Harrison, R (On the Application Of) v Richmond Upon Thames London Borough Council

THE DEPUTY JUDGE: This is a claim for judicial review of a decision of the defendant local planning authority taken and confirmed on review in April and May 2012 under section 70A of the Town and Country Planning Act 1990 as amended by the Planning Act 2008. The decision was to decline to determine a planning application made to the local planning authority by the claimant Mr Henry Harrison.

It is convenient first to set out the relevant statutory provisions, which are not extensive, and parts of the Government Circular giving guidance on their application. Section 70A is headed "Power to Decline Subsequent Application". It confers power on a planning authority to decline during a period of 2 years following an adverse decision on a planning application or appeal to determine a fresh application. The amendments of 2008 extended that power to cover cases of a fresh application made following an adverse decision on an appeal against an enforcement notice. The provisions in question are subsections 4A and 4B of section 70A. These provide as follows:

Circular 8/2005 of the then Office of the Deputy Prime Minister gives guidance on the use of the section 70A power. It is worded relevantly to this case as follows:

Mrs Harriet Townsend for Mr Harrison submitted, correctly, that this did not amount to a power to determine an application on the grounds that the local authority thinks the application will fail. To be clear, it is not the planning equivalent of a summary judgment dismissing a hopeless application. The section does not lead to the consequence that an applicant can never make a fresh application after a refusal, merely that he can be subjected to a moratorium of 2 years. Nevertheless, the merits are not wholly irrelevant. The background to the application of section 70A is that the application being considered under the section is similar to a previous application which was refused because of a lack of merit and the Circular refers at paragraph 4, for example, to undesirable developments and to the question of whether objections have been addressed.

The unusual feature of the fresh application in this case is that it did not seek to accommodate all the objections that had led to the previous refusal. Rather, its supporting documents attempted to make out a case that one of the objections that the Planning Inspector had had -- an objection in principle to the type of development proposed -- was unsound. In giving my reasons for this decision I will need to refer to the Inspector's decision and the claimant's case against it. I make it clear that nothing in this judgment is to be taken as indicating any view of mine on the soundness of the Inspector's conclusion or, by the same token, the merits or strength of the claimant's proposed fresh application and its supporting materials. I am neither qualified, as I am not a planning officer, nor equipped, having dealt with the case on the papers only, to form a view on these matters and it would be no business of mine to express one.

To put the present proceedings in context it is necessary to set out some of the factual background. The application site was on Eel Pie Island, situated in the River Thames between Twickenham to the north and Richmond to the south in what is now south-west London. The island, which historically comprised three separate islands lying in alignment and now joined together, is one of the larger, if not largest, of the Thames Eyotes. It is connected to the shore at Twickenham by a footbridge and its middle part is substantially built upon. A local conservation area study which seems to have been carried out in the early to mid 1990 and approved by a committee of the defendant local authority in 1997 described the history of the island as follows:

Some separate research carried out more recently by Heritage Consultants on behalf of the claimant revealed that around the time of the conservation area study five boatyards or workshops existed in the area of the application site. That part of the island was, however, extensively damaged by fire in 1996. In particular, two of the boat workshops, the former business known as Eel Pie Marine and that of the surviving business known as Eel Pie Boatyard were destroyed. A year later the claimant, Mr Harrison, came to the island. He bought all or part of the site of the former Eel Pie Marine and successfully applied for planning permission for a development which comprises a boat workshop now known as Phoenix Wharf and a mixture of workshops and studios falling within use class B2, together with a manager's flat. As I understand it, those are not marine related workshops but I do not have information on that. The boatyard is let to a local riverman and operates. The site lies of the northern shore of the island facing Twickenham. Approximately to the east of the site is Eel Pie Boatyard which has a dock and a substantial T-shaped pontoon. A photograph shows a couple of dozen boats moored on it up to five abreast. To the west is Eel Pie Slipways, a business which predated the fire and was not, I think, affected by it. That surviving business also has a smaller pontoon on which the photograph showed up to a dozen boats moored.

The Council's conservation area statement for the conservation area that includes Eel Pie Island was most recently published in 2009. Of Eel Pie Island it says, so far as relevant to this case:

Phoenix Wharf has a mooring space alongside a short length of quay. The claimant bought to it a traditional river vessel described as being of the Dutch barge style named Liquid Sky. He lived on Liquid Sky at the mooring between 1999 and 2006. In 2006 he had built for him a vessel named GB Vision, which was brought to the mooring. GB Vision was much larger than Liquid Sky. She is, in land-lover's terminology, a two story structure with upper and lower habitable decks, as well as an open deck above protected by a railing. It seems that in 2006 the claimant applied for planning permission to use GB Vision on the mooring for office use. That application was met with an enforcement notice, in response to which the claimant removed GB Vision from the mooring. She was taken away and converted for residential use.

After GB Vision returned to the site following that conversion the local authority issued a further enforcement notice. This described the alleged breach of planning control as "the mooring of a floating structure in front of Phoenix Wharf for residential purposes in the approximate position marked with a cross on the attached plan". The reasons given for issuing the enforcement notice were that the breach appeared to have occurred in the last 10 years and:

Mr Harrison appealed. The resulting Inquiry took two days in May 2011 and two days in July. The Inspector gave his decision on 19 September 2011. He dismissed the appeal. He merely amended the enforcement notice by removing the reference to piles and changing the description of the breach of planning control to "the material change of use of the land to use for the mooring of a floating structure for residential purposes". In brief summary, the Inspector rejected statutory ground of appeal D, 10 years use, on the ground that use of GB Vision for office use in 2006 had broken the continuity of residential use of the mooring in the previous 10 years and that no earlier period of 10 years' continuous residential use could be established. The Inspector rejected the proposition that GB Vision had been lived in by the claimant's son in parallel with her office use, finding that any such residential use was de minimis. Against the background of a finding of no established use, it is common ground before me that use of the mooring to accommodate a craft for residential purposes amounts in planning terms to a material change of use requiring consent.

In relation to ground of appeal A, the Inspector found that the mooring of GB Vision at the mooring for residential purposes amounted to inappropriate development. That is to say in this context an inappropriate change of use of the mooring space. He found, disagreeing with the Council, that GB Vision was for the purposes of local planning policies a houseboat but he found that use of the mooring to accommodate a houseboat was contrary to policy ENV 26 of the local authority's Unitary Development Plan, which seeks to conserve the Thames area of the borough on the basis of analysis of the specific character of each reach of the river as set out inter alia in conservation area statements and studies. In this connection he noted section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and also Planning Policy Statement 5.

I can conclude my account of his reasoning by noting briefly that he found that the mooring of a houseboat (as he had found GB Vision to be) on a reach in the borough was not inappropriate development as such but that in this instance it contravened policy ENV 1 by being a new use that did not conserve and enhance the character of the northern shore of Eel Pie Island. He also rejected the appeal on ground F, which was based on a planning application Mr Harrison had made to retain GB Vision on the mooring with modifications to make the upper enclosed deck less conspicuous and to remove the railings surrounding the top open deck. The Inspector added in that context:

The response of Mr Harrison was to submit a further planning application dated 4 April 2012 for "use of site in front of Phoenix Wharf for the mooring of a houseboat in residential use". It was an important feature of the application that it was intended to obtain permission for the use of the mooring to accommodate Liquid Sky, the vessel that had occupied the mooring from 1999 to 2006 and was still in Mr Harrison's ownership. The introduction to the planning application prepared by a planning consultant engaged by Mr Harrison said that Liquid Sky was typical of the sort of boat for which the mooring would be used. The application did not seek permission to use the mooring for GB Vision or a similar craft. It went on to say:

Self-evidently, the application could only succeed if the Council were persuaded not to share the Inspector's conclusion at paragraph 44 of his decision. The materials supporting the application were clearly designed to support a contrary conclusion. For example, the planning statement commented on the conservation study as follows:

The Heritage Collective LLP is a heritage consultancy that was engaged by Mr Harrison. The author of its report has a Bachelor's Degree in Archaeology and a Master's Degree in Historic Conservation. That report set out the Inspector's conclusions at paragraphs 43 and 44, which I have read, and continued:

In respect of the 2009 conservation area statement -- that the norther section of the island was characterised by boat building yards and related activities -- the report agreed that the boats moored on the northern shore made a positive contribution but disagreed that the site gave the appearance of boat building yards, saying that of five boatyards or workshops existing prior to the fire now only Eel Pie Slipways was a commercial boatyard of any significant size, describing Phoenix Wharf as "a modern business centre with only a small boatyard" and Eel Pie Boatyard as primarily providing mooring to a variety of boats, including a significant number of houseboats together with facilities for boat owners to carry out maintenance and/or repairs to their own craft. The report went on to say that the presence of Liquid Sky would be in keeping with the character of Eel Pie Island, that there was very little movement of boats on and off the island apart from rowing boats, and concluded:

The Council responded to the application in an email dated 23 April 2012 from a team leader within the Environment Directorate of the Council. This referred to section 70A and continued:

On 25 April the claimant's consultants emailed the decision maker asking for a telephone discussion and subsequently sought to contact the decision maker's line manager by telephone. On 14 May she emailed the line manager pointing out that the current application was very different from the previous application for consent for the modified GB Vision; that the Inspector's decision was in the context of enforcement against GB Vision; and that he did not have the benefit of the heritage study now carried out and submitted to the Council. She asked for a meeting. The line manager replied later that day, promising to review the consultant's email together with the decision maker and respond. He responded the next day saying that the heritage study did not touch the Inspector's objection in principle to any residential craft at mooring in question and went on to say:

The consultant replied the next day (16 May) referring to paragraph 7 of Circular 8/2005. She argued that the new proposal was a genuine attempt to take account of objections to the earlier proposal involving GB Vision. She drew attention to paragraph 13 of the Circular saying that the new information in the proposal was a significant change, and to paragraph 14 directing local planning authorities to give the benefit of the doubt to an applicant. She attached a copy of Collins J's judgment in R(on the application of Jeeves and Baker) v Gravesham Borough Council [2006] EWHC 1249 (Admin) in support of the existence of a legitimate expectation deriving from the Circular, arguing that the Council was bound to follow the Circular or give reasons for departing from it, and hinting at the possibility of judicial review. She followed this up on 21 May with a reference to paragraphs 188 to 191 of the New Planning Policy Framework.

The line manager responded on 22 May, saying:

An internal email within the planning consultancy recorded receipt of the returned application on 28 May with a promise of a refund of the application fee.

In July 2012 the parties exchanged a detailed judicial review pre-application protocol letter and response. These are detailed but I do not consider that I need to review them. I will take into account as part of the Council's reasons everything that was said up to and including the email of 22 May that I have just read from. Those were written in the context of the initial decision and the review of it by the higher officer. But in my judgment the decision became definitive with the announcement on 22 May of a decision to send back the application, which I infer was done and followed by a return of the fee.

The judicial review claim form was lodged on 23 July 2012. On 11 October Mr Christopher Symons QC refused permission on paper on grounds of delay and because the new application was for the very thing refused by the Inspector: the mooring of a residential houseboat. He considered the use of section 70A to be reasonable and appropriate. However, on 6 February 2013 Swift J gave permission for this application after an oral hearing.

Before I conclude my recital of the facts I must deal with some exchanges in 2013 that were relied on. On 4 December 2012 a surveyor colleague of Mr Harrison's had written to the Council. I was told that this was not done at Mr Harrison's behest but that Mr Harrison knew that the colleague was writing to the Council and was subsequently supplied with copies of the Council's replies, which he has produced to the court. I am told in Mr Harrison's witness statement that it was the unfairness of the Council's treatment of Mr Harrison that had led the colleague to write. The Council has produced in evidence copies of the colleague's letters. The colleague had initially written as follows:

After some chasing, that letter elicited a reply dated 23 February from a senior planning enforcement officer. This said:

On 8 March the surveyor replied, thanking the Council for the "most informative reply" and asking the same questions regarding five residential boats on the Eel Pie Slipway pontoon. The reply of 2 April was:

In the meantime, on 19 March Mr Harrison's solicitors had written to the council saying:

On 13 May, the beginning of the week in which I heard this case, the Council's legal department replied to the questions as follows:

This correspondence has given rise to a flurry of last minute witness statements and correspondence. Mr Harrison's further witness statement comments adversely on inconsistencies between the enforcement officer's and the lawyer's replies. In response to that a witness statement from a Council lawyer makes predictable comments about the surveyor colleague's motives and his degree of candour in disclosing them, and makes the observation that the Council's letters did not amount to the determination of an application for a certificate of lawfulness. In turn, a letter from Mr Harrison's solicitors dated the day before the hearing took issue with the contents of, and things omitted from, the Council's lawyer's witness statements.

I do not propose to consider the legal merits of the parties' respective positions as set out in these materials, though I will observe that in my view the Council occupies the slightly higher moral ground in relation to this.

Mrs Townsend submitted that because the Council's refusal to entertain the planning application was a continuing one I could quash that refusal on the ground that the Council's conclusion about other houseboat use was a new material consideration. In response, Mr David Smith for the Council submitted that a conclusion about the lawfulness of the pontoons as structures and the attaching of houseboats to them did not amount to a conclusion that residential use of the houseboats by their occupants was lawful in planning terms.

I do not need to reach a decision on that because I do not agree that events subsequent to 22 May 2012 can retrospectively colour the decision that became definitive on that date. The position since May 2012 has simply been that there has been, following the return of the planning application, no application before the Council. Though the Council's decision was a decision not to do something, it was nevertheless a decision, as is reflected in the relief sought in this claim: first, a quashing and then a mandatory order to determine the application. That decision, the decision to decline to entertain the application, as I say, became definitive at least by the time the application and the fee were returned.

For Mr Harrison, Mrs Townsend submitted first that neither of the preconditions for declining to entertain the application was met. The local authority could not reasonably conclude that the application was the same or substantially the same as the previous deemed application for consent for GB Vision as modified. Secondly, the Heritage Collective's report introduced new material considerations: first, there was a more detailed account of the evolution of Eel Pie Island since the 1990s; secondly, she submitted, the expression of the view of the heritage expert, that the development applied for would cause no harm to the character and appearance of the conservation area and would preserve and enhance the area, was a new material consideration. Secondly, she submitted that even if the preconditions were fulfilled, the decision to decline the application was not in accordance with Circular 8/2005.

I am against Mrs Townsend on her first submission relating to the precondition but am with her on her second submission relating to the discretionary decision, for the reasons I shall now give.

There is no dispute that the land was the same. But Mrs Townsend submitted that whether the applications were the same or substantially the same was a matter of comparing the application. She said that the local authority had confused that issue with the issue of the Inspector's reasoning. The new application, she reminded me, was for a traditional houseboat whereas the previous deemed application, or indeed the actual application for consent to the modified GB Vision, had related to the much taller and more obtrusive craft, and, she said, it had been the design of GB Vision that had triggered the enforcement action, the Council never previously having objected to Liquid Sky.

However, in my judgment, the Council were amply entitled to find the applications the same or substantially the same for the reasons they gave. In Jeeves and Baker, Collins J dealt with the question of similarity as follows:

In my judgment, Liquid Sky and GB Vision were sufficiently similar to permit a conclusion to that effect for the purpose of the first precondition in section 70A. Moreover, I conclude that when Parliament used the concept of similarity or substantial sameness in section 70A it had in mind in particular points of similarity that were relevant to the question whether the section 70A power should be used. The fact that, as in this case, a fresh application shares with the old one a characteristic that was judged fatal to the success of the previous application is, in my view, a relevant point of similarity.

It has not been suggested that there has been any material underlying change in the development plan. The new material considerations put forward are the contents of the Heritage Collective report and the events of 2013. I have given my reasons for excluding the events of 2013. Regarding the Heritage Collective's report, Mr Harrison put forward, as I have mentioned, its more detailed account of the evolution of the area and the fact of its containing an expression of opinion on the planning merits of the new proposal. But, in my judgment, the Council were entitled to regard neither of these as amounting to a significant change in the material considerations.

As regards the evolution of the area, the contrast that was being alleged and insisted upon between the description of the relevant part of Eel Pie Island in the conservation area study and how it is today had been an issue in the appeal. The evidence given by the Heritage Collection as to the present day usage of the site and its surrounding area was not materially different from that produced to the Inspector. There has, it appears, been an erosion of the working boatyard character of that part of Eel Pie Island. The new application raised, as did the previous appeal, the question of whether further erosion should be resisted or the erosion treated as a fait accompli. But more detail about the course of that erosion, such as the names or numbers of disappeared boatyards, could reasonably be regarded as a point of detail not material to a judgment on the issue, or at least as not being so material as to amount to a significant change in the material considerations. Nor, in my judgment, were the Council compelled to regard the Heritage Collective's favourable opinion as a significant new material consideration; "significant change" being the statutory test.

I accept for these purposes Mrs Townsend's working definition of a material consideration as anything that might affect the planning judgment and I accept that an expert expression of opinion on the planning merits of an application could fall within that category. But an expression of opinion by a consultant, however eminent, engaged on behalf of an applicant is not, in my judgment, something that a planning authority is compelled to regard as a significant material consideration. If it were otherwise, an applicant could defeat the application of section 70A by presenting such material and thereby removing one of the preconditions for a section 70A decision, which I do not consider to be an outcome Parliament could have intended. The preconditions for the exercise of the section 70A power were therefore, in my judgment, met. The Council had the power to decline to entertain the application but had to have regard to Circular 8/2005 in exercising it.

Mrs Townsend submitted that the Council had treated the satisfaction of the preconditions as leading automatically to a decision to decline to entertain the application. She also pointed to favourable passages in the Circular such as paragraphs 4, 8 and 14. There was a debate before me over whose case was assisted by paragraph 4 and by the second sentence of paragraph 8. Mrs Townsend submitted that the Heritage Collective's material amounted to an attempt to address the Inspector's concerns, whilst Mr Smith for the Council retorted that a new application to moor a residential craft on the mooring did the opposite of addressing the Inspector's objections in principle to such use. Mr Smith submitted to me, correctly in my judgment, that the Council were exercising a discretion. He submitted that they had taken account of relevant matters and not taken account of any irrelevant matters, so their exercise of discretion could only be struck down if, in the words of Lord Diplock in R(on the application of Council of Civil Service Unions) v Minister for the Civil Service [1985] AC 374, at 410, it was "so outrageous in its defiance of logic or of accepted moral standards" that no sensible person could have reached it.

As regards the Circular, he aptly cautioned against treating it as the words of a statute, preferring a search for what he aptly described as its "message". He drew my attention to the circumstances in which the new application was being made. Liquid Sky was at that time on the mooring at Phoenix Wharf, more than 3 months after the deadline for removing her. The claimant's representatives had made no attempt to engage in pre-application discussions as recommended by Circular 8/2005. The supporting materials went, he submitted, over the same ground as has been traversed in the Inquiry. The Inspector's objection in principle to residential use of the mooring had not been addressed. A fresh application for permission for that very use ran counter to addressing the objections. This, he said, was all evidence from which the local authority could reasonably conclude that the application was intended to wear the Council down. In that connection, he drew my attention to paragraph 23 of Collins J's judgment in Jeeves and Baker, where, referring to a predecessor Circular, Collins J had said:

In assessing the lawfulness of the Council's discretionary decision I start from the agreed proposition that the Circular was a material consideration for the Council in deciding whether to exercise the discretionary power. The interpretation of the Circular is a matter for me. I do not approach it like the statute but seek, in Mr Smith's words, to find its message. I add in parentheses that Mr Smith pointed aptly in this context to Collins J's extrapolation from the notion of an applicant putting pressure on local opponents to that of putting similar pressure on the planning officers themselves as an example of drawing out the message of such a Circular.

The clearest message I get from the Circular is that the power is to be used to counter repeated applications submitted with the intention of reducing opposition to undesirable development. That is said in slightly different words in both paragraph 4 and in paragraph 8. In each of those paragraphs that practice is contrasted with the submission of a similar application that has been altered or revised so as to address or take account of the objections to the earlier proposal. It seems to me however (and this may be where I have parted company with the council officers who considered the application) that the two situations that are respectively described in, for example, the first and second sentences of paragraph 8 are not alternatives, rather they are opposite ends of the spectrum. In other words, the fact that an application does not fall within the second sentence by attempting to take account of objections does not lead automatically to the conclusion that it falls within the first sentence as being an attempt to wear down opposition by submitting repeated applications.

When the first sentence of paragraph 8 enjoins local authorities to use the power only where they believe the applicant is trying to wear down opposition by repeated applications, it is pointing them to a question that they must decide in those terms. The Circular does go on to say in the same paragraph that if an application has being revised in a genuine attempt to take account of previous objections, the authority should determine it but that does not, in my judgment, mean that any application that does not accommodate objections to an earlier proposal in that way is to be treated as an attempt at wearing down of opposition. That simply does not follow. An application that has been amended in a genuine attempt to accommodate objections is an example of an application that is not designed to wear down opposition to an undesirable development. But even in a case where, as here, objections have not been accommodated but are dealt with in a different way, the question whether the application is an attempt to wear down opposition to a development still remains for decision.

A Circular is not law and a local planning authority can depart from it for good reason. However, having scrutinised the exchanges of April and May 2012, I am unable to find that the Council either posed themselves and answered the question posed by the first sentence of paragraph 8 or considered whether there was good reason to depart from its approach. The first substantive paragraph of the email of 25 May suggests that the conclusion that the second sentence of paragraph 8 was not complied with was determinative. The closest that the Council came to engaging with the first sentence of paragraph 8 was in a later paragraph of the email referring to paragraph 12 of the Circular which continues the same theme and picking up that paragraph's reference to "a major cause of frustration to members of the public and the local community".

Paragraph 12 of the Circular goes on to say: "when they have already dealt with the original application and seen the development be refused". The email applied that to a situation where the public have noted that the original application has been refused and thoroughly tested in a 4 day public inquiry, which is not quite the same thing. In fact, there is no evidence before me of public opinion to residential occupation of Eel Pie Island moorings apart from the feigned opposition of the claimant's surveyor colleague, nor have I seen evidence that the Council had, prior to the enforcement action against GB Vision, opposed the residential mooring of traditional houseboats on the island. I do note, however, that it had been given as an objection in the enforcement notice relating to GB Vision that its current residential use was "not considered to be a functionally related use" for the riverside location.

I point those matters out for the purpose of dealing with the issue before me under section 70A and subject to the indication I gave earlier in this judgment that nothing that I am saying should be taken to influence one way or the other the outcome of any future planning application. Whilst the Inspector's decision does not as a matter of law predetermine the claimant's proposed application, I accept the point made to me that Inspectors' decisions on relevant issues of policy are considerations of some weight in determining subsequent applications to be weighed alongside considerations advanced by an applicant, but I say nothing more.

My overall conclusion is therefore that the Council did not ask and answer the right questions, in that they did not ask whether the criteria of the first sentence of paragraph 8 were satisfied or whether there was good reason to depart from the approach taken in that sentence. I do not need to consider whether if they had answered the question in the first sentence adversely to the claimant such a conclusion would have been perverse. My conclusion is therefore not that the Council acted perversely, it is that they misconstrued the Circular and in consequence failed to answer the correct questions. In so deciding I do not imply any personal criticism of the council officers involved. Though section 70A is no doubt a salutary power, I suspect it does not fall to be exercised very often, and the fact that only one authority was cited to me leads me to suspect that little judicial authority exists upon the correct approach to it. In those circumstances, it is easy to fall into the error, as I have found it to be, of regarding the two situations described in paragraph 8 of the Circular as alternatives rather than ends of a spectrum.

I therefore set the decision aside. Subject to hearing argument, I am not presently minded to grant any sort of mandatory order. That is for two reasons. The first is that I have held that there is no application currently before the Council, therefore I cannot logically direct the Council to consider one. Secondly, if the application is resubmitted within the 2 year period relevant to section 70A in reliance upon my decision, section 70A will be engaged but the Council will have to consider afresh, it seems to me, in the then prevailing circumstances how their discretion should be exercised, and I do not think it would be right for me to determine as of now that any decision to decline would be unlawful, though obviously the Council will bear in mind the planning history, some of which I have summarised in this judgment, in any consideration of whether to seek to use section 70A afresh.

Is there anything counsel wish to say on that issue? I have outlined my provisional conclusion in the hope that it would shorten matters.

MRS TOWNSEND: My Lord, I say only this. I am obliged for that clear and full judgment on behalf of my client. Paragraph 9 of the Circular draws specific attention to the use of judicial review in circumstances of this sort. This needs to be a genuine remedy to an unlawful exercise of power, and there will be concern that the claimant, who will go away, spend more thousand of pounds putting together an application, and receive -- there is not a great deal of trust that there will be an open and ready appreciation of that application and the question under section 70A. In which case, the judicial review remedy pointed to in the Circular has not proved a remedy to my client. If it is that easy simply to spin the 2 years out, it is not a real remedy. So there is some concern there. I think that is all I can say. Obviously, your Lordship did not go as far as had been hoped in terms of findings that would assist my client in saying to the Council -- this is a genuine application, your Lordship has not felt it necessary to find that it was obviously intended to overcome in a genuine sense the objections to the development, therefore there is not as much in the judgment in and of itself to assist the claimant going back to the Council, and in those two particular circumstances, and subject to anything my learned friend may say, I would ask for an order that in the event of an application in the same terms as made on 4 April 2002 being made within the next -- and a period can be given -- the defendant be ordered to determine it. It is as simple as that. I do submit that the basis for such an order has been set out sufficiently in the evidence to your Lordship. I do not think I can improve on my submissions, so perhaps I should let my learned friend reply.

THE DEPUTY JUDGE: Thank you, Mrs Townsend.

MR SMITH: My Lord, may I say first, and possibly we shall return to it, my Lord indicated that he would be minded to make an order to set the decision aside. It perhaps is a technicality with no practical difference but possibly the more appropriate order would be a declaration that the decision which was made had been unlawfully made for the reasons set out in my Lord's judgment. I say that from the practical perspective that we do not have the application, we are not seised of it, in the old-fashioned language, we do not actually have an application. Tying that together with my Lord's helpful indication that the error made, distilled down to its finest point, is simply getting the two halves of paragraph 8 a bit muddled up. My Lord has indicated that the similarity point was a view we could come to as an authority and the absence of material difference -- my shorthand -- was a position that we could come to and the error was simply over what I might call the wearing down point. My Lord has given very clear indications on the first two, very helpful indications as to how better and correctly to approach paragraph 8 and it would, in my submission, be going too far to insist that the local authority determine an application which my Lord has already said fails at the first two hurdles, or at least the authority was entitled to conclude had failed at the first two hurdles.

Secondly, an order made in the manner sought by my learned friend may actually not really get to the heart of things because that would compel an application, effectively, to be made which either or both party may think could be improved or changed in some way or the other to make it more rather than less attractive or in some other way give further explanation. It would be to compel a consideration of an application also without giving the authority an opportunity to revisit paragraph 8 in the manner which my Lord has indicated that it should be approached.

THE DEPUTY JUDGE: Before you sit down Mr Smith, I had taken it that the fact that the Council had sent the application and the fee back -- I had not heard Mrs Townsend make any criticism of their behaviour in doing that and that has obviously influenced me in deciding that the decision became definitive in May 2012. It was her submission, of course, that there was a continuing refusal which would be inconsistent with the Council -- I am not putting this very well. The section merely talks about declining to entertain the application, it does not specify sending it back but I can see any applicant might be aggrieved if they decline to entertain it but did not return his fee.

MR SMITH: It is an expression of requirement in the Circular that it should be sent back.

THE DEPUTY JUDGE: I overlooked that.

MR SMITH: It is at paragraph 15.

THE DEPUTY JUDGE: Yes, indeed.

MRS TOWNSEND: My Lord, if I can assist. I believe that the application was sent back in April and it was very much part of my submissions that -- and I will not go back over, trying to improve my case after the judgment but it was very much part of my submissions, first, that there was no consideration of the Circular at all until it was brought to the Council's attention by those instructing me in May and that the refusal very much is ongoing despite the sworn testimony of Mr Harrison and Mrs Scott in these proceedings that there is no attempt to wear the Council down. So there is a certain amount of digging in of heels. There is a stance which my client will feel may well rear its head again, particularly in the context of a decision having been challenged in the judicial review court. If your Lordship can give us any support for our submission, which is there was no evidence that this was an attempt to wear the Council down. Collins J, a very experienced judge in Administrative Court, felt able to go that far in Jeeves and Baker, and that was very much my submission.

If your Lordship does not feel able to go that far there is a fear that there is going to be intransigence on the part of the Council. I cannot put it more straightforward than that. The correspondence of 2013 was designed to show to those advising the Council that the Council itself was finding new material considerations that support the case made by the claimant that the character, as found by the Inspector, was incorrectly so found, and there appears to be no recognition of that by the Council's own lawyers. So we do seek the assistance of the court in coming here, showing that a decision was made, as I would submit, without proper regard to the Circular, without evidence of an attempt to wear the Council down. What are they going to do? Are they just going to go away and say: we have now thought about that, we understand the Circular this time and we think you are trying to wear us down? And without a finding of the court on that point and without an order from the court on that point we are forced to the starting block again and an application for judicial review of the opinion then expressed that the claimants are trying to wear the Council down. They are not. They have said they are not. A professional consultant has sworn they are not. Their conduct shows that they are not. Those are my submissions. This court can give an order that reflects that position. This court can express views in its judgment that assist with any future applications for planning permission. Those are my submissions.

THE DEPUTY JUDGE: Mr Smith, subject of course to any appeal, in the light of what I have said, are your clients not going to have to consider, assuming they do not decide to depart from the policy of the Circular, really very carefully on what basis they could say that this was an attempt to wear down opposition by repeated applications, bearing in mind the history? This is a different type of application from the application to modify GB Vision. It is a different type of application from the deemed application for the unmodified GB Vision that arose out of the enforcement appeal.

MR SMITH: There appears, my Lord, with all respect, to be inherent in that some supposition that there was a determination to find a way of turning the application away and find reasons later. The authority now has very clear and direct guidance as to how to approach the Circular, and my Lord would be entitled to assume that that would be taken on board by those who have to address any application which is made after today.

THE DEPUTY JUDGE: The objection that was relied on in the correspondence I reviewed was a view formed by the Inspector, as far as I can infer from the materials, for the first time in relation to this island.

MR SMITH: I know not, I was not sufficiently involved. But there is no doubt, my Lord, that the word will get back as to the gist of my Lord's judgment and no doubt in the early course of time there will be a transcript which can be passed round to see the exact language that has been expressed. But I come again to suggest, particularly when it will be said that factors arising after the date of the original application will be material, it would, if I may respectfully so say, possibly lead to confusion if my Lord were in some way to make an order or a clear indication that the application from back then, but only with the material from back then, should be reconsidered, it would be entirely right that the application should be considered against whatever material factors are relevant at the time of its consideration, not some artificial time warp.

MRS TOWNSEND: I have nothing further to add.

THE DEPUTY JUDGE: I am certainly adhering to my decision to set aside the decision. You have helpfully reminded me about that paragraph in the Circular which satisfies me that procedurally the Council did the right thing in returning the application and the cheque, therefore the first step Mr Harrison must take if he wishes to rely on my decision is to resubmit it.

MRS TOWNSEND: This time he will ask for a pre-application discussion. In fact, that has already happened in March, so it may be that that will be the very next step.

THE DEPUTY JUDGE: Clearly this will have to be done fairly quickly because absent a decision to decline advertisements have to be done within a time limit, do they not? How about if I give permission to apply and reserve the case to myself in the event of a further decision to exercise the section 70A power? I appreciate that that may lead to more expense than my doing what you ask me to do, Mrs Townsend. I think my recent exchange with Mr Smith may give the Council some indication of the problems they have got to grapple with if they wish to exercise the power afresh. But I do not feel I should predetermine the lawfulness of any such decision before it was taken. I accept that Collins J, whose seniority and planning expertise are both well known, took a more robust course. I have not re-checked the timeline in his decision. It was a case, I think, where the local authority had given in a witness statement reasons that were pretty much illogical in that case.

MRS TOWNSEND: My Lord, I understand, and it is very much appreciated, that, as it were, a compromise way forward may be the best, and for the purposes of drafting the order your Lordship has in mind something along the following lines: permission to apply (reserved to) ... in the event that the defendant exercises the power to decline to determine under section 70A.

THE DEPUTY JUDGE: Afresh in respect of a resubmitted application. So, yes. Point 1, the defendant's decision to decline to entertain planning application number whatever it was --

MRS TOWNSEND: I do not think it was ever given a number.

THE DEPUTY JUDGE: I suppose not. The planning application submitted by the claimant on -- insert the relevant date -- is set aside. The claimant has permission to apply to the court in the event that the Council exercises its power under section 70A in respect of a resubmitted application. Matter reserved to Judge Paines.

I think that only leaves the issue of costs.

MRS TOWNSEND: I am most obliged. There is only one thought in my mind about that order, which perhaps I should deal with outside the court with my learned friend, which is the question of whether that leaves the proceedings in some sense open and at some point they will need to be closed off, as it were, but perhaps we can work any implications of that out outside the court in a draft order which we can submit for your approval. Does that work?

THE DEPUTY JUDGE: I am sure it does.

MRS TOWNSEND: If it does not have the effect that I am indicating, namely to leave, as it were, the proceedings hanging open indeterminately, then there is no need to do that. I was just a little nervous that if we leave in the order of permission to apply that the proceedings would not be closed, that they would be, effectively, left on the court file. If I am wrong about that then I am sorry for taking up the time. I am sure we can find out, my Lord, and come to an agreed order because we have got the cut-off of 19 September and we could impose, if it is necessary, an order saying, my learned friend's suggestion, subject to that order --

THE DEPUTY JUDGE: How about if I say within 7 or 14 days of receipt of any such decision ie a new 70A decision, and in event not later than 18 September 2013? Not later because -- obviously, you would not make it on 17 September anyway but it has the effect that everything is finalised once 19 September arrives and the court can put the file away.

MR SMITH: My learned friend and I, with the court's assistance, are aiming at the same target and so I am sure we can put our heads collectively together to come up with a form of order that meets the overall objectives that my Lord seem to be striving for.

THE DEPUTY JUDGE: I am proposing to return to my chambers now, so are you likely to need me? I can obviously be contacted if you did.

MRS TOWNSEND: We will take the advice of the court associate or your clerk.

THE DEPUTY JUDGE: I am sure you will do your best to agree something.

MRS TOWNSEND: I do have an application for costs to trouble your Lordship with before the close of play, if I may. It is in the same form as was filed and served last week. We ask your Lordship to summarily assess the claimant's costs in the sum £28,876.78. In the usual way, we say the claimant is entitled to an order that the defendant pay his costs. We have not had any complaints or dispute as to the quantum claimed and it compares very favourably with the quantum claimed by the defendant, which was only fractionally less before that was added than the total sum claimed by the claimant. So, my Lord, unless there are some particular points on the detail, that is my application. It would be most helpful if they could be assessed, as that speeds recovery, and assessed in the sum claimed, which I do submit in the context of a case such as this is eminently reasonable.

THE DEPUTY JUDGE: Mr Smith?

MR SMITH: My Lord, first is to the principle. As my Lord has indicated, that of, essentially, the three prongs to the attack, the local authority did not fail on the first two but only on the narrow, albeit important, point about the interpretation of paragraph 8 of the Circular. In those circumstances, my submission is that although we must be liable for costs, there should be some tempering of that by a percentage, which I would offer for my Lord's consideration of a half, or I did say a percentage, 50 per cent, if my mathematics is half as good as it used to be. Subject to that and as to the amount, I have no instructions to quarrel with the numbers.

THE DEPUTY JUDGE: Mrs Townsend?

MRS TOWNSEND: My Lord, the general rule is that winner takes all and in this case it was right, in my submission, and reasonable, in my submission, to package, as it were, the arguments as they were presented. There was substantial overlap between the first ground and the second. Indeed, all of the work that went into supporting the first ground would have been needed to set out of context if it was only the second ground that was argued. So apportionment is inappropriate in this case, the two very grounds very closely interrelated, relying on the same fact and indeed, effectively, the same law, but one case, and my learned friend's suggestion is not well founded, in my view. My Lord, unless I can help you further, I simply restate the full application.

THE DEPUTY JUDGE: I do not think this is the sort of case in which it is appropriate to make orders of costs reflecting different degrees of success on different issues. I agree with Mrs Townsend that the issues were very closely bound up with each other, all going to the same eventual question and it is not as though particular amounts of time or cost were taken up or incurred with distinctly different issues. So I will order costs in the sum of £28,876.78.

MRS TOWNSEND: I am much obliged, my Lord.

THE DEPUTY JUDGE: Thank you both very much.