Arndale Properties Ltd, R (on the application of) v Worcester City Council

MR JUSTICE SULLIVAN:

There are two applications for judicial review before the court. In the first application the claimant challenges the defendant's decision to designate the Broughton Conservation Area No 19 ("the conservation area") on 26 July 2006. One of the claimant's grounds of challenge (ground 2) contended that the designation was unlawful because the designated area included land outside the defendant's area. The defendant recognised the force of that contention and re-designated the conservation area with an amended boundary to include only land within its own jurisdiction on 2 November 2006. In the second applicatin the claimant challenges the lawfulness of the decision on 2 November 2006.

On behalf of the defendant Mr Bedford accepted that the process which led to the re-designation on 2 November 2006 had addressed only ground 2 of the claimant's challenge to the original designation. Thus if the court upheld any of the other grounds of challenge to the original designation, those grounds would apply with no less force to the re-designation.

The power to designate conservation areas is contained in Section 69 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Act"):

In a nutshell, the claimant's case, as put forward by Mr Fraser-Urquhart on its behalf, is that the defendant misused its power under Section 69 (1) because the true purpose of the designation was not to protect the character or appearance of the area that was designated but to prevent the demolition of a particular unlisted building within that area, namely a pavilion on a sports ground owned by the claimant which was the original cricket ground of Worcestershire County Cricket Club. In summary, the designation of the conservation area was, the claimant contends, a mere pretext or device to prevent demolition of the pavilion.

The defendant contends that there was material before the planning committee on which it could properly designate the conservation area; that it was proper for the defendant when considering designation to have regard to the consequences of designation; those consequences included the fact that demolition of unlisted buildings in the conservation area would be prevented unless conservation area consent was obtained; and that it was entitled to give considerable weight to its desire to prevent the demolition of the unlisted pavilion.

The factual background is not in dispute. In 2006 the claimant owned the sports ground and adjoining premises. The adjoining premises were formerly part of the Kay & Co Mail Order premises, and by 2006 they were redundant industrial premises. The sports ground was formerly used by employees of the industrial premises. In February 2005 the claimant had applied for outline planning permission for a mixed-use redevelopment of the industrial premises consisting of some residential development and some employment development. That application was refused planning permission by the council on 20 May 2005.

On 4 November 2005 the claimant submitted another planning application for outline planning permission for residential development of the factory site. Planning permission was refused. The claimant appealed to the Secretary of State.

On the industrial part of the site there was a building known as the Cinderella Shoe Works which had a two-storey frontage, called "the Cinderella building", to Watery Lane, together with a factory unit behind it. The Cinderella building and the pavilion had been identified as buildings of local interest so they were protected by Policy BE18 of the City of Worcester Local Plan. This provided that planning permission would normally be granted for development affecting such buildings "provided that the identified features of elements of local interest had been properly accounted for in the proposed development".

Both of the planning applications had indicated that the sports ground would be retained in its existing use but they did not include any proposals for the pavilion. That was because in 2003 it had been inspected by both the Environmental Health Department and the Fire Brigade. Both inspections had revealed that a considerable amount of work needed to be done in order to render the pavilion safe for continued use.

In the summer of 2005, before the residential planning application was made, the pavilion was closed by the claimant on the grounds of health and safety. In April 2006 a repairs and redecorations appraisal was made by the claimant which concluded that the necessary works would cost more than £140,000 which the claimant was not prepared to spend on the pavilion. Therefore the claimant served notice of demolition under Section 80 of the Building Act 1984 on the council on 17 May 2006. The stated intention was to commence demolition works on 29 June 2006.

In response the defendant requested the Secretary of State to list the pavilion under Section 1 of the Act. In addition the defendant served a building preservation notice in respect of the pavilion under Section 3 of the Act. The effect of that notice was to prevent its demolition without listed building consent for a period of six months. In consequence of that, arrangements to carry out the demolition works were halted. The council's request to the Secretary of State to list the pavilion was not successful. By letter dated 15 June 2006, the Secretary of State informed the council that although the pavilion was of local interest it was not worthy of listing. The English Heritage adviser, although acknowledging that the building was of local interest, said:

As a result of this, by virtue of Section 3 (4) (b) of the Act, the building preservation notice ceased to have effect so that works of demolition could proceed.

On 28 June 2006 an ecologist employed by Bioscan, acting on behalf of the claimant, found nesting birds in the pavilion roof. Because of the protected status of nesting birds under Section 1 of the Wildlife & Countryside Act 1981, the demolition contractor was instructed to carry out preliminary works only on 29 June 2006.

Shortly after that, on 11 July 2006, the planning inquiry into the claimant's appeal against the refusal of the residential planning application opened. The claimant's evidence on conservation matters was contained in the evidence of Dr Edis. The defendant's evidence on conservation matters was given by the council's principal conservation officer, Mr Scott.

At the inquiry the council indicated that the majority of the Cinderella building could be demolished provided that the frontage building and certain other features were either preserved in situ or moved and re-incorporated into the design. Thus the ambit of the inquiry was somewhat narrowed, and the evidence at the inquiry from the two conservation witnesses was confined to debate about those matters. They also gave evidence about the need for works on the pavilion and the likely costs of those works.

At the inquiry Mr Fraser-Urquhart, who appeared on behalf of the claimant, indicated that it was the claimant's intention to continue with the demolition works to the pavilion immediately the fledgling birds had flown their nest. The inquiry closed on 13 July 2006.

At the council's planning committee meeting on 20 July 2006 an 'additional late item of urgent business' was included on the agenda in which the chief executive recommended the designation of the conservation area. The contact officer for the additional late item was identified as Mr Scott. The report supporting this agenda item provided, so far as material, as follows:

No background papers were provided with the report. It is not suggested in the defendant's evidence that anything of substance was added to the report by way of amplification or explanation at the meeting. The committee accepted the recommendations and the conservation area was designated as of 20 July 2006. The approved minutes of the meeting record that -

On the same day, 20 July 2006, Mr Scott notified the claimant of the designation of the conservation area:

When the claimant asked for an explanation as to the basis for designation Mr Scott replied in a letter dated 15 August 2006, enclosing the planning committee report, copy of the minutes and formal notices of designation:

In the claimant's application for permission to apply for judicial review the claimant contended that -

Permission to apply for judicial review was granted in respect of the original designation on 29 December 2006.

On 16 February 2007 the defendant's former principal conservation officer, now retired, Mr Scott, filed a witness statement. In that witness statement he acknowledged that the evidence of Dr Edis at the inquiry -

Mr Scott's witness statement then deals with the designation of the area outside the defendant's jurisdiction. Discussion and Conclusions

I do not accept Mr Scott's evidence filed some seven months after the events of July 2006 that his desire to prevent the demolition of the pavilion was merely the initial impetus for considering the designation of a conservation area. Looking at the totality of the contemporaneous evidence, it is plain that it was the impetus for designating the conservation area and that the designation of a conversation area was simply a pretext to prevent the demolition of a specific building, namely the pavilion.

I say that for these reasons:

(1) It is clear from the background history that Mr Scott wished to prevent the demolition of the pavilion (see the request to list the pavilion and the building preservation notice). Mr Bedford submitted that there was nothing improper in that, and I entirely agree. Thus far, there is merely an indication of the strength of Mr Scott's determination to prevent demolition of the pavilion if possible.

Of more consequence is the fact that Mr Scott appears in his witness statement to have resiled from the suggestion in his letter of 15 August 2006 that the designation of and justification for the conservation area was based "on the information generated by the public inquiry, not least the report of Dr Jonathan Edis". (Emphasis added) It was pointed out in the claimant's evidence that, perhaps unsurprisingly, Dr Edis' evidence was confined to the matters in issue at the appeal, that is to say the factory site and the sports ground. His evidence did not relate to the wider area save incidentally by way of historical maps as referred to in paragraph 14 of Mr Scott's evidence. The decision to designate the conservation area, which is an extensive area beyond the appeal site, could not rationally have been based upon Dr Edis' report which dealt only with a small part of the entire area that was eventually designated.

I turn to Mr Scott's own consideration of the matter. Although he says that he looked during the inquiry at the wider area surrounding the Cinderella Works site to see if there was an area that could be designated as a conservation area, there is no contemporaneous written record, even of the most informal kind, memorandum, note or whatever, appraising the suitability of the area that was eventually designated as a conservation area. Insofar as the designation was based therefore on Mr Scott's consideration which was not, prior to the report of 20 July, committed to paper, it is significant that while his evidence at the inquiry to the inspector dealt with the local interest of the buildings on the appeal site and sports ground, there appears to have been no suggestion by him to the inspector at the inquiry that there was any area worthy of designation as a conservation area. This simply did not feature in his evidence at the inquiry.

It would be surprising, if he had concluded by the end of the inquiry, that is to say 13 July 2006, that there was a case for designating the area within which the appeal site lies as a conservation area, that he did not mention that matter to the inspector.

In my judgment Mr Scott's explanation in his witness statement is a belated attempt to rationalise, and to meet the very obvious deficiencies in, the process which he adopted in July 2006.

(2) This view is reinforced by the matters set out below, which include the reasons given for the urgency of taking the additional item "in view of the works of demolition already being undertaken on the pavilion on the Cinderella sports ground which was part of the area to be designated."

Mr Bedford submitted that it was entirely understandable if a local planning authority was properly considering the designation of a conservation area and one of the factors, perhaps a very important factor, it was considering was the desire to preserve a particular building within the conservation area, that the designation would be made as a matter of urgency. If that aspect of the matter is looked at in isolation I would agree. However the picture is building up of the true reason for the designation of a conservation area not being a concern for the preservation or enhancement of the character or appearance of an area but a desire to prevent the demolition of a particular building.

(3) That conclusion is further reinforced by the inadequate nature of the report itself. I will return to the report in more detail in a moment. At this stage I would merely say that the material set out in the report is manifestly inadequate if the focus of the planning authority was really upon whether there was an area of special architectural or historic interest and, if so, whether it was desirable to preserve or enhance the character or appearance of that area.

(4) The letter giving notification of the designation of the conservation area is particularly illuminating. In particular Mr Scott's repeated emphasis upon the fact that demolition of the pavilion, which is currently taking place, must stop immediately. Again Mr Bedford submitted that if a conservation area was being designated for perfectly proper reasons, and one of those considerations was to protect a particular building, then it would be important to tell the person who was demolishing that building as soon as possible of the designation. Again, looked at in isolation, that is a perfectly reasonable proposition. But, looking at this letter, one has to ask whether the tail is wagging the dog, that is to say whether the desire to prevent the demolition of a particular building led to the designation of the conservation area, as opposed to the former being simply one, albeit an important, consequence of the latter.

(5) There is then the complete absence of any consultation. Again I accept Mr Bedford's submission that there is no statutory requirement for consultation even though it is advised in paragraph 4.7 of PPG 15:

The lack of consultation is an indication of the rapidity with which this designation had to be effected. It reflects the overriding importance of preventing the demolition of a particular building. But it also confirms the inadequacy of the report. Although Mr Scott does not say so, the reality is that there could have been no meaningful consultation because there was nothing to consult about. There was no explanation in the report beyond the summary inparagraph 3.2 as to what was the special architectural or historic interest of the area. There was no information about the character or the appearance character of the area, much less any indication as to why it might be desirable to preserve or enhance that character or appearance. In summary, since there was effectively no explanation for the proposed designation there was nothing which could have been the subject of any meaningful consultation.

(6) Although ground 2 was overcome by the re-designation in November 2006, the area outside the defendant's boundary was not inconsiderable. The city boundary did not follow an entirely arbitrary line. At least in part it followed a water course or the former alignment of a water course, the Lanshern Brook. The boundary diverged where part of the water course had subsequently been straightened. If serious consideration had been given to the desirability of preserving the special character or appearance of the area, then surely someone within the planning department would have noticed that a significant proportion of the area that was proposed to be designated was outside the city's boundary. That they did not do so is, in my judgment, another indication that the real focus was not upon the area but upon the desire to prevent the demolition of the pavilion.

I said that I would return to the report. I have set out the terms of Section 69 (1) above. It is axiomatic that in order to decide whether an area is of special architectural or historic interest - and, if so, whether the character or the appearance of that area should be preserved or enhanced - there must be sufficient information on which a reasonable local planning authority could decide, first, what the special architectural or historic interest of the area is; secondly, what is the character; and thirdly what is the appearance that it is desirable to preserve or enhance. In respect of all of these matters there is no information beyond the summary that appears in paragraph 3.2 of the report.

Mr Bedford valiantly submitted that that summary was sufficient information on which the committee could properly conclude that the defined area was an area of special architectural or historic interest where it was desirable to preserve the character or appearance of the area. He submitted that the adequacy of the summary had to be considered in the light of committee's knowledge of the experience of Mr Scott, who had been the defendant's principal conservation officer for very many years. They were entitled to respect his judgment. It follows from that that - insofar as the committee were relying heavily on Mr Scott - that if his true purpose was to prevent the demolition of the pavilion rather than to preserve the special character or appearance of an area, then the committee's decision was fatally infected by that improper purpose on the part of Mr Scott.

Since the power to designate is vested in the committee itself rather than Mr Scott it is important to consider what material was before the committee. As I have indicated, there was no background material, so whatever it was that motivated Mr Scott to suggest that the area should be designated was not placed in front of the committee beyond the summary in paragraph 3.2. Moreover, as I have mentioned, there was no amplification of the material in the report during the committee meeting.

So far as the list in paragraph 3.2 is concerned, there is, for example, nothing to say whether in respect of any of the six listed items they are of special architectural interest or special historic interest. Much less is there any information as to what that special interest might be. It is of course important to bear in mind, as Mr Bedford rightly submitted, the local knowledge that councillors could be expected to have so that the potential historic interest of, for example, the former cricket ground of the Worcestershire County Cricket Club might be expected to speak for itself.

However that is not the case in respect of all of the other items. For example, in respect of the in-fill residential areas that are mentioned, there is nothing to suggest why they might be of special interest, whether historical or architectural. Insofar as the committee had to form a view as to whether it was desirable to preserve or enhance the character or appearance of the area, there was no description of either the character or the appearance of the area or indeed any part of it. It will be recalled that the area extends far beyond the J F Willis and Cinderella Shoe Factory and the adjoining sports ground on which the pavilion stands. The area embraced within the designation is a substantial area. It includes extensive areas of warehousing and whole streets that are not referred to within paragraph 3.2. There is no explanation whatsoever as to why those extensive areas have been included within the conservation area.

Moreover, the special interest of certain of the items is far from clear in the absence of some explanation; for example, Kay & Co development of the area. Kay & Co had operated the Willis and Cinderella Shoe Factory. Mr Bedford submitted that they had also carried out other development in the area. The extent of that development is nowhere described; nor is it explained what its special interest is, whether historical or architectural. The same can be said for Richard Smith's horticultural nurseries.

At the inquiry into the claimant's appeal against the refusal of residential permission, evidence has been given that the nurseries had formerly been very extensive, but only some 8 acres of the nurseries remained. None of this material was explained to the members in the report.

In summary, and despite Mr Bedford's submissions to the contrary, I am wholly unpersuaded that any reasonable local planning authority could sensibly conclude on this vestigial information that the area within the red line either was of special architectural or historic interest, much less could any reasonable local planning authority have concluded that the area within the red line had a character or appearance - whatever that might have been - which it was desirable to preserve or enhance.

It is true that, as Mr Bedford submitted, there is no statutory requirement as to the level of detail that must be considered by a planning authority before designating a conservation area. Nevertheless the guidance provided in PPG 15 is of assistance in judging the adequacy of the report in this case. Paragraphs 4.3 to 4.5 state:

In the present case there was no suggestion that the proposal to designate this conservation area was considered as against the local standards for such designations. There is no definition of the special architectural or historic interest of the area beyond the list in paragraph 3.2. Clearly there could not be any such definition because no assessment of the elements contributing to or detracting from the area had been carried out. It is fair to say that virtually none of the matters mentioned in paragraph 4.4 had been addressed in the report. If one seeks an answer to the question, what is the justification for this designation? - one has the list of six features in paragraph 3.2 of the report with nothing to say why they are of special interest; whether that interest is architectural or historic; nothing to say what their appearance is or what their character is.

In deciding whether designation of a conservation was simply a pretext by which Mr Scott believed that demolition of the pavilion would be prevented or whether there was a genuine consideration of whether it was desirable to preserve or enhance the special character of the designated area, an important part of which consideration was the desirability of preserving a particular building within it, namely the pavilion, it is necessary to look at all of the evidence in the round. If that is done, the totality of the evidence points overwhelmingly to the former rather than the latter conclusion.

For those reasons the challenge to the first designation succeeds and it is unnecessary to consider Mr Fraser-Urquhart's irrationality challenge. It also follows that the challenge to the second designation succeeds as well. So I therefore grant both applications for judicial review and make orders quashing both of the designations accordingly.

MR FRASER URQUHART: I would apply for my costs in this matter, costs in both applications. I have to say that listening to your Lordship's preliminary observations this morning, I had very much in mind to ask for those costs, should they fall to be assessed by someone other than you on this occasion, to be assessed on an indemnity basis.

MR JUSTICE SULLIVAN: Yes.

MR FRASER URQUHART: The position is that there have been attempts to agree a figure which have not been successful. Your Lordship should have costs schedules in both matters. They have been circulated between the parties.

MR JUSTICE SULLIVAN: I have not had costs schedules in either matters. I am sure they did not get to me.

MR FRASER URQUHART: I shall ask for them to be passed up. I shall not seek to anticipate too much my friend's submissions if he is going to make any on these matters. I shall observe that when you look at them, in my submission, if you decide to assess costs on a summary basis today, it should be wearing an indemnity costs hat. In the event that it is appropriate to send those matters for assessment, that they be assessed on indemnity basis.

MR JUSTICE SULLIVAN: I am bound to say that I think, given the overall complexity of the case and the amount in it, although we have gone through it in a day, in reality, it was only just a day's case. I am not really convinced that summary assessment would be fair. There is a separate point as to whether any assessment should be done on an indemnity or a standard basis certainly.

MR BEDFORD: In relation to whether one seeks to assess costs today or to send them for detailed assessment, my clients do have concerns about figures which are being claimed. In my submission, notwithstanding that there are a lot of figures, I would invite you, in the first instance, to look at this on a matter of summary assessment because the issues that I was going to raise seem capable of you forming an impression of notwithstanding one has a lot of figures there. The short point I want to raise in relation to both of the bills is that the amount of time spent, in terms of hours on preparation of papers, is excessive for a case of this nature which you can assess by looking at bundles of material. Your Lordship knows what the documents are.

MR JUSTICE SULLIVAN: Yes.

MR BEDFORD: The short point is this: if you look at the bill that relates to the first claim which is CO/1086/2006, on page 1, and I remind you of one or two dates, the claim was submitted on 1 October 2006. Permission was granted, as your Lordships said, on 29 December 2006. The defendant's response and principal evidence was 16 February 2007. There was a supplementary witness statement on 26 April 2007 with produced to it - - - - -

MR JUSTICE SULLIVAN: Yes. That did not seem to add - - - - -

MR BEDFORD: You will see that it appears that the claimant changed solicitors on or about 22 May 2007 because you will see that (a) on that first page relates to costs incurred by Jeffrey Green Russell.

MR JUSTICE SULLIVAN: Yes. I did not know any of this, yes.

MR BEDFORD: Whereas (b) relates to the claimant's present solicitors, Clarks Legal. The factual position is this: the relevant fee earner you see at the top of the page, Mr Stevens, simply moved firms so therefore he took the case with him. That is the explanation. Going back to the chronology, effectively, no evidence was filed in reply by the claimant. Then - in terms of work that needed to be done - February 2008 in relation to the original claim is preparation of bundles for the hearing. So we have activity in 2006, obviously some activity in early 2007 considering the defendant's evidence, and then effectively the case went into the Administrative Court list.

The next batch of activity is the beginning of 2008. We have been provided, it is not in the figures before your Lordship, in relation to the (a) costs on that first page which is a figure of £14,500 for the Jeffrey Green Russell costs up to 22 May, with a breakdown which indicates that in relation to that there were two fee earners involved, a principal fee earner and a lesser fee earner. And on preparation of documents the principal fee earner spent some 31 hours and the lesser fee earner spent some 8.something hours; that is up to 22 May. That includes filing the claim, consideration of material that was filed by the defendant. There are fees of counsel; I am not taking any point on counsel's fees. You see all the drafting was done by counsel. Our short point is that in relation to those hours, on a claim of this nature that 40-plus hours is excessive for the claim side of preparation of documents. Although we have done it on a very crude and rough-and-ready basis, we have said if you take the principal earner and he is 31-plus hours and you halve that to 15 hours and we made a pro rata reduction. I can give you the figures in a moment. That is just to tell you what we have done.

In relation to the (b) element, and this is still on the original claim, you will see costs incurred since 22 May 2007. There is a whole series of items which come at the bottom of the fee items, the sub-total of 9,961.50.

MR JUSTICE SULLIVAN: Yes.

MR BEDFORD: Looking at hours spent, some of this is attendance on counsel, some work on documents, some on work not covered by above. If you add those up that comes to 43 hours spent after 22 May 2007 prior to today's hearing. That seems to us to be excessive in a case where after 22 May the only thing that has had to be done is the preparation of bundles. Your Lordship will be aware that the bundles are a repeat of the earlier documents together with adding the defendant's witness statements and the skeleton argument itself. On a rough-and-ready basis we have halved that figure.

On the second claim which relates to the 2008 judicial review you will see that the total amount claimed is some 20,400-odd.

MR JUSTICE SULLIVAN: Mine has been reduced but I do not quite know why, 17,830; someone has crossed - - the other one was reduced in manuscript as well.

MR BEDFORD: I have not got those. If you are with me on the point, I am sure we can resolve this satisfactorily. The short point I am making is this second claim obviously can only relate to costs incurred from February 2008 when the claimant was apprised of the defendant's position in relation to the second claim. So what the claimant is saying is that between that date and the middle of February and today, excluding the costs of the hearing, whether it 17,000 or 20,000, the figure that we have looked at is the figure for the preparation of hours spent rather than looking at counsel's fees or disbursements etc. And in relation to that - the hours spent, and this is the figure at the top of the second page of 12,976.50 - when you add up the hours there is 49.6 hours in that from middle of February to middle of March.

So far as that second claim is concerned, although it is quite right there was some new material provided - there was a witness statement from the claimant being his chronology of events between times - the bulk of the material that has been filed is material on the original claim.

MR JUSTICE SULLIVAN: It is a slim file, is it not, whatever it is I have here?

MR BEDFORD: You have that but it is right to say it says on the claimant's behalf, that is what was submitted to the Administrative Court. When you look at it it is substantially the documents which were previously presented in the earlier claims. In relation to this one we have taken a slightly different view. We have said because of the amount of repetition - because it really is putting forward the old documents under the new claim - we have taken rather than a 50 per cent approach we have said for those hours we think a 60 per cent reduction is more appropriate than a 50 per cent reduction. So we have gone through the figures on that basis. Subject to whatever fine tuning there has been in terms of any manuscript amendment - - - - -

MR JUSTICE SULLIVAN: I see it is the VAT on solicitors fees, I think.

MR FRASER URQUHART: There are two matters which have been changed. On the 06 claim, the first judicial review, the item (a), item no. 2 which was an invoice which on the typed copy is recorded as 3,100, in fact that is not the correct figure. The correct figure for this application is 730, so there is a reduction for that aspect. As you have observed, in each case the VAT charged on solicitors' fees is discounted on the basis they can be reclaimed by the company in due course.

MR JUSTICE SULLIVAN: The only amendment to the 2008 claim is VAT.

MR FRASER URQUHART: It is VAT.

MR JUSTICE SULLIVAN: Just the VAT.

MR FRASER URQUHART: Yes.

MR BEDFORD: I am grateful. If I can carry on and give you my broad headings, but on the basis that I am sure between ourselves if you are with me we can work out exactly what that would be and have a note of the figure. The figures I have, if you take the original bill on the main application and take out the two items that I have identified by bringing them down to 50 per cent, hours spent rather than the amount claimed, the 49,000 figure reduces to, I think, 40,000 and some £78. It comes down by about £9,000.

In relation to the second costs application a figure of 20,400, as printed, if you take out a 60 per cent reduction in relation to the hours spent it comes down to some 5,000-odd to 15,213. In my submission given the basic approach of the court to summary assessment, notwithstanding these are very large sums and very large sums for a claim of this nature - the issue I have raised on and the issue on the documents is fairly straightforward - you can take a view.

Does it look like this is a case where properly some 40 hours needed to be spent up to May 2007? Does it look like a case where some 43 further hours needed to be spent after effectively the finalisation of evidence up to setting down? And does it look like on the second claim nearly 50 hours (49.6 we totted it up at) needed to be spent in relation to the second claim to work on documents. I am not at all criticising the settling of documents by my friend and disbursements and so on. If those things are accepted I suggest the reductions we put forward. They are rough-and-ready, but they meet the fairness of the point.

On the issue about the basis for assessment, although my friend's remark is for it to go to detailed assessment on your provisional remarks at the outset, in my submission, given the findings of your Lordship and the judgment you have reached - although you have found against the authority and been critical of the processes involved - in my submission they do not amount to amount to a basis for ordering an indemnity basis as opposed to a standard basis for assessment.

MR JUSTICE SULLIVAN: It is fair to say that on indemnity costs, simply running what the judge eventually concludes is not a very good point or a bad point is not a sufficient basis. It is more the manner in which you have conducted the litigation, say last minute disclosure or that sort of thing, that bumps up costs which leads the court to express its disapproval by making it indemnity costs. I think it seems whatever time the point about the second decision replacing the first had been made it would inevitably have led to the challenge that has been made. It would have happened sooner rather than later.

MR BEDFORD: Those are the matters I raise in relation to costs.

MR FRASER URQUHART: In a sense, this process shows the invidious nature of the exercise that the judge has to perform on these occasions because you are being invited to draw very broad brush conclusions about matters which are of some complexity. The starting point must be that these costs have been properly and fairly incurred or there would not be a costs schedule in front of this court purporting to claim them.

The second point to make is that this is, as you have observed, just a one-day case. It is a one-day case which has required the investigation of evidence which was given at an inquiry in the sense attempting to prove a negative on the basis of part of the assertions which have been made by the council, by Mr Scott, in terms of the basis of the justification for conservation area[s]. For those solicitors who were not intimately involved in the conduct of the planning inquiry, which I can tell you was conducted by me on a direct professional access basis, there was a considerable volume of materials for those solicitors to work through. That then is reflected in large bundles and a considerable bundle of materials prepared for trial. So it is unfair o criticise the amount of work that is done. Certainly one cannot draw the conclusion - which, in my submission, it is necessary to draw - that in some way these figure are artificially or unfairly or unreasonably inflated.

MR JUSTICE SULLIVAN: My instinct is, looking at the total number of hours, they are all on the high side. But I would find it very difficult to go further than that and say the fair thing to do is to be reducing them by a half or by 60 per cent. My feeling that they are on the high side is more that they should be very carefully scrutinised to see if they are justified, but that is something that can be done through the detailed assessment process. It is something that I cannot fairly do now. I am very conscious that just saying 50 per cent or 60 per cent off, I might be doing the fair thing. Equally I might be doing the unfair thing. I just do not have enough material on which to judge. Certainly at quarter-past-four I do not think I have the time to justify going through the entrails of this.

What I am going to do is I am not going to order costs on an indemnity basis. It does seem to me that the actual conduct of the proceedings, whatever might be said about the planning process, is not such as to pass the high threshold to incur the court's displeasure in terms of that. So I order detailed assessment on a standard basis; that is obviously if the parties cannot agree.

I would indicate - it is simply an indication - that at first blush the number of hours seems on the high side even though this is a complicated case for a one-day case. I am not saying they should be reduced. I am merely saying it is necessary for them to be looked at very closely in order to see whether they are justified. That is all; it is as high as I put it.

MR FRASER URQUHART: If that is the form of order your Lordship proposes, we are entirely content.

MR JUSTICE SULLIVAN: That would not be included in the form of order. That is merely my observation to the parties. I am not giving any direction to the tax judge or anything like that to say you must reduce or whatever; I am just saying for the assistance of the parties in the hope that they may be able to agree something. Certainly it seems that is exactly the sort of thing I would look very closely if I were a tax judge to see whether they were justified.

MR FRASER URQUHART: We are obliged for that indication.

MR JUSTICE SULLIVAN: Anything more?

MR BEDFORD: Because my clients will want to consider the position I do ask for permission to appeal. I have taken a note but it is a very rough note at this stage. I therefore ask for permission to appeal. If it is given could you say within 14 days of receipt of the transcript.

MR JUSTICE SULLIVAN: I do not think the two are necessarily linked. Even if I refuse you permission I think it might not be a bad idea to extend the time limit within which you can appeal until after you have received the transcript. It is important that any public authority has an informed basis for deciding whether or not it wants to ask the Court of Appeal - rather than bang something in - on a precautionary basis I would have thought. I cannot think that Mr Fraser-Urquhart's client would be prejudiced by that.

I am going to refuse you permission. I do not think you have a reasonable prospect of success. I do not think, for the reasons set out in the judgment there is a wider issue involved. I am happy to extend the time within which you can ask the Court of Appeal for permission to appeal. I think the normal time is 21 days - - - - -

MR BEDFORD: In my experience it is 14 days from receipt of judgment, is not an abnormal - - - - -

MR JUSTICE SULLIVAN: Yes. I will give you 14 days from receipt of the approved judgment. That will give you time to go to the council and for them to take your advice and so on as to prospects.