Lewes District Friends of the Earth Ltd & Ors, R (on the application of) v East Sussex County Council & Anor

MR JUSTICE SULLIVAN: In these two joined rolled up hearings of the claimants' applications for permission to apply for judicial review, with the substantive hearing to follow if permission is granted, the claimants, Dove 2000 Limited, Newhaven Town Council and Lewes District Friends of the Earth Limited, seek a quashing order in respect of the defendant's decision dated 12th November 2007 to grant planning permission to Veolia ES South Downs Limited (the interested party) for the construction and operation of an energy recovery facility ("ERF"), together with ancillary infrastructure including a waste transfer station, on land at the northern end of North Quay Road at Newhaven ("the site").

The hearing has been expedited and in view of the urgency of the matter and the need to give the parties a decision today, I do not set out the lengthy planning history of the matter about which there is no significant dispute between the parties.

The application was the subject of a very lengthy and very detailed report to the committee by the defendant's Assistant Director of Policy, Transport and Environment. The report reminded members that the proposal had generated the most public interest of any planning application considered by the defendant and that the consultation process had resulted in a substantial number of objections, principally from Newhaven but also from further afield in East Sussex and beyond. Appendix 2 to the report is a schedule which analyses the numerous comments that had been received and gives the officer's responses to those comments. The appendix shows that the objectors are numbered in thousands.

The claimants challenge the grant of planning permission on five grounds which are summarised in Mr Harwood's skeleton argument on behalf of Dove as follows:

Having heard the claimant's submissions, I concluded that grounds 2, 4 and 5 were not arguable and it is convenient to explain why at the outset.

Policy WLP9 in the East Sussex and Brighton and Hove Waste Local Plan ("the Local Plan"), which is a site specific allocation for energy from waste and material recovery facilities is in these terms:

Since both grounds 2 and 4 are concerned with the reasoned justification for WLP9, it is sensible to set out paragraphs 6.29 and 6.30. Under the heading "Sites for Energy from Waste Plants":

As I understand ground 2, the complaint is that the proposed ERF would receive waste from the whole of the Waste Local Plan area, whereas paragraph 6.29 made it clear that it was intended to receive waste from the western part of the Plan area only. Thus, members were misled by the report into believing that Policy WLP9 supported the proposal when in fact it is said that it did not. This complaint is misconceived on two grounds: firstly, in the way in which the claimant interprets the policy in the Local Plan, and secondly, the way in which the claimant interprets the report. While paragraph 6.29 of the Local Plan says that the facility at North Quay would serve the western part of the Plan area (ie, the Brighton and Hove conurbation to the west of Newhaven), it does not say that it would be acceptable only if it serves the western but not the eastern part of the plan area.

Paragraph 8.38 of the report explained why it was difficult to find a suitable site further to the west to serve the western part of the Plan area:

In the Local Plan, the North Quay proposal is put forward upon the basis that other proposals "will undoubtedly come forward in the east of the Plan area". Notwithstanding the confident tone of the explanatory text, it is necessarily implicit in that reasoning that the site specific allocation at North Quay may well be realised before any non site specific proposal comes forward to be assessed on its merits and in the light of the general policies in the Local Plan, including policy WLP19. Thus, it could not possibly be contrary to Local Plan Policy WLP9 to grant planning permission for a proposal at North Quay, even though some other proposal, perhaps one better located to serve the eastern part of the Plan area, had not yet come forward. It is implicit in Policy WLP9 that, for a time at least, North Quay may well be the first such facility in the Local Plan area. That does not mean to say that the Local Plan proposes that it shall be the only facility in the Local Plan area.

This indeed is the approach adopted in the report (see paragraphs 8.51 to 8.57). Paragraph 8.51 makes the point that to achieve the aim of significantly increasing the amount of waste reused, recycled or composted and, by doing so, to reduce the proportion of waste going to landfill:

In short, the proposal is part of an integrated strategy that includes other facilities referred to in the report and will, in due course, include yet further facilities in the east of the Plan area. The appeal proposal does not purport to be the whole answer, merely an important step in getting the right answer to the problem faced within the Waste Local Plan area.

The report endorses in paragraph 8.43 the interested party's assessment that North Quay is "well located in relation to the main areas of waste arisings in the Plan area, with good transport links and the potential for rail or water transport to be used". That reference to rail transport leads me to ground 4.

The complaint is that the report made no mention of the fact that, in the reasoned justification for Policy WLP9, North Quay had been specifically identified in paragraph 6.30 as being "suitable for rail . . . transfer of waste, to or from road vehicles". Again, the submission misconstrues the policy because it ignores the words following that passage in paragraph 6.30, "subject to the rail link being reopened". Thus, the reasoned justification does not say that the rail link must be reopened or that rail transport must or should be used.

That matter is dealt with in Policy WLP19 which is a generic policy dealing with energy from waste facilities and which contains the following, that proposals shall "pursuant to Policy WLP2, provide for the majority of the waste and residues to be transported to and from the site by rail or water unless it is demonstrated why that would not be practicable". WLP2 at (b) says much the same thing. Under the heading "Transport Strategy" it says:

Against this policy background, the report unsurprisingly considered the practicality of reopening the rail link. Thus, in paragraphs 8.119 to 8.126 the report referred to Policy WLP19, said that the practicality of transporting the waste by rail or water had been dealt with only briefly in the application before alternative methods of transport to rail had been dismissed, and said that that matter had been specifically raised with the applicants.

Paragraph 8.20 pointed out that the site adjoined the Lewes to Seaford railway and a siding previously used for aggregates traffic was located west of the main line and immediately to the south of the application site. But it is said that the siding connection had been disconnected and the associated signalling had been removed. Paragraph 8.121 referred to discussions with the railway authorities and said that following those discussions the applicant for planning permission (the interested party) had accepted that there was no practical reason why waste could not be transported by rail from the Hollingdean transfer station which joins the Brighton/Lewes line to Newhaven:

Paragraph 8.123 says that the costs associated with a development are not normally material to planning consideration, but the point is made that only a certain proportion of traffic movements would be removed from the road network, and the further point is made that the train movements would still involve travel through the AONB to reach the ERF. A concern regarding transportation through the AONB had not therefore been overcome.

The threads were drawn together in paragraph 8.124 where the Assistant Director said:

Thus, the report acknowledges that the site is suitable for rail transfer, subject to reopening the railway, acknowledges that this mode of transport is to be preferred in policy terms if practicable but concludes, for the reasons given in the report, including cost, that it is not practicable at present. Although the outcome may be disappointing to those who favour rail as opposed to road transport, especially in view of the fact that the potential rail link was one of the factors in favour of the site, it cannot possibly be said that the approach in the report is unreasonable. The potential for rail haulage remains, even though it is not practicable at the moment. The economics of the operations may change and the applicant has been asked to keep that option under review. Nor is there any conflict between the reasoning in the report that there is no conflict with policies WLP2(b) and 19(b) and the summary reasons for granting planning permission which said:

PPS25: Development and Flood Risk, advises Local Planning authorities to apply a sequential test:

The complaint is that although the report referred to PPS25, it proceeded straight to the exception test, omitting the sequential test. It is therefore said that there was a breach of the policy guidance in PPS25. It is true, if one looks at paragraphs 8.170 to 8.176 of the report which deal with flood protection, that, having summarised the relevant policies, including the need to apply the sequential test (see paragraph 8.170), there is no express consideration of the sequential test and the report does proceed to the conclusion in paragraph 8.175:

If one asks why did the report deal with flood protection in that way, the answer, in my judgment, is obvious as soon as one reads the report as a whole. This was a site within a relatively small area of search, North Quay, that had been identified in the Local Plan after a process of examining alternative sites. Moreover, that process had been repeated in the interested party's assessment under the EIA Regulations. Those matters were dealt with in paragraphs 8.37 to 8.43 of the report. In the last sentence of paragraph 8.38, in respect of the preparation of the Local Plan, the report said:

In these circumstances, where it had been concluded that this was the most appropriate site for this particular facility, it is readily understandable that it was not considered that there was a need to effectively repeat the process by going through the sequential test once again. PPS25 has to be applied with a measure of common sense. When it speaks of there being no reasonably available sites with a lower probability of flooding it means no reasonably available sites for development of the kind that is being proposed. It is common ground that this particular kind of development is particularly demanding in terms of its requirements. It is extremely difficult to find a suitable site for an ERF.

The complaint made by the claimants is, in any event, wholly academic, because PPS25 advises local planning authorities to work in partnership with the Environment Agency, making the best use of its particular expertise (see paragraphs 6 and 25-29 of PPS25).

The defendant consulted the Environment Agency. Its response is as recorded in paragraph 8.175. It did not raise any objection, having considered the matter pursuant to PPS25. There can be little doubt that if the Environment Agency had been in the least dissatisfied with the earlier assessments of alternative sites then it would have said so, and insisted that a sequential test be applied once again. In this respect, this case is readily distinguishable from the authority referred to by Mr Nardell, R (on the application of the Environment Agency) v Tonbridge and Malling Borough Council [2005] EWHC 3261 Admin, where it was the Environment Agency itself which was challenging a grant of planning permission because it was contended that the sequential approach in PPS25 had not been adopted by the Local Planning authority in that case. The manner in which the sequential test should be applied is not prescribed in detail in PPS25. If the Environment Agency had not been satisfied with the consideration of the alternative sites in the Local Plan process and the EIA process it could, and no doubt would, have said so. The complaint is wholly artificial and treats policy advice as though it was a legal obstacle test rather than an aid to practical environmental decision-making.

I turn therefore to the two remaining grounds of challenge, grounds 1 and 3.

The PPC permit was granted on 6th November 2006. It was challenged in judicial review proceedings and at the time that the planning permission dated 1st November 2007 was granted, those proceedings were outstanding. On 5th December 2007 I quashed the permit by consent. What is the effect of that quashing on the validity of the planning permission? The position adopted in the claimant's skeleton argument was that, having been quashed, the PPC permit never had any legal effect whatsoever, therefore in relying upon it in the report the defendant took into consideration a legally irrelevant matter.

In my judgment, it is unnecessary to examine the consequences in legal terms of the quashing of a permit or consent, not least because relief in judicial review is a matter for the discretion of the court. Thus, in practice in such cases the court will examine the extent to which and the reasons why the PPC permit was relied upon by the defendant when granting planning permission and the reasons for quashing the PPC permit to see what effect, if any, those reasons had on the defendant local planning authority's reliance on the PPC permit when granting planning permission. I remind myself that Mr Harwood correctly submitted that if a permit is quashed by consent then a consent order may not reflect the full extent of any legal error in that which has been quashed.

The starting point is that there can be no doubt that the report correctly advised members as to the respective functions of the two regimes: the granting of planning permission by the local planning authority and the granting of PPC permits by the Environment Agency (see paragraph 8.131). Paragraph 8.132 refers to the advice in PPS10 and PPS23. The latter states that:

Thus, in the case of vibration, odour, dust and litter, the report correctly distinguished between the planning conditions which would have effect during the construction phase and the PPC permit controls which would bite during the operational phase (see paragraphs 8.100 to 8.102). On a fair reading of those paragraphs, it is clear that the Assistant Director was satisfied that all of the matters therein considered -- namely vibration, odour, dust and litter -- could be, and would be, adequately controlled by conditions in the PPC permit. Quashing the permit has no effect upon those conclusions. There is no suggestion that the Environment Agency will not be prepared to issue a new PPC permit dealing with those issues in the same, or substantially the same, manner. Indeed, on 16th July the Environment Agency did issue a new draft permit saying that it was minded to grant a permit in the terms set out and inviting consultation responses.

Mr Harwood submitted that in at least one respect the defendant went further in relying on the Environment Agency's views in respect of air quality. Under the heading "Pollution Prevention and Control", paragraph 8.136 of the report says this:

In substance, the author of the report is saying that while these are material planning considerations, he is satisfied that they can be and will be controlled through the PPC process. That this was the approach is confirmed by what is said in Appendix 2 to the report where one finds in response to a large number of points, under the heading "Air Quality, Pollution and Emissions", a text which sets out the comments of the Environment Agency and adds the words:

Although, as a matter of legal principle quashing the PPC permit for any reason would result in the whole of the permit being quashed (and I accept that a consent order merely identifies those flaws in the decision-making process which the defendant concedes), it is important to see why in this case the Environment Agency agreed that the permit should be quashed. Does it cast any doubt on the defendant's reliance on the Agency's views? The answer to that question is "No". If one looks at a letter from the Agency dated 30th November 2007 addressed to the claimant's solicitors in the judicial review proceedings in respect of the permit, that said:

In short, for its part, the Environment Agency accepted that the reasons it gave for its decision were inadequate. For its part, it did not concede that there were any issues of concern which the report said would be addressed and would be sufficiently controlled by the PPC process that would not be either so addressed or controlled. The proof of the pudding is that on 16th July the Agency issued a new draft permit indicating that it was minded to grant a permit, subject to consultation. The substance of the permit (that is to say the way in which it deals with the various matters that are referred to in the report by way of controls and conditions) has not altered, although the reasons for imposing the various controls and conditions have been amplified.

Mr Harwood rightly submits that there is still no permit. The consultation period has only just begun. It is to be anticipated that there will be a large number of representations before it has ended, and there is always the possibility that there will be further judicial review proceedings if a further PPC permit is issued in the form in which the Agency is presently minded to issue it. All that may well be the case, but it has to be borne in mind that as a matter of law a PPC permit is not a pre-condition for a grant of planning permission. It is true that the defendant's approach is to ask applicants to obtain a PPC permit before it considers whether or not to grant planning permission, but that is not a legal requirement. The defendant approached the matter on the basis that while environmental pollution is in principle a material planning consideration, so too is the existence of the PPC regime and its ability to impose detailed controls on the operation of the ERF facility.

The reasons given in the report, including the Agency's view that it could satisfactorily deal with the issues that have been raised by objectors through the PPC process, have not been falsified by the quashing of the PPC permit on the basis that the Agency did not give sufficient reasons. There is nothing to suggest that for its part the Environment Agency is not satisfied that the PPC permit will be able to satisfactorily control those matters which are properly regarded by the report as being within the Agency's province, rather than that of the local planning authority, adopting the Gateshead approach.

In summary, the Environment Agency's views, as reported to the committee in the report, have not significantly changed. It has been prepared to amplify those views by giving further reasons. If the Agency's conclusions are legally flawed, and that is the conclusion in any future judicial review proceedings, then the position will be that even though there is a planning permission the ERF will not be able to operate unless and until a PPC permit. However, it will not mean that the grant of planning permission is invalid once the separate or complementary nature of the two regimes is properly recognised. For these reasons I reject ground 1.

RPG9, Regional Planning Guidance for the South East, was issued in 2001. Two chapters dealing with waste and minerals, chapters 10 and 11, were reissued in revised form in 2006. In the revised RPG9 there are targets, both for diversion from landfill in Policy W5 and for recycling and composting in W6. The targets are set out in percentage terms for various years: 2005, 2010, 2015, 2020 and 2025. So far as the recycling targets and composting targets in Policy W6 are concerned, in 2015 the target is 50 per cent. That rises to 55 per cent in 2020 and 60 per cent in 2025. The complaint is that the report referred to Policy W6, it referred to the targets, but it simply looked at compliance with the targets for 2015 and not beyond. It did not refer to the targets for recycling and composting for 2020 and 2025.

Before turning to the report, it is helpful to see what RPG9 itself says about the longer term targets. Paragraph 10.176 says:

The report deals with the issue in paragraphs 8.54 to 8.55:

In my judgment, if one reads the report as a whole, including the annexes, the reasons for the failure to refer to the targets in Policy W6 in RPG9 for 2020 and 2025 are clear. The reasons are, firstly, that the Assistant Director considered that the defendant was facing an immediate and very pressing problem. In paragraph 8.3 of the report, it was stated that the application:

In this context, it was the clear conclusion of the report that the 2015 targets in the Local Plan and in RPG9 would not be achieved without the facility (see the concluding sentence in paragraph 8.55 of the report). Secondly, so far as the later targets are concerned, Appendix 2 said in response to a very large number of representations, 2,196, that "SE Regional Strategy/RPG9 -- proposal does not accord with the regional strategy which sets higher recycling targets than proposed locally. Other authorities in the region will have to increase recycling and recovery rates to compensate":

In response to a large number of comments that the proposal would not allow recycling and composting to grow unless overall waste arisings would increase, the response was:

In my judgment, it is unhelpful to consider the rival arguments as to whether, because of the observation in paragraph 10.121 of Chapter 10 that the future targets are aspirational, they are not part of the development plan. The report was not a thesis on what was or what was not part of the development plan. It was for the assistance of the committee, and the author of the report and the committee would have both been well aware that the defendant had already made its views clear as to the weight that should be given to the aspirational targets for 2020 and 2025 in Chapter 10 of RPG9 (Revised).

The higher targets for the later years had been carried over and incorporated into the draft South East Plan and the defendant had lodged an objection to that plan on 22nd June 2006. That objection said:

In short, it is clear that the defendant would have been well aware that the targets for the later years were higher, because that had been the cause of its objection to the inclusion of those aspirational policies. If one therefore stands back and asks oneself the question: in the circumstances, was it reasonable for the Assistant Director to concentrate on the targets for 2015 in the WDP and RPGG and to conclude that if planning permission was not granted those targets would definitely not be met and that there would not be crowding out of recycling and composting as at 2015, rather than going on to consider whether there was a serious objection to the proposal because granting permission might result in a failure to meet the aspirational targets for 2020 to 2025, to which the defendant itself had lodged an objection, one can see readily why the report did not think it necessary to mention the later targets.

It has to be borne in mind that the report came to the clear conclusion that the consequence of not granting planning permission for the application would lead to a certain breach of the targets in both the Local Plan and in policy W6 of RPG9 for 2015. Against that, there has to be set the proposition that the Assistant Director should have brought to the committee's attention the fact that, in avoiding a certain breach of those policies, there was a danger that there might be a breach of the aspirational policies for the later years to which the defendant had objected. One can see why including such a reference, given the defendant's own attitude to the aspirational policies, would have been little more than an exercise in futility. It is right to say that the only possible relevance of the point is the crowding out for future years; that is to say while the ERF would deal with the landfill problem, that would be at the expense of possibly crowding out means of pushing the waste yet further up the hierarchy and preventing it from being dealt with by recycling or composting.

There was a dispute between the parties as to what the post-2015 figures in respect of crowding out would demonstrate. It is unnecessary to refer to the rival numerical contentions because they do not feature in the report. The approach of the report is to concentrate exclusively on the 2015 targets in numerical terms, but to state that the higher targets are going to be addressed through the preparation of a waste development framework and to make the point that, in so far as one is seeking to increase recycling and composting, that is addressed through the contractual arrangements that the defendant has entered into.

The position on the 2015 figures was abundantly clear. As a matter of common sense, the further ahead one looks (especially if one looks to 2025), the uncertainties are bound to increase. I appreciate that the extent to which they increase is a matter for the judgment of the local planning authority, but in respect of both the targets, which are described in terms as being aspirational, and in terms of the figures for future arisings, common sense suggests that the further ahead one looks the more uncertainties there are. There is a danger of a loss of proportion in judicial review proceedings because, inevitably, attention is focused upon a particular criticism, which, in the present case, was only a small part of a wide-ranging policy picture.

Against this background, it can be seen that the complaint that there was no reference to the W6 targets for 2020 and 2025 is academic given that, in the light of the defendant's own attitude to those targets, very little weight indeed would have been given to them by the committee had they been expressly referred to. The report should not be considered in isolation, but in this surrounding context: that in the view of the author of the report, which the committee accepted, the defendant faced an immediate problem. It was clear that the 2015 targets would be breached, both those in the Local Plan and in RPG6 if no action was taken to grant planning permission. So far as the longer term targets in RPG6 were concerned, they were aspirational and the defendant had lodged objections saying that that should be their only status. The defendant was addressing the higher targets through the new development plan process and had contractual arrangements in place which ensured that all that could be recycled was recycled with no upper limit. In all of those circumstances, the report was entitled not to refer to the targets for later years. In the real world, this was a case where landfill was due to run out in a year's time at the time of the report (now less than a year) and there is no prospect that reference to targets which the defendant itself had objected could possibly have made any difference to the outcome of the application.

For these reasons this application must fail. I would have granted permission to apply for judicial review in respect of the first and third grounds only, but I do so only to refuse the substantive application.

I should mention for the sake of completeness that both the defendant and the interested party raised arguments based on both delay and discretion. In the circumstances it is unnecessary to address those arguments, but the reality of the position in terms of the importance that the defendant attached to addressing the immediate problem because of the fact that the availability of landfill sites is due to run out, is confirmed in the evidence that has been put forward which shows that work has commenced on the proposal. It has commenced because it is regarded by the defendant as being imperative that the proposal is brought into operation as soon as possible. One only has to look at that evidence to be satisfied that the argument that there might be a breach of targets to which the defendant had objected for later years could not, in the real world outside the courtroom, have made any difference to the outcome of this application for planning permission. For those reasons the application is refused.

MS LIEVEN: My Lord, in those circumstances on behalf of the defendant I do apply for my costs. If I could hand up a schedule. (Handed). My Lord, what we have done with the costs, if your Lordship starts at the back of the schedule is so far as Mount Cook costs are concerned we have divided them between the Dove and Newhaven case on the one hand and the Friends of the Earth case on the other. So far as the costs of today are concerned, we have put those all into one schedule and would suggest a division of 50 per cent, depending on the amounts your Lordship feels are appropriate to order. My Lord, the three schedules are all separate.

MR JUSTICE SULLIVAN: Yes, I see.

MS LIEVEN: It is £46,770 associated with the substantive hearing. They are not Mount Cook costs. Then the two schedules behind are both Mount Cook costs and they are divided between the two cases.

MR JUSTICE SULLIVAN: I see. Thank you. Who is going to respond?

MR HARWOOD: My Lord, I am going to start. My colleagues may well follow. Just to make an observation, my Lord, we have a costs schedule which is £46,000 for the last two days and preparation for that. In addition, there is another £7,500 or so. My Lord, those are substantial sums and when it comes to assessment they should be dealt with by way of detailed assessment rather than summary assessment. Those sums are contentious.

MR JUSTICE SULLIVAN: Yes.

MR HARWOOD: Turning to matters of principle, first of all, I make two submissions. The first is that the appropriate process is to make no order for costs in these circumstances. The second alternative position, my Lord, is that the costs be capped in terms of offers which were made on behalf of the various claimants. Those offers, having been made back in February, were for the County Council's costs to be capped to £10,000 for each claimant. It would be a maximum of £30,000.

MR JUSTICE SULLIVAN: Yes.

MR HARWOOD: My Lord, it is appropriate to look at this in the context of the report on Access to Environmental Justice.

MR JUSTICE SULLIVAN: I rather guessed that might come up.

MR HARWOOD: I have extracts from those matters. My Lord will have seen, no doubt, the decision of Latham LJ --

MR JUSTICE SULLIVAN: Yes.

MR HARWOOD: The point I make on the Working Party's report is in this case a general one, which is that the report recognises the need for access to environmental justice and those costs might be prohibitively expensive. In the context of Dove 2000, this as my Lord knows is a local residents group who have had to raise funds locally throughout and for the purposes of these proceedings.

My first point in suggesting no order or at least capping costs for the public interest I have dealt with. The second point is that this is a rolled up hearing. Whilst the practice on rolled up hearings often is to treat it as a full hearing, it does withdraw the costs protection given by the Practice Direction that would apply in the context of a permission hearing.

MR JUSTICE SULLIVAN: Yes.

MR HARWOOD: My Lord, the final point I want to make on behalf of Dove 2000 is in terms of the PPC permit point. The point of law which arose on that that the County Council could not rely on an assessment to be quashed has been contested up until this morning. We have lost on the question of how the County Council did in fact consider that due to what I would suggest is a late rescue, or late assistance at least, of the Environment Agency coming out of the woodwork a couple of days ago. My Lord, I suggest that the appropriate order is no order for costs.

If my Lord is not with me on that point, can I ask that costs be capped. I will just take my Lord to one letter which was at page 390. That is a letter from Earthlights Solicitors of 20th June 2008 to the County Council discussing questions of costs and ability.

MR JUSTICE SULLIVAN: Yes, I have that. Thank you.

MR HARWOOD: That made a proposal, at the bottom of page 1 that the County Council accept the costs cap of essentially £10,000 per claimant. The letter of 25th February referred to there is a letter without prejudice as to costs which proposed a £10,000 cap. I can pass it to you if my Lord needed it. So, my Lord, the alternative submission on behalf of Dove is that if my Lord thinks there should be costs it ought to be capped to £10,000 in respect of Dove. That would still be, given aggregate, a large recovery for the County Council in respect of its costs.

MR JUSTICE SULLIVAN: Yes. I must say, I will hear what others say in a moment but it is 5 o'clock and whilst I felt some obligation to deal with the substantive issue by today, I do not, I am bound to say, feel quite the same obligation to deal with the minutiae of costs today. It does seem to me it is a substantial claim for costs. It is in an environmental case. I should take account of what the summary report says. It seems to me that the proper course might well be, rather than trying to do it now and indeed rather than trying to suggest people come back to another hearing -- which would simply add more costs to already extensive costs -- is to suggest that the point is to deal with any costs submissions they want to make in writing and I would then be able to deal with them, not exactly at my leisure but at least not at 5 o'clock in the afternoon.

I do think there are issues to be addressed in terms of environmental litigation when we do have costs of this order. It is possible that the defendant might take a view as to just how much it would want to claim bearing in mind that offer. I think the fairer course to everyone is to give everyone a chance to have their say in writing. My view, I am bound to say as to the amount of this sum, we have gone into two days and effectively it ought to go for detailed assessment in any event if not agreed. I do not think it is fair to summarily assess a sum of this size. It is not fair on the defendant or the claimants, frankly. That is quite apart from whether there ought to be a cap and whether or not, it being a rolled up hearing, there ought to be a different approach to ordering costs. That is the approach I would be mined to take unless anyone has an objection. Mr Pereira?

MR PEREIRA: My Lord, no objection but can we include any costs consequential?

MR JUSTICE SULLIVAN: Yes, I think it is sensible. I think maybe I ought to deal with applications for permission to appeal now. I do think costs can be left, frankly. I ought to deal with applications for permission to appeal now so people know where they stand. I appreciate that it is not easy because you have just had a judgment delivered orally, but we have to make the best of it that we can.

MR PEREIRA: Shall I start?

MR JUSTICE SULLIVAN: Yes.

MR PEREIRA: I suspect I know what the answer is going to be, my Lord. I would put it on two bases. First, the approach to the targets, particularly the longer term targets, in the RSS and matters of general importance. The effect of my Lord's judgment is that these targets and the meeting of them can effectively be deferred to a later development plan process, even when they are already in the existing development plan, in this case RPG9. My Lord, that is a matter of general importance. I will not say anything more about it.

In terms of my Lord's judgment, there are two matters that come to mind at this stage and I hope I will be forgiven if other things may come to mind later.

MR JUSTICE SULLIVAN: I will probably think of other things later as well.

MR PEREIRA: The first is this. While my Lord's judgment deals with the question of the targets, in my submission even if it could be inferred that members were aware of the targets, the targets themselves, without an application to the figures -- that is to say the waste -- do not enable the committee to really form a view appropriately on that matter. If they were aware of the targets they would have to have some general awareness of the waste which I say they cannot have.

My Lord, secondly, there is reliance placed by your Lordship on the fact that the Council had objected to targets in an emerging plan, that is to say the South East Plan. My Lord, in my submission, that is a different matter to the question of the weight to be attached to the targets in the existing Plan which is part of the development plan. While the Council is entitled to say "We are objecting to the Plan", they are not entitled to say "therefore we are not going to attach material weight to the targets that are in the existing development plan". My Lord, those would be, as they come to my mind at the moment, the two specific points I make.

MR JUSTICE SULLIVAN: Thank you. Yes.

MR HARWOOD: My Lord, I apply for permission to appeal on the ground 1 PPC point. I make just two points at this stage. First of all, the general importance and interest in the question of dealing with not simply an unlawful decision but more particularly, in the context of this judgment, how matters are considered: whether it is dealt with as a matter of discretion or otherwise in relation to relief about such a potential error. My Lord, that is particularly having in mind the consideration of the Environment Agency's decision and also of grounds on which the PPC permit was quashed and the submission in the case. I suggest those raise matters of importance and principle.

The second ground of appeal, my Lord, is in respect of your Lordship's analysis of the Council's consideration, and I would suggest that the reliance on the technical reasoning given in the decision document which then appears in the responses in Appendix 2 was not correctly analysed and that the Council's reliance on that was greater than your Lordship's judgment in the case.

MR JUSTICE SULLIVAN: Yes.

MR NARDELL: My Lord, I am in a slightly different position. Your Lordship having refused permission on grounds 2 and 5, it is not open to me to apply for permission to appeal.

MR JUSTICE SULLIVAN: I think you can appeal against my refusal to grant you permission.

MR NARDELL: But I have to ask the Court of Appeal. I do not think your Lordship can grant permission.

MR JUSTICE SULLIVAN: Not that I was bursting to.

MR NARDELL: Yes. I did not misinterpret. The position is that it may well be that the Town Council are contemplating troubling the Court of Appeal on ground 5 which is a matter of some general importance, although not ground 2, and on the face of it any application to the Court of Appeal would have to be made within seven days rather than 21 for an appellant's notice in relation to those issues on which your Lordship has given permission. My short application is for an extension of time from seven days to 21 days simply so that procedurally any appellant's notice on all the points would go in within 21 days.

MR JUSTICE SULLIVAN: Is it 21 days for the others?

MR NARDELL: It is, yes. Today is the date of your Lordship's decision. Ordinarily it is 21 days. Under CPR 51 the provision is that where the permission to apply for JR is refused, the party seeking that permission may ask the Court of Appeal and it limits the time to seven days. Where it is a rolled up hearing and permission is refused on some grounds and not others, that would be my application.

MR JUSTICE SULLIVAN: Thank you very much. Any responses?

MS LIEVEN: Very briefly, my Lord. First of all, on Mr Nardell's application, I strongly resist the extension of time. Your Lordship has obviously seen that this matter is incredibly important to my client and incredibly important we get on with it. The history of this incinerator is littered with litigation and, in my submission, the time has come to put in an appeal or not. In light of Mr Nardell's submission, I would submit to your Lordship that rather than extending the time to 21 days it is actually an appropriate case to reduce the time to seven days for the other two.

MR JUSTICE SULLIVAN: For the others, yes?

MS LIEVEN: If there are going to be appeals in this case then let us get on with them and get this matter determined. As long as there is any possibility of appeal, my clients are in an incredibly exposed position. So far as the permission to appeal on the other two grounds is concerned, I do not think your Lordship needs to hear from me on that.

MR JUSTICE SULLIVAN: No, I was not minded to grant permission to appeal. I think the claimants will have to persuade the Court of Appeal that it is right to grant permission. Whilst I accept that in principle issues of genuine importance could be raised, as so often happens they turn very much on the specific facts of this case. That is why I am refusing permission.

MS LIEVEN: So far as the costs are concerned, I entirely support the proposition at this time of day and given the amounts concerned they should be dealt with in writing. It would probably be helpful if your Lordship could set out a timetable for submissions to be made so everyone is clear. Perhaps 14 days?

MR JUSTICE SULLIVAN: I am back on Monday for the last four days of term.

MS LIEVEN: Well, my Lord, in that case if we make our submissions within seven days or we could make it even shorter if that helped, and then my learned friends have a similar period to respond.

MR JUSTICE SULLIVAN: In practice, unless you can get them all in by the end of term you will get no sense for at least a few weeks. I am not going to go away worrying about your costs. I have other things that I would think would be more enjoyable on my vacation. Unless then there is no particular need for a tight timetable, what I will try and do obviously is to get the transcript out by the end of next week so no doubt you will have it by then. The parties will have it and be able to use that as a basis for deciding whether or not they want to appeal.

Right, thank you. Can I just check, Mr Holgate, are you going to be participating in the costs battle or are you not going to be participating? I am not encouraging you, but it might be useful to know what your position is?

MR HOLGATE: In the light of Bolton, the answer is no.

MR JUSTICE SULLIVAN: I am not surprised.

MR HOLGATE: I did anticipate that, my Lord. Can I echo what has been said by my learned friend on the question of time for appealing. I make exactly the same submissions. It is very important in the public interest as determined by the local planning authority that any notice of appeal be submitted in the shortest possible timescale. The prospect of incurring extra costs on that matter, if only their own costs, does not seem to deter them and that is a matter of great concern.

MR HARWOOD: My Lord, in terms of time for appealing --

MR JUSTICE SULLIVAN: Why should you not be cut down to 14 days if I can get you the transcript before the end of term? I think that is the practical question?

MR HARWOOD: My Lord, that still then gives us a matter of a couple of days from the receipt of the transcript to put in the grounds.

MR JUSTICE SULLIVAN: You can be plotting up until then, can you not?

MR HARWOOD: We can plot a bit. With respect to my learned friend, the submissions were frankly unreal. I am not saying that because it is 5.15, but cutting from 21 days to seven. This is a case where until very recently the County Council were saying "Do not do the case this week, hear it a couple of weeks later in August" because of counsel's availability. The County Council have blown hot and cold on this one. First they delay it for a couple of weeks and now my learned friend is saying you should cut the time to appeal. What actually matters on the appeal is that any appeals are put in in a form that reflects what is actually in the judgment. Once we have seen the transcript, had a chance to think about it, we will be able to get an appeal in good order. The Court of Appeal is actually best placed to deal with an application in those circumstances, rather than us all having to rush based on fairly illegible notes.

MR JUSTICE SULLIVAN: Thank you very much. Dealing with this in turn, so far as costs are concerned it seems to me that the appropriate course is to deal with any applications for costs and responses by way of written representations. I would obviously urge the parties to see if they can agree as much as possible. My provisional view is that on any basis matters ought to go for detailed assessment and so one would be rather more concerned with the issues of principle; that is to say whether there should be, for example, some form of capping order or either no order for costs at all or some alternative order which reflects the fact that this is a rolled up hearing which has thereby deprived the claimants of any protection they might have under Mount Cook in respect of costs. Those are the sorts of issues which I would expect the parties to address in their submissions. I suggest that submissions be in by the end of term, but I am not undertaking to deal with them before the end of term.

So far as permission to appeal is concerned, I refuse permission to appeal. It does seem to me that whilst the issues of principle might be very interesting in theory, in practice they turn very much on the particular factual context here which I have done my best to deal with. Obviously it is up to the claimants if they want to take the matter up to the Court of Appeal.

So far as time is concerned, I do not abbreviate the time. I think it is probably more sensible if people have a chance to consider the judgment and formulate their grounds. Mr Nardell, I am going to give you an extension so you have 21 days like the rest of them from today.

MR NARDELL: Thank you, my Lord.

MR JUSTICE SULLIVAN: Thank you all. Is there anything else? Thank you very much to the court staff for staying late. I am sorry you had to go on a little but it is sensible to get the matter dealt with.