Sherburn Sand Company Ltd v First Secretary Of State & Anor

MR JUSTICE SULLIVAN:

This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash the decision of the First Secretary of State refusing the claimant's appeal against the refusal by Durham County Council ("the council") of two applications relating to Crime Rigg Sand Quarry, Shadforth, Durham ("the quarry"). The Secretary of State's decision is contained in a decision letter dated 17th December 2003. The quarry is a long established mineral working located on the Magnesian Limestone Escarpment several kilometres to the east of the city of Durham. It is divided into two parts, the western and the eastern, by a rock pillar which carries a farm track which is also a bridleway. Having obtained ownership of the rock pillar the claimant made two applications, for planning permission and for a public path diversion order, to amend the existing permitted working plan and access arrangements and to divert the bridleway around the eastern edge of the quarry, to enable the minerals in the rock pillar to be worked. The quarry produces building sand, some asphalt sand and concreting sand. It is the only source of land won concreting sand in Co Durham. Removing the pillar would have released 56,320 tonnes of magnesian limestone and 288,800 tonnes of sand.

The council refused planning permission for three reasons, one of which was overcome by a modification to the access proposals. The principal reason for refusal was:

The claimant appealed to the Secretary of State who appointed an inspector to conduct an inquiry and report. The inspector held an inquiry between 7th - 14th January 2003. For the purposes of section 54A of the Act, the inspector concluded that the policies in the adopted County Durham Minerals Local Plan (December 2000) ("the local plan") provided the most specific Development Plan guidance.

The Local Plan provides the framework for minerals planning throughout the county in the period up to 2006. Policy M1 stated that landbanks of permitted reserves of at least 7 years for sand and gravel and at least 10 years for crushed rock aggregate would be maintained throughout the plan period. Policy M2 set out the county's share of the regional supply of aggregates for 1992-2006 based on a subregional apportionment of the regional requirements that were set out in MPG6: 11 million tonnes of sand and gravel and 51.3 million tonnes of magnesian limestone.

At the inquiry there was no dispute that the landbank for magnesian limestone was more than adequate. The claimant contended that there was a shortfall in the landbank for concreting sand. The explanatory text in Chapter 4 of the Local Plan deals separately with the various kinds of mineral. Under the heading "Sand and Gravel", the three types of sand and gravel produced in Co Durham are considered: concreting sand and gravel, building sand, very fine deposits of which are used to make asphalt, and moulding sand. Sand and gravel supply to 2006 was set out in a table, Table 4.2. The table showed that there were (just) adequate reserves of building sand (including asphalting sand), but that further allocations totalling 600,000 tonnes were required in respect of concreting sand, which for the purposes of Table 4.2 included "other sand and gravel". Recognising that there was a need for further reserves of sand and gravel, the Local Plan defined five broadly based areas of search within the county. The areas were defined with the aim of minimising the impact on local communities and the environment, e.g. high quality landscapes were excluded and stand-off distances from residential areas were adopted for the purpose of defining the areas.

The Local Plan made it plain that planning permission would not automatically be granted for mineral extraction within areas of search. Policy M6 provides:

The quarry is not within an area of search. Paragraph 4.84 of the Local Plan explains the approach of the plan to proposals for mineral extraction outside the identified areas of search:

Policy M54, referred to in the council's reasons for refusal, states that:

For the sake of completeness it is necessary to mention policy M3, since removal of the rock pillar would be an extension to the existing quarry workings. So far as relevant, policy M3 states:

The claimant argued that there were "acute shortages" of the sands produced by the quarry. By their nature Minerals Local Plans take a considerable time to prepare, and for the purposes of the inquiry the council had updated the figures contained in Table 4.2. The updated figures showed a landbank shortfall for concreting sand (as defined in Table 4.2) of 1.9 million tonnes for the period up to 2013. The claimant argued that in practice the shortfall was greater. Because the reserves had been overestimated the shortfall for concreting sand was said to be "more likely to be 3.18 M tonnes" (paragraph 6.3 inspector's report).

In response, the council argued that the reserves figures had been produced in accordance with the methodology in MPG6. Paragraphs 7.14 and 7.15 of the inspector's report summarise this aspect of the council's case as follows:

The inspector identified three main issues:

On the first of those issues the inspector concluded that the claimant's proposals were not in accordance with the development plan. Although the main target mineral was sand, the scheme was an extension to a magnesian limestone working and was therefore contrary to policy M54. For the same reason the scheme did not accord with policy M3 because the extension failed to satisfy criterion (g). Since the quarry was not within an area of search the claimant could not rely directly on policy M6, but that policy envisaged an alternative means of compliance with the Local Plan under policy M12. Sub-paragraphs (a)-(f) in policy M12 described various special circumstances under which mineral extraction could be permitted outside areas of search. Of these only paragraph (a) (above) was applicable.

In paragraphs 10.6 to 10.9 of his report, the inspector said this:

The inspector resolved the second main issue in the claimant's favour, concluding that the overall effect in terms of policy M35 would be positive. When dealing with main issue three he concluded that any resulting visual harm would be insignificant, and he said in paragraph 10.19:

The inspector grouped the other material considerations under four heads (1) "need"; (2) the restoration scheme; (3) sustainable development; and (4) safety matters. Under (2) he considered that the effect of the scheme on the restoration of the site would be "neutral to slightly positive". Under (4) he considered that there was some, but not a major benefit. While the scheme had some other merits under (3), the principal benefit was set out in paragraph 10.26:

The inspector dealt with material consideration (1) in paragraphs 10.21 and 10.22 as follows:

Drawings the threads together, the inspector said in paragraph 10.30:

The inspector's overall conclusion was "in favour of the appeal proposals and path diversion" and he therefore recommended that planning permission should be granted and the bridleway diverted. He sent his report to the Secretary of State on 4th March 2003.

In a letter dated 17th July 2003 the Secretary of State drew the parties' attention to the revised National and Regional Guidelines for the Provision of Aggregates for the 16-year period 2001-2016 issued on 10th June 2003 ("the new guidelines") which replaced the guidelines previously contained in Annex A to MPG6, published in 1994 ("the old guidelines"). The letter stated that the Secretary of State considered that the new guidelines were a new material consideration which he should take into consideration in reaching a view on the claimant's appeals, enclosed a copy of the new guidelines and invited the parties to comment on the appeals in the light of the new guidelines. After dealing with other matters not relevant for present purposes, the letter said:

The new guidelines contained a figure of 20 million tonnes for land won sand and gravel from the North East region. This was a reduction from the figure of 23 million tonnes which had been contained in the Consultation Draft of the new guidelines which the inspector referred to in paragraph 10.8 of his report. Comparison with the old guidelines is complicated by the fact that in 1994 the Northern Region included Cumbria. Nevertheless, it is common ground that the new figure of 20 million tonnes for the North East region for the 15 years from 2001-2016 is a very substantial reduction by comparison with the 50 million tonnes for the Northern Region (North East region plus Cumbria) for the 15-year period to 2006 contained in MPG6.

The claimant responded to the Secretary of State's invitation to comment on the new guidelines in a detailed paper attached to a letter dated 31st July 2003 ("the response"). At that stage there had been no subregional apportionment of the 20 million tonnes. The response carried out such an apportionment (making due allowance for the loss of Cumbria). Using the most recent sales figures, the claimant updated Table 4.2 in a series of tables based upon a number of assumptions that were explained in the response. Table 3 showed that, on the basis of the revised figures, there was no shortfall in the 7-year landbank of concreting sand, rather there was a very small surplus of 20,000 tonnes. However, it was contended that "in accordance with the logic of Policy M1" there should be an 11-year supply of concreting sand (the remaining plan period plus 7 years). On that basis, Table 6 showed a shortfall of 620,000 tonnes in the 11-year landbank of concreting sand.

The response also argued that the new guidelines were inadequate and that a more realistic subregional requirement would be based on the last two years' sales/production. On that basis the shortfall in the 11-year landbank for concreting sand was shown in Table 6a as 1.25 million tonnes.

The conclusions in the claimant's response were as follows:

The council's comments on the new guidelines in a letter dated 4th August 2003 were relatively brief:

In a letter dated 23rd September the Secretary of State made sure that the parties had seen each other's comments and invited any final comments from them by 7th October 2003. On 7th October, in a letter sent to the claimant's solicitors, the council said this, inter alia:

The council sent the claimant a copy of the working party report, although in fact the claimant is represented on the working party.

Paragraph 2.4 of the working party's report stated that if information contained in a 2002 survey was used there would be "sufficient permitted reserves of sand and gravel in County Durham". Paragraph 3.1 of the working party's report said this:

Having said that, for the reasons given in the decision letter he disagreed with the inspector's recommendation, the Secretary of State dealt with the post-inquiry correspondence. In paragraph 5 of the decision letter he said:

The Secretary of State agreed with the inspector's identification of the three main issues, and agreed with his conclusions in relation to the first two issues. In paragraph 11 the Secretary of State of said:

Under "Other Material Considerations" the relevant paragraphs of the decision letter are as follows:

In paragraph 19 the Secretary of State agreed with the inspector's conclusions that there would be some other benefits in terms of sustainable development. The Secretary of State's conclusions in respect of the other material considerations are contained in paragraph 20 of the decision letter:

The Secretary of State's overall conclusions are set out in paragraphs 21 and 22 of the decision letter:

On behalf of the claimant, Mr Pickles challenged the Secretary of State's decision on four grounds. He submitted that the Secretary of State had:

Rule 17 deals with the procedure to be followed after an inquiry. Paragraph (5) of Rule 17 provides:

Although Mr Pickles, understandably, placed considerable emphasis on the inspector's conclusions that "there is a continuing shortfall in the landbank in respect of concreting sand" and that the proposals "would amount to a worthwhile and not insignificant addition to the sand and gravel landbank", it is important to set those particular conclusions in context when considering the adequacy of the Secretary of State's response to the claimant's case in the light of the new guidelines. In summary, the inspector's conclusions were as follows.

Against the background of these conclusions, an unquantified shortfall in the landbank in concreting sand that was not in practice "acute and persistent", and which was capable of being met from the areas of search, it was very much a matter of planning judgment as to whether the proposed addition to the sand and gravel landbank would or would not be "worthwhile". Common sense would suggest that, all other things being equal, if new information was received which resulted in an increase in the life of a landbank and a corresponding reduction in the need to rely upon the areas of search to make good any shortfall in permitted/allocated reserves, then adding the minerals in the rock pillar to the landbank would tend to become less "worthwhile". In essence that is what the Secretary of State concluded, and his conclusion is not in the least surprising in the light of the information contained in the new guidelines.

In paragraph 11 of the decision letter the Secretary of State agreed with the inspector's conclusion that the proposals were contrary to the development plan for the reasons given by the inspector in paragraphs 10.3-10.10. In paragraph 10.3 the inspector had concluded that the reported current shortages of sand reserves may be more to do with the operation of the market than with insufficient planning provision, and in paragraph 10.9 the inspector had concluded that the proposals did not satisfy criterion (a) in policy M12, because it had not been demonstrated that there was an established need which could not be met from the areas of search.

Against that background, the Secretary of State clearly understood the thrust of the claimant's response to the new guidelines. In paragraph 5 he noted that the new guidelines had not caused the parties to change their cases. Thus, the claimant continued to argue that there was a shortfall in the landbank for concreting sand, and the council continued to argue that any calculated shortfall was theoretical rather than real and could be met if necessary from the areas of search.

In paragraph 15 of the decision letter, the Secretary of State summarised the claimant's response to the new guidelines. They did not make adequate provision for the sand and gravel requirements of the North East and "if a more realistic view of the Durham requirement is taken, the existing reserves of concreting sand are seriously inadequate."

In paragraph 16 of the decision letter the Secretary of State made it clear that he did not accept those arguments and agreed with the council and the working party that the predicted demand in the new guidelines would be reflected in reduced annual sales which would increase the life of the landbank. Rather than having to rely on the areas of search to make up a calculated shortage in the landbank, the Secretary of State agreed with the working party's view that "County Durham's supply of sand and gravel until 2016 can be met from existing permitted resources." Although concreting sand is not specifically mentioned, it is clearly included under the heading "sand and gravel". If the working party had felt that there was concern about the supply of concreting sand to 2016, then it would undoubtedly have said so. The claimant is represented on the working party.

In these circumstances the Secretary of State was entitled to disagree with the inspector's conclusion that the proposed addition to the sand and gravel landbank would be "worthwhile" and it is readily understandable why he so concluded (paragraph 20 of the decision letter).

Mr Pickles submitted that there had been three strands to the claimant's response to the new guidelines and the Secretary of State had addressed only two of them. The claimant had argued that the guidelines themselves were inadequate. The Secretary of State had not accepted that argument and had been entitled to accord the new guidelines "significant weight". The claimant had also argued that the reserves of concreting sand were seriously inadequate if a "more realistic view" of the subregional requirement was taken based on higher sales figures over the last two years.

It was accepted that the Secretary of State, in agreeing with the council's assessment of the effect of the new guidelines (that they would reduce annual sales), had rejected that argument based upon increased sales figures. However, it was contended that the Secretary of State had failed to deal with the argument, represented by Table 6, that applying the new guidelines and the methodology used to produce Table 4.2 in the Local Plan there was still a shortfall of 620,000 tonnes in the landbank in respect of concreting sand. In essence the claimant contends that the council's response to the new guidelines -- with which the Secretary of State agreed -- considered sand and gravel generally, but did not "erase or erode the sub-regional shortfall of concreting sand". Thus the Secretary of State failed to grapple with an essential aspect of the claimant's case in the light of the new guidelines.

I do not accept that submission. In its conclusions in the response (see above) the claimant drew attention to the fact that a 7-year landbank of concreting sand existed "with a margin of only 20,000 tonnes". That was the figure which was contained in Table 3. Thus the claimant's own revised figures showed that, on a comparable basis to that presented at the inquiry, the shortfall of concreting sand (which had been calculated by the council at 1.9 million tonnes and by the claimant as 3.18 million tonnes) had been erased. The claimant's own figures also showed that, however the shortfall was calculated, it had been substantially eroded. It will be noted that the 620,000 tonne shortfall in Table 6 now relied upon by Mr Pickles was not specifically referred to in the conclusions in the claimant's response. It was however based upon a need to maintain an 11-year landbank for concreting sand. Upon the premise that such a calculation was required for the purposes of policies M1 and M2 in the Local Plan, it will be recalled that the inspector (with whom the Secretary of State agreed) did not consider that the shortfall in the 7-year landbank, which the council had calculated at 1.9 million tonnes, represented an "acute and persistent need" or "an insufficiency of planning provision". On the claimant's own revised figures there was not even a calculated shortfall in the 7-year landbank. The claimant could maintain its case that there was still a shortfall (of 620,000 tonnes) in the landbank for concreting sand in the light of the new guidelines only by looking even further into the future. On the claimant's own revised case, there was a much reduced shortfall by comparison with the figures that had been considered by the inspector, and a shortfall only if one looked at an 11-year period.

Reading the decision letter as a whole, it is plain that the Secretary of State did not accept that this was a realistic assessment of need. In the light of what the Secretary of State described as "the substantial reduction" in the regional provision in the new guidelines, which would be reflected in reduced annual sales of sand and gravel, the Secretary of State concluded that there is "currently no need to release more minerals for aggregate production" at the quarry (my emphasis). In so concluding, the Secretary of State appreciated that the inspector had considered the appeal against the background of the consultation draft of the new guidelines which reduced the regional provision for sand and gravel. The inspector considered that the change of direction was "emphatic". The Secretary of State noted that there was a further reduction (from 23 million tonnes to 20 million tonnes in the final version of the new guidelines) (paragraph 14 of the decision letter).

Looking to the future against this policy background, the Secretary of State expressly agreed with the council's view that the county's supply of sand and gravel until 2016 could be achieved from existing permitted resources. Thus when considering "current" needs, the Secretary of State was also looking well into the future.

For these reasons, I am satisfied that the Secretary of State did consider all the aspects of the claimant's argument that there continued to be a need for concreting sand, notwithstanding the new guidelines. He rejected those arguments and gave adequate and intelligible reasons for so doing. In essence he agreed with the case that had been advanced by the council in response to the new guidelines.

It follows that the principal ground of challenge, ground (1), fails and I can deal relatively shortly with the remaining grounds.

The Secretary of State dealt with sustainable development in paragraphs 18 and 19 of the decision letter. He agreed with the inspector that the existing scheme of working effectively involved the sterilisation of sand resources and agreed with the inspector's other conclusions under the heading of sustainable development. He did not agree with the inspector's conclusion that the release of the sterilised sand resources would be a benefit, because he had concluded that there was "currently no need to release more minerals". That conclusion must be seen in the context of the Secretary of State's agreement with the council that County Durham's need for sand and gravel until 2016 could be achieved from existing permitted reserves.

Mr Pickles submitted that in policy terms the avoidance of sterilisation of mineral reserves was an end in its own right. He pointed to the four aims set out in paragraph 3.2 of the Local Plan, one of which is "the protection of mineral resources from unnecessary sterilisation". Under the heading of "Sustainability", paragraph 3.5 of the plan says:

I do not accept Mr Pickles' submission that the Secretary of State effectively ignored the fact that the avoidance of sterilisation was a policy objective in its own right in the Local Plan. In deciding what weight to give to the achievement of that policy objective it will often be necessary to strike a balance between ensuring that planning permission is granted for minerals extraction only in response to an established need and avoiding unnecessary sterilisation of reserves. In striking the balance in any particular case the extent to which need has been established is bound to be a relevant consideration. The Secretary of State did not lose sight of the policy objective. There is no suggestion in the decision letter that he disagreed with the inspector's analysis of this issue in policy terms. He simply disagreed with the inspector's conclusion that releasing the sand resources in the quarry would be a "benefit". In considering whether there would be a "benefit" in releasing more sand resources, the Secretary of State was considering the issue in the round: whether a grant of planning permission which would avoid sterilisation (desirable in principle in policy terms) would be of any practical advantage, given that there was currently no need to release more minerals. Since the inspector had concluded that the proposals would be a "worthwhile addition" to the sand and gravel landbank, it is not surprising that he also considered that not sterilising this "not insignificant" reserve would be a benefit. Since the Secretary of State was entitled to conclude that the addition to the landbank of the mineral resources in the rock pillar would not be worthwhile, he was also entitled to conclude that avoiding the sterilisation of those resources was not a "benefit", even though non-sterilisation is desirable in principle in policy terms. I therefore reject ground (2).

In paragraph 10.19 of the inspector's report, the inspector concluded that although there were conflicts with the development plan "the resulting harm would be very limited in practical terms". Ground (3) boils down to a complaint that the Secretary of State failed to acknowledge this, by cross-reference or otherwise, in the decision letter. The inspector concluded in paragraph 10.30 that the benefits that he had identified were "sufficient to outweigh the harm that would be caused, including that associated with the policies conflicts" that he had identified. Thus, the inspector balanced the benefits that he perceived against the harm that he had perceived.

There is nothing in the decision letter to suggest that the Secretary of State disagreed with the inspector's assessment of the harm that would be caused by the proposals, including that associated with conflict with the development plan. The decision letter explains where the Secretary of State disagreed with inspector's conclusions and why he did so. Although the inspector did not refer to them as such, the two principal benefits identified by him were the conclusion that the proposed extraction would be a "worthwhile addition" to the sand and gravel landbank, and a "definite benefit" in sustainability terms because it would avoid unnecessary sterilisation of mineral resources.

Reading the inspector's report as a whole, it is plain that the other benefits, with which the Secretary of State did not disagree, were relatively minor by comparison. In the light of the new guidelines, the Secretary of State disagreed with the inspector's conclusions in relation to the two principal benefits. That caused the balance to tip against the grant of planning permission contrary to the development plan, and the Secretary of State to conclude that were in his view "the limited benefits" were not sufficient to outweigh the harm that would be caused, including that associated with the policy conflicts. As summarised in paragraph 22 of the decision letter (see above) the Secretary of State's position in this respect is readily intelligible. I therefore reject ground (3).

Although Mr Litton on behalf of the Secretary of State and Mr Taylor on behalf of the council sought to persuade me to the contrary, I am satisfied that there was a breach of Rule 17(5). Assuming that the revised figures for regional production of sand and gravel in the new guidelines were matters of government policy, the Secretary of State undoubtedly took into account "new evidence", viz the council's comments on the new guidelines and in particular the working party's conclusion, as a result of the subregional apportionment, that County Durham's supply of sand and gravel until 2016 could be achieved from existing permitted reserves.

It was this new evidence, which included but was not confined to matters of government policy, which caused the Secretary of State to disagree with the inspector's view that the addition to the sand and gravel landbank would be worthwhile and that the release of resources sterilised by the existing working plan would be a benefit, and hence caused him to disagree with the inspector's recommendation that planning permission should be granted.

At some stage after the receipt of the council's letter dated 7th October 2003 and before the date of the decision letter, there must have been a time when the Secretary of State was "disposed to disagree" with the inspector's recommendation because he had taken this new evidence into consideration.

At that stage he should have notified the parties of his disagreement with the inspector and the reasons for it and given them an opportunity of making written representations or asking for the reopening of the inquiry. The letter dated 17th July 2003 made it clear that the Secretary of State was not, at that stage, disposed either to agree or to disagree with the inspector's recommendation. He merely wished to be in a position to take a fully informed decision.

However, the Secretary of State did give the parties an opportunity to comment on the implications of the new guidelines for the appeal. The claimant took full advantage of that opportunity and made very detailed representations. Having ensured that each party had seen the other's representations, the Secretary of State then invited final representations from the parties. The claimant chose not to make any further representations in response to the council's letter dated 4th August 2003, and did not address the working party's conclusions which the council had drawn to the Secretary of State's attention in its letter dated 7th October 2003.

Although it is true that the Secretary of State did not tell the claimant that he was disposed to disagree with the inspector's recommendation, the claimant was clearly well aware of the fact that there was a very real possibility that the substantial reduction in the regional provision for sand and gravel production would lead the Secretary of State to the conclusion that planning permission should be refused on the ground of need. It is precisely for this reason that it argued in its representations that the new guidelines should not lead the Secretary of State to that conclusion. The council argued to the opposite effect.

In these circumstances, the breach of Rule 17(5) can fairly be described as merely technical, and I am satisfied that it has not caused any substantial prejudice to the claimant. The claimant's response had explained in great detail the reasons why it contended that there was a continuing case on the basis of need, notwithstanding the new guidelines. The Secretary of State considered the claimant's arguments and rejected them. In reality, there were no further arguments that could have been advanced by the claimant if the Secretary of State had said that he was minded to disagree with the inspector for the reasons summarised in paragraph 22 of the decision letter. For this reason, I reject ground (4).

I should add that even if I had been persuaded that there had been substantial prejudice, I would still have hesitated long and hard before quashing this particular decision letter as a matter of discretion. The Secretary of State's view of the implications of the new guidelines for the appeal proposals is very clear indeed. There is absolutely nothing to indicate that quashing this decision letter might result in the Secretary of State reaching a different decision on the need for the release of more minerals at the quarry in the light of the new guidelines.

For these reasons, this application must be dismissed.

Mr Litton, yes.

MR LITTON: The question of costs arises. I understand that agreement was reached as between the Secretary of State and the claimant that in the event that the claim should fail that the claimant should pay the Secretary of State's costs to the tune of £6,500.

MR JUSTICE SULLIVAN: Confirmed?

MR PICKLES: Your Lordship, confirmed. Absolutely no point in relation to the Secretary of State's costs.

MR JUSTICE SULLIVAN: Right.

Miss Olley, is there any point in relation to the second defendant's, the county's costs, or are you keeping your head down?

MISS OLLEY: My Lord, I do have an application for our costs.

MR JUSTICE SULLIVAN: You do, right.

MISS OLLEY: My Lord, do you have our schedule that we supplied to you?

MR JUSTICE SULLIVAN: I do not think I have. Wait a minute, I might have put it at the back of this bundle. So it is possible it arrived a long time ago, I cannot remember. I will just have a look. (Pause)

MISS OLLEY: My Lord, may I pass up another copy to assist your Lordship? (Handed)

MR JUSTICE SULLIVAN: The answer is I have not. I think rather than the detail, it is rather more the principle of the thing, is it not? You would have to persuade me that there were particular reasons why there should be two lots of costs in this case.

MISS OLLEY: Yes, my Lord.

MR JUSTICE SULLIVAN: So if we deal with that before we delve into the detail, maybe.

MISS OLLEY: The application is made on the basis that the planning authority's presence was necessary to assist in the explaining of the figures on minerals planning need.

Further, in relation to the ground of argument relating to regulation 17(5), the First Secretary of State did not indicate in its skeleton argument that it would be suggesting that, first, the regional guidelines represented government policy or, secondly, that no substantial prejudice arose. In the event, the regulation 17(5) issue has turned on whether or not substantial prejudice existed. The local planning authority therefore had to attend to ensure that that point was taken.

MR JUSTICE SULLIVAN: Can I just remind myself of Mr Litton's skeleton argument. I seem to remember it did not give Mr Pickles too much hope, I would have thought, on the Rule 17(5) point.

MR LITTON: I certainly did not in the skeleton argument raise the issue of substantial prejudice. That was a point that was put against me and argued by Mr Pickles. You may recall that my retort was that actually the onus was on him to demonstrate there was substantial prejudice.

MR JUSTICE SULLIVAN: Your point was that there was no --

MR LITTON: His skeleton had not done that.

MR JUSTICE SULLIVAN: I do remember that, that tit for tat. But I think your point was there had not been a breach of Rule 17(5) at all. So on your approach you would not have got substantial prejudice. It was not as though you gave Mr Pickles an undue amount of comfort.

That is the basis on which you put the --

MISS OLLEY: Yes, my Lord.

MR JUSTICE SULLIVAN: Thank you very much.

Mr Pickles, I do not think I need to trouble you about that application.

The order of the court is that the application will be dismissed. The claimant is to pay the Secretary of State's costs summarily assessed in the sum of £6,500.

In respect of the council's costs, I make no order in response to the application that is made. The general rule is that two lots of costs are not awarded. I am not persuaded that the circumstances here were sufficiently exceptional to justify an award of two lots of costs. I can well understand that the County Council would wish to be here, but that is not a sufficient reason to justify an award of costs.

In respect of the two matters that were specifically raised, there was no indication in the Secretary of State's skeleton argument that any concession would be made in relation to regulation 17(5). So far as the figures were concerned, it was a feature of the council's evidence that a deal of information was indeed given about the minerals figures, but that went (if I could put it as politely as possible) somewhat beyond the information that was contained in the inspector's report and which would have been germane for the purposes of this case, and perhaps verged upon a re-argument of the merits on slightly different figures.

For those reasons, I am not persuaded that this is a case which justifies two lots of costs. I intend no criticism of the council at all in that respect. It is simply that has not got over the high threshold for justifying two lots of costs.

In conclusion, I would like to thank all counsel for their assistance. Miss Olley, I would be grateful if you would thank Mr Taylor please as well.