Neutral Citation Number:  EWHC 2810 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
London WC2A 2LL
Thursday, 8 September 2011
B e f o r e:
MR DAVID ELVIN QC
(Sitting as a Deputy Judge of the High Court)
THE QUEEN ON THE APPLICATION OF DAVID MACRAE
THE COUNTY OF HEREFORDSHIRE DISTRICT COUNCIL
JOHN AARON HEATH
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MR JAMES BURTON (instructed by Richard Buxton & Co) appeared on behalf of the Claimant
MR ROGER GILES (instructed by the Legal Department of Herefordshire District Council and Coulson Read Lewis) appeared on behalf of the Defendant and the Interested Party
J U D G M E N T
(As Approved by the Court)
THE DEPUTY JUDGE (David Elvin QC):
1. This is an application for judicial review of the decision of the County of Herefordshire District Council ("the Council"), dated 17 June 2010, to grant outline planning permission for the construction of a three bedroom dwelling on land at Garway Hill, Herefordshire ("the site").
2. The site lies to the south-west of Hereford and to the north-west of Monmouth. It is located in open countryside outside any settlement in an area where, as a general rule, planning polices at different levels would seek to protect open countryside, and would not normally allow the grant of planning permission for housing without sufficient justification. It is not, however, subject to any specific landscape or strategic designation. The application for permission, which was made by the Interested Party, attracted strong opposition from some local residents, including the Claimant, but has also attracted the support of others.
3. The site sits on the southern side of the C1238 and opposite Sun Cottage to the north, with an unadopted track on the north side of the site. The track runs steeply up to Garway Common and Garway Hill. It is roughly triangular in shape and elevated in the landscape with views to the east and north east, and appears to have been used to date as rough grazing for sheep. Access to the site is through a gateway off an unadopted track which leads to the common and to two other attached dwellings to the south.
4. The Interested Party, who is in his late 20s, has a blacksmith's forge and workshop at Oldfield Farm, which is about 1 kilometre to the south of the site and is owned by his grandfather, and has recently obtained planning permission for a new workshop there. The application was made by the Interested Party in order to live with his wife and young family close to the new workshop, whilst he was still in the course of obtaining planning permission for it. He set out his circumstances, which he relied upon in making the application to the defendant, in a letter dated 3 September 2009:
"As previously advised I am a 26 year old full time working, self employed blacksmith. Having trained at Holme Lacy College I started my business from scratch and have spent the last three and a half years building it up. The workshop I currently share on the family farm is little more than half a mile from the proposed site and, despite the recession, the level of my trade is still increasing at a rate that keeps me extremely busy. I have reached a stage now where I have demonstrated to myself that I can further develop it into a successful long term local enterprise. I have lived and worked for nearly the whole of my life within about a mile of my business. I am and always have been very much a country person and would have serious concerns as to my ability to properly conduct the trade to its best effect if I am not able to live close to the workshop.
I am getting married next June and my fiancée and I have been looking for somewhere to live. We were potentially interested in the proposed affordable housing near Orcop Village. However I now understand that this project is unlikely to proceed. Furthermore a similar proposal for Garway never seemed to get off the ground. Without doubt living within easy access of my workshop is essential in order that I can continue to operate it efficiently. Being self employed, I am regularly required by customers to be available outside normal working hours. As part of my activities I repair agricultural machinery and, particularly at busy times of the farming year, this can have to be done on an emergency basis. Furthermore I regularly have to work evenings simply in order to keep up to date. Travelling to a home at any significant distance and then to return to the workshop an hour or two later is costly in both time and fuel. It is difficult to envisage how the business could be run if I am not living within close proximity. Last year I did try living in an uncle's house, north of Hereford. Although no rent was charged I was there for just a few short weeks as the difficulty in accessing my workshop with the flexibility that I needed proved simply insurmountable."
5. Having then described the difficulties that he and his wife faced and considered issues regarding location and access, he said this:
"With further regard to demonstrating the viability of my business I would advise that:
(1) I have now outgrown the facilities currently available to me and consequently I have recently submitted a detailed planning application to you for a new, purpose built workshop proposed to be situated about fifty yards from my existing building. This compromises a much larger working area than I currently have plus a display room and a small office. If approved I am intending to construct this within the next six months
(2) I am aware that I badly need another pair of hands. At present I usually start work at 5.30 in the morning, six days a week and still struggle to cope. However I am also aware that deciding the correct timing for stepping up from just myself to two 'workers' is crucial. I have already used a couple of helpers on a part time basis and have recently spoken to another experienced person with a view to full time employment at some suitable point after the new workshop is built. I have also made enquiries with the College at Holme Lacy as to the availability of a trainee blacksmith.
(3) After struggling in the first couple of years I am now reasonably profitable. I am attaching some (confidential) finalised accounts up to 5th April, 2009 and also a summary and note of my turnover for the four months right up to 31st July, 2009. These demonstrate the rapidly upward trend of the business.
(4) I am also attaching a schedule showing the major items of equipment that I have accumulated over the past three and a half years. These have been paid for out of a combination of the profits I have earned and my previous savings. I am living as frugally as I can whilst building up the business.
(5) Following concerted marketing work by my fiancée my business profile is rapidly rising. As well as my work on farm machinery I also produce all sorts of other individually hand made, traditional hardware including curtain poles, gates (farm and decorative), railings, various door and window furniture, traditional hooks, all sorts of garden objects, decorative and functional household items (eg fire irons) etc. Much of this is for the local community but I also now supply several local builders and retail outlets. I have recently undertaken work for both Hereford Cathedral and Chepstow Castle. This year I will have demonstrated at six events including Monmouth show, Llangattock Ploughing Match and Hereford Cider Museum. I have also been prominently featured recently in both Herefordshire Life and the Hereford Times. I really enjoy the work I do and, although it is physically hard and necessitates long hours, I hope you can see from the above that I am totally committed to its success.
Just a couple of further matters:-
1) There are no buildings available for converting to a home on the farm. Apart from the fact that I do not own them, those that might be suitable for such a purpose are, as they have been for generations, still in constant use as barns for the storage of hay and grain.
2) I am attaching a statement from Merrivale Accounting Services confirming (a) the financial viability of my business and (b) their professional view that I need to live in close proximity to the workshop in order for the business to function properly. As mentioned above there is also a schedule summarising my turnover and profitability to date."
6. The evidence before the court did not include the financial details and the statement from the accountants but, in the absence of any challenge to them, I have no reason to doubt the accuracy of the statements in Mr Heath's letter to the Council and they were not disputed by the Claimant.
7. The application was for a wholly outline planning permission within section 92 of the Town and Country Planning Act 1990, and was registered by the Council on 8 September 2009. Throughout the course of the application it was the firm view and recommendation of the Council's planning officers that planning permission should be refused. It has equally been the case that Council members, first in the form of the Southern Area Planning Subcommittee in November 2009, and then the Full Planning Committee in both February and March 2010, have considered the circumstances of the application to merit a sympathetic approach, notwithstanding the objections of officers and resolved then to grant planning permission to Mr Heath.
8. The Claimant is a local resident who lives on Garway Hill. He is a Conservation Architect specialising in the inspection, care and maintenance of historic buildings. He objected to the application throughout and made oral representations against the application at all of the three Planning Committee meetings considering the application. Copies of his statements are included within the evidence before the Court. There is no dispute concerning the sufficiency of his interest to apply for judicial review.
9. The application first came before the Southern Area Planning Subcommittee on 25 November 2009. In the original officer's report the Interested Party's representations were summarised at some length, and these were a reasonably accurate summary of the letter of 3 September, to which I have already referred. The officer's report noted the objections which had been received from local residents, including those of the proposal to locate it in open countryside. The officer writing the report recommended refusal and gave reasons for this at paragraphs 6.2 to 6.6. Although this is not the report which led to the grant of permission, I will refer to the reasons now because they are repeated verbatim in the subsequent report:
6.1 It is considered that the main issues relate to the principle of development, the visual impact of the site and the means of access off the C1234 road.
6.2 The applicant has made an application for a new workshop at Oldfield Farm which is just over a kilometre away. However, at the time of drafting this report this planning application had not been determined. This application should therefore be approached as being for an enterprise which does not have the benefit of planning permission. It is considered that the erection of a dwelling on this elevated site divorced from the enterprise which it will potentially serve, does not satisfy the functional criteria in Government advice in PPS7 or UDP Policy H8. This criteria establishes that, for agricultural enterprises and those rural enterprises which need to be located in the countryside, the new dwelling needs to be well related to the enterprise and that it is the needs of the enterprise which are the determining factor and, not the particular circumstances of the applicant. It is considered that when applying the criteria for new dwellings in the open countryside, a case has not been substantiated for a dwelling on the site as applied for. It would be convenient but would not assist with future security, since the enterprise is located on a farm lived in by the applicant's grandfather and some distance from the site. These are not reasons for setting aside established planning policy and Government advice contained in PPS7, for dwellings serving established rural businesses. It is also considered that in the absence of full profit and loss accounts, the financial case for a new dwelling has not been substantiated at this time. The application does not satisfy the criteria of Policies H7 and H8 of the Unitary Development Plan and supporting Government advice contained in PPS7. It is also the case that the rural enterprise which the dwelling is proposed to serve does not have the benefit of planning permission and therefore it would be premature to approve the principle of a new dwelling at this time.
6.3 The application site is an elevated one which would be prominently viewed on what is a sensitive hillside which is publicly accessible by locals and tourists alike and visible from the adjacent track and footpath on the northern side of the application site which serves all Garway Common. The erection of a dwelling would therefore in the absence of an overriding justification result in a dwelling being erected which would detract from the openness of the hillside. Government advice in PPS7 indicates that the countryside should be protected for its own sake from unwarranted development, which would be the case in this instance. There is also the need for development to reduce reliance of use of the motor vehicle. This too would not be the case for this isolated site in the open countryside and therefore the proposal is contrary to Policies S1 and S6 of the Unitary Development Plan. An issue made more concerning by the desire to provide a house in a location away from the business operation.
6.4 The Final issue relates to the means of access. It is evident from the advice submitted by the Traffic Manager that the means of access at the southern most point of the site is severely deficient in providing visibility to the north west. It would also result in a loss of at least 40 metres of hedgerow. The applicant has indicated that alternative access could be taken onto the unadopted track serving Garway Common and two other dwellings on the northern side of the property. This is a matter which cannot be ascertained without firm details and in the absence of such details it is considered that the means of access is of sufficient concern given the limited visibility on the C1234 road, to warrant the refusal of planning permission.
6.5. It is not considered that a compelling case has been advanced for the erection of a dwelling on this hillside location. There is no functional reason which has been made for this dwelling given that it justified it should be sited where practical as close as possible to the enterprise it serves. This is also for an enterprise which does not currently have the benefit of planning permission and therefore it would be premature to even consider such a proposal for this reason also. The erection of a dwelling would therefore also not be sustainable. The means of access is unsatisfactory and for these reasons my recommendation is for refusal."
10. The officers then recommended the refusal of permission on four grounds. The first related to breaches of UDP Policies, H7 and H8, and the guidance in PPS7 regarding the functional need for the dwelling. The second related to its unsustainable nature placing reliance on the use of the motorcar. The third raised issues of adverse impact on landscape, and the final recommendation related to the issue of visibility of the proposed access.
11. At that meeting there was a presentation in support of the application of the Interested Party, and indeed objections presented by the Claimant, as I have already mentioned. The Claimant raised the following matters:
"This site in open countryside is an elevated position of great visual prominence, which is much visited by the local community for its outstandingly beautiful views. This proposal for a dwelling is in my opinion a pure development speculation, bein on agricultural land acquired only within the last two years.
The applicant's business of blacksmithing, whilst traditionally a rural craft, does not support the local farming or agricultural economy, being mainly high quality ornamental ironwork for domestic use.
As such this business and any associated dwelling does not require to be this or any other rural area; that is purely the applicant's personal preference, which carries no weight in planning policy.
This personal preference could be exercised without detriment to the open countryside, by the creation of a dwelling at the nearby farm, where the applicant's workshop is located."
He also referred to other matters.
12. The matter was then debated by members of the Subcommittee and the terms of that debate are summarised in the minutes of the meeting, which are publicly available and I note that the policy provisions were debated. Councillor RH Smith spoke in favour of the application and his view was it was supported by policy. It is noted that he felt that adequate justification did exist for a dwelling on the site, that while some landscape impact was inevitable it could be mitigated through conditions, and the access issues could also be addressed similarly. He therefore considered that permission could be granted in accordance with H7 and H8.
13. Other comments were made with regard to supporting a local business and officers then advised members (clearly having regard to the fact that members appeared to be supporting the proposals) that if they were in support of the application the Planning Department still had reservations in respect of the application.
14. As anticipated by the terms of the debate, the Subcommittee resolved in favour of granting planning permission. Since the Head of Planning and Transportation still had reservations the application was then referred to the Full Committee under the Council's standing orders. Before it reached Full Planning Committee, the application by Mr Heath for a new workshop at Oldfield Farm was granted planning permission on 23 December 2009. The application for the dwelling then proceeded to the main Planning Committee on 10 February 2010. Members were provided with a new officer's report, which contained much that was similar to what had been set out in the report to the Subcommittee. In the introduction the officers set out what had occurred at the Subcommittee meeting and the concerns of the Head of Planning and Transportation:
"The Members of the Southern Area Planning Committee attached significant weight to the importance of supporting the applicant and to enable the continuation and expansion of his existing blacksmiths business currently operating from Oldfields Farm approximately 1 kilometre away from the site for the proposed dwelling. It was stated that the business, which includes the repair and maintenance of farm equipment, was an important service to the local community and required a permanent residential presence to ensure that the business could function effectively. The currently undetermined application for a new workshop building also located at Oldfields Farm was not seen as fundamental since the applicant was already running a business from an existing building at the site."
(An error appears in the summary of that point, because planning permission had already been granted for the new workshop.)
15. The introduction continued as follows:
"The debate also clearly established that Members were satisfied with the future viability of the business as a basis for supporting the dwelling.
In addition to the needs of the business, the local connection of the applicant to the community was given weight as was the lack of opportunities for young people to remain resident in the Garway area due to the lack of affordable housing.
In addition to the principle of the proposed residential development, issues concerning the sustainability of the location, highway safety and landscape impact were considered but were either outweighed by the overriding justification for the dwelling or capable of being satisfactorily controlled by way of conditions and careful treatment of the design, scale and appearance of the dwelling.
Members were advised that even in the event that a case for a dwelling were substantiated, a location adjacent to the existing (and potentially new workshop) would serve to improve the sustainability of the proposal, whilst resolving concerns about the landscape impact of the dwelling.
The Head of Planning and Transportation is concerned that to grant planning permission would be fundamentally contrary to Policies H7, H8 and H10 of the Hereford Unitary Development Plan and the principles of sustainable residential development in isolated rural locations set out in Planning Policy Statement 7: Sustainable Development in Rural Areas and accordingly the application was referred."
16. Section 1 of the report described the location, noted again incorrectly the pending application for the new workshop and pointed out the subject application was based on his desire to live close to his work. The relevant national and local policy provisions were summarised in section 2 and the planning history was set out in section
3. Consultations were summarised in section 4 and representations in section 5, including a similar summary of the Interested Party's case from his letter of 3 September, as was set out in the report to the Subcommittee in November 2009. I note the provisions of paragraph 5.6, which refers to papers which have not been provided to the Court:
"The papers which accompanied the headline figures set out the applicant's case, which can be summarised as follows:
- Business growing with more rigorous promotion at agricultural shows and publicity in magazines.
- It is a soundly based rural enterprise.
- No need for external funding.
- Next step crucial i.e. taking on extra pair of hands.
- Needs to be close to workshop and be based in locality in order to carry out emergency repairs to farm machinery. Time factor is crucial.
- Needs to be able to provide supervision/advice to new apprentice.
- Often customers find it convenient to visit workshop out of hours. Better if located nearby.
- Security for new building, subject to approval. Security system would be linked to house.
- Business cannot function efficiently if applicant lives some distance away from premises".
17. The officer's appraisal was set out again in section 6, and is in terms which are identical to the equivalent section in the November report, which I have quoted above. The recommendation was again to refuse planning permission, to which by this stage there had been added the views of the Head of Planning and Transportation, who had referred the matter to the Full Committee and whose views were noted in the introduction. The officers' recommendation was in similar terms to that in November 2009:
"That planning permission be refused for the following reasons:
1. The proposal is contrary to Policies H7 and H8 of the Herefordshire Unitary Development Plan and the guidance contained in PPS7: Sustainable Development in Rural Areas. It is not considered that a justification for a permanent new dwelling has been made either in terms of a functional need to serve the rural enterprise or on the basis of its long term financial viability.
2. The development of the site would not be sustainable and would place reliance on the use of the motor vehicle. Therefore the proposal is contrary to Policies S1 and S6 of the Herefordshire Unitary Development Plan.
3. The erection of a dwelling on this elevated and prominent site in close proximity to Garway Hill would detract from the character and appearance of the landscape. The proposal is therefore contrary to Policy LA2 of the Herefordshire Unitary Development Plan.
4. The proposed means of access does not demonstrate that an appropriate level of visibility can be achieved and accordingly it would be contrary to Policies DR3 and T8 of the Herefordshire Unitary Development Plan."
18. As before the Subcommittee, the Interested Party spoke in favour of his application and the Claimant spoke in opposition to it. The Claimant's statement differed from that made to the Subcommittee and on this occasion, whilst objecting to the proposal at the site, he supported a proposal for a new dwelling in principle. He said:
"I listened to the discussion at the planning meeting in November, and examined the now approved workshop proposals at Oldfield Farm, the family farm, for Mr Heath's business.
As a result, I am here to support a proposal for a new dwelling for a local couple setting up in business.
Moreover, all the local residents I have discussed this proposal with, support a new house for a local couple with a local business. But without exception these residents asked the question: "Why isn't this house being built next to the family, Oldfield Farm? Why spoil Garway Hill?"
Mr Heath's extended family have various houses there. His workshop would be on his doorstep, not a drive up the road. Even the officer's report on this application implies a new dwelling at Oldfield Farm would make sense.
A dwelling there would be free of all the restrictions that would be imposed at the site under discussion today. The issues of the size of the dwelling and no permitted development rights would all disappear if a site at Oldfield Farm were considered.
Oldfield Farm is set on a hill, and any new house there could enjoy wonderful views and still be visually integrated into the existing buildings. There any new house would not detract from this Area of Great Landscape Value.
By contrast, a house on this site we are discussing today would impact very considerably on this landscape. It would be skyline development on the saddle of the hill, visible for many miles to the east and west.
A long length of hedgerow would be lost to give visibility to the new access. The legally protected species, whose habitat includes the ponds on the site, would be seriously affected.
Again none of these environmental issues would arise for a new house at Oldfield Farm none.
Rejection of this application does not mean this young couple cannot have a local home near their business. It just means that the applicant has to think again and consider preparing a new application for a new house at Oldfield Farm, which it seems to me all parties at this meeting here today could then support."
19. Following an update by the Principal Planning Officer, particularly with regard to the grant of planning permission for the new workshop on 23 December 2009, members then discussed the application. Councillor RH Smith again spoke in support of the application and raised a number of matters. He referred among other things to the fact that the workshop had been approved, but the Interested Party could not live on the site as the land was owned by his grandfather. He said that the Interested Party provided a local service to agricultural workers and employed one other person and that his business had been growing. The Councillor considered that the proposals were in accordance with the Development Plan and that some form of agricultural tie could be added as a condition. He also considered that there would be compliance with sustainability requirements because the house would reduce the need for the Interested Party to travel to work. Councillor Smith rounded off his contribution by reiterating that there would be compliance with Unitary Development Plan Policies H7 and H8.
20. The Development Control Manager then gave advice to members as follows:
"...PPS7 did not state that a dwelling could be permitted now that the workshop had been approved and that both the financial test and the functional need tests had to be satisfied. He noted that the applicant had stated that it was not possible for the proposed dwelling to be sited at the farm where the workshop permission had been recently approved. He added that in his opinion the functional need could not be met as the business could not be served from a dwelling situated 1 mile away from the workshop."
21. Councillor Chappell then spoke in support of the proposals and referred to the valuable service that was being provided to Hereford's agricultural workers. He referred to other dwellings in the locality and thought that the issue of the access could be addressed by conditions. Councillor Greenow spoke to similar effect, noting the establishment of a profitable business in the current economic climate and the lack of affordable housing. He too considered the business to be of great importance to local agriculture in the area, and that the proposals did accord with Policies H7, H8 and H10 of the UDP.
22. It was noted that some members had reservations regarding the issue of an occupancy condition, and whilst they noted that two of the nearest dwellings to the application site had not objected, felt it would be easier to support the application if it was close to the workshop. The Committee noted that the application had been fully supported by the Southern Area Planning Subcommittee. Other members are noted as supporting the officer's recommendation and that the application was clearly contrary to the UDP. There was then a statement in support by Councillor Hunt, who noted the policies but felt that they should be flexible to deal with exceptional applications. He considered the issue of an agriculture tie, and a debate occurred with the Development Control Manager about the mechanics of securing an occupancy condition. There then follows the following passage:
"Members noted the Officer's recommendation but they were minded to approve the application as they felt that the applicant offered a vital service to the local agricultural industry. They also noted the lack of affordable housing in the locality and felt that the applicant should be given the opportunity to live near to his workplace. They did feel that the dwelling and business enterprise should be tied through appropriate conditions and a section 106 agreement."
Councillor RH Smith then closed the debate.
23. I note that those who spoke in support of the proposals did so in terms that they complied with policy, and it was only those who are noted as being in support of the officer's recommendation who expressed the view that they did not comply with policy.
24. The Democratic Services Officer is reported as noting that if the Committee were minded to approve the application, contrary to the officer's recommendation, then there was a need to address any possible conditions. Unlike in many similar situations, officers had not included in their report a set of conditions and heads of terms for a section 106 obligation so that members would have their advice should their recommendation be rejected and permission resolved to be granted. The resolution of the Committee recorded in the minutes is as follows:
"THAT the application be approved subject to appropriate conditions to be recommended by Officers and approved by members through a further information report."
25. It is clear from the terms of the resolution, and indeed the summary of the members' views, that members were as close to resolving the grant of planning permission as it was possible for them to get on that occasion in the absence of advice as to appropriate conditions and planning obligations. There no doubt that they were resolving to grant permission, subject to resolving the issues of conditions and planning obligations.
26. That issue was returned to on 17 March 2010 when a further report was put before the Planning Committee described as a "Further Information Report". This stated under the heading "Background" (interpolating a correction that was later made to the first paragraph):
"1.1 This application was reported to the meeting on 10 February 2010 where it could resolve and be approved subject to appropriate conditions. In accordance with section 4.8.10 of Part 4, Section 8, The Planning Rules of the Constitution, the Head of Planning and Transportation and the Monitoring Officer advised that as they considered this approval of the application raised fundamental policy issues a further information report was necessary in order to address appropriate conditions.
1.2 The report to the 20 January 2010 meeting as updated by the Update Sheet on that date is attached as an Appendix.
1.3 The full Minute is available in Section 4 of this Agenda. In summary the Committee concluded that there was a justification for a house in this location based on the requirements of the applicant's business and his local need."
(The reference to the January meeting was an error and should have referred to 10 February)
27. Officers set out a summary of the Committee's views at 1.3, which implies that members had considered that the application complied with the policy, hence the reference to the requirements of the business and local need.
28. Having updated members on further information and correspondence that had been received the officers set out the legal procedure and the likely financial implications of proceeding with the resolution.
29. It is plain from this section of the report that, despite the clear direction that had been given by members on 10 February, the officers did not consider it appropriate simply to accept that decision, but attempted to reargue the case that members should not grant planning permission. They developed this theme in paragraphs 2.4.3-2.4.6 of the report:
"2.4.3 The Unitary Development Plan develops national policy to suit local circumstances however the policy principle remains that the countryside should be protected from unnecessary development. Policy H8 sets out the criteria against which applications for dwellings are associated with rural businesses will be considered. The primary test is whether it is essential for a worker to be available for the proper functioning of the business at most times.
2.4.4 The applicant currently operates his business from a farm building at Oldfield Farm, but this does not have the benefit of planning permission. On 23 December 2009 the applicant was granted planning permission for a workshop at Oldfield Farm, but to date this has not been implemented. The case for the dwelling is based on the applicant's intention to develop the business so it is advised that until there is a lawful business in operation it would be premature to grant permission for the dwelling. However and importantly the policy basis for such dwellings is that there is an essential requirement to live at or near the business. In this case the business is a blacksmith and it is doubted whether such an activity requires a work live in close proximity. There is no doubt that such a business is valuable to the local community but it is not directly linked as such to Garway and the requirement for a worker to be readily available is considered to be slim.
2.4.5 Unitary Development Policy H10 deals with rural exception housing which includes on an exception basis local housing need. Individual dwellings can be permitted but they should be in locations with a recognisable settlement form with some provision of local community facilities. It is not the intention of the policy to permit isolated new housing in the countryside. In this case there are just three dwellings in the vicinity of the site with the nearest recognisable settlement being Garway Common some 1.5 miles to the south. This is not a location that would meet the context of Policy H10.
2.4.6 In the taking of the decisions the Council is required to determine applications in accordance with the Development Plan, unless material considerations indicate otherwise. It is not considered that the case advanced is so exceptional that it meets the policy tests set out in Policies H7, H8 and H10. Whilst it is possible to approve departures to policy care should be taken in terms of how the decision will be viewed particularly in the context of similar proposals in the past or future. It is important that the integrity of the Unitary Development Plan Policies are upheld."
30. There appeared to be some confusion in 2.4.4 regarding the current operation of the business, but nonetheless it is clear from this section that officers were again making a strong recommendation that permission should not be granted, notwithstanding the resolution of members on 10 February. That was followed up in 2.4.7 by three "potential implications" by which officers sought to persuade members not to continue with grant of permission. The first related to reputation, which incorrectly stated that they had a duty to determine the application in accordance with the Development Plan, as opposed to the correct statement of the duty which they had already set out at 2.4.6. They also sought to suggest that there was a compensation claim that might be brought, even though it is was accepted that such a claim would have been weak, and there was no attempt to provide a balanced view to members as to the weakness of that claim. There was also an issue raised with regards to monitoring and compliance.
31. There is little doubt that officers were determined to seek to persuade members to change their mind, even at 2.4.7 to the extent of setting out reasons to which were not as balanced or as objectively stated as they might have been. It appears to me that officers had moved from providing objective advice regarding the application to Council members to the position where they were acting as advocates for a particular outcome. I am concerned that this tendency might have also affected the formulation of the reasons for the grant of planning permission which is under challenge. It does not necessarily impact on the outcome of this judicial review, but it is a matter of concern that council planning officers should remain objective when providing advice to their members so that members might rely with confidence upon that advice.
32. The advice continued along the same lines in section 2.4.9 of the report, and then went to set out potential "Heads of Terms" for a section 106 agreement and for planning conditions. It is at this point in the report that the issue of the time condition arises. Members were incorrectly advised with regard to the appropriate time condition to be imposed since they were advised to impose three forms of time limit (standard conditions AO1, AO2 and AO3) when in fact they should only have been considering those appropriate to an outline application (standard conditions A02 and AO3). The report ended with "Any Monitoring Officer Advice" which reiterated the strong corporate view of the Council's Planning Department :
"The relevant parts of the Development Plan have been referred to elsewhere in this report. In addition PPS3 is clear that any development in the countryside away from established settlements should be strictly controlled. Moreover, PPS7 states clearly that a primary Government objective for rural areas is to promote sustainable development focusing most development in, or next to existing towns and villages and discourage development of 'green field' land. The Government's aim is to protect the countryside for its intrinsic character and beauty so it may be enjoyed by all. As stated elsewhere in this report there are exceptions to prohibition on development in the open countryside. These relate to dwellings essential for agricultural, forestry workers. In coming to a conclusion in this respect, annex A of PPS7 provides a 'functional' test where it is necessary to establish whether it is essential for the proper functioning of the enterprise for one or more workers to be readily available at most times.
In the light of the foregoing approval of the application would be a departure from the Development Plan and Government guidance."
33. Whatever officers thought they were doing at that time, in the light of the resolution of 10 February, it is undoubtedly clear that they continued to give detailed advice to members about the relevant policy tests, both in terms of the UDP and national policy in PPS7 and PPS3. None of the members of the Planning Committee, having had this repeated advice on at least two occasions, namely 10 February and 17 March, could have been in any doubt about the terms of the relevant policies and what those policies required.
34. At the meeting Mr Heath again spoke in support of his own application and Mr Macrae spoke in opposition. The terms of Mr Macrae's statement were similar from those on the previous occasions: he doubted that there was a need for a dwelling on this site and he argued that a dwelling could be provided on Oldfield Farm or elsewhere. Members discussed the advice that had been received and noted that additional representations in opposition had been received from the Herefordshire CPRE, noting that in CPRE's view the proposals were contrary to policy.
35. There was a debate about the occupancy conditions and whether, if there was to be a sale of the property once developed, it should be provided to local people at a discount. There was a debate as to the discount which concluded that this should not occur, and a discussion as to the heads of terms of the proposed section 106 agreement and the conditions. These dealt with occupancy and requirements for any disposal of the site and matters to be set out in conditions, including the time condition and one relating to the construction of the workshop.
36. The Claimant has stated in evidence that there was some confusion on 17 March as to the purpose of the meeting. It certainly seems to me that officers saw it as another opportunity to try and persuade members to reject the application. However, viewed objectively, the purpose of the meeting on 17 March was to make good the absence of any advice from officers on 10 February with regard to the conditions to be imposed on, or terms of a planning agreement required prior to, the grant of permission.
37. In my judgment there is no real doubt that anyone familiar with the terms of the debate on 10 February (at which the Claimant was present), and the formal resolution which recorded it, would consider that that members had done anything other than resolved to grant planning permission once they had been advised with regard to the appropriate conditions and section 106 agreement. The Claimant says that he had a "small hope" that the members might change their mind and refuse the application but it seems to me from the circumstances I have described, viewed objectively, that there was no realistic prospect of this happening.
The planning permission
38. In accordance with the resolution a section 106 agreement was negotiated and entered into on 16 June and planning permission issued on the next day, 17 June. The permission was issued in the following terms:
"THE COUNTY OF HEREFORDSHIRE DISTRICT COUNCIL hereby gives notice in pursuance of the provisions of the above Acts that OUTLINE PLANNING PERMISSION has been GRANTED for the development described above in accordance with the application and plans submitted to the authority subject to the following conditions:
1. The development hereby permitted shall be begun before the expiration of three years from the date of this permission.
Reason: Required to be imposed by Section 91 of the Town and Country Planning Act 1990.
2. Application for approval of the reserved matters shall be made to the local planning authority before the expiration of three years from the date of this permission.
Reason: Required to be imposed by Section 92 of the Town and Country Planning Act 1990.
3. The development hereby permitted shall be begun either before the expiration of three years from the date of this permission, or before the expiration of two years from the date of the approval of the last reserved matters to be approved, whichever is the later.
Reason: Required to be imposed by Section 92 of the Town and Country Planning Act 1990.
4. Approval of the details of the layout, scale, appearance, access and landscaping (hereinafter called 'the reserved matters') shall be obtained from the local planning authority in writing before any development is commenced.
Reason: To enable the local planning authority to exercise proper control over these aspects of the development and to secure compliance with policy DR1 of the Herefordshire Unitary Development Plan.
5. The development hereby permitted shall not commence until the development approved under Application Reference DMSW/091993/F has been constructed and is available for use.
Reason: In order to ensure that the workshop for which the dwelling is required is available for use having regard to Policies H7 and H8 of the Herefordshire Unitary Development Plan.
6. Notwithstanding the provisions of article 3(1) and Schedule 2 of the Town and Country Planning (General Permitted Development) Order 1995, (or any order revoking or re enacting that Order with or without modification), no development which would otherwise be permitted under Classes A,B,C,D E and H of Part 1 and of Schedule 2, shall be carried out.
Reason: In order to protect the character and amenity of the locality, to maintain the amenities of adjoining property and to comply with Policy H18 of the Herefordshire Unitary Development Plan."
39. There then followed a section headed "Informatives", which referred to the planning obligation and then, although described as an "informative" at paragraph 2, gave the reasons for the grant of permission required under what was then Article 22(1) of the General Development Procedure Order 1995. These stated:
"The decision to grant planning permission has been taken having regard to the policies and proposals in the Herefordshire Unitary Development Plan 2007 set out below, and to all relevant material considerations including Supplementary Planning Guidance:
S2 Development Requirements
H7 Housing in the Countryside Outside Settlements
H8 Agricultural and Forestry Dwellings and Dwellings Associated with Rural Businesses
H13 Sustainable Residential Design.
In reaching this decision the local planning authority was mindful of the particular circumstances of the case, namely the extent to which the development complied with the policy and the way in which local issues of the housing needs of the applicant were addressed.
This informative is only intended as a summary of the reasons for grant of planning permission. For further detail on the decision: please see the application report by contacting [contact details were provided]."
40. The planning obligation, which had been executed the previous day, set out in the third schedule a series of covenants which included a covenant at clause 1 which tied the timing of the development of the dwelling to the completion of the new workshop:
"Not to Commence Development or cause or permit Commencement of Development until development of land at Oldfield Farm, Garway, Herefordshire as authorised by planning permission DMSW/091993/F has been completed and is available for use."
41. Restrictions were placed on the habitable floor area of the dwelling. Requirements were set out in the event of a disposal of the dwelling, requiring it to be disposed of to a qualifying person, which was defined elsewhere in the obligation by reference to those in local need. Although a form of "cascade" provision was provided, as is often found in affordable housing agreements, this did not place any restriction on the disposal value but merely required disposal at open market value.
42. An occupancy requirement was imposed by clause 3 which tied occupation to the use of the workshop:
"The Dwelling shall not be Occupied by anyone except a person or persons (together with any dependants) employed or last employed at Oldfield Forge, Oldfield Farm, Garway, Herefordshire HR2 8HA."
43. It appears that the Claimant had had discussions with his solicitors in May 2010, prior to the grant of planning permission, about the possibility of challenging a decision to grant permission. He had been advised of the need to bring a challenge in no more than three months, so he was at least alerted to the need to comply with the time limits in that respect. He does not say that he was told of the requirement for promptness, but there is little reason to doubt that he was so advised given the expertise of his solicitors in this area of the law.
44. The Claimant says he did not wish to incur the costs at this stage because he was still hopeful that the Council would resolve the matters internally, by which I assume he meant that they might have still refused the application. For the reasons I have already given, it does not seem to me that such a hope had any objective basis given the clear views of members to support the application.
45. On 9 June 2010, the Claimant was told by his solicitors that advice could be given of the prospects of challenge for a fixed sum, but thereafter a conditional fee agreement (CFA) would have to be agreed. As I have mentioned, planning permission was issued on 17 June. The Claimant states that he did not learn of it because it was not published on the Council website until 24 June, and that therefore he could not instruct his solicitors immediately upon grant, but did so as soon as reasonably possible thereafter, namely on 7 July 2010. The Claimant says he made a call to the Council "soon after" the grant of permission to ask what was meant by the "application report" in the reasons, and was told that it referred to the various committee reports.
46. On 30 June the Interested Party made an application for reserved matters approval, pursuant to conditions 2 and 3 on the grant of planning permission, since he was keen to press on with the new dwelling now that he had planning permission. The Claimant's solicitors wrote to the Council in short form on 10 August threatening judicial review without seeking any information, or explaining the proposed grounds. This was not done until then sent a letter before claim, dated 19 August, which I am told was received by the Council on 25 August (coincidentally the same day as the Council approved the reserved matters application).
47. The letter of 19 August set out the matters now found in the claim form and also for the first time in writing raised the question of what was meant by the "application report" in the reasons for the permission. At paragraph 51 it is sought:
"(4) clarification as to what is meant by 'application report' in the decision notice and supply of that documentation if different from the publicly available reports of 25/11/09, 10/02/10 and the further information report (as detailed above)."
48. However, that issue had been raised by the Claimant in June, according to his own evidence, and he had already been told correctly that it meant the various officers' reports to Committee of which both he and his legal advisers were already aware.
49. The Council responded on 7 September rejecting the grounds put forward and asserting that the proposals were in accordance with the Development Plan, that the reasoning was sufficient and the decision rational. It confirmed formally that the reference to the application report was to the officers' reports consistently with what the Claimant had been told in June. The claim was issued on 15 September 2010, just two days within the three month period for judicial review within CPR 54.5.
50. The issues before me are as follows:
i) Whether the claim has been brought promptly within CPR 54.5, and whether the requirement of promptness remains, notwithstanding recent decisions, principally in the context of EU law;
ii) Whether the grant of permission is unlawful, having regard to section 38(6) of the Planning Compulsory Purchase Act 2004, or whether it is otherwise irrational, having regard to the advice of officers and to PPS7 (grounds 1 to 3);
iii) Whether the reasons for the grant of planning permission were inadequate (grounds 4 and 5); and
iv) Whether the time conditions imposed on the planning permission were inconsistent and thus unlawful (ground 6).
51. The Council and the Interested Party submit that the application should be refused permission on any basis because it has not been brought promptly, as required by CPR 54.5. This matter remains relevant before me because I have before me a rolled up hearing, so the issue of promptness which may arise at the permission stage remains in issue.
52. Following the 17 March resolution, planning permission was granted on 17 June, the first letter suggesting judicial review was received from the Claimant's solicitors on 10 August, the letter before claim dated 19 August was received on 25 August and the claim was then only issued on 15 September, two days before the end of the three month judicial review period. It is true that the defendant's response of 7 September did not raise the issue of promptness, but in my view that does not relieve the Claimant of the need to show compliance, nor does it disentitle the defendant from raising it in opposition to the grant of permission. It was certainly raised at a sufficiently earlier stage to allow it to be dealt with without prejudice to the Claimant's case.
53. In Finn Kelcey Council v Milton Keynes Council  Env LR 299, Keene LJ, with whom the other members of the Court of Appeal agreed, held:
"21. As the wording indicates and as has been emphasised repeatedly in the authorities, the two requirements set out in paragraph (a) and (b) of that rule are separate and independent of each other, and it is not to be assumed that filing within three months necessarily amounts to filing promptly... The need for a claimant seeking judicial review to act promptly arises in part from the fact that a public law decision by a public body normally affects the rights of parties other than just the Claimant and the decision maker. As I put it in Hardy v. Pembrokeshire County Council  EWCA Civ 240, paragraph 10:
"It is important that those parties, and indeed the public generally, should be able to proceed on the basis that the decision is valid and can be relied on, and that they can plan their lives and make personal and business decisions accordingly."
In that same case this court rejected a submission that the requirement in CPR 54.5(1) for an application for judicial review to be made "promptly" offended against the principle of "legal certainty" in European law.
22. The importance of acting promptly applies with particular force in cases where it is sought to challenge the grant of planning permission. In R v. Exeter City Council, ex parte J.L. Thomas Co Ltd  1 QB 471, at 484G, Simon Brown J (as he then was) emphasised the need to proceed "with greatest possible celerity", as he did also in R v. Swale Borough Council, ex parte Royal Society for the Protection of Birds  1 PLR 6. Once a planning permission has been granted, a developer is entitled to proceed to carry out the development and since there are time limits on the validity of a permission will normally wish to proceed to implement it without delay. In the Exeter case, Simon Brown J referred to the fact that a statutory challenge under what is now section 288 of the Town and Country Planning Act 1990 to a ministerial decision must be brought within six weeks of the decision. Thus if a planning permission is granted by the Secretary of State on an appeal or a called in application, the objector seeking to question the validity of that decision must act within six weeks, without there being any power in the court to extend that period of time.
23. That factor led Laws J (as he then was) to conclude in R. v. Ceredigion County Council, ex parte McKeown  C.O.D. 463,  2 PLR 1 that it was nearly impossible to conceive of a case in which leave to move for judicial review would be granted to attack a planning permission when the application was lodged more than six weeks after the planning permission had been granted. That was perhaps a somewhat extreme statement of the position, and certainly it was rejected by the House of Lords in R. (Burkett) v. Secretary of State for the Environment  UKHL 23,  1 WLR 1593, where Lord Steyn (with whom the rest of the Appellate Committee generally agreed) said at paragraph 53 that from the McKeown case.
"the inference has sometimes been drawn that the three months limit has by judicial decision been replaced by a 'six weeks rule'. This is a misconception. The legislative three months limit cannot be contracted by a judicial policy decision."
24. I would respectfully agree that, where the CPR has expressly provided for a three month time limit, the courts cannot adopt a policy that in judicial review challenges to the grant of a planning permission a time limit of six weeks will in practice apply. However, that does not seem to me to rob the point made by Simon Brown J and others of all of its force. It may often be of some relevance, when a court is applying the separate test of promptness, that Parliament has prescribed a six weeks time limit in cases where the permission is granted by the Secretary of State rather than by a local planning authority, if only because it indicates a recognition by Parliament of the necessity of bringing challenges to planning permissions quickly. There are differences between the two situations: for example, where the Secretary of State grants a permission, an objector is entitled to be notified of the decision, which is not the case where a local planning authority grants the permission. Thus where in the latter case an objector is for some time unaware of the local authority decision, the analogy is less applicable. That was not the situation in the present case, where... [the objectors] were very well aware of the decisions by the respondent's committee and then by the full Council. My point is simply that, while there is no "six weeks rule" in judicial review challenges to planning permissions, the existence of that statutory limit is not to be seen as necessarily wholly irrelevant to the decision as to what is "prompt" in an individual case. It emphasises the need for swiftness of action.
25. What satisfies the requirement of promptness will vary from case to case. In Burkett the House of Lords held that the three months period runs from the formal grant of planning permission, rather than from the resolution of the local authority to grant, and so in the present case the three months ran from 14 January 2008. The claim form was filed on 10 April 2008 and so was just within the three months period. But was it made "promptly"? The answer to that question depends on all the relevant circumstances. Knowledge of a resolution to grant permission will often be relevant to whether a person has acted promptly, even though time does not formally run until the grant of permission. In the present case, the appellant and those associated with him were aware of the committee's decision on 17 December 2007 to grant permission (it having delegated power to do so) as soon as that decision was made...
26. In the course of the argument... the appellant conceded that there is in the evidence put before this court "no express explanation" for the delay. That in itself is remarkable, given the numerous witness statements lodged on behalf of the appellant...
27. Two other points are advanced on behalf of the appellant on this issue of delay. It is pointed out that a pre action protocol letter was sent on 26 February, threatening judicial review. That is certainly relevant. But the notes to CPR 54.5 in the White Book state that the obligation to comply with the pre action protocol does not remove the obligation to bring the claim promptly, and the appellant's solicitor, experienced in such litigation, would have been aware of that. Such a letter is no substitute for the lodging of a claim form. Secondly, it is argued that the delay should not be seen as serious, given the length of time which the respondent had taken in dealing with the planning application. That I find wholly unconvincing. The length of time taken by the planning authority in reaching a decision may well, from the IP's standpoint, have made it all the more important that any challenge be raised quickly.
28. There is in that connection another factor which bears upon this issue. In public law cases one is particularly concerned with the public interest, and as Sir John Donaldson MR put it in R. v. Monopolies and Mergers Commission, ex parte Argyll Group plc  1 WLR 763, at 774H - 775B:
"Good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary."
54. It follows that although the time for challenge runs from the grant of planning permission itself, it may be relevant to consider whether the outcome was known to the Claimant before the grant of permission, and thus putting him in the position of being able to act with relative swiftness in bringing a challenge once planning permission had been granted, and to consider whether any sufficient reason is advanced for the delay.
55. Mr Burton submits that the claim ought not to be refused permission for the lack of promptness for the following reasons: first, the Claimant acted reasonably in seeking advice from solicitors experienced in litigation such as this before bringing a claim for judicial review, and it should be remembered in bringing such a claim that as Lord Steyn described it in the Burkett case:
"...the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task."
56. Secondly, he says that the Claimant sought that advice expeditiously following the grant of permission. Thirdly, the Claimant could not afford to fund the litigation himself privately and that it took time before the Claimant's legal representatives decided to take the case under a CFA, and that this was entirely to be expected. Fourthly, he said that it was imperative that claimants generally have access to solicitors willing to consider acting under a CFA in judicial review proceedings. This is all the more important in a claim such as this, the purpose of which is to protect the environment, given the United Kingdom's obligations under the Aarhus Convention. Fifthly, Mr Burton also submitted that the court ought to consider whether it is now appropriate to disapply the requirement of promptness having regard to the principle of legal certainty, which requires a fixed period for judicial review, following the CJEU's judgment in Uniplex (United Kingdom) Ltd v NHS Business Services Authority  PTSR 1377 as applied by Collins J in R v (on the application of U & Partners (East Anglia) Ltd v Broads Authority  EWHC 1824 (Admin). In any event, he submitted that the Court's discretion should be guided into applying the same application of the principle of legal certainty by Article 51 of the Charter of Fundamental Human Rights of the European Union ("the EU Charter") adopted in December 2000.
57. In the present case the Claimant was present and spoke at all the committee meetings which heard this application, and he must have been fully aware of the outcome, as well as the terms of the discussion between members and officers. Indeed the terms of his objection were specifically modified as the application progressed from meeting to meeting in order to meet what he saw as the support of Council members for the grant of permission. He was aware of the terms of the officer's advice and the documentation available to the court. He would also have been aware that, whether he agreed with it or not, Mr Heath put forward as the basis for his application the "essential need" he said had for a new house close by, and to go hand in hand with, his new workshop and that the workshop had been given planning permission the previous December.
58. This is not a case where a potential claimant has been left in the dark about what happened, or what views members had expressed, what issues had arisen or what the final decision might have been. Whilst the formulation of the grounds, preparation of the claim and evidence and resolving the funding will doubtless all have taken some time, there is no explanation anywhere in the evidence which justified the delay in the letter before claim of two months, and the overall delay running almost to the end of the three month period. No detailed evidence has been provided as to the timing of the preparation or the obtaining of funding, and how this might have related to the whole period of the delay.
59. The preparation of the claim may be "burdensome" (to use Lord Steyn's word), but the formulation of claims such as these is nonetheless common in this Court and those advising the Claimant are very experienced in bringing them. The issue of what the reference to the "application report" meant in the reasons is advanced as a reason for delay, but it appears to me that that question had already been accurately answered soon after the grant of permission in response to the Claimant's telephone request. Moreover, as Keene LJ held in Finn-Kelcey, the process of the pre-action protocol letter is not itself a justification for delay. If, as is not suggested in the evidence, there were specific problems with negotiating with the CFA, or other reasons to delay the letter before claim, it should have been clear to those advising the Claimant that by 19 August promptness now required immediate, or virtually immediate, action. However, they appear to have been content simply to allow the letter to go out, wait for the response and to issue proceedings nearly a month later.
60. Again there is no explanation for this, notwithstanding the solicitors had warned the Claimant of the timing issue in May, and they must have been aware of the particular need for promptness in planning cases both from their general expertise and the solicitors acting in the Finn-Kelcey case.
61. I do not forget in this assessment either the points made by the Interested Party, and his strong wish to proceed to implement his planning permission because of its important consequences both to his family and his work. As I mentioned, his application for reserved matters approval was made at the end of June, shortly after the issue of planning permission, and it was approved on 25 August. He also puts forward evidence as to his financial prejudice, which he says he suffered as a result of the delay, although with one exception it does seem to me the majority of the prejudice which he described, though real, was not the result of any lack of promptness as such. It mainly results from the existence of the judicial review proceedings and would have occurred whether or not the claim had been brought promptly.
62. The exception to that is the reserved matters application which was made and approved following the grant of permission, and before he was aware of the letter before claim, since it was only received by the Council on the day that the approval was issued. Whilst the specific financial prejudice relating to this application is not great, nonetheless it is a factor to bear in mind as is the fact that the Interested Party relied upon the issue of permission to make this application for reserved matters approval - which is a clear illustration for the need for certainty and promptness in planning referred to in the authorities.
63. I therefore do not find the reasons advanced, whether collectively or individually, to provide a justification for the delay in issuing these proceedings.
64. I turn to consider Mr Burton's other submissions, namely that the requirement of promptness should not be applied at all, or that it should be modified even in a wholly "domestic" planning context. EU law requires a different approach to be taken with regard to promptness in cases where EU law is engaged: see Uniplex and U & Partners. However, this approach does not appear to me to apply to purely domestic cases unless it puts in issue rights under EU law and I note that the judgment of Collins J in U & Partners was expressed, albeit reluctantly at paras. 44-45, in terms of cases involving EU law rights:
"44. It was suggested that Uniplex and Ireland were limited to Directive 89/665. As the citations from those cases show, this limitation cannot be justified. The Court was making the point that the principle of effectiveness was breached by a limitation provision which lacked certainty and so such a provision could not represent a proper transposition of a Directive which required that a person who claimed that action adversely affecting him was in breach of the Directive could take proceedings to challenge it. That was the conclusion reached by HH Judge Thornton Q.C. in R(Buglife) v Medway Council  EWHC 746 (Admin) : see paragraph 63 of his judgment"
65. Mr Burton therefore advances as a final submission on this issue that, even if the Uniplex approach cannot be applied directly in a purely domestic planning context, the court's discretion should be guided to the same result by Article 51 of the EU Charter. This provides:
"1. The provisions of this Charter are addressed to the Institutions, bodies and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers...
2. This Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined in the other Parts of the Constitution."
66. The EU Charter recognises various rights, freedoms and principles including, under Article 37, environmental protection and Article 47, the right to an effective remedy. For a remedy to be effective within Article 47 this requires the application of the general principle of legal certainty, which as interpreted by the CJEU in Uniplex, requires a time limit for judicial review that is certain so that the discretionary requirement for promptness is inappropriate in this context. However, this submission still does not provide a necessary link with any obligations binding on the court in the domestic context which would persuade me to put to one side existing authority on promptness in planning cases (absent EU law rights). Indeed, Article 51(1) and (2) both appear to point to the conclusion that the Charter provisions are only binding in an EU context and in this context is relevant to note that Article 51 is found in the general provisions in Chapter 7 of the EU Charter under the heading "Scope".
67. Mr Burton submitted that what might be the obvious reading of the limitation of the provisions to EU Law is not so. He submitted that the second sentence of Article 51(1) on at least one reading, which is the one he advanced, requires Member States to "respect the rights, observe the principles and promote the application" of the provisions of the Charter not only when they are implementing EU law, but generally. He accepted that the nature of the obligation he submitted was imported by the second sentence of Article 51(1) was not obvious. In that respect at least I agree with him. However, Mr Burton then submitted that if the intention of Article 51(1) was merely to refer to situations involving the implementation of EU law, rather than a wider context, then the second sentence would be superfluous, while the first sentence takes what he described as a "strict implementation" obligation. He said that the second sentenced concerned situations falling outside that obligation, but would include cases where discretion was to be exercised. I disagree.
68. In my judgment Mr Giles' contrary submission is correct. Article 51, taken as a whole and considered in a broad purposive manner, makes it plain that the scope of the EU Charter is concerned with matters arising under EU law. Its purpose is to make it clear that the provisions of the EU Charter apply throughout EU law. To an extent there is repetition since the Charter re states established principles of EU law, rights arising under the European Convention on Human Rights and also rights under the Aarhus Convention. In that context, and given the provisions of Article 51 itself, I do not read the second sentence as creating a separate more general obligation applicable outside of what would otherwise be the scope of EU legal obligations, but as related to the first sentence. Indeed the connection is shown by the phrase "they shall therefore" which links that sentence with the first.
69. Whilst I do not approach the interpretation of the Charter as if it was domestic legislation, nonetheless it would be surprising if the provision designed to define the scope of the EU Charter, and to apply the Charter principles throughout EU law, was then to be read as extending its scope to apply within the domestic law of the Member States where no element of EU law was otherwise applicable. Indeed were I to do so, it appears to me that this would be inconsistent with Article 51(2), since that provides that there is no intention to expand the scope of the powers of the treaties. To adopt the interpretation urged upon me by the Claimant would have precisely that effect, contrary to Article 51(2), in that it would extend the operation of EU law into the purely domestic areas of planning and, by implication, in other areas of UK domestic law where no EU rights were engaged. My conclusion receives some support, in the context of the question of the scope of fundamental rights under EU law generally, from Case C-249/96 Grant v South-West Trains Ltd  E.C.R. I-621 where the CJEU held at :
"However, although respect for the fundamental rights which form an integral part of those general principles of law is a condition of the legality of Community acts, those rights cannot in themselves have the effect of extending the scope of the Treaty provisions beyond the competences of the Community (see, inter alia, on the scope of Article 235 E.C. as regards respect for human rights, Opinion 2/94 34)."
70. Reliance is also placed by Mr Burton on the CJEU's judgment in Case C-240/09 Lesoochranárske zoskupenie VLK v Ministerstvo životného prostredia Slovenskej republiky  2 C.M.L.R. 43 at  which concerned a reference for a preliminary ruling from the Supreme Court of the Slovak Republic. The claimant, an association established in accordance with Slovak law with the objective of protecting the environment, had requested to be a party to the administrative proceedings brought by various hunting bodies relating to the grant of derogations to the system of protection for species such as the brown bear, access to protected countryside areas, and the use of chemical substances in such areas. The question arose of the Claimant's standing and the application of Article 9(3) of the Aarhus Convention, which provides:
"3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment"
71. The CJEU considered whether Article 9(3) of the Convention had direct effect and held as follows:
"44. In that connection, a provision in an agreement concluded by the European Union with a non member country must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure ...
45. It must be held that the provisions of Article 9(3) of the Aarhus Convention do not contain any clear and precise obligation capable of directly regulating the legal position of individuals. Since only members of the public who meet the criteria, if any, laid down by national law are entitled to exercise the rights provided for in Article 9(3), that provision is subject, in its implementation or effects, to the adoption of a subsequent measure.
46. However, it must be observed that those provisions, although drafted in broad terms, are intended to ensure effective environmental protection.
47. In the absence of EU rules governing the matter, it is for the domestic legal system of each Member State to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from EU law, in this case the Habitats Directive, since the Member States are responsible for ensuring that those rights are effectively protected in each case (see, in particular, Case C 268/06 Impact  ECR I2483, paragraphs 44 and 45).
48. On that basis, as is apparent from well-established case law, the detailed procedural rules governing actions for safeguarding an individual's rights under EU law must be no less favourable than those governing similar domestic actions (principle of equivalence) and must not make it in practice impossible or excessively difficult to exercise rights conferred by EU law (principle of effectiveness) ...
49. Therefore, if the effective protection of EU environmental law is not to be undermined, it is inconceivable that Article 9(3) of the Aarhus Convention be interpreted in such a way as to make it in practice impossible or excessively difficult to exercise rights conferred by EU law.
50. It follows that, in so far as concerns a species protected by EU law, and in particular the Habitats Directive, it is for the national court, in order to ensure effective judicial protection in the fields covered by EU environmental law, to interpret its national law in a way which, to the fullest extent possible, is consistent with the objectives laid down in Article 9(3) of the Aarhus Convention."
72. I do not consider that the CJEU's decision here assists the Claimant. The CJEU was concerned specifically with the application of Article 9(3) of the Convention and whether it had direct effect - which it did not. The principle of effectiveness set out in paragraphs 47-48 is one which applies to the safeguarding of rights under EU law in the national legal systems of the Member States. Collins J's judgment in U & Partners does precisely that in the context of "promptness" and the safeguarding of EU law rights in the judicial review context. Since at present neither Aarhus or the EU Charter applies to non EU law rights in this jurisdiction, the obligation in paragraph 47 is not relevant to this case which is not concerned with any rights under EU law. This approach is also reflected generally in the position adopted by the Courts with regard to the application of the Aarhus Convention and applications for protective costs orders in the national law context (see Morgan v Hinton Organics (Wessex) Ltd  Env LR 30 at paragraph 47(iv).
73. Whether the Rules Committee decides to make general changes to the Part 54.5 is not a matter for me, and my decision in this case must be guided by the long standing authorities regarding promptness in planning cases, re affirmed in Finn-Kelcey, at least where they do not concern the application of EU law rights. Since I do not consider that the claim engages issues of EU law it would not be appropriate to refer the issue for a preliminary ruling to the CJEU as Mr Burton suggested.
74. It is finally submitted that if I consider the application not to have been made promptly, then I should extend the time for the making of the application, and my attention was drawn to the criterion under CPR 3.9. I do not consider it is appropriate to extend time here for the same reasons I have considered that the claim is lacking in promptness, namely the importance in planning cases of obtaining certainty within a relatively short period of time.
75. I have also had regard to the impact of the proposals on the Interested Party, as set out in his witness statements, setting this against the nature of the complaint and the judicial review and also its limited compass in involving no issues of wider significance - since it involves only an application for a single dwelling in the specific circumstances considered by the Planning Committee.
76. I therefore propose to reject the Claimant's argument on promptness and refuse the application to extend time, unless I find the grounds of challenge so compelling that it would be appropriate to grant permission, notwithstanding the lack of promptness.
77. I therefore turn to the remaining issues
(2) Perversity and breach of section 38(6)
78. The first group of grounds (grounds 1 to 3) raise in various forms the issue of the rationality of the decision to grant planning permission. It is axiomatic that while section 38(6) of the 2004 Act requires planning applications to be determined in accordance with the Development Plan, this is subject to cases where material considerations indicate otherwise it follows that a proposal may be contrary to policy, but it may nonetheless be permitted if material considerations "indicate otherwise". Whether they do so, and whether the proposals comply with the Development Plan, is primarily a matter for the judgment of the decision-maker: see City of Edinburgh Council v the Secretary of State for Scotland  1 WLR 1447. The grant of permission in the face of contrary policy is not, for that reason, unlawful, even given the current context of what is termed the "plan-led system" first introduced in 1991.
79. However, that is not the issue here. What is submitted is that firstly there was a breach of section 38(6), since the proposals are said to be contrary to the Development Plan, secondly, that the Defendant Council failed to acknowledge and grapple with the fact that development was contrary to provisions not only of the plan but of PPS7 and, thirdly, the decision was, in any event, Wednesbury unreasonable or perverse in the circumstances, particularly given the clear advice from officers.
80. I propose to take all these grounds together since it is common ground that the key policies, H7 and H8, were reflective and/or consistent with national policy in PPS 7. It is relevant to consider the two key Development Plan Policies H7 and H8, which provided, so far as relevant, as follows:
"H7 Housing in the countryside outside settlements
Proposals for housing development outside Hereford, the market towns, the main villages and smaller settlements will not be permitted unless:
(1) the development is clearly necessary in connection with agriculture or forestry and cannot be located in a settlement and complies with policy H8;
(2) it is necessarily accompaniment to the establishment or growth of a rural enterprise, and complies with policy H8; or
(7) it is rural exception housing in accordance with policy H10."
81. Policy H8 provides:
"H8 Agricultural and forestry dwellings and dwellings associated with rural businesses
Proposals for agricultural dwellings and dwellings associated with other rural businesses arising under policy H7 will only be permitted where it can be demonstrated that a long term genuine need exists for the dwelling as an essential part of a financially viable business, and that such need cannot be met in existing accommodation. Such dwellings should:
(1) make use wherever possible of existing buildings in preference to new development;
(2) be carefully sited within the unit or in relation to other dwellings;
(3) [issues of scale, etc]"
Where the evidence of a long term need for a dwelling is inconclusive or where the enterprise has not been established, planning permission for temporary accommodation may be granted for a maximum period of three years. Successive extensions will not normally be granted. Temporary accommodation should be carefully sited within the unit or in relation to other dwellings.
Planning permission for a new dwelling permitted in accordance with this policy will be subject to an occupancy condition. Agricultural occupancy restrictions may also be applied to any existing unfettered dwellings within the farm unit under the applicant's control and which need at the time of the application to be used in connection with the farm. In the case of new enterprises, any associated agricultural dwelling will be subject to a condition that the dwelling shall not be occupied until other works necessary for the establishment of the enterprise have been completed. Dwellings permitted in association with non-agricultural businesses will be bound to the business by condition or planning obligation."
82. PPS7 imposes similar requirements to Annex A, as the parties agree, and it is not therefore necessary to quote from the relevant sections at any length. The policy requires the application of what are termed the "functional" and "financial" tests which require a need to be shown for the dwelling by reference to the needs of a business and to show that the business is economically viable. Whilst the policy applies to both agricultural and rural enterprise dwellings it emphasises the requirement that that any new dwelling "should be sited so as to meet the identified functional need and to be well related to existing farm buildings or other dwellings". Where a need to provide accommodation for such a rural enterprise is shown it will be appropriate to subject such new dwellings to occupancy conditions (which was done here).
83. Other policies in the UDP are also referred to, including Policy S1, the aim of which is to promote sustainable development and Policy S6, which specifically looks at the issues of sustainability in the context of transport, including reducing reliance on the motorcar by the location of redevelopment either within or without existing local urban centres. LA2 is relevant to the protection of landscape character. DR3 is a movement policy to ensure, amongst other things, safer means of access into and out of a site and T8, which has similar objectives to DR3. It is unnecessary to refer to these policies in detail and their key elements were referred to in the officers' reports, from which I have quoted earlier in this judgment.
84. In my judgment, this group of grounds do not show an arguable case since they proceed on the basis that the only rational judgment which could be reached was that the proposals were contrary to Development Plan and to PPS7 - that no reasonable planning decision-maker could have reached any different view from that expressed by the officers. I therefore reject the submissions.
85. It is axiomatic that the exercise of judgment in planning cases is generally a matter for the decision- maker (in this case the local members), and not for those advising them - even those employed as council planning officers. As Lady Hale stated recently in Morge v Hampshire CC  1 WLR 268 at :
"... As Lord Hoffman put it in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, para 69: ‘In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them.' Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved."
86. It is equally axiomatic that the courts have consistently set a high threshold for allegations that the exercise of planning judgment was unreasonable. I refer to Lord Hoffman's frequently cited dicta in Tesco Stores v the Secretary of State for the Environment  1 WLR 759 at 780, which says:
"If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State..."
87. This principle has been visited by this court on occasions too numerous to detail, but see, for example, Lord Clyde in the City of Edinburgh at page 1459 C to D where he held that the plan led system had not changed the fundamental principles set out by Lord Hoffman and Sullivan J (as he then was) in R v (on the application of Newsmith Stainless Ltd) v the Secretary of State  EWHC (Admin) 74 at  to  (albeit in the context of an inspector's appeal decision).
88. In terms of the Development Plan Policies, and the issues generally, the members were entitled to apply their own understanding and familiarity with the area and local issues in reaching their decision. Whether the proposals comply with the Development Plan is not to be determined by compliance or non compliance with one or more policies, but by looking at the issue of the compliance with the Development Plan in the round.
89. Putting the reasons challenge to one side for the moment,, I do not consider this is a case where it could be said that the judgment of the members was perverse, still less because they disagreed with the repeated and forceful advice from their officers. The judgments in respect of Development Plan Policies involved considerations under H7, for example, whether it was a necessary accompaniment to the establishment of growth of a rural enterprise, and under H8 the issues arose whether there was a "long-term genuine need" or "an essential part of a financially viable business" and whether "such need cannot be met in existing accommodation".
90. The issues were set out by the planning officers for members' attention and given the repetition of that advice over several occasions, and the summary of the debates which is recorded in the minutes, it seems to me impossible to argue that members were either unaware of, or did not understand, the applicable policy and the issues arising.
91. The difference between officers and members, in my judgment, plainly arose with regard to the application of the facts and judgment to the policies. In the present case Mr Heath is plainly responsible for a rural enterprise, and members were entitled to consider that his proposed dwelling was an essential accompaniment to its growth. He had provided accounts, there being no specific form of evidence prescribed by a policy, and he himself gave information in writing and spoke orally at each of the three meetings where the application was considered.
92. Mr Burton emphasised there was no need for a dwelling only one kilometre from Mr Heath's workshop, as opposed to one mile or some other distance. That question assumes that members were not entitled on the evidence to find that it was essential, or that the court is in a better position than members to make such a decision, which is not the case.
93. With regard to the landscape, sustainability and access issues, these matters were drawn to Members' attention and were dealt with by the imposition of conditions and by the reserved matters approval. They are all typical matters of planning judgment, and whatever the position with regard to reasons, members clearly had regard to them, and I cannot see any basis for finding perversity in their judgment.
94. Members were aware of the terms of the policies, including PPS7. As I have already said, it would have been difficult for them not have been aware of them, given the extent to which the officers reminded them of its terms and sought to persuade them of their views. They had information as to the need of Mr Heath's business and why Mr Heath could not meet his need in existing accommodation, and it had been made clear that his grandfather could not accommodate his need at Oldfield Farm.
95. This court is not in a position to question the facts which are for members to consider and assess and, whilst the information provided by the Interested Party might not have persuaded everyone (it certainly did not persuade the officers), nonetheless meant that it was a matter on which members were entitled to reach the conclusions which they did. It also follows from the propositions I have set out, the fact that the case officers sought to persuade members to a different view, with a degree of persistence which others might not have shown, does not detract from and, if anything, adds weight to the Defendant's case that members were well-acquainted with and understood the planning issues.
96. The judgments, which were involved in the determination under the UDP policies, were planning judgments to be made by members, and for the reasons I have indicated the case does not approach, let alone pass, the high threshold of demonstrating perversity. Moreover, unless it could be said, contrary to what I have already held, that the proposal could only rationally have been regarded as contrary to the Development Plan, then the ground based on section 38(6) inevitably fails.
97. The PPS7 ground does not provide a distinct ground of challenge given the accepted correspondence between the substance of the policies and that of UDP policies H7 and H8. I do not consider it arguable, for the reasons I have mentioned, that members did not have PPS7 well in mind when reaching their decision. Indeed, the fact that officers were assiduous in their advice underlines the fact that members' attention was drawn to the issues and policies. They chose to take a different view of the planning merits to that expressed by officers, as they were entitled to do.
98. Grounds 1 to 3 therefore fail.
99. Under grounds 4 and 5, which relate to the summary reasons to be given to the grant of permission, the Claimant is on much firmer ground. Article 22 of Town and Country Planning (General Development Procedure) Order 1995 (now superseded) provides, so far as relevant:
"22. Written notice of decision or determination relating to a planning application
(1) When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and -
(a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision;
(b) planning permission is granted subject to conditions, the notice shall: -
(i) 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 their full reasons for each condition imposed[, specifying all policies and proposals in the development plan which are relevant to the decision];
(c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposals in the development plan which are relevant to the decision...".
100. Since this is a case which fell within art 22(1)(b) what was required was a summary of reasons for the grant, to be contrasted with the full reasons which were required under 22(1)(c) if they had refused permission. In R (on the application of Wall) v Brighton and Hove District Council  1 P&CR 33, Sullivan J (as then was) considered what were at the time the new provisions of Article 22(1):
"53... the requirement to give summary reasons for a grant of planning permission should be seen as a further recognition of the right of the public to be involved in the planning process. While the requirement to give 'full reasons' for a refusal of planning permission, or for the imposition of conditions, will principally be for the benefit of the applicant for planning permission, who will be better able to assess the prospects of an appeal to the Secretary of State, the requirement to give summary reasons for the grant of planning permission will principally be for the benefit of interested members of the public. The successful applicant for planning permission will not usually be unduly concerned to know the reasons why the local planning authority decided to grant him planning permission. ...
55. The new requirement does not impose an undue burden upon local planning authorities. Officers' reports customarily include recommended reasons for refusal of planning permission or for the imposition of conditions. Members are free to debate those recommendations and agree or disagree with them, adding or striking out reasons for refusal or conditions. When officers recommend the grant of planning permission there is no reason why their reports should not similarly contain recommended summary grounds for so doing. Very often the conclusions in an officers' report will in effect be a summary of the grounds for granting planning permission. The members will be able to adopt or amend the officers' summary grounds, but the requirement to set out summary grounds in the decision notice will ensure that the members decide in public session why they wish to grant planning permission.
56. A failure to include the summary reasons in a decision notice will not render the grant of planning permission null and void... On the other hand, such a failure could not be described as 'so nugatory or trivial that the authority can safely proceed without remedial action' (see London & Clydeside above)... If the defective decision notice is challenged in an application for judicial review the court will have a discretion to quash the notice. How it exercises that discretion will depend upon the particular facts of the case, where it fits within the 'spectrum of possibilities' referred to by Lord Hailsham in London & Clydeside.
101. Sullivan J then considered the reasons given by the authority could be supplemented or explained after the issue of the Decision Notice:
"58. The new requirement to give summary reasons for the grant of permission will be particularly valuable in cases where members have not accepted officers' advice, where the officer has felt unable to make a recommendation, where the officer's report fails to take account of a material consideration, but that omission is said to have been remedied by the members during the course of their discussions, or where an irrelevant factor has been relied upon by some members during the course of their discussions and it is important to ascertain whether it was one of the Committee's reasons for granting planning permission. In such cases and I emphasise that these are merely examples there would have to be very powerful reasons for not quashing a decision notice which did not include the local planning authority's summary reasons for granting planning permission. To allow extrinsic post hoc evidence as to what the local planning authority's reasons were in such cases would perpetuate the very problems that Parliament intended the substituted article 22(1) to address.
59. While there can be no objection in principle to a local planning authority amplifying its summary reasons, since by definition they will not be its full reasons for granting planning permission (see above), it would equally frustrate Parliament's intention if local planning authorities were able to rely post facto on entirely different or wholly new reasons for granting planning permission..."
102. In this context the learned judge considered the judgment of the Court of Appeal in the housing context in R v Westminster City Council ex parte Ermakov  2 All ER 302 to be applicable to the question of later reasons:
"59. Although Ermakov was concerned with a wholly different statutory scheme, where the decision and the reasons for it are contained in a letter sent by a local authority housing officer, and there is no equivalent of an officer's report or committee consideration, the "good policy reasons" given in subparagraph (3) on page 316, as to why a decision that does not contain any reasons should prima facie be quashed as unlawful, apply with no less force to a decision notice granting planning permission. The fact that summary reasons for granting planning permission are provided for the benefit of the public, rather than for an individual applicant for housing assistance, does not lessen the need both to inform those concerned and to avoid sloppy decision making."
103. While the question of the admissibility of extrinsic evidence as to the reasons for the members reaching the decision is to be approached with considerable caution, this is not to say that the reasons cannot be judged in their context, namely that of the process which proceeded it. Summary reasons do not have to be read in isolation: see Sullivan LJ in Garner v Elmbridge Borough Council  EWCA Civ 891 at . However where, as here, members have not adopted the recommendations of officers, that context is likely to be less of assistance than in cases such as Garner where they did so. As has been observed in the authorities, the question of reasons turns very much on the facts.
104. In the present case the defendant has submitted evidence from two councillors, the Head of the Planning Committee, Councillor Hunt, and Councillor Smith, who spoke in favour of the application on each occasion. Mr Burton argued that I should not treat them as ex post facto reasons, relying on Wall, amongst other authorities. I agree that this is not a case where there are exceptional reasons, such as those suggested in Wall, which would justify the admission of extrinsic evidence ex post facto. The reasons could be considered in their context, but that is the context which led to the giving of the reasons - not attempts to explain reasons after the event and which have not been put before, or endorsed, by the Planning Committee.
105. Mr Giles suggested the Council was not seeking to give reasons after the event, but merely to explain what the reasons were at the time. However, in such cases, as the authorities make clear, it is far preferable to take the issue back to committee if there is doubt, when the issues are fresh in mind, to get the members collectively to state their reasons.
106. Mr Burton submitted that I should approach the reasons in the decision notice, having regard to the well-known judgment of Lord Brown in South Buckinghamshire Borough Council v Porter No 2  1 WLR 1953 at . However, Lord Brown's remarks at  were addressed to the more onerous duty to give reasons in the context of a planning or enforcement appeal, and not the duty to give summary reasons under what was Article 22(1). In R (on the application of Siraj) v Kirklees Metropolitan Council  JPL 571, Sullivan LJ held:
"13 ... When considering the content and adequacy of summary reasons it is important to bear in mind the contrast between the requirement in paragraphs (a) and (b) in Article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995 ("the GPDO"), now repealed and re enacted in Article 31 of the Town and Country Planning Development (Management Procedure) (England) Order 2010, which at the material time required a decision notice granting planning permission to include "a summary of [the reasons] for the grant of planning permission" and paragraph (c), which required that a decision notice refusing planning permission "shall state clearly and precisely all reasons for the refusal".
14. A local planning authority's obligation to give summary reasons when granting planning permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal. I mention this because, although Mr Roe in his oral submissions before us recognised that there was indeed such a distinction between summary reasons and the reasons to be expected in a decision letter, the appellant's skeleton argument relied on the speech of Lord Brown in South Bucks District Council v Porter (No 2)  UKHL 33;  1 WLR 1953 at paragraph 36. It is important to remember that case was concerned with the adequacy of reasons in a Secretary of State's decision letter. Although a decision letter should not be interpreted in a vacuum, without regard for example to the arguments that were advanced before the inspector, a decision letter is intended to be a "stand alone" document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal. By their very nature a local planning authority's summary reasons for granting planning permission do not present a full account of the local planning authority's decision making process
15. When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.
16. Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. Mr Roe referred us to the observations of Collins J in paragraph 28 of his judgment in R (on the application of Midcounties Co operative Ltd) v Forest of Dean DC  EWHC 1714 (Admin). For my part, I would respectfully endorse the observations of Sir Michael Harrison in paragraphs 47 to 50 of R(Ling)(Bridlington) Limited v East Riding of Yorkshire County Council  EWHC 1604 (Admin).
17. In the present case the members agreed with the officer's recommendation, and there is nothing to suggest that they disagreed with the reasoning in the report that led to that recommendation...
18. Having correctly summarised the test, the officer was not in my judgment required to repeat it in full whenever it was being considered in the remainder of the report...
19. It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a commonsense manner, bearing in mind the fact that they are addressed to an informed readership, in this case the respondent's planning subcommittee."
107. In my judgment, as Mr Giles rightly acknowledged, the reasons set out in Informative 2 were poorly drafted and expressed. Whilst officers had done their utmost to persuade members to refuse permission, once the decision to grant permission had been taken it was their duty to understand and record in the reasons the summary of the basis on which members decided to grant permission. I am far from convinced that the officers here, having had their repeated strong advice rejected, were as assiduous in the discharge of their duties to reflect their members' views in formulating the reasons as they had been in the expression of their own views. There is no excuse for the sloppy approach to reasons adopted here, given the amount of judicial guidance which has been given since the duty to give summary reasons was first introduced in 2003. They can be contrasted unfavourably with the clearer draft reasons for refusal contained in the officers' recommendations which I have quoted.
108. However, I agree with Mr Giles that there are strong indications as to what members thought from the recorded discussions of the minutes, and from the fact that they followed the same lines of discussion as the Subcommittee, whose views were summarised in the February report. Further, the views of the members in February were also summarised in the public minutes and in the March report. Informatives to the conditions taken with those minutes, and the language of the reasons themselves, all point to the conclusion that the majority of the members in favour of the proposals thought that the proposals did indeed accord with the Development Plan:
"the extent to which the development complied with policy and the way in which local issues of the housing need of the application were addressed."
109. It seems to me to be sufficiently clear that members were not in agreement with the repeated fundamental recommendations that the proposals were contrary to policy. The Claimant, given his attendance at the meeting, cannot have been in genuine doubt as to the views of those determined to grant planning permission. Of course that is not the test for the adequacy of the summary of the reasons, as explained in Wall and Siraj. It must be clear to members of the public generally who will otherwise only have the available documents to rely on since they will not have been present at the debate. In the circumstances here, the public would have access to the summaries of the debates and the minutes, but is that sufficient for the purposes of compliance with the duty?
110. In my judgment, whilst the context provides a basis for understanding the approach of the members, I agree with Mr Burton's submissions that the reasons themselves for the decision notice simply fail to give the summary of the main reasons for granting permission. I do not accept his submission that there are no reasons at all, but they are certainly not adequate to discharge the statutory duty. Moreover, they are not assisted in this case by reference to the officers' reports since their recommendations were not accepted by the members, and the reference in the reasons to the "application report" adds obscurity to, rather than casting light on, the reasons.
111. However, because as I have indicated there were other matters in the context of the decision-making which provided a basis for understanding members' views, and the summary reasons come at the end of a long process, which here includes the debates which were publicly recorded and minuted, the question is what relief would be appropriate here and whether it requires me to reach a different conclusion on the issue of promptness. This is not a case like Wall where there were no reasons at all, as here there are publicly available documents which show why members thought that permission should be granted - taking a common sense and realistic view of matters.
112. In my judgment the context here leads me to conclude that it would be disproportionate to quash the permission for the extant, but inadequately expressed, reasons. As was said in Wall and the following cases, the failure to provide reasons, in accordance with Article 22(1)(e), even if there are no reasons at all, does not render the permission void or of no effect. Although there may be a presumption in such cases that the decision should be quashed, there is a spectrum of possibilities as to relief which will depend on the specific circumstances of the case.
113. In this context I am assisted by Ouseley J's judgment in R v (on application of) Midcounties Co operative Limited v Forest of Dean District Council  EWCA 964 (Admin),  to :
"195. .. The question is: is this a summary of policies? I do not think it is. A summary of the substance or point of the policies is required. I appreciate that could be a lengthy exercise for the 40 plus policies but no more than a short single sentence is required in a summary or shortened style. The summary would be such as would enable the reader to see how the policy would or could be relevant. Its particular relevance or role for the case does not need to be described. Still less does any conclusion or reasoning relating to its application have to be provided. Technical terms as to what, for example, are meant by a sequential approach or the Carpets of Worth/Severn Road Phase 2 do not have to be explained.
196. I see no basis whatsoever, however, for quashing the planning permission because of this failure to refer to the policies. That does not bear at all on the lawfulness of the planning permission and the failure has caused no prejudice at all. It merely establishes that there has not been compliance with that particular rule. That would be adequately remedied by a mandatory order requiring a very short summary. However, I see no reason in this case to make such an order, to waste the District Council's time and to advance Midcounties not one wit. It is not what it seeks, which is the quashing of the planning permission. It has to show a legal error which it has failed to do. It is sufficient in my judgment if I state the position for the future."
114. Like Ouseley J, I do not consider that I should quash the permission in this case in the circumstances I have described and given the lack of genuine prejudice as a result of the inadequately expressed reasons in the decision notice. Had I not been against the Claimant on the issue of promptness, the non compliance in this case would have led to what I would have regarded as an appropriate remedy in this case, namely a mandatory order requiring the statement by the Council of short summary reasons explaining why the proposals were considered to be acceptable, by reference to the principal relevant policies of the Development Plan.
115. It follows, that my conclusion on the issue of reasons is not one which is so compelling that it provides either a reason for the grant of permission for judicial review despite the lack of promptness or for the extension of time. I therefore reject Grounds 4 and 5.
(4) Inconsistent Conditions
116. Condition 1 was imposed purportedly in accordance with section 91 of the Town and Country Planning Act 1990 and conditions 2 and 3 in accordance with section 92. Condition 1 was a condition required to be imposed on a detailed planning permission, whereas conditions 2 and 3 were appropriate to be imposed on outline permissions. This was an outline application and condition 1 was undoubtedly inappropriate and incorrectly imposed.
117. Sections 91 and 92 deal with the applications of conditions limiting the duration of planning permission. The type of condition found as condition 1 is required for detailed planning permissions and section 91(4) specifically excludes from that requirement "any outline planning permission as defined by section 92". Section 92 defines "outline planning permission" and requires the imposition of a time condition akin to those in conditions 2 and 3 - although the format used by the Council here was not the most up to date format required by section 92, given the removal of section 92(2)(e)(i), as Mr Burton pointed out. However, taking conditions 2 and 3 together, as Mr Burton recognised, this does not itself show that conditions 2 and 3 were themselves not compliant with section 92.
118. Since, this was an outline planning condition it was subject to section 92 and section 92(3) and would have deemed an appropriate time condition to apply, even had the local authority omitted to impose any condition at all to that effect.
119. In my judgment, as Mr Giles rightly accepted, the Council acted ultra vires in imposing condition 1 given the provisions of section 91(4)(g). However, the question which remains is whether that condition could be severed from the planning permission whilst leaving the remainder of the permission intact.
120. That issue of severance was considered by Ouseley J in the Midcounties case, in the context of a different form of condition and on an issue which, like paras. 195-6 of his judgment was not challenged before the Court of Appeal. The issue which arose was the severability of one unlawful part of a condition, which allowed the planning authority to make informal amendments and which was referred to as "the tailpiece". Ouseley J said this:
"71...I accept, that a power of excision or severance and partial quashing exists. It is illustrated by Mouchell Superannuation Fund Trustees v Oxfordshire County Council  1 PLR 97, in particular page 109F to G.
72. Although that case concerned the quashing of a condition as a whole, and here it is the tailpiece alone which contains the unlawfulness, I see no reason why the principles which that case acknowledges should not be as capable of application to part of a condition, as they are capable of application to a condition as part of a permission. This tailpiece is linguistically severable, and after severance the condition requires no further amendment nor the insertion of any other words to make linguistic and planning sense. The substance of the condition would not be altered. It retains the floorspace limits which are at the heart of the condition and are what the condition aims to achieve. It reflects exactly what was applied for, assessed and contemplated in the officer's report, by the committee and approved by it. It is not, in my judgment, an important part of the planning condition, let alone of the planning permission. Its excision merely prevents the District Council doing what it would have been unlawful for it to do any way.
74. ... In my judgment, severance does not involve substituting a court decision for one not made by the Council, let alone for one that it is possible the Council may not have made if it knew the tailpiece to be unlawful. The condition would have been issued without that tailpiece had attention been paid to its lawfulness by the officer who added it after the report to committee was approved as the basis for the grant. This tailpiece was never referred to in the officer's report or in the debate and only emerged in the final planning permission when the officer under delegated powers issued the permission; it was not itself considered by the Council."
121. Mr Burton referred to the House of Lords' judgment in Kent County Council v Kingsway Investments (Kent) Ltd  AC 72 as support for the proposition that a time condition is fundamental and therefore cannot be severed from the permission.
122. In that case the court was concerned with the question of whether the time condition placed on an oral condition granted before the introduction of time conditions was lawful and, if not, whether it was severable. The majority of the House of Lords held that the condition was lawful, but would not have been severable. Lord Morris held at pp. 102 - 103:
"There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed. In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off. It will be otherwise if some condition is seen to be part, so to speak, of the structure of the permission so that if the condition is hewn away the permission falls away with it. In his judgment in Hall & Co Ltd v Shoreham by Sea Urban District Council  1 WLR 240, 251 252 Wilmer LJ pointed to the contrast between a case in which one or two trivial conditions might be held to be ultra vires (where it would be difficult to justify saying that the whole permission failed) and a case in which conditions are 'fundamental to the whole of the planning permission' in which case the planning permission would fail. In the same case Pearson LJ (as he then was), differentiated at p 261, between conditions which are 'essential, or at least important' and those which are 'trivial or unimportant'.
On this issue I am in agreement with the conclusion reached by the learned judge and by Lord Denning MR. If in 1952 and 1953 the points had occurred to the respondents and if they or anyone else had persuaded the appellants that condition (ii) was invalid all the indications are, not that the appellants would have abandoned a time condition, but that they would have insisted on one while so phrasing or redrafting its wording as to meet the somewhat technical points that have now for so many days claimed the attention of the courts. I agree with the learned judge and with Lord Denning MR, that the appellants considered that a time condition was of fundamental importance and I agree that if condition (ii) is void it cannot be deleted so as to leave the permission (subject to the other conditions) still subsisting."
123. The Kingsway Investments case does not appear to me to support a different approach from that of Ouseley J in Midcounties. In my judgment the fallacy in Mr Burton's approach arises from the terms of his argument that the condition is inconsistent with conditions 2 and 3 and from the fact that even if condition 1 were severed there would remain the important time conditions. This was not the case before the House of Lords. The only consequences of severance here would be to remove the condition, which the authority could not have lawfully imposed, and to leave intact the correct express time conditions. Even if there had only been one time condition, section 92(3) would have filled the void created by its severance which would not have been the law at the time of the Kingsway Investments decision.
124. Therefore if I were to quash condition 1 this would not interfere with the basis or sense of the Council's decision. It is true that the condition, assuming it to have been model condition AO1, was the subject of a resolution on 17 March but what the Council was seeking to do was to subject the outline permission to the appropriate time condition. It is clear that there was a simple error which could have been cured without a disproportionate effect upon the permission as a whole.
125. The issue is wholly academic for the reason that I am told that, following the grant of reserved matters approval on 25 August 2010, development has begun and so the permission has been implemented, whichever of the time conditions would have applied. Had I not rejected the challenge on the grounds of lack of promptness, I would not have granted relief in respect of this ground or, at most, relief would have been restricted to quashing condition 1 thus allowing conditions 2 and 3 to remain attached to the permission without inconsistency.
126. In the light of the reasons I have given I refuse permission due to the lack of promptness. I do not consider, in any event, that the grounds advanced were of sufficient significance, or so compelling, that they would lead me to extend time or to grant permission. Having heard full argument on all grounds, had I granted permission I would nevertheless have refused to quash the permission for the reasons I have given.
127. The application is dismissed.
128. MR GILES: My Lord, I seek an award for the costs of the defendant. I think in all the circumstances there has not been a matter raised by the Interested Party which was not raised by the defendant. However, the evidence of the Interested Party has been a significant component of your Lordship's judgment on those issues.
129. THE DEPUTY JUDGE: The evidence of the Interested Party in the form of the letter to the Planning
Committee? The Interested Party has submitted several witness statements and you are seeking costs of those, are you?
130. MR GILES: I think it is appropriate for me to make the application I go no further than that for the preparation and submission of those witness statements for the Interested Party. As far as the defendant is concerned, I ask for an order for full costs, save any costs involved in the protective costs order applications that the Claimant made.
131. THE DEPUTY JUDGE: What do you want to do about those?
132. MR GILES: There be no order.
133. THE DEPUTY JUDGE: Mr Burton?
134. MR BURTON: Yes, my Lord, I am grateful. I had one correction, my Lord. Is it worth me attempting to tell my Lord the correction?
135. THE DEPUTY JUDGE: The shorthand writer might want to take a note of it.
136. MR GILES: Obviously I cannot tell my Lord what page of the judgment it is on. I thought that my Lord might have said Policy S3, rather than S6 when describing early on. It is tiny, anyway.
137. THE DEPUTY JUDGE: I will bear that in mind if I have to approve the transcript.
138. MR BURTON: My Lord knows our position in general, as I have set out in my skeleton, based upon Davey v Aylesbury, is that the court, which of course always has a very wide discretion when it comes to costs, should exercise that wide discretion here. I have quoted in my skeleton argument what the relevant paragraph is. Would it help if I took my Lord to
139. THE DEPUTY JUDGE: -- I have just reminded myself of what Sedley LJ says.
140. MR BURTON: The point is really a very simple one here: the claim was brought in the public interest. I hope that is clear. My client had, as he said throughout, no personal interest in this. My Lord has recognised some problems within the reasons given, and it is vitally important, particularly in a rural area such as Herefordshire, that everyone concerned is clear in matters going forwards in further permission applications that may come before the District Council, the basis for which permission will be granted for dwellings in the open countryside. That clearly was at the heart of this concern. That has always been at the heart of this concern. On that basis I do ask my Lord to exercise his discretion.
141. THE DEPUTY JUDGE: How do you say I should exercise my discretion?
142. MR BURTON: I say you should exercise your discretion with either an order for no order as to costs, or a limited order for costs. I say that, bearing in mind I entirely understand why my Lord ordered the rolled up hearing in order to consider, amongst other things, delay, but bearing in mind what my client desperately hoped for was a decision one way or the other at permission, he would have been protected had that been the case. It is one of those difficulties in this process that he has ended up at the full hearing and potentially exposed to considerable costs.
143. THE DEPUTY JUDGE: He came to the full hearing knowing I refused the protective costs order.
144. MR BURTON: He did. As you know, I had hoped to be able to raise the issue with my Lord again at the end of this hearing on the basis that my Lord would have found merit in the claim sufficient to at least grant permission. It may be --
145. THE DEPUTY JUDGE: You have had my reasons for that.
146. MR BURTON: We have had my Lord's reasons. He has always sought to attempt an agreement with the defendant regarding costs, and, in my submission, had been advancing what would have been a frankly very generous, and risky on his part, suggestion that at least costs be capped on both sides into something into the thousands of figures, up to £9,000, which would be very generous. That was never agreed to. That is well beyond his means. He was just trying to do something to try to protect himself.
147. THE DEPUTY JUDGE: Part of that was accompanied by a suggestion that Hereford also submits to judgment
148. MR BURTON: I am sure my Lord is right.
149. THE DEPUTY JUDGE: I am aware there is wider correspondence.
150. MR BURTON: There is wider correspondence. Certainly I know it became clear that we were heading inextricably, unless he withdrew the claim, to a rolled up hearing. That is what he was suggesting.
151. THE DEPUTY JUDGE: It was ordered on 12 January.
152. MR BURTON: I will have to check with those instructing for a precise chronology that that offer has been on the table well before this hearing and firmly rejected. He tried, without simply pulling proceedings altogether, to do his best. I know. It is not an unattractive submission. It is also the case, as we discussed, that I believe my Lord has not criticised my client personally for the speed with which he, as an individual, moved.
153. THE DEPUTY JUDGE: I have said what I have said.
154. MR BURTON: My Lord has said what he has said. I hope it is clear he did the best that he could in the circumstances. This is just one of those difficult cases for a range of reasons. I do have what might be called a "procedural point", but it is not one without merit. My understanding is that the defendant is required if it wants its costs to serve a costs schedule. This was a day hearing listed for a day and there should be a schedule for summary assessment.
155. THE DEPUTY JUDGE: In fact it has taken over a day. It has taken a day and a half, frankly. You have had rather more than a day's worth, because I sat until quarter to 6.
156. MR BURTON: I appreciate that.
157. THE DEPUTY JUDGE: I do not think, in the circumstances, this is a particularly good point, since there were complex arguments and indeed to allow you to finish I had to allow it to be dealt with in writing.
158. MR BURTON: I am very grateful.
159. THE DEPUTY JUDGE: It was done and it was effectively a day and a half case. It was under-estimated, to be absolutely frank.
160. MR BURTON: In any event I return to what is very much my principal submission here, that this was a public interest claim, there was no personal interest. My client acted as best as he could throughout and the court does have a discretion. I do ask, in accordance with the judgment in Davey v Aylesbury and the principle that I have set out at paragraph 21, it be exercised to spare him from a costs award.
I should deal with the Interested Party's position, I think, my Lord. It is said that the costs of his, and it may be up to £4,000, should be weighed in the balance. All I say about that is that rather than assisting the issues, or indeed assisting his own case, one has to look at my Lord's judgment: all those statements did was attempt to throw in items of supposed prejudice.
161. THE DEPUTY JUDGE: You do not need to press me any further on that.
162. MR GILES: Those are my submissions on costs.
163. THE DEPUTY JUDGE: Mr Giles?
164. MR GILES: I am not pressing the Interested Party's costs.
165. THE DEPUTY JUDGE: I think that is wise.
166. MR GILES: However, (inaudible) my learned friend has sought to hop from motorcycle to sidecar, it has always been the case that this application is based on an contradiction between the Planning Committee's planning judgments and the planning judgment of Mr Macrae. Could I take your Lordship in Davey to the observations in the judgment of Sir Anthony Clarke at page 185? The Master of the Rolls at the bottom of page 185, my Lord, says:
"I entirely agree with the guidelines set out... I would however add one note of caution. It does seem to me that costs should ordinarily follow the event and that it is for the Claimant who has lost to show that some different approach should be adopted on the facts of a particular case. That principle is supported by the decision and reasoning of Dyson J..."
167. THE DEPUTY JUDGE: I have read to the end of the paragraph.
168. MR GILES: I am grateful. Then can I just reiterate the observation at the end of paragraph 29?:
"The basis rule he refers to is, as he explained, that costs follow the event in public law cases, as in others, because, where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of money diverted from the funds available to fulfil its primary public functions."
That is the situation we meet here.
169. THE DEPUTY JUDGE: You are not asking me to assess the schedule of costs?
170. MR GILES: No.
171. THE DEPUTY JUDGE: It is detailed assessment?
172. MR GILES: Yes.
Ruling on costs
173. THE DEPUTY JUDGE: Having dismissed the application Mr Giles invites me to award the Council's costs other than those relating to the application for the PCO, which I refused earlier in the year and which went to the Court of Appeal and was refused permission.
174. Mr Burton resists the costs relying upon the fact that the claim was brought by Mr Macrae in a public interest: the importance of the issues in a rural community, and the fact that he finds himself at a rolled up hearing, rather than having the matter decided at the permission stage. He draws my attention to what Sedley LJ said in Davey v Aylesbury District Council  2 All ER 178 at page 184, paragraph 21, which is that a claim brought partly or wholly in the public interest, albeit unsuccessfully, may properly result in a restricted order or no order as to costs. Mr Giles in response draws my attention to what the Master of the Rolls said at paragraph 29, that even in public law cases the costs should normally follow the event because --
"where an unsuccessful claim is brought against a public body, it imposes costs on that body which have to be met out of money diverted from the funds available to fulfil its primary public functions."
175. I accept what Mr Burton tells me, that Mr Macrae brought this out of a sense of responsibility for the public interest and not out of any particular personal interest. However, it does seem to me that it must have been clear to Mr Macrae that there was a risk of bearing the full costs of the hearing given the refusal of the protective costs order some months ago, and the rolling up of the hearing ordered as early as last January.
176. I also made it clear in the detailed reasons I gave for the refusal of the protective costs order, that the main reason why I refused order is because I did not regard it as raising matters of wider significance, even applying the flexible approach required to be taken to the Corner House principles. It must also therefore have been clear to Mr Macrae that the court had taken the view that this was not a case raising matters of significant public interest.
177. However, nonetheless I have been critical of the Council's approach to reasons and the process it followed. It would be right, having regard to Davey v Aylesbury and to the facts, to reflect that, to some degree, in my costs award. In doing the best I can, and having regard to the submissions of Mr Burton and Mr Giles, I award the costs of the application incurred by the local authority, but I restrict them to 90 per cent of the costs claimed. Those costs are to be ascertained following a detailed assessment, if not agreed.
178. MR GILES: I am grateful, my Lord. In light of the concession, which made it unnecessary for my Lord to decide the Interested Party's
179. THE DEPUTY JUDGE: I make it clear I do not award costs in favour of the Interested Party.
180. MR BURTON: That is why I am standing up. I suggest it might be necessary to do something about my learned friend's attendance at the hearing today when he was obviously instructed by both.
181. THE DEPUTY JUDGE: I regard that as costs saving, rather than costs incurring. I think it is a matter for detailed assessment.
182. MR BURTON: I simply wanted to raise it so that the judge at the detailed assessment knows. It is a matter for him, if at all.
183. THE DEPUTY JUDGE: Mr Giles would have had to have been here in any event
184. MR BURTON: I just do not know how the fee is worked out, or anything like that.
185. THE DEPUTY JUDGE: That is genuinely a matter for the detailed assessment. I make it clear, Mr Burton, that there is no order for costs made in favour of the Interested Party.
186. MR BURTON: There is one final matter just to clarify, because my Lord has refused permission I am sure my instructing solicitors will ask me whether I can broach the subject of appeal with my Lord. Is that right?
187. THE DEPUTY JUDGE: It is normally done by way of renewal.
188. MR GILES: It is renewal.
189. MR BURTON: I do not believe I can apply to you for permission.
190. THE DEPUTY JUDGE: I think the rules say that a refusal of permission is dealt with by renewal of the application to the Court of Appeal. Should it be necessary to seek my permission, I make it clear that permission to appeal is refused.