Costs Decision

Inquiry held on 9 11 June 2015 and 12 14 October 2015

Site visit made on 11 June 2015
by Gloria McFarlane LLB(Hons) BA(Hons) Solicitor (Non-practising)
an Inspector appointed by the Secretary of State for Communities and Local Government
Decision date: 14 January 2016

Costs application in relation to Appeal Ref: APP/Q5300/X/14/2227375

8 Lancaster Avenue, Hadley Wood, Barnet, EN4 0EX

The application is made under the Town and Country Planning Act 1990, sections 195,
320 and Schedule 6, and the Local Government Act 1972, section 250(5).
The application is made by Hadley Wood Jewish Community Ltd for either a partial or a
full award of costs against the Council of the London Borough of Enfield.
The Inquiry was in connection with an appeal against the refusal of the Council to issue
a certificate of lawful use or development for use of ground floor as a community
synagogue with ancillary accommodation on the first floor.

Decision
1. The application for an award of costs is refused.
The submissions for the Hadley Wood Jewish Community Ltd Main
points1
2. The Hadley Wood Jewish Community Limited (the Community) made its
application in writing and in addition relied on its closing submissions. The
Community applies for a full award of costs, or alternatively a partial award of
costs following the exchange of proofs/evidence in early May 2015.
3. The Community submits that the treatment it received from the Council has
been unprecedented and that the appeal would not have been necessary if the
Council had adopted a realistic approach to the appraisal of the evidence at the
application stage. The Council defended the appeal on the basis of incoherent
and unprincipled logic with insinuations of collusion, deliberate concealment
and giving only partial disclosure to the Inquiry.
4. The circumstances of the appeal fall within the Planning Practice Guidance in
that the Councils behaviour was unreasonable causing unnecessary expense to
two charities (the Community and the United Synagogue) from unreasonably
failing to determine planning applications or by unreasonably defending
appeals. The Community contends that it was unreasonable for the Council to
have refused the application given its stance that attendance of 15 or more at
the weekly Saturday morning service would be sufficient to establish a material
change of use; it was unreasonable not to re-assess the merits of the case
once the Community provided its evidence in May 2015; and the manner in
1

The main points I have set out are a brief prcis, largely in my own words, of the eloquent and lengthy
submissions and responses made by Mr Tabachnik on behalf of the Community and Mr Grant on behalf of the
Council

Costs Decision APP/Q5300/X/14/2227375

which the Council advanced its case at the Inquiry was unwarranted, distasteful
and intellectually dishonest.
5. The Community referred to a number of instances which it submitted illustrated
the unreasonableness of the Councils approach in addition to the thrust of its
closing submissions to support its application.
The response by the Council of the London Borough of Enfield Main
points
6. The Council contends that it did not act unreasonably in refusing the
application or in defending the appeal. The Council adopted its closing
submissions in support of its opposition to the Communitys application for
costs with regard to such matters as the material at the application stage, the
pro-forma statutory declarations and the conflicting details in the factual
evidence. The Council submitted that if its case was accepted or not, either in
part or in full, it was not unreasonable for the Council to have refused the LDC
or defended the appeal.
Reasons
7. The Planning Practice Guidance (the Guidance) advises that costs may be
awarded against a party who has behaved unreasonably and thereby caused
the party applying for costs to incur unnecessary or wasted expense in the
appeal process2.
8. With their reliance on their respective closing submissions and their other
submissions made in this application it seemed to me that the Advocates were
expanding on their respective cases in the substantive appeal in addition to
making and responding to an application for costs. I do not therefore propose
to address each and every matter raised or to repeat the appeal decision.
9. It is for an applicant/appellant to decide how it wishes to present its case. In
this case, the Community chose to submit a large number statutory
declarations with the application. I have commented on these in my decision,
and in particular on their similarity and the circumstances in which they were
made. There was also a significant amount of other documentary evidence in
the form of such things as invoices for works done to the property and extracts
from The Jewish Chronicle; in addition the Community provided a Counsels
opinion which supported its application. The evidence from the Community,
third party evidence and other matters were set out and commented on in the
Officers report which concluded that the Community had failed to prove, on
the balance of probability that the use of the ground floor as a community
synagogue with ancillary accommodation on the first floor was lawful.
10. There was indeed a great deal of documentary evidence at the application
stage, some of which was apparently corroborative, but it was a matter for the
Council to consider it and make a decision. The Officers report analysed the
information in some detail and reached a conclusion. It was not a decision with
which the Community agreed but that does not render it unreasonable.
11. In the appeal the Community chose to submit further statutory declarations
and other documentary evidence. Among other things, the similarity of many
of the statutory declarations and the conflicting details caused me concern, as I
2

Planning Practice Guidance: Appeals

paragraph 030

Costs Decision APP/Q5300/X/14/2227375

have set out in my decision, and I do not consider it was unreasonable for the
Council to want to challenge the written evidence by way of cross-examination.
In the event, the Community chose to call a large number of witnesses and the
original time estimate of ten minutes per witness was unrealistic given the
need for cross-examination. With that number of witnesses and documents
and the time that has elapsed since the Community purchased No 8 there was
likely to be, in my opinion, conflicting and sometimes vague evidence and that
some documents were likely to have been lost and were therefore unavailable.
In pursuing these inconsistencies and posing questions about the lost
documents in cross-examination and in its submissions the Council questioned
and drew attention to what it perceived to be the unreliability of and lacunas in
the Communitys evidence. In doing so I do not consider that the Council was
behaving unreasonably within the terms of the Guidance.
12. I accept that the Community submitted a large number of statutory
declarations at both the application and the appeal stage and they may have
been so numerous that the number was unprecedented. But given their proforma nature and their content quantity is not necessarily proof and the Council
had conflicting evidence, in particular the observations and record of the site
visit in 2007. Even if it had been accorded special treatment as submitted by
the Community, and no other cases were cited as authority for this submission,
in the particular circumstances of this case where so many witnesses are put
forward, special does not equate with unreasonable.
13. It is stating the obvious to say that in proceedings such as this there are two
directly opposing views. I accept that the Councils case was put in a different
way in oral evidence from its written evidence but it maintained the same
position throughout the appeal, that is, that although the Council considered
that No 8 now had a primary synagogue use it did not have that use in March
2004. Although I disagreed with the Council (and the Community) on the
primary use point, taking the Councils case as a whole I do not consider that it
was intellectually dishonest or lacked substance.
14. I again emphasise that it was for the Community to prove its case that there
had been a material change of use on 4 March 2004 from a residential dwelling
to a primary synagogue use as described in the application. I, however, found
that there had not been a material change of use to a primary synagogue use
but that there had been a material change of use to a mixed use of residential
and synagogue and on that basis a LDC was granted. The Community
therefore failed to prove its case for the use as described in the application.
Conclusions
15. I therefore find that unreasonable behaviour by the Council resulting in
unnecessary or wasted expense, as described in the Planning Practice
Guidance, has not been demonstrated.

Gloria McFarlane
Inspector