Ashton, R (on the application of) v First Secretary of State & Ors

MR JUSTICE HARRISON: This is an application by the claimant, Mr Ashton, under section 288 of the Town and Country Planning Act 1990 to quash a decision of the first defendant, the First Secretary of State, dated 29th September 2003 made through his inspector, allowing an appeal by the third defendant, Bromley Estates Ltd, against the refusal of the second defendant, Wolverhampton City Council, to grant planning permission for the demolition of a bungalow and the construction of a two-storey residential development comprising seven apartments with parking at Lower Leys, 46 Mount Road, Tettenhall Wood, Wolverhampton.

The second defendant was not represented at the hearing of this case. Their position was stated, in a witness statement lodged by them, as being neutral.

The circumstances are somewhat unusual in that, at the beginning of the inquiry which was held on 9th and 10th September 2003 to consider the third defendant's appeal, an amendment was made by the third defendant to the width of the site access to Mount Road. That amendment satisfied the second defendant. As the width of the site access was the second defendant's sole ground of refusal, they offered no evidence at the inquiry and took no further part in it. The amendment had already been the subject of a further application which had not yet been determined by the second defendant. The third defendant asked for an adjournment of the inquiry to enable the second defendant to determine that application so that, anticipating the grant of permission, the inquiry would then be unnecessary. The inspector, however, refused an adjournment. He said that the outcome of the further application could not be taken for granted. If it were, the objectors would be deprived of their opportunity to make their views known and for the case to be fully aired. The inquiry therefore continued with oral representations against the proposal being made by the third party and interested persons. They consisted of, firstly, the Mount Road Residents' Action Group, who were represented by counsel and who called three witnesses, one of whom, Mr Acton, was a highways consultant; secondly, the claimant who was a member of the Action Group but who appeared in person on his own behalf; and thirdly, another local resident.

The inquiry lasted for two days. A large number of points were made by the objectors for the inspector to consider. The main issues were summarised by the inspector in his decision letter as being, firstly, the effect of the development on the character and appearance of the area and on the street scene; secondly, its effect on highway safety for users of the site access and the road in its vicinity; and thirdly, its effect on the continuing viability of protected trees on the appeal site.

Highway safety was therefore one of three main issues for the inspector to consider. Evidence on that aspect was given on behalf of the third defendant by their highways consultant, Mr Buckley. The Action Group called its highways consultant, Mr Acton. The claimant's evidence was given by reference to a 26-page document entitled "Planning Objection" which had been submitted by the claimant to the second defendant when they were considering the planning application but on which he also relied at the inquiry. That document had a number of attachments, one of which was a letter written from the Halcrow Group ("Halcrows"), who are highways consultants, to the second defendant on the claimant's behalf setting out the highways objection to the proposed development. I should also mention that, prior to the inquiry, the second defendant had submitted to the inspector, in accordance with the Inquiry Procedure Rules, the proof of evidence of its highways expert, Mr Storey, a consultant engineer. He was not called to give evidence in view of the fact that the amendment had satisfied the second defendant's only ground of refusal relating to the width of the site access, but reference was made to his proof of evidence during the inquiry.

Both Mr Acton, on behalf of the Action Group, and Halcrows, in their letter written on behalf of the claimant, raised highway safety issues relating to the adequacy of the visibility splays at the junction of the access road with Mount Road, and to the juxtaposition of the site access in relation to two substandard accesses on the other side of Mount Road, one being an exit from the Mount Hotel car park for 120 cars which was 5 metres to the west, the other being Tor Lodge Drive serving eight residential properties which was 5 or 10 metres to the east. I will refer to those two issues as visibility splays and junction spacing.

In order to explain the issue relating to visibility splays it is necessary to understand that they are governed by what are known as the "X" and "Y" distances. The Y distance is the length of the visibility splay and the X distance is the distance back from the junction from which the Y distance should be measured. The length of those distances are ascertained by reference to published guidelines. They are found in Design Bulletin 32, referred to as DB 32, and a document called "Places, Streets and Movement".

The inspector in this case adopted a Y distance of 90 metres and an X distance of 2.4 metres. There is no issue taken with his decision relating to the Y distance. The issue, so far as visibility splays are concerned, relates to his adoption of an X distance of 2.4 metres. The relevant paragraphs of the inspector's decision letter relating to visibility splays are found at paragraphs 19 to 21 of that document.

In paragraph 19, the inspector referred to the visibility in both directions from a point 2.4 metres back from the highway edge. In paragraph 20, he dealt with the speed of traffic along this section of Mount Road which was a matter in dispute at the inquiry and which was relevant to the Y distance for the visibility splays, his conclusion being that it was reasonable to assume an 85 percentile speed of 37 to 38 miles an hour. In paragraph 21 of the decision letter, he stated:

The main point made by the claimant in these proceedings is that the inspector completely failed to deal with his case, and the Action Group's case, that the X distance should be 4.5 metres, and that he also failed to deal with the separate but associated highway safety point made by him and the Action Group relating to the junction spacing. It is said that he therefore failed to deal with material considerations. Alternatively, it is said, if the inspector did deal with those points, which were either singly or in combination principal controversial issues or substantial points, he failed to give adequate reasons for his decision as a result of which the claimant has been substantially prejudiced. Basically, the claimant contends that the inspector did not deal fairly with his case. He says that he does not know if the inspector dealt with the two highway safety issues that he raised or, if he did, why he rejected them.

Dealing first of all with the published guidance relating to the X distance for visibility splays, DB32, paragraph 3.63 states:

Paragraph 3.64(c), which was referred to in that paragraph which I have just quoted, states as follows:

PPG 13, Annex D, which was published in 1994, contained the following guidance in paragraph 2, which stated:

As can be seen, DB32 and PPG 13, Annex D were not entirely consistent with each other in their guidance relating to the X distance for developments of half a dozen dwellings, the development in this case being for seven apartments.

The introduction to "Places, Streets and Movement", which was published in September 1998, stated that it promoted a flexible interpretation of DB32. It stated:

It is necessary to refer to the guidance at page 58 of that document in a little detail because there is a dispute as to the proper interpretation of that document. There is a sub-heading at the top of the page entitled in bold type "Sightlines at Road Junctions". The first paragraph under that sub-heading states:

A bit further down under that sub-heading, it states "Requirements for X and Y dimensions are summarised as ..." and then it sets out the X distance dimensions. After referring to an X distance of 9 metres, it states:

There then follows a sub-heading in bold type: "The advice in this section supersedes that contained in both PPG 13 and DB32", under which it gives the Y dimensions in Tables A and B with a note that Tables A and B are drawn from Annex D of PPG 13.

In the dispute over the interpretation of that part of "Places, Streets and Movement", the first and third defendants maintained that the sub-heading "The advice in this section supersedes that contained in both PPG 13 and DB32" refers to the X dimensions mentioned above it, whereas the claimant maintained that it refers to the Y dimensions below it, the section above it relating to the first sub-heading "Sightlines at Road Junctions".

At the inquiry, Mr Buckley's evidence on behalf of the third defendant was that the correct X distance was shown by page 58 of "Places, Streets and Movement" to be 2.0 or 2.4 metres. The evidence given by Mr Acton on behalf of the Action Group, and by the claimant, relying on Halcrows' letter, was that the correct X distance was 4.5 metres. They both relied on DB32. Neither Mr Acton in his proof of evidence nor Halcrows in their letter referred to "Places, Streets and Movement". Mr Acton, in cross-examination, stated his belief that the words "The advice in this section supersedes that contained in both PPG 13 and DB32" on page 58 of "Places, Streets and Movement" referred to the Y distance tables below those words, not to the text above them. He said in cross-examination, relying on the words in the introduction to that document which I have already quoted, that the guidance in that document related more to new housing areas than to new accesses in existing residential areas.

Mr Storey's proof of evidence prepared on behalf of the second defendant (which, it will be remembered, was not given in evidence but which had been sent to the inspector before the inquiry in accordance with the Inquiry Procedure Rules and which was referred to by the claimant and by the Action Group at the inquiry), referred to the fact that guidance was given by DB32 and by "Places, Streets and Movement" although, when stating the relevant sections of documents, his evidence only referred to sections of DB32. His opinion was that the minimum X distance in this case should be 2.4 metres. He remarked that what he called "the standard visibility splays" of 4.5 metres x 90 metres could not be achieved. He said that "it was determined" that the appropriate splays should be 2.4 metres x 90 metres. It seems from later paragraphs of his proof of evidence that he was there referring to the views of the second defendant and its officers rather than to his own view because he expressly stated later in his proof of evidence that, to conform with the guidance in DB32, the visibility splays would need to be 4.5 metres x 90 metres. Indeed, he stated in his proof of evidence:

The evidence relating to the other aspect of highway safety, the issue of junction spacing, was dealt with by the claimant in his own evidence and in his closing submissions. It was also dealt with by Halcrows in their letter upon which the claimant relied. They pointed out the safety risk from the proximity of the two sub-standard accesses on the other side of the road, giving rise to the danger of right turning vehicles hooking around each other which, it was said, would have an unacceptable adverse impact on highway safety. That was also an additional factor relied on by Halcrows in relation to the appropriate visibility splays.

Mr Acton also dealt with the issue of junction spacing in his evidence on behalf of the Action Group. He too drew attention to the potential accident risk arising from the hooking movement of vehicles.

Mr Buckley, in his evidence on behalf of the third defendant, said that, whilst in an ideal world it would be preferable to separate turning vehicles, it was not possible in an urban situation. He accepted that hooking would occur but he thought that the low traffic volumes would be unlikely to cause a problem in practice.

The inspector dealt with the issue of highway safety in paragraphs 19 to 23 of the decision letter. I have already referred to paragraphs 19 to 21 of the decision letter when dealing with the issue of visibility splays. Paragraph 22 dealt with the issue of the width of the site access which had been the subject of the amendment which had satisfied the second defendant but not the other objectors. In paragraph 23, the inspector concluded on the second main issue of highway safety that the proposals would cause no significant harm in terms of highway safety for users of the site access and the roads in its vicinity. The point made by the claimant in respect of the junction spacing issue is that the inspector did not deal with the issue of highway safety arising out of the proximity of junction spacing and the hooking of vehicles. In the same way as with the issue of the X distance, the claimant contends that that is another failure of the inspector to deal with a material consideration or, if he did deal with it, it was another failure to give adequate reasons.

So far as the X distance for the visibility splays are concerned, it was submitted on behalf of the first defendant that Mr Acton, Halcrows and Mr Storey were all at fault in relying on DB32. Furthermore, it was said that Mr Acton was at fault in relying on PPG 13, Annex D because that had been superseded in March 2001 by another PPG 13 whose Annex D did not deal at all with visibility splays. It was therefore submitted that the evidence of those witnesses was vitiated by a failure to realise that the relevant standards for visibility splays were governed by "Places, Streets and Movement". It was argued, in effect, that the evidence of those witnesses was so plainly wrong that the inspector did not have to deal with the issue in his decision letter. Alternatively, it was suggested that I should infer that the inspector did not deal with their evidence relating to an X distance of 4.5 metres in order to save the blushes of those experts. If I were to hold that the inspector should have dealt with the issue, it was submitted that I should exercise my discretion not to quash the decision because the decision would still have been the same in any event.

Those submissions were adopted by the third defendant whose counsel had represented the third defendant at the inquiry. The two main submissions made on behalf of the third defendant relating to the X distance for the visibility splays were, firstly, that it was not a principal important controversial issue and therefore did not have to be dealt with by the inspector and, secondly, that there was no real possibility of the inspector concluding that 4.5 metres was the correct X distance in any event.

In support of those submissions it was suggested that the issue of the X distance was just one part of a calculation relating to one aspect of highway safety which was just one of a range of issues at the inquiry. The claimant, whose primary concern had been the preservation of the bungalow on the site, had raised a large number of issues and had not expressly referred to the X distance of 4.5 metres in his final submissions. The inspector could not reasonably be expected to deal with all 34 key points that he raised. In any event, it was said, the inspector had referred to the X distance of 2.4 metres twice in his decision letter, so his decision on that aspect was known.

So far as interpretation of published guidance is concerned, it was submitted that "Places, Streets and Movement" superseded the guidance in DB32 relating to visibility splays but that, in any event, even if DB32 were applied, it was obvious that an X distance of 2.4 metres was appropriate, bearing in mind that the site would only generate six vehicles in the peak hour, which could not be said to be a busy non-priority road, and that there was no need for two vehicles to leave the site at the same time.

Reliance was placed on Mr Buckley's evidence and on the fact that the second defendant, as both planning and highway authority, was satisfied with an X distance of 2.4 metres. It was pointed out that the third defendant had not been able to cross-examine Halcrows or Mr Storey. Halcrows had been criticised by all the other experts for the way in which they had dealt with the speed survey, and their evidence relating to the X distance was said to be tentative in nature in any event. Mr Acton was also criticised by the third defendant for relying on PPG 13, Annex D when it was out of date, showing that he had not kept up to date with current guidance. Overall, it was submitted that there was no way in which the inspector was going to conclude that 4.5 metres was the correct X distance.

Turning to the issue of junction spacing, the submissions on behalf of the first and third defendants were, put briefly, that it was not a principal important controversial issue, it was not of concern to the highway authority or Mr Storey, the evidence of Halcrows and Mr Acton on the issue was only of a tentative nature, the inspector had seen the junctions for himself on his site visit and Mr Buckley had given evidence that there had not been any accidents along the frontage of the property over the last five years. If, however, I were to conclude that the inspector should have dealt with the issue, I should exercise my discretion to refuse relief because the inspector would still have come to the same conclusion in any event.

So far as the law is concerned, I was referred to the well-known principles applicable to cases such as this. In particular I was referred to the seven principles mentioned by Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority [1990] 61 P&CR 343, the second and third of those principles being that the decision maker ought to take into account a matter which might cause him to reach a different conclusion but not a matter of trivial or small importance where there was a real possibility that it would make no difference to the decision. The seventh principle relates to discretion, which can be exercised in exceptional circumstances, to refuse relief even though there has been an error of law.

I was also referred to the well-known principle that a decision maker must state his reasons in sufficient detail to enable the reader to know what conclusions he has reached on the principal important controversial issues, but that he is not required to refer to every material consideration however insignificant or to deal with every argument however peripheral (see Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 3 PLR 37). In fact, the law relating to the giving of reasons has now been helpfully summarised in paragraph 36 of Lord Brown's speech in South Bucks Districts Council v Porter [2004] 6 KHL 33, the report of which only became available during the hearing of this case. I do not quote paragraph 36 because it is, in effect, a summary of well-known principles.

Finally, so far as the law is concerned, I was reminded of the test applied in Purchas LJ in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [1988] 3 PLR 25 when dealing with the exercise of discretion, namely whether the decision maker would necessarily have reached the same conclusion in any event.

Whilst the level of detail that has been involved in this case can be said to be disproportionate to the importance of the points in dispute, it has to be remembered that development decisions can assume considerable importance to those that are affected by them. They are entitled to expect the decision maker to deal with matters they have raised which might cause the decision maker to reach a different decision from that which he would otherwise have made. A sense of fairness, if nothing else, requires that to be so.

The claimant in this case raised the issue of the correct X distance for the visibility splays and the issue of junction spacing but the inspector did not deal with either of those issues in the decision letter. The claimant, however, also raised a large number of other points in his "Planning Objection" document, some 34 key points as he called them, as well as providing handwritten closing notes dealing with 14 topics. I have very considerable sympathy with the inspector when faced with that kind of objection which is over-detailed and disproportionate to what was in issue and which therefore overburdens the inspector unnecessarily. However, it is right to say that the claimant's objections were made clearly and in an orderly fashion. He listed seven categories of topics in his "Planning Objection" document and he explained that his 34 key points varied in importance but that those of special significance were discussed with supporting arguments in his conclusions. His key point 32 related to the visibility splays, arguing for a 4.5-metre X distance by reference to DB32 and to Halcrows report which was appended. His key point 33 related to the issue of junction spacing. In his conclusion, he identified three principal issues, the first being public road safety which related to the issues of visibility splays and junction spacing. In his closing notes he identified 14 topics, one of which was road safety. Although his notes dealing with that topic do not specifically mention the X distance of 4.5 metres, he does refer to the Halcrow report which deals with that issue.

It can be seen, therefore, that although his representations were over elaborate, they were clearly presented and the most important points were identified by him. Although, therefore, I have considerable sympathy with the inspector in having to plough through the plethora of points raised by the claimant, it was certainly possible for him to identify without too much difficulty firstly the fact that the claimant was attaching particular importance to the issue of highway safety and secondly that his key points on that issue were visibility splays and junction spacing.

Furthermore, it was not only the claimant, together with Halcrows, who were arguing the 4.5 metre X distance and the junction spacing issue -- it was also argued by Mr Acton on behalf of the Action Group. His proof of evidence specifically dealt with those two issues, as did Mr Buckley's proof of evidence on the other side. There was disagreement between the experts as to the appropriate guidance and the appropriate standard to apply for the X distance. Both sides dealt with that issue in their closing submissions.

There is no doubt therefore, not only that highway safety was one of the three main issues identified by the inspector, but also that visibility splays and junction spacing formed important aspects of that issue in respect of which there were conflicting arguments at the inquiry. There can be no doubt that the inspector did not deal at all with the junction spacing issue in his decision letter -- there is no dispute about that. He did deal with visibility splays in paragraphs 19 to 21 of the decision letter, but the issue he was dealing with was the Y distance which is determined by reference to speed of vehicles on the main road and there had been a dispute on that matter. Having decided for perfectly proper reasons that the appropriate Y distance was 90 metres, he simply adopted an X distance of 2.4 metres without referring in any way to the dispute between the parties as to whether the X distance should be 2.4 metres or 4.5 metres.

I am bound to say that it has all the appearances of the inspector having adopted the 2.4 metres X distance without applying his mind to the dispute between the parties on that subject. It is significant that he referred to the dispute over the Y distance, but did not refer to the dispute over the X distance. It is also significant that he referred to DB32 and made no reference to "Places, Streets and Movement" which one would have expected him to have done if he was applying himself to the dispute over the appropriate standard for the X distance. My conclusion is that the inspector simply did not apply his mind to what was a genuine issue between the third defendant on the one hand and the claimant and the Action Group on the other hand as to whether the X distance should be 2.4 metres or 4.5 metres. In my view, he therefore failed to take into account a material consideration. If I were wrong about that and he did take it into account, then he certainly failed to give any reasons for preferring 2.4 metres rather than 4.5 metres.

I suspect that he probably failed to deal with it because there was no issue between the second and third defendant on that point. The fact that the second defendant as planning authority and highway authority were content with 2.4 metres does not absolve the inspector from dealing with the dispute between the third defendant and the objectors on that subject. The fact that the second defendant was not taking the point does not mean that the objectors were wrong in taking the point. There was a genuine dispute on a very real aspect relating to highway safety because, if 4.5 metres were the correct distance to apply, it could not be provided without affecting trees which were subject to a tree preservation order and which the inspector, when dealing with another of the three main issues, concluded would not be harmed by the construction of the access road into the site.

It cannot be said that the issue of the X distance was a trivial or unimportant matter. In my view, it was an important matter to resolve, governing as it did the appropriate visibility splay which formed an essential aspect of highway safety which had been identified by the inspector as one of the three main issues in the case. The junction spacing issue involving the risk of hooking of vehicles was less important or prominent than the X distance issue but, in my view, it too could not be dismissed as trivial or of small importance. I consider that the claimant is right in saying that either of those issues, but especially the visibility splays issue, either by themselves or in combination, were capable of being determinative in the decision-making process depending on the view taken of them by the inspector if he had taken them into account and dealt with them. They involved matters of judgment which the inspector was called upon to determine but he failed to do so. The claimant therefore succeeds in establishing his grounds of challenge to the inspector's decision.

The next matter is whether, despite my finding that there was an error of law involved for the reasons I have given, I should nevertheless, in the exercise of my discretion, refuse to quash the decision because the decision would necessarily have been the same if the inspector had dealt with those two issues. That, I have to say, has given me serious food for thought because I recognise the force of the submissions made relating to the strength of the third defendant's case relating to those two issues. It seems to me, on the face of it, that there is considerable force in Mr Buckley's contention that the guidance in "Places, Streets and Movement" relating to the X distance is the applicable guidance in the circumstances of this case and that the distance of 2.4 metres is the correct standard to apply. It may well be that the same conclusion would be reached even if DB32 were applied. It is, though, a fact that three highway consultants have expressed contrary opinions, relying on DB32 which is the very guidance relied on by the inspector in his decision letter. I appreciate that the third defendant did not have an opportunity to cross-examine Halcrows or Mr Storey but they did cross-examine Mr Acton who continued to maintain that DB32 was relevant guidance. I also appreciate that there are criticisms that can be made of Halcrows and Mr Acton, particularly that Mr Acton also quoted PPG 13, Annex D without realising that it was no longer applicable. However, those criticisms do not lead to the conclusion that the views of those experts relating to the X distance are necessarily wrong. At the end of the day, the correct standard to apply must be a matter of judgment and it is for the inspector to decide whose view he prefers and why. I appreciate that it is quite likely that the inspector would reach the same decision but I cannot say that he would necessarily do so. It would be wrong for me, in effect, to substitute my judgment for that of the inspector. I should only exercise my discretion to refuse relief in exceptional circumstances, and the burden is on the first and third defendants to show that there are exceptional circumstances. Whilst they have shown a strong case on the issue of discretion, they have not persuaded me that it would be right to take the exceptional course of refusing relief. The matter is not as clear-cut as to make it obvious that the inspector would necessarily have reached the same conclusion if he had dealt with the issues of the X distance and the junction spacing and, in those circumstances, I do not consider that it would be appropriate to exercise my discretion to refuse to quash the decision.

This application will therefore be granted and the first defendant's decision will be quashed.

MR HOWELL-WILLIAMS: My Lord, it follows from your Lordship's judgment that I am entitled to my costs and I do so ask for them. I do not know whether your Lordship has received a schedule of costs from the claimant, or indeed from any of the other parties, but certainly we have copies available if your Lordship is minded to deal with the detail as well as the principle.

MR JUSTICE HARRISON: I do not recollect having received the details of the costs although it is a little while since I have looked back again at the documents. I am not sure. Can we first of all deal with the point of principle and then come to the matter which you raised?

MR HOWELL-WILLIAMS: My Lord, yes. I am not sure I have very much to offer by way of principle.

MR JUSTICE HARRISON: I am not asking you to do. You are asking for costs against ...?

MR HOWELL-WILLIAMS: The First Secretary of State.

MR JUSTICE HARRISON: Can you resist that, Mr Gibbon?

MR GIBBON: My Lord, no.

MR JUSTICE HARRISON: Then I will order that the first defendant pays the claimant's costs of these proceedings.

MR GIBBON: My Lord, I apologise. There was an aspect of those costs that I should raise before your Lordship. Of course, my friend did raise an issue which was not pursued before your Lordship. I apologise, I was treating that as a slightly different question. I should have apprehended your Lordship's wish to proceed directly to the point.

As you will recall, my Lord, at paragraph 8 of the claim form, the particulars -- it is within the first bundle at page 5 -- you will see the summary error of law set out summarising what has been dealt with in the initial paragraphs and, of course, your Lordship will recall that shortly prior to the hearing the decision was taken on behalf of my learned friend's instructing solicitors not to pursue that matter and your Lordship heard no argument on that.

MR JUSTICE HARRISON: Yes.

MR GIBBON: My Lord, I cannot tell you exactly how many pages in the evidence are dealt with, but there is a significant body of material which your Lordship simply was not referred to at all in the hearing, and I would submit very respectfully to my friend that to a large extent this issue dropped at a late stage. Certainly during my preparation, not immediately prior to the hearing but when I first looked at the papers beforehand, that was a matter which I had needed to look through, and that was a matter which my friend, Mr Young, who appeared before you at the trial, needed to refer to. With the greatest of respect to my friend, I would invite your Lordship in those circumstances to award a percentage of my friend's costs to reflect that issue having dropped away. I would not ask for any costs against my friend in relation to them. I simply ask your Lordship, bearing in mind your Lordship's right to discretion on this issue and the amount of paperwork that was involved, to make some allowance when making the costs against my client which otherwise in principle, as I have indicated to your Lordship, I cannot object to in principle.

MR JUSTICE HARRISON: If you are right on that there are two possible approaches, are there not? One is to order a percentage, or else to say that the first defendant should pay the claimant's costs, save for costs incurred in relation to that ground.

MR GIBBON: My Lord, yes, and as to the latter suggestion, which clearly is open to your Lordship, there are data in the case to suggest that the court should seek to avoid that if the alternative percentage base will work.

MR JUSTICE HARRISON: Simply because it is quicker?

MR GIBBON: It is very difficult in detailed assessment on occasions actually to strip out what is related to a particular issue, whereas if your Lordship, in what is accepted to be a broad and, if you like, ready way, has tried to take a view that does assist enormously on the detailed assessment exercise.

MR JUSTICE HARRISON: I can see that, yes.

MR GIBBON: I have not raised this with my friend beforehand, as we did not have the advantage of knowing your Lordship's views, but clearly my friend has a right to reply to that.

MR JUSTICE HARRISON: Yes. Before I ask you to deal with that Mr Howell-Williams, I have had the benefit of seeing a skeleton on costs on behalf of the third defendant which was prepared by Mr Young on two bases. As he is engaged on happier matters at the moment, he was therefore unable to be here today.

The same point is raised, I think, in that skeleton, is it not, at paragraph 13?

MR SHEPPARD: That is the point, my Lord, and I do make an application on that basis. The fundamental background to that is that we say that we have played an important part in the determination of this appeal. We have brought to it information and knowledge that would not otherwise have been available to the First Secretary and we have played a major role.

MR JUSTICE HARRISON: Those are more the points that are made relating to if you had won.

MR SHEPPARD: My Lord, that is true, but that is the background. With that in mind, my further submission -- and it is really in reliance on what my learned friend put at paragraph 13 -- is that, flowing from that, we are entitled to our costs for the points that were not pursued at the outset of the hearing. Those are the points that my learned friend has addressed you on. We incurred vast expense and a lot of time in dealing with those points in the expectation that we would have to deal with them before your Lordship, and in the event that they were withdrawn that was wasted expenditure in time. So I make the application on that footing and also reliance that the submissions made by Mr Young from paragraph 13 onwards.

MR JUSTICE HARRISON: Thank you very much.

MR GIBBON: Before my friend addresses you, may I mention the difficulty which I share with my friend Mr Howell-Williams, because neither of us has seen that skeleton argument on costs.

MR JUSTICE HARRISON: Have you not? Why was that not sent to the other side?

MR SHEPPARD: My Lord, my understanding was that there were copies certainly served on the court and I had hoped that they had gone to the other side.

MR JUSTICE HARRISON: Left to the court to send them to the other side?

MR SHEPPARD: No, my Lord. I had understood that copies were sent, and I apologise if they were not, but the point is very short and I do not think it troubles my learned friends.

MR JUSTICE HARRISON: I think it will not take a long time but I think as it is only one paragraph perhaps the best thing would be if I were to ask you now to show it to them. They are entitled to see it.

MR SHEPPARD: I am obliged.

MR JUSTICE HARRISON: Would you like me just to retire for a couple of minutes while you have a look at it? It is probably best.

MR JUSTICE HARRISON: Yes, now you have had an opportunity to look at that. You have made your submissions Mr Sheppard. I think you have made yours now, have you not?

MR GIBBON: My Lord, yes, subject to any further points arising.

MR JUSTICE HARRISON: Yes. Mr Howell-Williams.

MR HOWELL-WILLIAMS: We have taken time to try to solve matters and not, unfortunately, reached a clear position, but can I help in this way, my Lord? Having taken instructions, so far as the principle of the point made by the First Secretary of State in relation to the question of the abandoned issue, my client is prepared to contribute towards some proportion of that cost element, and I have asked --

MR JUSTICE HARRISON: Is it a matter of your client contributing?

MR HOWELL-WILLIAMS: Making a discount.

MR JUSTICE HARRISON: It is a discount rather than a contribution, is it not? Yes, that is right.

MR HOWELL-WILLIAMS: That is the correct way of putting it, my Lord is quite right. However, there is a difficulty because at this stage the First Secretary of State is not able to form a view as to the correct percentage, notwithstanding a suggested percentage made on behalf of my client. I quite understand that position. It follows from that that unfortunately the only way to pursue that particular discount element would be an assessment at a later stage.

MR JUSTICE HARRISON: I suppose what one could say is that there should be detailed assessment unless there is prior agreement between the parties.

MR GIBBON: On that, certainly I would seek in the event -- a discount percentage cannot be agreed today, I do accept it is a difficulty for your Lordship. It is for the parties clearly. I would invite your Lordship to make the issue-based costs order because of course the percentage seeks to do rough justice for what an issue based order would do, the issue-based order being the perfection. Absent your Lordship ordering, for instance, 80 per cent or 90 per cent of the claimant's costs against my client, the taxing judge will have to treat it as a taxation matter for the whole amount.

MR JUSTICE HARRISON: Yes, he will.

MR GIBBON: Therefore your Lordship's decision on the question of principle as to whether there should be a discount, or alternatively an issue-based order, will be a matter, with respect, which needs to be resolved today and incorporated in your Lordship's order.

MR JUSTICE HARRISON: Well, I find it difficult to determine a percentage. In the absence of agreement between the parties I am going to have to hear submissions on the percentage unless you can agree it. I do not know what percentage, I have not looked at the documents to see how much is concerned with this point.

MR GIBBON: Clearly there is a wide discretion granted to the courts in these circumstances but there must be limits to it. The only material on which I can properly invite your Lordship to consider the exercise is simply your Lordship's awareness of how little of the documentation in the event your Lordship was referred to. Many pages your Lordship was, on many occasions, and your Lordship will recall that the vast bulk of the rest of the documentation your Lordship was not concerned with at all. It is only in that negative sense that your Lordship has material. If your Lordship forms the view that that material is insufficient to do a percentage discount, I am not seeking to press your Lordship in these very difficult circumstances to pursue the issue and --

MR JUSTICE HARRISON: What percentage are you suggesting?

MR GIBBON: I do not have detailed instructions on this for perhaps the obvious reasons that the outcome today was not entirely known. I have sought instructions but those behind me are not in a position. I would have been suggesting -- I pick this from the air. Your Lordship might form a view up to, say, 25 per cent. I certainly would not have many submissions to make beyond that. Your Lordship can infer that that is a larger figure than my friend has put forward. I do not seek to put before your Lordship matters that were discussed in your Lordship's absence.

MR JUSTICE HARRISON: What percentage are you putting forward?

MR HOWELL-WILLIAMS: Now we are talking brass tacks and the figures are coming out. My Lord, I suggested 10 per cent. I am astonished by the suggestion of 25 per cent. Your Lordship will have picked up from the particulars of claim that the abandoned issue related to the question of the retention of the bungalow. It was put on the basis of a sustainability argument -- it is as simple as that -- in which it was said on behalf of the claimant that the inspector failed to take into account the argument that he put, that it was more sustainable to keep a bungalow when it was a perfectly good building -- indeed a very good building -- and the costs of demolition in order to put up a few more flats was not justified. There was a draft policy also referred to, and another policy from the local planning authority next door that was referred to in support of that. The inspector failed to deal with it.

On legal advice that ground was withdrawn, but your Lordship may appreciate that I have managed to summarise the point in about five minutes and the point was dealt with in very short terms in the grounds, and indeed in the witness statement it was barely a paragraph, and very little evidence produced on it in the appendices; I think, three pages. So 25 per cent is really a wholly unwarranted suggestion on behalf of my friend.

MR JUSTICE HARRISON: Thank you very much. So far as you are concerned, Mr Sheppard, the question of percentage does not arise. It is simply a request that the claimant pays your client the costs incurred by your client relating to this issue, such costs to be assessed. Is that not right?

MR SHEPPARD: My Lord, again, if it were possible to resolve this matter today --

MR JUSTICE HARRISON: There is no percentage I can apply in your case. It is not apt.

MR SHEPPARD: In my submission, a percentage could be appropriate. We do have a total.

MR JUSTICE HARRISON: A percentage of what?

MR SHEPPARD: A percentage of the costs that we had incurred. We say that a percentage of that, and it would be broadly 20 per cent, were incurred unreasonably by the late dropping of that ground, and that therefore the preparation up to the hearing itself -- and I think we put it at quite a high percentage, certainly in my understanding, the volume of the paperwork that was bound up with that issue that was dropped, and my instructions again are not clear but I have a feeling that we are looking at about 20 to 25 per cent of the total costs incurred on behalf of my client.

MR JUSTICE HARRISON: Yes. Thank you very much. Costs are in the discretion of the court. It is agreed that the first defendant should pay the claimant's costs, save for those costs incurred relating to the issue of what I will call the preservation of the bungalow.

It seems to me to be one thing for the claimant to recover the costs relating to that as against the first defendant, which would in my view be wrong and that is why the matter no doubt has been agreed, but it is another thing for the claimant to have to pay the costs of the third defendant relating to that aspect of the matter. One matter which is relevant to bear in mind is that claimants should not be deterred from dropping claims which would otherwise have incurred the court in unnecessary waste of time. Also, of course, the third defendant is not the decision maker in this case and would ordinarily not be entitled to recover their costs, save for any conclusion relating to what I will call the useful role they have played in the case as a whole.

Whilst not making any findings relating to the third defendant on that aspect, I nevertheless do not think it right to order the claimant to pay the third defendant's costs relating to the issue of the preservation of the bungalow. The only way in which that should, in my view, be reflected in costs is for there to be a reduction in the amount of costs which are to be paid by the first defendant to the claimant to reflect that particular issue, and that must be a rough and ready exercise. I have had regard to the various percentages which have been put before me and the submissions that have been made on it. Doing the best I can in the circumstances, and dealing with it by way of percentage reduction, rather than leaving it to be assessed by detailed assessment, the percentage which I will state will be one of 15 per cent.

So the first defendant will pay the claimant's costs, less 15 per cent of those costs. Is there any argument on the detail of the costs? Because if there is, and I have not been told there is, it would have to go off for detailed assessment anyway, unless it is something that could be dealt with now.

MR GIBBON: As far as I am aware the schedule that was produced was originally produced, I think, by all the parties on the basis that there would be a one-day hearing before your Lordship. I certainly do not have an updated schedule, and of course your Lordship is well aware the matter did take substantially longer than the parties estimated. I am not aware I have seen an updated schedule, if one exists, from my friend Mr Howell-William's instructing solicitors.

MR HOWELL-WILLIAMS: It includes today. That is the only addition to the schedule you received before.

MR GIBBON: I have a difficulty as your Lordship sees. If there was a schedule I am not aware that I received it. I believe my original schedule --

MR JUSTICE HARRISON: If there is difficulty about it, the only alternative for me is to order that those costs on that percentage basis -- that there be detailed assessment of those costs unless they are agreed.

MR GIBBON: My Lord, I am obliged. Certainly that is a position which avoids me personally having difficulties this morning. It is a matter for my friend as to whether he wishes to press the point further. If that is your Lordship's view, I respectfully concur with it.

MR JUSTICE HARRISON: That is the only alternative, unless you are in a position with them now. Why has he not had these before?

MR HOWELL-WILLIAMS: I understand that they had been sent on. The update includes just for today's judgment. Those are my instructions.

MR JUSTICE HARRISON: Do you agree that I have no alternative but to make that order in the circumstances? Very well. That is the order that I will make, which I hope is relatively clear. Does anything else arise?

MR GIBBON: My Lord, I do have to raise the issue of appeal, if nothing else, my Lord, because clearly without my client having time to consider your Lordship's judgment in detail they wish the matter to at least have been ventilated today very briefly.

In relation to that, this would not be a second appeal, as your Lordship is aware, because the section 288 application is regarded as that; or it seems to be, as far as the authorities are concerned, an application to the High Court. Therefore your Lordship is able to give your Lordship's views as to whether permission should be granted rather than an appeal, which clearly would need to be a second appeal from your Lordship, and therefore your Lordship would not have the power to grant permission because that has been reserved under the recent changes to the Court of Appeal alone. I do not believe there is an issue between myself and my friend on that point, i.e. that your Lordship does have the power, should your Lordship wish to grant permission. Clearly there is a very separate matter as to whether your Lordship will grant permission.

On a brief consideration this morning, clearly, my Lord, I have to accept that this is not a matter that I can say raises issues of greater national importance. Clearly it is very important to the clients involved, though I would respectfully remind the court that that factor is of course also a factor where there is a second appeal involved. The question for your Lordship today is: is there a real, as opposed to a fanciful, chance that an appeal court might reach a different conclusion?

I simply address your Lordship today on the question of the role of the experts in this case. I would respectfully say that your Lordship has placed some weight on the fact that the three experts who took the view which did not involve PSM were not to be ignored and, without further consideration of your Lordship's judgment, that is the one issue I do raise. It is one where potentially there is a real prospect that an appeal court might form a different view because I do submit that it is primarily, and again with full respect to your Lordship, a matter in the first instance of your Lordship's judgment as to what the law is, and if your Lordship is clear on what the law is, then however egregious the error of an expert might be, if it does appear to your Lordship to be an error, then your Lordship should follow the logic of that through. I put that forward with the usual diffidence in these circumstances.

My Lord, as a second point, and it is perhaps best I address this while I am on my feet, the question of whether my client should pursue the matter further will clearly need to be addressed in any event. As your Lordship will probably doubtless be aware, the decision-making process within the department is not entirely straightforward and has this further complication at this stage: that the office of the Deputy Prime Minister has to be involved for the next step. It is bringing in a new client who has to be briefed on the matter. I am fully aware, of course, that it is up to the state as to how to organise its affairs. That is a reflection of the heavy weight of the planning system, which does involve delegation in the early stages and only those most important cases --

MR JUSTICE HARRISON: What are you getting at?

MR GIBBON: I do say that that does -- added perhaps, if it makes any difference, to the approach of the holiday season -- suggest that time for permission to appeal, if your Lordship is against me, should be extended and I, with some caution, suggest 28 days rather than the usual 14, to take into account those factors.

MR JUSTICE HARRISON: Thank you. Mr Howell-Williams, is there anything you want to say on that?

MR HOWELL-WILLIAMS: Four matters briefly, my Lord. First, it is plain and accepted there is no issue of importance such as any legal question to be resolved by the Court of Appeal. Secondly, your Lordship's judgment was based upon firm conclusions, especially in relation to the exercise of discretion. Reference to experts' opinion includes not only regard to the relevant guidance, but the essential question of judgment where any court should be reluctant to superimpose a view, and indeed your Lordship may remember the submissions made by the First Secretary of State in relation to the guidance failing to address the essential question of judgment and whole reliance on interpretation of the guidance irrespective of judgment. Those are my submissions.

MR JUSTICE HARRISON: Thank you very much. What about the suggestion of time for permission to appeal to be extended?

MR HOWELL-WILLIAMS: I would only say that my client has already had to bear the concern and anxiety about pursuing this action and I am sure that outside of this court the first thing he would have said to me would have been: I am glad this is over now and can be dealt with at an application stage with a further proposal. Now to hear that the matter is to continue beyond this point will disappoint him, and I would ask for there to be no relaxation on the time for appeal. Instructions on this straightforward matter should be gained in no time at all.

MR JUSTICE HARRISON: Thank you very much. Mr Gibbon, I agree with those submissions. I am not going to extend time. I am going to refuse leave. I do not think there are any grounds upon which it would be appropriate to grant permission in this case. Thank you all very much.