IN THE HIGH COURT OF JUSTICE NO: CO/1684/99
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Tuesday, 14th September 1999
B e f o r e:
MR JUSTICE SCOTT BAKER
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R e g i n a
NORTH WEST LEICESTERSHIRE DISTRICT COUNCIL
EX PARTE MOSES
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Computer-Aided Transcript of the stenograph notes of
Smith Bernal Reporting Limited,
180 Fleet Street, London EC4A 2HG
Telephone No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR C GEORGE QC and MS J CLAYTON (instructed by Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant.
MR M CHAMBERLAIN (instructed by North West Leicestershire District Council, Legal Services, Leicestershire LE67 3FJ) appeared on behalf of the Respondent.
MR J HOWELL QC (instructed by Pinsent Curtis, Birmingham B4 6BH) appeared on behalf of the interested party, East Midlands International Airport Limited.
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J U D G M E N T
(As approved by the Court)
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Tuesday, 14th September 1999 JUDGMENT
MR JUSTICE SCOTT BAKER: Until 4th August of this year Miss Moses lived close to the end of a runway at Kegworth airport, which the Airport Authority had been given planning permission to extend. She was concerned about noise and safety and launched a judicial review application. She says that no environmental assessment was made before permission was granted in 1994, therefore permission should not have been granted, and her rights have been infringed. She also complains that there was a further application before the Planning Committee for a yet further extension and that in considering that, the committee should have gone, or ought to go, into what had happened in 1994.
No-one could doubt that she had a sufficient interest to bring proceedings for judicial review up until 4th August, but on 4th August, she moved to Loughborough, which is some 6 miles away. English law says that the court has to be satisfied that an applicant has a sufficient interest at the moment when leave to apply for judicial review is, or otherwise would be, granted. It is a question of jurisdiction. The County Council and the East Midlands International Airport say that because she has moved she no longer has a sufficient interest. On the face of it, it is a simple question: whether she has or has not such an interest, but that apparently simple question has been argued by counsel for the best part of 2 days. Mr George QC, for the applicant has relied on numerous authorities. He argues: one, that she has a sufficient interest in English law; two, that if she does not there is a breach of Community law and she ought, in any event, to be allowed to proceed.
This matter comes before the court as an application for permission to move for judicial review. It is opposed by the proposed respondents for a number of reasons, including delay and lack of merit as well as lack of sufficiency of interest.
Yesterday morning, at the outset, Mr George submitted that the question of sufficiency of interest should not be considered in isolation from all the other matters. Mr Village, for the local authority, and Mr Hull QC, for the East Midlands International Airport, submitted that it could be considered and ruled upon as a discreet and preliminary question, and that to do so would significantly shorten the application and the time taken by the court.
I decided to hear the parties first on the question of sufficient interest because if I reached the conclusion on this issue adverse to the applicant, that was the end of the matter. I indicated at the outset that I would keep in mind Mr George's submissions, so that if I felt the course upon which I had embarked was at any stage inappropriate, then the case could proceed on the full application for leave.
I have come to the conclusion that I can deal with sufficiency of interest on the particular facts and circumstances of this case, as a discreet and preliminary question. I should add that in doing so and in reaching that conclusion, I note that Mr George has spent a very considerable period of time going into not only a number of authorities, but also touching on the broader facts of the case. Accordingly, the issue that I have to decide has been set very firmly in the context of the facts of the case as a whole.
At the heart of the applicant's complaint lies a 1994 planning permission for an extension of a runway at the East Midlands Airport. In exhibit RNB1E there is a plan. The plan shows the runway that existed pre-1994, the proposed extension and the proposed further extension. The purpose of extending the runway is to enable planes that will be travelling to and from the Pacific coast to take off and land.
The 1994 permission is said to have been wrongly obtained because it was obtained without an environmental appraisal or statement. The applicant wishes the local authority to revoke or modify the 1994 permission in conjunction with considering the 1996 application. She tried to get the local authority to give a timetable for doing so. She did not succeed.
In the Form 86A, she seeks the following relief: first of all, an order granting an extension of time to bring the application in respect of heads 2, 3 and 4 of the relief sought. I would add that there are clear time problems with regard to the 1994 consent, and an application for judicial review. Second, a declaration that the 1996 consent is unlawful. Third, a declaration that the 1994 consent is void and of no effect. Fourth, an order of certiorari quashing the 1994 consent.
She then goes on to what, in a sense, are separate heads of relief. Fifth, an order of certiorari to quash the District Council's decision that it would be premature to consider the revocation or modification of the 1994 consent pursuant to their powers under the Town and Country Planning Act 1990. Sixth, an order of mandamus to require the District Council to consider the revocation or modification of the 1994 consent pursuant to their powers under the 1990 Act.
I mention specifically the relief sought because it is not entirely clear what decision is being challenged, or whether the local authority have done, or failed to do, anything which is in practical terms open to challenge. The applicant's original case is set out at paragraph 23 of her first affidavit, page 23 of the bundle, in these terms:
"3. Although many other people in Kegworth, and in other communities are affected by their having an airport as a neighbour, as an individual I feel justified in taking steps to see that my rights under European law are upheld.
4. I first lived in Kegworth from the age of three in 1962 and left to live elsewhere at the age of 17. [I interpolate that that would be in 1976] East Midlands Airport had by then been operating for about ten years. However it was so little used, and by smaller aircraft, it was not a real nuisance at that time.
5. On returning to Kegworth five years ago [the end of 1993] I was allocated my present house on the corner of Thomas Road on the Council estate high up on a hill overlooking the village to the north and east. It is more or less in line with the eastern end of the runway at East Midlands Airport. Because of the height of the hill, aircraft are that much lower when they fly over, particularly on the usual landing approach. The airport is much busier than when I previously lived in Kegworth, and the aircraft are more frequent, much larger and noisier. Once I am woken up at night, it is very difficult to go back to sleep with things as they are.
6. My three children are aged are 15, 14 and 7. Because the two boys, Andrew and Chris, were 10 and 9 when we moved in, they have grown accustomed to the increase in noise and, being active, both are able to sleep through most of the low approaching aircraft, and the higher ones when they take off over us to the east. We also hear aircraft beginning to take off in the usual direction, towards the west.
7. My seven-year-old daughter, Rebecca, continues to be terrified of the large aircraft coming in to land, particularly in summer when a massive, fast-moving dark shadow flits across houses, hedges, gardens and the road. I found my fear and apprehension increased when feeding her as a baby, particularly at night, and I am sure Rebecca sensed this. Compared to the boys, she was woken by low-flying aircraft a lot more and is much more unsettled.
8. My sister lives at 17 Thomas Road, across the road but higher up the hill. She is frightened of gardening and even getting the washing in. The only vortex damage she has had is the television aerial being turned around by a low-flying aircraft. Further up the hill, however, people have had tiles flung off their roofs. The swishing noise of the vortex is all around you, and is quite frightening at times.
9. The worst part of it all is when the aircraft engines make awful whining noises, as though the aircraft is in distress. And then you get the eerie vortex swishing all around.
10. I think all these houses should be demolished, as the hill brings us nearer the aircraft as things were. They are extending the runway at both ends now, and trying to bring it even nearer Kegworth up to the M1. This will bring airplanes even lower over us. It is being up here on a hill surrounded by other houses, just underneath the aircraft, that really bothers me. Some airplanes are lower than most - they do not all come in at the same height - and appear really massive. They seem to be slower and slink across Kegworth making extra noise. The private houses on Shepherds Walk are even higher than us, but the flight path is just the same.
11. I understand the planned expansion of the airport will mean a lot more flights, particularly by large aircraft at night. I understand East Midlands Airport are concentrating on cargo aircraft which are older and noisier than modern passenger ones. The ever-present danger of another crash will be increased by a runway extended closer and closer to Kegworth.
12. Surely residents like me should have some form of protection against these developments, especially ones that will make the existing situation even worse. I am told that European law will ensure that the development proposals are looked at properly and, if they are allowed, that proper controls will be put in place. I therefore ask the court to see that this is done."
So it seems to me that it is absolutely plain that the applicant's case was launched as a single individual and as a local resident.
There is a further affidavit, sworn on 5th September, in which she says:
"I have recently moved to Loughborough. I took the opportunity when someone who needed to live in Kegworth offered to do a house swop. I like Kegworth because that is where I grew up. However Loughborough is likely to be better for me finding work again when my children grow up and it seemed right to move now. Certainly the aircraft gave me considerable added impetus to do so. Rightly or wrongly I am frightened of a plane crashing on approach to the airport (my niece and nephew witnessed the Kegworth crash) and if one came down in the Thomas Road area we would not stand a chance."
Not withstanding her move away from Kegworth, Mr George contends that she maintains a sufficient interest in the development to justify granting leave to apply for judicial review. Her interest is, in one sense, that of the public as a whole to ensure that a runway (at what is Britain's 8th largest airport, I am told) is not extended without an impact assessment being conducted.
The question of sufficient interest leave to apply for judicial review is provided for in section 31 of the Supreme Court Act 1981.
Section 31(3) provides:
"No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the rules of court, and the High Court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
And the rule there referred to is order 53, rule 3(7). It provides:
"The court shall not grant leave unless it considers that the applicant has a sufficient interest in the mater to which the application relates."
Mr Howell points out that these provisions reflect the changes in 1977, when a host of different historical tests to justify applications for mandamus, prohibition, certiorari and so forth, were replaced by one uniform test to justify a sufficient standing to pass through the sifting process of leave to bring a judicial review application.
I pause to make a number of observations about the statute and the rule. "Has" means now, not when the applicant issued the form 86A. This, incidentally, is a renewed application for leave, leave having been refused on paper by Mr Justice Collins at a time when the applicant still lived in Kegworth and indisputably, in my view, had a sufficient interest.
Second, the matter to which the application relates: the granting of the 1994 permission without an assessment and the failure of the local authority to review or modify that consent.
Next, I observe that the applicant is an individual and brings this claim as an individual, not on her behalf and on behalf of other residents. Nor is there any suggestion in the evidence that she will now be affected by the airport operation in the light of where she presently lives, which is 6 miles away. There is no claim in the evidence that she will be affected by the operation of the airport at her new residence, no evidence that she is likely to move back to the area where she previously lived, and it should also be noted that there is no evidence that she participated in any way in the planning process as an objector. The evidence simply shows that she wanted her house demolished.
The question of whether or not an applicant has a sufficient interest is, it seems to me, one that requires a judgment of the court exercised on the facts of the case. It is to be noted that it is something quite separate from the exercise by the court of a discretion. The exercise of judgment in this situation is indicative that like cases will be decided in like manner, and that, as far as possible, there is as much certainty as the nature of the individual case permits. The exercise of a discretion is to be distinguished because within the exercise of a particular discretion, different people on the same facts may perfectly properly come to a different conclusion within the ambit of what is, nonetheless, a proper exercise of that discretion.
Mr George argues that where the matter under consideration concerns rights and obligations owed to the public at large or, as here, to a section of it, the test of sufficient standing is a liberal one and that where an applicant has no special interest, he, nevertheless, has sufficient standing to be entitled to be given leave provided he is acting bone fide responsibly and not officiously. Thus he contends it does not matter where the applicant lives. The fact that there has been a past breach of her rights i.e. on the assumption that her case succeeds, and that the grant of permission leads to continuing environmental consequences, is enough to show that she is acting bone fide and responsibly and not officiously. He contends that in this particular case, when she lived at Kegworth, her rights were breached and that is sufficient for the court to conclude that she now, subsequently, albeit living somewhere else, has sufficient standing.
Mr Howell says, in answer to this, that it is necessary to look rather carefully at the nature of the relief sought in the Form 86A and that, putting the case at its highest, it is not so much that her rights have been breached, but the local authority has failed in its obligation to ensure that the relevant environmental assessment was conducted before permission was granted. But whether a particular applicant has a sufficient interest is something which, in my judgment, depends on the facts of the individual case. It is not possible to categorise what does or does not amount to a sufficient interest in all cases, so that one could simply look up the answer to the exercise of the judgment on a list and say that this applicant has or has not a sufficient interest.
As I have mentioned, I was referred to quite a large number of authorities. An important case in this regard is Inland Revenue Commissioners v National Federation of Self-employed and Small Businesses Limited  AC 617. Lord Wilberforce said at page 630:
"There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest in the matter to which the application relates."
But Lord Fraser said at page 645:
"But the question whether the respondents have a sufficient interest to make the application at all is a separate, and logically prior, question which has to be answered affirmatively before any question on the merits arises. Refusal of the application on its merits therefore implies that the prior question has been answered affirmatively."
Lord Scarman said at page 653:
"The one legal principle, which is implicit in the case law and accurately reflected in the rule of court, is that in determining the sufficiency of an applicant's interest it is necessary to consider the matter to which the application relates. It is wrong in law, as I understand the cases, for the court to attempt an assessment of the sufficiency of an applicant's interest without regard to the matter of his complaint."
Then Lord Roskill at page 656:
"... the determination of the sufficiency or otherwise of the applicants' interest will depend, not upon one single factor - it is not simply a point of law to be determined in the abstract or upon assumed facts - but upon the due appraisal of many different factors revealed by the evidence produced by the parties, few if any of which will be able to be wholly isolated from the others."
At page 659 he cited, with strong approval, the description of Sir Jacob QC in the notes to the Supreme Court Practice, that that which was a sufficient interest:
"'... appears to be a mixed question of fact and law; a question of fact and degree and the relationship between the applicant and the matter to which the application relates, having regard to all the circumstances of the case.'"
I have found helpful the observations of Jowitt J in R v Legal Aid Board ex parte Bateman, a decision of the Divisional Court reported in , 1 WLR 711 720. He said, referring to the National Federation of Self-employed and Small Businesses' case:
"It is clear from the decision in that case that whether an applicant has a sufficient interest to maintain an application for judicial review cannot be answered in the abstract. It is necessary to consider what is the subject matter of his complaint and how he stands in relation to it, how it affects him; (see, for example, the speech of Lord Wilberforce at page 630 C to E).
The speeches tell one that the busybody, the crank or the mischief-maker does not have a sufficient interest, per Lord Scarman at page 653 G. Lord Diplock, at page 642 D, spoke of the court having an unfettered discretion to decide what, in its own judgment, on the particular facts of the case before it, is a sufficient interest. Lord Roskill, at page 658 F, spoke of the impossibility of finding a phrase that is exhaustive or definitive of the class of person entitled to apply for judicial review. Having pointed out that a direct financial or legal interest is not required but that the mere busybody is excluded, Lord Fraser of Tullybelton said at page 646:
'The difficulty is, in between those extremes, to distinguish between the desire of the busybody to interfere in other people's affairs and the interest of the person affected by or having a reasonable concern with the matter to which the application relates.'
For myself, I think that although the problem of definition is elusive, common sense should enable one to identify a sufficient interest when it presents itself. Like the horse which is difficult to define but not difficult to recognise when one sees it."
I regard that last sentence of Jowitt J as an accurate reflection of the situation.
Mr George has placed much reliance on Sedley J, as he then was, in his judgment in R v Somerset County Council and ARC Southern Limited ex parte Richard Dixon  Journal of Planning Law, 1030. I have no doubt that Mr Dixon had a sufficient interest. Neither Mr Howell nor Mr Village suggests that his case was decided otherwise than correctly on the facts, but they do say that one or two of the observations of Sedley J go rather further than the present state of the law justifies.
In R v Monopolies and Mergers Commission ex parte Argyle Group , 1 WLR 763 773, Lord Donaldson MR set out, in these words, what has often been regarded as the practical test:
"The first stage test which is applied on the application for leave will lead to a refusal if the applicant has no interest whatever and is in truth no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply leaving the test of interest or standing to be reapplied as a matter of discretion on the hearing of the substantive application. At this second stage the strength of the applicant's interest is one of the factors to be weighed in the balance."
It has been suggested in argument that this, in effect, means that all applicants who are other than meddlesome busybodies will have a sufficient interest because, as Sedley J said at page 1037 in Dixon:
"Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs - that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well-placed to call the attention of the court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the court's only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the applicant's standing will be weighed up, whether with regard to the grant or simply to the form of relief."
Then a little later that Dixon on the evidence was perfectly entitled as a citizen to be concerned about and to draw the attention of the courts to what he contended was an illegality in the grant of a planning consent which was bound to have an impact on the natural environment.
Mr Dixon was neither a busybody nor a mere troublemaker. Sedley J said that the threshold at the point of application for leave is set only at the height necessary to prevent abuse. I would prefer to put it that on locus, as on other matters that fall for consideration at the leave stage, the test is that the court and opposing parties should not be burdened with cases that are bound to fail.
An example of a case where someone, who was not a meddlesome busybody was refused leave, is Bateman. The Legal Aid Board refused authority to apply to a judge for a review of taxation. The plaintiff, who was legally aided, sought to challenge the decision by judicial review. It was held that she did not have a sufficient interest. The outcome of the taxation was of potential benefit only to her solicitor. It was held that a sufficient interest did not need to be financial, but the plaintiff's feelings of gratitude and sympathy for her solicitors did not afford a sufficient justification for her, either in her own interest or in the public interest, taking judicial review proceedings.
Nolan LJ, as he then was, said at page 714 F:
"It is common ground that in order to determine whether an applicant has a sufficient interest one must first identify the matter in which the interest is said to subsist. (See Inland Revenue Commissioners v ex parte National Federation of Self-employed and Small Businesses Limited.) In some cases, of which that case is an example, it will be necessary to decide whether the application for judicial review is well-founded in substance before determining the question of the applicant's sufficiency of interest."
Then a little later:
"In the present case, no such difficulty arises. Miss Bateman has no more interest in the subject matter of this application if it succeeds than if it fails. The validity or invalidity of Mr Joseph's arguments on sufficiency of interest is unaffected by the validity or invalidity of the Legal Aid Board decision under regulation 114."
And at 717 A:
"She is not a mere busybody ... hers is a genuine grievance reasonably asserted."
And 717 D:
"The crucial feature of the present case is that the principal, if not the only party directly affected by the refusal of authority, is the firm of Makins. No one doubts that they are well able to take care of themselves."
And 718 C:
"It would be inaccurate as well as discourteous to describe her as a busybody, but her attempt to intervene is at best quixotic and cannot be upheld."
It seems to me that just like Miss Bateman in that case, so the applicant in the present case has no more interest in the subject matter of this application if it succeeds than if it fails.
Reverting for a moment to the words of Jowitt J at page 721 D, I agree that it is easier to identify a sufficient interest than to define it. I do not think that the categories of what does or does not amount to a sufficient interest are closed. The threshold, as the authorities make clear, is low, but I would prefer to put no gloss on the words of section 31(3) and rule 53.3.7. It is important, in my judgement, not to lose sight of the purpose of those provisions, which is to ensure that those who have no real or justifiable concern about a public law decision of which they seek to complain do not take precious time from the Crown Office list or subject other parties to unnecessary cost.
Reference has also been made to a decision of Mr David Keene QC, as he then was: R v Canterbury City Council and another, ex parte Springimage Ltd  PLR 58. There is a passage in his judgment, which was not followed by Sedley J in Dixon. At page 61 F, the learned judge said:
"It seems to me to be clear that both the Fleet Street Casuals case and the Rose Theatre case distinguish between on the one hand the generality of the public, every member of which has a general interest in seeing the law obeyed and public duties properly performed, and on the other hand the person who has a particular interest in the matter above the generality. Mr Michael Barnes QC, for the present applicant, accepts that he has to bring himself within that second category of the person having a particular interest above that possessed by the general citizenry. That being so, there is, in my view, no need for him to try to show that this case comes within the description of involving a 'grave abuse of power' where some dicta suggests that it may (and I stress the word "may") be that a citizen's action could be brought."
Mr Hull points out that this was a planning case and the particular interest in that case was covered without having to go into the grave abuse of power category. Mr Howell went on to observe that, in his submission, the test promulgated by Mr David Keene QC, was an entirely appropriate one in planning cases. He points out that in planning cases, some people have a particular interest over and above the community at large, because, obviously, they are affected by the particular matter under consideration, whereas the general public is not.
As I have already observed, the applicant makes this application on behalf of no-one other than herself. Had she been living throughout in Loughborough, she would never have had any more interest in a decision to extend the runway at East Midlands Airport at Kegworth than someone living in Landsend or, as counsel graphically put it, in the Orkney or Shetland Islands.
The fact that she once had a sufficient interest, I would add, because of her location but has no longer such an interest, is not good enough for the purposes of section 31(3) of the Supreme Court Act and Rule 53.3.7 of the Rules of the Supreme Court. It seems to me unlikely that she would ever have been granted legal aid had she been living in Loughborough. As it is, she presently retains the benefit of a legal aid certificate, but so far as I can ascertain only because the Legal Aid Board has, as yet, been unable to reconsider the matter following her move in early August.
Regrettably, as it seems to me, the new situation was only referred to the Board as recently as last Friday. In my judgment, the applicant has failed to pass the threshold test of sufficiency of interest.
Leaving aside domestic law, Mr George contends that there is, putting the facts at their highest as I must in dealing with the locus point as a discreet matter, a breach of a European Directive, namely Article 10, which is to be found in the applicant's authorities volume at divider 2:
"Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty."
The court, argues Mr George, must investigate the breach; it is not good enough to say in answer that the applicant has moved away out of the locality. However, as it seems to me, section 31(3) and rule 53.3.7 are procedural provisions within the English domestic jurisdiction. The proposed respondents answer that Community law does not entitle those without a sufficient interest to litigate infringements of Community law rights. In fact, it is pointed out, a narrower test is required for an individual to have access to the European Court, and in that regard I was referred to the case of Ploughman.
Bearing in mind the principles of equivalence and effectiveness, there are, in my judgment -- and I accept the submissions of Mr Howell in particular in this regard -- no deficiencies in the domestic procedure that open up, as it were, a Community law application. (See, for example, Rewe Handelgesellshaft ELR 7th July 1981 2ECR 1805.) The Community right is no more difficult to enforce than the equivalent domestic right, nor is any Community right effectively being shut out. In my judgment, Community law does not avail the applicant anymore than does domestic law.
In reaching those conclusions, I have also taken into account Mr George's submissions that the principle of certainty is offended. It is his contention that the national rules (that is the domestic rules) on standing offend the principle of certainty if they are applied inconsistently, as he contends they will be, if sufficiency of interest depends, as he puts it, on the length of the Chancellor's foot. He also contends that the outcome of a locus application depends, and it particularly does so in this case, upon whether the hearing of the leave application takes place in July or September, because in July the applicant lived at Kegworth and by September she had moved away.
In my judgment, none of these matters undermines the question of certainty, because similar cases will be decided in similar fashion, and, it seems to me, that the rule about a sufficient interest is adequately provided for in domestic law and no disadvantage is occasioned to the applicant or to anyone else. This application therefore fails.
I would only add this: I have read the parties' skeleton arguments in respect of the wider issues on the leave application, but I have not, of course, heard full oral argument. Without, obviously, having formed any concluded view, it seems to me that, quite apart from the issue of sufficiency of interest, the applicant faced an uphill struggle on the other matters in respect of the leave application.
Finally, I mention one further matter: earlier today I declined leave to the applicant to adduce further evidence, the purpose of which was to seek to fortify her case, that notwithstanding her move, she still has a sufficient interest. The basis of the fresh evidence being that she makes regular visits back to Kegworth and on occasions stays overnight. Even had I permitted that evidence to be adduced, I would still have come to the conclusion in the light of the whole of the evidence in the case and the matter to which the application relates, that having moved to Loughborough on 4th August, at that point the applicant ceased to have a sufficient interest, and therefore I am unable to permit the application to proceed.
MR CHAMBERLAIN: My Lord, I have only one application and that is for the usual order for costs, which my learned friend, Mr Howell, tells me is now being referred to as the "millennium order"; usual order nisi, not to be brought back without the permission of the Court.
MR HOWELL: My Lord, may I also make an application? Although this is, in one sense, technically an ex parte application, as your Lordship may know, following the decision in the House of Lords, in particular in R v Criminal Compensation Board ex parte "A", the respondents have to be served where time needs to be extended because of delay in making the application. We had, therefore, to be here particularly, as your Lordship will see, because of the evidence filed for prejudice and so forth. In my respectful submission, it is reasonable that your Lordship set forth in respect of our costs as well in the circumstances of this case.
MR GEORGE: My Lord, can I refer your Lordship to the case of Lady Berkeley on costs?
MR JUSTICE SCOTT BAKER: Yes.
MR GEORGE: I ask that your Lordship be handed an application. My Lord, if I take the matters in turn: so far as the application which Mr Chamberlain makes, in the circumstances, it does not seem to me that I can resist his application in the way in which he puts it. My Lord, the fact that Lady Berkeley does open the possibility that given the breach of European law something should be deducted, I think that would go to a main hearing. Your Lordship has not had the opportunity of finding it, so I do not seek to rely on Lady Berkeley in that instance, and I would accept the order in the terms in which it is proposed by Mr Chamberlain for the first respondents' costs.
My Lord, so far as the second respondents' costs, the situation in the Lady Berkeley case was rather similar to the present except that there had been a public enquiry, and therefore it was a planning permission granted after a planning permission was sought to be quashed. It was under statutory provision rather than the order.
The issue was exactly the same, with no consideration of the environmental statement. At first instance, the second respondent appeared on the hearing and was awarded costs. The matter then went to the Court of Appeal and, unusually, costs was a particular ground of the appeal and led to the separate and lengthy judgment dealing with the costs of a second respondent. It may, therefore, be helpful for your Lordship if I turn to it.
MR JUSTICE SCOTT BAKER: Yes.
MR GEORGE: The relevant passage is at the top of page 6 at letter A in the judgment of Nourse LJ:
"I turn to the costs of Fulham Football Club [they, my Lord, were the equivalent of Mr Howell]. This question depends on an application of the principles of discretion authoritatively stated by the House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment  1 WLR 1176. I read the first paragraph of the headnote, which satisfactorily sets out the essence or their Lordships' decision:
'Although costs are in the court's discretion, in planning appeals, where the Secretary of State succeeds in defending his decision he will normally be entitled to the whole of his costs and should not be required to share them by apportionment.'"
My Lord, here, of course, the equivalent to that is Mr Chamberlain; he is the equivalent to the Secretary of State:
"'The developer will not normally be entitled to his costs unless he demonstrates a separate issue, not covered by the Secretary of State, on which he was entitled to be heard, or has an interest requiring separate representation. A second set of costs is more likely to be awarded at first instance than in the Court of Appeal or the House of Lords, and an award of a third set of costs will rarely be justified.'
Mr Hicks [that is Mr Howell in this case, an equivalent there] submits that the Club qualifies for orders for costs here and below within those principles. He has made a number of points. In regard to the environmental assessment question, he has said that the Club, having been throughout represented and fully involved at the public inquiry, was uniquely able to assist the judge as to the information available at the inquiry, in order to help him decide whether, in the absence of an environmental statement, there had, as has since been held, been sufficient information available to take its place. He has made a similar point in regard to the policy question. His third principle point is that it was recognised ahead of the hearing before the judge that the Secretary of State was unlikely to argue the question whether there had been an urban development project. The Club, on the other hand, intended to submit, and did submit, that there was no definition of that expression and, further, that the development proposed could not be so prescribed.
Putting that third point on one side, I think that Mr Hicks' submissions amount to no more than that it would be and could be expected to be, as it no doubt was, very helpful for the Club to be represented before the judge. They knew all about the inquiry, at which of course the Secretary of State had not been represented. While I am entirely clear that the Club was entitled to be represented before the judge (indeed, subject to the question of costs, their application for joinder was not resisted by Lady Berkeley), I am nevertheless unable to conclude that they have been able to demonstrate a separate issue, not covered by the Secretary of State, on which they were entitled to be heard, or an interest requiring representation."
MR JUSTICE SCOTT BAKER: Yes.
MR GEORGE: "I can see that the question of the urban development project could be described as a separate issue not covered by the Secretary of State, but that does not appear to me to have been, in the context of the case as a whole, a sufficient ground --"
MR JUSTICE SCOTT BAKER: Are you saying, no separate issue?
MR GEORGE: No, my Lord. The answer is there they failed. Although that was a much clearer case than this, this has been a whole enquiry, and one might have thought that they really were the people who knew about what had gone on there, but even so, they did not get a penny of the costs.
MR JUSTICE SCOTT BAKER: Yes.
MR GEORGE: My Lord, the only matter here is that if Mr Howell confines his application to the cost of his affidavits dealing with the question of prejudice, i.e the costs incurred and the state of the work, then, my Lord, I could not possibly resist those matters. Those matters, it is utterly understandable, it is helpful they be put in and the planning authority could not put those in. So those could have been dealt with. They filed early applications when the matter was before Mr Justice Collins, and they filed the later one. My Lord, if this application is confined to those costs, then subject to the millennium wording, I could not resist it. My Lord, any greater costs would, in my submission, be inconsistent --
MR JUSTICE SCOTT BAKER: It is all pretty academic, is it not?
MR GEORGE: My Lord, I have a duty to defend the legal aid funds, and there is no authority that one makes a different order for costs depending on the legal aid fund. I hope the same is true of standing as well, my Lord. It is entirely irrelevant here that so far as --
MR JUSTICE SCOTT BAKER: I have your point.
MR HOWELL: My Lord, perhaps the facts of Football Club are slightly different. What I say, here, is that my clients briefly have combined themselves to contract commitments of £77.5 million which has, obviously, been put at risk by this application. In my view, the costs should not be limited simply to the affidavits. We were entitled to be here; we have a separate interest from the Council. Your Lordship will recall the citation from the speech in the House of Lords, it is not simply a separate issue on which it is entitled to be heard, but has as an interest requiring separate representation. That, in my respectful submission, was the case here. We are grievously affected by this application, and we were perfectly entitled to appear, as we have today, on this matter.
MR JUSTICE SCOTT BAKER: Mr Howell, I have a good deal of sympathy, but really on a leave application it seems to me that the Council's interest and the developer's interest could have been dealt with altogether, could they not?
MR HOWELL: I say that the Council may well have a different view about a number of matters, either about the merits -- there is no necessary coincidence of interests there -- or, necessarily, about detriment. It may well embarrass the Council, I know not, if they wish to be saying how grievously affected my clients would be, bearing in mind that if the position was that leave was granted and permission was quashed, they would then have to be in a position of deciding what to do about the development, if my learned friend was right to say that it was unlawful. So, looking ahead, they might well be embarrassed by having to put those sorts of arguments forward.
MR JUSTICE SCOTT BAKER: You say it is better to get in and knock it out at the earliest stage?
MR HOWELL: Of course, my Lord. I do not think your Lordship will require persuasion of how important this is from my client's point of view, and it is clearly an interest --
MR JUSTICE SCOTT BAKER: I will give you your costs -- I think it is pretty academic anyway, but there we are -- under the usual order.
MR GEORGE: My Lord, can I just mention one matter? My friend was a double representation yesterday, and the fact that I have accepted their application -- I make it quite plain -- does not mean that even if it came to --
MR JUSTICE SCOTT BAKER: No, no --
MR GEORGE: We would resist that matter.
MR JUSTICE SCOTT BAKER: Yes.
MR CHAMBERLAIN: My Lord, there is one further matter and that is to ask your Lordship for a liberty to apply in the event of the Legal Aid Board coming to a decision in relation to the timing of the representations which were made last week. It may be that the Legal Aid Board takes the view that this was a case which should not properly have proceeded in the circumstances, and in those circumstances, we would ask for liberty to apply for a different order.
MR JUSTICE SCOTT BAKER: What sort of different order had you in mind?
MR CHAMBERLAIN: It rather depends what view the Legal Aid Board comes to; but, in any event, we would seek to reserve our position finally, until the Legal Aid Board makes its mind up.
MR JUSTICE BAKER: That will not do anybody any harm, will it?
MR GEORGE: My Lord, the fact of the matter is that there is a Legal Aid certificate at the present time, and the Legal Aid Board will do can retrospectively -- my Lord, it seems to me that it is an academic matter there, too, and therefore, my Lord, it is not necessary to have a special order.
MR CHAMBERLAIN: Assuming that it can be dealt with under the terms of the usual order, then I am quite content to proceed on that basis. I do want just to flag up the authority's position in relation to the review by the Legal Aid Board of the circumstances in which legal aid was granted.
MR JUSTICE SCOTT BAKER: I will give liberty to apply.
MR GEORGE: My Lord, may I have a legal aid taxation?
MR JUSTICE SCOTT BAKER: Yes.
MR GEORGE: Then there are two other matters; I hope your Lordship will not think it pedantic that in the judgment, when your Lordship turned to Community law, you referred to a breach of Directive, which was Article 10. I am sure my Lord did not intend it, but there is a difference between the breach of the Directive and after the Article 10 duty, and if I can just refer the matter to your Lordship.
MR JUSTICE SCOTT BAKER: I am very grateful to you. As you appreciate, this is a extempore judgment late in the day.
MR GEORGE: My Lord, the related matter was when you were dealing with the airport. I ask your Lordship to consider whether you deal with the extension of the runway at both ends. You gave very precise measurements for one end, but your Lordship did not mention that actually there is a greater extension at the other.
MR JUSTICE SCOTT BAKER: Thank you.
MR GEORGE: The other matter, my Lord, is leave to appeal. Although we have, in fact, a right to renew the application in any event, I would also seek from your Lordship leave to appeal. My Lord, there cannot be any dispute at all --
MR JUSTICE SCOTT BAKER: What does that achieve for you, apart from renewing the application?
MR GEORGE: My Lord, the effect is it gets us a longer allocation of time. Otherwise the effect is that we get allocated a 20 minute allocation of time, and, therefore, in reality there have to be further --
MR JUSTICE SCOTT BAKER: I do not think it is appropriate to give leave to appeal when there is an automatic right.
MR GEORGE: In my submission, your Lordship is perfectly entitled to. The Court of Appeal can receive these matters in two ways: either under a leave to appeal or under a renewal. In my submission, plainly here your Lordship is departing from a judgment in the Dixon case, therefore it is plainly a case which -- applying the new test, which curiously seems to be a slightly lower test for granting leave -- your Lordship ought to be granting leave because it is plainly arguable the other way.
MR JUSTICE SCOTT BAKER: Mr Howell, have you anything to say about that?
MR HOWELL: My Lord, it is an application for leave to appeal. I am not sure that I accept what my learned friend says: that he has automatic right to renew in any event, because this was effectively an inter partes hearing rather than an ex parte and that may affect the position. On the application --
MR JUSTICE SCOTT BAKER: I do not think it does.
MR HOWELL: I think that when ones look back to why he could renew it, it is because it was ex parte; but your Lordship need not be trouble with that because that is what -- if there is provided an absolute right, my Lord, Mr George is entitled to do it. Your Lordship is being asked to grant leave to appeal. The approach as indicated by Court of Appeal, most recently in the practice direction, is that your Lordship should not give leave if there is no realistic prospect of success. My Lord, in my respectful submission, there is none here. As your Lordship has indicated, Miss Moses simply does not have an interest, but that is a matter for your Lordship to decide.
MR CHAMBERLAIN: I simply adopt Mr Howell's submissions in terms, that it is not an appropriate case for leave to appeal to be granted.
MR JUSTICE SCOTT BAKER: No, I am not going to grant leave to appeal. First, because I do not think it is necessary; and second, because were it so, I do not think this would be an appropriate case. It is a matter for the Court of Appeal to decide what cases they wish to hear in the context of this situation.
Does that cover everything? Thank you.