Gloucester City Council v First Secretary of State

Monday, 10th March 2003

1. MR JUSTICE RICHARDS: This is an application under section 288 of the Town and Country Planning Act 1990 challenging a decision of a planning inspector appointed by the First Secretary of State on an appeal under section 78 of the 1990 Act against a refusal by Gloucester City Council to grant planning permission to The Noble Organisation Ltd for the change of use of premises at 25 Northgate Street, Gloucester, from class A1 retail use to use as an amusement centre. By his decision, dated 29th August 2002, the inspector allowed the developer's appeal and granted planning permission subject to conditions. That decision is now challenged by the Council.

The decision letter

2. The inspector identified two main issues: (a) whether the proposed development would preserve or enhance the character or appearance of the Cross Conservation Area; and (b) the effect upon the viability of the primary shopping area (PSA) within Gloucester City Centre. That formulation of issues has not been criticised.

3. Under the heading "Planning policy" the inspector stated first at paragraph 5 that the development plan included the Gloucestershire Structure Plan Second Review, adopted in 1999, and the City of Gloucester Local Plan, adopted in 1983. One of the structure plan policies to which he made specific reference was policy TC1, which, as he summarised it, "aims to sustain and enhance the vitality, viability and character of existing town and city centres." The other structure plan policy mentioned was policy NHE6, which sought to conserve and enhance the distinctive historic environment and to preserve conservation areas. As to the local plan, the inspector said that it identified the appeal site within a "main shopping area" and he referred specifically to policies S1(e) and S4(a).

4. In paragraph 6 he mentioned that in 1986 the council had approved a non-statutory amendment to the local plan. The main shopping area was divided into primary and secondary shopping areas and policy S1(e) was also amended to allow for the change of use of shops within the PSA to cafes, restaurants, public houses and similar places of refreshment. The appeal site lay within the defined PSA. He described this non-statutory amendment as carrying some weight in the determination of the appeal.

5. In paragraph 7 he referred to a local plan published in 1996, which had proceeded to a public inquiry but was not proceeding to adoption and had not been relied on by the council. He considered its provisions to carry little, if any, weight in the determination of the appeal.

6. In the same paragraph he also mentioned the First Deposit Draft of the Gloucester Local Plan, published in May 2001. That is a document of central relevance to the present challenge. In paragraph 8 the inspector stated in relation to it:

"The appeal site lies within the PSA in the First Deposit Draft City of Gloucester Local Plan Policies S8 and BE29 are of most relevance to this appeal. S8 permits the change of use of ground floor retail uses in the PSA subject to criteria. These include the proportion of non retail uses on the ground floor of properties on the same side of the street being below 30%; and, the property being vacant with unsuccessful marketing demonstrated; or, it can be shown that the proposal would sustain and enhance the vitality and viability of the PSA. Under policy BE29 development within conservation areas should preserve, enhance or enrich the character and appearance of the area, including the retention of the character of individual streets. Objections have been received to both of these policies. Although the Council proposes no significant amendments the Plan has not reached an advanced stage towards its adoption and only limited weight should be attached to these policies."

7. The inspector proceeded, under the general heading of "reasons", to consider first the conservation area issue and then the viability issue.

8. He dealt with the conservation area issue in paragraphs 9 to 15. He noted at paragraph 10 that shopping is an important part of the character of the conservation area. He referred in paragraph 12 to survey evidence that the numbers attracted into these amusement centres are similar to some shops. He noted in paragraph 14 that other similar amusement centres have a window display the style of which compares favourably with many retail uses and other non-retail uses found within shopping centres. At paragraph 15 he stated:

"I consider that the type and numbers of customers that are likely to be attracted to the premises would maintain the vitality of the conservation area. This activity would also be likely to continue after most shops have closed, extending vibrancy into the evening."

He concluded that the development would preserve the character and appearance of the area and would accord with the relevant structure plan and local plan policies.

9. The viability issue was then dealt with in paragraphs 16 to 22. In paragraph 16 the inspector noted that the council had not found the proposal to be in conflict with the development plan, and he found that it would accord with local plan policy S4 and that it would also support the shopping function of the area as advised in paragraph 2.12 of PPG6.

10. He went on:

"17. The Gloucester Retail Study was published in 2001 and provides the basis for the shopping policies within the emerging Local Plan. The report advises that Gloucester's retail economy is under-performing and highlights the need for further investment. The Council is committed, through the emerging Local Plan, to a major redevelopment of the Blackfriars area of the City, although planning permission has yet to be obtained. At the Inquiry the Council informed me that if the proposal sustained and enhanced the vitality and viability of the PSA then it would accord with emerging policy S8. I have already found above that the development would maintain the vitality of the area.

18. The current occupiers of the premises (Next) are an important national retailer. In my opinion they make an important contribution to the viability of the PSA. I also note from the Retail Study that there is a desire amongst customers within Gloucester to see more 'big names' in fashion within the City. The loss of Next would therefore be likely to harm the viability of the PSA. At the Inquiry however, the appellant informed me that Next had three more years remaining on its lease. At the end of this period the appellant expects to occupy the building with Next relocating to the Blackfriars redevelopment. Given the outstanding period of the lease, the likely future redevelopment of the Blackfriars area and the availability of other vacant retail units within the PSA, I consider that sufficient opportunity exists for Next to remain with the PSA.

19. The 'In Town Sales Requirements' (Document 9) reveals other retailers, including those in fashion, are seeking to locate in Gloucester. Next currently trades over two floors and whilst this arrangement may not be desirable to some retailers, I consider that the location of the premises would be attractive to others. There is no certainty however that these would be 'big names' in fashion or that they could enhance the viability of the PSA.

20. Survey information provided by the appellant reveals that where similar amusement centres have been established elsewhere there has been no demonstrable harm to the viability of shopping centres. The latest 'Number of Retail Requirements' (Document 10) also showed that Gloucester is now ranked 53 in the UK retail hierarchy compared to its previous position of 91 at the time of the Retail Study. Gloucester PSA does not appear to me to be in decline. Whilst the proposal would be at variance with the Council's non-statutory amendment to the adopted Local Plan, no convincing evidence has been presented to support the Council's concerns ...

22. I therefore conclude on the second issue that the proposal would not harm the viability of the PSA within Gloucester City Centre and would accord with Structure Plan policy TC1, adopted Local Plan policy S4 and the objectives of emerging Local Plan policy S8."

11. In paragraph 23 the inspector considered conditions, and in paragraph 24 he set out his conclusion that for the reasons given the appeal should succeed.

Policy S8

12. Since policy S8 of the First Deposit Draft of the Gloucester Local Plan is at the heart of the case, I should set out its terms in full, including the introductory wording which explains the purpose of the policy. The introductory wording is:

"The loss of Class A1 retail units to the ground floor of the Primary Shopping Area to other uses, such as offices and food take-aways, can harm its vitality and viability. Concentrations of non-retail uses can worsen these effects. We will therefore seek to restrict changes of use to non-retail uses in the Primary Shopping Area."

The wording of the policy itself is as follows:

"The change of use of ground floor Class A1 retail uses in the Primary Shopping Area will only be permitted where:

1. The proportion of non-retail uses on the ground floor of properties on the same side of the street is below 30%; and,

2. The proposal would not result in a continuous group of more than two non-retail uses on the same side of the street; and,

3. The property is vacant and the developer is able to demonstrate that the property has been marketed unsuccessfully for at least one year; or,

4. The developer is able to demonstrate that the proposal would sustain and enhance the vitality and viability of the Primary Shopping Area."

13. The statement of common ground for the appeal before the inspector recorded that the council's reason for refusal of the proposal as detailed in the decision notice was that it conflicted with policy S8. It was agreed that there was no conflict with criterion (2) of the policy. The remaining three criteria were in issue in the appeal.

14. I should also mention that the statement of common ground recorded in addition that the First Deposit Draft of the Local Plan was formally approved for development control purposes on 21st May 2001. The council's resolution of that date was both that the draft be placed on deposit for public consultation and that the draft and supplementary planning guidance be approved and adopted for the purposes of development control.

The issues

15. The issues before me have been narrowed and recast as compared with their formulation in the claim form and even in the claimant's skeleton argument. The issues now raised by the claimant are: (1) whether the inspector misconstrued or misapplied policy S8(4) by failing to apply the onus of proof requiring the developer to demonstrate that the proposal would sustain and enhance the viability of the PSA; and, (2) whether the inspector erred by failing to take account of the fact that the draft plan containing policy S8 had been adopted by the council for development control purposes and was a material consideration for that reason too.

16. A further issue arising out of the defendant's submissions is whether, if the inspector did err, relief should nevertheless be refused in the exercise of discretion on the ground that any such error made no difference to his decision.

First issue

17. Mr Clayton QC for the claimant submits that paragraph 4 of policy S8 requires that the developer "is able to demonstrate" that the proposal would sustain and enhance the vitality and viability of the PSA. The natural and ordinary meaning is to impose the onus of proof on the developer to demonstrate a positive, namely that the proposal would have that result. The claimant's case is that the inspector misconstrued or misapplied that requirement. In paragraph 20 of the decision letter he states that survey information reveals that where similar amusement centres have been established elsewhere there has been "no demonstrable harm" to the viability of shopping centres. In paragraph 22 he concludes that the proposal "would not harm" the viability of the PSA within the city centre. Such findings necessarily fall short of fulfilment of the obligation on the developer under paragraph 4 of policy S8 to demonstrate positively that the proposal would sustain and enhance the vitality and viability of the PSA. Thus, as I understand the argument to run, the inspector has not answered the question required of him under paragraph 4 of policy S8 and, if he has found that provision to be satisfied, he has done so on the basis of a misinterpretation of the policy.

18. In my judgment, there was no misinterpretation or misapplication of policy S8 by the inspector. He plainly understood that paragraph 4 of the policy referred to the developer being able to demonstrate the relevant point. In summarising the policy at paragraph 8 of the decision letter, he stated that the relevant criterion was that "it can be shown" that the proposal would sustain and enhance vitality and viability. As Mr Morgan submitted on behalf of the Secretary of State, in the context of an application for planning permission such a reference could only sensibly be understood as a reference to it being shown by the applicant for permission, that is to say in this case the developer. In any event, as Mr Morgan also submitted, the real question under paragraph 4 of policy S8, to the extent that the inspector needed to consider the substantive terms of the policy, was whether on the balance of probabilities the proposal would sustain and enhance the vitality and viability of the PSA. Specific reference to an onus of proof on the developer in reality adds nothing.

19. Before turning to the way in which the inspector expressed his conclusions on policy S8, it is helpful to consider the way in which the case was put to him by the developer.

20. Mr Phillips QC, on behalf of the developer, took me to passages in the evidence before the inspector and to passages of his cross-examination of the council's main witness. I do not need to set out that material in detail. The essence of the matter is that the developer was arguing, by reference to the general guidance contained in PPG1, and in particular in paragraphs 36, 40 and 54, that the absence of harm was the decisive or most important factor in the case. In that connection the point was made as regards policy S8 that its objective was the avoidance of harm to the vitality and viability of the centre, an objective expressed in the introductory words to the policy. Thus, the developer's approach was that whatever the precise wording of the policy, the real question was whether the development would accord with the objective of avoiding harm to the vitality and viability of the centre; though it is right to stress that there was also specific evidence from the developer as to the positive contribution that the development would make to vitality and viability.

21. I accept that that was the thrust of the case presented with regard to the general question of harm and with regard to policy S8. I also accept that the inspector went along with that approach and was entitled to do so. He concluded first in paragraph 8 that only limited weight should be attached to the policy. Subject to the point raised in the claimant's second issue, to which I will come in due course, that was undoubtedly a conclusion properly open to the inspector. His judgment on the point was, in my view, fully in line with the guidance in paragraph 48 of PPG1 concerning the weight to be attached to emerging development plans. Although Mr Clayton made some criticism of it, he did not seek to contend that the inspector's judgment was irrational; and short of that, points of criticism can get the claimant nowhere.

22. Having concluded that only limited weight should be attached to policy S8, the inspector does seem to have gone on to consider the matter by reference to the objectives of the policy, namely the avoidance of harm to the vitality and viability of the centre, rather than the actual terms of the policy. That explanation is certainly consistent with his various comments in the section on viability at paragraphs 16 to 22, and in particular it explains the wording of paragraph 22 itself.

23. In that paragraph he concluded first that the proposal would not harm the viability of the PSA. That is sensibly understood as a reference to the general issue of harm under national guidance to which the developer had referred. The inspector then concluded that it would accord with structure plan policy TC1 and local plan policy S4, the two relevant policies of the actual development plan. Finally, he concluded that it would accord with "the objectives of emerging local plan policy S8". That would seem to pick up very clearly the submissions being made by the developer that the real question under policy S8 was whether the proposal would avoid harm to vitality and viability.

24. In my judgment, the inspector was entitled to adopt that approach in relation to a policy of an emerging plan to which he attached little weight. It was not necessary in the circumstances for him to address the precise terms of the policy, though, as I have said, he plainly understood those terms. The way he dealt with it took the emerging policy properly into account as a material consideration.

25. As a footnote on this issue, I should deal with a suggestion by Mr Clayton that the last sentence of paragraph 20 (which I have read) involved a finding that the proposal would be at variance with policy S8. I am satisfied that the reference to the "non-statutory amendment to the adopted local plan" in that sentence is a reference to the 1986 non-statutory amendment referred to in paragraph 6 and has nothing to do with policy S8. I need not elaborate on the point.

26. Accordingly, I find that there was no error in the inspector's approach.

27. But even if I am wrong on that and the inspector ought to have addressed the precise terms of policy S8 in the way contended for by Mr Clayton, I am in no doubt whatsoever that had he done so he would have reached exactly the same decision on the appeal.

28. I accept the submissions made both by Mr Morgan and by Mr Phillips that the inspector was clearly satisfied that the proposal would sustain and enhance vitality and viability. His findings were not limited to the negative point of absence of demonstrable harm, but included positive findings favourable to the proposed development.

29. Thus, he concluded at paragraph 22 that the proposal would accord with structure plan policy TC1. That policy, summarised at paragraph 5 of the decision letter, provides in its opening words that "The vitality, viability and character of existing town, district and local centres should be sustained and enhanced". It goes on to state that "Provision should be made in centres for shopping, employment, leisure and other uses which generate many trips, provided that ... it would sustain and enhance the vitality and viability of the centre". In order to conclude that the proposal would accord with that policy, the inspector obviously had to be satisfied that those criteria were met. If, as was the case, he was satisfied that they were met, it follows that he would also have been satisfied that the terms of paragraph 4 of policy S8 were met. That was effectively accepted by the council itself before the inspector, in that the council's evidence stated that policy TC1 "informs the interpretation of policy S8" and that "the wording of policy TC1 matches the wording of criterion 4 of policy S8".

30. Mr Clayton sought to argue that the words in paragraph 22 of the decision letter, "would accord with structure plan policy TC1", did not amount to the inspector being satisfied that the proposal was in accordance with policy TC1. That argument was truly to clutch at a straw. In my judgment it is plain that the inspector was satisfied that the conditions of policy TC1 were met. Moreover, he was fully entitled to reach that conclusion on the evidence before him and there is, in any event, no challenge to that finding.

31. Similar points arise in relation to the inspector's conclusion that the proposal would accord with policy S4 of the adopted local plan which, as he stated in paragraph 16, "also reflects the need to encourage subsidiary functions, including leisure facilities in order to strengthen the retail function of the city centre." It is implicit in his conclusion concerning policy S4 that in his view the proposal did serve to strengthen the retail function of the city centre in that way, and I accept the submission made by Mr Morgan that a function which is strengthened is necessarily enhanced.

32. A further point is that in paragraph 16 the inspector also found that the proposal would "support the shopping function of the area as advised in paragraph 2.12 of PPG6". Paragraphs 2.11 and 2.12 of PPG6 deal with the positive contribution made to the vitality and viability of town centres by a diversity of uses. So this was in effect another finding that the proposal would enhance vitality and viability.

33. Those various findings were, in my view, all properly open to the inspector on the evidence before him and again have not themselves been challenged. In the light of them, I regard it as inconceivable that the inspector, if required to reach a conclusion in the terms of paragraph 4 of policy S8, would have reached any conclusion other than that the developer had demonstrated that the proposal would sustain and enhance the vitality and viability of the PSA. If therefore there was any error of approach, it was of no materiality and could not justify the grant of relief.

34. For all those reasons, I reject the claimant's case on the first issue.

The second issue

35. Mr Clayton further reformulated and narrowed his case on the second issue for the purpose of his oral submissions. The nub of the remaining submissions made is that in reaching his conclusion at the end of paragraph 8 that only limited weight should be attached to the First Deposit Draft of the local plan, including policy S8, the inspector had regard only to the status of the draft as an emerging plan and did not take into account the fact that it was also adopted by the council for development control purposes. I have referred already to the council resolution in which it was resolved both that the draft be placed on deposit for draft consultation and that it be approved and adopted for development control purposes. Mr Clayton says that the draft therefore had two separate functions, each of which made policy S8 a material consideration, but that the inspector looked only at one of those functions. Had he taken into account the adoption of the draft for development control purposes, he might have given the policy greater weight than he did.

36. There seem to me to be numerous difficulties about those submissions.

37. First, Mr Clayton failed to explain precisely what additional status a draft policy could acquire, for the purposes of an inspector's consideration of an appeal, by reason of the fact that it had been adopted by the council for its development control purposes. I am told by Mr Phillips that it is common practice to adopt a draft plan in this way. It then serves to guide the council's decision-making processes. But I accept the submissions made by Mr Phillips and by Mr Morgan that this does not give it an enhanced status and does not impose on the inspector any requirement to give it greater weight than would otherwise be the case. It remains an emerging draft plan, the weight of which falls to be assessed in the normal way in accordance with the guidance laid down in particular in paragraph 48 of PPG1. It is not equivalent to Supplementary Planning Guidance, the function of which is, as the name suggests, to supplement plan policies and proposals (see PPG12, paragraphs 3.14 to 3.17). I note indeed that the relevant council resolution referred both to the draft plan and to supplementary planning guidance as being adopted for development control purposes: thus the resolution itself distinguished between them.

38. The second problem about Mr Clayton's argument is that it depends on showing that the inspector failed to take into consideration the fact that the council had adopted the draft plan for development control purposes. But I am wholly unpersuaded that he did fail to take it into consideration. The fact was set out in the statement of common ground submitted to the inspector, and it is clear from other parts of the decision letter that he was aware of that statement and had it in mind. There is no basis for inferring that he failed to consider this particular point.

39. That the point was not mentioned in the decision letter does not mean that it was not considered by the inspector. There was no argument before the inspector that because the draft plan had been adopted by the council for development control purposes it should be given greater weight. This was not a controversial issue at all, let alone one of the principal important controversial issues that the inspector is required to address in his reasons in accordance with the approach laid down in Bolton Metropolitan District Council v Secretary of State for the Environment[1995] 1 WLR 1176. One can borrow the words of Evans LJ in MJT Securities Ltd v Secretary of State for the Environment [1997] 3 PLR 43 at 52H: "his reasons cannot be faulted for failing to mention what was effectively, if not formally, common ground."

40. It is true that at the end of paragraph 8, when dealing with weight, the inspector refers only to the point that this was an emerging plan which had not reached an advanced stage. But even that does not warrant the inference that he did not take into account the adoption of the plan by the council for development control purposes. It is consistent with his regarding that point as of no significance whatsoever for his assessment of the weight to be given to the draft plan. And weight, as I have already observed, was a matter for the inspector, subject only to a rationality challenge which is not and could not be advanced in this case.

41. Accordingly, I reject the claimant's case on the second issue as well.

42. If I were wrong on the second issue, it would again be necessary to consider the question of discretion. If the inspector did err in the way alleged by the claimant, I do not think that there is any realistic possibility that, had he taken into account the fact that the draft plan was adopted for development control purposes, he would have reached any different conclusion as to the weight to be accorded to it. Moreover, however much weight was accorded to it, the fact is that, as I have already held under the first issue, the inspector would undoubtedly have found the terms of policy S8 to be met; and in those circumstances any error affecting the weight to be accorded to it was of no possible materiality. The inspector would have reached the same decision on the appeal in any event. In relation to this ground too, therefore, I would have refused relief had I been persuaded that the inspector did fall into error as Mr Clayton contended.

43. For all those reasons, I reach the emphatic conclusion that this claim must be dismissed.

44. MR MORGAN: My Lord, on behalf of the Secretary of State I would ask for an order for costs. My Lord, I understand that my learned friend Mr Phillips would also have an application for costs, so perhaps you would like to deal with the principle of costs first.

45. MR JUSTICE RICHARDS: Yes, I do not think I have a schedule from you.

46. MR MORGAN: I am sorry, my Lord, I thought you had (_Handed).

47. MR JUSTICE RICHARDS: I saw one schedule but I have lost even that now, it is probably lurking back on my desk in my room. Never mind, I am sure people will have spare copies.

48. MR MORGAN: My Lord, can I draw your attention to the well-known passage in the Bolton case. I do not know if you still have the authorities bundle here.

49. MR JUSTICE RICHARDS: I do.

50. MR MORGAN: It is tab 2.

51. MR JUSTICE RICHARDS: Yes.

52. MR MORGAN: Page 52.

53. MR JUSTICE RICHARDS: Yes.

54. MR MORGAN: Letter G:

"The Secretary of State, when successful in defending his decision, will normally be entitled to the whole of his costs. He should not be required to share his award of costs by apportionment, whether by agreement or by further order of the court."

My Lord, that is the passage I rely on in seeking costs in this case.

55. MR JUSTICE RICHARDS: Thank you very much. The total amount is £7,441 that you are claiming by way of summary assessment.

56. MR MORGAN: My Lord, that is right.

57. MR JUSTICE RICHARDS: Thank you very much.

58. MR PHILLIPS: Does your Lordship have our statement of costs?

59. MR JUSTICE RICHARDS: I think I did have it but I confess I cannot immediately see it now with what I have here, so I apologise for that. Do you have another copy?

60. MR PHILLIPS: My Lord, I do. (_Handed_)

61. MR JUSTICE RICHARDS: Yes.

62. MR PHILLIPS: My Lord, could I take your Lordship to the Bolton approach?

63. MR JUSTICE RICHARDS: Yes.

64. MR PHILLIPS: Your Lordship will be very familiar with this. My Lord, letter F, what then is the proper approach.

65. MR JUSTICE RICHARDS: Separate issue or issue requiring separate representation at H.

66. MR PHILLIPS: My Lord, yes. Could I just draw your attention to what is said at letter F. The fundamental rule is that there are no rules, so whatever guidance the House of Lords gave is not a rule, it is purely guidance and of course each case must turn on its own particular facts and circumstances including, my Lord, I would submit the conduct of the claimant in this matter, that is a relevant matter for your Lordship to take into account. Could I also just make it plain that we are not suggesting that the Secretary of State should not be entitled to his full costs. We are not seeking to share any award that your Lordship makes in favour of the Secretary of State. I am seeking a second award of costs in favour of the second defendants.

67. My Lord, at principle 2 the developer will not normally be entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, and so forth. Over the page, at principle 3, a second set of costs is more likely to be awarded at first instance than in the Court of Appeal or House of Lords, by which time the issues should have been crystallised. My Lord, in this case that third principle applies with particular force in my submission. The issues as raised by the claimant in his original claim form have changed substantially. In effect, there were then three grounds of challenge, your Lordship has seen those in the original claim form, two of which were in effect abandoned, but only last Monday afternoon when we received a very belated skeleton argument from the claimants. My Lord, strangely, on the previous Friday evening we had received the second witness statement from Miss Meneaud, the planning officer, who had allowed almost four months to lapse between receipt of Mr Etchells' witness statement and when she responded to it. In that further statement that she submitted a whole series of points were taken which were meant to substantiate the two abandoned grounds of claim and which on Monday we learnt were no longer being pursued. It was only this morning before your Lordship that there was a reformulation of the second head of claim.

68. So my Lord, perhaps I can describe it in this way. The grounds upon which the challenge was made were shifting all the while, and in those circumstances it is surely not unreasonable that the developer, intent on protecting his planning permission secured on appeal, should be present before your Lordship and making what contribution he can to ensure that the challenge was rejected.

69. My Lord, had we had the skeleton three weeks before today, as we should have of course in accordance with the practice direction, and had the claim form been properly formulated in the first place, then it may be -- it may be -- that Nobles would have decided that they did not need to be separately represented here, particularly had they had the opportunity of discussing the claim with the Treasury Solicitor and perhaps agreeing some modus operandi between the two parties, for example joint representation before your Lordship. My Lord, because of the delay in submitting the documents to us and the shifting ground, that opportunity was denied to us. My learned friends know that I was out of London on work for the entirety of last week and could not really turn to deal with their skeleton until this weekend.

70. My Lord, further to that, as originally formulated in the original claim form there was much reliance upon detailed planning merits and the whole of the evidence that was submitted, and I am bound to say the first statement of Miss Meneaud left certain matters unsaid as to what had actually happened before the inspector and left other matters in a decidedly misleading fashion. It was therefore necessary for the second defendants to submit the witness statement of Mr Etchells.

71. MR JUSTICE RICHARDS: That could be dealt with by way of an award of costs in respect of the evidence.

72. MR PHILLIPS: My Lord, it could be, and in my submission the second defendant should be entitled at the very least to the costs of preparing that evidence. My Lord, further, the way in which your Lordship has decided the first main issue before your Lordship today has been very much along the lines that I have sought to argue before your Lordship, which is a rather different way from that which my learned friend Mr Morgan put it in his skeleton argument, so your Lordship, it seems, has derived some benefit from our presence before your Lordship and the references that we were able to make to the evidence and so forth. I hope your Lordship will feel that that assistance to your Lordship was important and did entitle the second defendant to be present before your Lordship.

73. My Lord, I do not think I can put it any higher than that, but it is for those reasons that I do urge your Lordship to make a second award of costs against the claimant.

74. MR JUSTICE RICHARDS: Thank you very much. Yes, Mr Clayton.

75. MR CLAYTON: My Lord, dealing firstly with the Treasury Solicitor's costs, we have no submissions either in principle or as to quantum.

76. As to the second defendant's, with respect to the submissions made, it is important to remind oneself of what principle is. Mr Phillips rightly points out that the guidance should not harden into a rule, but, with respect to him, guidance by the House of Lords as to the threshold question which is, is there a separate interest or separate issue, is of considerable importance when your Lordship is exercising a discretion. As far as I could ascertain, he appeared to be arguing for his costs really in relation to three separate stages. May I say this with no disrespect to Mr Phillips. The fact that your Lordship may have found his submissions of assistance is no basis at all for the award of costs, and many developers have the unhappy experience of providing great assistance but not falling within the rubric of the House of Lords' decision, and indeed if the House of Lords had thought something along those lines one would have expected that to be said. It is worth pointing out, and your Lordship made this point in your judgment, that the reference to the reasoning of the inspector taking its root from the submissions of the developer were expressly stated in the decision, so although obviously it was helpful to hear them elaborated in court, one knew where one was before the submission was made.

77. In relation to the points about some earlier stage, I am afraid I am not entirely clear about what is being said about that, although I do entirely accept that complaint can be made about the late service of skeleton.

78. It is a matter for your Lordship whether your Lordship thinks that the evidence of the first witness statement of Joann Meneaud can be expressed in terms which have been put - "misleading". In my respectful submission, that puts the position much too high and certainly it would follow from that that costs could rectify the position on the basis that it was misleading are likewise too high.

79. In relation to some middle ground, again it is not clear to me precisely what principle is said to be in play to justify the award of costs, and I would invite your Lordship to simply apply the approach which of course has the benefit of being stated in fairly clear terms in Bolton of the conventional view, which is that, absent being able to identify any separate issue or separate interest, the second defendant is not entitled to their costs. In our respectful submission, there is no separate issue, there is no separate representation, but it is their choice to put in evidence and, absent them coming within the guideline suggested in Bolton, in our submission it would not be appropriate as a matter of principle for costs to be awarded.

80. MR JUSTICE RICHARDS: Thank you very much.

81. Nothing further you want to say Mr Phillips?

82. MR PHILLIPS: No, thank you.

83. MR JUSTICE RICHARDS: There is no issue so far as the Secretary of State's costs are concerned. The claimant is ordered to pay those costs, which I will summarily assess in the amount claimed in the schedule, that is to say £7,441, which seems to me to be an entirely reasonable and proportionate amount for a case of this kind.

84. In relation to the application by the developer for costs, my starting point is the fundamental point to which Mr Phillips drew my attention that this is indeed a matter of discretion and that there are no rules. Nevertheless, I am guided by the statement of principles in the Bolton case. In the event, as it seems to me, there was no separate issue on which the developer was entitled to be heard and there was no interest requiring separate representation. In the earlier stages of the case, given the way in which the matter was put and the evidence that was filed by the claimant, it seems to me that it was reasonable and indeed necessary for the developer to put in evidence, and that evidence proved of importance for my assessment of the case, as is apparent from the judgment. In those circumstances, I am satisfied that the developer should have its costs of filing evidence in this case. The question of costs of representation at the hearing does, however, raise different issues. I understand the point that Mr Phillips makes about the uncertainty as to how ultimately the case would be put in this court. That made it all the more understandable why the developer would wish to be represented. In my judgment, however, the position was, given the evidence that had been filed, that the Secretary of State was thereafter able to deal with the legal issues that arose and with any reformulation of them that might take place and did actually take place at the hearing. The submissions made by Mr Phillips were, I acknowledge, of real value. I am grateful for them and they influenced the analysis that I adopted in my judgment. They did differ to some extent from the submissions made by Mr Morgan for the Secretary of State, which were also of real value and greatly appreciated. I am satisfied that despite the fact that there were differences in the way which the case was put, it would have been possible for me to decide the case, and I would have decided it in the same way, on the basis of the submissions made on behalf of the Secretary of State, albeit that aspects of my reasoning would have been different, no doubt, had I not had the benefit of additional argument. But the fact that additional argument is of benefit to the court does not seem to me to be the determinative question.

85. I come back to the point that there was in the end no separate issue or interest requiring separate representation. In those circumstances the developer has the benefit of having, by its representation at the hearing, influenced the way in which the court dealt with the matter, but is not, in my view, entitled in addition to an award of costs in respect of such attendance at the hearing.

86. In my judgment, the balance of the argument favours my awarding costs in respect of the filing of evidence but not in respect of the hearing. I doubt whether I am in a position from the schedule to determine what the costs of the evidence are, and unless counsel seeks to persuade me otherwise I would make provision --

87. MR PHILLIPS: My Lord, I have just been looking through the schedule and it is not easy, I think --

88. MR JUSTICE RICHARDS: It tends not to be. What I am minded to do is make an order that the claimant pays the developer's costs of preparing and filing evidence, such costs to be subject to detailed assessment if not agreed.

89. MR PHILLIPS: Thank you.

90. MR JUSTICE RICHARDS: I would expect them to be agreed, but that is the best way to handle it.

91. MR PHILLIPS: I do not understand there to be any dispute about the actual quantum?

92. MR CLAYTON: I entirely accept the approach your Lordship has suggested.

93. MR JUSTICE RICHARDS: If you cannot agree it, it will have to go to a costs judge.

94. MR PHILLIPS: My Lord, I am grateful.

95. MR JUSTICE RICHARDS: I am very grateful to all counsel for their assistance in the case.