R (Casey) v. Bradford MBC & DRAG

Transcript date:

Tuesday, September 23, 2008



High Court

Judgement type:



Underhill J

Transcript file:

Neutral Citation Number: [2008] EWHC 2543 (Admin)
Royal Courts of Justice 
London WC2A 2LL

Wednesday, 23 September 2008

B e f o r e:




(Interested Party)

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Mr JM Easton (instructed by Hague Lambert, Manchester M3 4PF) appeared on behalf of the Claimant 
Mr S Pickles (instructed by Bradford Metropolitan Borough Council) appeared on behalf of the Defendant

Mr P Brown (instructed by Richard Buxton Solicitors, Cambridge CB1 1JP)appeared on behalf of the Interested Party

J U D G M E N T 
(As approved)

Crown copyright©

1. This application concerns a quarry called Buck Park Quarry, which is situated in Green Belt land just outside the village of Denholme in West Yorkshire. It is an old limestone quarry, which was returned to use in the mid 1960s. Planning permission was extended in 1992, subject to a number of conditions, including one that extraction should cease by 2002.

2. In 1998 the then operator of the quarry applied to the local planning authority, the City of Bradford Metropolitan District Council (the defendant in these proceedings), for permission to use the quarry for waste disposal, (that is to say as landfill), and also to increase the depth of the workings and extend the time during which extraction could take place to 2006.

3. That application was unpopular with local residents represented by the interested party, the Denholme Residents Action Group. It was initially refused by the defendant, but it was allowed by an Inspector in a decision letter dated 14 March 2001. The permission was subject to a large number of conditions, including the following:

"1. The development to which this permission relates shall be begun no later than the expiration of five years from the date of this permission.

2. The winning and working of minerals and the removal of any mineral from the site shall cease no later than 26 March 2006 and the site restored by landfilling through the disposal of waste as defined in condition 30 below. The disposal of waste is for a temporary period of 10 years from the notified date of commencement by which time the disposal of waste shall have ceased and the site restoration completed within 12 months of such cessation in accordance with a scheme approved under condition 19 below. The site shall be the subject of aftercare for a period of 5 years from the completion of final restoration as detailed by condition 39 below.

3 4 ...

5. No development shall take place until a detailed scheme for the landscaping of the site has been submitted to and approved in writing by the Local Planning Authority. Such scheme shall include details of:

a) The positions, species and sizes of all existing trees, shrubs and hedgerows on the site which are to be retained and the proposals for their protection throughout all operations on site;

b) The position, species, density and initial sizes of all new trees and shrubs;

c) the method of planting to be used including any protection measures;

d) any hard landscaping proposed including dry stone walls;

e) the programme for implementation and carrying out of the scheme.

The scheme as approved shall be carried out in full in accordance with the agreed programme of implementation following the date of such approval in writing.

6. A landscape management plan including management responsibilities and maintenance schedules for all landscaped areas shall be submitted to the Local Planning Authority for approval in writing concurrent with the landscaping scheme required by condition 5 above. The landscape management plan shall be carried out as approved by the Local Planning Authority for the duration of the landfilling and site restoration works."

Two points from those conditions should be noted in particular because they are central to the issues in this application. First, by condition 1 the development had to be begun or, as it is often expressed, "implemented" by 14 March 2006. Secondly, the matters to be covered by the landscaping scheme required by condition 5 included at (a) "details of all trees, shrubs and hedgerows on the site which are to be retained". As to that, the Inspector had in his decision letter made it plain, as one would expect with a site in Green Belt land, that the maintenance of high environmental standards, with a view to the ultimate restoration of the site to fit in with the local landscape, was a matter to which he attached special importance. Condition 5 in general, and condition 5 (a) in particular, were of course significant in that context.

4. There was a challenge to that decision by way of judicial review, brought by a member of the action group; but the Inspector's decision was upheld, first by Silber J in December 2001, and subsequently by the Court of Appeal in a decision promulgated on 5 March 2003: Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA (Civ) 262, [2003] 2 P&CR 162. It should be noted that the Court of Appeal was somewhat troubled by what it saw as the looseness of some of the conditions imposed by the Inspector, but it was prepared to uphold the decision on the basis that those conditions should be "carefully and narrowly construed" (see in particular per Sedley LJ at paragraphs 54 and 55 of the decision).

5. At some point in the middle of 2005 the claimant agreed to buy the quarry, though it did not in fact acquire freehold title until 7 April 2006. On 8 November 2005 it submitted what purported to be a landscaping scheme complying with the requirements of condition 5. At the request of the defendant it submitted a revised scheme in January 2006, and it provided further details on 9 February 2006. On 21 February 2006, Mr Stones, the Group Planning Manager for Minerals, Waste and Trees in the defendant's Department of Transportation, Design and Planning, wrote to the claimant confirming the defendant's approval of the revised scheme as so submitted.

6. Work started on aspects of the development (in fact the improvement of access roads) in February 2006, i.e. prior to the deadline for commencement of the development imposed by condition 1. On 6 April 2006 the claimant sought confirmation that the permission had been "lawfully implemented". By letter dated 7 April 2006 Mr Stones replied in the following terms:

"I have discussed the matter with my officers and can confirm that I consider that the above application has been lawfully implemented.

Please be aware that this is my informal officer opinion and as such is not a binding, nor formal decision of the Council."

7. In May 2006 another member of the action group, a Ms Anderson, commenced further judicial review proceedings challenging, inter alia, the defendant's decision to give a number of approvals required by the conditions, including the approval of the landscaping scheme submitted under condition 5 in the letter of 21 February.

8. On 24 November 2006 Crane J upheld the challenge to the defendant's approval of the scheme submitted pursuant to condition 5 and he quashed that decision: see [2006] EWHC (Admin) 344. He did so on the basis that the scheme which had been submitted wholly failed to give any details, as required, of "the positions, species and sizes of all existing trees, shrubs and hedgerows on the site which are to be retained". As he pointed out, the scheme said no more than that:

"tree and shrub cover within the site is limited to a small area of woody, natural colonisation, adjacent to the northern boundary and the trees that line the existing quarry access road (see drawing number P182 004)".

It is self evident that, as Crane J held, a description of that generality did not comply with the requirements of condition 5(a).

9. The effect of the quashing of the defendant's approval of the scheme is, necessarily, that at the time that the purported implementation of the permission took place, and as at the deadline imposed by condition 1, condition 5 had not been complied with. It is important to note that the non compliance did not consist only in the fact that the defendant's approval had been quashed but also in the fact that no compliant scheme had been submitted in the first place: although Crane J's formal order was necessarily only concerned with the defendant's approval, it was central to his ratio that the scheme also did not comply with the terms of the condition.

10. Accordingly, the purported implementation was in breach of the conditions of the permission. It is settled law that, subject to certain exceptions which I shall have to consider, such an implementation is incapable of satisfying a condition, such as condition 1 in the present case, which sets a deadline for the commencement of the development; and the claimant is prima facie liable to enforcement action. This has been referred to before me as "the Whitley principle [or rule]": the reference is to the decision of the Court of Appeal in Whitley and Sons v Secretary of State for Wales and Clwyd County Council [1992] 64 P&CR 296 though in fact that case, while setting out the basic rule, is primarily concerned with the extent of the exceptions to it.

11. That consequence was drawn to the attention of Crane J following the oral delivery of his judgment, by counsel for the claimant in those proceedings, Mr Paul Brown (who also appears before me for the action group). It was not controverted by the other counsel present. Crane J altered paragraph 75 of his judgment as delivered orally, to record in terms that:

"... because the time limit for seeking approval has passed, success on that one ground prevents the interested party [that is, the claimant in these proceedings] from taking advantage of the permission."

It is right, however, that I should make clear that there had been no argument before him on that point.

12. On further reflection the claimant took the position that the situation was in fact remediable. On 8 December 2006 its solicitors wrote to the defendant claiming that the effect of the quashing of the approval dated 21 February 2006 was that the original application for approval of the scheme submitted on 8 November 2005 remained outstanding, and saying that they would shortly be submitting an addendum dealing with the deficiencies identified by Crane J, following which the defendant would be asked to approve the amended scheme.

13. By letter dated 15 February 2007 the defendant set out its position in response. It acknowledged that Crane J's observations on the point were not binding and that it had accordingly to reach its own view on the legal position. It continued:

"The Council considers that it must carefully consider and construe the wording of the relevant planning condition (Condition 5) in order to decide whether the Permission as a whole is now extant or otherwise capable of being implemented.

Condition 5, contained in the 2001 Planning Inspector's Decision Letter, is clear about what is required to be submitted to and approved by the local Planning Authority as a precondition of development. Justice Crane found as a matter of fact, that the landscaping scheme fell short of what was expressly required by Condition 5. The Council's purported decision to approve the scheme was therefore flawed in that regard and Justice Crane quashed the related decision.

Condition 5 makes it expressly clear that a fully detailed and compliant scheme should be submitted for approval prior to any development commencing. The scheme supplied by your clients was not compliant or sufficient in all respects with the express requirements on the condition.

The 'life' of the relevant planning permission expired on the 14th March 2006. It therefore follows, due to the passage of the time limit on implementation that it is no longer possible to comply with the requirement of Condition 5 relating to submission of a scheme.

The Council recognises, inter alia, that the 2001 Inspector's decision letter places emphasis on the importance of the landscaping scheme. Condition 5 is clearly a condition precedent as defined in Whitley v Secretary of State for Wales [1992] P&CR 296 and it can be considered to go to the heart of the Planning Permission such that failure to comply renders operations carried out in reliance on the Planning Permission unlawful.

In conclusion there is currently no extant planning permission permitting development of the form contained in the planning permission granted by the Inspector in 2001.

In the light of the above explanation of the position of the local planning authority, the Council would request your confirmation that your client accepts the Council's view on the legal position.

Clearly your client does not have the option of submitting a fresh (retrospective) planning application for the development. This would of course, require submission of a fresh Environmental Impacy Assessment and it would also be advisable to arrange early submission of a satisfactory landscaping scheme at the same time, if that is your client's desired course of action. Any application submitted would be considered strictly on its planning merits.

Your urgent response would be appreciated by close of business on Monday 5th March 2007 so that the Council can decide what further steps it is expedient to take in order to resolve the outstanding planning issues on this site."

14. The claimant's solicitors responded on 2 March 2007 saying that they did not accept that analysis. They enclosed the promised addendum with a request that the defendant should determine "our client's application". The addendum consisted of an elaborate description of the trees, shrubs and hedgerows proposed to be retained. There was at one time a dispute as to whether, even with the addendum, the application complied with the requirements of condition 5(a); but it is now accepted on behalf of the defendant and the interested party that it does.

15. By letter dated 8 March 2007 the defendant reaffirmed its position and said that it would be considering the possibility of enforcement action. It returned the addendum saying that it took the view that there was no application outstanding which required its determination. For reasons that are not entirely clear, the claimant's solicitors on 12 March 2007 asked for that position to be confirmed and the defendant duly gave such confirmation the same day. On 28 March 2007, following a site visit, the defendant issued a Planning Contravention Notice identifying the work on the access roads as a suspected breach of planning control. On 26 April the claimant invited the defendant to withdraw the notice and resubmitted the addendum, again asking the defendant to approve its application. By letter dated 8 May the defendant again declined to entertain the amended application.

16. The present proceedings were commenced on 20 June 2007. By them the claimant seeks judicial review of the defendant's decisions described as:

"(1) refusal to determine an application made on 10 November 2005, and amended on 19 January 2006, to approve a landscaping scheme required by condition 5 of a planning permission granted on 14 March 2001, and

(2) refusal to determine a planning application O5/07572 MVC made on 7 October 2005."

So far (2) is concerned, the relevance of the decision in question has not been explained to me, but I can ignore it for present purposes. The reference at (1) to an application dated 10 November 2005 is in fact to the application of 8 November; but the discrepancy in dates is also not significant.

17. The date of the refusals in question is said to be 8 May 2007. It will be apparent from the foregoing narrative that although there was indeed a decision on that date it was in substance no more than a reaffirmation of a stance first adopted, and fully explained, by the defendant in its letter of 15 February 2007 and already embodied in a prior decision taken on 8 March 2007.

18. The remedy sought is, to paraphrase, an order quashing the decision of 8 May 2007; an order requiring the defendant to determine what the claimant says is the outstanding application to approve the landscaping scheme; and an order declaring that the original planning permission has been lawfully implemented.

19. On a renewed permission application on 9 April 2008 Blake J gave permission to apply for judicial review and the action group was joined as an interested party. Blake J held, and I respectfully agree with him, that there had been delay by the claimant in issuing the proceedings, but he was nevertheless prepared to extend time. He noted that that did not prevent any interested party from relying on any prejudice resulting from the delay as a reason why relief should not be granted.

20. The substantive application for judicial review is now before me. The claimant is represented by Mr Easton of counsel, the defendant by Mr Pickles of counsel and the interested party, as I have already said, by Mr Paul Brown. If the Whitely rule were absolute it would be plain beyond argument that the 2001 permission had irrevocably lapsed because the five year deadline had passed before there had been compliance with condition 5. However, it is common ground that there are exceptions to the rule or, it may be better to say, limits to its application. The extent and jurisprudential basis for such exceptions or limits has been the subject of a number of decided cases. These were most thoroughly reviewed by Ouseley J in R (on the application of Hammerton) v London Underground Limited [2002] EWHC 2307 (Admin). At paragraphs 123 to 133 of the judgment Ouseley J summarises the state of the law under ten heads. At head 5, para 127, having referred to the judgment of Woolf LJ in Whitley itself, he says this:

"I consider that the principle discernible in Woolf LJ's reasoning is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development. Three of the passages from his judgment, to which I have referred in paragraph 104, related his approach to the rational availability of enforcement proceedings. Enforcement action may still be taken to remedy the breach by requiring compliance with the condition. But the development cannot be stopped from proceeding."

That passage was subsequently expressly approved by Buxton LJ in R (on the application of Prokopp) v London Underground Limited [2003] EWCA Civ 961, [2004] 1 P&CR 31 at paragraph 85. It is clear that the references to irrationality and abuse of power mean what they say. The cases give no warrant for an argument that there should be any general discretion in the court to set aside the consequences of breaches of planning control simply on the basis that they might be unfortunate or harsh. For that reason, as Ouseley J observes, cases where the exception fall to be applied will be likely to be rare.

21. Accordingly the primary question raised by the application before me is whether it would be irrational or an abuse of power for the defendant in the events which have happened to take enforcement action to prevent development pursuant to the 2001 permission from proceeding.

22. Mr Easton submits that it would be. So far as abuse of power is concerned, he submits that it would be a serious abuse for the defendant, having approved the scheme after having had a full opportunity to consider it, now to turn around, when it was too late to remedy the defects in view of the expiry of the deadline, and rely on a deficiency which it had never identified at the time. In this connection I should note that Blake J in giving permission referred in particular to the possibility that, if the defendant had observed the defect when the application was made, the claimant might and indeed very probably would have taken steps to remedy it before the deadline expired.

23. Mr Easton also relies on evidence from a Mr Rowland, submitted subsequent to the grant of permission by Blake J. Mr Rowland was the consultant engaged by the claimant to prepare the landscaping scheme. He says at paragraph 4 of his witness statement dated 29 July 2008:

"I recall than on the 26th August 2005, I had a telephone conversation with Carol Howarth the Senior Planning Officer for the Defendant about the proposed scheme. We discussed what would be required in order to comply with the appropriate condition and in particular, Condition 5. Following this discussion, I prepared the landscape scheme ("the Original Scheme"). I should point out that during my telephone conversation with Ms Howarth in August, it was agreed that we would simply go out on the site and mark the trees to be retained and that these would be protected by fencing. We agreed that from a practical point of view, it would not be necessary to conduct a survey of the trees. As a result, the trees were not surveyed in the Original Scheme."

He also refers, at paragraph 6, to a conversation which he says that he had with a Ms Healey, the Senior Countryside Officer for the defendant, though by a slip he refers to the conversation as having been between Ms Healey and Ms Howarth. However, he does not allege that anything material was said in those discussions. If Mr Rowland's evidence is to be accepted, it would appear that the deficiency in the scheme which led to the approval being quashed was in fact one to which the defendant had, through Ms Howarth, expressly agreed.

24. As for irrationality, Mr Easton emphasises that the development is one which the defendant has generally supported. It is true that it initially refused the 1998 application, but it had taken no part in the appeal before the Inspector, and it had opposed Miss Anderson's application for judicial review. It had of course approved the lanscaping scheme and had, albeit informally and after the expiry of the deadline, expressed the opinion that the permission had been lawfully implemented. An officer had also subsequently indicated a willingness in principle to recommend an extension of the time limit in condition 2 by three years. Mr Easton points out that the development was not a new development but represented a continuation of activities at the quarry which had been going on for over 40 years though it must be said in that regard that waste disposal represents a significant change of use. Mr Easton disavows any suggestion that condition 5(a) was unimportant, but he submits that the failure to supply a list of the trees, shrubs and hedgerows was a matter which was easily remediable and had now been remedied by the addendum. In all those circumstances it would, he submits, be irrational for the defendant to commence enforcement proceedings.

25. Mr Easton also has a subsidiary point, namely that the effect of the quashing of the approval dated 21 February 2006 was to leave the original application for approval of the scheme undealt with. He submits as of course the claimant's solicitors did in their initial letter that the defendant remains under a duty now to reach a decision on that application. He refers to the decision of the Outer House in Bovis Homes (Scotland) Ltd v Inverclyde District Council [1982] SLT 473.

26. I am not persuaded by these submissions, attractively as they were developed by Mr Easton. I can deal briefly with the Bovis point. What it overlooks is that the defect in the approval which led to it being quashed was itself the consequence of a defect in the claimant's application for approval. This was thus not a case where the quashing of the local authority's decision left the initial application intact: as I have already observed, the ratio of Crane J's decision was that the initial application itself failed to comply with the terms of condition 5(a).

27. I turn to the question of abuse of power. I should deal first with the aspect raised by Mr Rowland's evidence. If I were to accept that evidence then the claimant's non compliance with condition 5 would, as I have already observed, have been the result of it having been misled by the defendant, and the question of abuse of power would no doubt arise very acutely.

28. However, Mr Rowland's evidence is directly contradicted by Ms Howarth in a witness statement dated 9 September 2008. She says that, although she does recall talking to Mr Rowland in August 2005, she does not recollect saying anything to the effect that condition 5(a) would be satisfied simply by marking the trees on site. She says that even if such a dispensation would have been appropriate, it would not have been a decision for her but for the Council's Landscape Architect or Countryside Officer (to whom indeed the scheme was in due course submitted). She is supported on this by a witness statement from Ms Healey dated 16 September 2008 which confirms (though in fact the contrary had not been suggested by Mr Rowland) that in the discussions that she had with him nothing was said about the marking of trees. She also observes that, if that had been suggested as a way of complying with condition 5(a) her view would have been that it would have been wholly impracticable, since it would have led to uncertainty and confusion, and that it was essential that information be marked on a plan. Ms Howarth also makes the point that the letter from Mr Rowland dated 8 November 2005 submitting the scheme says this in relation to condition 5A:

"The position, species and sizes of existing trees, shrubs and hedgerows on the site to be retained will be identified, marked on site and protected by fencing with 1.2 metre chestnut pale fence. Existing planting is shown on drawing number P182/001 and is detailed in the landscape management plan."

That, she observes, is hardly consistent with an agreement having been made to the effect alleged: although of course it does refer to marking the trees on site, it does not suggest that that was being done in lieu of their identification as part of the scheme as submitted. Indeed the final sentence shows Mr Rowland, albeit wrongly, suggesting that sufficient details were shown in the documents submitted.

29. Neither party having sought permission to cross examine the other's witnesses, I must decide between these two conflicting accounts on paper and on the balance of probabilities. The points made by Ms Howarth about the letter of 8 November seem to me to be good. If there had been an agreement of the kind described by Mr Rowland I would have expected to see it referred to explicitly in that letter. I would also say that if an agreement of this kind had been made I would have expected both parties to make a contemporary note of it. None has been produced by Mr Rowland. Instead he relies on his unassisted recollection, three years after the event, of a conversation which apparently no one has asked him about in the intervening period. (He says in terms in his statement that he heard nothing further from the claimant until after the judgment of Crane J when he was asked to work on the addendum. However, even after that, it does not appear that the question of what had occurred in 2005 was raised with him, otherwise one would have expected to see a reference to the facts in question in the claimant's original grounds.)

30. Overall, I think it pretty unlikely that anyone on behalf of the defendant would have purported to give any such dispensation as Mr Rowland now believes he remembers. That is both for the reasons given by Ms Healey and because I would have expected the defendant to wish to have a formal record of the kind required by the Inspector and not to feel that it was their role to depart from the conditions which he specified.

31. For all those reasons I reject Mr Rowland's evidence. I should make it clear that I do not accuse him of deliberate falsification. It does appear that there was an agreement that the trees would be marked on the site. However, it is entirely plausible either that at the time Mr Rowland misunderstood that as a dispensation from providing a description of them as part of the scheme, or, more likely, that he has misremembered it since as a result of the passage of time.

32. On that basis the claimant's grievance can only be that the defendant is now relying on a defect that it had failed to identify in a scheme which it expressly approved. I can see why that may rather stick in the throat, particularly if, as seems likely enough (though there is no evidence on the point), the defect would have been remedied timeously if it had been spotted in time. But the fact remains that it was the claimant's responsibility alone to submit a scheme which complied with the requirements of the condition. The defendant's role was not to act as a monitor of the claimant's application in order to protect its interests. Its only role was to assess the application in the interests of the public. If it failed in that job, that is not something of which the claimant can legitimately complain. In those circumstances I can see no abuse of power in the defendant holding the claimant to the consequences of it own mistakes.

33. There is another factor which reinforces my view that enforcement action now would not be an abuse of power, though since this is only a makeweight I will not develop it at length. It is that the claimant was taking a serious risk in submitting its scheme so comparatively close to the deadline. There was always the chance that problems would arise which would lead to the deadline being missed. Mr Easton's response was that time had been caused to run against the claimant by the actions of others and, in particular, of the action group. That seems to me unconvincing. I can understand why nothing would have been done prior to the decision of the Court of Appeal, but that was three years prior to the expiry of the deadline.

34. Having reached that view on that basis, I need not consider the law about the circumstances in which a public authority may be, in effect (though I appreciate this terminology is now unfashionable) estopped by its own conduct from doing what would otherwise be within its power. However, I note Mr Brown's submission that it is clear from the decisions in Coghurst Wood Leisure Park Limited v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 1091 (Admin) and R v Leicester City Council ex parte Powergen UK plc (both at first instance and in the Court of Appeal) [1999] 4 PLR 91 and [2000] JPL 1037 both of which are reviewed by Ouseley J in Hammerton that the courts will be slow to allow arguments of this character to justify what would otherwise be breaches of planning controls.

35. I turn to the question of irrationality. With respect to Mr Easton, I do not believe that factors of the kind on which he sought to rely come into the equation. Absent the special feature of this case i.e. the defendant's purported approval of the scheme which I have considered under the head of abuse of power, this is a straightforward case where a party enjoying the benefit of a planning permission subject to conditions has lost that benefit by failing to comply with a relevant condition prior to the time limited for implementation. That sometimes happens; but, as the cases emphasise, the planning rules are there to be followed; and the merits of the substantive development, or the fact that it may to a greater or lesser extent have been supported by the relevant planning authority, or the circumstances which gave rise to the non compliance (absent of course some element of abuse or irrationality on the part of the authority) all seem to me immaterial. But in case I am wrong about that, I would in any event say that I see nothing outrageous in the fact that the permission has irretrievably lapsed in the circumstances of the present case. There is nothing in the facts here equivalent to either the Whitley case or another decision to which I was referred, R (on the application of Hart Aggregates Limited) v Hartlepool Borough council [2005] EWCA 840 (Admin), [2005] 2 P&CR 31.

36. I must therefore dismiss this application. In these circumstances I need not consider the question whether the claimant's evident delay in bringing the proceedings gave rise to any prejudice, or detriment to good administration, such that I should refuse relief on that ground alone. I would only say that I saw some attraction in Mr Brown's submission that the right course in the circumstances as they now are is for the claimant, if it wishes to proceed with the development, to make a fresh application for planning permission, which will be judged according to the conditions and policies as they now are (which may not be 0the same as they were in 1998). The residents who oppose the development were entitled well before June 2007 to expect that the long saga of the 1998 application had been brought to a close.

37. MR JUSTICE UNDERHILL: What consequential applications are there?

38. MR PICKLES: In addition to an order dismissing the claim, I do not need to trouble your Lordship with a schedule of costs. The defendant and the claimant have agreed on an order that the claimant pay the defendant's costs in the sum of £14,700 within 28 days. Would your Lordship make an order to that effect?

39. MR JUSTICE UNDERHILL: Yes, I will. Will you make sure that associate has the figure?

40. MR BROWN: I also do ask for the interest party's costs, or at least some part of them. I recognise the second set of costs is the exception rather than the rule. In my respectful submission we do have a separate interest to be here. I hope we have added something to the substantive arguments. In terms of delay you have not done the claimant down on delay, but you have expressed some sympathy for the views which we expressed on that issue. That may not be enough to justify a full order in respect of the interested party. I would ask for at least some. I understand that there is a schedule which has not been exchanged. The total on the schedule is just over £11,000. My learned friend may prefer it to be subject to a detailed assessment.

41. MR JUSTICE UNDERHILL: I am sympathetic, Mr Brown, but, as you rightly say, the rules are quite strict and quite often it is developers who intervene when the appeal is the other way around and they do not receive their costs. Sympathetic as I am obviously to people in your client's position, I am not sure why there should be one rule for them and a different rule for the developers.

42. MR BROWN: Perhaps I have done my duty to my client.

43. MR JUSTICE UNDERHILL: Thank you all.