Claim No: CO/4154/2003
Royal Courts of Justice
Strand,
London, WC2A 2LL
Before:
The Honourable Mr Justice Forbes
Between :
Blanefield Property Company Limited | Claimant |
- and - | |
Salisbury District Council | Defendant |
(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
John Pugh-Smith (instructed by Penningtons Solicitors) for the Claimant
Nathalie Lieven (instructed by Legal Services, Salisbury District Council) for the Defendant
Judgment
Mr Justice Forbes :
Introduction. In these proceedings the Claimant (“Blanefield”) challenges certain aspects of the 2003 Replacement Salisbury District Council Local Plan (“the 2003 Replacement Local Plan”) pursuant to Section 287(1) of the Town and Country Planning Act 1990 (“the 1990 Act”). Blanefield is the leasehold owner of the Old Sarum Airfield (“the airfield”) under a 999 year lease granted in 1982 by the Ministry of Defence (“the MoD”). The Defendant (“the Council”) is the local planning authority for the area that includes the airfield and its surroundings.
Factual Background. Prior to the adoption of the 2003 Replacement Local Plan, the relevant Local Plan for the area was the Salisbury District Local Plan 1996 (“the 1996 Local Plan”). The 2003 Replacement Local Plan was formally adopted by the Council, following a statutory Local Plan Review process that commenced in October 1997 with the publication of the Consultation Draft Local Plan.
At this point, it is helpful to give a brief chronology of the main stages of the local plan review process. In June 1998 the Deposit Draft Replacement Local Plan (“the deposit draft plan”) was published. The Local Plan Public Inquiry (“the Inquiry”), concerning the deposit draft plan, was conducted by a duly appointed Inspector (“the plan Inspector”) from October 1999 to July 2000. In August 2001 the Council received the plan Inspector’s report, which was then published in September 2001. Consideration of the plan Inspector’s report by the Council took place during the period December 2001 to July 2002 and, in September 2002, the Council published its proposed modifications to the draft local plan.
During January and February 2003, the Council considered the various responses and objections to its proposed modifications and in February 2003 it published its Notice of Intention to Adopt. The 2003 Replacement Local Plan was then formally adopted by the Council on 30th June 2003.
The airfield occupies an area of approximately 57 hectares, located about 2 miles north-east of Salisbury city centre and about 750 metres east of the Old Sarum Castle Scheduled Ancient Monument (“Old Sarum”) at its nearest boundary. The airfield came under the control of the MoD at the beginning of the First World War and appears to have been established as a military aerodrome in about 1917 (a status that was formally rescinded in 1990).
In April 2000, English Heritage published a consultation document concerning the airfield, as part of its thematic listing programme. In its resulting thematic listing report, English Heritage acknowledged the airfield to be an historic one of unique importance. Two of the airfield’s original hangars still exist and are now listed as Grade II* buildings, in accordance with the recommendation to that effect made by English Heritage.
From May 2000 onwards, during the currency of the local plan review process, the Council gave active consideration to the designation of the airfield as a Conservation Area. Following publication of English Heritage’s thematic listing report, on 24th January 2001 the Council resolved to designate the airfield as a Conservation Area.
It is to be noted that the Compass Maritime site (as to which, see paragraph 12 et seq. below) was excluded from the Conservation Area: see the plan attached to the Conservation Area appraisal. It appears that, on 6th February 2001, steps were taken by the Council to notify the plan Inspector (who was then in the process of preparing his report) that the airfield had been designated a Conservation Area and to forward to him a copy of the Committee’s report (including the appraisal plan) for his information.
On 22nd February 2001, Blanefield commenced judicial review proceedings to quash the airfield’s Conservation Area designation. On 20th September 2001, the Council conceded that the Conservation Area designation should be quashed and this was effected by a consent order dated 17th December 2001. A subsequent independent inquiry found that the procedures adopted by the Council with regard to the designation had been “deeply flawed”, particularly by reason of the lack of any proper approach to the issue of consultation.
The airfield has an approximate east-west orientation and is a predominantly grassed area, with a grass airstrip for light aircraft running approximately south-west to north-east.
The airfield is now partially bounded to the north by commercial development, part of which is on the south side of the Portway road (“the Portway”) and part on the north side, undertaken on land that historically formed part of the airfield, and to the south-east by residential development at Ford, part of which is also on former airfield land. The surrounding area is one of gently undulating open countryside, generally in arable agricultural use, with valley settlements.
The commercial development on the northern boundary of the airfield is accessed from the Portway from east to west and principally comprises (i) the Old Sarum Business Park (also known as the Portway Estate) and (ii) the Castlegate Business Park. Immediately to the west of the latter is the comparatively small Compass Maritime site (“the Compass Maritime site”).
The Compass Maritime site is part of the overall area owned by Blanefield and occupies part of the old MoD infrastructure. It is predominantly open in character, although there are two small and insubstantial single-storey buildings located on the site and a fairly small area of hardstanding. It appears that, prior to the 1980s, these buildings were used in association with the activities of the Old Sarum Gliding Club.
The Compass Maritime site is approximately 0.8 hectares in area and has an east-west orientation, running in a narrow strip parallel to the Portway, which defines its northern boundary. It is separated from the Castlegate Business Park by the latter’s access road and is bounded by the airfield to the south and south-east and by agricultural land to the west and south-west.
The airfield previously fell within two designations delineated on the Proposals Map of the 1996 Local Plan, i.e. (i) The Landscape Setting of Salisbury and Wilton (“the LSS”: see policies C8-9, quoted below) and (ii) as an Area of Special Archaeological Significance. The 1996 Local Plan referred to the important recreational contribution of the airfield and identified it as a resource to be retained, but it was not formally identified for protection. However, Policies C8 and C9 of the 1996 Local Plan did impose a significant constraint on development within the area of the LSS, as follows:
“C8. The Landscape Setting of Salisbury and Wilton shall be as defined on the Proposals Map.
C9. Within the Landscape Setting of Salisbury and Wilton new development will not normally be allowed unless it can be demonstrated to the satisfaction of the Local Planning Authority that the proposal is fully in accordance with the policies of this local plan and no detriment to the visual quality of the landscape will result.”
The whole of the airfield site, including the existing commercial development, an employment allocation area designated E3A (a 6 hectare site in the north-east corner of the airfield, immediately south of the Old Sarum Business Park), the Compass Maritime site and the undeveloped parts of the airfield were all included within the LSS and policies C8 and C9 of the 1996 Local Plan.
The Old Sarum Flying Club had always vigorously objected to the E3A allocation, in particular because of suggested difficulties in realignment of the airfield runway if that area ever came to be developed. On 23rd December 1999, Blanefield submitted an application for planning permission for a B class employment development on the E3A site. The planning application was refused by the Council on 14th September 2000. In due course, Blanefield appealed against that refusal, pursuant to section 78 of the 1990 Act. In March 2001, Blanefield’s section 78 appeal was dismissed by a duly appointed Inspector (“the section 78 Inspector”) on all main issues, i.e. prejudice to the replacement local plan review process, the detrimental effect of the proposed development on the character and integrity of the listed hangars and its adverse effect on the general surroundings, the airfield and the Conservation Area.
The deposit draft plan contained policies that repeated policies C8 and C9 of the 1996 Local Plan in all material respects, as follows:
“C7. The Landscape Setting of Salisbury and Wilton shall be as defined on the Proposals Map.
C8. Within the Landscape Setting of Salisbury and Wilton new development will not be allowed unless the proposal is fully in accordance with the policies of this local plan and no detriment to the visual quality of the landscape will result.”
So far as is relevant to these proceedings, the extent of the LSS as defined in the
Proposals Map of the deposit draft plan remained the same as in the 1996 Local Plan. The whole of the E3A employment allocation (which had, in fact, remained undeveloped) was de-allocated in the deposit draft plan and a large mixed-use (housing and employment) site under policy H2D was allocated to the north of the Portway instead.
Blanefield made a number of objections to the deposit draft plan, but none in respect of policies C7 and C8. Although there were objections to these policies by other parties, none was specifically in respect of the airfield. In the main, Blanefield’s objections challenged the Council’s preferred allocations and sought allocation of the airfield for mixed-use development and/or reallocation of the former employment allocation adjacent to the hangars.
An important recommendation made by the plan Inspector in his report was that the deposit draft replacement plan should be modified by:
“the deletion of the Landscape Setting of Salisbury designation from the area of commercial buildings south of Portway and the Sarum Centre and the reinstatement of the north western area within the designation …”.
The plan Inspector also recommended certain changes to the wording of the Landscape Setting policy (policies C7 and C8) as set out in a policy that he characterised as C*. His recommendation was accepted and the wording of the policy in the adopted 2003 Replacement Local Plan is as the plan Inspector recommended (in its final form it appears in the 2003 Replacement Local Plan as policy C7: see below). So far as concerns Blanefield’s objection, in which it sought allocation of the airfield for a large residential/mixed use development, the plan Inspector recommended against such an allocation and this recommendation was also accepted by the Council.
The Council’s senior planning officer in charge of the planning team dealing with the local plan review process was Mr Alistair Macdonald (“Mr Macdonald”). In paragraph 12 of his witness statement dated 19th September 2003, Mr Macdonald described the Council’s consideration of the plan Inspector’s report in the following terms:
“12. Salisbury District Council's Consideration of the Inspector's Report
General.
12.1 The replacement Local Plan has always been contentious and officers have been very aware of the possibility of a Legal Challenge. This particularly applies to the Blanefield Property Company who have been on record from a very early stage in stating that they would be closely monitoring the District Council's handling of the Local Plan presumably with a view to such a challenge. As a result of this, great care has always been placed (sic) in the reporting of the Inspector's Recommendations and representations on the Modifications and elected Members were very clear as to how each stage should be dealt with.
12.2 District Council officers and elected Members embarked on a long and detailed process for considering the Inspector's Report which took place between January and July 2002. This included the setting up of a Members Working Group consisting of elected representatives from the District Council's area planning committees and the Planning and Economic Development Overview and Scrutiny Panel. The views of these groups were then reported to the Council's Cabinet who made the formal decisions on the plan. There were therefore three separate groups of elected Members reviewing the Inspector's Report. I also believe that it is important to note that both the Scrutiny Panel and the Cabinet meetings were held in public and that the public could address Members at these meetings and that all parties who had made representations on the local plan were informed of the dates and times of meetings …
12.3 In addition to written reports from officers on the Inspector's Recommendations, members of the Working Group, Scrutiny Panel and Cabinet were taken on a series of site visits to look at key issues. These visits included visits to the Old Sarum Airfield including a discussion of the landscape issues on the site. For example, Members were taken to the lower ramparts of the Old Sarum Scheduled Ancient Monument to view the airfield. …
12.4 Members also entered on to the airfield itself. The visits took place in the full knowledge of and with the permission of the Claimant who was represented on site by Ms. Wood of DPDS.
12.5 I therefore strongly believe that elected Members were well informed of the issues relating to development at the airfield and were well acquainted with the actual area. I also believe that this was important for their understanding of the subsequent officer reports on the local plan prior to both the publication of the Proposed Modifications and to their subsequent consideration of representations on the Modifications.
12.6 I would point out that every recommendation of the Inspector was subject to a corresponding officer recommendation meaning that there was an opportunity for every item to be discussed if Members so desired. I also consider that the debate at the various meetings was both useful and informed although there are obviously going to be situations when Members are satisfied with the advice of officers and have no additional comments to make. This was largely the case with the Airfield site. …”
As already I have already indicated, the Council published its proposed modifications to the replacement local plan on 19th September 2001, for comments and objections by 31st October 2001. Blanefield duly submitted a number of objections and representations to the modifications, including an objection that the Council’s proposed modifications failed to implement the plan Inspector’s recommendation that the commercial areas south of the Portway be deleted from the LSS (see paragraph 21 above).
This particular objection by Blanefield was accepted by the Council and the delineation of the notation for the LSS was duly revised. However, Blanefield took the view that the revised delineation had still not implemented the plan Inspector’s recommendation, because the Compass Maritime site still remained within the LSS after the revision. Accordingly, the Consultants who acted for Blanefield at all material times, DPDS Consulting (“DPDS”), wrote to the Council in the following terms:
“My client …welcomes the acknowledgment that additional areas should be excluded from the Landscape Setting of Salisbury in accordance with the Inspector’s recommendation, as set out in our objection to the original modification … However, (our client) considers that his recommendation to delete the “…area of commercial buildings south of the Portway …” has not been implemented in full because the extant Compass Maritime employment site has been omitted.
I would request that you reconsider this and draw it to the attention of your Members.”
On 17th February 2003, Mr Macdonald wrote to DPDS in the following terms:
“I write further to your correspondence dated 13th January 2003 concerning the Local Plan Proposed Modifications as they relate to Old Sarum Airfield.
I can now confirm that this correspondence was distributed to Members at both the meeting of the Planning and Economic Development Overview and Scrutiny Panel on 14th January and at the Cabinet meeting on 5th February.
I trust that this action is to your satisfaction.”
Mr Pugh-Smith referred to Mr Macdonald’s handwritten notes, prepared for purposes of the oral statement that Mr Macdonald proposed to make at the 14th January meeting (see Bundle 1, divider 16, page 12) and submitted that it was clear that there had been only a cursory and formal reference to the correspondence at the meeting, with no specific reference to the actual point being made on Blanefield’s behalf. However, I am satisfied from Mr Macdonald’s account of what actually happened (see paragraphs 14.10 to 14.12 of his witness statement, quoted below) that he did deal with the relevant correspondence in an entirely satisfactory manner. In my view, there is no substance in Mr Pugh-Smith’s criticism of the way in which the matter was handled at the meeting.
In addition to its other objections and representations with regard to the Council’s proposed modifications, Blanefield also sought the introduction of a new criteria-based policy to guide future development at the airfield, as follows:
“Old Sarum Airfield – Proposed Policy XXX
The Old Sarum Airfield area, as shown on the inset to the Proposals Map, is identified for continued aviation use and associated development.
Proposals for refurbishment of existing facilities, including the easternmost Grade II* listed hangar, B1/B8 development, housing, public open space and landscaping will be detailed through a development brief and will acknowledge:
The sensitive nature of the area in terms of the setting of the listed hangars and Old Sarum SAM and landscape impact;
The sustainability of the location in transport terms;
The existing and potential recreational and economic value of the airfield;
The potential archaeological value of the area.
Areas for Development:
The Compass Maritime site, south of the Portway. Redevelopment for B1/B8 uses consistent with policies E16 and E19 of the plan (2.2 ha).
Site south of the Old Sarum Business Park for B1/B8 uses (1.7 ha)
Site on the northern and western edges of Ford in the south east of OSA for mixed use housing and B1 employment (5 ha).
The areas immediately in front of the listed hangars and central to the development at Ford are identified as important open space. At ford this will also be developed as urban park/public open space.
The remainder of the airfield lies within the Landscape Setting of Salisbury.”
In paragraph 14 of his witness statement, Mr Macdonald described the Council’s consideration of Blanefield’s objections to the proposed modifications, as follows:
“14. Consideration of the Claimant's Objections
14.1 These and other representations were considered through exactly the same process as was the Inspector's Report; that is to say through the Local Plan Members Working Group, the Scrutiny Panel and The Cabinet. I attach a copy of the covering report together with extracts from the Cabinet Meeting of 5th February 2003. These mirror those presented previously to the Scrutiny Panel and Members Working Group.
14.2 I would respectively (sic) point out several factors in respect of the consideration of the Claimant's objections to the proposed modifications.
14.3 Their objection requesting the introduction of a new policy to control development at the airfield was dealt with specifically in the covering report rather than in the appendices. It was therefore given a high profile in the eyes of Members. In short, however, it was considered that this was a new issue which had not been raised before in the local plan process and therefore was suggesting that a new policy be introduced at a very late stage. It is important to note that at this stage in the process, only the Proposed Modifications were being consulted upon and therefore I believe that the Council would have been within its rights to consider it not duly made. Despite that, in the interests of an open and fair process, the Council did consider the possibility of a new policy.
14.4 It is my view that that to introduce such a policy at this stage would have created the need for Further Modifications and almost certainly a further public inquiry. This would have introduced significant delay into the Local Plan process contrary to central government aspirations and generally to good planning of the area. …
14.5 The objections in respect of the extent of the landscape setting designation were dealt with in the appendices to the covering report. The Council had made an error on the Modifications Plan, which still had the entire employment area as being within the Landscape Setting designation. This error was pointed out by the Claimants and accepted by the Council. The Plan was re-drawn to remove the employment area, with the LSS boundary drawn tightly round the buildings. The action taken was explained to Members and in my view was understood by them. I consider this approach is fully justified for the reasons set earlier in the statement and that the Inspector's Recommendations had been complied with. This was supported by a separate plan showing the extent of the area to be removed from the designation …
14.6 I would point out that the Claimant's objections specifically on the extent of the landscape setting designation sought only the removal of the Compass Maritime site and an area of land adjacent to the Grade II* Listed Hangers (sic). They did not seek the removal of the entire airfield from the designation or areas around the settlement of Ford although these were put forward as an alternative to the enlargement of the Council's preferred mixed-use allocation north of The Portway. …
14.7 I strongly believe that the issues of the new criteria based policy, the exclusion of the area of land adjacent to the Grade II* Listed hangers (sic) and the potential for development on the land adjacent to Ford were fully dealt with in the officer reports to the Scrutiny Panel, Members Working Group and the Cabinet.
14.8 As set out earlier, the Scrutiny Panel and Cabinet meetings are held in public and have speaking rights for the public/third parties to present their case. Despite being represented at some, but not all meetings, the claimants have never to my recollection spoken to present their case or provide the clarification which they appear to have felt was lacking in the Council's handling and reporting of their representations.
14.9 At the January 2003 meeting, late correspondence was submitted by both Penningtons and DPDS on behalf of Blanefields. The former was addressed to the Leader of the Council and faxed on 13th January, that is to say the day before the meeting. The latter was faxed to the District Council at 15:30hrs on the day before the Scrutiny Panel meeting. …
14.10 The late correspondence was distributed to Members of the Panel (and to Members of the Cabinet at subsequent meetings) and I presented it by reading from a prepared statement. I would point out, therefore, that the late correspondence was very deliberately brought to the attention of Members. It should be noted that this late correspondence did not request further information as to officers' reasoning over and above that set out in the Scrutiny Panel Report.
14.11 As a consequence of the Penningtons letter having been received in a slightly more timely fashion than that from DPDS, I was able to prepare a statement which I read to Members at the beginning of the meeting. This statement was amended at the meeting to cover the DPDS letter. … I also clearly remember returning to the issue later on in the meeting when the Natural Environment Chapter including the Landscape Policies were discussed in detail. I particularly recall referring Members again to the late correspondence and using overheads to explain that Blanefields sought the exclusion of various pieces of land, including the Compass Maritime site, in addition to what the Council was proposing. I have since confirmed my recollection with the Committee Clerk present at the meeting. …
Conclusions on Representations to the Modifications
14.13 From the points above, I conclude that the representations submitted by the Claimant were brought fully to the attention of Members who considered them from an informed position. This includes the request for a new criteria based policy which, strictly speaking, could be considered to be an entirely new issue and therefore not a representation on the Proposed Modifications. It was nevertheless considered by the Council.”
So far as material, the officers’ report in relation to Blanefield’s proposed new policy and its objection to the delineation of the LSS, that was prepared for consideration at the Council’s Cabinet meeting of 5th February 2003, was (as indicated in paragraph 14.1 of Mr Macdonald’s witness statement, see above) in the same terms as that prepared for consideration at the Scrutiny Panel meeting in January 2003, and was as follows:
The Proposed New Criteria-based Policy for the Airfield:
“Representation on behalf of Blanefield Property Co.
Whilst many representations have been submitted on behalf of this organisation in respect of the Proposed Modifications, one has been submitted without reference to a specific Modification. Whilst it is not therefore strictly a representation on the Proposed Modifications, officers consider that it is related to other representations submitted on behalf of that organisation principally on housing and employment issues. It is therefore dealt with at this stage.
Issues raised by the Blanefield Property Co.
The objector seeks the introduction of a new criteria based policy and reasoned justification in the local plan in respect of development at Old Sarum Airfield. This representation is made on the basis of several material changes in planning circumstances since the deposit draft local plan was published. …
1. Completion of the beehive park and ride facility, the RDSLP proposed modifications, confirmation of the Old Sarum (H2D) allocation and the rejection of the Fugglestone Road proposal. …
2. The role of the airfield in the setting of the now grade II* listed hangers (sic), Old Sarum Scheduled Ancient Monument has been confirmed by the Local Plan and S.78 Inquiries. …
3. The retention of flying activity has assumed increasing importance to SDC and has also been given weight by Inquiry Inspectors. …
In the light of these factors, the objector(s) considers that it is now appropriate for the Local Plan to contain a specific policy and supporting text for the airfield in order to provide a coherent and realistic framework for its future uses which will resolve all those interests to "best advantage". The objectors have also made an initial assessment of the suitability of various locations at the airfield for development. These are:
Area I Ford -Adjacent to existing housing
Area 2 -North East Old Sarum Airfield
Area 3 -Compass Maritime Employment Site
The locations of these sites are shown on a plan attached to their submission and will be displayed at the Scrutiny Panel meeting.
Officer Response
The principle of development at Old Sarum Airfield has now been considered in considerable detail by both the Local Plan Inspector and a S78 Inspector (following the refusal of planning permission for employment uses adjacent to the listed hangers). It is considered that both Inspectors were aware of the historic importance of the location, both in terms of the Scheduled Ancient Monument and the listed Hangers. They were also aware of current land ownership issues and the desires of Blanefield Property Co in terms of the future development of the land.
The Local Plan Inspector considered both the suitability of a 6ha site (formerly allocated in the Adopted Local Plan but deleted in the Replacement) and the suggestion that the entire airfield should be allocated for mixed-use development. The Local Plan Inspector agreed with the Council and recommended against both proposals. The Local Plan Inspector also recommended against the allocation of land adjacent to the existing housing at Ford which was advocated by another party. "Area 1" as now advocated by the objectors includes part this area but is smaller overall.
The S. 78 Inspector considered an appeal against the refusal of planning permission on the site allocated in the Adopted Local Plan but removed by the Replacement. This area includes an element of the site now advocated by the objectors as "Area 2". As part of their evidence at the S78 Inquiry, Blanefield Property Company suggested a smaller area, closely resembling "Area 2" as an alternative. The Inspector dismissed the appeal.
It is therefore considered that two different Planning Inspectors have considered the airfield for development and found it to be unsuitable, principally on the grounds of impact on the historic environment, including the setting of the Scheduled Ancient Monument and the Grade 11* listed Buildings. The recognition of these factors by the objectors is, however, welcomed. It is also considered that both Inspectors had within their remit the ability to recommend in favour of smaller areas of development, in recognition of these issues, but chose not to do so. The Local Plan Inspector also had within his remit the ability to recommend the introduction of a criteria based policy such as that now being suggested but did not do so. Indeed, he recommended the deletion of policy R 19 on Recreational Development of Airfields on the basis that it was unwarranted. He states:
" … 1 am unaware from the evidence provided during the Inquiry of any new airfield proposal being mooted. Indeed, the only potential variation of which I am aware is the possible realignment of the grass runway at Old Sarum in connection with a proposal for employment development, which was in any event refused by the Council and subsequently dismissed on appeal. It therefore occurs to me that rather than warranting a specific policy and segment of text, it would be better included with the section of text relating to noisy sports with any such proposals determined against the criteria of Policy R 17". (Inspector's Report para 11.16(3)).
It should also be noted that the Local Plan Inspector has considered in detail the issues of housing and land supply and has recommended accordingly. As set out in the Appendices to this Report, the Council do not consider that there is an under-supply and that the issue should be dealt with through monitoring of the local plan. The County Council, as strategic planning authority, have supported this position. The need for further allocations at the airfield has not therefore been demonstrated.
It is also considered that a policy framework exists in the local plan to consider any proposals at the airfield. For example, policy E17, General Employment, states:
"E I 7 In addition to the provisions of the above polices, and except within the New Forest Heritage Area and the villages listed in policy E 18, new business development (Gasses B I and B8 of the schedule to the Town and Country Planning (Use Classes) Order 1987 as amended) involving the construction of new buildings or the conversion of existing buildings will be permitted within or on the edge of settlements, subject to the following criteria:
(i) services, access and the local highway network are satisfactory;
(ii) the scale of the proposal is appropriate for the size of the settlement;
(iii) the scale and design of the buildings are compatible with the character of the area;
(iv) the development is easily accessible to the local workforce by a range of transport modes;
(v) the proposal will not detract from the amenities and character of the settlement;
(vi) the environment of any nearby dwellings will not be adversely affected; and
(vii) there will be no significant adverse impact on the surrounding landscape or nature conservation value of the area.
Class B2 uses will only be considered where an environmental nuisance would not result. Proposals for the enlargement of existing premises will be dealt with on their merits, having regard to the above criteria. Proposals involving the conversion of existing buildings to uses other than employment will not be permitted where they would be likely to prejudice the need to accommodate local commerce and industry."
There is therefore no benefit in introducing the policy and text suggested.
Finally, it should be noted that the inclusion of such a policy and text at this stage would require further; modifications and would be likely to require a second public inquiry. Both would substantially delay the adoption of the local plan, which would be both undesirable and unwarranted. …”
The Delineation of the LSS notation on the Proposals Map:
“Modification – Alteration to the coverage of the landscape designation affecting the site …
1. MAIN ISSUES RAISED
1. Blanefield Property Company notes the acceptance of the Inspector's recommendations for adjustment of the Landscape Setting designation. However, while the map reinstates the H2D north western area and deletes the notation over the Sarum Centre, the area of commercial buildings south of the Portway has not been amended.
2. It is also considered that the 'logical outworking' of the Local Plan Inspector's recommendations would be to exclude the housing at the northern end of Green Lane and the Park and Ride site from the Landscape Setting designation.
A plan has been provided to illustrate the objector's suggested amendments, which can be viewed in the Member's (sic) Room.
OFFICER CONSIDERATION
I. The Inspectors (sic) recommendation in this respect has been accepted …
However, there appears to be a drafting error … in that the changes required to the commercial buildings have not been included. This should be corrected as a technical change but will follow closely the built limits of the commercial buildings and will differ slightly from that submitted by the objectors.
2. Although he was fully aware of the housing on Green Lane and the park and ride site, the Inspector is very clear that it is the "commercial" buildings that should be excluded from the Landscape designation. This element of the objection is not therefore accepted.
OFFICER'S RECOMMENDATION: The commercial buildings south of the Portway should be excluded from the Landscape Setting of Salisbury and Wilton in accordance with the Inspectors Report. Given that this is a correction of a drafting error, which was set out textually in the Modifications, is in accordance with the Inspector's Recommendations and has therefore been subject to independent assessment. Having regard to the considerations set out in the covering report, it is recommended that this does not require a second public inquiry or further modifications.
No further modification required.”
In the event, the officers’ recommendations with regard to Blanefield’s objections and representations to the proposed modifications (including its proposed new criteria-based policy) were accepted by the Council’s Cabinet Members and, as I have already indicated, the Council proceeded to formal adoption of the 2003 Replacement Local Plan on 30th June 2003.
On behalf of Blanefield, Mr Pugh-Smith submitted that it was very important to remember that the airfield’s Conservation Area designation had still been effective whilst both the plan Inspector and the section 78 Inspector were preparing their reports and that both Inspectors had been made aware of that important fact. Mr Pugh-Smith also stressed that, in the officers’ reports to Committee that followed publication of the plan Inspector’s report, there was no mention of the fact that the Conservation Area designation had actually been quashed in December 2001.
In making the latter point, Mr Pugh-Smith drew attention to the officers’ reports, prepared for consideration by the Scrutiny Panel and the Cabinet in January and February 2003 respectively, and referred to the terms of the officers’ response to Blanefield’s proposed new criteria-based policy for the future development of the airfield (see the quoted passage from the officers’ report in paragraph 30 above).
It was Mr Pugh-Smith’s submission that the officers’ reports were flawed because they proceeded on the premise that Members should approach the matter on the basis of both Inspectors’ reports, but did so without referring to the fact that the Conservation Area designation (which, he submitted, had been a material consideration for both Inspectors) had been quashed. However, for reasons that I give later in this judgment (see paragraphs 53 and 61(i), below), I am satisfied that there is no substance in this particular point.
The Issues. On behalf of Blanefield, Mr Pugh-Smith identified and summarised the issues that arise in these proceedings as follows:
Ground 1: The Boundary Issue: by defining the boundary of the LSS to include the Compass Maritime Site, the Council failed to take sufficient account of the plan Inspector’s recommendation and/or acted irrationally, acted unfairly and gave inadequate reasons for adopting a different boundary line from that sought by Blanefield;
Ground 2: The Airfield Policy Issue: by failing to define the boundary of the Airfield to exclude those parts of the Airfield reasonably capable of falling within policy E17 of the Replacement Local Plan the Council misunderstood the policy consequences of its actions in that it did not take account of the material change in circumstances since the plan Inspector had reported (as a new important consideration) and/or it acted irrationally and/or unfairly.
The Legal Framework. So far as material, Section 287 of the 1990 Act provides as follows:
“287(1). If any person aggrieved by a unitary development plan or a local plan … or by any alteration or replacement of any such plan or structure plan, desires to question the validity of the plan or, as the case may be, the alteration …or replacement on the ground –
(a) that it is not within the powers conferred by Part II, or
(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan or, as the case may be, its alteration, repeal or replacement,
he may make an application to the High Court under this section.
(2) On any application under this section the High Court -
(a) …
(b) if satisfied that the plan or, as the case may be, the alteration, … or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration … or replacement either generally or in so far as it affects any property of the applicant.”
Sections 42 and 43 of the 1990 Act concern the holding of a public inquiry in respect of a local plan and the adoption of proposals.
The procedures for Local Plans are to be found in the Town and Country Planning (Development Plan) (England) Regulations 1999 (“the 1999 Regulations”) which came into force on 4th January 2000. Regulation 45(2) applies the 1999 Regulations to local plans commenced (as here) under the previous regulations, i.e. the Town and Country Planning (Development Plan) Regulations 1991.
Regulations 27 to 30 of the 1999 Regulations deal with the appropriate procedures following the holding of a public inquiry. In summary, the procedures are as follows:
After holding the local plan inquiry and receiving the report of the Inspector, the local planning authority must prepare a statement containing its decisions in the light of the Inspector’s report and recommendations, giving reasons where it does not follow any of the Inspector’s recommendations.
The local authority’s action then depends upon whether the Inspector’s report recommends modifications and whether it proposes to accept those modifications. There are three possibilities (of which (c) is of particular relevance to this challenge):
If the Inspector’s report recommends no modifications and the local authority does not propose to make any modifications to the plan which would materially affect its content, it may give notice of its intention to adopt the plan and may proceed to adopt it after 28 days.
If the local planning authority intends not to accept any recommendation that the plan be modified, it is required to make available a list of those recommendations, to record in a public notice its intention not to accept them and to invite representations to be made in respect of that intention. The local authority must then consider any objections or representations that are made and may cause a further local inquiry to be held for that purpose.
If the local planning authority proposes to modify the plan it must prepare and place on deposit for public inspection a list of its proposed modifications and its reasons for them and publish a notice to that effect. Objections may be made to the proposed modifications and/or to the failure of the local planning authority to modify the plan in accordance with the Inspector’s recommendations. The local planning authority is required to consider objections made in accordance with the 1999 Regulations and may cause a further inquiry to be held.
The requirement that the local planning authority provide adequate reasons arises particularly under the following provisions of the 1999 Regulations:
"27. (1) Where a Local Planning Authority causes a Local Inquiry or other hearing to be held for a purpose mentioned in Regulation 26 (1), the Authority shall, after considering the report of the person holding the inquiry or other hearing, prepare a statement of
(a) the decisions they have reached in the light of the report and any recommendations contained in the report; and
(b) the reasons for any of those decisions which do not follow a recommendation contained in the report." …
"28(1) Where objections have been made to a plan or proposals in accordance with these Regulations and not withdrawn and the Local Planning Authority do not cause a Local Inquiry or other hearing to be held, the Authority shall prepare a statement of their decisions as respects all the objections and their reasons for each decision. "
"29(6) Where objections have been made to proposed modifications in accordance with this Regulation and not withdrawn and the Local Planning Authority do not cause a Local Inquiry or other hearing to be held, Regulation 28 shall apply to the consideration of the objections as it applies to the consideration of objections to statutory plan proposals. "
A challenge under Section 287 of the 1990 Act has been construed as equating effectively with the grounds for an application for judicial review: see Warren v Uttlesford District Council [1997] JPL 1130 @ 1133.
In Braithwaite v Doncaster Metropolitan Borough Council (2000) CO 3435/98 I summarised the relevant legal principles applicable to such a challenge in the following terms:
The decision maker must give proper, adequate and intelligible reasons which deal with the substantial points which have been raised: see Save Britain's Heritage v Number 1 Poultry Ltd (1991) 1 WLR153.
A deficiency in the reasons will only amount to a breach of the statutory requirements if the interests of the Applicant have been substantially prejudiced thereby: see Save Britain's Heritage (supra)at page 167C to H.
The onus is on the Applicant to satisfy the Court that there has been a failure by the decision maker to give reasons which satisfy the Statutory requirements: see Save Britain's Heritage (supra) at page 168C.
The reasons to be considered are those which were given at the time of the decision: see British Railways Board v Slough Borough Council (1993)2PLR 42 at page 49 B-C.
The adequacy of reasons must be assessed by reference to whether the decision in question leaves room for genuine doubt as to what the decision maker has decided and why. This issue must be resolved on a straightforward, down-to-earth reading of the decision, without excessive legalism or exegetical sophistication: see Clarke Homes Limited v Secretary of State for the Environment and East Staffordshire DC(1993) 66 P&CR 263 at pages 271-272.
The weight to be attached to material considerations and, therefore, matters of planning judgment are within the exclusive jurisdiction of the local planning authority: see Tesco Stores v Secretary of State (1995) 1 WLR 759.
In the local plan preparation process, where the Council is both proposer and arbiter, the obligation to deal thoroughly, conscientiously and fairly with any objection is enhanced: see Stirk v BridgnorthDC (1997)73P&CR 439 at page 444, per Thorpe LJ.
The duty on a local planning authority to act fairly includes the decision whether to hold a further Inquiry: see British Railways (supra) at page 53G.
When the Court reviews a decision by a local planning authority not to hold a second Inquiry, the Court should ask whether, on normal judicial review principles, the decision not to open a new Inquiry was unlawful: see Warren v Uttlesford DC (1997) UPL 1130 at page 1134 per Schiemann LJ.
When a local planning authority is considering whether to hold a second Inquiry in response to objections made to proposed modifications, the fact that a proposed modification involves issues which had not been subject to consideration at the deposit stage could be a highly material consideration. Other material considerations include whether the issue had been previously subjected to independent scrutiny by an Inspector, the current advice in paragraph 69 of Annex A of PPG 12, the practical implications of a second Inquiry and whether it would potentially be of material benefit to the decision making process, the delay and desirability of securing an up-to-date adopted development plan and fairness to the Objector and to other parties: see Drexfine Holdings Ltd V Cherwell DC (1998) JPL 361at pages 372 to 373.
The local planning authority’s decision whether to hold a further inquiry or prepare a statement of decisions with reasons can only be challenged on Wednesbury grounds see Warren v Uttlesford DC [1997] JPL 1130 and First Corporate Shipping Ltd v North Somerset Council [2002] PLCR 7.
Where a material change in circumstances occurs after an Inspector has reported, the local planning authority will normally be required to take account of it, but such a change will not of itself require that an inquiry be re-opened or a further inquiry be held. The authority must exercise its discretion having regard to all the relevant circumstances, which will include the extent to which the Inspector can be taken to have anticipated a change of the character which has occurred or his recommendations are to be regarded as having been contradicted by the change and what purpose would be served by a new inquiry: see Bellway Homes v West Berkshire Council [2003] EWHC 105.
On the adequacy of reasons, Mr Pugh-Smith referred to the recent judgment of Lindsay J in The Fairfield Partnership v Huntingdonshire District Council [2003]EWHC 2430 (Admin) 23 October 2003 and cited the following passage, upon which he placed considerable reliance: -
Regulation 28 supra, whether applicable either directly or by way of Regulation 29, expressly requires of a Local Planning Authority only “A statement of their decisions as respects all the objections and their reasons for each decision". Parliament has not chosen further to specify either of what the reasons need to or should not consist. Regulation 28 does not even make special provision, unlike Regulation 27, for the case where a decision does not follow a recommendation of an Inspector. That being so it would be wrong for the Courts to specify what has to be included or excluded beyond that which can reasonably be inferred from the context. That requires one to ask what is the purpose intended to be served by the giving of reasons. In my judgment that purpose, at any rate where, as in the case before me, an objector's objections fail, is the giving to that objector (available also to others) its reasons for its decision to such extent at least as is sufficient to indicate to the objector whether or not reasonable grounds exist for a challenge to the decision under the relevant machinery for challenge, here section 287. Unless he is given reasons at least to that extent an applicant is prejudiced and, indeed, the test can be put as a single test as to whether the interests of an applicant have been substantially prejudiced by reason of the deficiency of the reasons given - Save Britain's Heritage -v- No. Poultry Ltd [1991J 1 WLR 153 HL at 167 per Lord Bridge. The type of reasons which are likely to preclude any reasonable challenge will greatly vary from case to case and, in particular, as between, at one end of a spectrum, decisions wholly of fact and, at the other end, questions that may be called ones of planning judgment …”
However, even at the planning judgment end of the spectrum, the test as to the possibility of grounds for a challenge which I have suggested introduces a host of possibilities amongst which will be these; can the Local Authority be seen fairly to have considered the objection; that requires an open mind. Can it be seen to have misunderstood it; in its consideration of it can it be seen to have taken into account only that which should have been taken into account. Can it be seen to have failed to take into account material which should have been taken into account; are its reasons as expressed intelligible; are the reasons as expressed such that, having regard to planning law and guidance generally, they could provide an acceptable and rational ground for the decision concerned? Although a number of authorities speak of reasons needing to “grapple with” the recommendation or issue concerned, for my part I do not take that as necessarily indicating that what, in old pleading terms, would have been called a “confession and avoidance” is necessarily inadequate. ...”
As a general principle of planning law, the Courts will only intervene where the judgment of the decision-maker on the meaning of certain words is demonstrated to be perverse or otherwise bad in law: see R v Derbyshire County Council, ex parte Woods [1997] JPL 958. Equally, it is incumbent upon a local planning authority to be able to interpret and apply its own policies correctly.
I therefore now turn to consider the parties’ submissions and my conclusions on the two issues in this case.
Ground 1: The Boundary Issue. Mr Pugh-Smith stressed that it was common ground that the Council had fully accepted the plan Inspector’s recommendation that (inter alia) the area of commercial buildings south of the Portway and the Sarum Centre should be deleted from the LSS. He also emphasised that the Council had acknowledged that there had been initially an error in the delineation of the LSS on the Proposals Map and had subsequently purported to correct the error in order to accord with the Inspector’s recommendation. However, Mr Pugh-Smith submitted that the Council’s correction did not fully implement the plan Inspector’s recommendation because it still wrongly omitted to exclude the Compass Maritime site from the LSS.
It was Mr Pugh-Smith’s submission that, on a proper consideration of all the relevant material and circumstances, it was clear that the plan Inspector had intended the expression “the area of commercial buildings south of Portway and the Sarum Centre” to embrace the Compass Maritime site as well as the other commercial development south of the Portway such as the Castlegate Business Park. He submitted that the officers’ reports to the Council did not seek to identify or justify the difference between the delineation of the LSS as submitted by Blanefield and that as proposed (and subsequently adopted) by the Council.
As a result, Mr Pugh-Smith contended, Members had simply not been provided with a sufficiently full and reasoned interpretation of the relevant parts of the plan Inspector’s report, nor had they received the necessary material and advice that would enable the issue to be fully and fairly considered. He submitted that the onus had been upon the Council to provide adequate reasons to justify the stance taken in both the January and the February 2003 meetings. It was Mr Pugh-Smith’s submission that, in that regard, the officers’ words, “will differ slightly from that submitted by the objectors”, fell substantially short of the requirements of regulation 28(1) of the 1999 regulations, as interpreted by the relevant case law quoted above, and was (in any event) based upon an erroneous interpretation of the plan Inspector’s words.
Mr Pugh-Smith drew attention to the wording of the new policy C*, which the plan Inspector proposed for application to the redefined LSS and which now appears as policy C7 in the adopted 2003 Replacement Local Plan, namely:
“C7. Within the Landscape Setting of Salisbury and Wilton, as defined on the Proposals Map, new development will not be permitted during the lifetime of this Plan to ensure there would be no detriment to the visual quality of the landscape and to enable allocated developments to be assimilated.”
He submitted that, having regard to the terms of that policy, by failing to implement the plan Inspector’s recommendation fully, the Council has unreasonably and unfairly restricted Blanefield’s opportunity for future development of the Compass Maritime site.
On behalf of the Council, Ms Lieven referred to Mr Macdonald’s witness statement (some of which is quoted above) and submitted that his evidence clearly demonstrated that there had been a long and detailed consideration of the plan Inspector’s report and recommendations by the officers and Members, including site visits to the airfield and to the adjoining Old Sarum. She emphasised that the Council’s actions with regard to the Replacement Local Plan had been informed by and could only properly be judged in the light of this lengthy, careful and detailed process. She submitted that it was very important to consider the Council’s reasons in that overall context. I agree with that submission.
Ms Lieven submitted (correctly, in my view) that the Conservation Area designation and the fact of its subsequent removal were to a very large extent (if not entirely) irrelevant to the issues in this case. In my opinion, it is clear that the principal reason for designation of the airfield as a Conservation Area was its historic significance as a relatively well-preserved First World War airfield, not its importance for landscape or other amenity reasons, and there was no actual or implied connection between the local plan review process and the reasons for the removal of that designation.
It was Ms Lieven’s submission that it is apparent from Mr Macdonald’s evidence that the Council did implement the plan Inspector’s recommendation to redefine the LSS and that the Council’s delineation of the LSS notation (as corrected, following Blanefield’s objections to the proposed modifications) was effected with the express intention of complying with the Council’s interpretation of the plan Inspector’s recommendation, with particular regard being given to the Inspector’s use of the expression “area of commercial buildings”, an expression that was reasonably perceived not to apply to the Compass Maritime site. I agree with that submission (for the reasons developed in the next paragraph) which, in my view, provides the necessary and adequately expressed reason for the Council’s decision on this aspect of the matter.
As Ms Lieven submitted, the plan Inspector had recommended removal of the existing significant employment area at the airfield (i.e. the “…area of commercial buildings south of Portway and the Sarum Centre…”)from the LSS. She submitted (again correctly, in my view) that the employment area in question was correctly identified by the Council, as stated by Mr Macdonald in his evidence, and that it plainly did not include the Compass Maritime site, which is to all intents not in an “area of commercial buildings”, but is an open and almost entirely undeveloped site that merges naturally into the open area of the airfield to the south and the agricultural land to the west. In my view, these submissions by Ms Lieven are undoubtedly correct and are sufficient to dispose of the first ground of challenge.
Ms Lieven submitted further (again, in my view, correctly) that, if there had been the slightest doubt as to what really was meant by the expression the “area of commercial buildings south of Portway and the Sarum Centre…” then its actual meaning, and thus the proper interpretation of the plan Inspector’s recommendation with regard to the area in question, was a matter primarily for decision by the Council, subject only to challenge on grounds of irrationality. Ms Lieven submitted that there is no proper basis for stigmatising the Council’s interpretation of the plan Inspector’s recommendation as irrational. Again, I agree with that submission, which is (as it seems to me) also fatal to the first ground of challenge. For all those reasons, therefore, I am satisfied that the first ground of challenge fails.
Ground 2: The Airfield Policy Issue. In the course of his submissions, Mr Pugh-Smith made it clear that Blanefield did not seek, by means of the present proceedings, to introduce into the 2003 Replacement Local Plan a new criteria-based policy for future development of the airfield, nor did it contend that the Council should have held a second public inquiry into this particular objection by Blanefield.
Mr Pugh-Smith submitted that this ground of challenge was to the effect that the officers’ advice with regard to Blanefield’s new proposed airfield policy, as set out in the officers’ reports to Members for both January and the February 2003, was incorrect in a number of material respects and that the Council’s decision with regard to the proposed policy was consequently wrong and amounted to an error of law.
In support of that submission, Mr Pugh-Smith made the following main points.
Mr Pugh-Smith pointed out that the officers had advised Members that policy E17 of the replacement local plan was part of the policy framework that would enable appropriate development proposals to be considered in relation to the airfield. However, Mr Pugh-Smith submitted that this advice was plainly incorrect, because it was at odds with the proposed wording for the new policy C* (later C7, see above) and the effective policy embargo on development thereby created, the significance of which was not explained to Members by the officers in any event.
Mr Pugh-Smith submitted that the officers’ reports placed considerable emphasis on the two Inspectors’ reports (i.e. those of the plan Inspector and the section 78 Inspector), but had failed to take account of a material consideration, namely that both Inspectors had proceeded on the basis that the Conservation Area designation was still effective whereas, by the stage that the officers were reporting to Members in January and February 2003, the designation had been removed.
It was Mr Pugh-Smith’s submission that the Council’s decision to maintain the LSS designation over the areas identified by Blanefield as appropriate for further development and to which policy E17 could have applied was unfair, because it did not observe two of the criteria established by the Council for the consideration of the responses to its proposed modifications, namely “…(2) Whether the issues have been subject to any form of independent assessment in the form of a public local inquiry” and “…(5) The need to be fair to all parties involved in the local plan, including ensuring that material issues have been subject to an independent assessment.”
I agree with Ms Lieven’s submission that, on a fair reading of Blanefield’s representations, its proposed new airfield policy did not qualify as a representation or objection with regard to the Council’s proposed modifications to the replacement local plan, but was a discrete and new proposal for a different policy that had not been put forward at the deposit draft stage and that had not been considered by the Inspector. As such, I accept as correct Ms Lieven’s submission that the Council had not been under any obligation to consider Blanefield’s proposed new policy at this stage in the local plan review process.
In any event, as Ms Liven submitted, the Council’s response to this further proposed policy was clearly set out in the officers’ reports in January and February 2003, both of which were duly accepted by Members and the terms and effect of which can be summarised as follows:
the principle of development at the airfield had been considered in detail by both Inspectors and had been rejected: the issues had manifestly been the subject of independent assessment – the Council’s criteria (2) and (5) had both been met; the essential reasoning of both Inspectors in reaching that conclusion was not, in my view, materially affected by the Conservation Area designation and the later removal of that designation (see paragraph 53 above);
a new policy, such as that proposed by Blanefield, would require further modifications and probably a new Inquiry, involving substantial delay; and
if any proposal for development of the airfield did come forward during the life of the 2003 Replacement Local Plan, it could be given proper and appropriate consideration under policy E17 (see paragraphs 62 and 63, below).
I also agree with Ms Lieven’s submission that point (iii) of the Council’s reasons (see paragraph 61 above) was entirely reasonable and soundly based, i.e. that any proposal for the development of land within the LSS and to which policy C7 applied, would have to be considered against other applicable policies in the 2003 Replacement Local Plan and in the light of other material considerations.
Thus, any future proposed development of the airfield that is designed to meet a strong employment need in the area will have to be judged by the Council under (inter alia) policy E17. However, in making its planning judgment, the Council will also have to give appropriate consideration to the LSS designation and policy C7. I accept that the LSS designation and policy C7 do introduce very significant policy constraints with regard to such a development. However, as it seems to me, such an approach is reasonable and makes perfectly good sense in all the circumstances of this case and I reject Mr Pugh-Smith’s submissions to the contrary effect.
In any event, if I am wrong about that, the Council’s other reasons for rejecting Blanefield’s suggested new policy, as summarised in paragraph 61(i) and (ii) above, were (in my view) both sufficient to justify the decision and adequately expressed.
Accordingly, for those reasons, I am satisfied that there is no substance in the second ground of challenge, which therefore also fails.
Conclusion. For the reasons expressed in relation to each of the issues raised by these proceedings, I have come to the firm conclusion that this challenge to the Council’s 2003 Replacement Local Plan must be and is hereby dismissed.
MR JUSTICE FORBES: Mr Pugh-Smith, Mr Buley, have you received copies of the approved judgment?
MR PUGH-SMITH: We have indeed, my Lord.
MR JUSTICE FORBES: I did not receive any suggested corrections. I did in fact pick up one further very small matter myself. It is paragraph 64, it is only a spelling mistake. If you look at the first line of paragraph 64, the word "rejecting" somehow or other has managed to get a "u" into itself. That is the only other matter that I have picked up.
MR PUGH-SMITH: My Lord, I asked my clerk to actually respond by 12.00 yesterday to say I had no specific corrections.
MR JUSTICE FORBES: Yes, I received that message, thank you very much.
MR PUGH-SMITH: I was going to congratulate your Lordship --
MR JUSTICE FORBES: I do not know how I managed to miss it the first time or indeed how I managed to spot it the next. Anyway, I will correct that. Subject to that correction then, I direct that the written judgment which I hand down this morning is to stand as a transcript of my judgment in this matter. For the reasons appearing in that judgment this application is dismissed.
MR PUGH-SMITH: Thank you very much.
MR JUSTICE FORBES: Yes, Mr Buley?
MR BULEY: My Lord, there is an application for costs. My Lord, what we were going to propose, my Lord, would be summary assessment by your Lordship this morning. But I do not know if your Lordship has had anything and I gather Mr Pugh-Smith has not.
MR JUSTICE FORBES: I do not think I have, although I confess I have not opened up the papers for some time, apart from looking at the judgment.
MR BULEY: Mr Pugh-Smith has just told me he has not received anything. I have just shown it to him, so I do not know whether he would be happy to deal with it now.
MR JUSTICE FORBES: It is in Mr Pugh-Smith's hands really. First of all as to the principle, Mr Pugh-Smith, of costs?
MR PUGH-SMITH: Yes, I cannot challenge that, my Lord.
MR JUSTICE FORBES: Right. What about a summary assessment?
MR PUGH-SMITH: Well, my Lord, my instructions, which I received late yesterday afternoon, were transmitted to me on the basis that we were anticipating detailed assessment because the hearing went for more than one day.
MR JUSTICE FORBES: Well, Mr Pugh-Smith, if that is what you --
MR PUGH-SMITH: That is how my instructions stand at the moment, my Lord. I have nobody here in court. Although, my Lord, bearing in mind the way in which Mr Buley has put matters certainly to me, literally just before your Lordship came into court, if your Lordship were to indulge, I might be able to take instructions very rapidly as I do have my mobile with me.
MR JUSTICE FORBES: Yes, certainly, if that will help.
MR PUGH-SMITH: Because the figure is not, as it were, substantial in relative terms. It is still a substantial sum, but one has to look at these matters in relative terms, my Lord.
MR JUSTICE FORBES: I am certainly prepared to give you time to do that because, obviously, if it can be dealt with by way of summary assessment, particularly if the amount can be agreed, then that is in everybody's interests. So you can assume that I will give you time to look at that. Failing which, if you cannot agree it, all you need to do is to -- either way is to pass a message through to me. If you can agree it then I will make an order for costs in the sum agreed. If you cannot agree it then I will make the order for costs, that will be that the claimant is to pay the defendant's costs, such costs to be assessed on a standard basis if not agreed. There will not be any need for you to come back into court. All you need to do is to pass the message through. Is there any other matter that I need to deal with?
MR PUGH-SMITH: No, my Lord. Can I, just for the record, indicate that I have been given specific instructions not to apply for permission to appeal. I know the matter did raise an interesting point of law which your Lordship probably anticipated I might wish to seek permission on, but my instructions are not to seek to apply for permission.
MR JUSTICE FORBES: Thank you very much indeed. In that case the order that I make is that the application is dismissed, the defendant is to pay the claimant's costs, and depending on how the matter proceeds as between the parties the order will be for a summary assessment of those costs in the agreed sum, failing which the order will be that the costs are to be assessed on the standard basis if not agreed.
Anything further?
MR BULEY: I am grateful, my Lord.
MR JUSTICE FORBES: Thank you both very much.