justify a departure from an inflexible application of the cause of action estoppel doctrine, the question of fairness to the public interest is, in my judgment, a relevant factor which the later decision taker is entitled to take into account.
30. I am satisfied that the circumstances of this case, as described above, are so unusual that if there is any scope for mitigating the unfairness that would be caused by an inflexible application of cause of action estoppel by reason of 'special circumstances', this is a case where that flexibility should most certainly have been used. For these reasons, I accept both of Mr White's submissions and it follows that the application for judicial review succeeds.
31. MR WHITE: Thank you very much, my Lord. It was indicated before we rose that both the principle and total of costs is in fact agreed in this case. My Lord, if I can pass up a schedule (Handed).
32. MR JUSTICE SULLIVAN: Thank you.
33. MR WHITE: My Lord, that schedule as amended is now agreed and because this is an one day case, my Lord, we ask for principle and amount of costs to be ordered today.
34. MR JUSTICE SULLIVAN: £7,150. Agreed?
35. MR KOLINSKY: Agreed, my Lord, yes.
36. MR JUSTICE SULLIVAN: Then the application for judicial review is allowed. The relief you wanted, Mr White, you have set it out. It is to quash --
37. MR WHITE: It is at paragraph 2 of my skeleton.
38. MR JUSTICE SULLIVAN: The Secretary of State does not need any mandatory order. If the second Inspector's decision letter is quashed then there is an outstanding appeal in front of the Secretary of State and there is no reason why the Secretary of State will not carry on and deal with it.
39. MR WHITE: I think that is right, my Lord.
40. MR KOLINSKY: My Lord, yes.
41. MR JUSTICE SULLIVAN: So that is all you need.
42. MR WHITE: Just a quashing order.
43. MR JUSTICE SULLIVAN: Just a quashing order in respect of the decision letter dated 25th January 2006.
44. MR WHITE: That is correct, my Lord, yes.
45. MR JUSTICE SULLIVAN: The defendant to pay the claimant's costs, those costs summarily assessed in the agreed sum of £7,150. Any more for any more?
46. MR KOLINSKY: Yes, my Lord. May I very briefly address the question of permission to appeal. My Lord, although this is an unusual case and my Lord has given a comprehensive judgment against the Secretary of State, I would ask that my Lord considers granting permission to appeal. There are two points, both of which are difficult and potentially novel. My Lord has observed that cause of action estoppel does not come along very often. My Lord's judgment could turn on a particular reading of the first decision of the first Inspector. I readily accept the principle that one needs to read the decision as a whole, but I respectfully submit that there is an arguable contrary analysis that there is no way of overcoming the conclusion in paragraph 6 that the appeal is allowed on ground (c) and that the remainder of the decision needs to be read in the context of that specific conclusion which, I would like the opportunity to submit before the Court of Appeal, is a determination which the logic of Lord Bridge in Thrasyvoulou bites upon, having particular regard, of course, to the wording of the statute. In my respectful submission, the construction of the first Inspector's decision does give rise to an arguable point of law.
47. I would also respectfully submit that the second limb of the analysis, the question of whether or not this particular cause of action estoppel can be avoided through special circumstances, is an arguable point of law. It is my respectful submission that my Lord's analysis involves an extension of the analysis in the opinion of Lord Keith in Arnold which contemplated a limited application of special circumstances to cause of action estoppel in situations, effectively, where there was a point sitting behind the essential issue to be determined given that the two enforcement notices are precisely the same in this case. In my respectful submission this case should arguably not be classified as within the scope of exception contemplated by Lord Keith.
48. So, my Lord, I respectfully submit that both of those points are arguable and that, notwithstanding this is a somewhat unusual case, they do raise relatively important points of law that deserve the attention of the Court of Appeal. Therefore I ask for permission to appeal.
49. MR JUSTICE SULLIVAN: Mr White, what do you have to say about that?
50. MR WHITE: In respect of the first issue, my Lord, the construction of the decision letter, it is highly unusual, in my submission, that the construction of the decision letter is a matter which raises sufficient concern that ought to be looked at by the Court of Appeal. As my Lord has made very clear throughout the judgment, the case has turned on these very peculiar facts. That is the first point, my Lord.
51. Secondly, the second point, whether there has been an extension of the law as indicated by Lord Keith in Arnold, cause of action estoppel can be avoided by special circumstances, well, as my Lord has set out in the judgment, and in the opinion of Lord Keith, Lord Keith was very clear that cause of action estoppel can be avoided by those special circumstances. It is necessary that the doctrine of any form of estoppel, including cause of action estoppel, should be flexible to, as it were, justice and not injustice.
52. In my submission, my Lord, firstly, there is no prospect of success and, in fact, these are not raising issues of public importance.
53. MR JUSTICE SULLIVAN: Yes. Thank you. Well, having given judgment I would like to think that there is no real prospect of success but I do think this is a very unusual case. On that basis, given the question of the ambit of cause of action estoppel in the planning field, that is sufficiently good reason to give permission to appeal. In giving you permission to appeal, Mr Kolinsky, I do not necessarily encourage you to pursue the appeal. Obviously the Treasury Solicitor will think carefully whether it is worth it on the facts of this case and whether, at the end of the day, any court is going to strain very hard to try to uphold the second Inspector's decision. That is a decision you will have to take. I do give you permission, if you think you can squeeze enough law out of it.
54. MR KOLINSKY: My Lord, may I detain you on one small point. In the light of my Lord's determination, it is in my Lord's gift to indicate a time other than the 21 days for the lodging of the appellant's notice. I would ask, my Lord, for a direction that time runs from the availability of the transcript or possibly that my Lord simply extends the number of days. Plainly now if I do not get the court's permission they will be most assisted by assuming that we are going ahead, and by the reference to the transcript of the case to deal with the point as clearly as possible --
55. MR JUSTICE SULLIVAN: I am quite happy to give you time to reflect on whether or not you want to act on the permission to appeal that you have. I think the best way of dealing with that is to give you 21 days from the date of the authorised judgment.
56. MR KOLINSKY: I am most grateful.
57. MR JUSTICE SULLIVAN: That should give you enough time.
58. MR KOLINSKY: It certainly will. Thank you very much.
59. MR JUSTICE SULLIVAN: I will extend time for that. There cannot be any objection to that, can there, Mr White?
60. MR WHITE: No, my Lord.
61. MR JUSTICE SULLIVAN: It is sensible the Secretary of State thinks carefully about whether to appeal or not. Thank you.