Neutral Citation Number:  EWHC 1234 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 29th April 2009
B e f o r e:
MR JUSTICE OUSELEY
THE QUEEN ON THE APPLICATION OF PAUL CAVANAGH
EAST SUSSEX COUNTY COUNCIL
SOUTHERN WATER SERVICES LIMITED
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Gordon Nardell (instructed by Richard Buxton) appeared on behalf of the Claimant
Robert Walton (instructed by East Sussex County Council) appeared on behalf of the Defendant
Robin Purchas QC and Mark Westmoreland Smith (instructed by Berwin Leighton Paisner LLP) appeared on behalf of the Interested Party
J U D G M E N T
(Approved by the court)
1. MR JUSTICE OUSELEY: This is a renewed application for permission to apply for judicial review of the grant of planning permission, on 23rd October 2008, by East Sussex County Council to Southern Water Services Limited for a waste water treatment facility on the outskirts of Peacehaven, near the coast, a few miles east of Rottingdean.
2. Mr Ian Dove QC, sitting as a Deputy High Court Judge, refused to grant permission on the grounds as they were then formulated, on the basis that they were nothing more than complaints about the appraisal of the planning merits made by the defendant in relation to the application, the relevant issues for which were fully and carefully explained to the Committee.
3. The background to the grant of permission requires a little consideration. In 2006 a public inquiry was held into an appeal by Southern Water in respect of what, for all material purposes, is the same development at the same location. The Inspector heard a considerable amount of evidence about all aspects of the development, including the risks that there would be unacceptable odour emissions and the preventative and monitoring measures that were proposed to deal with it. He considered the alternative sites which Southern Water and the County Council had looked at, and the process whereby this site at Lower Hodden Farm, the Peacehaven site, had come to be selected. He recommended, however, that planning permission be refused because of the design problems, which the particular appearance of the proposed facility would have. He did so notwithstanding that he recognised there to be an urgent and pressing need for modern standards of waste water treatment for the Brighton, Hove and Peacehaven catchment, as had been recognised in 2001. Indeed, so pressing is the point that infraction proceedings have been taken by the European Union against the United Kingdom. The European Court of Justice found, in January 2007, that a failure to take measures necessary to ensure that adequate treatment is provided for the Brighton catchment had put the UK in breach of the provisions of the Council Directive 91/271/EEC, the Urban Waste Water Treatment Directive.
4. As part of the Inspector's consideration of odour and alternative sites, he considered the considerable and, as he, as I understand it, accepted, understandable concern that local residents in Peacehaven had about the proposal. They were particularly concerned about the impact on their residential amenities of a development similar to one further east, at Pebsham, also in East Sussex County Council's area, also operated by Southern Water, which had a history of residents' complaints, of concern by the County Council at the operation of the plant and of investigation of those complaints, where the County Council's endeavours to improve matters had run into the sands.
5. The Inspector said, at paragraph 7.74 of his report, that if he thought that the level of odour that had occurred over a significant period at and around Pebsham, and other Southern Water works, was to be repeated at Peacehaven, he would have no hesitation in recommending that the appeal proposal should not proceed. With that robust starting point in mind, his analysis of the odour concerns and the way in which they were being addressed during the course of that appeal led him nonetheless to conclude that planning permission should not be refused on the grounds of odour nuisance.
6. He accepted the evidence - it appears agreed evidence - of the County Council and Southern Water that comparisons with the Pebsham works were unfair because, although it gave rise to continuing odour problems, the plant was of a different design and subject to different controls. He gave little weight to Southern Water's a He accepted the evidence - it appears agreed evidence - of the County Council and Southern Water that comparisons with the Pebsham works were unfair because, although it gave rise to continuing odour problems, the plant was of a different design and subject to different controls. He gave little weight to Southern Water's argument that it would not be in its interests for there to be odour problems at Peacehaven because of what had happened at Pebsham, where such an argument had also been run, but it was clear that the learning experience would be put to good effect from the outset at Peacehaven.
7. He then said this:
"For example, the Peacehaven works would provide a substantial level of containment, other than for [a] plant that must be outside a building, and it would have overdesign controls and standby capacity. Also, critically, there has been put in place a legally enforceable odour management plan (OMP) which provides for monitoring, risk assessments, the handling of complaints, audit control, review and, in Schedule 3 of the section 106 obligation, a binding dispute resolution procedure with strict timetables for action if disagreements could not be resolved between ESCC and SW amicably."
He then made the point about what he would have done, had he thought that the odour problems at Pebsham would be repeated here. He continued:
"However, as stated above, in normal operations I have confidence that there would be no odour nuisance offsite and the submitted obligation and OMP persuade me that suitable controls would be in place to deal with periods of maintenance and emergencies."
Those conclusions were accepted by the Secretaries of State in their decision letter.
The Inspector's report of the case put forward by Southern Water says that it was Southern Water's contention that the East Sussex County Council consultant and Southern Water had, at a point during the inquiry, agreed that, with the odour management plan as proposed after negotiation, the odour objection was no longer a basis for the refusal of permission.
10. The odour management plan then put forward is the same, for all relevant purposes, as the odour management plan which is now part of a section 106 obligation, in force as a result of the grant of the planning permission. The unsurprising consequence of the combination of urgent need and the basis for the refusal had led to a further application, this time addressing the sole design point upon which Southern Water had been unsuccessful.
11. The Committee considering that fresh application was bound, as Mr Nardell for the claimant accepts, to consider carefully what the Inspector had said about the issues common to both applications when it came to deal with that fresh application.
12. It was dealt with in a lengthy, detailed and careful report to the Committee, which set out the background and the need. It dealt with air quality and odour. From paragraph 71267131 it described what was proposed at the plant. The report then set out passages, which I have cited, from the Inspector's report. The Committee report continued that the experience of modern, purposebuilt waste water treatment works in West Sussex, and their ability to contain odour, has not been encouraging. The Pebsham plant, operational now for over 5 years, was still giving rise to failures and a high number of complaints from local residents. The Peacehaven plant would be closer to residents than the Pebsham one and, although to the east of the residential area, winds would be blowing towards them from the direction of the plant for 35 per cent of the time.
13. The Committee was told that discussions regarding Pebsham had taken place; and the applicant had sought to draw attention to the conclusions of the Inspector on the inappropriateness of comparison. The Committee report then dealt with how the proposed plant would operate, concluding that direct comparisons with Pebsham for odour control were not appropriate. It then referred to the officers' concerns, which sought to address areas in which they thought that Southern Water had demonstrated persistent failure at Pebsham, particularly in relation to the rapid investigation of complaints.
14. A number of specific provisions were referred to for inclusion in section 106, which are included in section 106. The conclusion was that the detailed arrangements were sufficient to give the County and District Councils, the District Council providing the environmental health officers resource, the necessary reassurance that adverse incidents would be dealt with in an expedient and robust manner.
15. The OMP was then referred to, along with its enforcement. The conclusion was that the air quality assessment by the applicant and the Inspector's conclusions with the OMP were sufficient for the necessary reassurance to be there that complaints would be dealt with in an expedient and robust manner and would make the air quality impact acceptable.
16. The grounds for challenge in relation to that have been subject to evolution, if not revolution, during the course of these proceedings. I focus on that which Mr Nardell now puts forward. It is a short point. It is that the Council's consultant, Dr Gair, had rejected an odour management plan proposed for Pebsham as a replacement for the existing conditions controlling odour. Her rejection of it had been sufficiently powerful for the section 73 application, which would have led to the change, to be withdrawn by Southern Water. It is plain from the correspondence between East Sussex County Council and Southern Water that East Sussex County Council itself accepted, and agreed with, the views of Dr Gair in relation to that.
17. The issue continues to rumble on, with judicial review proceedings started, I believe in 2007, by Southern Water still unresolved, stymieing, no doubt for arguable reasons, the enforcement endeavours of the local authority.
18. Mr Nardell's point is that the Council ought to have been told in the Committee report, and were not told, that Dr Gair had objected to the proposed odour management plan for Pebsham and could, inferentially, have been taken as objecting to the adequacy of the odour management plan here. If indeed the position was that the County Council, or its consultant, was facing in opposite directions in relation to an issue of this importance, Mr Nardell might well have a point of some substance in saying it is at least a matter that the Council ought to have been alerted to and considered. This matter, however, fails as a matter of fact.
19. The position is this. This point, namely the inferred stance of Dr Gair, was raised the day before this hearing. That is the sole way that matter is put. The state of the evidence from the claimant in relation to that consists of a comparison between the odour management plan for Pebsham and the odour management plan for Peacehaven, with the very strong reservations expressed by Dr Gair and the Council in relation to Pebsham.
20. There are two reasons why this contention fails as a matter of fact. It is clear that Dr Gair does not hold the view imputed to her. In a slightly indirect way - but nonetheless this is the position on the evidence - Dr Gair does not share the view imputed to her, and is content with the odour management plan. In the summary of grounds for contesting the claim produced by Southern Water as an interested party, it says at paragraph 33(a), although the point was not directly the point those paragraphs were concerned with, that the contents of the odour management plan, both in 2006 and again in 2008, were in each case agreed with the defendant's independent odour management consultant.
21. This is supported by other material. First, the Inspector's report could not have been written the way it was unless he had accepted that there was a major difference between what was proposed at Peacehaven and what the position was at Pebsham. It was clear that the Inspector did not regard there as being a live issue between Dr Gair, the consultant, and the applicant; the report simply would have had to deal with those differences. There are no differences to be dealt with. So I infer that the comment that she agreed with the 2006 odour management plan is correct, and I accept that they are the same. No material differences have been pointed to.
22. So far as the 2008 odour management plan is concerned, Mr Walton for East Sussex County Council tells me, on instructions, and for these purposes he has had a telephone conversation with the consultant in question, that Dr Gair agrees that the odour management plan for Peacehaven would be effective, and agrees with the content of the Committee report. It is perhaps unusual for evidence to be given that way, but I am prepared to accept it without requiring an undertaking that it be produced.
23. I accept it because of the very late manner in which this point, upon which the odour case has come to rest, has been raised. But it also fits entirely with what I have seen in relation to the two odour management plans. Mr Nardell invited me to treat the two odour management plans as similar in material respects, that is similar in relation to the areas where Dr Gair had expressed a doubt about the Pebsham one, and indeed some doubts in her original proof to the 2006 inquiry about the position at Peacehaven. Those concerned the use of hydrogen sulphide as a surrogate for odorous gases, the absence of site controls, reliance upon olfactory measurements (sniffing and judging) as opposed to some form of measurement, and the location at which that would be done.
24. The position is that in each of those respects, there is no sensible similarity. Rather, there is a plain contrast. There were two controls proposed in the rejected odour management plan at Pebsham: one, a stack limit, measured at the stack, and the other, an outside receptor limit with no outside receptors identified. There was then going to be a twicedaily walkover survey in the site. There does not appear to have been very much else of significance.
25. So far as the odour management plan at Peacehaven is concerned, there is an absolute emission concentration limit for the stack of 50 parts per billion for hydrogen sulphide, measured as a maximum 15minute average at the stack, excluding prenotified maintenance. This, in particular, was intended to deal not with prenotified maintenance, but reasonably foreseeable upsets.
26. There is not an equivalent for Pebsham. There is an equivalent test for Pebsham for another measure. That is not the maximum 15minute concentration, but the 15minute average (or mean) concentration. At Pebsham the 95 percentile, 15minute average concentration at the stack is 70 parts per billion. At Peacehaven it is 15 parts per billion - as Mr Purchas rightly says, approximately five times lower (or tighter) at Peacehaven than at Pebsham. Applying the same relationship to the 15minute maximum, there would be a limit of about 210 parts per billion, if there were to be one at Pebsham.
27. The second major difference of relevance to the way Mr Nardell puts his case concerns the site boundary limits. Some of this, of course, depends upon where the boundary is taken, but there is a boundary (the post and rail fence boundary) at Peacehaven at which a limit of 3 parts per billion hydrogen sulphide above baseline is proposed.
28. There is a second indicative level at the security fence, which is closer to the works. The monitoring is not to be carried out simply by a sniff - olfactory testing. I do not mean to be too derogatory about it, but there are undoubted problems with merely sniffing. This is to be done by a gold leaf, or similar, analyser over a representative period. There are provisions for monitoring. Both Southern Water and the County Council, or its consultants, can determine a breach and, if the limit is exceeded with a justifiable complaint, then there is a breach. That is a significant difference from the position at Pebsham.
29. There are other differences, but I accept that what I am told, and I think it appears also from the analysis of the applicant's case, as reported by the Inspector, that the question of whether hydrogen sulphide can properly be used as a surrogate means of controlling malodorous conditions does depend upon the level which is set for the hydrogen sulphide. If one examines the report of the applicant's case before the Inspector, that is in reality what is being said. So I accept, again, what Mr Walton tells me, which is that the concern that Dr Gair had expressed about hydrogen sulphide being used as a surrogate is resolved by the numbers and does not have to be resolved by any other form of testing.
30. Accordingly, I am satisfied that there was no aspect of odour that required the Committee to be alerted to an inconsistency in position that the consultant was adopting. On the contrary, all the evidence pointed to there being a difference between the two regimes, a difference that was considered by an independent inspector and accepted as being significant. The Committee was well aware of the problems at Pebsham, was invited to be sceptical about relying simply on what controls had been in place at Pebsham in relation to its areas for concern, about the logging of complaints and speed of action, and has, in consequence, put stricter controls on Southern Water in relation to those matters, that is to say speed of reaction to a properly noted complaint, noted under a proper system.
31. The position, therefore, is that Mr Nardell's point founders on the facts. There is no arguable point there, there is nothing more to be investigated and the point simply has, on an examination that takes a little time because of the number of documents, nothing to it. It is not necessary for these purposes to go into the question of whether there is an officious bystander test of materiality, whether greater scrutiny, or not, is necessary because of the EU dimension or into the views expressed about what a good Committee report should contain, or not. The simple fact is no material consideration was omitted. The suggestion that it has been derives essentially from incomplete examination or understanding of the papers.
32. The second, and lesser, point pursued by Mr Nardell is that the site selection process, or the alternative site examination process, contained an obvious flaw which ought to have prompted the officer to mention it directly to the Committee, or the Committee ought to have asked about it, so that they could have been satisfied that Peacehaven was indeed the best site. Again, the site selection process had been carefully considered by the Inspector at the previous inquiry, and he had accepted that the site upon which the claimant's arguments rest, at Shoreham Harbour, was not available and that the site selected by Southern Water, a process which had been examined by the County Council, had come up with the best site, namely Peacehaven.
33. That process was again reviewed for the purposes of considering the planning application. The site at Shoreham passed through the consultants' Stage 1 sieving, where certain key matters of policy were examined. At Stage 2 with various weightings given to various aspects, planning and engineering was considered. There was, within Stage 2, a deliverability factor. Although Shoreham scored the lowest possible mark for that, the outcome of Stage 2, when the planning aspects and the engineering aspects were combined, using the weightings given to them in the selection process, Shoreham was just ahead of Peacehaven as the best site. But there was a third stage built into the selection process, which required the examination of whether there were any major hurdles which the weighting of the process had disguised or failed to take properly into account. Deliverability was just such a problem. A site is not a better site if it cannot produce the development, however one has marked it at that earlier stage.
34. In this case the conclusion in the Committee report was that in 2005 there had been significant constraints. There was a practical constraint because the development of the alternative site would have required the compulsory acquisition of operational port land, which would be a doubtful venture, because land recently developed for portrelated uses would not readily be yielded up and, as at 2008, the identified site had been the subject of further portrelated development, which made the conclusions that it was not deliverable, as at 2005, yet stronger.
35. Mr Nardell's point is not that that conclusion is wrong. His point takes no issue with the fact that Shoreham is not deliverable, or at least that the Council was entitled to conclude that it was not deliverable, and that Peacehaven was a better site than Shoreham. His point is this, that the fact that Shoreham, which is so fundamentally flawed, could have got so far in the process might be thought to show that if Peacehaven had got so far, it too might be equally flawed.
36. It is possible to appreciate that argument, on a purely intellectual basis, but it is actually devoid of any practical application. The criteria and the stages and weighting have all been set out. It could not possibly be said that the selection process was an irrational selection process. The outcome of the selection process has been perfectly transparent.
37. It is always possible to argue that Factor A should be given twice the weighting of Factor B, or that some other factor should be factored in and regarded as key but, provided a proper view is kept of the role of such numerical processes, as it is where a Stage 3 check exists, it is impossible to say that somehow or other the criteria and weighting has itself skewed the process and caused relevant factors to be omitted.
38. In reality, that is the only site being put forward as potentially better, and I can understand why it is, in view of its location in another county council's area, already developed and closer to the source of the waste. Nonetheless, as the only site put forward as one perhaps showing an error, and there plainly not being any error in its rejection at Stage 3, and there being no other indication that the theoretical flaw in the selection process has led to an obviously unreal result, it cannot be said that there is an arguable case that some relevant consideration has been ignored. The local authority is entitled to point to the fact that it has adopted the same position that persuaded the Inspector and the Secretary of State. I am entirely satisfied that the Council has not omitted a material consideration and the argument to the contrary really has nothing to it. So, although I understand the local residents' concern about the smell risk, the relevant planning process has been gone through in a lawful and, I would add, careful manner. This application is accordingly dismissed on its merits.
39. I have not invited argument in relation to delay. I do not propose to reach any ruling on delay. Suffice it to say this, that it would have required a case of considerable merit to persuade me that there was really nothing in the delay point and, although it might be thought to be only an issue as to promptness, there is a potential problem over the submission of detailed grounds after the 3month limit, where it may be thought that the practice direction does not permit that. If detailed grounds are submitted outside the 3month limit, notwithstanding that that the claim form, bare of any substance, is lodged within time, there would be a question as to whether, in essence, the 3month limit had been complied with as well. But as that is not the basis for my decision, I simply draw attention to the point, should it be thought this matter had something in it to go further.
40. MR WALTON: Thank you, my Lord. With a flurry of activity on our part yesterday, I am afraid we are not in a position to put a costs schedule in front of you. We would not expect to get our costs.
41. MR JUSTICE OUSELEY: Did you in your acknowledgment of service?
42. MR WALTON: We did. The Deputy Judge awarded us £2,000, not to be enforced without the leave of the court. I wonder whether I could ask for our costs to be paid, to be assessed if not agreed, and not to be enforced without the leave of the court.
43. MR JUSTICE OUSELEY: You are talking about that £2,000?
44. MR WALTON: That is the £2,000 for the acknowledge of service. Nothing beyond that.
45. MR JUSTICE OUSELEY: Mr Purchas, anything?
46. MR PURCHAS: Yes, I do, my Lord. I am in the same position (inaudible) and publicly funded. My Lord, we put in a schedule of costs. It is page 1697. I will look at the principle, if I may. Can I deal with it in two stages: firstly, the acknowledgment of service and then, secondly, the costs of today?
47. So far as the acknowledgment of service is concerned, this was a case, in my submission, where it is particularly important that the documents were before the court. I do not go through them in detail but, although the documents are voluminous, they actually comprised what was necessary for the claim to be made or, in this case, to be rejected. Your Lordship will bear in mind that an awful lot of the grounds that were put forward simply have not surfaced in this court at all. If one takes them in order, section 106 and the odour management plan simply were not produced at all, nor were the parts of the Inspector's report dealing with the position of Amanda Gair or, indeed, the documents dealing with the standards upon odour, which is in the ES. On site selection, the methodology appendix was omitted, that is Appendix A from the 2008 study, but that, of course, was an update of 2006. The 2006 Entec report was omitted in the entirety, as was all of the Inspector's report relating to site selection. On top of that, our site selection review was not included.
48. On the third ground, landscape, your Lordship may have noticed that the point was being made that drawings produced were misleading. That might require attention to what was the application that was made that was being considered, but the application plans, except for two initially and then another four, were wholly omitted, the design and access statement was omitted, as was the environmental statement dealing with the description and landscape assessment. Although we put in very few documents on delay - there were about four pages - that actually was documentation; it really was not for us to produce at all. It was documents that would normally be before the court. Our summary grounds, my Lord, very largely the grounds we have put in, have led, we believe, to the abandonment of those points. The only point, essentially, on odour, came up yesterday. So far as site selection is concerned, the appendix was left out.
49. My Lord, I would just say this, when one looks at Davey it is important, in my submission, to bear in mind what Brooke LJ said in Ewing , saying that costs will be, or may be, affected by the conduct of the claimant, and particularly the timing matters put forward. Here the protocol letter, such as it was, really had nothing to do with the grounds that emerged late. We got the grounds on 5th February, in breach of the practice direction. That left us 6 days to put in the acknowledgment of service. I can say, with some personal recollection, that that was a considerable burden on the interested party and did not give, for instance, the defendant and ourselves any real opportunity to discuss how we could most conveniently deal with it before the court.
50. My Lord, I would ask here for the costs of the acknowledgement service.
51. MR JUSTICE OUSELEY: Do you have a schedule of those costs?
52. MR PURCHAS: It is Volume 4, 1697. My Lord, in the circumstances, I would simply ask for it to be assessed if not agreed, rather than spending more.
53. MR JUSTICE OUSELEY: I do not like not ordering now in relation to acknowledgements of service.
54. MR PURCHAS: That takes us to 10th February, as I recall.
55. MR JUSTICE OUSELEY: Yes. You normally have a harder time, anybody has a harder time, in relation to hearing.
56. MR PURCHAS: Yes.
57. MR JUSTICE OUSELEY: Let me just look.
58. MR PURCHAS: Certainly, my Lord.
59. MR JUSTICE OUSELEY: It would be unusual, I think, to have an order for costs of that scale for an acknowledgment of service.
60. MR PURCHAS: The case started earlier enough for my learned junior, on that occasion, to have taken silk in the meantime.
61. MR JUSTICE OUSELEY: That is the limit of your application, is it?
62. MR PURCHAS: My Lord, it is not, I am afraid. I will deal with the second part fairly shortly. My Lord, it is this. In my submission, this is within the exception. It is in the exception, first on the grounds of the hopelessness of the claim. My Lord, on odour, which was the point on which most of the court's hearing has concerned itself, the point raised yesterday morning, and, unless we were here, there was a real risk. Indeed, most of the material we have produced has been relied on. There is a real risk, in that case, of an interested party in this case simply not having an opportunity to ensure the court is properly addressed on these matters.
63. Secondly, this is a case, in my submission, where this claimant has persisted, not unusually, in abandoning all his grounds and adopting new grounds, almost week by week, month by month, but the last ground he adopted, in my submission, was as hopeless as the others. It is not a situation here where Mr Ian Dove, as Deputy High Court Judge, made quite full reasons for rejecting original grounds.
64. Lastly, I would say this, rightly, in my submission, having regard to the importance of the public interest in this case, the claimant has effectively had the full hearing on the grounds that he finally ended up relying on. I am thinking particularly of the odour. There is really nothing more to be said on that odour ground. It explored the evidence in quite considerable detail and that is absolutely appropriate, in view of the public for interests involved.
65. MR JUSTICE OUSELEY: Thank you very much. Mr Nardell.
66. MR NARDELL: My Lord, I submit and concede that two orders for costs should be made. The first is the usual direction for Community Legal Service's assessment of the claimant's own costs. I also accept that it is right, if costs are to be ordered at all, for there to be the usual Mount Cook order for the defendant local authority's costs of the acknowledgment of service, subject to the usual constraint, where one is a successful defendant against a Community Legally Servicefunded claimant.
67. In that situation, I am not sure - and I am trying to seek out the provision in the White Book - whether it is appropriate for there to be any summary assessment at all, because where a claimant is an assisted person. The proper form of order is for an order costs to be made in principle, but the amount, if any, to be paid to be determined on a subsequent occasion. That would be inconsistent. That flows from the Court of Appeal's decision 2 or 3 years ago in Gower . That is inconsistent with the court that has heard the matter affecting itself, having made an order for costs, to quantify the cost the assisted person is to pay. So I do concede that if any order is to be made at all, it is quite proper there should be a Mount Cook order for the defendant's acknowledgment of costs, but those should be subject to the usual form of order that is made, as against an LSCfunded claimant.
68. MR JUSTICE OUSELEY: Are you saying that the very assessment of the amount, as opposed to the form of order that it should not be enforced without leave of the court, cannot be undertaken by this court?
69. MR NARDELL: That is my understanding.
70. MR JUSTICE OUSELEY: I have never come across that before. I do not say you are wrong straight off, but I have never been asked not to.
71. MR NARDELL: No, I do not see the matter beyond that. It may well be that I misunderstood, rather than understood, the position.
72. MR JUSTICE OUSELEY: I would not be hard and fast about it, but I propose to deal with the matter on the basis that unless a detailed assessment is shown to be necessary - of course, you may have your order for detailed assessment - I propose to assess.
73. (Pause) . You were referring to a case called Gower.
74. MR NARDELL: My Lord, yes. It was a decision of the Court of Appeal on the proper approach, governed by section 11 of the Access to Justice Act 1999, where the court is minded to make an order for costs against a person who has the benefit of a Community Legal Service funding certificate. My recollection of the case is that the Court of Appeal took the view that the right order the court has a choice of either refusing to expose the assisted person to any costs at all, or making an order that the costs should be quantified in due course. It would simply seem to me that the latter course is inconsistent with the court that has heard the matter itself affecting to assess the costs. That is my only concern.
75. MR PURCHAS: It may assist or not, my Lord. Page 1445, of the White Book is your Lordship looking at that, anyway?
76. MR JUSTICE OUSELEY: I am looking at a 2008 edition.
77. MR PURCHAS: I am afraid this is 2009.
78. MR JUSTICE OUSELEY: What is your heading?
79. MR PURCHAS: "Guide to summary assessment of costs", which, in the 2005 edition, will be the same.
80. MR JUSTICE OUSELEY: In volume 1?
81. MR PURCHAS: It is in volume 1. As I say, it is the 2005 edition. Obviously, wherever it appears in volume 1.
82. MR NARDELL: Paragraph 48.16, if that assists.
83. MR PURCHAS: Guide to summary assessment of costs.
84. MR JUSTICE OUSELEY: Yes, I have it.
85. MR PURCHAS: I am just looking at paragraph 4, my Lord.
86. MR JUSTICE OUSELEY: Yes, that is the receiving party.
87. MR PURCHAS: Yes.
88. MR JUSTICE OUSELEY: The court may make a summary assessment of costs payable by an assisted person. I can understand why it does not apply if an order for costs is being made in your favour.
89. MR NARDELL: That is quite right. The court may make a summary assessment.
90. MR JUSTICE OUSELEY: I do not propose to allow this to drag on. So I will make a summary assessment. Given the opportunity that you have to make written representations - so far as I know none have been written - in relation to the defendant's acknowledgment of service costs, they will be ordered at the figure Mr Ian Dove put in of £2,000.
91. MR NARDELL: My Lord, that is not itself the assessment of the assisted person's liability to pay that. That is the distinction made by
92. MR JUSTICE OUSELEY: No, those are his costs. Whether any is payable is another issue. I do not deal with that. That is subject to the usual order. He does not ask for anything else. Mr Purchas asks for quite a lot.
93. MR NARDELL: Mr Purchas does, a substantial amount, and your Lordship politely indicated that those, perhaps, are amounts in excess of those in which this court usually assesses sums. Indeed, usually where an interested party comes to the court, that party does not receive its costs, either of the acknowledgment of service or the hearing. Therefore, quite rightly, my learned friend Mr Purchas addressed to you as to why in this case your Lordship should make an exception.
94. First, so far as the acknowledgment of service costs are concerned, there is no basis for departing from the usual practice. On the contrary, this was a case in which a massive amount of material, the "extensive summary" grounds and a large (inaudible) exhibits to a witness statement were provided, in breach of guidance given by the courts as to the purpose of the summary stage.
95. If it were to be suggested that that material was of some use to the court, then one would need to look closely at the reasoning in the learned Deputy Judge's order to see whether there was some particular and exceptional assistance the learned Deputy Judge derived at the acknowledgement of service stage from the interested party's participation, over and above that which he no doubt received from the defendant. One gets no such indication that such assistance was received in this case. There seemed to be no basis for the interested party to receive any of its costs, down to the acknowledgment stage. No doubt it has taken a commercial decision to participate, no doubt one can understand why, but it must bear its own costs down to that stage.
96. A rather different approach was taken by my learned friend in relation to the costs of the hearing. As your Lordship knows, he has a double hurdle to surmount. The first is the Mount Cook hurdle, that a party who is on the receiving end of a judicial review, even a defendant, will not normally receive his costs of attending the hearing. He receives his costs limited to the acknowledgment of service and an exception will only be made when there is a good reason for doing so. That hurdle must apply double when the interested party is seeking costs, because again the usual rule is that if any costs are to be awarded, they are to the defendant, not to the interested party.
97. There is no good reason for making an exception on either basis. First of all, the point is taken against me that we had abandoned or pursued certain grounds in the light of the material received. That is exactly as we are obliged to do. The duty of an advocate and legal representatives in a claim for judicial review, on receiving material from opposing parties, is precisely to assess it and to consider what its implications are for its case. I have very frankly indicated that it is necessary for me to put the case on a basis which, although related, is not quite the same as the basis on which it was before the Deputy Judge. Most of the documentary basis for putting the case as I have before your Lordship today arose on disclosure given by the local planning authority about a week after the learned Deputy Judge made his decision. So this is not a case where any conduct of the claimant can be said to be generate such exceptionality that either it is appropriate for any successful party to receive their costs of attending the hearing at all, or specifically for the interested party to re ceive an order for costs.
98. The highest my learned friend Mr Purchas can put his case is that selected items among the voluminous material he supplied at the acknowledgment stage have been of some assistance to the claimant and the court, but, with great respect, it is rather unrealistic to leap from there to the conclusion that therefore he should have all or some part of his costs. It may well be that had he not put certain of those documents in, those instructing me would have had to put them in, at some cost. To that extent, they, and the legal aid fund, have been relieved of the costs, but I see no basis for the proposition that he has been caused, by some conduct on my side. Indeed, the way in which the case is put at the hearing, from having incurred the cost of putting in that material at the acknowledgment stage. That is his difficulty. It seems to me that there is no good reason for departing from the usual rule, either in relation to awarding any costs of attending the hearing, or in relation to an interested party's costs at all. Those are my submissions in that respect, my Lord.
99. MR JUSTICE OUSELEY: Any reply, Mr Purchas?
100. I am going to make a small order in respect of the interested party's costs. First of all, and Mr Purchas is entirely right, some important documents were missing. I am not prepared to say that everything that appeared in the four bundles was necessary, but some important documents were missing and somebody had to provide them. Secondly, the interested party has separate knowledge from the local authority as to the background and, in my judgment, the contents of the acknowledgment of service, with the documents, were instrumental in achieving the withdrawal, or alteration, significantly, of the way in which the case was put. I am conscious that the principle of the award of costs is that it should not be so great as to amount to a bar to access to justice, and I bear in mind that the defendant had already made submissions, but nonetheless the position, in my judgement, warrants what will, I am afraid, appear, in relation to the total claimed, to be a very small amount. It warrants £7,500 in relation to the acknowledgment of service. I accept Mr Nardell's points in relation to the hearing.
101. I should say it is a closerun thing, because I think this is a case where the combined knowledge and arguments have been valuable in dealing with the changing scene. If there is a bit more in the acknowledgment of service costs than otherwise there might have been, though I appreciate it does not amount to very much - a lot for your side and almost nothing for their side - if there is a little more than there might otherwise have been, it may reflect the fact that there was some value in their being able to deal with I should say it is a closerun thing, because I think this is a case where the combined knowledge and arguments have been valuable in dealing with the changing scene. If there is a bit more in the acknowledgment of service costs than otherwise there might have been, though I appreciate it does not amount to very much - a lot for your side and almost nothing for their side - if there is a little more than there might otherwise have been, it may reflect the fact that there was some value in their being able to deal with the documentation with a changing, evolving case. So a total of £7,500. The order is the total order, so it includes whatever VAT is as payable, subject to the usual order - not to be enforced without leave of the court.
102. Thank you very much to you all.
SMITH BERNAL WORDWAVE