England, R (on the application of) v Tower Hamlets & Ors

MR JUSTICE COLLINS: The claimant in this case seeks to quash a planning permission granted by the defendants on 12th May 2006 for a substantial housing development on a site known as Suttons Wharf in Palmers Road, E2. The site adjoins the Regent's or Grand Union Canal. It has on it a warehouse which was built in 1964 for the storage of timber. The warehouse includes a canopy which stretches over the canal and which enabled loading and unloading to be carried out under cover. This canopy is only one of three remaining in the London area.

In addition to the quashing of the planning permission the claimant seeks an injunction to prevent the demolition of this warehouse. It is to be noted that the application for planning permission included demolition, which accorded with the approach which is said to be the correct approach by the Circular 10/95 which deals with planning controls over demolition. Paragraph 29 of that circular provides:

The claim started life with an application without notice for an injunction to prevent demolition which was due to start on 12th June. That came before me, as I was the applications judge in court 37 on 9th June. I granted an injunction until Tuesday 13th June on an undertaking to lodge a claim for judicial review. That claim was lodged on 12th June. The matter came before Newman J on 13th June. He decided that it should be dealt with as soon as possible, as an application for permission with the substantive hearing to follow immediately if permission were granted. In the result it came back before me yesterday, and the injunction was continued in the meantime.

A number of grounds were relied on in the claim as originally drafted and as amended, but only two have been argued before me. The first asserts that there was a failure to draw the committee's attention to a policy in the London Plan known as the Blue Ribbon Network. This policy was, so it is alleged, ignored, although as the most recent material planning policy it should have taken precedence.

Secondly, it is said that the committee was misdirected on the relevance of the demolition of the warehouse. They were informed that since demolition was permitted under Part 31 of the Town and Country Planning (General Permitted Development) Order 1995, the council could not resist demolition or sustain a refusal on those grounds, and that is what the officer's report indicated.

The claimant is not alone in believing that the warehouse, or more particularly the canopy, is part of the historical heritage of London and should, if possible, be preserved. Although it was built in 1964 at a time when canal trade was in decline and was only used for the purpose for which it was built for about five years, it is a rare, if not unique, example of its type. Attempts were made to persuade English Heritage to agree that it should be listed. Those attempts failed. On 10th April 2005, when the council were considering whether in principle planning permission might be granted, English Heritage decided that it did not have the national significance which would justify listing.

Demolition is covered by section 55 of the Town and Country Planning Act 1990, as amended by section 13 of the Planning and Compensation Act 1991. Section 55(1A)(a) provides that building operations include the demolition of buildings, but section 55(2)(g) enables the Secretary of State to make directions describing buildings whose demolition is not to be regarded as development. The relevant directions are in the Town and Country Planning (Demolition - Description of Buildings) Direction 1995. The effect of this, so far as this case is concerned, is that the warehouse can be demolished, since its demolition is not to be taken to involve development. Thus no planning permission is required for it to be demolished.

This means, as Mr McCracken was constrained to accept, or rather if not accept at least was unable to put forward any argument to the contrary, that there could be no legal basis for granting an injunction to prevent demolition. If the interested party (that is to say Team Ltd, who are the developers) choose to demolish they cannot be stopped from so doing, whether or not the planning permission is quashed. There are no conditions relating to its demolition which are material and which would prevent such demolition, as I say whether or not the planning permission is continued in being.

I am bound to say that had I fully appreciated the position on 9th June, I would not have granted the injunction that was sought. On Mr Harris' application on behalf of the interested party, I discharged it yesterday.

There is no doubt that the claimant's main concern has been to try to see that the canopy is retained. That can be done, in the sense that the canopy can have a separate existence and it is possible for the warehouse to be demolished and the canopy left intact. But he cannot succeed in that objective, for the reasons that I have already indicated.

Nonetheless, the claim is pursued on the basis that the planning permission was not lawfully granted and there is, as the claimant believes, at least a chance that the developers might decide that it is not in their commercial interest to demolish, and if the council reconsider there might still be a desire for a development which accords with the relevant Blue Ribbon approach. That will mean that at least the canopy is kept in being.

However, the evidence on behalf of the interested party is clear. They intend to demolish in any event. They have put forward reasons, based upon advice given to them by Savills, why it is in their interests to demolish the building. Mr McCracken submits that that should not be accepted at face value. But if I am in his favour in so far as the matters relied on are concerned, I should, as he put it, call their bluff and should not exercise any discretion to refuse relief.

It is to be noted that there was an issue left open in relation to the possibility of soil contamination. It was apparently believed that the chances of any significant contamination were small. As may seem somewhat extraordinary, it appears that those responsible, both in the council and on behalf of the developers, were not entirely aware of the history of this particular site. Mr Buxton, on behalf of the claimant, has made investigations. It appears that the site was in fact between I think 1873 and 1946 used as storage depot for oil and petroleum. As a result, there is indeed a real possibility of contamination. That real possibility has turned into a certainty, because the information now available is that there are serious levels of methane and other contaminants in the soil. Accordingly, measures will have to be taken to ensure that there is no hazard to the health or safety of anyone before any construction work can commence.

Mr McCracken lays down a marker, if I may put it that way, that in his submission it may be arguable or may be the case that the result of that will be the need for a further environmental statement, in accordance with the recent decision of the European Court in Luxembourg. Whether that is or is not right I do not know, and I am not in any position to decide. But what is clear is that measures will have to be taken before the development can continue.

The site itself is in need of development. The warehouse ceased to be used, save perhaps at irregular intervals, some two years ago, when it had been a cash and carry. The proposals for housing have been considered and amendments have been made since late 2004. The proposal has, as was necessary, been put to the Greater London Authority and has been approved by the Mayor. The site was earmarked for employment in the UDP, and so there was a need to justify the change of use. The housing is indeed intensive, more so than normally regarded as appropriate, and it contains about 50% of affordable housing.

A number of objections were pursued against the proposal. Those are set out in the officer's report. They are summarised, and it is not suggested they are inaccurately summarised, as follows (this is paragraph 6.7 of the report):

I should now look to see what the Blue Ribbon Network policies provide, so far as relevant. Mr McCracken has relied on two of those the policies which he has submitted are material and which have not been properly drawn to the committee's attention. The Blue Ribbon network is a policy which is designed to make use of and enhance the rivers and canals that exist in and immediately around London. The principles are set out in paragraph 4.74 of the London Plan. So far as material, that indicates as follows:

Policy 4C.10 relates to historic environment, and it provides:

That is obviously of some relevance. On the other hand, the reality is that once the building in question has not been listed, it can, as I have indicated, without any planning permission be demolished. Accordingly there is a limited scope for respect for a building such as this, even assuming that it should be regarded as an important structure as part of the waterway heritage.

Policy 4C.12 is the main policy upon which Mr McCracken places reliance. It provides, under the heading "Sustainable growth priorities for the Blue Ribbon Network":

The site in question is not in an area which is identified as an Opportunity Area or as an area for intensification. That does not, in my view, on a sensible reading of the plan assist the claimant in the circumstances of this case. It is merely neutral.

As I have already indicated, the matter was put to the Greater London Authority ("the GLA"). There has been produced a memorandum from the official in the GLA which set out his approach, and in that he deals with use of the canal. He says this:

However, it was recognised that a development which did not fall within any of the priority uses mentioned in policy 4C.12 was not and never had been suggested for this site. Mr McCracken submits that the possibility of such a development should have been before the committee, since it could not be ruled out. It was not in terms referred to in the officer's report, and so I should see what is said in relation to it.

The officer sets out the relevant planning policies and guidance which he indicates is material. He refers in terms to a considerable number of policies in the Unitary Development Plan, and in the draft LDF Core Strategy and Development Control Development Plan Document. Indeed, he sets out, I have not counted them all, but there must be at least 40 or 50 such specific policies that are referred to. He does refer to the London Plan, but he puts it on the basis that it provides guidance. In a sense that is right, because the policies, as I read out, say that the Mayor will, and the boroughs should, do whatever is the relevant matter. However, as Mr McCracken pointed out, the plan is the most recent of the plans which are relevant for consideration under the Act, and of course the relevant plans have to be taken into account. In accordance with the recent legislation, the most recent plans are the ones that have priority when there is any possible conflict between the approach in different plans. Accordingly, submits Mr McCracken, the officer ought to have specified the relevant policies in the same way as he specified those which were set out in the UDP and in the draft LDA. What the officer does is, in paragraphs 5.11 to 5.13, to refer to what he regards as the relevant approach set out in the London Plan. The relevant one for our purposes is paragraph 5.13. What he says there is this:

There are a large number of policies in the London Plan, and I hope it is not an unfair comment that many of them seem to be saying much the same thing, in perhaps slightly different words, and whether it is necessary to have so many different policies in a planning document is a matter which perhaps should be considered. These documents are getting longer and longer, and more and more detailed, and perhaps more and more confusing for those who have to apply them. However, that is perhaps not a matter which is of vital relevance to the circumstances of this case.

Certainly, there was a reference to the Blue Ribbon Network. Of course the London Plan itself was a document which was accessible to the committee, and if they had any concerns they would have been able to consider it. One must always bear in mind, when dealing with officer's reports, that they are reports to a committee which has experience in dealing with planning matters, and which can be expected to be aware of the most important planning policies which relate to a site, particularly a site of some importance, which they have to consider.

Mr Pike pointed out that there was in the long list of authorities referred to OSN4 in the draft emerging LDF, and that repeated the relevant approach set out in the Blue Ribbon Network policies. He submitted that since that was specifically referred to, the committee did have drawn to its attention the relevant matters.

I am bound to say I am not entirely impressed with that because, as Mr McCracken points out, the inclusion in a very long list of policies of one policy, does not of itself suffice if it really was necessary for specific attention to have been drawn to it. But the issue here is whether it was indeed necessary that specific attention should have been drawn to it.

Having considered the history and the past objections and the amendments to the proposals, the officer, Mr Humphreys, at paragraph 7 comes to analysis. In paragraph 7.1 he says this:

As far as land use is concerned, the main concern there was the fact that policy EMP2 of the Adopted UDP ought to resist developments that would result in a loss of employment generating uses. Of course that was highly material to the change of use from employment generating on this site to housing. The officer pointed out that there would in fact be a generation of jobs, as a result of the location by Toynbee Housing Association of their head office at the adjoining Suttons Wharf South development, and that that would have generated and was likely to generate an increase of employment.

The officer made the point that if one considered this development together with the adjoining development, there was a significant enhancement of employment levels in the locality. Thus that was a reason which would justify the loss of employment on this particular site. He had to deal with that because there was a direct conflict on the face of it with a planning policy.

Mr McCracken submits that there is really no difference in principle between that and the conflict, as he would have it, with the policy in 4C.12. But the policy in 4C.12 is not of course an absolute one. It is that the council should seek to prioritise those uses. Of course those uses can only be prioritised if it is a reasonable possibility that some development which would fall within that description were appropriate. The reality is that it never was an issue on the facts of this case. No one had suggested such a development. No objection to housing as such had been levelled against this development. The objections were to the intensity of the development and the effects of the particular proposals - overshadowing the canal, too great a height, difficulties of access because of the problems on Palmers Road and so on, and of course that there would be an adverse effect on the canal as a result of the tall buildings that were proposed. He suggested that the officer had not appreciated that the London Plan took precedence. Whether or not that is so, it seems to me to be immaterial because all that the officer is required to do is to put to the committee all matters which are material in their consideration of the planning application question.

It is important that officers should exercise judgment in deciding what does and what does not need to be placed before the committee. If every matter which might conceivably be thought by someone to be material was referred to, officers reports would be longer and longer, and would be singularly unhelpful because they would deal with a lot of matters which in fact were of only marginal relevance, if relevant at all, and it might therefore obscure the matters which were of importance.

Here the officer took the view that there was no reasonable possibility that any development that fell within policy 4C.12 was, as it were, open to the committee or on the table. That view on the facts seems to me to be a view which was properly and reasonably taken, and that judgment is one which the officer was entirely justified in forming. In those circumstances the failure to refer specifically to policy 4C.12 is a failure which was, as I have said, justified and which does not in any way mean that the officer's report was defective or that the committee was unable to have regard to a material consideration.

Mr McCracken, as I have said, submitted that there was no real difference between that and the discussion in relation to EMP2. However, as I have indicated, that in my view is not a valid comparison.

I should add that it is to be noted too that the British Waterways Board did not object to the redevelopment, and certainly did not urge a development which was, if I may put it this way, canal-based. On the other hand, it may be that that is not of itself a particularly significant factor because British Waterways' concerns are far wider than merely this little site. So far as their network is concerned, of course it is a little site.

It follows that the first ground upon which Mr McCracken relies is not made out. The second relates, as I have said, to the demolition. What Mr McCracken relies upon is authorities which stem from the decision of the Court of Appeal in Clyde & Co v Secretary of State for the Environment [1977] 1 WLR 926. That case involved a change of use, but reliance is placed upon observations of Sir David Cairns, which have been approved by House of Lords in subsequent cases, at page 936. What Sir David said was this:

Later authorities have modified the reference to a fair chance of a building being used for housing to the balance of probabilities (per Lord Bridge), and more recently a reasonable probability (per Lord Keith of Kinkel).

It does not seem to me in the circumstances of this case to matter what test is the appropriate one, because it is clear in my judgment that there is no reasonable possibility that the building would be preserved if planning permission were refused. What Mr McCracken submits is that the officer was wrong to fail to have regard to the Clyde principle, and, in advising that the council was unable to resist the demolition or to sustain a refusal on those grounds, he was putting it too high. He should have left it to the committee to consider whether they could refuse on the basis of a desire to retain the building, because if there was a refusal there might be a development proposal which retained the building.

I am afraid I regard such a possibility as no more than fanciful. Indeed Mr McCracken accepts, as must be right, that had the committee refused on the sole ground that they wanted to preserve the building, that refusal would not only not have stood up to an appeal, but would almost certainly have led to an adverse order of costs against them had they sought to uphold it. In those circumstances, the other ground which is relied on must also fail.

I should now consider whether the appropriate course is to refuse permission on the basis that the matters argued were unarguable, or whether I should grant permission and dismiss the claim. It seems to me that the demolition point was indeed unarguable, but I am just persuaded that the other point, as so fluently and persuasively developed by Mr McCracken, can be regarded as crossing the very low threshold of arguability. Accordingly, what I propose to do is to grant permission, to direct that all subsequent steps be waived, and to treat the hearing as the hearing of the substantive claim for judicial review, which I dismiss.

MR SPURR: My Lord, I appear today in place of Mr Pike. In the circumstances, my Lord, I seek simply my costs on behalf of the defendant.

MR JUSTICE COLLINS: Yes. I do not imagine Mr McCracken feels able to resist the principle of costs.

MR McCRACKEN: My Lord, I do not, subject to this point. Our client is legally assisted and therefore the order needs to reflect the protection that such a person has.

MR JUSTICE COLLINS: Of course. It will be in the usual form in that respect, so far as the defendants are concerned. But I suspect the interested party may also be joining in and you may --

MR McCRACKEN: I will respond to that separately.

Could I just mention another matter? It probably does not matter, and I am sure it is entirely my fault, but I certainly had not intended yesterday to concede that any appeal against refusal based upon demolition would be bound to fail. It is probably my fault in the way in which I responded.

MR JUSTICE COLLINS: Mr McCracken, I am sorry, it may be my fault. What I was intending to say, and what I thought I had said, is that if that had been the only ground -- if they had simply said, "We refuse planning permission because we want to preserve the" --

MR McCRACKEN: Without going on to consider the chances of retaining it.

MR JUSTICE COLLINS: Yes.

MR McCRACKEN: I am obliged.

MR JUSTICE COLLINS: That is what I was intending to cover. Of course, any refusal would have to be very carefully drafted to ensure that it did not run up against that problem.

MR McCRACKEN: I am sure this point does not matter, I just wanted -- to.

MR JUSTICE COLLINS: I do not think it does. Yes, I am sorry. It is my fault. I did not reflect your submission perhaps quite as accurately as I should have done.

I should also have mentioned and I meant to in the judgment, and I may incorporate this, that you submitted that it was relevant that this was a decision by a majority created by the chairman's casting vote. It was a two-all, a very close run. But what I would say is that we do not know, of course, on what basis the two who were against decided that they were against. It clearly would not have been on the basis of 4C.12, hardly likely to have been on the basis of 4C.12, because there were other objections to intensity and so on. It really is not possible - and I do think, to be fair, that you did try to make any great use of that as a factor in deciding the case. Whether I incorporate that or not, I will see. But I have not forgotten it.

Yes?

MR MAURICI: My Lord, I do make an application for a second set of costs. My Lord, I make it on this basis. My Lord, can I hand you up a transcript I have provided to my learned friend? It is the proceedings after a judgment in a Court of Appeal called Malster.

MR JUSTICE COLLINS: Is it Sullivan J's Ipswich case?

MR MAURICI: There is one paragraph I may come into a moment which is a short judgment given by Pill LJ. But my Lord the application I make for a second set of costs is on this basis, quite simply. There was a separate interested here on the part of the interested party because of the injunction.

MR JUSTICE COLLINS: That I would say was clearly the relevant (inaudible).

MR MAURICI: My Lord, if I look at paragraph 34 in the Malster case. What happened in Malster was that - your Lordship is obviously aware is was a challenge to Ipswich Town football club's to redevelop their stadium. The club appeared as an interested party. In the Court of Appeal, at the last moment there was an application for interim relief made, which ultimately was not pursued, but the threat of the interim relief was very much alive. My Lord, I will just leave you to read what Pill LJ said.

MR JUSTICE COLLINS: What he said is 50%, on the basis that they were faced with the possibility of an order which prevented them carrying out the building.

MR MAURICI: Yes.

MR JUSTICE COLLINS: One sees the analogy.

MR MAURICI: My Lord, clearly the same applies here. My Lord, I would say, I will try to persuade your Lordship for more than 50%. It should be 50% because of the Malster point which is identical. It should be more for this reason, my Lord. The interested party put in substantial evidence to deal both the grounds which were finally pursued, but also those grounds which were ultimately not pursued. My Lord, I say in no small part I say the reason they were not pursued because of the evidence we put forward. My Lord, yesterday in the course of the hearing there were numerous references, your Lordship will remember, to the interested party's evidence. (Inaudible) most of the witnesses statements --

MR JUSTICE COLLINS: To be fair, Mr McCracken did seek to rely on some specific material which he thought was helpful to him which had been disclosed by you.

MR MAURICI: I think he said it was very fairly disclosed in those circumstances. In those circumstances I say it should be higher than 50% in this case, at the very least it should be 50% by reason of (inaudible). So my Lord unless I can assist you further those are my submissions for costs.

MR JUSTICE COLLINS: No, I see.

Well Mr McCracken?

MR McCRACKEN: My Lord, we do have submissions in relation to this. I wonder if I can ask that copies of two decisions are being handed up to your Lordship. The first is the Bolton decision in the House of Lords. I doubt whether I need to spend time on that with your Lordship, because your Lordship is familiar with the principle. But normally a developer does not get costs in these circumstances.

The second is the decision of the Court of Appeal in Berkeley on costs. That is a decision which helps to clarify what the House of Lords were saying in Bolton. If I can take you right at the outset to what Nourse LJ said in the Berkeley case. It is on the penultimate page and the last page.

MR JUSTICE COLLINS: This is Berkeley in the Court of Appeal before it got to the Lords, is it?

MR McCRACKEN: Yes. It is the Court of Appeal with regard to costs. At first instance she had been ordered to pay Mr Hicks' costs, but in the Court of Appeal, the Court of Appeal deprived the football club of their costs. It is the penultimate page and the last page. The point that we would wish to make to your Lordship is that even though it is helpful for a developer to be in court - and no one would question their entitlement to be in court - it does not follow that they have established a separate cause.

The second point is that one always has to ask, looking at the context of the case as a whole, whether a putative separate point or separate issue really in the context of the case as a whole justified our costs for the separate representation.

That is, as it were, the context within which I now turn to the particulars of Mr Maurici's application here. If I can take your Lordship to the Malster case to paragraph 34, where Pill LJ, with the agreement of the court, proposes that the Ipswich Football Club should have half their costs. Your Lordship notices, half their costs.

The second point to note is that the football club there were at risk of an injunction at the conclusion of the proceedings in respect of which the costs were awarded.

MR JUSTICE COLLINS: On the claim made, so were the interested party.

MR McCRACKEN: Can I take your Lordship to page 14, and can --

MR JUSTICE COLLINS: Page 14 of...?

MR McCRACKEN: Of the claimant's bundle. I am here going to reiterate something that Mr Harris submitted yesterday, where he said, "There never was a claim that an injunction should continue after today." He was quite right to say that, because what you will see --

MR JUSTICE COLLINS: "A further interim injunction to prevent demolition until the lawfulness of the planning permission has been determined."

MR McCRACKEN: That appears in both section 6 and section 7. So the interested party was never at risk in relation to the rolled-up hearing.

MR JUSTICE COLLINS: Is that quite right? What if the decision had been that the planning permission was unlawful?

MR McCRACKEN: He would not have been at risk for two reasons. First, for the reasons that your Lordship explained yesterday and that we would accept. But, secondly, because there was no application for an injunction after today, and it would be inconceivable that a court would impose an injunction in circumstances where there was no application.

MR JUSTICE COLLINS: Would you have applied for one?

MR McCRACKEN: No, I would not because --

MR JUSTICE COLLINS: You realised you would not have been able to get one.

MR McCRACKEN: Both because inherently an injunction would not be granted, but also --

MR JUSTICE COLLINS: It should not have been granted initially, should it?

MR McCRACKEN: I think that is a different point, and I want to come back to the initial grant because I think that is a separate issue. There are two issues here: are they entitled to their costs of the rolled-up hearing and are they entitled to their costs at the interim application stage? We would recognise they are two quite separate issues.

MR JUSTICE COLLINS: Yes, because I have got to take account of the costs before Newman J.

MR McCRACKEN: We accept those are entirely separate issues. But so far as the costs of the hearing yesterday and today, the substantive hearing, there was no application for anything other than an interim injunction. In so far as there was any doubt, suppose there were at the back of the mind a doubt, "Well what will happen. Will they in the, as it were, rush of victory then seek to apply for an injunction?" They could have written and asked for clarification of what our position was, but they did not so do. So in our submission, there is a real difference between this case and that of the Ipswich Football Club case, because they were not at risk as a result of the substantive hearing.

So far as the interim stage is concerned, we would accept that they were, as it were, at risk of an injunction at that stage, but - and this a very important but - it is clear that they were not entitled lawfully to demolish pursuant to the permission, because they had not satisfied the pre-conditions that had to be satisfied before demolition could take place. If I can take your Lordship to the permission, because it is --

MR JUSTICE COLLINS: Yes.

MR McCRACKEN: There are a number of conditions before --

MR JUSTICE COLLINS: There are a very large number of conditions. Which page?

MR McCRACKEN: It is page 86, my Lord.

MR JUSTICE COLLINS: 86, thank you.

MR McCRACKEN: There are a number of pre-conditions there. Mr Buxton's witness statement dealt with it.

MR JUSTICE COLLINS: Yes, I remember.

MR McCRACKEN: There is pre-condition 4, for example, no development until a detailed soil survey and the results have been provide to the planning authority. Condition 7, no development until --

MR JUSTICE COLLINS: This is not development; a demolition is not development.

MR McCRACKEN: I am going to deal with this point in a moment, my Lord, because it is an important point because there is a clear, simple and straightforward answer to this point:

MR JUSTICE COLLINS: Yes.

MR McCRACKEN: Then likewise condition 23:

MR JUSTICE COLLINS: Because it included the demolition?

MR McCRACKEN: Indeed. In those circumstances, of course, there would be no point in the interested party participating.

MR JUSTICE COLLINS: But the only one is the soil contamination. When was that report obtained?

MR McCRACKEN: No, that was not the only one. As far as we were aware these things have not yet been approved, but certainly we have -- certainly, Mr Buxton's witness statement indicates that at the time of the interim hearing, which is after all the stage with which we are concerned, those matters had not been approved.

MR JUSTICE COLLINS: I remember being told that, and that possibly would have been a justification for not meeting the -- there is no way that it could be stopped, but it was up to them to decide whether they were at risk if they did it.

MR McCRACKEN: One has to look at these things in the round. The only basis upon which they can say we could carry out this development, is if they were effectively abandoning the permission. Because if they carry out the demolition --

MR JUSTICE COLLINS: Is that Article 3(4) that is relevant?

MR McCRACKEN: I am not I am afraid -- I am sorry, I am not following your Lordship there.

MR MAURICI: I do not think it is, because that relates to development which is permitted by the GPDO, and course in relation to demolition of --

MR JUSTICE COLLINS: You are saying this Mr McCracken; the authority for this is what?

MR McCRACKEN: They have a planning permission which describes the development as including demolition.

MR JUSTICE COLLINS: Yes.

MR McCRACKEN: Conditions have been imposed in accordance with the circular that governs demolition.

MR JUSTICE COLLINS: Yes.

MR McCRACKEN: That planning permission is one that can be implemented, but only if the demolition is part of the whole process. It is very straightforward. You look at the words of the application, what it is that is being permitted, and you see that very clearly the planning unit in this case is one which includes the existing building --

MR JUSTICE COLLINS: But you see what the circular indicates is, is it not, that there can be conditions relating to the demolition as a separate issue, as it were. I do not think that, perhaps you can show me some authority, that that relates to the whole of the planning permission, as it were. I will tell you why, because you can ask for and perhaps get planning permission for doing things which actually you do not need planning permission to do at all. People do not always appreciate that there are things that can be done. It may be that a particular development includes, as here, an element which actually does not require planning permission. But if that is right, then surely you cannot say that simply because the planning permission includes something which is not regarded as development, you effectively lose the benefit of that planning permission by failing to comply with a condition that relates to development. If it relates to demolition as such, then I can well understand it because that falls directly within, certainly the circular. I have got somewhere the relevant legislative material, have I not?

MR McCRACKEN: If your Lordship looks at condition 7 on page 87, your Lordship will see that condition 7 on page 87 expressly relates to demolition.

MR JUSTICE COLLINS: Yes.

MR McCRACKEN: Therefore it is clear --

MR JUSTICE COLLINS: We do not know whether there is any such -- I mean, I have no evidence as to whether there is any such management plan, do I?

MR McCRACKEN: Yes, Mr Buxton's witness statement explains....

MR JUSTICE COLLINS: He says he has not seen one, he is not aware of one.

MR McCRACKEN: Yes, and it would be open to -- that is evidence before your Lordship from which you can draw the inference that there is not one.

MR JUSTICE COLLINS: I do not know.

MR McCRACKEN: Bearing in mind the duty under principle R v Durham County Council ex parte Huddleston on the part of defendants and others to help the court in these circumstances, it is not unreasonable for your Lordship to make two assumptions. First, to draw the inference from the fact that Mr Buxton has not seen one that there is not such a plan; and, second, if there were such a plan what would happen --

MR JUSTICE COLLINS: You mean they could have produced it. I take that point. Yes.

MR McCRACKEN: I mean, it is page 68, you see a draft one which has not been approved. But, my Lord, I wonder if I can just take up an earlier point. In a sense what your Lordship is saying is that the circular on demolition is based upon a false premise, that it is possible to impose conditions relating to demolition.

MR JUSTICE COLLINS: No, no, I am not saying that. What I am saying is that unless the conditions are specifically related to the demolition, then I do not think a general condition on development can bite, because development is not -- I mean, demolition is not development.

MR McCRACKEN: If that --

MR JUSTICE COLLINS: That is all. But I need the statutory basis for all this, because the circular may be very interesting, but unless it has statutory backing for what it says, it does not mean much, does it?

MR McCRACKEN: My Lord, so far as express reference to demolition, condition 7...

MR JUSTICE COLLINS: All right, you have got the condition 7 point.

MR McCRACKEN: ....expressly refers to demolition. It could not be construed as having any intention other than it should apply to demolition. Therefore, the only basis upon which your Lordship could, as it were, reject the submission that they would have been in breach of condition 7 would be on the basis that the circular is misconceived, because it wrongly supposes that conditions can be imposed on demolition.

May I stand back for a moment from that and just bear in mind that we are here in the realm of discretion. We are dealing with --

MR JUSTICE COLLINS: Oh, you mean the costs, yes.

MR McCRACKEN: We are dealing with discretion. Therefore we are entitled to have regard to what I call equitable principles. Here is a developer who has applied for permission for a development which he describes as including (inaudible). The conditions require various things to be satisfied before the development begins. So on a natural reading of what it is that cannot take place until those pre-conditions being satisfied, demolition would be part of that development. But in any event there is an express condition that very clearly refers to demolition that has not been satisfied. Therefore, the court is entitled to ask itself: why did the interested party not disclose to the court that there were potential problems with compatibility with those conditions if it were to carry out the development there and then? Now that was a matter that was within the knowledge of the interested party, and it seems to me that one can go as far as this to say: it appears that the interested party failed to disclose relevant material to the court. This is a relevant factor. But above all else --

MR JUSTICE COLLINS: No, that will not wash surely, because your point is that the absence of such material leaves the evidence all one way.

MR McCRACKEN: Yes, but the point I am making is that at the time of the interim injunction in front of Newman J the court did not have Mr Buxton's witness statement.

MR JUSTICE COLLINS: Oh I see.

MR McCRACKEN: That is something subsequently discovered, and the point I am making is that when the interim injunction was being considered --

MR JUSTICE COLLINS: Oh I see, sorry, you are looking back.

MR McCRACKEN: I am saying at the time of the interim injunction, and it is the costs in relation to the injunction which in my submission are really at issue here, the interested party should have disclosed there were these doubts. Even if the interested party took the view it could go ahead and that these conditions did not bite for whatever reason, the duty in this court is to tell the court what the facts are and then let the court make up its own mind about the significance. So our submission would be that the interested party was in breach of its duty of disclosure to the court.

So in summary we make really three points. The first is that so far as the substantive hearing is concerned, that is covered by page 14, sections 6 and 7 of the claim. There was not a claim for an injunction to continue beyond the end of the hearing, and the application that Mr Harris made last night does not make any difference to that in the context of the overall case. It is neither here nor there.

The second point is that at the time of the hearing in front of Newman J the interested party was not in fact able to go ahead with the development in good faith, that is our submission. Thirdly, there was a failure on the part of the interested party to disclose to the court that there were conditions that were expressed to relate to demolition with which compliance had not been achieved at that time.

For those three reasons, we would submit that it would be inappropriate to depart from the general rule established in Bolton and Berkeley in the Court of Appeal.

MR JUSTICE COLLINS: Yes.

The ability to impose conditions relating to demolition is covered where? I mean, there is reference in the circular to 34 of the GPDO. I do not think I have got the GPDO, at least not in the form of a schedule.

MR MAURICI: (Inaudible) my Lord, no.

MR McCRACKEN: The general proposition is that you can include within an overall development things, elements, that become part of that overall development which would not themselves require planning permission. That is the broad principle we rely on.

MR JUSTICE COLLINS: I am sure that is right.

MR McCRACKEN: So that would apply, just as it might apply to the kind of windows you use or the type of paint you use.

MR JUSTICE COLLINS: My inclination at the moment is to think that your point does not relate to all conditions that are required before development takes place because demolition is not development, but it does and can apply -- condition 7, as you point out, is one -- to conditions which deal specifically with demolition. Because that is the whole purpose of putting demolition in as -- indeed, I suppose the argument would be that even if the application did not include demolition because it was felt that it was not necessary to do so, paragraph 29 of the circular is actually unnecessary, because it is always open to an LPA to impose conditions relating to something such as demolition which is an integral part of the development.

MR McCRACKEN: In the context of the facts of this case it probably does not matter, but in addition to the point we make about the express reference to demolition in condition 7, we would submit that it would be necessary so to do in the context of an application for a development which includes within the description of the development "demolition", then a condition that says no development until X would be intended to apply to demolition.

MR JUSTICE COLLINS: One can see the argument.

MR McCRACKEN: We do not need to rely on that, but if we did need to rely on that we would say --

MR JUSTICE COLLINS: I see the argument.

MR McCRACKEN: I suppose we would say Lord Denning, who sat for so many years in the chair in which your Lordship is sitting, would have had no difficulty in reaching that conclusion, my Lord.

MR JUSTICE COLLINS: I am not sure about that, Mr McCracken. The trouble about Lord Denning is that you can find him as an authority for virtually any proposition that you want to put forward. I have perhaps the lese-majesty that I have had to distinguish him or disagree with him from time to time. But I take the point.

MR McCRACKEN: It may not be my best point, my Lord.

MR MAURICI: My Lord, can I just deal briefly in response to these points. First of all, my learned friend says therefore would have been no risk of him asking for the injunction to be continued. Why does he say that, my Lord? He says that because there was no basis on which he continued (inaudible). With respect to my learned friend, I do remind your Lordship that yesterday afternoon he sought to maintain the continuance of the injunction until today, despite effectively, as your Lordship (inaudible), either accepting, or at least not being able to resist, the fact that there was no basis for continuing the injunction. If the issue is whether we were at risk, my Lord, it is quite clear we were at risk.

MR JUSTICE COLLINS: Are you saying Mr McCracken can be feared as possibly going to argue anything?

MR MAURICI: I do not say that, my Lord. But yesterday my Lord will know it was sought to continue the injunction, despite the fact there (inaudible). So, my Lord, given what was at stake for my clients, clearly they had to be here to ensure that risk was removed.

There is a second point, my Lord. The form of the order sought in the claim form is:

Now, my Lord, what that could bring into play is, I do not know whether my learned friend is going to make an application for permission to appeal, but it could be said if they --

MR JUSTICE COLLINS: He will not get it if he does.

MR MAURICI: But my Lord he could not say, my Lord, you are looking at in retrospect, in terms of the risk to my clients (inaudible) the injunction should be continued until the Court of Appeal (inaudible). So those are the further two points, my Lord.

The next thing I would say is this, that the cases my learned friend cited to you, Berkeley and Bolton, are not relevant because neither of them considered injunctions.

MR JUSTICE COLLINS: No, it is the injunction that is the point here.

MR MAURICI: Now, my Lord, just briefly on the conditions point because in my submission this really is missing the fundamental point. The fundamental point here is that an injunction was granted which your Lordship recognises, had the full facts been put to your Lordship, would not have been granted. This point about whether we could or could not demolish in accordance with the planning permission, it does not matter in terms of the key (inaudible), which is whether the injunction could have been granted. As Mr Harris explained to your Lordship yesterday --

MR JUSTICE COLLINS: The court does not grant injunctions to deal with planning conditions normally, that is a matter for the local authority to take enforcement action if it considers it appropriate.

MR MAURICI: Exactly, my Lord.

MR JUSTICE COLLINS: You do not come rushing to court to get an injunction to enforce a planning condition.

MR MAURICI: Of course that was not the basis (inaudible). The injunction was never sought on the basis that we failed to comply with conditions to implement the planning permission.

MR JUSTICE COLLINS: That was raised, but I am not sure that that would have been -- I am sure that it would not have been a proper basis for granting an injunction on its own.

MR MAURICI: I am not going to take up much more time. Just two short points. First of all, your Lordship's instinct in relation to the planning application is exactly right. Those conditions refer to something not being done until development commences cannot possibly catch demolition, because, my Lord, demolition is not development.

MR JUSTICE COLLINS: No. But seven, for example, can.

MR MAURICI: My Lord, seven is a different point. But irrespective of that position, my learned friend also focused on the contaminated land point. That is clearly a pre-development condition. My Lord, as you would expect, because very often remediation works you have to do require demolition of buildings that are on site. That does not make sense otherwise.

Can I just say in relation to that contaminated land point, my Lord, the evidence from Mr Buxton which was put in on that contaminated land point came in on the afternoon before the hearing at the eleventh hour. Simultaneously with that, my learned friend indicated they would not be pursuing the contaminated land point. So in those circumstances we decided, as did the council, not to put in any evidence in response on those points. I am not going to say what the other side of the story is. Your Lordship will appreciate there is another side of the story, we could have told it and we have not told it. The key point is that we were at risk in terms of the injunction, and effectively that compelled our attendance. Therefore we are entitled to at least 50% of our costs in my submission. My Lord, I am still urging you to award more than that. I say 50% of the costs generally, plus the costs of our evidence on top of that to deal with the extent to which I (inaudible).

Unless I can assist your further, those are my submissions.

MR JUSTICE COLLINS: Subject to the usual legal aid protections, Mr McCracken accepts that an order for costs must be made against him in relation to the defendant's costs. He resists, though, an application for costs on behalf of the interested party.

The law is that in general a third party will not get his costs unless there was some particular reason why it was necessary for him to attend at the hearing. The particular reason here is said to be the existence of the injunction. Clearly that is a factor which as a general rule will mean that the court will at least have to consider the question as to whether costs should be awarded. It takes it out of the normal situation.

Mr McCracken resists this application basically on two grounds. First, he submits that the claim, when one looks at what was being sought, was to quash the planning permission and for "a further interim injunction to prevent demolition until the lawfulness of the planning permission has been determined." He submits that that could only mean that the injunction was only to continue until this hearing. That is not entirely the case because, as Mr Maurici points out, there is always the possibility of an appeal. Thus, it was necessary for the interested party to attend in order to deal with at least that possibility. Furthermore, they could not be sure from that that the injunction would not be sought to be extended. Indeed, he makes the point that yesterday afternoon, although the situation was, as Mr McCracken could not gainsay, that there was no lawful basis for the grant of an injunction, still an application was made that it be extended until today. Accordingly, the precise nature of the relief did not mean that the interested party should not reasonably believe that they might be at risk of a further extension of the injunction.

So far as the hearing before Newman J is concerned, Mr McCracken resists the costs of that on the basis that there were pre-conditions. At least one of those conditions, condition 7, specifically related to demolition as opposed to development generally, and that was the production of a management plan. He says that the evidence before me is that there is no such plan, that is what Mr Buxton has deposed to on the basis that no such plan has been identified, and no evidence has been forthcoming from the interested party that such a plan exists. Indeed, Mr McCracken goes so far as to submit that it was wrong for them not to have put that before Newman J, because at that stage there was no evidence available to the claimant as to whether there was such a plan in existence, and it was incumbent, he submits, upon the interested party in resisting the extension of the injunction to make it clear whether or not there was a compliance with that condition.

The difficulty with Mr McCracken's argument, as it seems to me, is that the fulfilment of a pre-condition is not a matter which would have been determinative in deciding whether or not an injunction should or should not be granted. It is not normally for this court to listen to and act upon claims that a condition has not been met in relation to the implementation of a planning permission. That is a matter for the local authority, and for the local authority to take such steps, which include the power to impose an immediate stop order if it considers that that is necessary. It is not a matter that the court will normally deal with.

In all the circumstances, one has to, to an extent, adopt something of a broad-brush approach. I consider that the interested party should have their costs of the preparation for and the hearing before Newman J, but that there should be no order for costs in relation to the hearing before me.

MR McCRACKEN: My Lord, on....

MR JUSTICE COLLINS: Again, on the same terms, of course.

MR McCRACKEN: I think your Lordship flattered me by describing my submissions as those of Mr Maurici at one stage. I would just invite the shorthand writer to note that I think the reference to Mr Maurici dealing with the second of my points was actually a reference to myself.

MR JUSTICE COLLINS: I am sorry.

MR McCRACKEN: The more substantive point is that I think we need to ask for legal aid assessment.

MR JUSTICE COLLINS: Yes, of course.

MR McCRACKEN: I would ask that your Lordship make such an order.

MR JUSTICE COLLINS: Yes, certainly.

MR McCRACKEN: May I deal with the question of permission to appeal, and it is --

MR JUSTICE COLLINS: You make your application Mr McCracken, but you are not going to get leave to appeal.

MR McCRACKEN: In the circumstances your Lordship probably would not wish me to elaborate.

MR JUSTICE COLLINS: I think it is pointless. You understand DI appreciate you have to make it formally in order to clear the ground, but I mean, frankly, I think this is a hopeless case.

MR McCRACKEN: It is one of the more distasteful aspects of the change of the rules that one has to ask.

MR JUSTICE COLLINS: It is not distasteful at all, I fully recognise that I am capable of getting things wrong, and from time to time have. Do not worry about that.

MR MAURICI: My Lord, could I ask that in the circumstances of this case that as my learned friend may well renew to the Court of Appeal, it lies in your Lordship's power to abridge the time for that appeal. I know the injunction has gone, but nonetheless there is a challenge --

MR JUSTICE COLLINS: The injunction has gone, there is no bar to you carrying on as --

MR MAURICI: With the demolition.

MR JUSTICE COLLINS: I cannot see that there is any need for me to abridge time, is there?

MR MAURICI: There still is, because the planning permission, if the leave to appeal is sought, is still under challenge, which obviously continues to potentially affect the interests of my client.

MR JUSTICE COLLINS: I cannot stop that, can I?

MR MAURICI: My Lord, I have made the application.

MR JUSTICE COLLINS: My view is, as I have indicated, that this is a hopeless challenge and take such comfort as you think appropriate from that.

MR MAURICI: We will my Lord, thank you.

MR JUSTICE COLLINS: All right.