R (Roudham and Larling Parish Council v. Breckland DC (D) and Paul Rackham Ltd (IP)

Transcript date:

Monday, October 8, 2007

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Burton J

co/4774/2007

Neutral Citation Number [2007] EWHC 2352 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

 

Monday, 8 October 2007

B e f o r e:

MR JUSTICE BURTON

Between:

THE QUEEN ON THE APPLICATION OF ROUDHAM AND LARLING PARISH COUNCIL

Claimant

v

BRECKLAND COUNCIL

Defendant

and

PAUL RACKHAM LTD

Interested Party

 

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Mr R Harwood (instructed by Richard Buxton, Cambridge CB1 1JP) appeared on behalf of the Claimant

Mr R Fookes (instructed by Messrs Knights, Kent TN1 1UT) appeared on behalf of the Defendant and Interested Party

 

J U D G M E N T

(As Approved by the Court)

Crown copyright©

 

1.       MR JUSTICE BURTON:  This has been a very thoroughly argued application for permission for judicial review brought by the Roudham and Larling Parish Council against a grant of planning permission by Breckland Council (the defendant) to the interested party, Paul Rackham Limited.  Before me the interested party and the Breckland Council have joined forces to be represented by Mr Robert Fookes, and Mr Richard Harwood has represented the claimant. 

2.       There was and remains a considerable question mark placed at thelocus standi of the Parish Council claimant by the defendant and interested party, who do not accept necessarily that there has been authorisation of the solicitors and counsel in this case.  A Freedom from Information Act request brought forward what purports to be a request by the Deputy Chairman of the Parish Council on 31st May for a meeting, which then purports to have taken place on 1st June (attendees at whom are not described, absentees include the Chairman of the Council), at which purported authorisation retrospectively to bring the proceedings was given by these unidentified members of the Parish Council, on the express basis that it is declared that the Parish Council would not have the funds of itself to bring the proceedings, and apparently providing for a sum of £1,500 to meet the potential liability if the claim were to fail.  I have not made any decision about the locus standi of the claimant and have heard the matter de bene esse in that regard.  But clearly if the matter were to go forward questions of security for costs, apart from anything else, would undoubtedly arise.

3.       The deputy judge who refused permission on paper is of course very experienced in this area, Mr George Bartlett QC, and he saw no prospects of success for the four grounds of judicial review which were then being put forward before him.  Two more have been added on the renewed application before me, so that there is a total of six.  I shall deal with them in turn.

First, the inadequate reasons case. This is a reference to the relatively new provisions of Regulation 22 of the Town and Country Planning (General Development) Procedure Order 1995, which provides at Regulation 22(1)(b):

"Where planning permission is granted, subject to conditions, the notice

(i) shall include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission, and

(ii) shall state clearly and precisely therefore their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision."

In this hearing Mr Harwood has concentrated on Regulation 22(1)(b)(i). He has drawn my attention to a number of recent authorities in exposition of this new‑ish regulation, including R (Midcounties Co‑operative Ltd) v The Forest of Dean District Council [2007] EWHC 1714; R (Wall) v Brighton and Hove City Council [2005] 1 P&CR 566 and most recently R (Tratt) v Horsham District Council [2007] EWHC 1485 Admin, a decision of Collins J.  I was assisted by Mr Harwood by his showing me, in each of those cases, the reasons which were being said to be inadequate.  Collins J said at paragraph 28 in Tratt:

"It may be that in an entirely straightforward case where there have been no objections to the relevant application (and that may well be often the situation) it is unnecessary to do more than to state that the proposal was consistent with the plan."

He also says:

"But it is a dangerous approach for Councils to make.  It lays them open to claims that insufficient reasons have been given and it would be prudent and sensible in all cases for Councils, and obviously for officers in making their reports, to bear in mind the need that summary reasons must deal in summary form, with the substantial issues which have formed part of the consideration of the planning application..."

That is of course not to say that the writing of outline or full planning permission grants is suddenly to become like the writing of a judgment.  It seems to me clear that what is needed is sufficient in the approval to make it clear why the planning permission has been granted with conditions. 

4.       In this case Mr Harwood has referred to the terms of the planning approval which are as follows, in the material paragraph: 

"16.  This decision to grant planning permission has been taken having regard to the policies and proposals set out in the Breckland District Local Plan adopted September 1999 summarised below, and to all relevant material considerations, including Supplementary Planning Guidance." 

That, particularly bearing in mind the views of Collins J in Tratt, is not itself sufficient.  It continues:

"ENV.22 Proposals for farm diversification will be permitted subject to criteria."

In the Tratt case all that was given was a reference to the relevant policy.  That was similarly the case in Wall.  In this case, however, what is spelt out is what is drawn from that policy, which states unequivocally that it is farm diversification which will be permitted, subject to criteria; and there is then further reference to another policy, and again to what is drawn from that policy, ENV.31, namely the conversion of rural buildings to non‑residential uses will be permitted subject to the building being of permanent and substantial construction, being in keeping with their surroundings and being capable of conversion without major or complete reconstruction.  It would obviously have been more helpful to Mr Fookes' case if the wording had been slightly different, namely if it had said in terms ‘having considered the terms of ENV.22, whereby if the proposals are for farm diversification they can be permitted, we are satisfied that this is a proposal for farm diversification'.  But this was plainly what they concluded. That was the major issue before the Council, and they were resolving it in favour of the applicant, subject to conditions which are set out in the planning permission, particularly relevant being those as to noise; there were also conditions or considerations as to traffic, highway considerations which have not been the subject of any challenge before me. 

5.       I am satisfied that that is indeed what was the nub of the planning application and of its grant.  This was an application which was carrying on alongside other more substantial applications in relation to other buildings on the farm of the interested party, which indeed went to an inquiry in June 2007 whose fate I have not yet heard.  But in relation to this one particular building for which they were given permission, it was simply that an effectively disused barn be used for the purpose of separating hemp, some of which was to come from the farm and some from outside.  This was a matter which plainly needed permission for change of use, but which the defendant Council was entirely satisfied was farm diversification within ENV.21 and ENV.22.  I am satisfied that the reasons, albeit exiguous, are sufficient to comply both with the need to indicate to a third party what the reasons for the grant were and also to comply with the Regulations. 

6.       Hand in hand with this first point is the second ground, which is a new ground not before the Deputy Judge, namely that there was inadequate or no consideration of another policy, ECO.5.  This is put forward on effectively aWednesbury unreasonable basis, or simply an unlawful failure to consider local plans and policies.  It is put by reference to the officer's report which was before the meeting of April 2007 which first considered the planning application and repeated in almost identical form before the meeting of May 2007 to which that consideration was adjourned.  The relevant passage of the officer's report at paragraph 6 was as follows: 

"POLICY

Camp Farm is situated outside any area allocated for development.  It falls within a designated area of Important Landscape Quality.  Relevant policies in the Breckland District Local Plan (1999) include Policies ENV.1, ENV.22, ENV.31, EC0.3, EC0.5 and TRA.5."

Then it continues:

"... Policies ENV.22 and ENV.31 deal respectively with farm diversification proposals and the reuse of rural buildings.  Policy ECO.5 seeks generally to resist proposals for new commercial development in the open countryside and outside allocated sites."

Mr Harwood criticises the form of language by the officer there, because in fact ECO.5 required special circumstances before they could be development falling within its ambit, but I do not see that the way that was framed is inappropriate.  What he, however, says is that, the officer having asserted that ECOS/5 among others was a relevant policy, there is no mention of it in the approval or in its reasoning.  Mr Harwood also points to one of the statements made in support of the various planning applications that the interested party was making in which at paragraph 7.12 the writer says:

"I conclude therefore that local plan policies ENV.22 and 31 and ECO.5 are fully complied with."

He submits that at least for permission purposes it is enough if there is no reference in the planning permission to a policy which the council's own officer asserted to be relevant. 

7.       I am entirely persuaded by the submissions in this regard of Mr Fookes who has produced important further evidence, which shows that in fact ECO.5 is to be regarded simply as a mirror image of ENV.21 and 22.  In the Breckland District Local Plan, as adopted in September 1999, under the heading of ENV.21 there is a specific heading for farm diversification, in which it is made clear that there is a recognised need to foster the diversification of the rural economy in order to open up wider and more varied employment opportunities.  ENV.22 specifically addressed the fact that proposals for the diversification of farm enterprises and associated change of use of agricultural land would be permitted on certain provisos.  ENV.31 is not material in this regard. 

8.       It is quite clear that, in the similar consideration in the Plan of ECO.5, which did indeed specify that industrial/commercial development outside settlement boundaries would be granted only in exceptional circumstances, there was a specific saving for farm diversification and conversion of rural buildings:

9.       "2.3.33. Changing agricultural practices and crop surpluses have resulted in many farm buildings no longer being required for their original purposes.  In order that farm enterprises may remain viable, many landowners/farmers seek alternative forms of income through diversification." 

10.     It is plain that if the development in question fell within the definition of farm diversification, it would simultaneously qualify for ENV.21/22 and fall outside the clawback of ECO.5.  Thus when the officer was referring, rightly, to ECO.5 and ENV.22 he was referring to two reverse sides of the same question.  That question was then resolved by the defendant Council in favour of the interested party.  I see no doubt at all that ECO.5 was considered as part of the inevitable thinking process which led to approval being granted under and pursuant to ENV.21 and 22.

11.     The third ground that is put forward is once again a new ground not before the deputy judge and it is, shortly put, this:  namely that Mr Harwood submits that, even on the basis of the evidence produced to the defendant by the interested party, the interested party is never going to be able to comply with the terms of the condition as to noise level laid down in condition 9 of the planning permission.  I do not agree that even if he is right as to this that means that the planning approval is unlawful or in some way improperly obtained.  This conditional approval was granted on the basis of the evidence before it, and if as a result the condition that has been imposed is one that is impossible for compliance by the interested party, that is to their detriment, and indeed to the advantage of the claimant because it means that this will never in fact eventuate, because there is, as Mr Harwood accepted, an anticipatory clause which will prevent commencement of use unless there is compliance with this noise level, which the claimant Council thinks the interested party will never be able to comply with.  If so, as I have indicated, then the interested party will not be able to take up the condition.  Condition 8 of the approval provides that prior to the commencement of the use hereby permitted a detailed scheme of noise control measures shall be submitted to and approved in writing by the Local Planning Authority.  I have no doubt that the defendant Council will take note of what has already been said by the claimant Council, and of course the claimant Council will be free to put in any further submissions it wishes, and that if the claimant Council is correct there will not be a reasonable way in which the defendant Council will be able to give approval to the detailed scheme of noise control measures without which these cannot be commenced.  I have no doubt therefore this is not a ground for challenge to the grant of approval.

12.     The fourth ground relates to the question of environmental impact assessment.  It is common ground that if this development fell within Schedule 2 of the Town and Country Planning (Environmental Impact Assessment) Regulations (England and Wales) 1999 then there ought to have been a screening opinion in relation to the impact of the proposed activities.  The defendant Council concluded that it did not fall within the schedule.  At the relevant time the claimant Council was urging that the use fell within paragraph 1 and/or paragraph 8 of the regulations.  It is no longer asserted that the activities fall within paragraph 1.  However, belatedly and for the purposes of today's hearing, an alternative suggestion of paragraph 10 has been put forward under the heading "Infrastructure Projects (a) Industrial Estate Development Projects" and that is on the basis that the area of the development exceeds 0.5 hectares.  This particular barn has only a floor space of 0.3799 hectares and therefore is less than that area, but the claimant relies upon the fact that the entire area, including the other premises for which permission has not been given, subject to the enquiry, is a much larger area. 

13.     I am however satisfied that so far as this application is concerned, for which approval has been given, it was not an industrial estate development project.  This was an agricultural building which was to have change of use so that it could be used for a particular process, and I am entirely satisfied that there is not the beginning of an arguable case that paragraph 10(a) applies.

14.     The argument as anticipated from the skeletons and indeed as put forward at the time revolved around paragraph 8(b), namely under the heading "Textile, leather, wood and paper industries" ‑ the suggestion is that this was to be a plant for "the pre‑treatment (operations such as washing, bleaching, mercerisation) or dying of fibres or textiles".  What is said is that hemp is or may be a fibre, and that the process which is to be carried out in the barn is one of pre‑treatment of that fibre.  I have been taken to the various pieces of equipment which may be present at the premises.  No evidence has been put in by the claimants.  The only evidence, and it is persuasive evidence, is that of Mr Stuteley who describes the process in paragraphs 5 and 9 of his witness statement.  What he says is this:

"5. What is proposed to take place at Camp Farm is the separation of the harvested hemp straw into its constituent elements.  This will be done mechanically.  When harvested, hemp has two elements: the fibres, which sheath the outside of the stem, and a harder, woody stem (known as 'shiv') which forms the core of the hemp plant. The fibres and the shiv are separated mechanically and then graded and bailed for transportation away from Camp Farm.  The bales will go to a variety of operators for processing.  That processing will depend upon the development markets which require the hemp but processing beyond separation and grading by length will not take place at Camp Farm. ...   

9.  Apart from separation, no treatment or pre‑treatment of the hemp will take place at Camp Farm.  No chemicals will be added to the neutral hemp straw.  There will be no mercerisation [which he explains], wet or dry; nor ultra‑violet treatment of the hemp; nor any washing of the raw hemp straw.  It is simply a mechanical process involving the separation of the fibres from the shiv that would take place within Building 10." 

I have no doubt whatever that that does not amount to pre‑treatment. What that amounts to is what it says, namely the gathering in and delivery of a product and its separation into different forms good, bad or indifferent.  There is no pre‑treatment, on any kind of understanding of that word, which is carried out or is intended to be carried out to that natural product.  There is no arguable case that this falls within the schedule. 

15.     The fifth ground was one which is largely one of fact and impression, namely an assertion of inadequate consultation so that there was not a fair hearing (as it is put) of the objection by the claimant council in respect of the adjourned hearing in April, the further hearing on 21st May or the subsequent planning approval given on 30th May.  I have read the accounts given by both sides of the history of the matter by reference to the correspondence.  There is no witness statement produced by the claimant to indicate any respects in which anyone on their side was disabled by what occurred, nor any indication as to what further information would have been able to come forward if more time had been given.  I am satisfied that on the evidence before me there is no arguable case at all under this head. 

16.     Finally, I come to the sixth ground which arises out of notes taken by someone on behalf of the claimant council.  I had mistakenly thought that these notes were some kind of official document, but in the event it has been indicated by Mr Harwood that he does not know who took them ‑ it wassomeone on behalf of the claimant at the meeting of 21st May.  I am unable to regard them as necessarily accurate in those circumstances.  There is no witness statement from anyone on the part of the claimant as to their accuracy and they may well be wholly inaccurate.  What they say in material part is this.  First of all the Chairman is recorded as saying:

"I hear what you say, but if the application goes to appeal and is approved there will be no conditions attached." 

That is a wholly unlikely matter for any Chairman to have said, because he would know that conditions were bound to be imposed on any approval, never mind one granted on appeal.  The likelihood is that something along the lines were said and if said would have been perfectly properly said, namely: "If we take the opportunity to impose conditions here we will be able to impose conditions which we regard as suitable.  If it goes up to appeal we will have no control over what conditions may be imposed and they may not be ones that we will be satisfied with".  If he said that, there would be nothing wrong.  I am not all satisfied that he did not say that, certainly in the absence of any evidence whatever from the claimant.  There is then a note of what a member of the council is said to have said, namely:

"In view of what the chairperson has said, I am mindful that if Hemp goes to appeal no conditions will apply if approved.  Therefore it seems we are the final arbiters in this case." 

As Mr Fookes has submitted, if there really had been some kind of discussion along these lines it is wholly likely that the officers who were present would have put the position clearly.  I see nothing, apart from these unofficial notes, which suggest to me in any way whatsoever that there was not a proper consideration of this application for planning permission and of the grounds for granting it.  Even if the defendant council did regard itself as being the final arbiter, they imposed conditions that they considered were appropriate and they granted approval on the basis that they were satisfied that this was farm diversification.  I see no basis on which I can hold that it is arguable that some improper or irrelevant consideration caused them to err in law. 

17.     In those circumstances, all these grounds are dismissed.

18.     MR FOOKES:  My Lord, I come to the inevitable costs schedules.

19.     MR JUSTICE BURTON:  Yes.  Is it more than £1,500, Mr Fookes?

20.     MR FOOKES:  My Lord, it is.  There are two schedules.  I do not know whether you have them.  (Handed). 

21.     MR JUSTICE BURTON:  One is the acknowledgment of service and one is the hearing.  Is that it? 

22.     MR FOOKES:  Yes, absolutely.

23.     MR JUSTICE BURTON:  Which is which?

24.     MR FOOKES:  My Lord the one that says "date of oral hearing", it is pointed out to me, is today and the other one "costs relating to the grounds of response" ‑‑

25.     MR JUSTICE BURTON:  Is the £22,000 inclusive of the £11,000 or is it on top of it?

26.     MR FOOKES:  The 22,000 is the interested party's costs relating to the response and as the defendant adopted the interested party's response there is no costs there obviously.  The hearings for the defendant, and there is no duplication, just one set for today.

27.     MR JUSTICE BURTON:  So the £22,000 is the consideration of the acknowledgment of service and the £11,000 is the hearing?

28.     MR FOOKES:  My Lord, yes.

29.     MR JUSTICE BURTON:  Why should I grant the costs of the hearing?

30.     MR FOOKES:  Because if one goes back to the tests there are a number of issues and I think probably the principal one is we had to be here because the amended extra grounds came with a skeleton argument on Wednesday.  There was no other way ‑‑ and that is of course why the defendant applied to join as well ‑‑ there was no other way that they could be dealt with in that time.  Normally one would have 21 days to answer.  The only way we could possibly deal with those was to turn up, otherwise they would have gone by with nothing.  So that is the rather special circumstance in this case and in my skeleton I explained there has been no reason given why that came so late, so late after the notice of the renewal, so late after the start of the case.  The second point really is that we have, in the light of theEwing case, joined together, which is what Carnwath LJ said the parties should do to save costs and even though we are not necessarily always ad idem my two different clients, and certainly not in the outstanding appeal, that is another good reason.  Lastly, I did put at the end of my skeleton ‑‑

31.     MR JUSTICE BURTON:  This is a reference to Mr Buxton's letter.  Is that right?

32.     MR FOOKES:  What lay behind it, and I do stress that because you can see why it was done.  No doubt about it that this is a tactical manoeuvre here, particularly borne out by the fact that all the business about noise and the report that had been obtained and put to the Council was not spoken to or produced at the five day planning enquiry.  As I said before ‑‑

33.     MR JUSTICE BURTON:  Which bits?

34.     MR FOOKES:  This is the report on noise which the claimant has put in the bundle and which came apparently from an officer of the neighbouring authority.

35.     MR JUSTICE BURTON:  I am not familiar with this. What is this?

36.     MR FOOKES:  My Lord, it is all the detailed points that go to the noise argument.

37.     MR JUSTICE BURTON:  I am sorry, noise, I misheard you.  None of that was put.

38.     MR FOOKES:  The first time we saw it was when I opened up this bundle.  I think the interested party saw it, but it was not mentioned by anyone in five days of inquiry so it was nothing to do with the parish council's case at all.  Actually in the bundle Mrs Jolly set it out at page 353.  She is not a parish councillor, she is probably speaking for them ‑‑

39.     MR JUSTICE BURTON:  Page 353?

40.     MR FOOKES:  Two pages.  These are the points that were put to the committee and when one looks at them ‑‑

41.     MR JUSTICE BURTON:  This was by the council?

42.     MR FOOKES:  This was put by Mrs Jolly for the claimants to the council at the time of the meeting on 21st May.  These were her points and they bear very little resemblance to the points that have been argued in this court that we have had to come here to deal with.

43.     MR JUSTICE BURTON:  Yes.  Well, Mr Harwood, at least you are fortunate that you are not being faced, as the claimant was in the last case, with two lots of costs; there is only one.  What do you say about, first of all, the £22,000 on the acknowledgment of service?

44.     MR HARWOOD:  Quite a lot, my Lord.  First of all, it is not actually the cost of the acknowledgment of service, it goes beyond that.  If my Lord turns in the supplementary correspondence bundle to page 14, we find a costs schedule, which is under cover of a letter at page 13, which gives the interested parties costs of the acknowledgment of service at £17,000.

45.     MR JUSTICE BURTON:  So there is another £5,000 on top.  Where does that come from?

46.     MR HARWOOD:  Well, good question, my Lord.  It seems putting the two documents together, there is an additional attendance upon the client.  There is a little additional attendance on the defendant.

47.     MR JUSTICE BURTON:  If we are only talking about the difference between 17 and 22, I, as you heard earlier, I do not agree, I rarely agree with summary costs orders because I think everyone needs time to work out what is fairly due and one may give too much and one may give too little, I would be minded to make an interim costs order which is less than £17,000, so that you can sort all that out on a future occasion.  But the principle of the acknowledgment of service is all right, is it not?

48.     MR HARWOOD:  My Lord, here we have acknowledgment from the interested party not from the council, the interested party does not have to take part, and what we have is not summary grounds for resisting the application, what has been put in and the point is made by the court in Ewing, goes well beyond summary grounds.

49.     MR JUSTICE BURTON:  All the better, I do not want to discourage that.  I find it, as you can imagine, enormous help on a paper application to have the more the merrier.

50.     MR HARWOOD:  My Lord, what the Court of Appeal has said in Ewing, and I pass it up if it is of assistance (handed).

51.     MR JUSTICE BURTON:  Whatever the Court of Appeal said I look forward to seeing, but I know from experience that you risk sitting as a judge on a paper application making a decision without having the full facts before you which can be a very far reaching one if you give permission in a planning application and it gums up the works for months, perfectly properly no doubt.  So the more one is informed on a paper application the better.  Can I look at this.  Is this a Court of Appeal judgment? 

52.     MR HARWOOD:  The Court of Appeal in Ewing, my Lord. 

53.     MR JUSTICE BURTON:  What do you want here?

54.     MR HARWOOD:  Particularly paragraph 43 in the judgment of Carnwath LJ where he draws the distinction between summary grounds, contrasting them, detailed grounds for contesting the claim and supporting written evidence.

55.     MR JUSTICE BURTON:  I can imagine that if somebody serves an entire pantechnicon of a case you are going to get up the judge's nose apart from anything else, but that was not this case.  This was just a very full defence, was it not?

56.     MR HARWOOD:  My Lord, it was a 20 page defence.

57.     MR JUSTICE BURTON:  Yes, I have seen skeleton arguments considerably longer than 20 pages, still described as skeletons.  Anyway, there it is.

58.     MR HARWOOD:  Yes, my Lord.

59.     MR JUSTICE BURTON:  You can sort all that out on an interim, on a detailed assessment.  You can say they spent far too much money on it.

60.     MR HARWOOD:  My Lord they had two partners acting in the case, both at over £200 an hour.

61.     MR JUSTICE BURTON:  Sort all that out on an assessment, but what is wrong with the principle of an order on the acknowledgment of service?

62.     MR HARWOOD:  My Lord, it is taking perhaps the easy way of cutting through the scale of this process because an acknowledgment of service bill of £17,000 has been produced, that is very much in excess, my Lord will notice, of the sums being dealt with on the case earlier today and the point that I would say being it was a commercial judicial review, but this is a case where the interested party and the defendant is very familiar with what was going on because they were seeking a planning inquiry at the same time, so the costs really are completely out of scale.

63.     MR JUSTICE BURTON:  You are still addressing me on quantum.

64.     MR HARWOOD:  My Lord, the point I am ‑‑

65.     MR JUSTICE BURTON:  If you are attempting to bring me down on what the interim payment ought to be I could understand that.

66.     MR HARWOOD:  My Lord, the point I am making is that this is a case where there has been a huge amount of correspondence coming from the interested party.  There were four letters on Friday.  There have been five letters, four letters and one email in course of this matter, complaining about us, communication from email.  If this matter is pushed in the direction of detailed assessment no doubt further costs and correspondence ‑‑

67.     MR JUSTICE BURTON:  There can always be agreement short of detailed assessment, I am sure.  You are inviting me not to send it to a detailed assessment, are you?

68.     MR HARWOOD:  Yes, my Lord and I invite my Lord to take the view that in situations where what is being sought for the acknowledgment of service is so excessive and that the sum that would be due for acknowledgement of service really is quite large, particularly as the EIA issue took most of the time in the documents, had been heavily debated in the correspondence between the various parties and ‑‑

69.     MR JUSTICE BURTON:  Let us come on to the costs of the hearing.  We are talking here £11,000.  Is that right. Although it may be of course that if you are right that £4,000 of the £21,000 should not be acknowledgment of service costs then maybe an extra £4,000 should come into the hearing.  What is the position Mr Fookes?  If I knock off £4,000 because you settled your acknowledgment of service schedule on 9th July at £17,000, if there is an extra £4,000, if it has been spent, it looks as though it was not spent on the acknowledgment of service but was spent on the hearing?

70.     MR FOOKES:  That sounds as if that might be right. 

71.     MR JUSTICE BURTON:  So if I take the two together and regard your claim as £17,000 for the acknowledgment of service, your claim for the hearing is actually going to be £15,000 if it ever gets to be looked at.  Anyway, it looks like it.  On you go.  Whether you are looking at £11,000 or £15,000, what about the principle of‑‑

72.     MR HARWOOD:  My Lord, the basic principle, as my Lord knows, is that normally costs are not awarded, that is in the Practice Direction.  There is no reason for a different view here.  The attendance by the interested party and council was not due to the amended grounds.  The interested party indicated well before then what Mr Fookes' availability was.  We were told by the council, or by Knights on behalf of the council, that the council were attending on 2nd October, Tuesday last week.  They did not at that stage have the amended grounds that we were thinking of adding to the grounds.  So my learned friend is not correct to say that the reason counsel is turning up is because there were amended grounds.  My Lord this is not a case where a hopeless challenge has been pursued.

73.     MR JUSTICE BURTON:  What about the point that it appears that you put forward your objections on a wholly different basis and not one that is home grown - from that which you ran below, so to speak?

74.     MR HARWOOD:  Well, my Lord that is simply not right.  The points being taken before the council were on noise and at page 353 we see that particularly reference to night working which is the point that is behind ground 3.  At 353 the parish council said: "... this application should be rejected, as it is industrial development outside the settlement boundary."  That point implicitly is what is within ECO.5.  The question of whether there is adequate time to consider the material was taken as my Lord has seen by the Parish Council and my solicitors prior to the meeting.  The EIA point was taken there.  The question said at the meeting obviously arises out of the meeting and my understanding of the inquiry was that it ran for, I was told, four days.  Questions were put of matters including noise ‑‑

75.     MR JUSTICE BURTON:  It is difficult to see ‑‑ what is suggested is that there is some kind of collateral purpose and normally you have a situation in which, as in the last case, there were rival competitors for big bucks in terms of commercial developments, and that the application was pursued, however hopelessly, in order to use every opportunity to try and grab that commercial opportunity.  That cannot really be said in your case.  I find it very unclear why your client has pursued this.

76.     MR HARWOOD:  The Parish Council has pursued it because it is concerned about the proper planning of its area, and this is a site within this area, and concerned about the effects of development in this area.  The parish council therefore is bringing proceedings to seek to quash a planning decision within this area to which it has objected which it considers to be wrong, both wrong as to the outcome, which is not a matter for this court, and wrong as to the law, which is a matter for this court.  It is quite a conventional situation.  Parish councils do quite often bring challenges to planning decisions and in a similar way my Lord district councils and other local planning authorities will challenge the Secretary of State to make planning decisions in the area to which they object.  Perhaps just to pick up one final document, at page 347, that is a letter from Richard Buxton solicitors.

77.     MR JUSTICE BURTON:  This is one they have made a fuss about. I am not sure I was very moved by this. If you are addressing me in order to try and draw the sting from it I was not moved.

78.     MR HARWOOD:  My Lord, I am grateful.  The lawyer is saying well we make legal points.  The parish council of course is making the points on the merits. 

79.     MR JUSTICE BURTON:  Anything in reply?

80.     MR FOOKES:  One point, if I may.  There is a letter, I do not think it is on your file, from Mr Buxton to the defendant, to the local authority, saying: "We find this a surprising position for a responsible defendant to take, leaving proper consideration of the matter to the hearing stage, and we therefore reserve our position on the question of relevant costs."  In other words there was criticism from the solicitors for the claimant of the local authority for not having filed the acknowledgment of service and leaving it to the hearing.  That is one of the reasons why the local authority decided to get involved and we submit at the oral stage.

81.     MR JUSTICE BURTON:  Can you just show me that letter again?  What do you say about that?

82.     MR HARWOOD:  It is 19th July.  It is in the bundle.  It is page 15 of the supplementary bundle.  It is dealing with a letter from the council.

83.     MR JUSTICE BURTON:  Are you not pushing them into taking a position in the case?

84.     MR HARWOOD:  No, my Lord.  What this letter is doing is simply responding to the various comments made to the court and saying, well, look, we are surprised to find the council saying ‑‑ my solicitors are extremely experienced and quite surprised to find the council saying we are not going to say anything at the permission stage, we will leave it until later on.  We are making that point in support of our argument that the matter was arguable.

85.     MR JUSTICE BURTON:  I propose to make an interim order in respect of the costs of the acknowledgment of service which as I understand it are all the costs of the interested party rather than the defendant in the sum of £12,500 with the balance to detailed assessment.  In respect of the costs of the hearing, I propose to make an order limited to £2,500 in favour of the Breckland Council and nothing in favour of the interested party, on the twofold basis (1) that late points were made by the claimant which required to be dealt with by the defendant ‑ I am thinking in particular of the noise allegation which was one with which the defendant was particularly involved and also the letter of 19th July which apparently criticised the defendant council for not having taken a position.  I do not conclude that there should be anything more than a contribution towards the costs of the hearing and that therefore is not a question of interim order, that is a final order of £2,500 and no order in respect of the costs of the interested party.

86.     MR FOOKES:  My Lord, I think we probably ought to ask you formally in order for the defendant to be allowed to put in its acknowledgment late.  That was my preliminary application which we left to the end really.  The second thing is if there is going to be an application to the Court of Appeal I wonder if I ‑‑

87.     MR JUSTICE BURTON:  We have not heard yet.  Are you going to do that?

88.     MR HARWOOD:  My Lord, we will.  The position is it is dealt with by CPR 52.15 which first of all means that it is a matter of applying to the Court of Appeal rather than applying to your Lordship to appeal your Lordship's decision.

89.     MR JUSTICE BURTON:  Yes, that is probably why Mr Fookes has leapt up because no doubt he is going to ask me to abridge any time.

90.     MR HARWOOD:  It is a seven day period in any event.

91.     MR JUSTICE BURTON:  Unless I so order.  I ordered 14 days in this morning's case. 

92.     MR FOOKES:  I thought it was a month.

93.     MR HARWOOD:  It is CPR 52.15.  Paragraph 1: 

"52.15 (1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.

(2) An application in accordance with paragraph (1) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review..."

94.     MR JUSTICE BURTON:  In what period?

95.     MR HARWOOD:  Application must be made within seven days of the decision.

96.     MR FOOKES:  Just to prove I can learn something I am learning new tricks as I go along.  I shall now go and pass on the information to my learned Head of Chambers.

97.     MR HARWOOD:  My Lord, we would have seven days unless ‑‑

98.     MR JUSTICE BURTON:  You are not asking for me to extend the period.  

99.     MR HARWOOD:  No.  I am not going to ask to extend that period but can I ask first of all that a transcript be expedited?  My Lord, whilst it is possible to put in grounds of appeal about ‑‑

100.   MR JUSTICE BURTON:  I think I am going to say 14 days because if you want to see the transcript I think I am sure we can assist you in getting the transcript within a week or so, so I shall say 14 days.  Do not delay dependent on getting a transcript because you heard what I said.  I think you know the grounds on which I refused.  So there is no need to wait.  On the other hand if you do make an application the Court of Appeal will want to see what I said.  So I shall say, unless you have anything Mr Fookes to say, I do not think ‑‑ you are awaiting, are you not, the outcome of the ‑‑

101.   MR FOOKES:  That was the reason I was asking that if it needs to be done to do it as soon as possible because apparently the Secretary of State is holding up his decision on all the rest of the inquiry, pending whatever may happen here.

102.   MR JUSTICE BURTON:  You can tell him what has happened here and I can indicate that in my judgment there are no grounds for an appeal, so if I were being asked for permission to appeal, which I am not being, I would conclude that there is no ground to grant permission.  But that must be a matter for the Court of Appeal.